# Minimum Standards for Driver's Licenses and Identification Cards Acceptable by Federal Agencies for Official Purposes; Waiver for Mobile Driver's Licenses > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A2023-18582 ## Record - **Collection:** Federal Register - **Document type:** Proposed Rule - **Published:** August 30, 2023 - **Citation:** 88 FR 60056 ## Text DEPARTMENT OF HOMELAND SECURITY 6 CFR Part 37 [Docket No. TSA-2023-0002] RIN 1652-AA76 Minimum Standards for Driver's Licenses and Identification Cards Acceptable by Federal Agencies for Official Purposes; Waiver for Mobile Driver's Licenses AGENCY: Transportation Security Administration, Department of Homeland Security. ACTION: Notice of proposed rulemaking. SUMMARY: The Transportation Security Administration (TSA) is proposing to amend the REAL ID regulations to waive, on a temporary and State-by-State basis, the regulatory requirement that mobile or digital driver's licenses or identification cards (collectively “mobile driver's licenses” or “mDLs”) must be compliant with REAL ID requirements to be accepted by Federal agencies for official purposes, as defined by the REAL ID Act, when full enforcement of the REAL ID Act and regulations begins on May 7, 2025. DATES: Interested persons are invited to submit comments on or before October 16, 2023. ADDRESSES: You may submit comments, identified by the TSA docket number to this rulemaking, to the Federal Docket Management System (FDMS), a government-wide, electronic docket management system. To avoid duplication, please use only one of the following methods: • Electronic Federal eRulemaking Portal: https://www.regulations.gov. Follow the online instructions for submitting comments. • Mail: Docket Management Facility (M-30), U.S. Department of Transportation, 1200 New Jersey Avenue SE, West Building Ground Floor, Room W12-140, Washington, DC 20590-0001. The Department of Transportation (DOT), which maintains and processes TSA's official regulatory dockets, will scan the submission and post it to FDMS. • Fax: (202) 493-2251. See the SUPPLEMENTARY INFORMATION section for format and other information about comment submissions. FOR FURTHER INFORMATION CONTACT: George Petersen, Senior Program Manager, REAL ID Program, Enrollment Services and Vetting Programs, Transportation Security Administration; telephone: (571) 227-2215; email: george.petersen@tsa.dhs.gov. Please do not submit comments to these addresses. SUPPLEMENTARY INFORMATION: Public Participation and Request for Comments TSA invites interested persons to participate in this NPRM by submitting written comments, including relevant data. Comments that will provide the most assistance to TSA will reference a specific portion of this proposed rule, explain the reason for any suggestion or recommended change, and include data, information, or authority that supports such suggestion or recommended change. Submitting Comments With each comment, please identify the docket number at the beginning of your comments. You may submit comments and material electronically, by mail, or fax as provided under ADDRESSES , but please submit your comments and material by only one means. If you submit comments by mail or in person, submit them in an unbound format, no larger than 8.5 by 11 inches, suitable for copying and electronic filing. If you would like TSA to acknowledge receipt of comments submitted by mail, include with your comments a self-addressed, stamped postcard or envelope on which the docket number appears and we will mail it to you. All comments, except those that include confidential or SSI 1 will be posted to https://www.regulations.gov, and will include any personal information you have provided. Should you wish your personally identifiable information redacted prior to filing in the docket, please clearly indicate this request in your submission. TSA will consider all comments that are in the docket on or before the closing date for comments and will consider comments filed late to the extent practicable. The docket is available for public inspection before and after the comment closing date. 1 “Sensitive Security Information” or “SSI” is information obtained or developed in the conduct of security activities, the disclosure of which would constitute an unwarranted invasion of privacy, reveal trade secrets or privileged or confidential information, or be detrimental to the security of transportation. The protection of SSI is governed by 49 CFR part 1520. Handling of Confidential or Proprietary Information and SSI Submitted in Public Comments Do not submit comments that include trade secrets, confidential commercial or financial information, or SSI to the public regulatory docket. Please submit such comments separately from other comments on the rulemaking. Comments containing this type of information should be appropriately marked as containing such information and submitted by mail to the address listed in the FOR FURTHER INFORMATION CONTACT section. TSA will take the following actions for all submissions containing SSI: • TSA will not place comments containing SSI in the public docket and will handle them with applicable safeguards and restrictions on access. • TSA will hold documents containing SSI, confidential business information, or trade secrets in a separate file to which the public does not have access, and place a note in the public docket explaining that commenters have submitted such documents. • TSA may include a redacted version of the comment in the public docket. • TSA will treat requests to examine or copy information that is not in the public docket as any other request under the Freedom of Information Act (5 U.S.C. 552) and the Department of Homeland Security (DHS) Freedom of Information Act regulation found in 6 CFR part 5. Reviewing Comments in the Docket Please be aware that anyone is able to search the electronic form of all comments in any of our dockets by the name of the individual, association, business entity, labor union, etc., who submitted the comment. For more about privacy and the docket, review the Privacy and Security Notice for the FDMS at https://www.regulations.gov/privacy-notice, as well as the System of Records Notice DOT/ALL 14—Federal Docket Management System (73 FR 3316, January 17, 2008) and the System of Records Notice DHS/ALL 044—eRulemaking (85 FR 14226, March 11, 2020). You may review TSA's electronic public docket at https://www.regulations.gov. In addition, DOT's Docket Management Facility provides a physical facility, staff, equipment, and assistance to the public. To obtain assistance or to review comments in TSA's public docket, you may visit this facility between 9 a.m. and 5 p.m., Monday through Friday, excluding legal holidays, or call (202) 366-9826. This DOT facility is located in the West Building Ground Floor, Room W12-140 at 1200 New Jersey Avenue SE, Washington, DC 20590. Availability of Rulemaking Document You can find an electronic copy of this rulemaking using the internet by accessing the Government Publishing Office's web page at https://www.govinfo.gov/app/collection/FR/ to view the daily published Federal Register edition or accessing the Office of the Federal Register's web page at https://www.federalregister.gov. Copies are also available by contacting the individual identified for “General Questions” in the FOR FURTHER INFORMATION CONTACT section. Abbreviations and Terms Used in This Document AAMVA—American Association of Motor Vehicle Administrators CA/Browser Forum—Certification Authority Browser Forum CISA—Cybersecurity and Infrastructure Security Agency DHS—U.S. Department of Homeland Security DID—Decentralized Identifiers FIPS—Federal Information Processing Standards HSM—Hardware security module IEC—International Electrotechnical Commission ISO—International Organization for Standardization mDL—mobile driver's licenses and mobile identification cards NIST—National Institute for Standards and Technology NPRM—Notice of proposed rulemaking PUB—Publication RFI—Request for Information SP—Special Publication TSA—Transportation Security Administration VC—Verifiable Credentials VCDM—Verifiable Credentials Data Model W3C—World Wide Web Consortium Table of Contents I. Executive Summary A. Purpose of the Regulatory Action B. Overview of the Proposed Rule C. Need for a Multi-Phased Rulemaking II. Background A. REAL ID Act, Regulations, and Applicability to mDLs B. Request for Information C. mDL Overview D. Current and Emerging Industry Standards and Government Guidelines for mDLs E. DHS Involvement in mDLs III. Summary of the Proposed Rule A. Overview B. Specific Provisions C. Impacted Stakeholders D. Use Cases Affected by This Proposed Rule IV. Discussion of Public Comments in the RFI V. Consultation With States, Non-Governmental Organizations, and the Department of Transportation VI. Regulatory Analyses A. Economic Impact Analyses B. Paperwork Reduction Act C. Federalism (E.O. 13132) D. Customer Service (E.O. 14058) E. Energy Impact Analysis (E.O. 13211) F. Environmental Analysis VII. Specific Questions I. Executive Summary A. Purpose of the Regulatory Action This proposed rule is part of an incremental, multi-phased rulemaking that will culminate in the promulgation of comprehensive requirements for State issuance of REAL ID 2 -compliant mobile driver's licenses and mobile identification cards (collectively “mDLs”). In this first phase, TSA is proposing two changes to the current regulations in 6 CFR part 37, “REAL ID Driver's Licenses and Identification Cards.” First, TSA is proposing to add definitions for, among others, mobile driver's licenses and mobile identification cards. These definitions provide a precise explanation of those terms as referenced in the REAL ID Act, which applies to only State-issued driver's licenses and state-issued identification cards. 3 Any other types of identification cards, such as those issued by a Federal agency, or commercial, educational, or non-profit entity, are beyond the scope of the Act and regulations. The definition of “mDL” as used in this rulemaking is limited to the REAL Act and regulations and should not be confused with “mDLs” as defined by other entities, or with State-issued mDLs that are not intended to comply with the REAL ID Act. 2 The REAL ID Act of 2005, Division B of the FY05 Emergency Supplemental Appropriations Act, as amended, Public Law 109-13, 119 Stat. 302. Effective May 22, 2023, authority to administer the REAL ID program was delegated from the Secretary of Homeland Security to the Adminstrator of TSA pursuant to DHS Delegation No. 7060.2.1. 3 See id. section 201 (defining a “driver's license” to include “driver's licenses stored or accessed via electronic means, such as mobile or digital driver's licenses, which have been issued in accordance with regulations prescribed by the Secretary”; mirroring definition for “identification card”). Second, TSA is proposing to establish a temporary waiver process that would permit Federal agencies to accept mDLs for official purposes, 4 as defined in the REAL ID Act and regulations, on an interim basis when enforcement begins on May 7, 2025, 5 but only if all of the following conditions are met: (1) the mDL holder has been issued a valid and unexpired REAL ID-compliant physical driver's license or identification card from the same State that issued the mDL; (2) TSA has determined the issuing State to be REAL ID-compliant; and (3) TSA has issued a waiver to the State. To qualify for the waiver, this proposed rule would require States to submit an application demonstrating that they meet specified requirements, drawn from 19 industry and government standards guidelines. The rulemaking proposes to incorporate by reference (IBR) those standards and guidelines, which cover technical areas such as mDL communication, digital identity, encryption, cybersecurity, and network/information system security and privacy. 4 The REAL ID Act defines official purposes as including but not limited to accessing Federal facilities, boarding federally regulated commercial aircraft, entering nuclear power plants, and any other purposes that the Secretary shall determine. See id. Notably, because the Secretary has not determined any other official purposes, the REAL ID Act and regulations do not apply to Federal acceptance of driver's licenses and identification cards for other purposes, such as applying for Federal benefits programs, submitting immigration documents, or other Federal programs. 5 88 FR 14473 (Mar. 9, 2023); DHS Press Release, DHS Announces Extension of REAL ID Full Enforcement Deadline (Dec. 5, 2022), https://www.dhs.gov/news/2022/12/05/dhs-announces-extension-real-id-full-enforcement-deadline. As noted above, this proposed rule is part of an incremental rulemaking that would temporarily permit Federal agencies to accept mDLs for official purposes until TSA issues a subsequent rule that would set comprehensive requirements for mDLs. TSA believes it is premature to issue such requirements before the May 7, 2025, deadline due to the need for emerging industry standards and government guidelines to be finalized (discussed in more detail in Part II.D., below). The need for this rulemaking arises from TSA's desire to accommodate and foster the rapid pace of mDL innovation, while ensuring the intent of the REAL ID Act and regulations are met. Secure driver's licenses and identification cards are a vital component of our national security framework. The REAL ID Act of 2005 addressed the 9/11 Commission's recommendation that the Federal Government “set standards for the issuance of sources of identification, such as driver's licenses.” Under the REAL ID Act and regulations, a Federal agency may not accept for any official purpose a State-issued driver's license or identification card, either physical or an mDL, that does not meet specified requirements, as detailed in the REAL ID regulations ( see part II.A., below, for more discussion on these requirements). Although the current regulatory provisions do not include requirements that would enable States to issue REAL ID-compliant mDLs, several States are already investing significant resources to develop mDLs based on varying and often proprietary standards, many of which may lack the security, privacy, and interoperability features necessary for Federal acceptance for official purposes. The rulemaking would encourage the development of mDLs with a higher level of security, privacy, and interoperability. Absent the proposed rule, individual States may choose insufficient mDL security and privacy safeguards that fail to meet the security purposes of REAL ID requirements and the privacy needs of users. The proposed rule would address these considerations by enabling TSA to grant a waiver to States whose mDLs TSA determines provide sufficient safeguards for security and privacy, pending completion of emerging standards. Without timely guidance from the Federal government regarding potential requirements for developing a REAL ID-compliant mDL, States risk investing in mDLs that are not aligned with emerging industry standards and government guidelines that may be IBR'd in a future rulemaking. States, therefore, may become locked-in to existing solutions and could face a substantial burden to redevelop products acceptable to Federal agencies under this future rulemaking. Many stakeholders have already expressed these concerns to TSA. In response to an April 2021 Department of Homeland Security (DHS) Request for Information (RFI), 6 issued to inform a future rulemaking that would set technical requirements and security standards for mDLs, one commenter cautioned that the absence of a common standard “could lead to fragmentation of the market, a decrease in trust, non-interoperable solutions, and a global diminishing benefit of the mDL concept.” 