# Minimum Standards for Driver's Licenses and Identification Cards Acceptable by Federal Agencies for Official Purposes; Phased Approach for Card-Based Enforcement > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A2025-00484 ## Record - **Collection:** Federal Register - **Document type:** Rule - **Published:** January 14, 2025 - **Citation:** 90 FR 3472 ## Text DEPARTMENT OF HOMELAND SECURITY Transportation Security Administration 6 CFR Part 37 [Docket No. TSA-2023-0003] RIN 1652-AA77 Minimum Standards for Driver's Licenses and Identification Cards Acceptable by Federal Agencies for Official Purposes; Phased Approach for Card-Based Enforcement AGENCY: Transportation Security Administration (TSA), Department of Homeland Security (DHS). ACTION: Final rule. SUMMARY: This rule ensures that Federal agencies have appropriate flexibility to implement the card-based enforcement provisions of the REAL ID regulations after the May 7, 2025, enforcement deadline by explicitly permitting agencies to implement these provisions in phases. Under this rule, agencies may implement the card-based enforcement provisions through a phased enforcement plan if they determine it is appropriate upon consideration of relevant factors including security, operational feasibility, and public impact. The rule also requires agencies to coordinate their plans with DHS, make the plans publicly available, and achieve full enforcement by May 5, 2027. DATES: Effective January 14, 2025. FOR FURTHER INFORMATION CONTACT: George Petersen, REAL ID Program, Enrollment Services and Vetting Programs, Transportation Security Administration, 6595 Springfield Center Drive, Springfield, VA 20598; telephone: (571) 227-2215; email: george.petersen@tsa.dhs.gov. SUPPLEMENTARY INFORMATION: 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” in the FOR FURTHER INFORMATION CONTACT section. Make sure to identify the docket number of this rulemaking. Abbreviations and Terms Used in This Document APA—Administrative Procedure Act DHS—Department of Homeland Security DL/IDs—Driver's Licenses and Identification Cards DMV—Departments of Motor Vehicles EDL—Enhanced Driver's Licenses NPRM—Notice of Proposed Rulemaking TSA—Transportation Security Administration Table of Contents I. Executive Summary A. Purpose of the Regulatory Action B. Summary of the Major Provisions of the Regulatory Action C. Costs and Benefits II. Background A. Statutory and Regulatory History B. Phased Enforcement Rulemaking C. Broad DHS Approach III. General Discussion of the Rulemaking A. Rulemaking Objectives B. Summary of Regulatory Provisions C. Maintaining the May 7, 2025, Card-Based Enforcement Deadline D. Phased Enforcement Guidance IV. Discussion of Comments A. General Opposition to REAL ID B. Legal Authority C. General Support for the Rulemaking D. Immediate Transition to Full Enforcement E. Extension of the Card-Based Enforcement Deadline F. Confusion Associated With Phased Enforcement Generally G. Public Availability of Agencies' Phased Enforcement Plans H. Length of Phased Enforcement Period I. Relevant Factors and Resources for Development and Approval of Phased Enforcement Determinations by Federal Agencies J. Phased Enforcement Implementation Concerns K. Alternative Approaches to Phased Enforcement L. Costs of the Rule V. Statutory and Regulatory Analyses A. Administrative Procedure Act B. Paperwork Reduction Act C. Economic Impact Analysis D. Executive Order 13132 (Federalism) E. Executive Order 13175 (Tribal Consultation) F. Environmental Analysis G. Energy Impact Analysis H. Small Business Regulatory Enforcement Fairness Act of 1996 (Congressional Review Act) I. Executive Summary A. Purpose of the Regulatory Action Secure driver's licenses and identification documents are a vital component of our national security framework. The REAL ID Act, 1 passed by Congress in 2005, enacted the 9/11 Commission's recommendation that the Federal Government “set standards for the issuance of . . . sources of identification, such as drivers licenses.” 2 The REAL ID Act and its implementing regulations set minimum security standards for State-issued driver's licenses and identification cards (DL/IDs), which are designed to improve the security and reliability of those documents. These requirements allow Federal agencies that accept State-issued DL/IDs for official purposes to determine with greater accuracy whether individuals presenting a DL/ID are who they say they are. 1 Public Law 109-13, 119 Stat. 231, 302 (May 11, 2005) (codified at 49 U.S.C. 30301 note). 2 The 9/11 Commission Report, Final Report of the National Commission on Terrorist Attacks upon the United States (July 2004) (9/11 Commission Report), p. 390, available at https://www.govinfo.gov/app/details/GPO-911REPORT (last visited April 16, 2024). Pursuant to the REAL ID regulations, REAL ID card-based enforcement begins on May 7, 2025. Card-based enforcement means that Federal agencies may only accept DL/IDs for official purposes, defined in the REAL ID Act and regulation, if the DL/IDs are issued in accordance with REAL ID requirements. 3 In order to fully realize the enhanced security provided by the REAL ID requirements, DHS is committed to beginning card-based enforcement on May 7, 2025. However, as of January 2024, only approximately 56 percent of DL/IDs in circulation nationally are REAL ID-compliant. 4 In 34 States, 5 less than 60 percent of DL/IDs in circulation are REAL ID-compliant, and, of those, in 22 States less than 40 percent are REAL ID-compliant. 6 Further, because of a history of REAL ID deadlines being extended, DHS believes that the public may continue to expect that additional extensions are likely and not feel urgency to obtain a REAL ID-compliant card. DHS believes this lack of urgency is likely to delay increased adoption in many States despite best efforts to inform the public, potentially leading to last-minute surges in demand for REAL ID-compliant IDs leading up to the deadline. 3 6 CFR 37.5(b). 4 Based on REAL ID issuance data, as of January 2024, voluntarily submitted monthly to DHS by the compliant states. While REAL ID issuance data through October 2024 is available, based on the most recent data, DHS expects the percentage of REAL IDs by the card-based enforcement date to be on par with the forecasts presented in the NPRM. As a result, the regulatory analyses (section V(b)(2)(d) Adoption of REAL ID-Compliant DL/IDs ) maintains the values used in the NPRM which DHS published in September 2024. 5 DHS uses “states” and “licensing jurisdictions” interchangeably throughout this document to refer collectively to the 56 different U.S. jurisdictions that issue DL/IDs that are governed by the REAL ID regulations. These jurisdictions are the 50 states, the District of Columbia, and the territories of Puerto Rico, U.S. Virgin Islands, Guam, the Commonwealth of the Northern Mariana Islands, and American Samoa. 6 CFR 37.3. 6 See supra note 4. DHS believes this surge could overwhelm some States with low levels of adoption and result in backlogs and delays in REAL ID issuance. In light of this, DHS anticipates that a significant number of individuals seeking to use their DL/ID for a REAL ID official purpose on and after May 7, 2025, may not have a compliant DL/ID. DHS recognizes that this could result in a situation where individuals are unable to present a compliant DL/ID to access a Federal facility, board a federally regulated commercial aircraft, or enter a nuclear power plant on a large scale. For some agencies, this scenario may raise serious concerns related to security, agency operations, and potential impact to the public. While these concerns are especially acute in an airport security environment, DHS anticipates that other Federal agencies that operate facilities visited frequently by the general public 7 may also face similar concerns. This rule recognizes these concerns and provides flexibility by permitting agencies to, for a period of up to 2 years, implement REAL ID card-based enforcement using a phased approach tailored to their specific operations. 7 The requirements of the REAL ID Act and regulation apply only in contexts where individuals are required to present an identification document to Federal agencies for official purposes. Accessing a Federal facility that is normally open to the public and does not require visitors to establish their identity to enter is generally not an official purpose under the REAL ID Act and regulation. See REAL ID Act of 2005 Implementation: An Interagency Security Committee Guide (2019), p. 4-7, available at https://www.cisa.gov/resources-tools/resources/isc-guide-real-id-act-2005-implementation (last visited October 3, 2024). DHS believes that this approach will be more effective at achieving full enforcement than further extensions of the enforcement deadline. This rule demonstrates that the Government is preparing for and planning to begin enforcement on May 7, 2025, and provides an opportunity for States and the public to prepare for full enforcement. After May 7, 2025, when agencies begin full enforcement or implement a phased enforcement plan, as appropriate, the public will be further incentivized to obtain a REAL ID as they realize and anticipate consequences for presenting a non-compliant DL/ID. At the same time, the rule is intended to allow a transition to full enforcement that mitigates the potential negative impact to agencies and the public if every agency was required to begin full enforcement immediately on the card-based enforcement date. Given the current percentage of REAL ID-compliant DL/IDs that have been issued (as a percentage of all DL/IDs), the challenges many States are experiencing as they seek to increase adoption of compliant DL/IDs, and the resulting concerns Federal agencies may have, the rule provides important flexibility to agencies to ensure a smooth transition to card-based enforcement. The rule balances the increased security benefits of beginning card-based enforcement with an understanding of the significant risks that some Federal agencies may experience as a result of an immediate transition to full enforcement. 8 8 “Full enforcement” or “full card-based enforcement” means that an agency will not accept noncompliant DL/IDs for REAL ID official purposes. B. Summary of the Major Provisions of the Regulatory Action Under the REAL ID regulations, Federal agencies may not accept non-compliant DL/IDs for REAL ID official purposes on and after the card-based enforcement of May 7, 2025. Under this rule, Federal agencies are still required to commence REAL ID card-based enforcement on May 7, 2025. However, this rule provides agencies, for a period of up to 2 years, the flexibility to implement a phased approach to card-based enforcement, after considering relevant factors including security, operational feasibility, and impact to the public. The rule provides an enforcement approach that allows agencies to maximize security gains in contexts where a swift transition to full enforcement poses little risk, while minimizing the risks in contexts where large numbers of individuals seeking to use noncompliant DL/IDs raises serious concerns. To ensure that agencies' phased enforcement plans consistently and appropriately advance the objectives of the REAL ID regulations, this rule requires agencies to coordinate their phased enforcement plans with DHS and begin full enforcement no later than May 5, 2027. To ensure transparency and public visibility, the rule requires agencies that use a phased enforcement plan to make their plan publicly available on their web page and require DHS to make publicly available a list of agencies that have coordinated phased enforcement plans with DHS. Finally, the rule's preamble provides guidance to Federal agencies on types of phased enforcement plans that agencies may consider. C. Costs and Benefits As described in the notice of proposed rulemaking (NPRM) (89 FR 74137, September 12, 2024) and discussed below, DHS estimates the cost of the rule, over 2 years, is $1.73 million undiscounted and $1.70 million discounted at 2 percent. DHS, as the agency administering the REAL ID program, and other Federal agencies will largely bear the cost of the rule related to facilitating phased enforcement while benefits include flexibility to Federal agencies that may reduce operational disruptions as well as to States and individuals associated with additional time to obtain and process REAL IDs. Specifically, DHS will incur costs to coordinate with Federal agencies on their phased enforcement plans and provide guidance on phased enforcement. DHS estimates the 2-year cost to DHS is $0.033 million undiscounted and $0.031 million discounted at 2 percent. Federal agencies will incur costs to familiarize themselves with the rule, assess whether to implement a phased enforcement plan, and if so, develop a plan. DHS estimates the 2-year cost to Federal agencies is $1.70 million undiscounted and $1.67 million discounted at 2 percent. DHS also identifies other non-quantified costs that affected parties may incur. A portion of the benefits associated with the REAL ID rule will be delayed as a result of agencies implementing a phased approach, with the full security benefit not realized until full enforcement occurs. Federal agencies will also incur costs related to phased enforcement plan implementation which may include training personnel on the policies of the plan and efforts to inform the public of the new identity verification policies related to plans. Individuals may also incur costs to become aware of phased enforcement plans and respond accordingly. DHS identifies various non-quantified benefits associated with the final rule. Federal agencies will have flexibility to enforce the REAL ID card-based regulations in a phased manner that may reduce security vulnerabilities, operational disruption and public impact but will not unnecessarily delay REAL ID enforcement for those Federal agencies ready to fully implement on the card-based enforcement deadline. A phased approach will also allow individuals more time to obtain a REAL ID-compliant DL/ID, reduce potential queuing and associated delays at access points, and may help mitigate potential application backlogs at State licensing agencies. II. Background A. Statutory and Regulatory History The REAL ID Act sets minimum security requirements for the issuance and production of DL/IDs issued by the States, territories, and the District of Columbia in order for Federal agencies to accept these documents for official purposes. 9 Official purposes include: (1) accessing Federal facilities, (2) boarding federally regulated commercial aircraft, (3) entering nuclear power plants, and (4) any other purposes that the Secretary of Homeland Security shall determine. 