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

AGENCY:

Transportation Security Administration, Department of Homeland Security.

ACTION:

Notice of proposed rulemaking.

SUMMARY:

The Transportation Security Administration (TSA) is proposing to amend the REAL ID regulations to waive, on a temporary and State-by-State basis, the regulatory requirement that mobile or digital driver's licenses or identification cards (collectively “mobile driver's licenses” or “mDLs”) must be compliant with REAL ID requirements to be accepted by Federal agencies for official purposes, as defined by the REAL ID Act, when full enforcement of the REAL ID Act and regulations begins on May 7, 2025.

DATES:

Interested persons are invited to submit comments on or before October 16, 2023.

ADDRESSES:

You may submit comments, identified by the TSA docket number to this rulemaking, to the Federal Docket Management System (FDMS), a government-wide, electronic docket management system. To avoid duplication, please use only one of the following methods:

• Electronic Federal eRulemaking Portal: https://www.regulations.gov. Follow the online instructions for submitting comments.

• Mail: Docket Management Facility (M–30), U.S. Department of Transportation, 1200 New Jersey Avenue SE, West Building Ground Floor, Room W12–140, Washington, DC 20590–0001. The Department of Transportation (DOT), which maintains and processes TSA's official regulatory dockets, will scan the submission and post it to FDMS.

• Fax: (202) 493–2251.

See the SUPPLEMENTARY INFORMATION section for format and other information about comment submissions.

FOR FURTHER INFORMATION CONTACT:

George Petersen, Senior Program Manager, REAL ID Program, Enrollment Services and Vetting Programs, Transportation Security Administration; telephone: (571) 227–2215; email: george.petersen@tsa.dhs.gov.

Please do not submit comments to these addresses.

SUPPLEMENTARY INFORMATION:

Public Participation and Request for Comments

TSA invites interested persons to participate in this NPRM by submitting written comments, including relevant data. Comments that will provide the most assistance to TSA will reference a specific portion of this proposed rule, explain the reason for any suggestion or recommended change, and include data, information, or authority that supports such suggestion or recommended change.

Submitting Comments

With each comment, please identify the docket number at the beginning of your comments. You may submit comments and material electronically, by mail, or fax as provided under ADDRESSES , but please submit your comments and material by only one means. If you submit comments by mail or in person, submit them in an unbound format, no larger than 8.5 by 11 inches, suitable for copying and electronic filing.

If you would like TSA to acknowledge receipt of comments submitted by mail, include with your comments a self-addressed, stamped postcard or envelope on which the docket number appears and we will mail it to you.

All comments, except those that include confidential or SSI will be posted to https://www.regulations.gov, and will include any personal information you have provided. Should you wish your personally identifiable information redacted prior to filing in the docket, please clearly indicate this request in your submission. TSA will consider all comments that are in the docket on or before the closing date for comments and will consider comments filed late to the extent practicable. The docket is available for public inspection before and after the comment closing date.

Handling of Confidential or Proprietary Information and SSI Submitted in Public Comments

Do not submit comments that include trade secrets, confidential commercial or financial information, or SSI to the public regulatory docket. Please submit such comments separately from other comments on the rulemaking. Comments containing this type of information should be appropriately marked as containing such information and submitted by mail to the address listed in the FOR FURTHER INFORMATION CONTACT section. TSA will take the following actions for all submissions containing SSI:

• TSA will not place comments containing SSI in the public docket and will handle them with applicable safeguards and restrictions on access.
• TSA will hold documents containing SSI, confidential business information, or trade secrets in a separate file to which the public does not have access, and place a note in the public docket explaining that commenters have submitted such documents.
• TSA may include a redacted version of the comment in the public docket.
• TSA will treat requests to examine or copy information that is not in the public docket as any other request under the Freedom of Information Act (5 U.S.C. 552) and the Department of Homeland Security (DHS) Freedom of Information Act regulation found in 6 CFR part 5.

Reviewing Comments in the Docket

Please be aware that anyone is able to search the electronic form of all comments in any of our dockets by the name of the individual, association, business entity, labor union, etc., who submitted the comment. For more about privacy and the docket, review the Privacy and Security Notice for the FDMS at https://www.regulations.gov/privacy-notice, as well as the System of Records Notice DOT/ALL 14—Federal Docket Management System (73 FR 3316, January 17, 2008) and the System of Records Notice DHS/ALL 044—eRulemaking (85 FR 14226, March 11, 2020).

You may review TSA's electronic public docket at https://www.regulations.gov. In addition, DOT's Docket Management Facility provides a physical facility, staff, equipment, and assistance to the public. To obtain assistance or to review comments in TSA's public docket, you may visit this facility between 9 a.m. and 5 p.m., Monday through Friday, excluding legal holidays, or call (202) 366–9826. This DOT facility is located in the West Building Ground Floor, Room W12–140 at 1200 New Jersey Avenue SE, Washington, DC 20590.

Availability of Rulemaking Document

You can find an electronic copy of this rulemaking using the internet by accessing the Government Publishing Office's web page at https://www.govinfo.gov/app/collection/FR/ to view the daily published Federal Register edition or accessing the Office of the Federal Register's web page at https://www.federalregister.gov. Copies are also available by contacting the individual identified for “General Questions” in the FOR FURTHER INFORMATION CONTACT section.

Abbreviations and Terms Used in This Document

AAMVA—American Association of Motor Vehicle Administrators

CA/Browser Forum—Certification Authority Browser Forum

CISA—Cybersecurity and Infrastructure Security Agency

DHS—U.S. Department of Homeland Security

DID—Decentralized Identifiers

FIPS—Federal Information Processing Standards

HSM—Hardware security module

IEC—International Electrotechnical Commission

ISO—International Organization for Standardization

mDL—mobile driver's licenses and mobile identification cards

NIST—National Institute for Standards and Technology

NPRM—Notice of proposed rulemaking

PUB—Publication

RFI—Request for Information

SP—Special Publication

TSA—Transportation Security Administration

VC—Verifiable Credentials

VCDM—Verifiable Credentials Data Model

W3C—World Wide Web Consortium

Table of Contents

I. Executive Summary

A. Purpose of the Regulatory Action

B. Overview of the Proposed Rule

C. Need for a Multi-Phased Rulemaking

II. Background

A. REAL ID Act, Regulations, and Applicability to mDLs

B. Request for Information

C. mDL Overview

D. Current and Emerging Industry Standards and Government Guidelines for mDLs

E. DHS Involvement in mDLs

III. Summary of the Proposed Rule

A. Overview

B. Specific Provisions

C. Impacted Stakeholders

D. Use Cases Affected by This Proposed Rule

IV. Discussion of Public Comments in the RFI

V. Consultation With States, Non-Governmental Organizations, and the Department of Transportation

VI. Regulatory Analyses

A. Economic Impact Analyses

B. Paperwork Reduction Act

C. Federalism (E.O. 13132)

D. Customer Service (E.O. 14058)

E. Energy Impact Analysis (E.O. 13211)

F. Environmental Analysis

VII. Specific Questions

I. Executive Summary

A. Purpose of the Regulatory Action

This proposed rule is part of an incremental, multi-phased rulemaking that will culminate in the promulgation of comprehensive requirements for State issuance of REAL ID -compliant mobile driver's licenses and mobile identification cards (collectively “mDLs”). In this first phase, TSA is proposing two changes to the current regulations in 6 CFR part 37, “REAL ID Driver's Licenses and Identification Cards.” First, TSA is proposing to add definitions for, among others, mobile driver's licenses and mobile identification cards. These definitions provide a precise explanation of those terms as referenced in the REAL ID Act, which applies to only State-issued driver's licenses and state-issued identification cards. Any other types of identification cards, such as those issued by a Federal agency, or commercial, educational, or non-profit entity, are beyond the scope of the Act and regulations. The definition of “mDL” as used in this rulemaking is limited to the REAL Act and regulations and should not be confused with “mDLs” as defined by other entities, or with State-issued mDLs that are not intended to comply with the REAL ID Act.

Second, TSA is proposing to establish a temporary waiver process that would permit Federal agencies to accept mDLs for official purposes, as defined in the REAL ID Act and regulations, on an interim basis when enforcement begins on May 7, 2025, but only if all of the following conditions are met: (1) the mDL holder has been issued a valid and unexpired REAL ID-compliant physical driver's license or identification card from the same State that issued the mDL; (2) TSA has determined the issuing State to be REAL ID-compliant; and (3) TSA has issued a waiver to the State. To qualify for the waiver, this proposed rule would require States to submit an application demonstrating that they meet specified requirements, drawn from 19 industry and government standards guidelines. The rulemaking proposes to incorporate by reference (IBR) those standards and guidelines, which cover technical areas such as mDL communication, digital identity, encryption, cybersecurity, and network/information system security and privacy.

As noted above, this proposed rule is part of an incremental rulemaking that would temporarily permit Federal agencies to accept mDLs for official purposes until TSA issues a subsequent rule that would set comprehensive requirements for mDLs. TSA believes it is premature to issue such requirements before the May 7, 2025, deadline due to the need for emerging industry standards and government guidelines to be finalized (discussed in more detail in Part II.D., below).

The need for this rulemaking arises from TSA's desire to accommodate and foster the rapid pace of mDL innovation, while ensuring the intent of the REAL ID Act and regulations are met. Secure driver's licenses and identification cards are a vital component of our national security framework. The REAL ID Act of 2005 addressed the 9/11 Commission's recommendation that the Federal Government “set standards for the issuance of sources of identification, such as driver's licenses.” Under the REAL ID Act and regulations, a Federal agency may not accept for any official purpose a State-issued driver's license or identification card, either physical or an mDL, that does not meet specified requirements, as detailed in the REAL ID regulations ( see part II.A., below, for more discussion on these requirements).

Although the current regulatory provisions do not include requirements that would enable States to issue REAL ID-compliant mDLs, several States are already investing significant resources to develop mDLs based on varying and often proprietary standards, many of which may lack the security, privacy, and interoperability features necessary for Federal acceptance for official purposes. The rulemaking would encourage the development of mDLs with a higher level of security, privacy, and interoperability.