7 Similarly, another commenter warned that “[w]ithout clear, uniform, flexible standards that will encourage widespread public and private sector use of mDLs, mDLs will likely create confusion and struggle to gain a foothold in being accepted.” 8 6 See 86 FR 20320 (April 19, 2021). 7 Comment by American Association of Motor Vehicle Administrators. 8 Comment by DocuSign. Although this proposed rule would not set standards for the issuance of REAL ID-compliant mDLs, it does establish minimum requirements that States must meet to be granted a waiver. These proposed minimum standards and requirements would ensure that States' investments in mDLs provide minimum privacy and security safeguards consistent with information currently known to the TSA. B. Overview of the Proposed Rule As further discussed in part II.A., below, mDLs cannot be accepted by Federal agencies for official purposes when REAL ID full enforcement begins on May 7, 2025, unless 6 CFR part 37 is amended to address mDLs. This proposed rule would establish a process for waiving, on a temporary and State-by-State basis, the current prohibition on Federal acceptance of mDLs for official purposes, and enable Federal agencies to accept mDLs on an interim basis while the industry matures to a point sufficient to enable TSA to develop more comprehensive mDL regulatory requirements. The current regulations prohibit Federal agencies from accepting non-compliant driver's licenses and identification cards, including both physical cards and mDLs, when REAL ID enforcement begins on May 7, 2025. Any modification of this regulatory provision must occur through rulemaking (or legislation). Until and unless TSA promulgates comprehensive mDL regulations that enable States to develop and issue REAL ID-compliant mDLs, mDLs cannot be developed to comply with REAL ID, and Federal agencies therefore cannot accept mDLs for official purposes after REAL ID enforcement begins on May 7, 2025. The proposed rule would allow the Federal government to accept mDLs on an interim basis, but only if all of the following conditions are met: (1) the mDL holder has been issued a valid and unexpired REAL ID-compliant physical driver's license or identification card, (2) TSA has determined the issuing State to be REAL ID-compliant, and (3) TSA has issued a waiver to such State based on that State's compliance with minimum privacy, safety, and interoperability requirements proposed in this rulemaking. Please see Part II.A., below, for an explanation of the REAL ID requirement that both cards and issuing States must be REAL ID compliant. C. Need for a Multi-Phased Rulemaking TSA recognizes both that regulations can influence long-term industry research and investment decisions and that premature regulations can distort the choices of technologies adopted, which can be costly to undo. As noted above, there are clear reasons for TSA to issue requirements for mDLs. First, there is a growing demand for and interest in mDLs due to their potential benefits of increased convenience, security, and privacy. Second, to meet this demand, States are beginning to invest in the infrastructure and programs to issue mDLs. Third, in the absence of Federal regulations and guidelines as outlined in this rulemaking, States may make unsuitable investments and issue mDLs that Federal agencies cannot accept. Fourth, adoption and use of mDLs could be thwarted if current regulations are not amended to accommodate mDLs when REAL ID enforcement begins on May 7, 2025. At the same time, however, TSA believes it is premature to issue final, comprehensive requirements for mDLs given the rapid pace of innovation in this nascent market, and the multiple emerging industry and government standards and guidelines necessary to ensure mDL privacy and security that are still in development. From comments submitted in response to the RFI, TSA recognizes that technology and stakeholder positions in this industry are diverse and evolving. TSA also conducted a comprehensive analysis of industry and Government standards and guidance, and the types of technology currently available. Based on this analysis, a few international industry standards applicable to mDLs are available, 9 while most are years away from publication. Accordingly, TSA has concluded that it is premature to promulgate comprehensive requirements for mDLs while those standards are emerging, because of the risk of unintended consequences, such as chilling innovation and competition in the marketplace, and “locking-in” stakeholders to certain technologies. 9 See Part II.D. Although TSA believes it is premature to establish comprehensive requirements at this time, TSA believes it is appropriate to use its regulatory authority to establish a waiver process with clear standards and requirements to facilitate the acceptance of mDLs while the industry matures and moves to accepted standards. Therefore, TSA has decided to proceed with a multi-phased rulemaking approach. Initial efforts focused on research and gathering information from interested stakeholders, commencing with publication of the pre-rulemaking RFI that was intended to inform any subsequent rulemaking. “Phase 1,” the current phase, would establish a temporary waiver process. This waiver process would enable secure use of mDLs when REAL ID enforcement begins on May 7, 2025, while providing TSA additional operational experience and data from TSA, which will accept mDLs during the waiver period before eventually issuing comprehensive regulations. The proposed rule is intended to serve as a regulatory bridge for this emerging technology. Following publication of industry standards currently under development, TSA anticipates conducting a “Phase 2” rulemaking that would repeal the temporary waiver provisions, including appendix A to subpart A of the part (discussed in Part III.B.4.iv., below) established in Phase 1 and establish more comprehensive requirements enabling States to issue mDLs that comply with REAL ID requirements. At this time, TSA anticipates the Phase 2 rulemaking would IBR pertinent parts of some emerging standards (pending review of those final, published documents) regarding specific requirements for security, privacy, and interoperability, and distinguish between existing regulatory requirements that apply only to mDLs versus physical cards. Comments received in Phase 1, experience and data gained from temporary Federal mDL acceptance under a waiver, TSA testing of mDL acceptance at TSA airport security checkpoints, and publication of emerging standards, will inform the Phase 2 rulemaking. As one commenter 10 urged, DHS is taking “a slow and careful approach” to regulation in order to fully understand the implications of mDLs. 10 See comment from Electronic Privacy Information Center. This iterative rulemaking approach supports Executive Order (E.O.) 14058 of December 13, 2021 (Transforming Federal Customer Experience and Service Delivery to Rebuild Trust in Government), by using “technology to modernize Government and implement services that are simple to use, accessible, equitable, protective, transparent, and responsive for all people of the United States.” 11 As highlighted above and discussed in more detail below, allowing acceptance of mDLs issued by States that meet the waiver requirements would enable the public to more immediately realize potential benefits of mDLs, including greater convenience, security, and privacy. See Part II.C.4, below, for more discussion on these benefits. 11 Published at 86 FR 71357 (Dec. 16, 2021). II. Background A. REAL ID Act, Regulations, and Applicability to mDLs The REAL ID Act of 2005 sets minimum requirements for State-issued driver's licenses and identification cards accepted by Federal agencies for official purposes, including accessing Federal facilities, boarding federally regulated commercial aircraft, entering nuclear power plants, and any other purposes that the Secretary shall determine. 12 The Act defines “driver's licenses” and “identification cards” strictly as State-issued documents, 13 and the implementing regulations, 6 CFR part 37, further refine the definition of “identification card” as “a document made or issued by or under the authority of a State Department of Motor Vehicles or State office with equivalent function.” 14 Therefore, the REAL ID Act and regulations do not apply to identification cards that are not made or issued under a State authority, such as cards issued by a Federal agency or any commercial, educational, or non-profit entity. 12 The REAL ID Act of 2005—Division B of the FY05 Emergency Supplemental Appropriations Act, as amended, Public Law 109-13, 119 Stat. 302. 13 Id. at sec. 201. 14 6 CFR 37.3. On January 29, 2008, DHS published a final rule implementing the Act's requirements. 15 That rule included both a State compliance deadline 16 and a schedule describing when individuals must obtain a compliant driver's license or identification card intended for use for official purposes. 17 DHS refers to these two deadlines as “State-based” and “card-based” enforcement, respectively (or “full enforcement” collectively). For State-based enforcement, 6 CFR 37.65(a) prohibits Federal agencies from accepting cards issued by States and territories that are not compliant with the REAL ID standards. 18 DHS incrementally enforced the State-based deadline in phases, with the last phase beginning January 22, 2018. Since this date, many Federal agencies have accepted all valid driver's licenses and identification cards issued by REAL ID-compliant States or States with an extension or under compliance review from DHS. 15 Minimum Standards for Driver's Licenses and Identification Cards Acceptable by Federal Agencies for Official Purposes; Final Rule, 73 FR 5272 (Jan. 29, 2008); codified at 6 CFR part 37 (2008 final rule). DHS subsequently issued six other final rules and interim final rules amending the regulations, including changes to compliance deadlines and State extension submission dates. See 74 FR 49308 (Sep. 28, 2009), 74 FR 68477 (Dec. 28, 2009) (final rule, stay), 76 FR 12269 (Mar. 7, 2011), 79 FR 77836 (Dec. 29, 2014); 84 FR 55017 (Oct. 15, 2019); 86 FR 23237 (May 3, 2021). In addition to final rules, DHS also published two Information Collection Requests in the Federal Register in 2016 and 2022. See 81 FR 8736 (Feb. 22, 2016) and 87 FR 23878 (Apr. 21, 2022). 16 See 6 CFR 37.51(a). 17 See 6 CFR 37.5(b). 18 See 6 CFR 37.65(a). Card-based enforcement begins on May 7, 2025. 19 On this date, Federal agencies will be prohibited from accepting for official purposes a State- or territory-issued driver's license or identification card for official purposes unless the card is compliant with the REAL ID Act and regulations. 20 19 See 6 CFR 37.5(b). 20 See id. On December 21, 2020, Congress passed the REAL ID Modernization Act 21 to amend the REAL ID Act to reflect new technologies that did not exist when the law was enacted more than 15 years ago. Among other updates, 22 the REAL ID Modernization Act clarified that mDLs are subject to REAL ID requirements by amending the definitions of “driver's license” and “identification card” to specifically include mDLs that have been issued in accordance with regulations prescribed by the Secretary. 23 The REAL ID regulations therefore must be updated to distinguish which existing requirements in 6 CFR 37 apply to mDLs versus physical cards, and to include additional requirements to ensure that mDLs meet equivalent levels of security currently imposed on REAL ID-compliant physical cards and are otherwise secure. An mDL cannot be REAL ID-compliant until TSA establishes REAL ID requirements in regulations and States issue mDLs compliant with those requirements. As a result of this requirement, mDLs must also be REAL ID-compliant to be accepted when card-based enforcement begins on May 7, 2025. 21 REAL ID Modernization Act, Title X of Division U of the Consolidated Appropriations Act, 2021, Public Law 116-260, 134 Stat. 2304. 22 TSA is conducting a separate rulemaking to implement other sections of the REAL ID Modernization Act. 23 Sec. 1001 of the REAL ID Modernization Act, Title X of Division U of the Consolidated Appropriations Act, 2021, Public Law 116-260, 134 Stat. 2304. B. Request for Information In April 2021, DHS issued an RFI announcing DHS's intent to commence future rulemaking to set the minimum technical requirements and security standards for mDLs to enable Federal agencies to accept mDLs for official purposes. The RFI requested comments and information to inform DHS's rulemaking. 24 In June 2021, DHS held a public meeting to provide an additional forum for comment. 25 In response to comments at the public meeting concerning the importance of public access to an industry-developed standard referenced in the RFI, DHS subsequently published a notification in the Federal Register to facilitate access to the standard. 26 DHS also conducted extensive outreach and engagement with affected stakeholders, including States, industry, and individuals. DHS also conducted a roundtable discussion on privacy considerations with non-profit organizations representing varied interests. 24 86 FR 20320 (April 19, 2021). 25 86 FR 31987 (June 16, 2021). 