10 9 Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and Tsunami Relief, 2005, Public Law 109-13, Div. B. title II, sections 201 to 207, May 11, 2005, as amended (codified at 49 U.S.C. 30301 note). 10 Id. at section 201. On January 29, 2008, DHS published a final rule implementing the REAL ID Act's requirements (2008 Final Rule). 11 The regulations include both a deadline for State compliance with the REAL ID requirements and a separate deadline after which individuals must present a REAL ID-compliant license or identification card in order for Federal agencies to accept the document for official purposes. 12 DHS refers to these deadlines as “state-based” and “card-based” enforcement, respectively. Under the REAL ID regulations, card-based enforcement begins on May 7, 2025. 13 On and after this date, Federal agencies may not accept for official purposes a DL/ID issued by a State unless that DL/ID was issued in accordance with the REAL ID standards by a REAL ID-compliant jurisdiction. 14 11 See 73 FR 5272 (Jan. 29, 2008) (codified as amended at 6 CFR part 37). 12 6 CFR 37.51(a) and 37.5. 13 6 CFR 37.5(b); 88 FR 14473 (Mar. 9, 2023) (extending the REAL card-based enforcement deadline from May 3, 2023, to May 7, 2025). Additional background related to extensions of card-based deadline as a result of the COVID-19 pandemic is provided in the Notice of Proposed Rulemaking. 89 FR 74137. 14 Under the REAL ID Act and regulations, States may also issue noncompliant licenses and identification cards, which will not be acceptable by Federal agencies for official purposes after the card-based deadline. 6 CFR 37.71; REAL ID Act sec. 202(d)(11). The REAL ID regulations authorize, but do not require, Federal agencies to accept these noncompliant cards until card-based enforcement begins. 6 CFR 37.5(c). B. Phased Enforcement Rulemaking Based on REAL ID data compiled by compliant licensing jurisdictions, as of January 2024, DHS estimates that compliant States, territories, and the District of Columbia have issued approximately 162 million REAL ID-compliant DL/IDs, which represents approximately 56 percent of the population possessing a State-issued DL/ID. 15 Data from the States also indicates that the States have approximately 110 million noncompliant marked DL/IDs and approximately 14 million legacy licenses without any markings (issued before a State's REAL ID compliance determination) still in circulation. 16 Further, the national adoption rate as of January 2024, stands at approximately 0.56 percent per month. As detailed in the regulatory analyses (section IV(b)(2)(e) Adoption of REAL ID-Compliant DL/IDs ) DHS estimates that only about 61.2 percent of DL/IDs in circulation will be REAL ID-compliant by the card-based enforcement deadline of May 7, 2025. 17 15 DHS began to collect data voluntarily submitted by licensing jurisdictions including the total number of DL/IDs, number of REAL IDs, number of non-compliant cards, and number of “legacy” cards in July 2019. Beginning in October 2019, DHS began to receive the data on a monthly basis. While REAL ID issuance data through October 2024 is available, based on the most recent data, DHS expects the percentage of REAL IDs by the card-based enforcement date to be on par with the forecasts presented in the NPRM. As a result, the regulatory analyses (section V(b)(2)(d) Adoption of REAL ID-Compliant DL/IDs ) maintains the values used in the NPRM which DHS published in September 2024. 16 Additional background regarding DHS' efforts to support implementation of the REAL ID Act and factors impacting the pace of REAL ID adoption, including the effect of the COVID-19 pandemic, is provided in the Notice of Proposed Rulemaking. 89 FR 74137. 17 Over the twelve months between January 2023 and January 2024, the national compounded monthly growth rate for the adoption of REAL IDs was 0.56 percent. DHS applied the 0.56 compounded growth rate over the 16 months between January 2024 and May 2025 to forecast the percentage of REAL IDs in circulation by May 2025, relative to all DL/IDs in circulation. Even taking these estimates into account, DHS believes that beginning card-based enforcement on May 7, 2025, is the most effective path to achieve full implementation of the REAL ID Act and regulations. The requirements of the REAL ID Act and regulations provide significant security benefits by improving the accuracy of identity verification processes. 18 Beginning card-based enforcement will mark an important step towards full realization of these increased security standards. However, DHS recognizes that for some agencies, an immediate transition to full enforcement may not be appropriate. On September 12, 2024, DHS published an NPRM that proposed explicitly permitting agencies to implement card-based enforcement in phases if an agency determines that a phased approach is appropriate after considering relevant factors. 19 18 See 73 FR 5325-5326, and accompanying Regulatory Evaluation, Department of Homeland Security, January 17, 2008, Regulatory Evaluation, Docket Number DHS-2006-0030; 9 H.R. Rep. No. 109-72, 176-185 (2005) available at https://www.congress.gov/109/crpt/hrpt72/CRPT-109hrpt72.pdf (last visited June 17, 2024). 19 89 FR 74137. C. Broad DHS Approach This rulemaking represents one aspect of DHS' broad approach towards transitioning to enforcement of the REAL ID requirements on May 7, 2025. Although this rule is critical to providing agencies with the necessary flexibility to ensure a smooth transition to full card-based enforcement, DHS is also engaged in a number of efforts to improve adoption rates. This layered approach includes heavy engagement with States that have low REAL ID adoption rates, a public advertising campaign raising awareness of upcoming REAL ID enforcement and the benefits of obtaining a REAL ID, 20 and communication with the travel industry. This rule, in combination with these other efforts, lays the necessary foundation for transitioning the nation to enforcement of REAL ID requirements on May 7, 2025. 20 DHS Launches “Be Your REAL ID Self ” Public Awareness Campaign, January 15, 2021, https://www.dhs.gov/real-id/news/2021/01/15/dhs-launches-be-your-real-id-self-public-awareness-campaign. III. General Discussion of the Rulemaking A. Rulemaking Objectives DHS is issuing this rule in recognition that without a significant increase in the adoption rate leading up to the May 7, 2025, deadline, millions of noncompliant cards will still be in circulation on that date. Even assuming a substantial increase in the adoption rate, it is difficult to predict the number of people who will seek to use noncompliant DL/IDs for Federal official purposes when enforcement begins on May 7, 2025. Further, the population-wide adoption rate likely will differ from the adoption rate of specific populations who will need to present a REAL ID for official purposes including boarding federally regulated commercial aircraft or entering a Federal facility. The adoption rate also is likely to differ across geographic areas with certain regions having relatively higher or lower concentrations of individuals without a REAL ID-compliant DL/ID. This rulemaking acknowledges the possible risks to Federal agencies and potential public impact should a significant number of individuals seek to use non-REAL ID-compliant DL/IDs for REAL ID official purposes when enforcement begins on May 7, 2025. In some cases, a sudden transition to full enforcement may impact how agencies provide certain services or conduct business with the public. If many individuals seek to use noncompliant DL/IDs at the same location, this could result in significant backlogs at access points to Federal facilities and TSA security checkpoints. In the example of TSA, if large numbers of individuals arrived at an airport security checkpoint with noncompliant DL/IDs, 21 they will not be able use that DL/ID to proceed through screening, potentially resulting in missed flights. Additionally, long lines, confusion, and frustrated travelers at the checkpoint may greatly increase security risks both to passengers and TSA personnel by drawing the resources and attention of TSA personnel away from other passengers, including those known to pose an elevated risk. DHS anticipates that other Federal agencies may also experience a negative impact if they begin full enforcement on May 7, 2025. 21 Although a segment of the population may not possess a REAL ID, they may have other forms of identification acceptable for official purposes ( e.g., a U.S. passport, U.S. passport card, or military identification). TSA's acceptable ID list is available at https://www.tsa.gov/travel/security-screening/identification. Other Federal agencies may also accept identification in addition to REAL ID-compliant DL/IDs. Individuals who need to visit a Federal facility should check in advance whether the agency requires identification for access purposes and, if they do, review the agency's access control policies. Given that approximately 56 percent of DL/IDs in circulation are REAL ID-compliant as of January 2024, the low current adoption rates, and DHS' estimate that 61.2 percent of REAL IDs, relative to all DL/IDs in circulation, will be REAL ID-compliant by May 7, 2025, there is a real possibility of disruptions like those described above could occur if all agencies begin full enforcement on the deadline. 22 Additionally, even if population-wide adoption rates are significantly higher than they are currently, these outcomes may nonetheless unfold if adoption rates remain low in specific States or amongst specific groups of individuals. Operational disruptions could still occur at locations in areas that have a high concentration of individuals without REAL ID-compliant DL/IDs or during times of the year when large numbers of people who do not fly frequently, and who may not possess a REAL ID-compliant DL/ID seek to travel. DHS anticipates that other agencies that operate facilities nationwide or experience substantial shifts in the number of individuals presenting identification for official purposes throughout the year may have similar concerns about the possibility of disruption based on the current trend in REAL ID adoption rates. 22 Supra note 15. Recognizing these challenges and the uncertainty in the number of individuals Federal agencies may encounter who do not have a REAL ID-compliant DL/ID on May 7, 2025, this rule provides Federal agencies added flexibility to implement enforcement of the REAL ID regulations in a manner that takes into account relevant factors including security, operational feasibility, and public impact. The ability to implement the card-based requirements under a phased approach, for a 2-year period, allows Federal agencies to start card-based enforcement in a manner that limits potential disruption to operations, reduces negative public impact, and supports a smooth transition to full card-based enforcement and the increased security benefits of REAL ID. For example, agencies will have the ability to begin enforcement by issuing warning notices or through progressive consequences if they determine that those measures would most effectively mitigate the risks of an immediate transition to full enforcement. Without this flexibility, and especially if the adoption rate remains low leading up to May 7, 2025, DHS believes Federal agencies could face a serious risk of operational disruption, negative public impact, and potential security vulnerabilities. Further, implementation of card-based enforcement through a phased approach is consistent with DHS' approach to State-based enforcement. 23 DHS' approach to State-based enforcement demonstrated that phased enforcement can be effective in achieving compliance with REAL ID requirements. This rule provides Federal agencies the flexibility to determine whether a phased plan to implement the REAL ID card-based enforcement requirements beginning on May 7, 2025, is appropriate in particular circumstances. This flexibility allows agencies to begin card-based enforcement as part of a measured, responsible, and achievable plan leading to full enforcement of the REAL ID regulations. 23 Beginning in January 2013, DHS incrementally enforced the State-based regulatory deadline prohibiting agencies from accepting licenses and cards issued by States that were not compliant with the REAL ID standards. State-based enforcement concluded with the final phase, boarding federally regulated commercial aircraft, going into effect in 2018. DHS Releases Phased Enforcement Schedule for REAL ID (Dec. 20, 2013), available at https://www.dhs.gov/news/2013/12/20/dhs-releases-phased-enforcement-schedule-real-id. Providing agencies the flexibility to begin enforcement using a phased approach may also facilitate increased adoption of REAL ID-compliant DL/IDs. DHS anticipates that agencies announcing concrete plans for beginning enforcement on May 7, 2025, will demonstrate that the deadline is not being extended and will likely incentivize individuals to obtain a REAL ID-compliant DL/ID. An agency's specific enforcement phase may also encourage increased adoption. For example, agencies may choose to issue a written or verbal warning the first time an individual attempts to use their non-compliant DL/ID after the May 7, 2025, enforcement deadline, letting that individual know they will be denied entry if they attempt to use their non-compliant card at that location another time. Individualized warnings like this may be more effective at encouraging compliance than broad public messaging. Finally, increased demand leading up to and after the deadline may outpace the ability of licensing jurisdictions to meet that demand. During DHS' engagement with States in preparation for the beginning of card-based enforcement, some States have expressed concern with ability to meet potential demand. 24 Allowing agencies to use a phased approach may also provide licensing jurisdictions the opportunity to make adjustments to alleviate potential backlogs. 