Absent the proposed rule, individual States may choose insufficient mDL security and privacy safeguards that fail to meet the security purposes of REAL ID requirements and the privacy needs of users. The proposed rule would address these considerations by enabling TSA to grant a waiver to States whose mDLs TSA determines provide sufficient safeguards for security and privacy, pending completion of emerging standards. Without timely guidance from the Federal government regarding potential requirements for developing a REAL ID-compliant mDL, States risk investing in mDLs that are not aligned with emerging industry standards and government guidelines that may be IBR'd in a future rulemaking. States, therefore, may become locked-in to existing solutions and could face a substantial burden to redevelop products acceptable to Federal agencies under this future rulemaking.

Many stakeholders have already expressed these concerns to TSA. In response to an April 2021 Department of Homeland Security (DHS) Request for Information (RFI), issued to inform a future rulemaking that would set technical requirements and security standards for mDLs, one commenter cautioned that the absence of a common standard “could lead to fragmentation of the market, a decrease in trust, non-interoperable solutions, and a global diminishing benefit of the mDL concept.” Similarly, another commenter warned that “[w]ithout clear, uniform, flexible standards that will encourage widespread public and private sector use of mDLs, mDLs will likely create confusion and struggle to gain a foothold in being accepted.”

Although this proposed rule would not set standards for the issuance of REAL ID-compliant mDLs, it does establish minimum requirements that States must meet to be granted a waiver. These proposed minimum standards and requirements would ensure that States' investments in mDLs provide minimum privacy and security safeguards consistent with information currently known to the TSA.

B. Overview of the Proposed Rule

As further discussed in part II.A., below, mDLs cannot be accepted by Federal agencies for official purposes when REAL ID full enforcement begins on May 7, 2025, unless 6 CFR part 37 is amended to address mDLs. This proposed rule would establish a process for waiving, on a temporary and State-by-State basis, the current prohibition on Federal acceptance of mDLs for official purposes, and enable Federal agencies to accept mDLs on an interim basis while the industry matures to a point sufficient to enable TSA to develop more comprehensive mDL regulatory requirements.

The current regulations prohibit Federal agencies from accepting non-compliant driver's licenses and identification cards, including both physical cards and mDLs, when REAL ID enforcement begins on May 7, 2025. Any modification of this regulatory provision must occur through rulemaking (or legislation). Until and unless TSA promulgates comprehensive mDL regulations that enable States to develop and issue REAL ID-compliant mDLs, mDLs cannot be developed to comply with REAL ID, and Federal agencies therefore cannot accept mDLs for official purposes after REAL ID enforcement begins on May 7, 2025. The proposed rule would allow the Federal government to accept mDLs on an interim basis, but only if all of the following conditions are met: (1) the mDL holder has been issued a valid and unexpired REAL ID-compliant physical driver's license or identification card, (2) TSA has determined the issuing State to be REAL ID-compliant, and (3) TSA has issued a waiver to such State based on that State's compliance with minimum privacy, safety, and interoperability requirements proposed in this rulemaking. Please see Part II.A., below, for an explanation of the REAL ID requirement that both cards and issuing States must be REAL ID compliant.

C. Need for a Multi-Phased Rulemaking

TSA recognizes both that regulations can influence long-term industry research and investment decisions and that premature regulations can distort the choices of technologies adopted, which can be costly to undo. As noted above, there are clear reasons for TSA to issue requirements for mDLs. First, there is a growing demand for and interest in mDLs due to their potential benefits of increased convenience, security, and privacy. Second, to meet this demand, States are beginning to invest in the infrastructure and programs to issue mDLs. Third, in the absence of Federal regulations and guidelines as outlined in this rulemaking, States may make unsuitable investments and issue mDLs that Federal agencies cannot accept. Fourth, adoption and use of mDLs could be thwarted if current regulations are not amended to accommodate mDLs when REAL ID enforcement begins on May 7, 2025.

At the same time, however, TSA believes it is premature to issue final, comprehensive requirements for mDLs given the rapid pace of innovation in this nascent market, and the multiple emerging industry and government standards and guidelines necessary to ensure mDL privacy and security that are still in development. From comments submitted in response to the RFI, TSA recognizes that technology and stakeholder positions in this industry are diverse and evolving. TSA also conducted a comprehensive analysis of industry and Government standards and guidance, and the types of technology currently available. Based on this analysis, a few international industry standards applicable to mDLs are available, while most are years away from publication. Accordingly, TSA has concluded that it is premature to promulgate comprehensive requirements for mDLs while those standards are emerging, because of the risk of unintended consequences, such as chilling innovation and competition in the marketplace, and “locking-in” stakeholders to certain technologies.

Although TSA believes it is premature to establish comprehensive requirements at this time, TSA believes it is appropriate to use its regulatory authority to establish a waiver process with clear standards and requirements to facilitate the acceptance of mDLs while the industry matures and moves to accepted standards. Therefore, TSA has decided to proceed with a multi-phased rulemaking approach. Initial efforts focused on research and gathering information from interested stakeholders, commencing with publication of the pre-rulemaking RFI that was intended to inform any subsequent rulemaking. “Phase 1,” the current phase, would establish a temporary waiver process. This waiver process would enable secure use of mDLs when REAL ID enforcement begins on May 7, 2025, while providing TSA additional operational experience and data from TSA, which will accept mDLs during the waiver period before eventually issuing comprehensive regulations. The proposed rule is intended to serve as a regulatory bridge for this emerging technology.

Following publication of industry standards currently under development, TSA anticipates conducting a “Phase 2” rulemaking that would repeal the temporary waiver provisions, including appendix A to subpart A of the part (discussed in Part III.B.4.iv., below) established in Phase 1 and establish more comprehensive requirements enabling States to issue mDLs that comply with REAL ID requirements. At this time, TSA anticipates the Phase 2 rulemaking would IBR pertinent parts of some emerging standards (pending review of those final, published documents) regarding specific requirements for security, privacy, and interoperability, and distinguish between existing regulatory requirements that apply only to mDLs versus physical cards. Comments received in Phase 1, experience and data gained from temporary Federal mDL acceptance under a waiver, TSA testing of mDL acceptance at TSA airport security checkpoints, and publication of emerging standards, will inform the Phase 2 rulemaking. As one commenter urged, DHS is taking “a slow and careful approach” to regulation in order to fully understand the implications of mDLs.

This iterative rulemaking approach supports Executive Order (E.O.) 14058 of December 13, 2021 (Transforming Federal Customer Experience and Service Delivery to Rebuild Trust in Government), by using “technology to modernize Government and implement services that are simple to use, accessible, equitable, protective, transparent, and responsive for all people of the United States.” As highlighted above and discussed in more detail below, allowing acceptance of mDLs issued by States that meet the waiver requirements would enable the public to more immediately realize potential benefits of mDLs, including greater convenience, security, and privacy. See Part II.C.4, below, for more discussion on these benefits.

II. Background

A. REAL ID Act, Regulations, and Applicability to mDLs

The REAL ID Act of 2005 sets minimum requirements for State-issued driver's licenses and identification cards accepted by Federal agencies for official purposes, including accessing Federal facilities, boarding federally regulated commercial aircraft, entering nuclear power plants, and any other purposes that the Secretary shall determine. The Act defines “driver's licenses” and “identification cards” strictly as State-issued documents, and the implementing regulations, 6 CFR part 37, further refine the definition of “identification card” as “a document made or issued by or under the authority of a State Department of Motor Vehicles or State office with equivalent function.” Therefore, the REAL ID Act and regulations do not apply to identification cards that are not made or issued under a State authority, such as cards issued by a Federal agency or any commercial, educational, or non-profit entity.

On January 29, 2008, DHS published a final rule implementing the Act's requirements. That rule included both a State compliance deadline and a schedule describing when individuals must obtain a compliant driver's license or identification card intended for use for official purposes. DHS refers to these two deadlines as “State-based” and “card-based” enforcement, respectively (or “full enforcement” collectively). For State-based enforcement, 6 CFR 37.65(a) prohibits Federal agencies from accepting cards issued by States and territories that are not compliant with the REAL ID standards. DHS incrementally enforced the State-based deadline in phases, with the last phase beginning January 22, 2018. Since this date, many Federal agencies have accepted all valid driver's licenses and identification cards issued by REAL ID-compliant States or States with an extension or under compliance review from DHS.

Card-based enforcement begins on May 7, 2025. On this date, Federal agencies will be prohibited from accepting for official purposes a State- or territory-issued driver's license or identification card for official purposes unless the card is compliant with the REAL ID Act and regulations.

On December 21, 2020, Congress passed the REAL ID Modernization Act to amend the REAL ID Act to reflect new technologies that did not exist when the law was enacted more than 15 years ago. Among other updates, the REAL ID Modernization Act clarified that mDLs are subject to REAL ID requirements by amending the definitions of “driver's license” and “identification card” to specifically include mDLs that have been issued in accordance with regulations prescribed by the Secretary. The REAL ID regulations therefore must be updated to distinguish which existing requirements in 6 CFR 37 apply to mDLs versus physical cards, and to include additional requirements to ensure that mDLs meet equivalent levels of security currently imposed on REAL ID-compliant physical cards and are otherwise secure. An mDL cannot be REAL ID-compliant until TSA establishes REAL ID requirements in regulations and States issue mDLs compliant with those requirements. As a result of this requirement, mDLs must also be REAL ID-compliant to be accepted when card-based enforcement begins on May 7, 2025.