26 86 FR 51625 (Sept. 16, 2021). The RFI requested comments on 13 specific topics, including: potential security risks arising from mDL usage and mitigating solutions, potential privacy concerns or benefits associated with mDL transactions, the maturity of certain industry standards and the appropriateness of DHS's adoption of them, costs to individuals to obtain mDLs, and various technical topics associated with mDL issuance and communications. In response, DHS received about 60 comments. Please see Part IV, below, for a detailed discussion of the comments received, which are also referenced throughout this preamble. C. mDL Overview 1. mDLs Generally Driven by increasing public demand for more convenient, secure, and privacy-enhancing forms of identification, many States have invested significantly and rapidly in recent years to develop mDL technology. An mDL is generally recognized as the digital representation of an individual's identity information contained on a State-issued physical driver's license or identification card. 27 An mDL may be stored on a diverse range of portable or mobile electronic devices, such as smartphones, smartwatches, and storage devices containing memory. Like a physical card, mDL data originates from identity information about an individual that is maintained in the database of a State driver's licensing agency. 27 A technical description of mDLs as envisioned by the American Association of Motor Vehicle Administrators may be found at https://www.aamva.org/Mobile-Drivers-License/. Unlike physical driver's licenses that are read and verified visually through human inspection of physical security features, an mDL is read and verified electronically using a device known simply as a “reader” (discussed in Part II.C.2., below). Physical cards employ physical security features to deter fraud and tampering, such as “easily identifiable visual or tactile [security] features” on the surface of a card. 28 An mDL, in contrast, combats fraud through the use of digital security features that are not recognizable through human inspection. For example, mDLs usually rely on digital security through use of asymmetric cryptography/public key infrastructure (PKI). As discussed in the RFI, 29 Asymmetric cryptography generates a pair of encryption “keys” to encrypt and decrypt protected data. One key, a “public key,” is distributed publicly, while the other key, a “private key,” is held by the State driver's licensing agency ( i.e., a Department of Motor Vehicles, or “DMV”). When a DMV issues an mDL to an individual (see Fig. 1, below, communication no. 1), the DMV uses its private key to digitally “sign” the mDL data. A Federal agency validates the integrity of the mDL data by obtaining the DMV's public key to verify the digital signature (see Fig. 1: mDL Secure Communications). Private keys and digital signatures are elements of data encryption that protect against unauthorized access, tampering, and fraud. 28 6 CFR 37.15(c) and 37.17(h). 29 See 86 FR 20320, 20324 (April 19, 2021). Generally, mDL-based identity verification under REAL ID would involve a triad of secure communications between a State driver's licensing agency, an mDL holder, and a Federal agency. Specifically, and as shown in Fig. 1, below, the following three communications would occur: (1) Issuance and Updates: the DMV would issue or “provision” an mDL onto a mobile device of the person requesting the mDL (who then becomes the mDL holder), (2) Data Transfer: the mDL holder would authorize release of relevant data from the device to a Federal agency, which would use a reader to retrieve data, and (3) Validation: the Federal agency would use a reader, to confirm that the data originated from the issuing DMV and is unchanged, by verifying the DMV's public key. Although not depicted in Fig. 1, the Federal agency would also validate (via human inspection or facial matching software) that the mDL belongs to the individual presenting it by comparing the individual's live appearance to the photo retrieved by the reader. Standardized communication interfaces are necessary to enable Federal agencies to exchange information with all 56 U.S. States and territories that issue mDLs. EP30AU23.005 2. mDL Readers Any Federal agency that chooses to accept mDLs for REAL ID official purposes would need to procure and use readers to validate an mDL holder's identity data from their mobile device and establish trust that the mDL is secure by using private-public key data encryption. Non-Federal agencies, such as State agencies, businesses, and other entities who choose to accept mDLs for uses beyond the scope of REAL ID are not governed by the REAL ID Act or regulations and therefore would make their own independent decisions concerning reading mDLs and reader procurement. 30 The reader would confirm that the mDL holder's identity data is valid by performing the following steps: establishing a secure digital connection with an mDL holder's mobile device, receiving the required mDL information for identity verification, verifying its authenticity and integrity by validating the driver's licensing agency's digital signature of the mDL data, and confirming that the mobile device possesses the unique device key corresponding to the mDL at the time of issuance. 30 Non-Federal agencies and other entities who choose to accept mDLs for uses beyond the scope of REAL ID should also recognize the need for a reader to ensure the validity of the mDL. Any verifying entity can validate in the same manner as a Federal agency if they implement the standardized communication interface requirements specified in this proposed rule, which would require investment to develop the necessary IT infrastructure and related proceses. An mDL reader can take multiple forms, ranging from software to hardware. In its simplest form, an mDL reader can be an app installed on a smartphone or other mobile device. A reader could also be a dedicated device. This is expected to be a low-cost solution that could be added to existing smartphones carried by a verifying entity's employee. While reader development is ongoing in the industry, TSA understands that companies are already beginning to offer verification apps for free on their commercial app stores. As reader technology continues to evolve, there will likely be wide range of reader options with various capabilities and associated price points. 31 31 Readers for mDLs have specific requirements and at this time are not interchangeable with readers for other types of Federal cards, such as the Transportation Worker Identification Credential (TWIC). Although TSA is evaluating some mDLs at select airport security checkpoints (see Part II.E.), cost estimates for readers used in the evaluations are not available because those readers are non-commercially available prototypes designed specifically for integration into TSA-specific IT infrastructure that few, if any, other Federal agencies use. In addition, mDL readers are evolving and entities who accept mDLs would participate voluntarily. Accordingly, associated reader costs are not quantified at this time but TSA intends to gain a greater understanding of any costs to procure reader equipment as the technology continues to evolve. 3. State mDL Issuance As noted above, mDL-issuance is proliferating rapidly among States, with nearly half of all States piloting, issuing, or considering mDLs. As of the date of this NPRM, at least eight States (Arizona, Colorado, Delaware, Louisiana, Maryland, Mississippi, Oklahoma, and Utah) are issuing mDLs, and three States (Florida, Iowa, and Virginia) are currently piloting or have piloted mDLs. Additionally, at least 17 States (California, District of Columbia, Georgia, Hawaii, Illinois, Indiana, Kentucky, Michigan, Missouri, New Jersey, New York, North Dakota, Pennsylvania, Puerto Rico, Tennessee, Texas, and Wyoming) have indicated they are studying mDLs or considering enabling legislation. Based on its analysis of the current environment, TSA believes that States are issuing mDLs using widely varying technology solutions, resulting in a fragmented environment rather than a common standard for issuance and use. The various States issuing or piloting mDLs are believed to be using technology solutions provided by multiple vendors, and it is not clear whether such technological diversity provides the safeguards and interoperability necessary for Federal acceptance. For example, in September 2021 and March 2022, Apple announced 32 that it was working with 13 States (Arizona, Colorado, Connecticut, Georgia, Hawaii, Iowa, Kentucky, Maryland, Mississippi, Ohio, Oklahoma, Puerto Rico, and Utah) to enable their mDLs to be provisioned into Apple's Wallet app. Google and GET Group North America have made similar announcements. 33 States choosing a variety of technology solutions, which could result in non-standard, non-compatible technologies, which raises additional questions concerning the Federal government's ability to accept the mDLs for Federal purposes. 32 https://www.apple.com/newsroom/2021/09/apple-announces-first-states-to-adopt-drivers-licenses-and-state-ids-in-wallet/; https://www.apple.com/newsroom/2022/03/apple-launches-the-first-drivers-license-and-state-id-in-wallet-with-arizona/. 33 https://support.google.com/wallet/answer/12436402?hl=en; https://getgroupna.com/get-mobile-id-is-now-accepted-at-tsa-precheck/. Although detailed mDL adoption statistics are unavailable, anecdotal information and fragmented reporting indicates that mDLs are rapidly gaining public acceptance. For example, Louisiana has recently reported that over one million residents (representing more than 20% of its population) have installed Louisiana's mDL app on their mobile devices. 4. Potential Benefits of mDLs An mDL has potential benefits for all stakeholders. For Federal agencies that require REAL ID-compliant IDs for official purposes, mDLs may provide efficiency and security enhancements. Compared to physical cards, which rely on manual inspection of physical security features on the surface of a card designed to deter tampering and fraud, mDLs rely on digital security features that are immune to many vulnerabilities of physical security features. For individuals, some commenters noted that mDLs may provide a more secure, convenient, privacy-enhancing, and “touchless” method of identity verification compared to physical IDs. 34 Among other privacy-enhancing features, the holder of an mDL could control what data fields are released. For example, if an mDL is used for identity purposes with a Federal agency, the holder could restrict the agency to receiving only the data necessary and required by the agency to verify the individual's identity. Potential hygiene benefits also derive from the contact-free method of ID verification enabled by mDLs. An mDL holder may transmit data to a verifying Federal agency's mDL reader by hovering their mDL above the reader, potentially eliminating any physical contact with the individual's mobile device thereby reducing germ transmission. 34 See, e.g., comments submitted by: Applied Recognition, Bredemarket, Hiday, Mothershed, Muller, State of Connecticut, DHS of Motor Vehicles, Secure Technology Alliance, U.S. Travel Association. D. Current and Emerging Industry Standards and Government Guidelines for mDLs The nascence of mDLs and absence of standardized mDL-specific requirements provide an opportunity for industry and government to develop standards and guidelines to close this void. TSA is aware of multiple such documents, both published and under development, from both Federal and non-government sources. This section discusses standards and guidelines that form the basis of many of the requirements proposed in this rulemaking, as well as additional documents that may inform the upcoming Phase 2 rulemaking. As discussed in Part III.B.8, below, this rulemaking proposes to amend § 37.4 by incorporating by reference into part 37 nineteen standards and guidelines. All proposed incorporation by reference material is available for inspection at DHS Headquarters in Washington DC, please email requesttoreviewstandards@hq.dhs.gov. The material may also be obtained from its publisher, as discussed below. 1. American Association of Motor Vehicle Administrators In September 2022, the American Association of Motor Vehicle Administrators published mDL Implementation Guidelines (AAMVA Guidelines). Mobile Driver's License (mDL) Implementation Guidelines Version 1.2 (Jan. 2023), American Association of Motor Vehicle Administrators, 4401 Wilson Boulevard, Suite 700, Arlington, VA 22203, available at https://aamva.org/getmedia/b801da7b-5584-466c-8aeb-f230cef6dda5/mDL-Implementation-Guidelines-Version-1-2_final.pdf. The Guidelines are available to the public for free at the link provided above. The AAMVA Guidelines adapt industry standard ISO/IEC 18013-5:2021 (discussed in Part II.D.4., below), for State driver's licensing agencies through the addition of more stringent and more specific recommendations, as the ISO/IEC standard has been developed for international purposes and may not meet all purposes and needs of States and the Federal Government. For example, Part 3.2 of the AAMVA Guidelines modify and expand the data elements specified in ISO/IEC 18013-5:2021, in order to enable the mDL to indicate the REAL ID compliance status of the companion physical card, as well as to ensure interoperability necessary for Federal acceptance. AAMVA has added data fields for DHS Compliance and DHS Temporary Lawful Status. These additional fields provide the digital analog to the requirements for data fields for physical cards defined in 6 CFR 37.17(n) 35 and 37.21(e) 36 respectively. As discussed generally in Part III.B, below, § 37.10(a)(1) and (4) of this proposed rule would require a State to explain, as part of its application for a waiver, how the State issues mDLs that are compliant with specified requirements of the AAMVA Guidelines. 35 Section 37.17(n) provides, “The card shall bear a DHS-approved security marking on each driver's license or identification card that is issued reflecting the card's level of compliance as set forth in § 37.51 of this Rule.” 36 Section 37.21(e) provides, “Temporary or limited-term driver's licenses and identification cards must clearly indicate on the face of the license and in the machine readable zone that the license or card is a temporary or limited-term driver's license or identification card.” 2. Certification Authority Browser Forum The Certification Authority Browser Forum (CA/Browser Forum) is an organization of vendors of hardware and software used in the production and use of publicly trusted certificates. These certificates are used by forum members, non-member vendors, and governments to establish the security and trust mechanisms for public key infrastructure-enabled systems. The CA/Browser Forum has published two sets of requirements applicable for any implementers of PKI, including States that are seeking to deploy Certificate Systems that must be publicly trusted and used by third parties: • Baseline Requirements for the Issuance and Management of Publicly‐Trusted Certificates v. 1.8.6 (December 14, 2022), available at https://cabforum.org/wp-content/uploads/CA-Browser-Forum-BR-1.8.6.pdf, and • Network and Certificate System Security Requirements v. 1.7 (April 5, 2021), available at https://cabforum.org/wp-content/uploads/CA-Browser-Forum-Network-Security-Guidelines-v1.7.pdf. CA/Browser Forum, 815 Eddy St, San Francisco, CA 94109, (415) 436-9333. These documents are available to the public for free at the links provided above. To issue mDLs that can be trusted by Federal agencies, each issuing State must establish a certificate system, including a root certification authority that is under control of the issuing State. TSA believes the CA/Browser Forum requirements for publicly trusted certificates have been proven to be an effective model for securing online transactions. As discussed generally in Part III.B.4, below, appendix A to subpart A of the part, sections 1, 2, and 4-8, require compliance with specified requirements of the CA/Browser Forum Baseline Requirements and/or Network and Certificate System Requirements. Section 37.4 of this proposed rule would IBR these CA/Browser Forum references. 