24 For example, Oregon has recently approved an increase in DMV staff dedicated to issuing REAL ID-compliant DL/IDs in anticipation of the May 7, 2025, deadline. Oregon Department of Transportation (ODOT), ODOT Operational Report to the Oregon Transportation Commission (March 5, 2024), available at https://www.oregon.gov/odot/Get-Involved/OTCSupportMaterials/Agenda_F_Operational_Report_PACKET.pdf (last visited April 17, 2024). B. Summary of Regulatory Provisions 1. Agency Determination in Consideration of Relevant Factors This rule permits agencies to make a determination that phased enforcement is appropriate, in consideration of relevant factors including security, operational feasibility, and public impact. The rule recognizes that individual Federal agencies are in the best position to determine how to ensure successful implementation of the REAL ID requirements within their own unique operational contexts. It allows individual agencies to use their own expertise to structure enforcement plans in such a manner that will lead to successful enforcement of the REAL ID regulations while mitigating potential risks of immediately transitioning to full enforcement on May 7, 2025. In making a determination of whether phased enforcement instead of an immediate transition to full enforcement is appropriate, agencies must, at a minimum, consider three relevant factors that will inform their decision. DHS identified the three factors it believes are most likely to impact efficient and successful implementation of card-based enforcement: security, operational feasibility, and public impact. In addition to these factors, agencies may consider other factors they deem relevant and necessary to make their determination. In considering security, agencies should weigh both the security benefits that card-based enforcement provides as well as potential security vulnerabilities that an immediate transition to full enforcement might create. For many agencies, DHS anticipates that the increased security provided by card-based enforcement weighs in favor of an immediate transition to full enforcement. However, in certain contexts, an immediate transition to full enforcement may result in security vulnerabilities. For example, no longer accepting noncompliant DL/IDs may lead to long lines and crowding at access points to Federal facilities or airport security checkpoints 25 creating soft targets for terrorists or violent extremists. 26 Additionally, an atmosphere of confusion and frustrated individuals who are denied access risks distracting security personnel from correctly executing their procedures. Agencies should take a holistic approach in evaluating the security implications of transitioning to full enforcement. 25 The requirements of the REAL ID Act and regulations specifically apply to Federal agencies accepting DL/IDs for official purposes. As such, the official purpose of boarding a federally regulated commercial aircraft is primarily operationalized at the TSA security checkpoint rather than at an airport departure gate where passengers physically board commercial aircraft. 26 See U.S. Department of Homeland Security Soft Targets and Crowded Places Security Plan Overview, 5-6 (May 2018), available at https://www.cisa.gov/sites/default/files/publications/DHS-Soft-Target-Crowded-Place-Security-Plan-Overview-052018-508_0.pdf (last visited October 9, 2024). Regarding operational feasibility, agencies should consider any implications that transitioning to full enforcement may have on their ability to continue effectively carrying out operations in support of their mission. DHS anticipates that in many cases, immediately transitioning to full enforcement would have little to no impact on agencies' ability to execute their missions and would enhance security. Agencies may have limited interactions with the general public that necessitate individuals seeking to access Federal facilities to present proof of identity for entry. In other circumstances, agencies may be able to easily adjust the manner in which they interact with the public or provide a service to alleviate the need for individuals to use their DL/ID for a REAL ID official purpose. For example, agencies may be able to hold meetings in facilities that do not require the presentation of identification documents or hold virtual meetings. For certain agencies whose missions include operations requiring frequent use of identification documents for a REAL ID official purpose, an immediate transition to full enforcement may challenge an agency's ability to effectively carry out its mission if a large number of individuals seek to use noncompliant DL/IDs after the May 7, 2025, deadline. For these agencies, implementing card-based enforcement through a phased approach would allow for the opportunity to observe changes in the number of noncompliant cards they encounter after the deadline and transition to full enforcement in a manner that ensures continuity of operations. Finally, agencies should assess whether an immediate transition to full enforcement would negatively impact the public and the provision of services. The requirements of the REAL ID Act and regulation apply only in contexts where individuals must present an identification document to Federal agencies for REAL ID official purposes. 27 Card-based enforcement does not impact access to Federal facilities that do not require identification (for example, public areas of the Smithsonian museums). Card-based enforcement also does not impact public services that require identification for purposes other than an official purpose as defined by the Act and regulation (for example, applying for or receiving Federal benefits is not a REAL ID official purpose). However, in cases where a government function impacting the public does involve a REAL ID official purpose (for example, boarding a federally regulated commercial aircraft or providing a public service that necessitates members of the public accessing a Federal facility that requires proof of identity for entry), agencies should consider the extent to which an immediate transition to full enforcement would impact their ability to carry out that function. 27 See REAL ID Act of 2005 Implementation: An Interagency Security Committee Guide (2019), p. 4-7, available at https://www.cisa.gov/resources-tools/resources/isc-guide-real-id-act-2005-implementation (last visited October 9, 2024). DHS anticipates that agencies' consideration of all relevant factors will be informed by changes in the adoption rate leading up to the card-based enforcement deadline. Certain factors may be given more or less weight depending on the number of noncompliant DL/IDs agencies are likely to encounter on and after the deadline. For agencies that determine that beginning full card-based enforcement on May 7, 2025, would not pose significant risks after considering security, operational feasibility, public impact, and other relevant factors, this rule maintains the current regulatory default of an immediate transition to full enforcement. Agencies that determine that commencing full card-based enforcement on May 7, 2025, is not appropriate after considering the relevant factors, may utilize a phased approach. A phased approach would allow them to facilitate continued secure and orderly operations and minimize impacts to the public while implementing enforcement phases that lead to full enforcement. This flexibility allows these agencies to maintain operational efficiency; reduce security risks born from long lines, incidents, and distractions caused by additional identity verification procedures or turning away individuals who do not have acceptable identification; decrease potential public backlash to security personnel enforcing REAL ID; and limit potential negative impacts to the public. 2. Coordination of Phased Enforcement Plans With DHS Should an agency determine that phased enforcement is appropriate, DHS also recognizes that the individual agency is best positioned to structure its enforcement plan to account for its particular operational setting. The rule therefore allows agencies to develop individual phased enforcement plans best suited for specific contexts. Although this rule does not prescribe the form that phased enforcement plans must take in incrementally implementing enforcement of the requirements, DHS does provide some options that agencies may consider. 28 For example, agencies' plans may include an initial phase during which warning notices are issued and/or a phase involving progressive enforcement measures—such as a “three-strikes” system or other methods—that enable agencies to begin enforcement without immediately denying access to individuals with noncompliant identification on the card-based enforcement deadline. 28 More detailed discussion of these options is provided in section D. below. In order to ensure that agencies' enforcement plans appropriately advance the objectives of the REAL ID regulations and maintain consistent progress towards full enforcement, the plans must be coordinated with DHS. The REAL ID Act grants DHS authority to implement the Act's requirements. 29 Requiring agencies that make a determination to implement the REAL ID regulations through a phased enforcement plan to coordinate their plan with DHS ensures consistency, as appropriate. It also maintains DHS oversight of successful implementation of the Act and regulatory requirements. Agencies seeking to use a phased enforcement plan are required to coordinate with DHS through the TSA REAL ID Program Office. 30 29 49 U.S.C. 30301 note; 73 FR 5271. 30 On December 29, 2022, the Consolidated Appropriations Act, 2023 (Pub. L. 117-328), was signed into law, authorizing the transfer of the REAL ID Program from the DHS Office of Strategy, Policy, and Plans to TSA. On May 22, 2023, the Secretary of Homeland Security approved a delegation formally vesting in TSA the authority to manage, administer, and coordinate DHS actions necessary for implementation of the REAL ID Act. DHS strongly encourages agencies to make a determination of whether a phased enforcement plan is appropriate and, where appropriate, develop their plan in advance of the May 7, 2025, deadline. However, DHS recognizes that while agencies may seek to begin full enforcement on the deadline, they may encounter unanticipated challenges. Similarly, agencies that developed a phased enforcement plan may encounter or have unforeseen issues in implementing the plan they developed. In such cases, agencies may coordinate a new or modified phased enforcement plan with DHS after the enforcement deadline. Additional information regarding how agencies should coordinate with DHS will be provided on the DHS REAL ID web page. 31 31 https://www.dhs.gov/real-id. 3. Public Notice DHS acknowledges the potential for some confusion resulting from the possibility of agencies implementing phased enforcement plans that vary across agencies. The rule seeks to mitigate that potential confusion by (1) requiring agencies using a phased approach to make their plan publicly available on their web page, and (2) requiring DHS to post a list of agencies that have coordinated phased enforcement plans with DHS on the DHS REAL ID web page 32 to provide public notice of the agencies implementing phased approaches. Agencies should also clearly provide their policies for access control, including other acceptable forms of identification. 32 Id. 4. Two-Year Phased Enforcement Period Under the rule, any agency that chooses to implement card-based enforcement under a phased approach must fully enforce the card-based requirements no later than May 5, 2027. On and after that date, agencies may not accept noncompliant marked DL/IDs or legacy DL/IDs for official purposes. As mentioned above, DHS anticipates that shortly before, and as REAL ID card-based enforcement begins on May 7, 2025, individuals' urgency to obtain a compliant DL/ID will likely increase as they realize that they will need a compliant DL/ID when they seek to use their DL/ID for REAL ID official purposes. In States with low adoption rates, large numbers of individuals may rapidly seek to obtain REAL ID-compliant DL/IDs. This potential increase in demand may challenge the capacity of licensing jurisdictions and may create backlogs in issuance of REAL ID-compliant cards. The 2-year window during which agencies may implement enforcement in phases is designed, in part, to provide States additional time to meet increases in demand for REAL ID-compliant cards. Agencies that decide to use a phased enforcement plan may choose to implement plans that reach full enforcement in less than 2 years, but all phased plans must conclude, reaching full card-based enforcement, no later than May 5, 2027. DHS also considered setting the maximum phased enforcement period for other durations between at 1 and 5 years. DHS chose 2 years as the maximum period during which agencies may implement phased enforcement plans to balance delay in fully realizing the security benefits of REAL ID with allowing sufficient time for Federal agencies' phased enforcement plans to incentivize greater adoption rates, limit negative enforcement impacts (where appropriate), and provide States time to meet increased demand. DHS believes that a 1-year timeframe may not provide agencies sufficient flexibility to develop a phased enforcement plan with a long enough duration time to leverage the anticipated effects of phased enforcement, reflected in increased adoption rates. Many individuals may only seek to use their DL/ID for official purposes once or twice a year (for example, boarding a commercial flight to travel for a holiday or vacation). If agencies were limited to a 1-year phased enforcement period, they would not be able to design a plan that would account for individuals who learn of the need to obtain a REAL ID-compliant DL/ID towards the end of that 1-year period—possibly through a warning notice as part of an agency's phased enforcement plan—and who may not have sufficient time to obtain a compliant DL/ID before full enforcement begins. Additionally, if increased demand for compliant DL/IDs leading up to and right after the deadline results in backlogs at State Departments of Motor Vehicles (DMVs), 33 1 year may not be sufficient time for States to make any necessary adjustments to process potential backlogs. Although a 1-year phased enforcement period would provide a shorter delay in obtaining the full security benefits of REAL ID, 34 DHS believes it may not provide a long enough period for agencies to leverage the effects of phased enforcement as individuals and States both apprehend the need for action as a result of card-based enforcement and take the necessary actions. 33 Throughout this rule DHS uses “DMV” to generally refer to licensing jurisdictions' motor vehicle licensing agencies. 34 The regulatory evaluation for the Minimum Standards for Driver's Licenses and Identification Cards Acceptable by Federal Agencies for Official Purposes Final Rule identifies the primary benefit of REAL ID as improving security and lessening the vulnerability of Federal buildings, nuclear facilities, and aircraft to terrorist attacks. Department of Homeland Security, January 17, 2008, Regulatory Evaluation, Docket Number DHS-2006-0030. https://www.regulations.gov/document/DHS-2006-0030-10704. pgs. 129-130. DHS did not select 3, 4, or 5 years because DHS believes a maximum time period longer than 2 years would unduly delay the security benefits of REAL ID and is unlikely to provide the same incentive for individuals to prioritize obtaining a complaint DL/ID. DHS believes that 2 years after the card-based enforcement deadline strikes the appropriate balance and provides a sufficient amount of time for individuals to obtain and States to provide REAL ID-compliant DL/IDs to any eligible individual who seeks to obtain one. DHS believes that allowing more time for phased enforcement beyond 2 years is unlikely to offer a meaningful additional opportunity for individuals and States to take necessary action and could further delay the security benefits of REAL ID. Additionally, allowing for phased enforcement for more than 2 years may discourage individuals and States from prioritizing necessary action. 