B. Request for Information

In April 2021, DHS issued an RFI announcing DHS's intent to commence future rulemaking to set the minimum technical requirements and security standards for mDLs to enable Federal agencies to accept mDLs for official purposes. The RFI requested comments and information to inform DHS's rulemaking. In June 2021, DHS held a public meeting to provide an additional forum for comment. In response to comments at the public meeting concerning the importance of public access to an industry-developed standard referenced in the RFI, DHS subsequently published a notification in the Federal Register to facilitate access to the standard. DHS also conducted extensive outreach and engagement with affected stakeholders, including States, industry, and individuals. DHS also conducted a roundtable discussion on privacy considerations with non-profit organizations representing varied interests.

The RFI requested comments on 13 specific topics, including: potential security risks arising from mDL usage and mitigating solutions, potential privacy concerns or benefits associated with mDL transactions, the maturity of certain industry standards and the appropriateness of DHS's adoption of them, costs to individuals to obtain mDLs, and various technical topics associated with mDL issuance and communications. In response, DHS received about 60 comments. Please see Part IV, below, for a detailed discussion of the comments received, which are also referenced throughout this preamble.

C. mDL Overview

1. mDLs Generally

Driven by increasing public demand for more convenient, secure, and privacy-enhancing forms of identification, many States have invested significantly and rapidly in recent years to develop mDL technology. An mDL is generally recognized as the digital representation of an individual's identity information contained on a State-issued physical driver's license or identification card. An mDL may be stored on a diverse range of portable or mobile electronic devices, such as smartphones, smartwatches, and storage devices containing memory. Like a physical card, mDL data originates from identity information about an individual that is maintained in the database of a State driver's licensing agency.

Unlike physical driver's licenses that are read and verified visually through human inspection of physical security features, an mDL is read and verified electronically using a device known simply as a “reader” (discussed in Part II.C.2., below). Physical cards employ physical security features to deter fraud and tampering, such as “easily identifiable visual or tactile [security] features” on the surface of a card. An mDL, in contrast, combats fraud through the use of digital security features that are not recognizable through human inspection. For example, mDLs usually rely on digital security through use of asymmetric cryptography/public key infrastructure (PKI). As discussed in the RFI, Asymmetric cryptography generates a pair of encryption “keys” to encrypt and decrypt protected data. One key, a “public key,” is distributed publicly, while the other key, a “private key,” is held by the State driver's licensing agency ( i.e., a Department of Motor Vehicles, or “DMV”). When a DMV issues an mDL to an individual (see Fig. 1, below, communication no. 1), the DMV uses its private key to digitally “sign” the mDL data. A Federal agency validates the integrity of the mDL data by obtaining the DMV's public key to verify the digital signature (see Fig. 1: mDL Secure Communications). Private keys and digital signatures are elements of data encryption that protect against unauthorized access, tampering, and fraud.

Generally, mDL-based identity verification under REAL ID would involve a triad of secure communications between a State driver's licensing agency, an mDL holder, and a Federal agency. Specifically, and as shown in Fig. 1, below, the following three communications would occur: (1) Issuance and Updates: the DMV would issue or “provision” an mDL onto a mobile device of the person requesting the mDL (who then becomes the mDL holder), (2) Data Transfer: the mDL holder would authorize release of relevant data from the device to a Federal agency, which would use a reader to retrieve data, and (3) Validation: the Federal agency would use a reader, to confirm that the data originated from the issuing DMV and is unchanged, by verifying the DMV's public key. Although not depicted in Fig. 1, the Federal agency would also validate (via human inspection or facial matching software) that the mDL belongs to the individual presenting it by comparing the individual's live appearance to the photo retrieved by the reader. Standardized communication interfaces are necessary to enable Federal agencies to exchange information with all 56 U.S. States and territories that issue mDLs.

2. mDL Readers

Any Federal agency that chooses to accept mDLs for REAL ID official purposes would need to procure and use readers to validate an mDL holder's identity data from their mobile device and establish trust that the mDL is secure by using private-public key data encryption. Non-Federal agencies, such as State agencies, businesses, and other entities who choose to accept mDLs for uses beyond the scope of REAL ID are not governed by the REAL ID Act or regulations and therefore would make their own independent decisions concerning reading mDLs and reader procurement. The reader would confirm that the mDL holder's identity data is valid by performing the following steps: establishing a secure digital connection with an mDL holder's mobile device, receiving the required mDL information for identity verification, verifying its authenticity and integrity by validating the driver's licensing agency's digital signature of the mDL data, and confirming that the mobile device possesses the unique device key corresponding to the mDL at the time of issuance.

An mDL reader can take multiple forms, ranging from software to hardware. In its simplest form, an mDL reader can be an app installed on a smartphone or other mobile device. A reader could also be a dedicated device. This is expected to be a low-cost solution that could be added to existing smartphones carried by a verifying entity's employee. While reader development is ongoing in the industry, TSA understands that companies are already beginning to offer verification apps for free on their commercial app stores. As reader technology continues to evolve, there will likely be wide range of reader options with various capabilities and associated price points.

3. State mDL Issuance

As noted above, mDL-issuance is proliferating rapidly among States, with nearly half of all States piloting, issuing, or considering mDLs. As of the date of this NPRM, at least eight States (Arizona, Colorado, Delaware, Louisiana, Maryland, Mississippi, Oklahoma, and Utah) are issuing mDLs, and three States (Florida, Iowa, and Virginia) are currently piloting or have piloted mDLs. Additionally, at least 17 States (California, District of Columbia, Georgia, Hawaii, Illinois, Indiana, Kentucky, Michigan, Missouri, New Jersey, New York, North Dakota, Pennsylvania, Puerto Rico, Tennessee, Texas, and Wyoming) have indicated they are studying mDLs or considering enabling legislation.

Based on its analysis of the current environment, TSA believes that States are issuing mDLs using widely varying technology solutions, resulting in a fragmented environment rather than a common standard for issuance and use. The various States issuing or piloting mDLs are believed to be using technology solutions provided by multiple vendors, and it is not clear whether such technological diversity provides the safeguards and interoperability necessary for Federal acceptance. For example, in September 2021 and March 2022, Apple announced that it was working with 13 States (Arizona, Colorado, Connecticut, Georgia, Hawaii, Iowa, Kentucky, Maryland, Mississippi, Ohio, Oklahoma, Puerto Rico, and Utah) to enable their mDLs to be provisioned into Apple's Wallet app. Google and GET Group North America have made similar announcements. States choosing a variety of technology solutions, which could result in non-standard, non-compatible technologies, which raises additional questions concerning the Federal government's ability to accept the mDLs for Federal purposes.

Although detailed mDL adoption statistics are unavailable, anecdotal information and fragmented reporting indicates that mDLs are rapidly gaining public acceptance. For example, Louisiana has recently reported that over one million residents (representing more than 20% of its population) have installed Louisiana's mDL app on their mobile devices.

4. Potential Benefits of mDLs

An mDL has potential benefits for all stakeholders. For Federal agencies that require REAL ID-compliant IDs for official purposes, mDLs may provide efficiency and security enhancements. Compared to physical cards, which rely on manual inspection of physical security features on the surface of a card designed to deter tampering and fraud, mDLs rely on digital security features that are immune to many vulnerabilities of physical security features. For individuals, some commenters noted that mDLs may provide a more secure, convenient, privacy-enhancing, and “touchless” method of identity verification compared to physical IDs. Among other privacy-enhancing features, the holder of an mDL could control what data fields are released. For example, if an mDL is used for identity purposes with a Federal agency, the holder could restrict the agency to receiving only the data necessary and required by the agency to verify the individual's identity. Potential hygiene benefits also derive from the contact-free method of ID verification enabled by mDLs. An mDL holder may transmit data to a verifying Federal agency's mDL reader by hovering their mDL above the reader, potentially eliminating any physical contact with the individual's mobile device thereby reducing germ transmission.

D. Current and Emerging Industry Standards and Government Guidelines for mDLs

The nascence of mDLs and absence of standardized mDL-specific requirements provide an opportunity for industry and government to develop standards and guidelines to close this void. TSA is aware of multiple such documents, both published and under development, from both Federal and non-government sources. This section discusses standards and guidelines that form the basis of many of the requirements proposed in this rulemaking, as well as additional documents that may inform the upcoming Phase 2 rulemaking. As discussed in Part III.B.8, below, this rulemaking proposes to amend § 37.4 by incorporating by reference into part 37 nineteen standards and guidelines. All proposed incorporation by reference material is available for inspection at DHS Headquarters in Washington DC, please email requesttoreviewstandards@hq.dhs.gov. The material may also be obtained from its publisher, as discussed below.

1. American Association of Motor Vehicle Administrators

In September 2022, the American Association of Motor Vehicle Administrators published mDL Implementation Guidelines (AAMVA Guidelines). Mobile Driver's License (mDL) Implementation Guidelines Version 1.2 (Jan. 2023), American Association of Motor Vehicle Administrators, 4401 Wilson Boulevard, Suite 700, Arlington, VA 22203, available at https://aamva.org/getmedia/b801da7b-5584-466c-8aeb-f230cef6dda5/mDL-Implementation-Guidelines-Version-1-2_final.pdf. The Guidelines are available to the public for free at the link provided above. The AAMVA Guidelines adapt industry standard ISO/IEC 18013–5:2021 (discussed in Part II.D.4., below), for State driver's licensing agencies through the addition of more stringent and more specific recommendations, as the ISO/IEC standard has been developed for international purposes and may not meet all purposes and needs of States and the Federal Government. For example, Part 3.2 of the AAMVA Guidelines modify and expand the data elements specified in ISO/IEC 18013–5:2021, in order to enable the mDL to indicate the REAL ID compliance status of the companion physical card, as well as to ensure interoperability necessary for Federal acceptance. AAMVA has added data fields for DHS Compliance and DHS Temporary Lawful Status. These additional fields provide the digital analog to the requirements for data fields for physical cards defined in 6 CFR 37.17(n) and 37.21(e) respectively. As discussed generally in Part III.B, below, § 37.10(a)(1) and (4) of this proposed rule would require a State to explain, as part of its application for a waiver, how the State issues mDLs that are compliant with specified requirements of the AAMVA Guidelines.