3. Cybersecurity Guidelines DHS and the Cybersecurity and Infrastructure Security Agency (CISA) have published two guidelines which are relevant to the operations of States' mDL issuance systems: • National Cyber Incident Response Plan (Dec. 2016), available at https://www.cisa.gov/uscert/sites/default/files/ncirp/National_Cyber_Incident_Response_Plan.pdf, and • CISA Cybersecurity Incident & Vulnerability Response Playbooks (Nov. 2021), available at https://www.cisa.gov/sites/default/files/publications/Federal_Government_Cybersecurity_Incident_and_Vulnerability_Response_Playbooks_508C.pdf. Cybersecurity and Infrastructure Security Agency, Mail Stop 0380, 245 Murray Lane, Washington, DC 20528-0380, (888) 282-0870. These guidelines, available for free at the links provided above, provide details on best practices for management of systems during a cybersecurity incident, providing recommendations on incident and vulnerability response. Management of cybersecurity incidents and vulnerabilities are critical to maintenance of a State's mDL issuance information technology (IT) infrastructure. As discussed generally in Part III.B.4, below, appendix A to subpart A of the part, section 8, requires compliance with specified requirements of the DHS National Cyber Incident Response Plan and the CISA Cybersecurity Incident & Vulnerability Response Playbooks. Section 37.4 of this proposed rule would IBR these DHS and CISA standards. 4. ISO/IEC Standards and Technical Specifications Two international standards-setting organizations, the International Organization for Standardization (ISO) and the International Electrotechnical Commission (IEC), 37 are jointly drafting two series of multi-part International Standards and Technical Specifications. 38 Series ISO/IEC 18013, Personal identification—ISO-compliant driving licence Parts 5-7, are specific to mDLs, and series ISO/IEC 23220 Cards and security devices for personal identification—Building blocks for identity management via mobile devices, Parts 1-6, concern digital identity (of which mDLs are a subset). DHS TSA has participated in the development of both Series as a non-voting member of the United States national body member of the Joint Technical Committee. 39 Together, both Series would establish standardized interfaces that would enable the mDL communications triad (see Part II.C.1., above) as follows: (1) State driver's licensing agency and the mDL holder (Series 23220), (2) mDL Holder and a verifying entity (Series 18013), and (3) verifying entity and State licensing agency (Series 18013). 37 ISO is an independent, non-governmental international organization with a membership of 164 national standards bodies. ISO creates documents that provide requirements, specifications, guidelines or characteristics that can be used consistently to ensure that materials, products, processes and services are fit for their purpose. The IEC publishes consensus-based international standards and manages conformity assessment systems for electric and electronic products, systems and services, collectively known as “electrotechnology.” ISO and IEC standards are voluntary and do not include contractual, legal or statutory obligations. ISO and IEC standards contain both mandatory requirements and optional recommendations, and those who choose to implement the standards must adopt the mandatory requirements. 38 ISO defines an International Standard as “provid[ing] rules, guidelines or characteristics for activities or for their results, aimed at achieving the optimum degree of order in a given context. It can take many forms. Apart from product standards, other examples include: test methods, codes of practice, guideline standards and management systems standards.” www.iso.org/deliverables-all.html. In contrast, ISO defines a “Technical Specification” as “address[ing] work still under technical development, or where it is believed that there will be a future, but not immediate, possibility of agreement on an International Standard. A Technical Specification is published for immediate use, but it also provides a means to obtain feedback. The aim is that it will eventually be transformed and republished as an International Standard.” www.iso.org/deliverables-all.html. 39 A member of the TSA serves as DHS's representative to the Working Group. In September 2021, ISO and IEC published international standard ISO/IEC 18013, Part 5, entitled, “Personal identification—ISO-compliant driving licence.” ISO/IEC 18013-5:2021, Personal identification—ISO-compliant driving licence—Part 5: Mobile driving licence (mDL) application (Sept. 2021), International Organization for Standardization, Chemin de Blandonnet 8, CP 401, 1214 Vernier, Geneva, Switzerland, +41 22 749 01 11, www.iso.org/contact-iso.html. 40 Section 37.4 of this rulemaking proposes to IBR this standard, which is available from DHS as discussed above. In addition, the American National Standards Institute (ANSI), a private organization not affiliated with DHS, will provide public access 41 to ISO/IEC 18013-5:2021 until October 16, 2023. Standard ISO/IEC 18013-5:2021 standardizes the interface between an mDL and an entity seeking to read an individual's mDL for identify verification purposes, and sets full operational and communication requirements for both mDLs and mDL readers. This standard applies to “attended” mode verification, in which both the mDL holder and an officer or agent of a verifying entity are physically present together during the time of identity verification. 42 DHS received numerous comments in response to the RFI concerning the appropriateness of this standard as a starting point for future regulatory requirements. 43 Many comments received in response to the RFI noted that standard ISO/IEC 18013-5:2021, which published in Sept. 2021, provides a sufficient baseline for secure Federal acceptance. 44 After carefully considering all comments received, TSA believes ISO/IEC 18013-5:2021 is critical to enabling the interoperability, security, and privacy necessary for wide acceptance of mDLs by Federal agencies for official purposes. As discussed in Part III.B, below, this NPRM proposes to IBR this standard into part 37. Specifically, § 37.8 of the proposed rule would require Federal agencies to validate an mDL as required by standard ISO/IEC 18013-5:2021, and § 37.10(a)(4) would require a State to explain, as part of its application for a waiver, how the State issues mDLs that are interoperable with this standard to provide the security necessary for Federal acceptance. 40 Forthcoming Part 6 of Series ISO/IEC 18013, “mDL test methods,” is a technical specification that will enable testing of mDLs and readers to certify conformance with ISO/IEC 18013-5:2021. TSA anticipates a draft of this standard may be completed by the end of 2023, and the final document may publish at the end of 2024. 41 ANSI advises interested persons to visit the following website to obtain access: https://www.surveymonkey.com/r/DQVJYMK. This link will direct interested persons to a nongovernment website that is not within the Federal government's control and may not follow the same privacy, security, or accessibility policies as Federal government websites. ANSI requires individuals to complete an online license agreement form, which will ask for name, professional affiliation, and email address, before it grants access to any standards. ANSI will provide access on a view-only basis, meaning copies of the document cannot be downloaded or modified. Individuals who access non-governmental sites to view available standards are subject to the policies of the owner of the website. For access to non-final draft standards, please contact ISO/IEC using the information provided earlier. 42 Part 7 of Series ISO/IEC 18013, entitled “mDL add-on function,” is an upcoming technical specification that will standardize interfaces for “unattended” mode verification, in which the mDL holder and officer/agent of the verifying agency are not physically present together, and the identity verification is conducted remotely. Unattended identity verification is not currently considered a REAL ID use case. 43 See, e.g., comments submitted by: American Association of Motor Vehicle Administrators; American Civil Liberties Union, Electronic Frontier Foundation, and Electronic Privacy Information Center; Apple; Association for Convenience & Fuel Retailing; CBN Secure Technologies; FaceTec; Florida DHS of Highway Safety and Motor Vehicles; IDEMIA; Maryland DHS of Transportation, Motor Vehicle Administration; National Immigration Law Center and Undersigned Organizations; Secure Technology Alliance; State of Connecticut, DHS of Motor Vehicles; Underwriters Laboratories; Verifiable Credentials Policy Committee, Blockchain Advocacy Coalition. All comments are available at https://www.regulations.gov/docket/DHS-2020-0028. 44 See comments submitted by American Association of Motor Vehicle Administrators; Florida DHS of Highway Safety and Motor Vehicles; Maryland DHS of Transportation, Motor Vehicle Administration; State of Connecticut, DHS of Motor Vehicles. The ISO/IEC 23220 Series of Technical Specifications, “Cards and security devices for personal identification—Building blocks for identity management via mobile devices,” cover international digital IDs broadly and are applicable to mDLs. ISO/IEC 23220: Cards and security devices for personal identification—Building blocks for identity management via mobile devices, International Organization for Standardization, Chemin de Blandonnet 8, CP 401, 1214 Vernier, Geneva, Switzerland, +41 22 749 01 11, www.iso.org/contact-iso.html. This Series consists of six Parts, with Parts 3, 5, and 6 being relevant to mDLs and the forthcoming Phase 2 rulemaking. More specifically, Series 23220 would establish the following critical requirements for “provisioning” 45 an mDL, which refers to the various steps required for a State driver's licensing agency to securely place an mDL onto a mobile device: 45 The initial step of provisioning requires proving that an mDL applicant owns the mobile device onto which the mDL will be stored. Next, a trusted connection would be established between the licensing agency and the target device. Finally, the licensing agency would use this connection to securely transmit and update mDL data on the device. • Part 3, “Protocols and services for installation and issuing phase,” covers data function calls and formatting that States will use to communicate ( e.g., provision, refresh, revoke) with a mobile device. • Part 5, “Trust models and confidence level assessment,” covers trust framework and provisioning, including confidence levels, identity proofing, binding, identity resolution, evidence validation, evidence verification, and holder authentication. • Part 6, “Mechanism for use of certification on trustworthiness of secure area,” primarily covers device security requirements and trust of the secure areas in mobile devices. TSA anticipates that Series ISO/IEC 23220 will define critical requirements for the interface between a State driver's licensing agency and mobile device. However, none of Parts 3, 5, and 6 of Series 23220 have published. TSA understands that drafts of Parts 3 and 5 may publish in late 2023, and final publication is possible by the end of 2024; publication dates for Part 6 are unknown, but a draft is anticipated in 2024. DHS received many comments in response to the RFI cautioning, however, that standard ISO/IEC 23220, Parts 3, 5, and 6, are not sufficiently mature to inform regulatory requirements. 46 Given the evolving stage of Series ISO/IEC 23220 and comments to the RFI, TSA believes it is premature to rely on this Series to inform this proposed rulemaking and thus is not proposing to IBR them in this NPRM. TSA may consider adopting requirements of pertinent Parts of this standard in the upcoming Phase 2 rulemaking, pending review of the final published documents. 46 See comments submitted by American Civil Liberties Union, Electronic Frontier Foundation, and Electronic Privacy Information Center; IDEMIA; Maryland DHS of Transportation, Motor Vehicle Administration; Underwriters Laboratories. 