5. Acceptance of Noncompliant Marked DL/IDs Finally, to avoid any confusion about the ability of Federal agencies to continue to accept noncompliant marked DL/IDs issued under § 37.71, the rule clarifies that Federal agencies may continue to accept these licenses past May 7, 2025, if they are doing so pursuant to an enforcement plan coordinated with DHS. Although some agencies may accept noncompliant marked DL/IDs for official purposes as part of a phased enforcement plan, other agencies may choose not to accept noncompliant marked DL/IDs as part of their phased enforcement plan; may determine that phased enforcement is not appropriate; or currently do not accept noncompliant marked DL/IDs for official purposes. 35 Individuals who need to visit a Federal facility should check in advance whether the agency requires identification for access purposes and, if they do, review the agency's access control policies. 35 For example, the U.S. Department of Defense (DoD) recently finalized an update to its DoD-Wide installation security policy and is in the process of no longer accepting noncompliant marked cards across all of its facilities and installations. C. Maintaining the May 7, 2025, Card-Based Enforcement Deadline During the development of this rule, DHS also considered further extending the REAL ID card-based enforcement deadline to allow for more time for the adoption rate to increase. However, based on DHS' observation of public behavior following prior extensions, DHS has concluded that many individuals will continue to delay obtaining a REAL ID in part due to a perceived lack of need. DHS believes that maintaining the deadline of May 7, 2025, while providing agencies the flexibility to implement the requirements through a phased enforcement plan where appropriate, will allow for a faster and smoother transition to full card-based enforcement than another extension of the deadline. DHS prefers this rule's approach rather than an extension for several reasons. By maintaining the current deadline, agencies that do not determine that phased enforcement is appropriate will immediately transition to full card-based enforcement on May 7, 2025. This allows the security benefits of REAL ID to be fully realized in contexts where full enforcement is unlikely to create other security risks, interfere with operational feasibility, or disrupt public services. If DHS had extended the deadline, agencies that could have immediately transitioned to full enforcement on May 7, 2025, would likely have waited until the new deadline, delaying security benefits that were otherwise available. DHS expects that a significant number of agencies will begin full enforcement on the deadline because doing so is appropriate within their operational context. Further, DHS believes that this rulemaking's approach is likely to have a positive impact on the REAL ID adoption rate, while an extension would not have incentivized an increase in demand for REAL ID-compliant DL/IDs. Since the most recent extension in March 2023, DHS has observed the rate of growth in adoption of compliant DL/IDs remains very low (0.56 percent). 36 Because of the history of extensions related to REAL ID enforcement, DHS expects that there is some confusion, lack of awareness, and apathy associated with the May 7, 2025, deadline. Given this prior history, DHS believes that the public may continue to expect that additional extensions are likely and not feel urgency to obtain a REAL ID-compliant DL/ID. As a result, DHS believes that an extension of the card-based enforcement date would not have been an effective means of incentivizing changed behavior. 36 Supra note 17. Conversely, DHS expects that allowing agencies to enforce the May 7, 2025, deadline through a phased approach will incentivize increased demand for REAL ID-compliant DL/IDs in at least two ways. First, it will incentivize increased adoption rates as the deadline approaches. In part due to concerns related to low adoption rates, DHS has previously extended the card-based deadline several months before the enforcement date, limiting the effect of urgency to obtain a compliant DL/ID related to the deadline. As the May 7, 2025, deadline approaches, and DHS does not issue an extension, DHS expects individuals that were otherwise relying on another extension will obtain a compliant DL/ID. This rule demonstrates that DHS is planning for enforcement to begin on May 7, 2025, and not extending the deadline. DHS expects that as this becomes apparent to the public, more individuals will prioritize obtaining a REAL ID. Second, DHS expects individuals who may not be aware of the deadline to be incentivized to obtain a compliant DL/ID when they experience the consequences of enforcement. During the phased enforcement period, individuals will experience varying levels of consequences including warning notices and progressive enforcement (as part of a phased enforcement plan), or full enforcement (where agencies transition to full enforcement on the deadline). These consequences will incentivize individuals who experience them to obtain a REAL ID-compliant DL/ID. Further, because the individuals who most frequently use their DL/ID for REAL ID purposes will be the most likely to experience consequences, DHS expects that phased enforcement will especially incentivize increased adoption amongst this population. A phased approach will in turn lessen the likelihood of disruption when agencies transition to full enforcement because the individuals who most often use DL/IDs for REAL ID official purposes will have been motivated to obtain a REAL ID during the phased enforcement period. Additionally, individuals may share their experience with personal contacts, potentially incentivizing others to obtain a compliant DL/ID. DHS expects that as awareness that REAL ID is being enforced becomes widespread, individuals who intend to use their DL/ID for official purposes will be motivated to obtain a REAL ID-compliant DL/ID. D. Phased Enforcement Guidance Under this rule, agencies have broad discretion to determine the structure of their phased enforcement plan so long as they comply with the requirements in the rule to: (1) Make a determination that a phased enforcement plan is appropriate in consideration of relevant factors including security, operational feasibility, and public impact; (2) Coordinate the phased enforcement plan with DHS; (3) Make the phased enforcement plan publicly available on the agency's web page; and (4) Achieve full enforcement of the card-based REAL ID requirements no later than May 5, 2027. The required coordination with DHS will provide DHS with visibility on Government-wide implementation of REAL ID. It will also allow DHS to serve in a liaison role between agencies where there may be overlapping equities. During the coordination process, DHS will seek to provide agencies guidance on how best to use their phased plan to transition to full enforcement. DHS may offer feedback or suggestions related to an agency's plan during this process. However, as long as agencies comply with the requirements in this rule, they have broad discretion as to how they structure their plans. As guidance to Federal agencies and to promote consistency, DHS provides the below examples of enforcement models as options agencies may consider if they determine that a phased approach to REAL ID card-based enforcement on May 7, 2025, is appropriate. DHS anticipates that informed compliance would be the enforcement model best suited to most agencies that decide to implement through a phased enforcement plan. Federal agencies that do not make a determination that phased enforcement is appropriate and do not coordinate a phased enforcement plan with DHS must begin full card-based enforcement on May 7, 2025. Under full card-based enforcement, Federal agencies may only accept a State-issued DL/ID for official purposes if that DL/ID is issued in accordance with REAL ID requirements by a REAL ID-compliant State. Informed Compliance Model. Under an informed compliance model, agencies would provide written and verbal notice to any individual that seeks to use a noncompliant DL/ID for an official purpose on or after the card-based enforcement date of May 7, 2025. Individuals would then be permitted to continue the process for accessing a Federal facility or boarding a commercial aircraft. The written notice agencies provide should inform the individual that their DL/ID is noncompliant with REAL ID requirements, that they should contact their DMV for further information regarding obtaining a REAL ID-compliant DL/ID, and what to expect if the individual presents a noncompliant DL/ID and no other acceptable form of identification in the future. An accompanying verbal notice should briefly summarize the written notification and, at a minimum, inform the individual they are not in compliance with REAL ID requirements and direct the individual to reference the written notice. Under this model, agencies would not maintain a record of individuals who have presented a noncompliant DL/ID and have been issued a notice. Individuals who present an alternate acceptable form of identification (for example, a passport at the TSA checkpoint) would not receive a noncompliance notification. Under this model, agencies would continue to employ existing security and identity verification processes to confirm the authenticity and validity of the noncompliant DL/ID presented. 37 37 As an example, the NPRM discussed DHS' use of an Informed Compliance model to enforce the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users. See 89 FR 74145. Informed Compliance with Limits. Under an Informed Compliance with Limits model, agencies would limit the number of times an individual may present a noncompliant DL/ID for an official purpose. Once an individual exceeds the prescribed number of allowable attempts, they would be denied the ability to use their noncompliant DL/ID for the REAL ID official purpose ( e.g., use the noncompliant DL/ID for purposes of accessing a Federal facility) if they have no other acceptable form of identification. Employing this model would likely create significant requirements and obligations for the agency. Specifically: 1. The agency would collect personally identifiable information (PII), including name, DL/ID State, and DL/ID number, as well as other information necessary to reliably identify the individual. This PII would need to be collected, maintained, and used in accordance with all applicable Federal guidelines and policy requirements related to collection of PII. This would likely require agencies to obtain an Office of Management and Budget (OMB)-approved Paperwork Reduction Act (PRA) information collection and prepare a Privacy Threshold Analysis, Privacy Impact Assessment, System of Records Notice, and other documentation for collection, storage, and use of PII. 2. The individual would attest that the PII provided is theirs and accurate. 3. The agency would need to be able to demonstrate that they delivered a notification of noncompliance to the individual ( i.e., record of transmittal). 4. The agency may wish to obtain the individual's acknowledgement of receipt of the noncompliance notification at the time the individual presents the noncompliant DL/ID. 5. The agency would need to develop a system to track the number of instances the individual presented a noncompliant DL/ID and no other acceptable ID. 6. The agency would need to determine a limit on the number of times an individual may be authorized access after presenting a noncompliant DL/ID and no other acceptable form of identification. 7. The agency would need to define an appropriate period of time (in days/weeks) during which the individual may continue to use a noncompliant DL/ID for purposes of accessing the agency, after which the applicant would be given another notification of noncompliance if they again presented a noncompliant DL/ID (in other words, how long individuals may continue to use their noncompliant DL/ID on the same “strike” or “warning” before incurring a subsequent “strike” or “warning”). Agencies would need to choose an appropriate time period during which individuals would continue to use their noncompliant DL/ID without it being treated as an additional instance of noncompliance (“strike” or “warning”). Agencies should choose a time period appropriate to their operations. For agencies where the identity verification for official purposes is rare or isolated, it may be appropriate to treat each time an individual presents a noncompliant DL/ID as an instance of noncompliance. However, DHS believes that in certain cases individuals may need to use their DL/ID for a REAL ID official purpose for multiple instances within a short period of time ( e.g., boarding a return flight from a destination or returning to a Federal facility to follow-up on the purpose of the initial visit). Individuals may not be able to obtain a REAL ID in between such related instances, so in these cases agencies may choose a time period that allows for multiple uses of a noncompliant DL/ID as part of the same instance of noncompliance. After the allotted time period expires, the presentation of a noncompliant DL/ID would be treated as another instance of noncompliance. Agencies employing an Informed Compliance with Limitations model should provide individuals who present a noncompliant DL/ID with specific notice whenever an instance is being counted towards that individual's limit. The notice should reference the agency's overall policy and how the particular instance would affect the individual in the future. Agencies may choose to adopt different nomenclature for initial and subsequent instances of an individual presenting a noncompliant DL/ID. This may include language or consequences of subsequent notifications under this that progress in seriousness. For example, an agency may choose to permit access on the first two instances of noncompliance and deny access on the third (and any subsequent instance). Upon the third instance, the individual would be issued a “final” notification that their State-issued DL/ID is noncompliant and can no longer be accepted by that agency for the REAL ID official purpose. The Federal agency would not accept the individuals noncompliant DL/ID at that time and on all future instances unless the individual obtains a REAL ID or presents an