2. Certification Authority Browser Forum

The Certification Authority Browser Forum (CA/Browser Forum) is an organization of vendors of hardware and software used in the production and use of publicly trusted certificates. These certificates are used by forum members, non-member vendors, and governments to establish the security and trust mechanisms for public key infrastructure-enabled systems. The CA/Browser Forum has published two sets of requirements applicable for any implementers of PKI, including States that are seeking to deploy Certificate Systems that must be publicly trusted and used by third parties:

• Baseline Requirements for the Issuance and Management of Publicly‐Trusted Certificates v. 1.8.6 (December 14, 2022), available at https://cabforum.org/wp-content/uploads/CA-Browser-Forum-BR-1.8.6.pdf, and

• Network and Certificate System Security Requirements v. 1.7 (April 5, 2021), available at https://cabforum.org/wp-content/uploads/CA-Browser-Forum-Network-Security-Guidelines-v1.7.pdf. CA/Browser Forum, 815 Eddy St, San Francisco, CA 94109, (415) 436–9333.

These documents are available to the public for free at the links provided above.

To issue mDLs that can be trusted by Federal agencies, each issuing State must establish a certificate system, including a root certification authority that is under control of the issuing State. TSA believes the CA/Browser Forum requirements for publicly trusted certificates have been proven to be an effective model for securing online transactions. As discussed generally in Part III.B.4, below, appendix A to subpart A of the part, sections 1, 2, and 4–8, require compliance with specified requirements of the CA/Browser Forum Baseline Requirements and/or Network and Certificate System Requirements. Section 37.4 of this proposed rule would IBR these CA/Browser Forum references.

3. Cybersecurity Guidelines

DHS and the Cybersecurity and Infrastructure Security Agency (CISA) have published two guidelines which are relevant to the operations of States' mDL issuance systems:

• National Cyber Incident Response Plan (Dec. 2016), available at https://www.cisa.gov/uscert/sites/default/files/ncirp/National_Cyber_Incident_Response_Plan.pdf, and

• CISA Cybersecurity Incident & Vulnerability Response Playbooks (Nov. 2021), available at https://www.cisa.gov/sites/default/files/publications/Federal_Government_Cybersecurity_Incident_and_Vulnerability_Response_Playbooks_508C.pdf.

Cybersecurity and Infrastructure Security Agency, Mail Stop 0380, 245 Murray Lane, Washington, DC 20528–0380, (888) 282–0870. These guidelines, available for free at the links provided above, provide details on best practices for management of systems during a cybersecurity incident, providing recommendations on incident and vulnerability response. Management of cybersecurity incidents and vulnerabilities are critical to maintenance of a State's mDL issuance information technology (IT) infrastructure. As discussed generally in Part III.B.4, below, appendix A to subpart A of the part, section 8, requires compliance with specified requirements of the DHS National Cyber Incident Response Plan and the CISA Cybersecurity Incident & Vulnerability Response Playbooks. Section 37.4 of this proposed rule would IBR these DHS and CISA standards.

4. ISO/IEC Standards and Technical Specifications

Two international standards-setting organizations, the International Organization for Standardization (ISO) and the International Electrotechnical Commission (IEC), are jointly drafting two series of multi-part International Standards and Technical Specifications. Series ISO/IEC 18013, Personal identification—ISO-compliant driving licence Parts 5–7, are specific to mDLs, and series ISO/IEC 23220 Cards and security devices for personal identification—Building blocks for identity management via mobile devices, Parts 1–6, concern digital identity (of which mDLs are a subset). DHS TSA has participated in the development of both Series as a non-voting member of the United States national body member of the Joint Technical Committee. Together, both Series would establish standardized interfaces that would enable the mDL communications triad (see Part II.C.1., above) as follows: (1) State driver's licensing agency and the mDL holder (Series 23220), (2) mDL Holder and a verifying entity (Series 18013), and (3) verifying entity and State licensing agency (Series 18013).

In September 2021, ISO and IEC published international standard ISO/IEC 18013, Part 5, entitled, “Personal identification—ISO-compliant driving licence.” ISO/IEC 18013–5:2021, Personal identification—ISO-compliant driving licence—Part 5: Mobile driving licence (mDL) application (Sept. 2021), International Organization for Standardization, Chemin de Blandonnet 8, CP 401, 1214 Vernier, Geneva, Switzerland, +41 22 749 01 11, www.iso.org/contact-iso.html. Section 37.4 of this rulemaking proposes to IBR this standard, which is available from DHS as discussed above. In addition, the American National Standards Institute (ANSI), a private organization not affiliated with DHS, will provide public access to ISO/IEC 18013–5:2021 until October 16, 2023. Standard ISO/IEC 18013–5:2021 standardizes the interface between an mDL and an entity seeking to read an individual's mDL for identify verification purposes, and sets full operational and communication requirements for both mDLs and mDL readers. This standard applies to “attended” mode verification, in which both the mDL holder and an officer or agent of a verifying entity are physically present together during the time of identity verification. DHS received numerous comments in response to the RFI concerning the appropriateness of this standard as a starting point for future regulatory requirements. Many comments received in response to the RFI noted that standard ISO/IEC 18013–5:2021, which published in Sept. 2021, provides a sufficient baseline for secure Federal acceptance. After carefully considering all comments received, TSA believes ISO/IEC 18013–5:2021 is critical to enabling the interoperability, security, and privacy necessary for wide acceptance of mDLs by Federal agencies for official purposes. As discussed in Part III.B, below, this NPRM proposes to IBR this standard into part 37. Specifically, § 37.8 of the proposed rule would require Federal agencies to validate an mDL as required by standard ISO/IEC 18013–5:2021, and § 37.10(a)(4) would require a State to explain, as part of its application for a waiver, how the State issues mDLs that are interoperable with this standard to provide the security necessary for Federal acceptance.

The ISO/IEC 23220 Series of Technical Specifications, “Cards and security devices for personal identification—Building blocks for identity management via mobile devices,” cover international digital IDs broadly and are applicable to mDLs. ISO/IEC 23220: Cards and security devices for personal identification—Building blocks for identity management via mobile devices, International Organization for Standardization, Chemin de Blandonnet 8, CP 401, 1214 Vernier, Geneva, Switzerland, +41 22 749 01 11, www.iso.org/contact-iso.html. This Series consists of six Parts, with Parts 3, 5, and 6 being relevant to mDLs and the forthcoming Phase 2 rulemaking. More specifically, Series 23220 would establish the following critical requirements for “provisioning” an mDL, which refers to the various steps required for a State driver's licensing agency to securely place an mDL onto a mobile device:

• Part 3, “Protocols and services for installation and issuing phase,” covers data function calls and formatting that States will use to communicate ( e.g., provision, refresh, revoke) with a mobile device.

• Part 5, “Trust models and confidence level assessment,” covers trust framework and provisioning, including confidence levels, identity proofing, binding, identity resolution, evidence validation, evidence verification, and holder authentication.
• Part 6, “Mechanism for use of certification on trustworthiness of secure area,” primarily covers device security requirements and trust of the secure areas in mobile devices.

TSA anticipates that Series ISO/IEC 23220 will define critical requirements for the interface between a State driver's licensing agency and mobile device. However, none of Parts 3, 5, and 6 of Series 23220 have published. TSA understands that drafts of Parts 3 and 5 may publish in late 2023, and final publication is possible by the end of 2024; publication dates for Part 6 are unknown, but a draft is anticipated in 2024. DHS received many comments in response to the RFI cautioning, however, that standard ISO/IEC 23220, Parts 3, 5, and 6, are not sufficiently mature to inform regulatory requirements. Given the evolving stage of Series ISO/IEC 23220 and comments to the RFI, TSA believes it is premature to rely on this Series to inform this proposed rulemaking and thus is not proposing to IBR them in this NPRM. TSA may consider adopting requirements of pertinent Parts of this standard in the upcoming Phase 2 rulemaking, pending review of the final published documents.

5. National Institute for Standards and Technology

i. Digital Identity Guidelines

The National Institute for Standards and Technology (NIST) has published Digital Identity Guidelines, NIST SP 800–63–3, that cover technical requirements for Federal agencies implementing digital identity. NIST Special Publication 800–63–3, Digital Identity Guidelines (June 2017), National Institute of Standards and Technology, U.S. Department of Commerce, 100 Bureau Drive, Gaithersburg, MD 20899, available at https://nvlpubs.nist.gov/nistpubs/SpecialPublications/NIST.SP.800-63-3.pdf. The Digital Identity Guidelines, available for free at the link provided above, define technical requirements in each of the areas of identity proofing, registration, user authentication, and related issues. Because TSA is not aware of a common industry standard for mDL provisioning that is appropriate for official REAL ID purposes today, TSA views the current NIST Digital Guidelines as critical to informing waiver application requirements for States regarding provisioning (discussed in detail in Part III.B.4., below). As discussed generally in Part III.B.4, below, under proposed rule text § 37.10(a)(2), which requires compliance with appendix A to subpart A of the part, a State must explain, as part of its application for a waiver, how the State issues mDLs that are compliant with NIST SP 800–63–3 to provide the security for mDL IT infrastructure necessary for Federal acceptance. Section 37.4 of this proposed rule would IBR NIST SP 800–63–3.

NIST has also published Digital Identity Guidelines Authentication and Lifecycle Management, NIST SP 800–63B, as a part of NIST SP 800–63–3. NIST Special Publication 800–63B, Digital Identity Guidelines: Authentication and Lifecycle Management (June 2017), National Institute of Standards and Technology, U.S. Department of Commerce, 100 Bureau Drive, Gaithersburg, MD 20899, available at

https://nvlpubs.nist.gov/nistpubs/specialpublications/nist.sp.800-63b.pdf. This document provides technical requirements for Federal agencies implementing digital identity services. The standard focuses on the authentication of subjects interacting with government systems over open networks, establishing that a given claimant is a subscriber who has been previously authenticated and establishes three authenticator assurance levels. As discussed generally in Part III.B.4, below, proposed rule text § 37.10(a)(2) requires compliance with appendix A to subpart A of the part, which would require a State to explain, as part of its application for a waiver, how the State manages its mDL issuance infrastructure using authenticators at assurance levels provided in NIST SP 800–63B. Section 37.4 of this proposed rule would incorporate by reference NIST SP 800–63B.