5. National Institute for Standards and Technology i. Digital Identity Guidelines The National Institute for Standards and Technology (NIST) has published Digital Identity Guidelines, NIST SP 800-63-3, that cover technical requirements for Federal agencies implementing digital identity. NIST Special Publication 800-63-3, Digital Identity Guidelines (June 2017), National Institute of Standards and Technology, U.S. Department of Commerce, 100 Bureau Drive, Gaithersburg, MD 20899, available at https://nvlpubs.nist.gov/nistpubs/SpecialPublications/NIST.SP.800-63-3.pdf. The Digital Identity Guidelines, available for free at the link provided above, define technical requirements in each of the areas of identity proofing, registration, user authentication, and related issues. Because TSA is not aware of a common industry standard for mDL provisioning that is appropriate for official REAL ID purposes today, TSA views the current NIST Digital Guidelines as critical to informing waiver application requirements for States regarding provisioning (discussed in detail in Part III.B.4., below). As discussed generally in Part III.B.4, below, under proposed rule text § 37.10(a)(2), which requires compliance with appendix A to subpart A of the part, a State must explain, as part of its application for a waiver, how the State issues mDLs that are compliant with NIST SP 800-63-3 to provide the security for mDL IT infrastructure necessary for Federal acceptance. Section 37.4 of this proposed rule would IBR NIST SP 800-63-3. NIST has also published Digital Identity Guidelines Authentication and Lifecycle Management, NIST SP 800-63B, as a part of NIST SP 800-63-3. NIST Special Publication 800-63B, Digital Identity Guidelines: Authentication and Lifecycle Management (June 2017), National Institute of Standards and Technology, U.S. Department of Commerce, 100 Bureau Drive, Gaithersburg, MD 20899, available at https://nvlpubs.nist.gov/nistpubs/specialpublications/nist.sp.800-63b.pdf. This document provides technical requirements for Federal agencies implementing digital identity services. The standard focuses on the authentication of subjects interacting with government systems over open networks, establishing that a given claimant is a subscriber who has been previously authenticated and establishes three authenticator assurance levels. As discussed generally in Part III.B.4, below, proposed rule text § 37.10(a)(2) requires compliance with appendix A to subpart A of the part, which would require a State to explain, as part of its application for a waiver, how the State manages its mDL issuance infrastructure using authenticators at assurance levels provided in NIST SP 800-63B. Section 37.4 of this proposed rule would incorporate by reference NIST SP 800-63B. NIST is developing a revision to the Digital Identity Guidelines, SP 800-63-4, which is expected to impact key issues related to mDL processes. This publication and its companion volumes NIST SP 800-63A Rev. 4, SP 800-63B Rev. 4, and SP 800-63C Rev. 4, provide technical guidelines for the implementation of digital identity services. Initial public drafts of this suite published in December 2022, and final drafts may publish in early 2024. The full suite of draft NIST Digital Identity Guidelines, NIST SP 800-63-4, are available for free as follows: • NIST SP 800-63-4, Digital Identity Guidelines, Initial Public Draft (December 2022), available at https://nvlpubs.nist.gov/nistpubs/SpecialPublications/NIST.SP.800-63-4.ipd.pdf. • NIST SP 800-63A Rev. 4 Digital Identity Guidelines: Enrollment and Identity Proofing, Initial Public Draft (December 2022), available at https://nvlpubs.nist.gov/nistpubs/SpecialPublications/NIST.SP.800-63A-4.ipd.pdf; • NIST SP 800-63B Rev. 4 Digital Identity Guidelines: Authentication and Lifecycle Management, Initial Public Draft (December 2022), available at https://nvlpubs.nist.gov/nistpubs/SpecialPublications/NIST.SP.800-63B-4.ipd.pdf; • NIST SP 800-63C Rev. 4 Digital Identity Guidelines: Federation and Assertions, Initial Public Draft (December 2022), available at https://nvlpubs.nist.gov/nistpubs/SpecialPublications/NIST.SP.800-63C-4.ipd.pdf. National Institute of Standards and Technology, U.S. Department of Commerce, 100 Bureau Drive, Gaithersburg, MD 20899. The final versions of these publications may be candidates for incorporation by reference (pending review of the final published documents) in the forthcoming Phase 2 rulemaking. ii. Federal Information Processing Standards NIST also maintains the Federal Information Processing Standards (FIPS) which relate to the specific protocols and algorithms necessary to securely process data. This suite of standards includes: • NIST FIPS PUB 140-3, Security Requirements for Cryptographic Modules (March 22, 2019), available at https://nvlpubs.nist.gov/nistpubs/FIPS/NIST.FIPS.140-3.pdf, • NIST FIPS PUB 180-4, Secure Hash Standard (SHS) (August 4, 2015), available at https://nvlpubs.nist.gov/nistpubs/FIPS/NIST.FIPS.180-4.pdf, • NIST FIPS PUB 186-5, Digital Signature Standard (DSS) (February 3, 2023), available at https://nvlpubs.nist.gov/nistpubs/FIPS/NIST.FIPS.186-5.pdf, • NIST FIPS PUB 197, Advanced Encryption Standard (AES) (November 26, 2001) available at https://nvlpubs.nist.gov/nistpubs/FIPS/NIST.FIPS.197.pdf, • NIST FIPS PUB 198-1, The Keyed-Hash Message Authentication Code (HMAC) (July 16, 2008) available at https://nvlpubs.nist.gov/nistpubs/FIPS/NIST.FIPS.198-1.pdf, and • NIST FIPS PUB 202, SHA-3 Standard: Permutation-Based Hash and Extendable-Output Functions (August 4, 2015) available at https://nvlpubs.nist.gov/nistpubs/FIPS/NIST.FIPS.202.pdf. National Institute of Standards and Technology, U.S. Department of Commerce, 100 Bureau Drive, Gaithersburg, MD 20899. This suite of FIPS standards, available for free at the links provided above, are critical to the transactions required for mDLs, and any Federal systems which interact with or are used to verify a mDL for REAL ID official purposes will be required to use the algorithms and protocols defined. As discussed generally in Part III.B, below, § 37.10(a)(4) requires compliance with specified requirements of NIST FIPS PUB 180-4, 186-5, 197, 198-1, and 202, and appendix A to subpart A of the part, section 5, requires compliance with FIPS PUB 140-3. Section 37.4 of this proposed rule would incorporate by reference the suite of FIPS standards discussed above. iii. Security and Privacy Controls for Information Systems and Organizations; Key Management NIST has published several guidelines to protect the security and privacy of information systems: • NIST SP 800-53 Rev. 5, Security and Privacy Controls for Information Systems and Organizations (September 2020), available at https://nvlpubs.nist.gov/nistpubs/SpecialPublications/NIST.SP.800-53r5.pdf. • NIST SP 800-57 Part 1, Rev. 5, Recommendation for Key Management: Part 1—General (May 2020), available at https://nvlpubs.nist.gov/nistpubs/SpecialPublications/NIST.SP.800-57pt1r5.pdf. • NIST SP 800-57 Part 2, Rev. 1, Recommendation for Key Management: Part 2—Best Practices for Key Management Organizations (May 2019), available at https://nvlpubs.nist.gov/nistpubs/SpecialPublications/NIST.SP.800-57pt2r1.pdf. • NIST SP 800-57 Part 3, Rev. 1, Recommendation for Key Management, Part 3: Application-Specific Key Management Guidance (January 2015) available at https://nvlpubs.nist.gov/nistpubs/SpecialPublications/NIST.SP.800-57Pt3r1.pdf. National Institute of Standards and Technology, U.S. Department of Commerce, 100 Bureau Drive, Gaithersburg, MD 20899. All of these documents are available for free at the links provided above. Collectively, NIST SP 800-53 Rev. 5 and NIST SP 800-57 provide relevant controls for States regarding mDL security and privacy covering a broad range of topics related to the administration of a certificate system including: access management; certificate life-cycle policies; operational controls for facilities and personnel; technical security controls; and vulnerability management such as threat detection, incident response, and recovery planning. Due to the sensitive nature of State Certificate System processes and the potential for significant harms to security if confidentiality, integrity, or availability of the certificate systems is compromised, the minimum risk controls specified in appendix A to subpart A of the part require compliance with the NIST SP 800-53 Rev. 5 “high baseline” as set forth in that document, as well as compliance with the specific risk controls described in the appendix. In addition, and as discussed generally in Part III.B, below: appendix A to subpart A of the part, secs. 1-8, require compliance with NIST SP 800-53 Rev. 5; secs. 1 and 5 require compliance with NIST SP 800-57 Part 1, Rev. 5; sec. 1 requires compliance with NIST SP 800-57 Part 2 Rev. 1; and sec. 1 requires compliance with NIST SP 800-57 Part 3, Rev. 1. Section 37.4 of this proposed rule would incorporate by reference NIST SP 800-53 Rev. 5 and the full suite of NIST SP 800-57 references discussed above. iv. Cybersecurity Framework NIST has published the Framework for Improving Critical Infrastructure Cybersecurity v. 1.1 (April 16, 2018), National Institute of Standards and Technology, U.S. Department of Commerce, 100 Bureau Drive, Gaithersburg, MD 20899, available at https://nvlpubs.nist.gov/nistpubs/CSWP/NIST.CSWP.04162018.pdf. This document, available for free at the link provided above, provides relevant information for cybersecurity for States issuing mDLs. As discussed generally in Part III.B., below, certain requirements from the NIST Cybersecurity Framework have been adopted in appendix A to subpart A of the part, secs. 1,2, 5-8. Section 37.4 of this proposed rule would incorporate by reference the NIST Cybersecurity Framework. 6. W3C Standards In its RFI, DHS specifically sought comments on industry standards that could inform future regulatory requirements. 47 DHS received multiple comments 48 concerning standards being developed by the World Wide Web Consortium (W3C), which is a standards-development organization that develops open standards for the World Wide Web. Similar to its involvement with ISO, DHS has participated in the development of these standards as a non-voting member in the W3C Credential Community Group. 47 86 FR 20320 at 20325-26. 48 See comments submitted by American Civil Liberties Union, Electronic Frontier Foundation, and Electronic Privacy Information Center; Association for Convenience & Fuel Retailing; CBN Secure Technologies; Indico.tech and Lorica Identity; Mastercard; Muller; OpenID Foundation; UL; Verifiable Credentials Policy Committee, Blockchain Advocacy Coalition. While TSA is not proposing to IBR these W3C standards in this NPRM, TSA understands that W3C is developing two standards concerning digital identification that, like the ISO/IEC Series of standards discussed above, may be relevant to the Phase 2 rulemaking. The W3C standards are “Verifiable Credentials Data Model v1.1” (VCDM v1.1) and “Decentralized Identifiers v1.0” (DID v1.0). Verifiable Credentials Data Model v1.1 (March 3, 2022), W3C/MIT, 105 Broadway, Room 7-134, Cambridge, MA 02142, available at www.w3.org/TR/vc-data-model/; Decentralized Identifiers (DIDs) v1.0 (July 19, 2022), W3C/MIT, 105 Broadway, Room 7-134, Cambridge, MA 02142, available at www.w3.org/TR/did-core/. These documents are available to the public for free at the links provided above. DHS has participated in the development of these standards as a non-voting member in the W3C Credential Community Group. In March 2022, the W3C published VCDM v1.1. A “Verifiable Credential” (VC) is a form of digital identification, developed under this standard, with features that enable a verifying entity to confirm its authenticity. 49 This standard defines elements of a data model that enables using a digital identity in online transactions. The standard appears to provide broad requirements that enable issuance of diverse types of secure digital identification using varying data fields ( e.g., name, date of birth), data types ( e.g., text, numeric values, length of data string), and methods of digital security. Although the standard sets forth specifications for the data model generally, TSA understands the standard does not provide specific requirements to implement security and privacy protections for the data model. Instead, references to these topics appear to be largely non-binding, informative guidance. For example, the standard requires that the VC contain at least one encryption mechanism to detect tampering (such as a digital signature), but does not set forth any specific mechanisms that are acceptable. 50 Similarly, although the standard encourages the use of mechanisms to enable a VC holder to selectively release only certain data to a verifying entity, it does not specify acceptable implementation mechanisms. 51 49 See VCDM sections 1 and 2. 50 See VCDM sections 4.7 and 8.1. 51 See VCDM sections 5.8 and 7.8. In July 2022, W3C published complementary standard DID v1.0, which specifies the essential requirements to enable the use of diverse types of digital identification in online transactions. A “DID,” is a unique identifier used in online transactions that, for example, enables VC holders to authenticate themselves. A DID can be used in a blockchain system. Like the VCDM standard, DHS understands that the DIDs standard includes non-binding guidance, but no prescriptive specifications, concerning security and privacy. In their current forms, TSA understands that the W3C VCDM standard and DID standard focus on the use of digital identification in unattended mode internet transactions, which is different from the attended, in-person REAL ID transactions contemplated for mDLs under this rulemaking. In addition, the current versions of the W3C standards do not set forth specific requirements concerning security and privacy or an mDL-specific data model, which may impede States from developing standardized, interoperable mDLs. Several commenters also expressed similar concerns. 52 TSA is not aware of any State pursuing an mDL with the VCDM model as the sole data model. However, TSA understands that W3C's work is ongoing, and future revisions may set forth security, privacy requirements, interoperability requirements, and a standardized data model needed for in-person REAL ID identity verification. In addition, given the breadth of the VCDM and DID, it may be possible in the future to develop a VCDM-based mDL that conforms to both W3C recommendations and the ISO/IEC standards simultaneously, providing full ecosystem interoperability. As stated above, TSA is not proposing to IBR these W3C Standards in this NPRM. 52 See comments submitted by Muller and UL. TSA understands that the standards and guidelines discussed above in this Part II.D. are the most comprehensive and relevant references governing mDLs today. TSA also acknowledges that many additional standards and guidelines are in development covering diverse types of digital identification that can be issued and verified by different entities, both government and commercial. These emerging documents are expected to concisely synthesize the large body of existing work from NIST and standards-development organizations, and will provide standardized mechanisms for mDLs. After carefully evaluating comments concerning emerging industry standards and closely observing ongoing development, TSA does not endorse any emerging standards at this time. TSA will continue to monitor development, and the future Phase 2 rulemaking may incorporate by reference pertinent parts of emerging standards (pending review of final published documents) that TSA believes are appropriate for Federal acceptance of mDLs for REAL ID official purposes. E. DHS and TSA Involvement in mDLs DHS and TSA have been actively participating in the mDL and digital identity space for many years to keep pace with industry developments. DHS has been participating in industry standards-development activities by serving as a non-voting member on working groups of the ISO/IEC and the W3C that are developing mDL/digital identity standards and technical specifications. Concurrently, DHS and TSA have been collaborating with industry to test the use of mDLs at various TSA security checkpoints. In 2022, TSA, under its collaboration with Apple (see Part II.C.3., above), launched a limited initiative that enables Arizona, Maryland, and Colorado residents to test the use of mDLs provisioned into the Apple Wallet app at select airport security checkpoints. 53 On May 18, 2023, TSA announced acceptance of Georgia mDLs provisioned into the Apple Wallet app at select airport security checkpoints. 