alternative, acceptable form of identification. DHS acknowledges that an Informed Compliance with Limitations enforcement plan would likely demand significant agency resources. DHS expects many agencies to begin full enforcement on the May 7, 2025, deadline. Of the agencies that do determine a phased approach is appropriate, DHS expects most will use a simple plan that provides a time-limited warning period ( i.e., “Informed Compliance”). Given the resources required, including the need for secure systems, DHS expects very few agencies to choose an enforcement plan that tracks individual instances of noncompliance. Additional considerations. Agencies may determine to implement a phased approach that employs only one of these models followed by full enforcement. For example, an agency may choose to begin enforcement with an Informed Compliance Phase or Informed Compliance with Limits Phase for a set period of time ( e.g., 3 months, 6 months, 1 year) followed by a transition to full enforcement at the end of that period. Alternatively, agencies may develop a plan that combines both models before transitioning to full enforcement. For example, an agency may begin enforcement with an initial Informed Compliance Phase for a set period of time, followed by an Informed Compliance with Limits Phase for an additional period of time, before beginning full enforcement. Agencies have the flexibility to determine the model(s) and timing that best suit their operational environment. Although DHS believes the models discussed above are likely to be the most common and effective, they are not exclusive. Agencies may develop plans based on other models. However, all phased enforcement plans, whether based on the above models or a different model must be coordinated with DHS and must conclude, and agencies must fully enforce REAL ID card-based requirements, no later than May 5, 2027. For agencies that make a determination that phased enforcement is appropriate, the same factors that they considered to make that determination should inform their determination of how to structure their plan. Finally, although REAL ID adoption rates should inform agencies when developing their enforcement plans, agencies' plans should be consistent across all States and territories. In other words, agencies should have a consistent national policy and individuals should not be subject to different consequences based on the adoption rate of a particular jurisdiction. To reduce the potential for confusion, ensure fair and equitable treatment of residents of all States, and ensure operational consistency, agencies that have operations or facilities spanning multiple States and territories should have one plan for all their facilities. Agencies' plans may make distinctions based on the types of facilities they operate ( e.g., agencies may wish to begin full enforcement at certain types of facilities but use a phased approach at another type of facility) as long as the same policies apply to the same types of facilities nationwide and treat all DL/ID holders similarly. For example, agencies may choose to begin full enforcement at their headquarters facility while implementing a phased approach at field offices where the public more frequently seeks to use DL/IDs for official purposes, but (in this example) the same phased enforcement policy should apply to all field offices no matter where they are located. Agencies should provide information regarding their plans on their website and take other appropriate measures to inform the public and provide notice regarding their plan. DHS acknowledges that some agencies may maintain offices in or conduct operations out of leased facilities or multi-tenant facilities where the agency does not have direct control over the access control policies of the facility. Agencies leasing space in their facilities to other agencies and lead tenants as part of facility security committees determining physical security polices for multi-tenant facilities should develop plans that take into account the operations of tenant agencies and potential public impact associated with those operations when developing phased enforcement plans. As previously discussed, agencies may make distinctions based on the types of facilities they operate. Depending on the context, it may be appropriate for an agency developing a phased enforcement plan to draw a distinction between facilities that are shared by with agencies and facilities that are used solely by the agency developing the plan. IV. Discussion of Comments DHS published the NPRM on September 12, 2024, 38 and the deadline for public comments was October 15, 2024. 39 During the 30-day comment period, DHS received over 11,000 comments on the NPRM. DHS carefully considered every comment received as part of the official record. DHS also received 103 comments submitted after the comment period closed. Although DHS did not consider comments submitted after the comment period closed, DHS determined that these comments were substantively similar to other comments received within the comment period and are addressed by DHS' response to those comments. 38 89 FR 74137. 39 The NPRM provided for a comment period of 30 days. The Regulations.gov system was unavailable on October 12th and 13th due to a planned outage, so the comment period closed on October 15th to provide the public with the full 30 days to comment. DHS received several comments suggesting that the 30 days provided for comment was not long enough. DHS considered these comments and determined not to extend the comment period for the NPRM. As discussed above, under the REAL ID regulations, Federal agencies may only accept compliant State-issued DL/IDs for official purposes beginning on May 7, 2025, which at the time of publication, is less than 6 months away. Given the importance of providing clarity for Federal agencies and to the public on agencies' authority to implement card-based enforcement through a phased approach, extending the comment period beyond 30 days would delay issuance of this final rule, thereby depriving Federal agencies certainty and valuable time as they plan to begin card-based enforcement. Further, suggestions that a longer comment period would be appropriate did not articulate any particular reason why the 30-day comment period was insufficient, and instead provided generalized statements that additional time would allow for greater public awareness. Moreover, the regulatory changes made by this rule are not overly complex, and DHS believes that 30 days provided sufficient time for the public to provide meaningful comments. A. General Opposition to REAL ID Comments: Many commenters expressed general opposition to the requirements of the REAL ID Act and implementing regulations. Several commenters asserted that the REAL ID Act and implementing regulations are generally unconstitutional, including under the 1st (individual freedoms), 4th (search and seizure), 5th (criminal procedures), 6th (criminal procedures), 7th (jury trial), 9th (rights not enumerated), 10th (rights reserved to states or people), and 14th (due process and equal protection) amendments to the U.S. Constitution. In making these claims, commenters asserted that the REAL ID Act and regulations violate privacy or put personal information at risk, including by establishing a national ID or social credit reporting system; mandating a digital ID, collecting biometrics unlawfully; intruding on citizens privacy and facilitating government surveillance; creating a vast collection of sensitive personal data that makes citizens more vulnerable to identity theft; or allowing for sharing of individuals' information with foreign governments and international organizations. Other comments asserted that the REAL ID Act and regulations interfere with a constitutionally protected right to interstate travel. Some commenters asserted that the REAL ID Act and implementing regulations are unauthorized, including claims that they exceed the Federal government's statutory jurisdiction; create a system whereby the Secretary of DHS has unilateral authority to add new official purposes and curtail constitutional rights; waste taxpayer money; or constitute Government overreach. Regarding the impact on States, commenters asserted that the REAL ID Act and regulations are inconsistent with State authority, including by encroaching on state sovereignty; undermining principles of federalism; imposing significant costs on States, which would require increased Federal funding and technical support; and imposing these costs as an unfunded mandate on states. Commenters also state that the REAL ID Act and regulations negatively affect individuals by burdening certain populations unjustly, including non-citizens, who may not have sufficient documentation to obtain a REAL ID, which would thereby limit their access to essential services and travel; by constituting a significant financial burden to obtain a REAL ID-compliant DL/ID; or by imposing an undue burden on individuals that have changed their name (for example, in relation to marriage or divorce). Additionally, commenters suggested that indefinite phased enforcement be used to nullify the REAL ID act and regulations, or that the phased enforcement rule be revised to instead provide an individual opt-out mechanism from the REAL ID requirements. Finally, commenters assert that the REAL ID Act and implementing regulations are outdated, do not actually provide increased security benefits, and will not make the nation safer. On a related issue, several commenters raised concerns that DHS takes for granted that DHS has certified all 56 licensing jurisdictions when, in the commenter's view, all DHS certifications erroneously determine the states to comply; and that the rulemaking will result in inconsistent DL/ID issuance procedures across the states. DHS response: DHS appreciates the many comments received regarding the REAL ID Act and regulations. Although these concerns are sometimes represented as directed at the current rulemaking, DHS did not propose substantive amendments to the REAL ID requirements, and comments expressing opposition to those underlying requirements or their implementation by current State implemented REAL ID issuance processes are outside of the scope of this rulemaking. Congress passed the REAL ID Act in 2005, enacting the 9/11 Commission's recommendation that the Federal government set minimum standards for the issuance of sources of identification, such as drivers' licenses, and charged DHS with implementing the statutory requirements. 40 DHS went through notice and comment rulemaking and published a final rule on January 29, 2008, implementing the REAL ID Act's requirements. In 2020, Congress reaffirmed its commitment to REAL ID by passing the REAL ID Modernization Act, which updated certain provisions of the original statutory language. 41 The Phased Enforcement NPRM did not propose changes to the existing regulatory requirements that provide the substantive standards for REAL ID issuance. Under the REAL ID regulations card-based enforcement begins on May 7, 2025. This rule only modifies provisions related to the enforcement deadline to provide Federal agencies with the flexibility to implement card-based enforcement through a phased enforcement plan where appropriate. This final rule does not alter any of the substantive requirements of the REAL ID regulations and only amends the provisions related to the deadline for card-based enforcement. As DHS did not propose substantive amendments to REAL ID requirements, comments expressing opposition to those underlying requirements are outside the scope of this rulemaking. 40 49 U.S.C. 30301 note. 41 Title X of Division U of the Consolidated Appropriations Act, 2021, Public Law 116-260, 134 Stat. 2304. B. Legal Authority Comments: Some commenters stated that the REAL ID Act does not provide authority for this rulemaking. Another commenter expressed the view that the flexibility provided by this rule constitutes an improper delegation of authority to DHS components and other agencies and exceeds DHS' authority under the REAL ID Act. The commenter suggests that, through this rule, DHS is redelegating its regulatory authority to other agencies. The commenter noted that instead of setting standards for the acceptance of IDs, this rule allows agencies to make decentralized and nonstandard determinations regarding the acceptance or rejection of noncompliant DL/IDs. Additionally, the commenter stated that agencies' phased enforcement plans, themselves, would constitute Federal regulations. DHS response: DHS disagrees that the REAL ID Act does not provide authority for this rulemaking, as the statute explicitly authorizes DHS to promulgate regulations to implement the Act's requirements. Section 205 of the REAL ID Act provides that “[a]ll authority to issue regulations . . . shall be carried out by the Secretary.” 42 In issuing this rule, DHS is exercising its rulemaking authority to implement the REAL ID requirements in consideration of Federal agencies' authority to make agency-specific decisions about enforcement actions affecting individuals presenting DL/IDs which are not compliant with the READ ID Act and regulations. 43 Under the REAL ID Act and regulations, all agencies are still required to begin card-based enforcement on May 7, 2025, but the rule provides a formal structure under which agencies may flexibly exercise their existing enforcement authority. The rule clarifies and reinforces that the general principles underpinning agencies' enforcement authority apply to the prohibition on Federal agency “acceptance” of noncompliant DL/IDs. 42 Sec. 205(a) of the REAL ID Act. 43 49 U.S.C. 30301 note, section 202(a)(1). DHS further disagrees with the position that this rule inappropriately delegates rulemaking authority to other agencies. This rule does not provide agencies with any authority or discretion to modify the substantive requirements of the REAL ID regulations. Agencies' phased enforcement plans cannot alter the standards that govern whether a DL/ID is REAL ID-compliant. DHS also disagrees with the notion that REAL ID authority was provided solely to DHS, and that agencies' phased enforcement plans constitute regulations. Although the REAL ID Act generally granted DHS authority to implement the Act's provisions, Congress vested the authority to enforce acceptance of REAL ID-compliant DL/IDs with each individual agency. 44 This rule acknowledges the statutory authority of other agencies to enforce acceptance of REAL ID-compliant DL/IDs in matters under their purview. The rule enhances agencies' existing enforcement authority by explicitly providing temporary, limited flexibility for agencies to begin card-based enforcement in a manner that takes into account relevant factors, allowing agencies to more smoothly transition to full card-based enforcement. The rule also provides DHS oversight of phased enforcement plans by requiring agencies to coordinate such plans with DHS, which mitigates the commenter's concern by allowing DHS to ensure that plans advance the objectives of the REAL ID regulations and maintain consistent progress towards full enforcement and to ensure consistency, as appropriate. 