NIST is developing a revision to the Digital Identity Guidelines, SP 800–63–4, which is expected to impact key issues related to mDL processes. This publication and its companion volumes NIST SP 800–63A Rev. 4, SP 800–63B Rev. 4, and SP 800–63C Rev. 4, provide technical guidelines for the implementation of digital identity services. Initial public drafts of this suite published in December 2022, and final drafts may publish in early 2024. The full suite of draft NIST Digital Identity Guidelines, NIST SP 800–63–4, are available for free as follows:

• NIST SP 800–63–4, Digital Identity Guidelines, Initial Public Draft (December 2022), available at https://nvlpubs.nist.gov/nistpubs/SpecialPublications/NIST.SP.800-63-4.ipd.pdf.

• NIST SP 800–63A Rev. 4 Digital Identity Guidelines: Enrollment and Identity Proofing, Initial Public Draft (December 2022), available at https://nvlpubs.nist.gov/nistpubs/SpecialPublications/NIST.SP.800-63A-4.ipd.pdf;

• NIST SP 800–63B Rev. 4 Digital Identity Guidelines: Authentication and Lifecycle Management, Initial Public Draft (December 2022), available at https://nvlpubs.nist.gov/nistpubs/SpecialPublications/NIST.SP.800-63B-4.ipd.pdf;

• NIST SP 800–63C Rev. 4 Digital Identity Guidelines: Federation and Assertions, Initial Public Draft (December 2022), available at https://nvlpubs.nist.gov/nistpubs/SpecialPublications/NIST.SP.800-63C-4.ipd.pdf.

National Institute of Standards and Technology, U.S. Department of Commerce, 100 Bureau Drive, Gaithersburg, MD 20899. The final versions of these publications may be candidates for incorporation by reference (pending review of the final published documents) in the forthcoming Phase 2 rulemaking.

ii. Federal Information Processing Standards

NIST also maintains the Federal Information Processing Standards (FIPS) which relate to the specific protocols and algorithms necessary to securely process data. This suite of standards includes:

• NIST FIPS PUB 140–3, Security Requirements for Cryptographic Modules (March 22, 2019), available at https://nvlpubs.nist.gov/nistpubs/FIPS/NIST.FIPS.140-3.pdf,

• NIST FIPS PUB 180–4, Secure Hash Standard (SHS) (August 4, 2015), available at https://nvlpubs.nist.gov/nistpubs/FIPS/NIST.FIPS.180-4.pdf,

• NIST FIPS PUB 186–5, Digital Signature Standard (DSS) (February 3, 2023), available at https://nvlpubs.nist.gov/nistpubs/FIPS/NIST.FIPS.186-5.pdf,

• NIST FIPS PUB 197, Advanced Encryption Standard (AES) (November 26, 2001) available at https://nvlpubs.nist.gov/nistpubs/FIPS/NIST.FIPS.197.pdf,

• NIST FIPS PUB 198–1, The Keyed-Hash Message Authentication Code (HMAC) (July 16, 2008) available at https://nvlpubs.nist.gov/nistpubs/FIPS/NIST.FIPS.198-1.pdf, and

• NIST FIPS PUB 202, SHA–3 Standard: Permutation-Based Hash and Extendable-Output Functions (August 4, 2015) available at https://nvlpubs.nist.gov/nistpubs/FIPS/NIST.FIPS.202.pdf.

National Institute of Standards and Technology, U.S. Department of Commerce, 100 Bureau Drive, Gaithersburg, MD 20899. This suite of FIPS standards, available for free at the links provided above, are critical to the transactions required for mDLs, and any Federal systems which interact with or are used to verify a mDL for REAL ID official purposes will be required to use the algorithms and protocols defined. As discussed generally in Part III.B, below, § 37.10(a)(4) requires compliance with specified requirements of NIST FIPS PUB 180–4, 186–5, 197, 198–1, and 202, and appendix A to subpart A of the part, section 5, requires compliance with FIPS PUB 140–3. Section 37.4 of this proposed rule would incorporate by reference the suite of FIPS standards discussed above.

iii. Security and Privacy Controls for Information Systems and Organizations; Key Management

NIST has published several guidelines to protect the security and privacy of information systems:

• NIST SP 800–53 Rev. 5, Security and Privacy Controls for Information Systems and Organizations (September 2020), available at https://nvlpubs.nist.gov/nistpubs/SpecialPublications/NIST.SP.800-53r5.pdf.

• NIST SP 800–57 Part 1, Rev. 5, Recommendation for Key Management: Part 1—General (May 2020), available at https://nvlpubs.nist.gov/nistpubs/SpecialPublications/NIST.SP.800-57pt1r5.pdf.

• NIST SP 800–57 Part 2, Rev. 1, Recommendation for Key Management: Part 2—Best Practices for Key Management Organizations (May 2019), available at https://nvlpubs.nist.gov/nistpubs/SpecialPublications/NIST.SP.800-57pt2r1.pdf.

• NIST SP 800–57 Part 3, Rev. 1, Recommendation for Key Management, Part 3: Application-Specific Key Management Guidance (January 2015) available at https://nvlpubs.nist.gov/nistpubs/SpecialPublications/NIST.SP.800-57Pt3r1.pdf.

National Institute of Standards and Technology, U.S. Department of Commerce, 100 Bureau Drive, Gaithersburg, MD 20899. All of these documents are available for free at the links provided above.

Collectively, NIST SP 800–53 Rev. 5 and NIST SP 800–57 provide relevant controls for States regarding mDL security and privacy covering a broad range of topics related to the administration of a certificate system including: access management; certificate life-cycle policies; operational controls for facilities and personnel; technical security controls; and vulnerability management such as threat detection, incident response, and recovery planning. Due to the sensitive nature of State Certificate System processes and the potential for significant harms to security if confidentiality, integrity, or availability of the certificate systems is compromised, the minimum risk controls specified in appendix A to subpart A of the part require compliance with the NIST SP 800–53 Rev. 5 “high baseline” as set forth in that document, as well as compliance with the specific risk controls described in the appendix. In addition, and as discussed generally in Part III.B, below: appendix A to subpart A of the part, secs. 1–8, require compliance with NIST SP 800–53 Rev. 5; secs. 1 and 5 require compliance with NIST SP 800–57 Part 1, Rev. 5; sec. 1 requires compliance with NIST SP 800–57 Part 2 Rev. 1; and sec. 1 requires compliance with NIST SP 800–57 Part 3, Rev. 1. Section 37.4 of this proposed rule would incorporate by reference NIST SP 800–53 Rev. 5 and the full suite of NIST SP 800–57 references discussed above.

iv. Cybersecurity Framework

NIST has published the Framework for Improving Critical Infrastructure Cybersecurity v. 1.1 (April 16, 2018), National Institute of Standards and Technology, U.S. Department of Commerce, 100 Bureau Drive, Gaithersburg, MD 20899, available at https://nvlpubs.nist.gov/nistpubs/CSWP/NIST.CSWP.04162018.pdf. This document, available for free at the link provided above, provides relevant information for cybersecurity for States issuing mDLs. As discussed generally in Part III.B., below, certain requirements from the NIST Cybersecurity Framework have been adopted in appendix A to subpart A of the part, secs. 1,2, 5–8. Section 37.4 of this proposed rule would incorporate by reference the NIST Cybersecurity Framework.

6. W3C Standards

In its RFI, DHS specifically sought comments on industry standards that could inform future regulatory requirements. DHS received multiple comments concerning standards being developed by the World Wide Web Consortium (W3C), which is a standards-development organization that develops open standards for the World Wide Web. Similar to its involvement with ISO, DHS has participated in the development of these standards as a non-voting member in the W3C Credential Community Group.

While TSA is not proposing to IBR these W3C standards in this NPRM, TSA understands that W3C is developing two standards concerning digital identification that, like the ISO/IEC Series of standards discussed above, may be relevant to the Phase 2 rulemaking. The W3C standards are “Verifiable Credentials Data Model v1.1” (VCDM v1.1) and “Decentralized Identifiers v1.0” (DID v1.0). Verifiable Credentials Data Model v1.1 (March 3, 2022), W3C/MIT, 105 Broadway, Room 7–134, Cambridge, MA 02142, available at www.w3.org/TR/vc-data-model/; Decentralized Identifiers (DIDs) v1.0 (July 19, 2022), W3C/MIT, 105 Broadway, Room 7–134, Cambridge, MA 02142, available at www.w3.org/TR/did-core/. These documents are available to the public for free at the links provided above. DHS has participated in the development of these standards as a non-voting member in the W3C Credential Community Group.

In March 2022, the W3C published VCDM v1.1. A “Verifiable Credential” (VC) is a form of digital identification, developed under this standard, with features that enable a verifying entity to confirm its authenticity. This standard defines elements of a data model that enables using a digital identity in online transactions. The standard appears to provide broad requirements that enable issuance of diverse types of secure digital identification using varying data fields ( e.g., name, date of birth), data types ( e.g., text, numeric values, length of data string), and methods of digital security. Although the standard sets forth specifications for the data model generally, TSA understands the standard does not provide specific requirements to implement security and privacy protections for the data model. Instead, references to these topics appear to be largely non-binding, informative guidance. For example, the standard requires that the VC contain at least one encryption mechanism to detect tampering (such as a digital signature), but does not set forth any specific mechanisms that are acceptable. Similarly, although the standard encourages the use of mechanisms to enable a VC holder to selectively release only certain data to a verifying entity, it does not specify acceptable implementation mechanisms.