54 Similarly, on March 1, 2023 and June 1, 2023, TSA announced acceptance of Utah-issued mDLs provisioned into the GET Mobile ID app, and Maryland-issued mDLs provisioned into the Google Wallet app, respectively, at select airports. 55 Utah utilizes a third-party mDL app produced by GET Group North America. DHS and TSA anticipate additional collaborations with other States and vendors in the future. These programs enable States, industry, and the Federal government to evaluate mDLs and ensure that they provide the security, privacy, and interoperability necessary for future, full-scale acceptance at Federal agencies for official purposes as defined in the REAL ID Act. 53 See TSA Biometrics Technology website, https://www.tsa.gov/biometrics-technology; Press Release, TSA, TSA enables Arizona residents to use mobile driver's license or state ID for verification at Phoenix Sky Harbor International Airport (Mar. 23, 2022), available at https://www.tsa.gov/news/press/releases/2022/03/23/tsa-enables-arizona-residents-use-mobile-drivers-license-or-state-id; Press Release, TSA, TSA enables Maryland residents to use mobile driver's license or state ID for verification at Baltimore/Washington International and Reagan National Airports (May 25, 2022), available at https://www.tsa.gov/news/press/releases/2022/05/25/tsa-enables-maryland-residents-use-mobile-drivers-license-or-state. 54 Press release, TSA, TSA enables Georgia residents to use mobile driver's license or state ID for verification at ATL (May 18, 2023), available at https://www.tsa.gov/news/press/releases/2023/05/18/tsa-enables-georgia-residents-use-mobile-drivers-license-or-state-id 55 Press Release, TSA, TSA using state-of-the art identity verification technology, accepting mobile driver licenses at SLC security checkpoint (Mar. 9, 2023), available at https://www.tsa.gov/news/press/releases/2023/03/09/tsa-using-state-art-identity-verification-technology-accepting; Press Release, TSA, TSA now accepts mobile IDs in Google Wallet on Android mobile devices, starting with the State of Maryland (June 1, 2023), available at https://www.tsa.gov/news/press/releases/2023/06/01/tsa-now-accepts-mobile-ids-google-wallet-android-mobile-devices. III. Summary of the Proposed Rule A. Overview In addition to revising definitions applicable to the REAL ID Act to incorporate mDLs, this rule proposes changes to 6 CFR part 37 that would enable TSA to grant a temporary waiver to States that TSA determines issue mDLs consistent with specified TSA requirements concerning security, privacy, and interoperability. This rule would enable Federal agencies, at their discretion, to accept for REAL ID official purposes, mDLs issued by a State that has been granted a waiver. The proposed rule would apply only to Federal agency acceptance of State-issued mDLs as defined in this proposed rule for REAL ID official purposes, but not other forms of digital identification, physical driver's licenses or physical identification cards, or non-REAL ID purposes. Any temporary waiver issued by TSA would be valid for a period of 3 years from the date of issuance. The waiver enabled by this rulemaking would be repealed when TSA publishes a Phase 2 rule that would set forth comprehensive requirements for mDLs. To obtain a waiver, a State would be required to submit an application, supporting data, and other documentation to establish that their mDLs meet TSA-specified criteria (discussed in Part III.B.4., below) concerning security, privacy, and interoperability. If the Secretary determines, upon evaluation of a State's application and supporting documents, that a State's mDL could be securely accepted under the terms of a waiver, the Secretary may issue such State a certificate of waiver. TSA intends to work with each State applying for a waiver on a case-by-case basis to ensure that its mDLs meet the minimum requirements necessary to obtain a waiver. This rulemaking would establish the full process for a State to apply for a waiver, including instructions for submitting the application and responding to subsequent communications from TSA as necessary, specific information and documents that a State must provide with its application, and requirements concerning timing, issuance of decisions, requests for reconsideration, and terms, conditions, and limitations related to waivers. To assist States that are considering applying for a waiver, TSA has developed guidelines, entitled, “Mobile Driver's License Waiver Application Guidance,” which provide non-binding recommendations of some ways that States can meet the application requirements set forth in this rulemaking. 56 56 The specific measures and practices discussed in the DHS Waiver Application Guidance are neither mandatory nor necessarily the “preferred solution” for complying with the requirements proposed in the rule. Rather, they are examples of measures and practices that a State issuer of mDLs may choose to consider as part of its overall strategy to issue mDLs. States have the ability to choose and implement other measures to meet these requirements based on factors appropriate to that State, so long as DHS determines that the measures implemented provide the levels of security and data integrity necessary for Federal acceptance of mDLs for official purposes as defined in the REAL ID Act and 6 CFR part 37. As provided in proposed § 37.10(c) of 6 CFR part 37, DHS may periodically update the Guidance as necessary to recommend mitigations of evolving threats to security, privacy, or data integrity. TSA cautions, however, that the waiver enabled by this rulemaking is not a commitment by Federal agencies to accept mDLs issued by a State to whom TSA has granted a waiver. Federal agencies exercise full discretion over their identity verification policies, which may be subject to change. A Federal agency that accepts mDLs may suddenly halt acceptance for reasons beyond the agency's control, such as suspension or termination of a waiver, technical issues with IT systems, or a loss of resources to support mDLs. In such instances, an mDL holder seeking to use an mDL for REAL ID official purposes (including boarding commercially regulated aircraft or access to Federal facilities) may be denied such uses. To avoid this issue, TSA strongly urges all mDL holders to carry their physical REAL ID cards in addition to their mDLs. This will ensure that mDL holders are not disenfranchised from REAL ID uses if a Federal agency does not accept mDLs. Indeed, TSA has long advised that passengers who choose to present mDLs in TSA checkpoint testing must continue to have their physical cards readily available in the event that a TSA officer requires such identification. 57 TSA also recommends to Federal agencies that they regularly inform the public, in a form and manner of their choosing, of their mDL acceptance policies. TSA urges the public to view mDLs not as a replacement of physical REAL ID cards, but as a complement to them. 57 See, e.g., https://www.tsa.gov/real-id (see FAQ for “Does TSA accept mobile driver's licenses?”). B. Specific Provisions 1. Definitions TSA proposes adding new definitions to subpart A, § 37.3. In particular, new definitions for “mobile driver's license” and “mobile identification card” are necessary because the current regulations predated the emergence of mDL technology and, therefore, does not define these terms. Additionally, the definitions reflect changes made by the REAL ID Modernization Act, which amended the definitions of “driver's license” and “identification card” to specifically include “mobile or digital driver's licenses” and “mobile or digital identification cards.” The proposed definitions in this rule would provide a more precise definition of “mobile driver's license” and “mobile identification card” by clarifying that those forms of identification require a mobile electronic device to store the identification information, as well as an electronic device to read that information. TSA also proposes adding a new definition of “mDL” that collectively refers to mobile versions of both State-issued driver's licenses and State-issued identification cards as defined in the REAL ID Act. TSA also proposes adding additional definitions to explain terms used in § 37.10(a) and appendix A to subpart A to the part. For example, the proposed rule would add new defintions for “digital certificates” and “certificate systems,” which are necessary elements of risk controls for the IT systems that States use to issue mDLs. In addition, the rulemaking proposes adding a definition for “certificate policy,” which forms the governance framework for the State's certificate systems. A State must develop, maintain, and execute a certificate policy to comply with the requirements set forth in appendix A to subpart A of the part. 2. TSA Issuance of Temporary Waiver From § 37.5(b) and State Eligibility Criteria TSA proposes adding to subpart A new § 37.7, entitled “Temporary waiver for mDLs; State eligibility,” to establish the availability of a temporary waiver for a State to exempt its mDLs from meeting the card-based compliance requirement of § 37.5(b). Section 37.7(a) authorizes TSA to issue a temporary certificate of waiver to States that submit an application for a waiver that demonstrates compliance with application criteria set forth in § 37.10(a) and (b). This waiver would only apply to mDLs, not physical cards, and would not waive the requirement in § 37.5(b) regarding State-based compliance or any other requirements in the regulations. Issuance of a certificate of waiver to a State would permit Federal agencies to continue accepting for official purposes mDLs issued by those States when REAL ID enforcement begins on May 7, 2025. The mere issuance of a waiver to a State, however, does not obligate any Federal agency to accept an mDL issued by such State; each Federal agency retains discretion to determine its own policies regarding identification, including whether to accept mDLs. To be eligible for consideration for a waiver, a State must meet the criteria set forth in proposed § 37.7(b). These criteria require that the issuing State: is in full compliance with REAL ID requirements; has submitted an application demonstrating that the State issues mDLs that provide security, privacy, and interoperability necessary for Federal acceptance; and issues mDLs only to individuals who have been issued a valid and unexpired REAL ID-compliant physical driver's license or identification card. TSA's determination of whether a State satisfies the eligibility criteria would be based on TSA's evaluation of the information provided by the State in its application (see Part III.B.4., below), as well as other information available to TSA. 3. Requirements for Federal Agencies That Accept mDLs TSA proposes adding to subpart A new § 37.8, entitled “Requirements for Federal agencies accepting mDLs issued by States with temporary waiver.” This section proposes that any Federal agency that elects to accept mDLs for REAL ID official purposes must meet three requirements in proposed new § 37.8. First, a Federal agency must confirm that the State holds a valid certificate of waiver. Agencies would make this confirmation by verifying that the State's name appears in a list of States to whom TSA has granted a waiver. TSA would publish this list on the REAL ID website at www.dhs.gov/real-id/mDL (as provided in § 37.9(b)(1)). Second, Federal agencies must use an mDL reader to retrieve mDL data from an individual's mobile device, and validate that the data is authentic and unchanged. To retrieve and validate mDL data, Federal agencies must follow the processes required by industry standard ISO/IEC 18013-5:2021. Finally, if a State discovers that acceptance of a State's mDL is likely to cause imminent or serious threats to the security, privacy, or data integrity, the State must notify TSA at www.dhs.gov/real-id/mDL within 72 hours of such discovery. Examples of such triggering events include cyber-attacks and other events that cause serious harm to a State's mDL issuance system. TSA would consider whether such information warrants suspension of that State's waiver under § 37.9(e)(4)(i)(B) (see discussion in Part III.B.6., below). If TSA elects not to issue a suspension, Federal agencies would continue to exercise their own discretion regarding continuing acceptance of mDLs. 4. Requirements for States Seeking to Apply for a Waiver TSA proposes adding to subpart A new § 37.9, which would set forth a process for a State to request a temporary certificate of waiver established in new § 37.7. As provided in § 37.9(a), a State seeking a waiver must file a complete application as set forth in § 37.10(a) and (b), following instructions that would be available at www.dhs.gov/real-id/mDL. Section 37.10(a) and (b) would set forth all information, documents, and data that a State must include in its application for a waiver. TSA is proposing that if TSA determines that the means that a State implements to comply with the requirements in § 37.10(a) and (b) provide the requisite levels of security, privacy, and data integrity for Federal acceptance of mDLs for official purposes, TSA would grant such State a waiver. TSA does not, however, propose prescribing specific means (other than the requirements specified in appendix A to subpart A of the part, which is discussed further in Part III.B.4.iv, below) that a State must implement. Instead, States would retain broad discretion to choose and implement measures to meet these requirements based on factors appropriate to that State. (i) Application Requirements As set forth in § 37.10(a)(1) through (4), a State would be required to establish in its application how it issues mDL under the specified criteria for security, privacy, and interoperability suitable for acceptance by Federal agencies, as follows: • Paragraph (a)(1) would set forth requirements for mDL provisioning. • Paragraph (a)(2) would specify requirements for managing State Certificate Systems, which are set forth in appendix A to subpart A of the part. • Paragraph (a)(3) would require a State to demonstrate how it protects personally identifiable information of individuals during the mDL provisioning process. • Paragraph (a)(4) would require a State to establish: how it issues mDLs that are interoperable with requirements set forth in standard ISO/IEC 18013-5:2021; that the State uses only those algorithms for encryption, 58 secure hash function, 59 and digital signatures that are specified in ISO/IEC 18013-5:2021, and in NIST FIPS PUB 180-4, 186-5, 197, 198-1, and 202; and how the State complies with the “AAMVA mDL data element set” as defined in the AAMVA mDL Guidelines v. 1.2, Section 3.2 (see Part II.D., above, for a detailed discussion of those references). 