[Federal Register Volume 74, Number 247 (Monday, December 28, 2009)]
[Rules and Regulations]
[Pages 68477-68478]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-30638]

Rules and Regulations
                                                Federal Register

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to and codified in the Code of Federal Regulations, which is published 
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Federal Register / Vol. 74, No. 247 / Monday, December 28, 2009 / 
Rules and Regulations

[[Page 68477]]


Office of the Secretary

6 CFR Part 37

[Docket No. DHS-2006-0030]
RIN 1601-AA37

Minimum Standards for Driver's Licenses and Identification Cards 
Acceptable by Federal Agencies for Official Purposes

AGENCY: Office of the Secretary, DHS.

ACTION: Final rule; stay.


SUMMARY: Pursuant to the Department of Homeland Security's REAL ID 
regulations, States must be in material compliance with the REAL ID ACT 
of 2005, 49 U.S.C. 30301 note, by January 1, 2010. This final rule 
stays that date. Any new material compliance dates will be announced in 
a future Federal Register document.

DATES: Effective on December 28, 2009, 6 CFR 37.51(b) is stayed from 
January 1, 2010, until further notice. The Department of Homeland 
Security will lift the stay and announce any new compliance dates by 
publication in a document in the Federal Register.

FOR FURTHER INFORMATION CONTACT: Steve Kozar, Office of State-Issued 
Identification Support, Screening Coordination Office, Department of 
Homeland Security, Washington, DC 20528 (202) 447-3368.

prohibits Federal agencies, effective May 11, 2008, from accepting a 
driver's license or personal identification card for any official 
purpose unless the license or card has been issued by a State that is 
meeting the requirements set forth in the Act. Section 205(b) of the 
Act authorizes the Secretary of Homeland Security to grant States 
extensions of time to meet the requirements of the Act if the State 
provides adequate justification for noncompliance.

    \1\ The Emergency Supplemental Appropriations Act for Defense, 
the Global War on Terror, and Tsunami Relief, 2005, Public Law 109-
13, 119 Stat. 231, 302 (May 11, 2005) (codified at 49 U.S.C. 30301 

    On January 29, 2008, DHS promulgated a final rule implementing the 
requirements of the Act. See 73 FR 5272; also 6 CFR part 37. The final 
rule extended the initial compliance date from May 11, 2008 to May 11, 
2011. The final rule allowed States to apply for two extensions to meet 
these requirements--the first extension, given to States in March 2008, 
is set to expire on December 31, 2009. States may request an extension 
that would give States until May 11, 2011 to fully comply with the Act 
and the implementing regulations.
    Based on ongoing communications with the States throughout the 
development of the REAL ID program, a large majority of States and 
territories--46 of 56--have informed DHS that they will not be able to 
meet the REAL ID material compliance deadline. To avoid the unnecessary 
disruption of commercial air travel over the upcoming holiday season 
that would result if Federal agencies cannot accept State-issued 
identification cards from travelers beginning January 1, 2010, the 
Secretary of Homeland Security, under the authority granted to her 
under section 205(b) of the Act, is staying the material compliance 
deadline of January 1, 2010, until further notice. Although the 
material compliance date has been stayed, the full compliance date of 
May 11, 2011, remains in effect.
    This stay is a temporary approach, but is not an acceptable 
solution over the long-term. DHS continues to urge Congress to enact a 
permanent legislative solution to fulfill this key 9/11 Commission 
recommendation. That is why Secretary Napolitano has supported the 
efforts of Governors and Congress to enact PASS ID, which puts States 
on the path to implementing national security standards for State 
identification cards that will enhance security across the country.

II. Regulatory Analyses

A. Administrative Procedure Act

    The Administrative Procedure Act (APA) provides that an agency may 
dispense with notice and comment rulemaking procedures when an agency, 
for ``good cause,'' finds that those procedures are ``impracticable, 
unnecessary, or contrary to the public interest.'' See 5 U.S.C. 
553(b)(B). As noted earlier in this preamble, DHS has communicated 
extensively with States throughout the development of the REAL ID 
program. Based on these communications, and the recent submissions from 
the States, DHS has determined that, although States are making 
significant enhancements to the security of their driver's licenses and 
State-issued identification documents, the vast majority of States 
cannot meet all of the statutorily-mandated requirements under the REAL 
ID Act by January 1, 2010. In order to minimize impact on the American 
public as well as to ensure States continue to invest in security 
enhancements, the January 1, 2010, material compliance deadline is 
stayed until further notice.
    The REAL ID Act prohibits Federal agencies from accepting driver's 
licenses or personal identification cards for any official purpose 
unless the issuing State is meeting the requirements set forth in the 
Act. ``Official purpose'' is defined in both the Act and in the 
regulations to include boarding Federally-regulated commercial 
aircraft. If the vast majority of States are unable to meet the January 
1, 2010 material compliance deadline, in the absence of an extension, 
Federal agencies, including TSA screeners, beginning January 1, 2010, 
would not be able to accept State-issued driver's licenses or 
identification cards from residents of these States for official 
purpose, including for use in boarding commercial aircraft. Travelers 
would have to use alternative, non-State-issued documents to 
demonstrate identity, as described in TSA's procedures, to pass through 
security at airports. All U.S. residents traveling by commercial 
aircraft would experience very significant travel delays; in fact, 
commercial aviation would be severely impacted. Such a disruption to 
air travel is not in the public's best interest in particular during 
the holiday season. It would also be contrary to the public interest, 
therefore, to seek public comment prior to extending the compliance 
date, given that such comments reasonably could not be