In July 2022, W3C published complementary standard DID v1.0, which specifies the essential requirements to enable the use of diverse types of digital identification in online transactions. A “DID,” is a unique identifier used in online transactions that, for example, enables VC holders to authenticate themselves. A DID can be used in a blockchain system. Like the VCDM standard, DHS understands that the DIDs standard includes non-binding guidance, but no prescriptive specifications, concerning security and privacy.

In their current forms, TSA understands that the W3C VCDM standard and DID standard focus on the use of digital identification in unattended mode internet transactions, which is different from the attended, in-person REAL ID transactions contemplated for mDLs under this rulemaking. In addition, the current versions of the W3C standards do not set forth specific requirements concerning security and privacy or an mDL-specific data model, which may impede States from developing standardized, interoperable mDLs. Several commenters also expressed similar concerns. TSA is not aware of any State pursuing an mDL with the VCDM model as the sole data model. However, TSA understands that W3C's work is ongoing, and future revisions may set forth security, privacy requirements, interoperability requirements, and a standardized data model needed for in-person REAL ID identity verification. In addition, given the breadth of the VCDM and DID, it may be possible in the future to develop a VCDM-based mDL that conforms to both W3C recommendations and the ISO/IEC standards simultaneously, providing full ecosystem interoperability. As stated above, TSA is not proposing to IBR these W3C Standards in this NPRM.

TSA understands that the standards and guidelines discussed above in this Part II.D. are the most comprehensive and relevant references governing mDLs today. TSA also acknowledges that many additional standards and guidelines are in development covering diverse types of digital identification that can be issued and verified by different entities, both government and commercial. These emerging documents are expected to concisely synthesize the large body of existing work from NIST and standards-development organizations, and will provide standardized mechanisms for mDLs. After carefully evaluating comments concerning emerging industry standards and closely observing ongoing development, TSA does not endorse any emerging standards at this time. TSA will continue to monitor development, and the future Phase 2 rulemaking may incorporate by reference pertinent parts of emerging standards (pending review of final published documents) that TSA believes are appropriate for Federal acceptance of mDLs for REAL ID official purposes.

E. DHS and TSA Involvement in mDLs

DHS and TSA have been actively participating in the mDL and digital identity space for many years to keep pace with industry developments. DHS has been participating in industry standards-development activities by serving as a non-voting member on working groups of the ISO/IEC and the W3C that are developing mDL/digital identity standards and technical specifications. Concurrently, DHS and TSA have been collaborating with industry to test the use of mDLs at various TSA security checkpoints. In 2022, TSA, under its collaboration with Apple (see Part II.C.3., above), launched a limited initiative that enables Arizona, Maryland, and Colorado residents to test the use of mDLs provisioned into the Apple Wallet app at select airport security checkpoints. On May 18, 2023, TSA announced acceptance of Georgia mDLs provisioned into the Apple Wallet app at select airport security checkpoints. Similarly, on March 1, 2023 and June 1, 2023, TSA announced acceptance of Utah-issued mDLs provisioned into the GET Mobile ID app, and Maryland-issued mDLs provisioned into the Google Wallet app, respectively, at select airports. Utah utilizes a third-party mDL app produced by GET Group North America. DHS and TSA anticipate additional collaborations with other States and vendors in the future. These programs enable States, industry, and the Federal government to evaluate mDLs and ensure that they provide the security, privacy, and interoperability necessary for future, full-scale acceptance at Federal agencies for official purposes as defined in the REAL ID Act.

III. Summary of the Proposed Rule

A. Overview

In addition to revising definitions applicable to the REAL ID Act to incorporate mDLs, this rule proposes changes to 6 CFR part 37 that would enable TSA to grant a temporary waiver to States that TSA determines issue mDLs consistent with specified TSA requirements concerning security, privacy, and interoperability. This rule would enable Federal agencies, at their discretion, to accept for REAL ID official purposes, mDLs issued by a State that has been granted a waiver. The proposed rule would apply only to Federal agency acceptance of State-issued mDLs as defined in this proposed rule for REAL ID official purposes, but not other forms of digital identification, physical driver's licenses or physical identification cards, or non-REAL ID purposes. Any temporary waiver issued by TSA would be valid for a period of 3 years from the date of issuance. The waiver enabled by this rulemaking would be repealed when TSA publishes a Phase 2 rule that would set forth comprehensive requirements for mDLs.

To obtain a waiver, a State would be required to submit an application, supporting data, and other documentation to establish that their mDLs meet TSA-specified criteria (discussed in Part III.B.4., below) concerning security, privacy, and interoperability. If the Secretary determines, upon evaluation of a State's application and supporting documents, that a State's mDL could be securely accepted under the terms of a waiver, the Secretary may issue such State a certificate of waiver. TSA intends to work with each State applying for a waiver on a case-by-case basis to ensure that its mDLs meet the minimum requirements necessary to obtain a waiver. This rulemaking would establish the full process for a State to apply for a waiver, including instructions for submitting the application and responding to subsequent communications from TSA as necessary, specific information and documents that a State must provide with its application, and requirements concerning timing, issuance of decisions, requests for reconsideration, and terms, conditions, and limitations related to waivers. To assist States that are considering applying for a waiver, TSA has developed guidelines, entitled, “Mobile Driver's License Waiver Application Guidance,” which provide non-binding recommendations of some ways that States can meet the application requirements set forth in this rulemaking.

TSA cautions, however, that the waiver enabled by this rulemaking is not a commitment by Federal agencies to accept mDLs issued by a State to whom TSA has granted a waiver. Federal agencies exercise full discretion over their identity verification policies, which may be subject to change. A Federal agency that accepts mDLs may suddenly halt acceptance for reasons beyond the agency's control, such as suspension or termination of a waiver, technical issues with IT systems, or a loss of resources to support mDLs. In such instances, an mDL holder seeking to use an mDL for REAL ID official purposes (including boarding commercially regulated aircraft or access to Federal facilities) may be denied such uses. To avoid this issue, TSA strongly urges all mDL holders to carry their physical REAL ID cards in addition to their mDLs. This will ensure that mDL holders are not disenfranchised from REAL ID uses if a Federal agency does not accept mDLs. Indeed, TSA has long advised that passengers who choose to present mDLs in TSA checkpoint testing must continue to have their physical cards readily available in the event that a TSA officer requires such identification. TSA also recommends to Federal agencies that they regularly inform the public, in a form and manner of their choosing, of their mDL acceptance policies. TSA urges the public to view mDLs not as a replacement of physical REAL ID cards, but as a complement to them.

B. Specific Provisions

1. Definitions

TSA proposes adding new definitions to subpart A, § 37.3. In particular, new definitions for “mobile driver's license” and “mobile identification card” are necessary because the current regulations predated the emergence of mDL technology and, therefore, does not define these terms. Additionally, the definitions reflect changes made by the REAL ID Modernization Act, which amended the definitions of “driver's license” and “identification card” to specifically include “mobile or digital driver's licenses” and “mobile or digital identification cards.” The proposed definitions in this rule would provide a more precise definition of “mobile driver's license” and “mobile identification card” by clarifying that those forms of identification require a mobile electronic device to store the identification information, as well as an electronic device to read that information. TSA also proposes adding a new definition of “mDL” that collectively refers to mobile versions of both State-issued driver's licenses and State-issued identification cards as defined in the REAL ID Act. TSA also proposes adding additional definitions to explain terms used in § 37.10(a) and appendix A to subpart A to the part. For example, the proposed rule would add new defintions for “digital certificates” and “certificate systems,” which are necessary elements of risk controls for the IT systems that States use to issue mDLs. In addition, the rulemaking proposes adding a definition for “certificate policy,” which forms the governance framework for the State's certificate systems. A State must develop, maintain, and execute a certificate policy to comply with the requirements set forth in appendix A to subpart A of the part.

2. TSA Issuance of Temporary Waiver From § 37.5(b) and State Eligibility Criteria

TSA proposes adding to subpart A new § 37.7, entitled “Temporary waiver for mDLs; State eligibility,” to establish the availability of a temporary waiver for a State to exempt its mDLs from meeting the card-based compliance requirement of § 37.5(b). Section 37.7(a) authorizes TSA to issue a temporary certificate of waiver to States that submit an application for a waiver that demonstrates compliance with application criteria set forth in § 37.10(a) and (b). This waiver would only apply to mDLs, not physical cards, and would not waive the requirement in § 37.5(b) regarding State-based compliance or any other requirements in the regulations. Issuance of a certificate of waiver to a State would permit Federal agencies to continue accepting for official purposes mDLs issued by those States when REAL ID enforcement begins on May 7, 2025. The mere issuance of a waiver to a State, however, does not obligate any Federal agency to accept an mDL issued by such State; each Federal agency retains discretion to determine its own policies regarding identification, including whether to accept mDLs.

To be eligible for consideration for a waiver, a State must meet the criteria set forth in proposed § 37.7(b). These criteria require that the issuing State: is in full compliance with REAL ID requirements; has submitted an application demonstrating that the State issues mDLs that provide security, privacy, and interoperability necessary for Federal acceptance; and issues mDLs only to individuals who have been issued a valid and unexpired REAL ID-compliant physical driver's license or identification card. TSA's determination of whether a State satisfies the eligibility criteria would be based on TSA's evaluation of the information provided by the State in its application (see Part III.B.4., below), as well as other information available to TSA.