58 Encryption refers to the process of cryptographically transforming data into a form in a manner that conceals the data's original meaning to prevent it from being read. Decryption is the process of restoring encrypted data to its original state. [IETF RFC 4949, Internet Security Glossary, Version 2, August 2007] 59 A function that processes an input value creating a fixed-length output value using a method that is not reversible ( i.e., given the output value of a function it is computationally impractical to find the function's corresponding input value). (ii) Audit Requirements Section 37.10(b) would require a State to submit an audit report prepared by an independent auditor verifying the accuracy of the information provided by the State in response to § 37.10(a), as follows: • Paragraph (1) would set forth specific experience, qualifications, and accreditations that an auditor must meet. • Paragraph (2) would require a State to provide information demonstrating the absence of a potential conflict of interest of the auditing entity. (iii) Waiver Application Guidance As set forth in § 37.10(c), TSA proposes to publish “Mobile Driver's License Waiver Application Guidance,” in the Federal Register and on the REAL ID website at www.dhs.gov/real-id/mDL to assist States in completing their applications. The proposed guidance document is available for review at www.regulations.gov/docket/TSA-2023-0002. TSA is accepting comments on the guidance along with this proposed rule. This guidance would provide TSA's recommendations for some ways that States can meet the requirements in § 37.10(a)(1). The guidance would not establish legally enforceable requirements for a States applying for a waiver. Instead, the guidance would provide non-binding examples of measures and practices that a State may choose to consider as part of its overall strategy to issue mDLs. States continue to exercise discretion to select processes not included in the Guidance. Given the rapidly-evolving cyber threat landscape, however, TSA may periodically update its guidance to provide additional information regarding newly-published standards or other sources, or recommend mitigations of newly discovered risks to the mDL ecosystem. TSA would publish updated guidance in the Federal Register and on the REAL ID website at www.dhs.gov/real-id/mDL, and would provide a copy to all States that have applied for or been issued a certificate of waiver. Updates to guidance will not impact issued waivers or pending applications. (iv) Appendix A to Subpart A: Requirements for State mDL Issuance Systems Appendix A to subpart A of the part sets forth fundamental requirements to ensure the security and integrity of State mDL issuance processes. More specifically, these requirements concern the creation, issuance, use, revocation, and destruction of the State's certificate systems and cryptographic keys. The appendix consists of requirements in eight categories: (1) Certificate Authority Certificate Life Cycle Policy, (2) Certificate Authority Access Management, (3) Facility, Management, and Operational Controls, (4) Personnel Security Controls, (5) Technical Security Controls, (6) Threat Detection, (7) Logging, and (8) Incident Response and Recovery Plan. Adherence to these requirements ensures that States issue mDLs in a standardized manner with security and integrity to establish the trust necessary for Federal acceptance for official purposes. • Certificate Authority Certificate Life Cycle Policy requirements (appendix A, sec. 1) ensure that a State issuing an mDL creates and manages a formal process which follows standardized management and protections of digital certificates. These requirements must be implemented in full compliance with the references cited in the appendix: the CA Browser Forum Baseline Requirements for the Issuance and Management of Publicly-Trusted Certificates, CA Browser Forum Network and Certificate System Security Requirement, NIST Cybersecurity Framework, NIST SP 800-53 Rev. 5, NIST SP 800-57, and NIST SP 800-53B. • Certificate Authority Access Management requirements (appendix A, sec. 2) set forth policies and processes for States concerning, for example, restricting access to mDL issuance systems, policies for multi-factor authentication, defining the scope and role of personnel, and Certificate System architecture which separates and isolates Certificate System functions to defined security zones. These requirements must be implemented in full compliance with the references cited in the appendix: CA Browser Forum Network and Certificate System Security Requirements, NIST Cybersecurity Framework, NIST 800-53 Rev. 5, NIST SP 800-63-3, and NIST SP 800-63B. • Under the requirements concerning Facility, Management, and Operational Controls (appendix A, sec. 3), States must provide specified controls protecting facilities where Certificate Systems reside from unauthorized access, environmental damage, physical breaches, and risks from foreign ownership, control, or influence. These requirements must be implemented in full compliance with the references cited in the appendix: NIST SP 800-53 Rev. 5. • Personnel security controls (appendix A, sec. 4) require States to establish policies to control insider threat risks to Certificate Systems and facilities. Such policies must include establish screening criteria for personnel who access Certificate Systems, post-employment access termination, updates to personnel security policy, training, records retention schedules, among other policies. These requirements must be implemented in full compliance with the references cited in the appendix: NIST SP 800-53 Rev. 5 and CA Browser Forum Baseline Requirements for the Issuance and Management of Publicly-Trusted Certificates. • Technical security controls (appendix A, sec. 5) specify requirements to protect Certificate System networks. In addition, States are required to protect private cryptographic keys of Issuing Authority Root Certificates using hardware security modules of Level 3 or higher and Document Signer private cryptographic keys in hardware security modules of Level 2 and higher. Other controls are specified regarding Certificate System architecture and cryptographic key generation processes. These requirements must be implemented in full compliance with the references cited in the appendix: CA Browser Forum Network and Certificate System Security Requirements, CA Browser Forum Baseline Requirements for the Issuance and Management of Publicly-Trusted Certificates, NIST Cybersecurity Framework, NIST SP 800-53 Rev. 5, NIST SP 800-57, and NIST FIPS 140-3. • Under requirements for threat detection (appendix A, sec. 6), States must implement controls to monitor and log evolving threats to various mDL issuance infrastructure, including digital certificate, issuance, and support systems. These requirements must be implemented in full compliance with the references cited in the appendix: CA Browser Forum Network and Certificate System Security Requirements, CISA Cybersecurity Incident & Vulnerability Response Playbooks, NIST Cybersecurity Framework, NIST SP 800-53 Rev. 5. • Logging controls (appendix A, sec. 7) require States to record various events concerning Certificate Systems, including the management of cryptographic keys, digital certificate lifecycle events. The controls set forth detailed requirements concerning specific types of events that must be logged, as well as timeframes for maintaining such logs. These requirements must be implemented in full compliance with the references cited in the appendix: CA Browser Forum Baseline Requirements for the Issuance and Management of Publicly-Trusted Certificates, NIST Cybersecurity Framework, and NIST SP 800-53 Rev. 5. • Finally, section 8 of appendix A requires States to implement policies to respond to and recover from security incidents. States must act on logged events, issue alerts to relevant personnel, respond to alerts within a specified time period, perform vulnerability scans, among other things. In particular, States must provide written notice to TSA at www.dhs.gov/real-id/mDL within 72 hours of discovery of a significant cyber incident or breach that could compromise the integrity of a Certificate System. These requirements must be implemented in full compliance with the references cited in the appendix: CA Browser Forum Network and Certificate System Security Requirements, CISA Cybersecurity Incident & Vulnerability Response Playbooks, CISA National Cyber Incident Response Plan; NIST SP 800-53 Rev. 5, NIST Cybersecurity Framework. TSA invites comment on all aspects of the waiver application requirements and costs of compliance, including the Waiver Application Guidance, appendix A to subpart A to the part, the appropriateness of requiring compliance with the specified standards and guidelines and any alternate standards that should be considered, and other recommendations that commenters believe TSA should consider. 5. Decisions on Applications for Waiver Section 37.9(b) would establish a timeline and process for TSA to issue decisions on a waiver application. Under this paragraph, TSA would endeavor to provide States a decision on initial applications within 60 days, but not longer than 90 days. TSA would provide three types of written notice via email: approved, insufficient, or denied. If TSA approves a State's application for a waiver, TSA would memorialize that decision by issuing a certificate of waiver to that State, and including the State in a list of State-mDLs approved for Federal use, published by TSA on the REAL ID website at www.dhs.gov/real-id/mDL. A certificate of waiver would specify the date that the waiver becomes effective, the expiration date, and any other terms and conditions with which a State must comply, as provided under proposed § 37.9(d). A State seeking to renew its certificate beyond the expiration date must reapply for a waiver, as provided in § 37.9(e)(6). If TSA determines that an application is insufficient, did not respond to certain information required in § 37.10(a) or (b), or contains other deficiencies, TSA would provide an explanation of such deficiencies and allow the State an opportunity address the deficiencies within the timeframe specified in § 37.9(b)(2). TSA would permit States to submit multiple amended applications if necessary, with the intent of working with States individually to enable their mDLs to comply with the requirements of § 37.10(a) and (b). If TSA denies an application, TSA would provide the specific grounds for the basis of the denial and afford the State an opportunity to submit a new application. As stated in § 37.9(c), TSA would also provide a State an opportunity to seek reconsideration of a denied application. Instructions for seeking reconsideration would be provided by TSA on the REAL ID website at www.dhs.gov/real-id/mDL. An adverse decision upon reconsideration would be considered a final agency action. As provided in § 37.9(c), however, a State whose request for reconsideration has been denied may submit a new application for a waiver. 6. Limitations, Suspension, and Termination of Certificate of Waiver Section 37.9(e) would set forth various restrictions on a certificate of waiver. Specifically, in paragraph (e)(1) of this section, TSA proposes that a certificate of waiver would be valid for a period of three years from the date of issuance. Paragraph (e)(2) proposes that a State must report to TSA if, after it receives a waiver, it makes significant modifications to its mDL issuance processes that differ in a material way from information that the State provided in its application. If the State makes such modifications, it would be required to report such changes 60 days before implementing the changes. This requirement is intended to apply to changes that may undermine the bases on which TSA granted a waiver. The reporting requirement is not intended to apply to routine, low-level changes, such as systems maintenance and software updates and patches. Paragraph (e)(3) would require a State that is issued a waiver to comply with all requirements specified in §§ 37.51(a) and 37.9(d)(3). Section 37.9(e)(4) sets forth processes for suspension of certificates of waiver. As provided in proposed § 37.9(e)(4)(i)(A), TSA may suspend the validity of a certificate of waiver if TSA determines that a State: • fails to comply with any terms and conditions (see § 37.9(d)(3)) specified in the certificate of waiver; • fails to comply with reporting requirements (see § 37.9(e)(2)); or • issues mDLs in a manner that is not consistent with the information the State provided in its application for a waiver under § 37.10(a) and (b). Before suspending a waiver for these reasons, TSA will provide such State written notice via email that it intends to suspend its waiver, along with an explanation of the reasons, information on how the State may address the deficiencies, and a timeline for the State to respond and for TSA to reply to the State, as set forth in § 37.9(e)(4)(ii). DHS may withdraw the notice of suspension, request additional information, or issue a final suspension. If TSA issues a final suspension of a State's certificate of waiver, DHS will remove the name of that State from the list of mDLs approved for Federal acceptance for official purposes. TSA additionally may suspend a State's waiver at any time upon discovery that Federal acceptance of a State's mDL is likely to cause imminent or serious threats to the security, privacy, or data integrity of any Federal agency, as proposed by § 37.9(e)(4)(i)(B). Suspension would apply to all Federal agencies and would not be agency-specific. Examples of such triggering events include cyber-attacks and other events that cause serious harm to a State's mDL issuance systems. If a State discovers a significant cyber incident that it believes could compromise the integrity of its mDL issuance systems, sec. 8.6 of appendix A to subpart A of the part would require States to provide written notice to TSA, at www.dhs.gov/real-id/mDL, of such incident within 72 hours of discovery. If TSA determines such suspension is necessary, TSA will provide written notice via email to each State whose certificate of waiver is affected, as soon as practicable after discovery of the triggering event, providing an explanation for the suspension, as well as an estimated timeframe for resumption of the validity of the certificate of waiver. It is TSA's intent to work with States to resolve the conditions that could lead to suspension and avoid issuing a final suspension. If TSA issues a final suspension of any State's certificate of waiver, TSA will temporarily remove the name of that State from the list of mDLs approved for Federal acceptance for official purposes. A State receiving a final suspension may apply for a new certificate of waiver by submitting a new application. Under § 37.9(e)(5), TSA may terminate a certificate of waiver for serious or egregious violations. More specifically, TSA may terminate a waiver if TSA determines that a State: • does not comply with REAL ID requirements in § 37.51(a); • is committing an egregious violation of any terms and conditions (see § 37.9(d)(3)) specified in the certificate of waiver and is unwilling to cure such violation; • is committing an egregious violation of reporting requirements (see § 37.9(e)(2)) and is unwilling to cure such violation; or • provided false information in its waiver application. Before terminating a certificate of waiver, TSA would provide written notice via email of intent to terminate, including findings supporting the termination and an opportunity to present information. As specified, a State would have 7 days to respond to the notice, and TSA would respond via email within 30 days. TSA may withdraw the notice of termination, request additional information, or issue a final termination. If TSA issues a final termination of a State's certificate of waiver, TSA will remove the name of that State from the list of mDLs approved for Federal acceptance for official purposes. A State whose certificate of waiver has been terminated may apply for a new certificate of waiver by submitting a new application. 