44 49 U.S.C. 30301 note, section 202(a)(1), “Beginning 3 years after the date of the enactment of this division, a Federal agency may not accept, for any official purpose, a driver's license or identification card issued by a State to any person unless the State is meeting the requirements of this section” (emphasis added). Comments: One commenter stated that this rule purports to impose a new ID requirement for airline passengers because it implies that passengers who do not present a REAL ID-compliant DL/ID or acceptable alternative would not be able to board federally regulated commercial aircraft. DHS response: This rule only relates to Federal agency, including TSA, acceptance of State-issued DL/IDs for defined REAL ID official purposes. Boarding federally regulated commercial aircraft is an official purpose under the REAL ID Act and regulations. Upon full card-based enforcement, TSA may not accept noncompliant State-issued DL/IDs at security screening checkpoints for the purpose of boarding federally regulated commercial aircraft. 45 This rule does not otherwise effect TSA's policies related to acceptable forms of identification and identity verification. 45 6 CFR 37.5(b). C. General Support for the Rulemaking Comments: Several commenters expressed general support for the proposed rule. Commenters wrote that they agreed that a phased roll out was a necessary step to begin enforcement and that this approach is a blend of practicality and foresight that benefits everyone. One commenter noted that the rule balances the purpose of the REAL ID Act and regulations with practical considerations. The commenter stated that by allowing agencies to gradually implement enforcement, the rule may alleviate potential disruptions at airports and Federal facilities. Other commenters noted that allowing agencies to use a phased enforcement plan is a practical and thoughtful approach that will ensure security while giving agencies the opportunity to address challenges associated with enforcement. Another commenter shared that this approach allows some agencies to quickly transition to full enforcement where they do not anticipate challenges while allowing other agencies flexibility to make necessary plans to enforce the requirements efficiently. DHS response: DHS agrees with these comments and believes that this rule provides appropriate flexibility that will enable Federal agencies to help ease the transition to full implementation of the card-based enforcement provisions of the REAL ID regulations. DHS believes this rule appropriately balances the security benefits that card-based enforcement provides with the negative effects that some Federal agencies may experience if they were to immediately transition to full enforcement on May 7, 2025. D. Immediate Transition to Full Enforcement Comments: Several commenters expressed opposition to agencies using a phased approach and any delay to full card-based enforcement. Commenters pointed to a number of reasons supporting the position that full enforcement should begin on May 7, 2025, including: that the public has had ample time to obtain REAL ID-compliant DL/IDs; that agencies have had twenty years to determine how to enforce REAL ID; and that allowing phased enforcement will serve as a disincentive to adoption if the public delays obtaining a REAL ID because they either (1) expect agencies to use a phased approach and not enforce immediately or (2) simply perceive this as an extension of the deadline; and that many individuals can provide alternative, acceptable identification, such as passports to reduce operational impacts. Commenters also noted that REAL ID requirements help protect the aviation transportation system and that phased enforcement would delay the security benefits of card-based enforcement. One commenter stated DHS' estimate that only 4 percent of agencies may determine that a phased enforcement plan is appropriate implies that the rule is unnecessary. Yet another commenter suggested that in lieu of a regulation allowing phased enforcement, DHS should conduct a public awareness campaign to inform the public about the card-based enforcement deadline and to understand to what degree individuals are aware of REAL ID. DHS response: DHS considered not issuing this rule and allowing card-based enforcement to begin across all Federal agencies as an alternative and agrees with the comments about the important security benefits that REAL ID provides. However, DHS believes that providing agencies flexibility to consider relevant factors and make a determination to, in some cases, begin implementation through phased enforcement will facilitate a smoother transition to full card-based enforcement and mitigate potential risks associated with an immediate transition across all agencies. Given the current number of DL/IDs that are non-compliant, DHS anticipates that a significant number of individuals seeking to use their DL/ID for a REAL ID official purpose on and after May 7, 2025, may not have a REAL ID-compliant DL/ID. DHS delayed implementation of the REAL ID deadline for a number of years to allow for more individuals to obtain REAL-ID compliant DL/ID. Despite the Federal government's years of preparation for REAL ID, the adoption rate remains low and instances of individuals seeking to use a noncompliant DL/ID for a defined official purpose may occur on a large scale, raising concerns related to security, agency operations, and potential impact to the public. In contexts where agency operations involve large numbers of individuals presenting DL/IDs for REAL ID official purposes or where agencies have limited capacity to conduct identity verification processes where REAL ID is required, this may result in longer lines, general delays, confusion, and frustration. Disruptions to agency operations caused by large numbers of individuals attempting to use noncompliant DL/IDs are also likely to have broader effects and impact individuals who bring a valid form of identification. Such disruptions pose potential security risks at access points to TSA security checkpoints or other Federal facilities. DHS believes that the potential risks an immediate transition to full enforcement would cause for some agencies will be mitigated by the flexibility provided by phased enforcement. In addition, some commenters may have misunderstood this rule as an extension of the card-based deadline until May 5, 2027. As explained above, 46 this rule is not an extension of the deadline. The rule maintains an immediate transition to full enforcement on May 7, 2025, for those agencies that do not determine that a phased approach to enforcement is appropriate. Recognizing the security benefits provided by REAL ID, this rule provides an enforcement approach that allows agencies to realize security gains in contexts where a swift transition to full enforcement poses little risk, while reducing the risks in contexts where large numbers of individuals seeking to use noncompliant DL/IDs raises serious concerns. Under this rule, agencies must specifically consider security when determining whether a phased enforcement plan is appropriate. DHS anticipates that for many agencies, phased enforcement will not be appropriate where the benefits of beginning full card-based enforcement on May 7, 2025, outweigh the other factors and benefits of phased enforcement. A phased approach will be more likely for those agencies where potential risks related to security, operational feasibility, and public impact strongly weigh in favor of and support implementing a phased enforcement plan. In this way, the rule appropriately balances obtaining the security benefits of REAL ID with the need to mitigate potential risks. 46 Supra III.C. DHS also does not agree that allowing agencies to enforce through a phased approach will disincentivize the public in obtaining a REAL ID-compliant DL/ID. Rather, implementation of this rule and enforcing the regulatory deadline beginning May 7, 2025, will incentivize the public to obtain compliant DL/IDs while considering the need of some agencies to enforce through a phased approach to address security and public interest concerns. Beginning May 7, 2025, DHS anticipates that many agencies will begin full enforcement, and not accept non-compliant DL/ID. Those agencies that choose to implement the regulatory deadline using a phased approach will decide the timeline and conditions appropriate for their agency to implement within the 2-year period. DHS expects the public to see the tangible results of attempting to use a non-compliant ID/ID for official purposes, either directly, through media coverage, or via DHS and agency public messaging, and decide to obtain a compliant DL/ID. DHS' estimate that only 4 percent of agencies may ultimately determine that a phased enforcement plan is appropriate does not indicate that the rule is unnecessary. The frequency and volume of Federal agencies' interactions with the public that may require presentation of a DL/ID for a REAL ID official purpose varies significantly. Based on its stakeholder engagements with Federal agencies, DHS believes that the vast majority of agencies do not handle a significant volume of individuals presenting DL/IDs for an official purpose under the REAL ID Act and regulation. However, other agencies (for example, TSA) encounter a much larger volume of individuals on a daily basis that must present an identification document for a REAL ID official purpose. Although DHS estimates that only 4 percent of agencies will make a determination to use a phased enforcement plan, this rule acknowledges that each individual agency is in the best position to consider the relevant factors and make a determination based on the agency's own mission and operational context. DHS believes it is important for all agencies to have the flexibility provided by this rule as they prepare to begin card-based enforcement on May 7, 2025. Finally, DHS also appreciates the value of increasing public awareness of REAL ID requirements. TSA has undertaken efforts to conduct surveys on the public's awareness of REAL ID and is engaged in public awareness campaigns through multiple media outlets. Given the modest changes to the REAL ID adoption rate over the past year notwithstanding DHS' significant public outreach, DHS does not believe a public awareness campaign on its own would sufficiently increase the adoption rate of compliant DL/IDs by May 7, 2025, to effectively mitigate the risks some agencies may face if they immediately transitioned to full enforcement. E. Extension of the Card-Based Enforcement Deadline Comments: Some commenters suggested that rather than beginning card-based enforcement on May 7, 2025, DHS should issue an extension of the card-based enforcement deadline. Commenters wrote that the deadline should be extended because of low rates of adoption of REAL ID-compliant DL/IDs, the impact of the COVID-19 pandemic on States' ability to issue REAL ID-compliant DL/IDs, and a lack of public awareness. One commenter wrote that an extension of 2 or 3 years would be appropriate. Other commenters suggested that REAL ID enforcement should be extended for 5 years, 7 years, 10 years or more. Some commenters stated that individuals had encountered challenges in obtaining a REAL ID due to complexity in meeting eligibility requirements or unequal access to DMVs due to physical distance from DMV locations, work schedules, and lack of transportation. Another commenter stated that REAL ID enforcement should not begin until the Federal government or State governments provide funding such that the cost of obtaining a REAL ID-complaint DL/ID is not passed on to individuals. DHS response: DHS considered an extension to the card-based enforcement deadline but chose the approach provided by this rule for several reasons. As discussed above, 47 DHS believes that maintaining the deadline of May 7, 2025, will continue to encourage REAL ID adoption whereas an extension of the deadline would reduce adoption incentives. Maintaining the deadline while providing agencies the flexibility of phased enforcement where appropriate will allow for a faster and smoother transition to full card-based enforcement than another extension of the deadline. 47 Supra III.C. This approach maintains the current deadline, facilitating an immediate transition to full enforcement for agencies that do not determine phased enforcement is appropriate. In this way, the security benefits of REAL ID can be fully realized in contexts where full enforcement poses little risk of creating other security risks, interfering with operational feasibility, or disrupting public services. Further, DHS believes that this approach will encourage REAL ID adoption by maintaining the urgency to obtain a compliant DL/ID prior to the deadline and after the deadline, when individuals experience the consequences of card-based enforcement. As individuals learn that their noncompliant DL/ID can no longer be used for defined official purposes, they will be incentivized to obtain a REAL ID-compliant DL/ID. DHS appreciates concerns raised that an extension is necessary due to the current REAL ID adoption rate and the impact of COVID-19 to State's ability to issue REAL ID-compliant IDs. DHS has previously issued a number of extensions to account for slow growth in the REAL ID adoption rate, as well as COVID-19 impact, however, even given these prior extensions the rate of REAL ID issuance remains low. To increase adoption and realize the benefits of the REAL ID Act, the REAL ID deadline must be enforced. DHS believes that maintaining the enforcement date along with measures encouraging adoption as part of phase enforcement plans will help increase adoption rates thereby providing the security benefits of REAL ID while also addressing concerns about low adoption rates and State's ability to issue REAL ID-compliant IDs. Specifically, DHS recognizes that many individuals still do not have a compliant DL/ID, and beginning full enforcement on May 7, 2025, may not be practical for all Federal agencies. As such, the rule allows for agencies to determine, after considering relevant factors including security, operational feasibility, and public impact that they should implement the deadline through a phase approach. DHS does not agree that the date should be extended due to the lack of public awareness. DHS, in close coordination with States, airlines, airports, and other industry partners, has messaged the importance