3. Requirements for Federal Agencies That Accept mDLs

TSA proposes adding to subpart A new § 37.8, entitled “Requirements for Federal agencies accepting mDLs issued by States with temporary waiver.” This section proposes that any Federal agency that elects to accept mDLs for REAL ID official purposes must meet three requirements in proposed new § 37.8. First, a Federal agency must confirm that the State holds a valid certificate of waiver. Agencies would make this confirmation by verifying that the State's name appears in a list of States to whom TSA has granted a waiver. TSA would publish this list on the REAL ID website at www.dhs.gov/real-id/mDL (as provided in § 37.9(b)(1)). Second, Federal agencies must use an mDL reader to retrieve mDL data from an individual's mobile device, and validate that the data is authentic and unchanged. To retrieve and validate mDL data, Federal agencies must follow the processes required by industry standard ISO/IEC 18013–5:2021. Finally, if a State discovers that acceptance of a State's mDL is likely to cause imminent or serious threats to the security, privacy, or data integrity, the State must notify TSA at www.dhs.gov/real-id/mDL within 72 hours of such discovery. Examples of such triggering events include cyber-attacks and other events that cause serious harm to a State's mDL issuance system. TSA would consider whether such information warrants suspension of that State's waiver under § 37.9(e)(4)(i)(B) (see discussion in Part III.B.6., below). If TSA elects not to issue a suspension, Federal agencies would continue to exercise their own discretion regarding continuing acceptance of mDLs.

4. Requirements for States Seeking to Apply for a Waiver

TSA proposes adding to subpart A new § 37.9, which would set forth a process for a State to request a temporary certificate of waiver established in new § 37.7. As provided in § 37.9(a), a State seeking a waiver must file a complete application as set forth in § 37.10(a) and (b), following instructions that would be available at www.dhs.gov/real-id/mDL. Section 37.10(a) and (b) would set forth all information, documents, and data that a State must include in its application for a waiver. TSA is proposing that if TSA determines that the means that a State implements to comply with the requirements in § 37.10(a) and (b) provide the requisite levels of security, privacy, and data integrity for Federal acceptance of mDLs for official purposes, TSA would grant such State a waiver. TSA does not, however, propose prescribing specific means (other than the requirements specified in appendix A to subpart A of the part, which is discussed further in Part III.B.4.iv, below) that a State must implement. Instead, States would retain broad discretion to choose and implement measures to meet these requirements based on factors appropriate to that State.

(i) Application Requirements

As set forth in § 37.10(a)(1) through (4), a State would be required to establish in its application how it issues mDL under the specified criteria for security, privacy, and interoperability suitable for acceptance by Federal agencies, as follows:

• Paragraph (a)(1) would set forth requirements for mDL provisioning.
• Paragraph (a)(2) would specify requirements for managing State Certificate Systems, which are set forth in appendix A to subpart A of the part.
• Paragraph (a)(3) would require a State to demonstrate how it protects personally identifiable information of individuals during the mDL provisioning process.

• Paragraph (a)(4) would require a State to establish: how it issues mDLs that are interoperable with requirements set forth in standard ISO/IEC 18013–5:2021; that the State uses only those algorithms for encryption, secure hash function, and digital signatures that are specified in ISO/IEC 18013–5:2021, and in NIST FIPS PUB 180–4, 186–5, 197, 198–1, and 202; and how the State complies with the “AAMVA mDL data element set” as defined in the AAMVA mDL Guidelines v. 1.2, Section 3.2 (see Part II.D., above, for a detailed discussion of those references).

(ii) Audit Requirements

Section 37.10(b) would require a State to submit an audit report prepared by an independent auditor verifying the accuracy of the information provided by the State in response to § 37.10(a), as follows:

• Paragraph (1) would set forth specific experience, qualifications, and accreditations that an auditor must meet.
• Paragraph (2) would require a State to provide information demonstrating the absence of a potential conflict of interest of the auditing entity.

(iii) Waiver Application Guidance

As set forth in § 37.10(c), TSA proposes to publish “Mobile Driver's License Waiver Application Guidance,” in the Federal Register and on the REAL ID website at www.dhs.gov/real-id/mDL to assist States in completing their applications. The proposed guidance document is available for review at www.regulations.gov/docket/TSA20230002 . TSA is accepting comments on the guidance along with this proposed rule. This guidance would provide TSA's recommendations for some ways that States can meet the requirements in § 37.10(a)(1). The guidance would not establish legally enforceable requirements for a States applying for a waiver. Instead, the guidance would provide non-binding examples of measures and practices that a State may choose to consider as part of its overall strategy to issue mDLs. States continue to exercise discretion to select processes not included in the Guidance. Given the rapidly-evolving cyber threat landscape, however, TSA may periodically update its guidance to provide additional information regarding newly-published standards or other sources, or recommend mitigations of newly discovered risks to the mDL ecosystem. TSA would publish updated guidance in the Federal Register and on the REAL ID website at www.dhs.gov/real-id/mDL, and would provide a copy to all States that have applied for or been issued a certificate of waiver. Updates to guidance will not impact issued waivers or pending applications.

(iv) Appendix A to Subpart A: Requirements for State mDL Issuance Systems

Appendix A to subpart A of the part sets forth fundamental requirements to ensure the security and integrity of State mDL issuance processes. More specifically, these requirements concern the creation, issuance, use, revocation, and destruction of the State's certificate systems and cryptographic keys. The appendix consists of requirements in eight categories: (1) Certificate Authority Certificate Life Cycle Policy, (2) Certificate Authority Access Management, (3) Facility, Management, and Operational Controls, (4) Personnel Security Controls, (5) Technical Security Controls, (6) Threat Detection, (7) Logging, and (8) Incident Response and Recovery Plan. Adherence to these requirements ensures that States issue mDLs in a standardized manner with security and integrity to establish the trust necessary for Federal acceptance for official purposes.

• Certificate Authority Certificate Life Cycle Policy requirements (appendix A, sec. 1) ensure that a State issuing an mDL creates and manages a formal process which follows standardized management and protections of digital certificates. These requirements must be implemented in full compliance with the references cited in the appendix: the CA Browser Forum Baseline Requirements for the Issuance and Management of Publicly-Trusted Certificates, CA Browser Forum Network and Certificate System Security Requirement, NIST Cybersecurity Framework, NIST SP 800–53 Rev. 5, NIST SP 800–57, and NIST SP 800–53B.
• Certificate Authority Access Management requirements (appendix A, sec. 2) set forth policies and processes for States concerning, for example, restricting access to mDL issuance systems, policies for multi-factor authentication, defining the scope and role of personnel, and Certificate System architecture which separates and isolates Certificate System functions to defined security zones. These requirements must be implemented in full compliance with the references cited in the appendix: CA Browser Forum Network and Certificate System Security Requirements, NIST Cybersecurity Framework, NIST 800–53 Rev. 5, NIST SP 800–63–3, and NIST SP 800–63B.
• Under the requirements concerning Facility, Management, and Operational Controls (appendix A, sec. 3), States must provide specified controls protecting facilities where Certificate Systems reside from unauthorized access, environmental damage, physical breaches, and risks from foreign ownership, control, or influence. These requirements must be implemented in full compliance with the references cited in the appendix: NIST SP 800–53 Rev. 5.
• Personnel security controls (appendix A, sec. 4) require States to establish policies to control insider threat risks to Certificate Systems and facilities. Such policies must include establish screening criteria for personnel who access Certificate Systems, post-employment access termination, updates to personnel security policy, training, records retention schedules, among other policies. These requirements must be implemented in full compliance with the references cited in the appendix: NIST SP 800–53 Rev. 5 and CA Browser Forum Baseline Requirements for the Issuance and Management of Publicly-Trusted Certificates.
• Technical security controls (appendix A, sec. 5) specify requirements to protect Certificate System networks. In addition, States are required to protect private cryptographic keys of Issuing Authority Root Certificates using hardware security modules of Level 3 or higher and Document Signer private cryptographic keys in hardware security modules of Level 2 and higher. Other controls are specified regarding Certificate System architecture and cryptographic key generation processes. These requirements must be implemented in full compliance with the references cited in the appendix: CA Browser Forum Network and Certificate System Security Requirements, CA Browser Forum Baseline Requirements for the Issuance and Management of Publicly-Trusted Certificates, NIST Cybersecurity Framework, NIST SP 800–53 Rev. 5, NIST SP 800–57, and NIST FIPS 140–3.
• Under requirements for threat detection (appendix A, sec. 6), States must implement controls to monitor and log evolving threats to various mDL issuance infrastructure, including digital certificate, issuance, and support systems. These requirements must be implemented in full compliance with the references cited in the appendix: CA Browser Forum Network and Certificate System Security Requirements, CISA Cybersecurity Incident Vulnerability Response Playbooks, NIST Cybersecurity Framework, NIST SP 800–53 Rev. 5.
• Logging controls (appendix A, sec. 7) require States to record various events concerning Certificate Systems, including the management of cryptographic keys, digital certificate lifecycle events. The controls set forth detailed requirements concerning specific types of events that must be logged, as well as timeframes for maintaining such logs. These requirements must be implemented in full compliance with the references cited in the appendix: CA Browser Forum Baseline Requirements for the Issuance and Management of Publicly-Trusted Certificates, NIST Cybersecurity Framework, and NIST SP 800–53 Rev. 5.

• Finally, section 8 of appendix A requires States to implement policies to respond to and recover from security incidents. States must act on logged events, issue alerts to relevant personnel, respond to alerts within a specified time period, perform vulnerability scans, among other things. In particular, States must provide written notice to TSA at www.dhs.gov/real-id/mDL within 72 hours of discovery of a significant cyber incident or breach that could compromise the integrity of a Certificate System. These requirements must be implemented in full compliance with the references cited in the appendix: CA Browser Forum Network and Certificate System Security Requirements, CISA Cybersecurity Incident Vulnerability Response Playbooks, CISA National Cyber Incident Response Plan; NIST SP 800–53 Rev. 5, NIST Cybersecurity Framework. TSA invites comment on all aspects of the waiver application requirements and costs of compliance, including the Waiver Application Guidance, appendix A to subpart A to the part, the appropriateness of requiring compliance with the specified standards and guidelines and any alternate standards that should be considered, and other recommendations that commenters believe TSA should consider.

5. Decisions on Applications for Waiver

Section 37.9(b) would establish a timeline and process for TSA to issue decisions on a waiver application. Under this paragraph, TSA would endeavor to provide States a decision on initial applications within 60 days, but not longer than 90 days. TSA would provide three types of written notice via email: approved, insufficient, or denied.