7. Effect of a Status of Waiver on REAL ID Compliance Section 37.9(f) clarifies that the status of a State's certificate of waiver, including the status of an application for a waiver, has no bearing on TSA's determination of that State's compliance or non-compliance with any other section of this part. A certificate of waiver that TSA has issued to a State is not a determination that the State is in compliance with any other section in this part. Similarly, an application for a waiver that TSA has deemed insufficient or denied, or a certificate of waiver TSA has suspended, terminated, or expired, is not a determination that the State is not in compliance with any other section in this part. 8. Incorporation by Reference TSA proposes adding to subpart A, § 37.4, the following industry standards and government guidelines that this rulemaking proposes to incorporate by reference (discussed in detail in Part II.D., above): • AAMVA ○ Mobile Driver's License (mDL) Implementation Guidelines, Version 1.2 (Jan. 2023); • CA/Browser Forum ○ Baseline Requirements for the Issuance and Management of Publicly-Trusted Certificates, Version 1.8.6 (Dec. 14, 2022), ○ Network and Certificate System Security Requirements, Version 1.7 (Apr. 5, 2021); • CISA ○ Cybersecurity Incident & Vulnerability Response Playbooks (Nov. 2021), ○ National Cyber Incident Response Plan (Dec. 2016); • ISO/IEC ○ ISO/IEC 18013-5:2021, Personal identification—ISO-compliant driving licence—Part 5: Mobile driving licence (mDL) application, Edition 1 (Sept. 2021); • NIST ○ FIPS PUB 140-3, Security Requirements for Cryptographic Modules (Mar. 22, 2019), ○ FIPS PUB 180-4, Secure Hash Standard (SHS) (Aug. 2015), ○ FIPS PUB 186-5, Digital Signature Standard (DSS) (Feb. 2023), ○ FIPS PUB 197, Advanced Encryption Standard (AES) (Nov. 26, 2001), ○ FIPS PUB 198-1, The Keyed-Hash Message Authentication Code (HMAC) (July 2008), ○ FIPS PUB 202, SHA-3 Standard: Permutation-Based Hash and Extendable-Output Functions (Aug. 2015), ○ SP 800-53, Security and Privacy Controls for Information Systems and Organizations, Rev. 5 (Sept. 2020), ○ SP 800-57 Part 1, Recommendation for Key Management: Part 1—General, Rev. 5 (May 2020), ○ SP 800-57 Part 2, Recommendation for Key Management: Part 2—Best Practices for Key Management Organization, Rev. 1 (May 2019), ○ SP 800-57 Part 3, Recommendation for Key Management: Part 3: Application-Specific Key Management Guidance, Rev. 1 (Jan. 2015), ○ SP 800-63-3, Digital Identity Guidelines, (June 2017), ○ SP 800-63B, Digital Identity Guidelines Authentication and Lifecycle Management (June 2017), and ○ Framework for Improving Critical Infrastructure Cybersecurity Version 1.1 (Apr. 16, 2018). C. Impacted Stakeholders The proposed changes would apply to State driver's licensing agencies issuing mDLs that seek a temporary waiver from TSA for its mDLs. The waiver would enable Federal agencies to accept such mDLs for official purposes, defined in the REAL ID Act as accessing Federal facilities, entering nuclear power plants, boarding federally regulated commercial aircraft, and any other purposes that the Secretary shall determine. Any Federal agency that chooses to accept mDLs for official purposes must procure a reader in order to receive an individual's identity data. This proposed rule does not impose any requirements on: • States that do not seek a waiver for mDLs; • Non-State issuers of other forms of digital identification; or • Federal agencies to accept mDLs. A State seeking a waiver for Federal acceptance of its mDLs for official purposes would be required to file with TSA a complete application and supporting documents. An application form and instructions would be published by TSA in a form and manner prescribed by TSA, such as a TSA-specified website. Through the application, the State would be required to demonstrate how its mDLs meet the requirements for a waiver set forth in § 37.10(a) and (b). D. Use Cases Affected by This Proposed Rule The scope of this proposed rule is confined strictly to Federal acceptance of mDLs for official purposes, defined by the REAL ID regulations as accessing Federal facilities, entering nuclear power plants, and boarding federally regulated commercial aircraft. Any other purpose is beyond the scope of this rulemaking. For example, a waiver issued under this proposed rule would not apply to any of the following: • mDL acceptance by Federal agencies for non-REAL ID official uses ( e.g., applying for Federal benefits); • mDL acceptance by non-Federal agencies ( e.g., State agencies, businesses, private persons); • Commercial transactions; or • Physical driver's licenses or identification cards. Nothing in this proposed rule would require Federal agencies to accept mDLs; each Federal agency retains the discretion to determine its identification policies. Additionally, nothing in this proposed rule would require a State to seek a waiver or issue mDLs. IV. Discussion of Public Comments in the RFI As discussed in Part II.B., above, DHS issued an RFI 60 on April 19, 2021, and requested comments from the public to be submitted by June 18, 2021. In addition, DHS and TSA held a virtual public meeting on June 30, 2021, to provide an additional forum for public comments, and extended the RFI comment period until July 30, 2021, to permit additional comments following the public meeting. 61 Approximately 100 persons attended the public meeting. In response to discussion at the public meeting and comments to the RFI concerning the importance of access to the primary industry standard referenced in the RFI, ISO/IEC 18013-5:2021, DHS facilitated public access to the standard by publishing a notification 62 in the Federal Register on September 16, 2021, providing instructions to the public to gain access to the standard without cost. Approximately 30 persons requested and received access. Additionally, DHS reopened the comment period until October 18, 2021. With the comment period extension and reopening, DHS provided a total RFI comment period of 180 days. 60 86 FR 20320. 61 86 FR 31987. 62 86 FR 51625. DHS received roughly 60 comments to the RFI from a diverse group of stakeholders, including advocacy groups representing varied interests, individuals, State government agencies, trade associations, and industry. An analysis of comments received showed that topics of interest to stakeholders concerned: the need for standardization and/or Federal guidance, 63 potential benefits to the public from mDLs generally, 64 and the appropriateness of ISO/IEC standards as a starting point for regulatory requirements. 65 Input received from these stakeholders, as it relates to the focus of this NPRM, is included and referenced throughout this proposed rule. 63 See, e.g., comments submitted by: American Association of Motor Vehicles Administrators; CBN Secure Technologies; DocuSign; FaceTec; IDmachines; Maryland DHS of Transportation, Motor Vehicle Administration; National Conference of State Legislatures; State of Connecticut, DHS of Motor Vehicles; U.S. Travel Association. 64 See, e.g., comments submitted by: Applied Recognition; Bredemarket; Hiday; IDmachines; Mothershed; Muller; State of Connecticut, DHS of Motor Vehicles; U.S. Travel Association. 65 See, e.g., comments submitted by: American Association of Motor Vehicle Administrators; American Civil Liberties Union, Electronic Frontier Foundation, and Electronic Privacy Information Center; Apple; Association for Convenience & Fuel Retailing; CBN Secure Technologies; FaceTec; Florida DHS of Highway Safety and Motor Vehicles; IDEMIA; Maryland DHS of Transportation, Motor Vehicle Administration; National Immigration Law Center and Undersigned Organizations; Secure Technology Alliance; State of Connecticut, DHS of Motor Vehicles; Underwriters Laboratories; Verifiable Credentials Policy Committee, Blockchain Advocacy Coalition. In addition to the issues already discussed, many commenters raised concerns about potential privacy risks depending on the mode of data transfer. For background, an mDL reader can retrieve an individual's data under two different modes of operation: a “device retrieval” mode (also known as “offline”) in which data is retrieved directly from an mDL holder's mobile device, and a “server retrieval” mode (also known as “online”) in which the data is retrieved from a State driver's licensing agency. 66 In its RFI, DHS noted that it was considering both modes of operation for Federal acceptance for official purposes, and specifically sought comments on the security and privacy risks, and mitigating solutions for both modes. 67 DHS received numerous comments from advocacy groups, industry, and States concerning potential privacy risks posed specifically by server retrieval mode. 68 Chief among these concerns was the potential for mDL usage to be tracked. TSA has observed that security and privacy protections to mitigate such concerns are evolving and unsettled, and after careful consideration of commenters' concerns, TSA does not believe server retrieval mode is appropriate for Federal acceptance for official purposes at this time. TSA will continue monitoring industry developments and may update its conclusions in the Phase 2 rulemaking, if warranted. 66 86 FR 20323-24. 67 86 FR 20326. 68 See, e.g., comments submitted by American Association of Motor Vehicle Administrators; American Civil Liberties Union, Electronic Frontier Foundation, and Electronic Privacy Information Center; Association for Convenience and Fuel Retailing; Better Identity Coalition; Electronic Privacy Information Center; IDEMIA; National Immigration Law Center, and Undersigned Organizations; and Verifiable Credentials Policy Committee—Blockchain Advocacy Coalition. DHS also received comments on other topics, including non-REAL ID use cases such as commercial transactions and technical information on various topics. As noted above, a waiver issued under the proposed rule would not address use of an mDL for commercial transactions or any other non-Federal purposes not covered by the REAL ID Act or regulations. In general, mDL acceptance by Federal agencies for non-REAL ID official purposes, mDL acceptance by non-Federal agencies, and mDL use in commercial transactions go beyond the scope of the REAL ID Act's official purposes. Although not the focus of this proposal, TSA may examine some of these issues through its on-going mDL efforts, such as mDL collaborations with industry, which could inform future regulatory proposals. To support this interest, TSA appreciates stakeholders' perspectives on these topics. V. Consultation With States, Non-Governmental Organizations, and the Department of Transportation Under section 205 of the REAL ID Act, issuance of REAL ID regulations must be conducted in consultation with the Secretary of Transportation and the States. During the development of this NPRM, DHS and TSA consulted with the Department of Transportation and other Federal agencies with an interest in this rulemaking. DHS and TSA also consulted with State officials via AAMVA. In addition, DHS and TSA met with various non-governmental organizations, including civil rights and privacy advocacy groups. Stakeholder input, informed by extensive outreach, was critical to informing this NPRM. VI. Regulatory Analyses A. Economic Impact Analyses 1. Regulatory Impact Analysis Summary Changes to Federal regulations must undergo several economic analyses. First, E.O. 12866 of September 30, 1993 (Regulatory Planning and Review), 69 as supplemented by E.O. 13563 of January 18, 2011 (Improving Regulation and Regulatory Review), 70 and amended by E.O. 14094 of April 6, 2023 (Modernizing Regulatory Review) 71 directs Federal agencies to propose or adopt a regulation only upon a reasoned determination that the benefits of the intended regulation justify its costs. Second, the Regulatory Flexibility Act of 1980 (RFA) 72 requires agencies to consider the economic impact of regulatory changes on small entities. Third, the Trade Agreement Act of 1979 73 prohibits agencies from setting standards that create unnecessary obstacles to the foreign commerce of the United States. Fourth, the Unfunded Mandates Reform Act of 1995 74 (UMRA) requires agencies to prepare a written assessment of the costs, benefits, and other effects of proposed or final rules that include a Federal mandate likely to result in the expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted for inflation) in any one year. 69 Published at 58 FR 51735 (Oct. 4, 1993). 70 Published at 76 FR 3821 (Jan. 21, 2011). 71 Published at 88 FR 21879 (April 6, 2023). 72 Public Law 96-354, 94 Stat. 1164 (Sept. 19, 1980) (codified at 5 U.S.C. 601 et seq., as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA)). 73 Public Law 96-39, 93 Stat. 144 (July 26, 1979) (codified at 19 U.S.C. 2531-2533). 74 Public Law 104-4, 109 Stat. 66 (Mar. 22, 1995) (codified at 2 U.S.C. 1181-1538). 2. Assessments Required by E.O. 12866 and E.O. 13563 E.O. 12866 and E.O. 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Under E.O. 12866, as amended by E.O. 14094, agencies must also determine whether a regulatory action is significant. 75 These requirements were supplemented by E.O. 13563, which emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. 75 See section 1(b) of E.O. 14094, revising section 3(f) of E.O. 12866. Section 3(f) of E.O. 12866 defines a “significant regulatory action” as any regulatory action that is likely to result in a rule that: (1) has an annual effect on the economy of $200 million or m [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2023-18582. Public record. Not legal advice.