of obtaining a REAL ID-compliant DL/ID for a number of years. DHS believes that continued messaging alone will not result in a substantial increase in adoption rates. DHS believes that beginning enforcement, with the flexibility phased enforcement provides, will increase public awareness and increase REAL ID adoption rates more quickly than an extension of the deadline. DHS recognizes some individuals have encountered challenges in obtaining a REAL ID-compliant DL/ID due to an inability to meet eligibility requirements. DHS recommends that individuals contact their State licensing agency directly to determine if they are able to meet issuance requirements. In addition, many agencies allow for individuals to provide other acceptable forms of identification or allow individuals to proceed using alternative access control procedures. DHS recommends that individuals without a REAL ID-compliant ID contact the Federal agency in question to determine that agency's unique access control requirements. DHS also does not agree that the deadline should be extended because of challenges that individuals may face in obtaining a REAL ID-compliant DL/ID due to unequal access to DMVs. DHS recognizes that some individuals may have a more difficult time traveling to a DMV to obtain a REAL ID-compliant DL/ID than others. However, to realize the security benefits of REAL ID, DHS believes that beginning card-based enforcement on May 7, 2025, is appropriate and that individuals will have had sufficient time to obtain a REAL ID-compliant DL/ID before that date. To the extent agencies implement card-based enforcement through phased enforcement plans, this rule may provide additional time after the deadline for individuals to obtain REAL ID-compliant DL/IDs. Finally, DHS disagrees with the comment that DHS should delay card-based enforcement until Federal or State funding reduces the costs of obtaining a REAL ID compliant-DL/ID. Congress passed the REAL ID Act in 2005 and DHS issued a final rule implementing the Act's requirements in 2008. The Act and regulations provide for the statutory and regulatory framework for REAL ID. Under this framework, neither Congress nor DHS set parameters on the cost to individuals to obtain a REAL ID-compliant DL/ID. Therefore, DHS believes enforcement of REAL ID requirements should not be tied to the cost of obtaining a REAL ID-compliant DL/ID. Comment: One commenter suggested extending the deadline because Washington state does not issue REAL ID DL/IDs. DHS response: The State of Washington issues Enhanced Driver's Licenses (EDLs), which are designated as acceptable border-crossing documents by DHS under the Western Hemisphere Travel Initiative and are an acceptable form of identification for REAL ID official Federal purposes such as accessing a Federal facility or boarding a commercial aircraft. Michigan, Minnesota, New York, Vermont, and Washington are the only States that currently issue EDLs. For more information on EDLs, please visit the DHS website. 48 48 https://www.dhs.gov/enhanced-drivers-licenses-what-are-they. F. Confusion Associated With Phased Enforcement Generally Comments: Multiple commenters stated that the REAL ID requirements, delays, and shifting deadlines were already confusing, and that a phased approach will only add more confusion and complexity. Some commenters noted that the proposed rule could cause confusion through inconsistent enforcement timelines across Federal agencies. Another commenter noted that DHS did not prescribe the form that agencies' plans must take, claiming it would cause unspecified harm, which DHS assumes refers to confusion related to inconsistent enforcement plans across agencies. Other commenters also expressed concerns over public awareness of the proposed rule. These commenters suggested that a lack of public awareness could impede the effectiveness of the rule in encouraging REAL ID adoption, and result in demand surges at DMVs at the end of the phased enforcement period. There were also comments about public awareness of the REAL ID requirements and enforcement plans. Specifically, some commenters expressed concerns that people who do not fly often may not see postings by TSA and may not be aware of REAL ID requirements. Others who supported the rule emphasized the importance of an expansive public campaign. DHS response: DHS appreciates that some commenters are concerned that REAL ID messaging, to date, has been confusing, and that the phased implementation plans allowed through this rule could add to that confusion. To mitigate potential confusion regarding the REAL ID dates changes in the regulation, DHS has worked closely with States, industry and media partners to ensure the public was aware of the REAL ID extensions. DHS will continue its current messaging that the REAL ID deadline will not be extended past May 7, 2025, and that individuals should obtain a REAL ID-compliant ID, or other acceptable form of identification, as soon as possible. To ensure public visibility and reduce confusion regarding individual enforcement plans, agencies that implement card-based enforcement using a phased approach must make their plan publicly available on their web page. DHS must also make publicly available a list of agencies that have implemented a phased enforcement plan. Additionally, to prepare the public for REAL ID enforcement, DHS is conducting public awareness campaigns through internet, currently, and television and radio campaigns starting in 2025, which will continue through the card-based enforcement date. TSA's REAL ID Program is also working closely with States and the travel industry to support efforts to raise awareness among their citizens and customers. This includes a media campaign “toolkit,” which provides stakeholders with digital, print, social media, and audio/video materials, that can be used by stakeholders in their own media campaigns. 49 DHS has also collaborated with States and other stakeholders on media events designed to increase public awareness of the REAL ID deadline. DHS believes these public awareness efforts will help mitigate, but not eliminate, the risk of demand surges towards the end of the phased enforcement period. DHS believes that despite public awareness campaigns, many individuals will choose to wait until the last minute to obtain a REAL ID compliant-DL/ID, so it may not be possible to eliminate all risk of a demand surge. However, by targeting messaging at individuals more likely to need a compliant DL/ID ( e.g., domestic commercial air travelers) media campaigns will likely encourage some individuals to obtain a compliant DL/ID, mitigating a potential surge approaching the deadline. 49 “Be Your REAL ID Self ” Campaign Toolkits, https://www.dhs.gov/real-id/campaign-toolkits (last visited November 20, 2024). DHS acknowledges that this rule could potentially create confusion due to the possibility of inconsistent enforcement timelines, with some agencies implementing full enforcement and other agencies implementing varying phased enforcement plans. The rule's requirement that agencies post their plans publicly on their web page is intended to provide transparency and mitigate potential confusion. To the extent variation in enforcement across Federal agencies still results in some confusion, DHS believes that the approach offered by this rule will be more effective than other alternatives that may offer more straightforward messaging. Although immediately beginning full card-based enforcement across all agencies or extending the deadline for card-based compliance might present a simpler message to communicate to the public, as explained above in DHS' response to other comments, 50 DHS believes the approach provided in this rule will better enable a smooth transition to full card-based enforcement. DHS believes that the benefit of allowing enforcement to begin with the flexibility for phased enforcement, where appropriate, outweighs the risk of potential confusion, particularly with the mitigation through public communication. 50 Supra IV.D., IV.E. Finally, DHS acknowledges that a successful implementation of REAL ID enforcement relies on public awareness of the REAL ID requirements, upcoming deadline, and phased enforcement plans. For years, DHS has made significant efforts to raise public awareness of REAL ID enforcement, to include providing information at the TSA security checkpoint about the upcoming REAL ID deadline, and will continue to do so through May 7, 2025. To continue DHS's commitment to transparency and public awareness regarding REAL ID requirements, as discussed below, this final rule requires agencies to post their phased enforcement plans, if they choose to use them, on their agency website. G. Public Availability of Agencies' Phased Enforcement Plans Comment: One commenter expressed concern that online publication of agency phased enforcement plans may not provide sufficient public awareness or adequately prepare the public for what to expect when seeking to use a noncompliant DL/ID for a defined official purpose. The commenter suggested that agencies should also be required to maintain information regarding their phased enforcement plans on site at locations where individuals may need to use a DL/ID for a defined official purpose. DHS response: DHS appreciates this comment highlighting the importance of ensuring that information regarding agencies' phased enforcement plans is available to the public. Given the scope of potential phased enforcement plans, which range from full enforcement to non-enforcement through the 2-year period, DHS does not believe it is appropriate to prescribe specific means by which the individual agency must inform members of the public about their plan, beyond the general requirement to make it publicly available on an agency website. One of DHS' goals in requiring agencies to make their plans available on their websites is to allow individuals to prepare in advance of arriving at an agency location and seeking to use to a noncompliant DL/ID for a REAL ID official purpose. This requirement does not prevent agencies from also providing their plan, or information about their plan, “on-site” for individuals who arrive and seek to use a noncompliant DL/ID. As a component of the individual agency plan, that agency may choose to engage in a variety of outreach and engagement activities relevant to their specific goals; but imposition of general requirements in this rule cannot effectively account for the specific needs of the plan, variation in agency location and operations, and relevant audience. For example, in the informed compliance phased enforcement model described above, 51 agencies could provide a notice to individuals presenting a noncompliant DL/ID. The notice could inform the individual that their DL/ID is noncompliant with REAL ID requirements and that they should contact their DMV for further information regarding obtaining a REAL ID-compliant DL/ID. The notice could also tell the individual what to expect if the individual presents a noncompliant DL/ID and no other acceptable form of identification in the future. 51 Supra III.D. As noted above, DHS is engaged in a layered approach to improve adoption, including heavy engagement with States that have low REAL ID adoption rates, a public advertising campaign raising awareness of upcoming REAL ID enforcement and the benefits of obtaining a REAL ID, 52 and communication with the travel industry. 52 DHS Launches “Be Your REAL ID Self ” Public Awareness Campaign, January 15, 2021, https://www.dhs.gov/real-id/news/2021/01/15/dhs-launches-be-your-real-id-self-public-awareness-campaign. H. Length of Phased Enforcement Period Comments: Multiple commenters expressed support for a phased approach but highlighted concerns over the timeframe for the phased enforcement period. Some commenters believe a phased enforcement period of 2 to 3 years is appropriate. Other commenters expressed that DHS did not provide sufficient data or evidence to support a 2-year phased enforcement period. One commenter states a 2-year period is not long enough based on adoption rates to date and the current proportion of DL/ID holders that have a REAL ID-compliant DL/ID. The commenter notes that 2 years might not allow for a significant increase in the proportion of REAL ID-compliant DL/IDs and that Federal agencies may experience the same operational risks at the end of the 2-year enforcement period in the presence of significant REAL ID noncompliance. Another commenter noted that many individuals have obtained noncompliant marked DL/ID with validity periods of up to 8 years, depending on the state, and that these individuals would need to visit a DMV in advance of the expiration of their current DL/ID in order to obtain a REAL ID-compliant DL/ID. This commenter suggested that DHS should, at a minimum, extend the phased enforcement period to 4 years, which would align with shortest validity period amongst most populous states. Still other commenters proposed that Federal agencies should be permitted to specify their own dates for achieving full enforcement, that the phased enforcement period should be indefinite, or that DHS consider future rulemaking to modify the phased enforcement period if necessary. DHS response: DHS appreciates the thoughtful comments it received regarding the appropriate length of the phased enforcement period. In determining the length of the phased enforcement period, DHS balanced factors supporting a shorter period of phased enforcement with those possibly warranting a longer period. In support of providing a shorter phased enforcement period, DHS seeks to reduce the delay in realizing the security benefits associated with REAL ID, and additionally seeks to ensure that imminent enforcement provides a compelling rationale for members of the public to obtain a REAL ID-compliant DL/ID. In support of a longer phased enforcement period, DHS seeks to provide sufficient time for phased enforcement plans to exert an effect on public perception, to limit negative enforcement impacts on agency operations and the public, and to provide sufficient time for States to meet increased demand. DHS has balanced these factors to arrive at an up to 2-year period available for phased enforcement. The 2-year period allows agencies to develop plans that adjust for operational impacts and provides individuals and States time to take necessary action. This period allows States to adjust or reallocate resources to meet increased demand over annual budgeting cycles, while still maintaining a level of urgency necessary to prioritize such action. Allowing for more than 2 years for phased enforcement would potentially further delay the security benefits of REAL ID and would likely not provide members of the public a compelling reason to prioritize obtaining a REAL ID compliant DL/ID. DHS also does not believe