[[Page 68478]]

received and acted upon prior to the date.
    Based on the above, DHS finds that pre-promulgation notice and 
comment for this rule would be impracticable, unnecessary, and contrary 
to the public interest. For this same reason, good cause exists to make 
this rule effective immediately upon publication in the Federal 
Register. See 5 U.S.C. 553(d)(3).

B. Executive Order 12866 (Regulatory Planning and Review)

    This rule constitutes a ``significant regulatory action'' under 
Executive Order 12866, and therefore has been reviewed by the Office of 
Management and Budget. Under Executive Order 12866, a significant 
regulatory action is subject to an Office of Management and Budget 
(OMB) review and to the requirements of the Executive Order. The 
Executive Order defines ``significant regulatory action'' as one that 
is likely to result in a rule that may (1) have an annual effect on the 
economy of $100 million or more or adversely affect in a material way 
the economy, a sector of the economy, productivity, competition, jobs, 
the environment, public health or safety, or State, local, or Tribal 
governments or communities; (2) create a serious inconsistency or 
otherwise interfere with an action taken or planned by another agency; 
3) materially alter the budgetary impact of entitlements, grants, user 
fees, or loan programs or the rights or obligations of recipients 
thereof; or 4) raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order. Because this rule eliminates the material 
compliance date and is part of a previously published rule that 
received considerable public attention, this rule raises novel policy 
issues and, thereby, is subject to OMB review.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as 
amended by the Small Business Regulatory Enforcement Fairness Act of 
1996 (Pub. L. 104-121), requires Federal agencies to consider the 
potential impact of regulations on small businesses, small governmental 
jurisdictions, and small organizations during the development of their 
rules. This final rule, however, makes changes for which notice and 
comment are not necessary. Accordingly, DHS is not required to prepare 
a regulatory flexibility analysis. 5 U.S.C. 603, 604.

D. Paperwork Reduction Act

    This rule calls for no new collection of information under the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

E. Executive Order 13132 (Federalism)

    A rule has implications for federalism under Executive Order 13132, 
``Federalism,'' if it has a substantial direct effect on State or local 
governments and would either preempt State law or impose a substantial 
direct cost of compliance on them. We have analyzed this rule under 
that Order and have determined that it does not have implications for 

F. Unfunded Mandates Reform Act

    The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538), 
requires Federal agencies to assess the effects of their discretionary 
regulatory actions. In particular, the Unfunded Mandates Reform Act 
addresses actions that may result in the expenditure by a State, local, 
or Tribal government, in the aggregate, or by the private sector of 
$100 million (adjusted for inflation) or more in any one year. This 
final rule will not result in such an expenditure.

G. Executive Order 13175 (Tribal Consultation)

    This rule does not have Tribal implications under Executive Order 
13175, ``Consultation and Coordination with Indian Tribal 
Governments,'' because it does not have a substantial direct effect on 
one or more Indian Tribes, on the relationship between the Federal 
Government and Indian Tribes, or on the distribution of power and 
responsibilities between the Federal Government and Indian Tribes.

H. Executive Order 13211 (Energy Impact Analysis)

    We have analyzed this rule under Executive Order 13211, ``Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use.'' We have determined that it is not a 
``significant energy action'' under that Order and is not likely to 
have a significant adverse effect on the supply, distribution, or use 
of energy. Therefore, it does not require a Statement of Energy Effects 
under Executive Order 13211.

List of Subjects in 6 CFR Part 37

    Document security, driver's licenses, identification cards, 
incorporation by reference, motor vehicle administrations, physical 

The Amendments

For the reasons set forth above, the Department of Homeland Security 
amends 6 CFR part 37 as follows:


1. The authority citation for part 37 continues to read as follows:

    Authority: 49 U.S.C. 30301 note; 6 U.S.C. 111, 112.

Sec.  37.51  [Amended]

2. In Section 37.51, paragraph (b) is stayed from January 1, 2010 until 
further notice.

Janet Napolitano,
[FR Doc. E9-30638 Filed 12-24-09; 8:45 am]