that it would be appropriate to allow each Federal agency to specify the duration of their own phased enforcement period beyond the 2 years permitted by this rule. Doing so would permit agencies to use a phased approach indefinitely, avoiding the implementation of the legal requirements associated with the REAL ID act and regulations. Allowing a more lengthy phased enforcement period than 2 years would also unnecessarily delay realization of the security benefits of REAL ID. Finally, a common defined available period for phased enforcement ensures consistent, accountable, and transparent national action, while still allowing agencies to balance operational needs, security benefits, and public impact to determine the individualized timeframe of their own enforcement, within those bounds. As described above, one comment suggested that DHS should base the phased enforcement period on the minimum length of the validity period for DL/IDs in some states, rather than balancing various factors to determine the enforcement. The commenter recommended 4 years because this is the shortest validity period amongst more populous States. Since there is not a single common validity period among all states, the choice of a 4-year period rather than the many longer periods in other States implicitly acknowledges the interests DHS has described above compelling shorter phased enforcement periods. The diversity in length of validity periods across States also suggests that there is highly limited benefit to tying the phased enforcement period to one particular validity period, as it would not be common to most members of the public. In addition, the length of validity of DL/IDs has limited utility in light of states ability to continue issuance of non-REAL ID compliant DL/IDs. While DHS acknowledges that some individuals who have recently obtained noncompliant DL/IDs may need to obtain a REAL ID-compliant DL/ID before their noncompliant DL/ID expires, the avoidance of this circumstance in some limited instances (namely, the class of persons who have a DL/ID which would specifically expire between 2 and 4 years from the REAL ID enforcement date) is not compelling when compared to the broader interests DHS has considered in providing a shorter period of phased enforcement, as described above. Individuals may also continue to choose to obtain a noncompliant DL/ID, even after the enforcement date, because they do not anticipate needing an acceptable form of identification to verify their identity for a defined official purpose or because they had another identity document, such as a passport, that is widely accepted. DHS does not believe it is appropriate to further delay the security benefits of REAL ID based on individual's decisions to obtain noncompliant-marked cards. For any individual holding a noncompliant DL/ID, who realizes that they need to obtain a compliant DL/ID, a 2-year phased enforcement period provides sufficient time for them to do so. Additionally, some commenters discussing the appropriate maximum phased enforcement period appear to assume that 100 percent of state-issued DL/IDs in circulation must be REAL ID-compliant before the Federal Government begins full card-based enforcement. This is incorrect. In the 2008 final rule DHS assumed, in response to public comments, that only 75 percent of DL/ID holders may ever obtain a REAL ID-compliant DL/ID. 53 Individuals may choose not to obtain a REAL ID-compliant DL/ID for a number of reasons, including that they do not anticipate needing identification for a REAL ID official purpose or that they have another form of acceptable identification ( e.g., a passport). Although the balance point that the actual percentage of REAL ID-compliant DL/IDs will eventually reach is uncertain ( i.e., it could be more or less than 75 percent), DHS anticipates that the number of individuals presenting noncompliant DL/IDs for REAL ID official purposes at the time agencies transition from phased enforcement to full enforcement will have fallen and thereby reduce potential security risks, operational disruption, or significant public impact. 54 53 73 FR 5272, 5322. 54 See infra table 5. DHS forecasts that the number of DL/IDs that are REAL ID-compliant may rise to 83 percent by May 2027. Finally, DHS appreciates the recommendation that DHS consider future rulemaking to modify the phased enforcement period if necessary. As with this rulemaking, DHS will leverage its rulemaking authority as necessary to ensure successful implementation of the REAL ID requirements. I. Relevant Factors and Resources for Development and Approval of Phased Enforcement Determinations by Federal Agencies Comments: Some commenters expressed that the relevant factors DHS identified and that the rule requires agencies to consider when determining whether a phased approach is appropriate are overly broad and allow Federal agencies too much discretion in determining whether to implement a phased enforcement plan and what form the plan would take, resulting in widely varying policies that may hinder compliance and enforcement by individuals and agencies, respectively. These commenters also expressed concern that with this discretion, agencies may transition to full enforcement prior to the end of the 2-year maximum phased enforcement period, arguing instead that REAL ID should be repealed or extended outright for 2 years, citing general concerns regarding the REAL ID Act unrelated to this rulemaking. One commenter expressed concern about the adequacy of the TSA REAL ID Program's resources to support the required DHS coordination of agencies' phased enforcement plans. The commenter suggested that DHS should work to achieve a common understanding of the REAL ID regulations across all Federal agencies. DHS response: Under this rule, DHS intentionally provides Federal agencies significant discretion and flexibility to implement the REAL ID requirements using an approach that is best suited to their operations and contexts. Given the large number of Federal agencies, their variety of missions and operational settings, and significant variation in the frequency and volume of interactions with the public in the context of a defined REAL ID official purpose, DHS believes that attempting to develop a uniform phased enforcement approach or more specific list of factors is not feasible. Further, DHS believes that each individual agency is in a better position than DHS to weigh factors and make judgments regarding whether phased enforcement is appropriate and, if so, what form an agency's phased enforcement plan should take. The rule requires that agency plans be coordinated with DHS, which will allow DHS to ensure a level of consistency, as appropriate, and oversight of successful implementation of the REAL ID requirements. As discussed above, 55 this rule maintains the card-based enforcement deadline and a regulatory default of full enforcement on May 7, 2025, absent an affirmative determination by an agency to use a phased enforcement plan. The rule is structured in this way to facilitate each agency's transition to full implementation of REAL ID requirements as soon as practicable. DHS anticipates that many agencies will determine that a phased approach is not necessary or appropriate and will transition to full enforcement immediately on May 7, 2025. For agencies that do determinate that phased enforcement is appropriate, DHS does not expect that all phased enforcement plans will take the entire 2-year period. In some cases, agencies' phased enforcement plans may provide for reaching full enforcement well in advance of May 5, 2027. 55 Supra III.C. Finally, DHS notes that the TSA REAL ID Program is well-prepared to support DHS coordination of agencies' phased enforcement plans. Since Fall 2023, the TSA REAL ID Program Office has been hosting monthly stakeholder engagement sessions with Federal agencies. During these sessions, DHS has briefed Federal agencies on the REAL ID regulations' card-based enforcement requirements and this rulemaking to allow agencies the flexibility to implement card-based enforcement through a phased approach, if appropriate. Through interagency discussion during these sessions, DHS has built an understanding of which agencies may consider phased enforcement plans and what form those plans may take. Although the rule provides agencies broad discretion to structure their phased enforcement plans in a manner best suited to their operations, the rule requires agencies to coordinate their plans with DHS to ensure that plans advance the objectives of the REAL ID regulations and maintain consistent progress towards full enforcement. Through this coordination, DHS will maintain oversight of successful implementation of the REAL ID Act and ensure consistency, as appropriate. J. Phased Enforcement Implementation Concerns Comments: DHS received some comments related specifically to the official purpose of boarding a federally regulated commercial aircraft and card-based enforcement at TSA security screening checkpoints. These commenters expressed concerns that beginning card-based enforcement at TSA security checkpoints may increase passenger wait times and congestion in the public areas of airports, potentially increasing the burden on law enforcement officers who respond to issues arising at airports. One commenter suggested that TSA should develop a plan that clearly provides criteria for incidents that rise to level requiring notification to law enforcement. Another commenter suggested that, as part of phased enforcement, TSA should require individuals enrolled in TSA Precheck® to present a REAL ID-compliant DL/ID to use the TSA Precheck® lane. Multiple commenters recommended that TSA develop a “contingency” plan to address travelers who may be unable to use their noncompliant DL/ID to proceed through the screening checkpoint. DHS also received comments asserting that the proposed phased approach would exacerbate costs to individuals and to the Federal Government, for example, because individuals may need to update their identification multiple times to comply with evolving standards. Other commenters asked that DHS provide more detail about the consequences of the rule; and concerns that phased enforcement will be “increasingly painful” on the public and is thus not in their best interests. DHS response: DHS appreciates the thoughtful comments received regarding TSA's implementation of card-based enforcement. This rule allows TSA to make a determination, after considering relevant factors, that a phased approach to card-based enforcement may be appropriate. Consistent with this rule, TSA is planning for a number of scenarios, including considering a phased approach to enforcement. In making its determination, TSA will take into account the relevant factors of security, operational feasibility, and public impact, including TSA checkpoint operations that involve interaction with law enforcement and potential impact to travelers and transportation stakeholders. Concerns regarding costs associated with compliance with requirements of the REAL ID Act and regulation were addressed in the 2008 final rule and are outside the scope of this rulemaking. Regarding the concern that a phased approach will add additional costs to implementation because of a need to update identification multiple times, DHS notes that the REAL ID card-based requirements, issued through the 2008 final rule, were not amended by this rulemaking. Further, nothing in this rule will impact the requirements for issuance. The rule instead provides individuals potentially more time to obtain a REAL ID compliant license if they plan to present their DL/ID to an agency that is implementing the May 7, 2025, enforcement deadline through a phased approach. Regarding commenters' questions about the consequences of the rule, if an individual attempts to provide a non-compliant DL/ID after May 7, 2025, and the agency does not have a phased enforcement plan in place, the Federal agency may not accept that non-compliant DL/ID. Each individual agency is responsible for determining access control procedures at their facilities, and what alternatives may be available, such as other acceptable forms of identification. If the agency does have a phased enforcement plan in place, that plan must be posted on the agency website. For example, an agency may only accept a non-compliant DL/ID from an individual twice before it is rejected. In that instance, the individual will be subject to the agency's published plan. DHS understands that some commenters are concerned that the phased enforcement plans may be “increasingly painful” on the public. However, without the flexibility for a phased approach, no Federal agencies may accept non-compliant DL/IDs for REAL ID official purposes on and after May 7, 2025. This rule provides flexibility to agencies, allowing them to implement phased enforcement plans that provide more time for individuals to obtain a REAL ID-compliant DL/ID. Comments: Some commenters expressed concern that agencies' phased enforcement plans may involve the collection of personal information and privacy issues, particularly if agencies implement a phased enforcement plan using the informed compliance with limits model. One commenter expressed the need for transparency and clear policies to protect PII. DHS response: DHS appreciates these comments and acknowledges the importance of privacy protections and safeguarding of personally identifiable information. This rule only provides agencies with the flexibility to implement the card-based enforcement deadline through a phased approach and, as noted above. 56 Any PII collected as part of an agency's phased enforcement plan must be collected, maintained, and used in accordance with all applicable Federal guidelines and requirements related to collection of PII. Depending on the type and manner of information collected, this will likely require agencies to obtain an OMB-approved PRA information collection, or to prepare a Privacy Threshold Analysis, Privacy Impact Assessment, System of Records Notice, and other documentation to ensure adequate protections are in place regarding the collection, storage, and use of PII. 56 Supra III.D. Comments: One commenter expressed concern that Federal agencies' implementation of phased enforcement plans may result in a burden on States because individuals will seek information from State DMVs regarding Federal card-based enforcement. DHS response: DHS appreciates concerns related to increasing the burden on States. Overall, DHS believes this rule lessens the burden on States by allowing agencies to implement card-based enforcement using a phased approach. In the event of backlogs at State DMVs due to increased demand leading up to and [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%3A2025-00484. Public record. Not legal advice.