If TSA approves a State's application for a waiver, TSA would memorialize that decision by issuing a certificate of waiver to that State, and including the State in a list of State-mDLs approved for Federal use, published by TSA on the REAL ID website at www.dhs.gov/real-id/mDL. A certificate of waiver would specify the date that the waiver becomes effective, the expiration date, and any other terms and conditions with which a State must comply, as provided under proposed § 37.9(d). A State seeking to renew its certificate beyond the expiration date must reapply for a waiver, as provided in § 37.9(e)(6).

If TSA determines that an application is insufficient, did not respond to certain information required in § 37.10(a) or (b), or contains other deficiencies, TSA would provide an explanation of such deficiencies and allow the State an opportunity address the deficiencies within the timeframe specified in § 37.9(b)(2). TSA would permit States to submit multiple amended applications if necessary, with the intent of working with States individually to enable their mDLs to comply with the requirements of § 37.10(a) and (b).

If TSA denies an application, TSA would provide the specific grounds for the basis of the denial and afford the State an opportunity to submit a new application. As stated in § 37.9(c), TSA would also provide a State an opportunity to seek reconsideration of a denied application. Instructions for seeking reconsideration would be provided by TSA on the REAL ID website at www.dhs.gov/real-id/mDL. An adverse decision upon reconsideration would be considered a final agency action. As provided in § 37.9(c), however, a State whose request for reconsideration has been denied may submit a new application for a waiver.

6. Limitations, Suspension, and Termination of Certificate of Waiver

Section 37.9(e) would set forth various restrictions on a certificate of waiver. Specifically, in paragraph (e)(1) of this section, TSA proposes that a certificate of waiver would be valid for a period of three years from the date of issuance. Paragraph (e)(2) proposes that a State must report to TSA if, after it receives a waiver, it makes significant modifications to its mDL issuance processes that differ in a material way from information that the State provided in its application. If the State makes such modifications, it would be required to report such changes 60 days before implementing the changes. This requirement is intended to apply to changes that may undermine the bases on which TSA granted a waiver. The reporting requirement is not intended to apply to routine, low-level changes, such as systems maintenance and software updates and patches. Paragraph (e)(3) would require a State that is issued a waiver to comply with all requirements specified in §§ 37.51(a) and 37.9(d)(3).

Section 37.9(e)(4) sets forth processes for suspension of certificates of waiver. As provided in proposed § 37.9(e)(4)(i)(A), TSA may suspend the validity of a certificate of waiver if TSA determines that a State:

• fails to comply with any terms and conditions (see § 37.9(d)(3)) specified in the certificate of waiver;
• fails to comply with reporting requirements (see § 37.9(e)(2)); or
• issues mDLs in a manner that is not consistent with the information the State provided in its application for a waiver under § 37.10(a) and (b).

Before suspending a waiver for these reasons, TSA will provide such State written notice via email that it intends to suspend its waiver, along with an explanation of the reasons, information on how the State may address the deficiencies, and a timeline for the State to respond and for TSA to reply to the State, as set forth in § 37.9(e)(4)(ii). DHS may withdraw the notice of suspension, request additional information, or issue a final suspension. If TSA issues a final suspension of a State's certificate of waiver, DHS will remove the name of that State from the list of mDLs approved for Federal acceptance for official purposes.

TSA additionally may suspend a State's waiver at any time upon discovery that Federal acceptance of a State's mDL is likely to cause imminent or serious threats to the security, privacy, or data integrity of any Federal agency, as proposed by § 37.9(e)(4)(i)(B). Suspension would apply to all Federal agencies and would not be agency-specific. Examples of such triggering events include cyber-attacks and other events that cause serious harm to a State's mDL issuance systems. If a State discovers a significant cyber incident that it believes could compromise the integrity of its mDL issuance systems, sec. 8.6 of appendix A to subpart A of the part would require States to provide written notice to TSA, at www.dhs.gov/real-id/mDL, of such incident within 72 hours of discovery. If TSA determines such suspension is necessary, TSA will provide written notice via email to each State whose certificate of waiver is affected, as soon as practicable after discovery of the triggering event, providing an explanation for the suspension, as well as an estimated timeframe for resumption of the validity of the certificate of waiver.

It is TSA's intent to work with States to resolve the conditions that could lead to suspension and avoid issuing a final suspension. If TSA issues a final suspension of any State's certificate of waiver, TSA will temporarily remove the name of that State from the list of mDLs approved for Federal acceptance for official purposes. A State receiving a final suspension may apply for a new certificate of waiver by submitting a new application. Under § 37.9(e)(5), TSA may terminate a certificate of waiver for serious or egregious violations. More specifically, TSA may terminate a waiver if TSA determines that a State:

• does not comply with REAL ID requirements in § 37.51(a);
• is committing an egregious violation of any terms and conditions (see § 37.9(d)(3)) specified in the certificate of waiver and is unwilling to cure such violation;
• is committing an egregious violation of reporting requirements (see § 37.9(e)(2)) and is unwilling to cure such violation; or
• provided false information in its waiver application.

Before terminating a certificate of waiver, TSA would provide written notice via email of intent to terminate, including findings supporting the termination and an opportunity to present information. As specified, a State would have 7 days to respond to the notice, and TSA would respond via email within 30 days. TSA may withdraw the notice of termination, request additional information, or issue a final termination. If TSA issues a final termination of a State's certificate of waiver, TSA will remove the name of that State from the list of mDLs approved for Federal acceptance for official purposes. A State whose certificate of waiver has been terminated may apply for a new certificate of waiver by submitting a new application.

7. Effect of a Status of Waiver on REAL ID Compliance

Section 37.9(f) clarifies that the status of a State's certificate of waiver, including the status of an application for a waiver, has no bearing on TSA's determination of that State's compliance or non-compliance with any other section of this part. A certificate of waiver that TSA has issued to a State is not a determination that the State is in compliance with any other section in this part. Similarly, an application for a waiver that TSA has deemed insufficient or denied, or a certificate of waiver TSA has suspended, terminated, or expired, is not a determination that the State is not in compliance with any other section in this part.

8. Incorporation by Reference

TSA proposes adding to subpart A, § 37.4, the following industry standards and government guidelines that this rulemaking proposes to incorporate by reference (discussed in detail in Part II.D., above):

• AAMVA

○ Mobile Driver's License (mDL) Implementation Guidelines, Version 1.2 (Jan. 2023);

• CA/Browser Forum

○ Baseline Requirements for the Issuance and Management of Publicly-Trusted Certificates, Version 1.8.6 (Dec. 14, 2022),

○ Network and Certificate System Security Requirements, Version 1.7 (Apr. 5, 2021);

• CISA

○ Cybersecurity Incident Vulnerability Response Playbooks (Nov. 2021),

○ National Cyber Incident Response Plan (Dec. 2016);

• ISO/IEC

○ ISO/IEC 18013–5:2021, Personal identification—ISO-compliant driving licence—Part 5: Mobile driving licence (mDL) application, Edition 1 (Sept. 2021);

• NIST

○ FIPS PUB 140–3, Security Requirements for Cryptographic Modules (Mar. 22, 2019),

○ FIPS PUB 180–4, Secure Hash Standard (SHS) (Aug. 2015),

○ FIPS PUB 186–5, Digital Signature Standard (DSS) (Feb. 2023),

○ FIPS PUB 197, Advanced Encryption Standard (AES) (Nov. 26, 2001),

○ FIPS PUB 198–1, The Keyed-Hash Message Authentication Code (HMAC) (July 2008),

○ FIPS PUB 202, SHA–3 Standard: Permutation-Based Hash and Extendable-Output Functions (Aug. 2015),

○ SP 800–53, Security and Privacy Controls for Information Systems and Organizations, Rev. 5 (Sept. 2020),

○ SP 800–57 Part 1, Recommendation for Key Management: Part 1—General, Rev. 5 (May 2020),

○ SP 800–57 Part 2, Recommendation for Key Management: Part 2—Best Practices for Key Management Organization, Rev. 1 (May 2019),

○ SP 800–57 Part 3, Recommendation for Key Management: Part 3: Application-Specific Key Management Guidance, Rev. 1 (Jan. 2015),

○ SP 800–63–3, Digital Identity Guidelines, (June 2017),

○ SP 800–63B, Digital Identity Guidelines Authentication and Lifecycle Management (June 2017), and

○ Framework for Improving Critical Infrastructure Cybersecurity Version 1.1 (Apr. 16, 2018).

C. Impacted Stakeholders

The proposed changes would apply to State driver's licensing agencies issuing mDLs that seek a temporary waiver from TSA for its mDLs. The waiver would enable Federal agencies to accept such mDLs for official purposes, defined in the REAL ID Act as accessing Federal facilities, entering nuclear power plants, boarding federally regulated commercial aircraft, and any other purposes that the Secretary shall determine. Any Federal agency that chooses to accept mDLs for official purposes must procure a reader in order to receive an individual's identity data.

This proposed rule does not impose any requirements on:

• States that do not seek a waiver for mDLs;
• Non-State issuers of other forms of digital identification; or
• Federal agencies to accept mDLs.

A State seeking a waiver for Federal acceptance of its mDLs for official purposes would be required to file with TSA a complete application and supporting documents. An application form and instructions would be published by TSA in a form and manner prescribed by TSA, such as a TSA-specified website. Through the application, the State would be required to demonstrate how its mDLs meet the requirements for a waiver set forth in § 37.10(a) and (b).

D. Use Cases Affected by This Proposed Rule

The scope of this proposed rule is confined strictly to Federal acceptance of mDLs for official purposes, defined by the REAL ID regulations as accessing Federal facilities, entering nuclear power plants, and boarding federally regulated commercial aircraft. Any other purpose is beyond the scope of this rulemaking. For example, a waiver issued under this proposed rule would not apply to any of the following:

• mDL acceptance by Federal agencies for non-REAL ID official uses ( e.g., applying for Federal benefits);

• mDL acceptance by non-Federal agencies ( e.g., State agencies, businesses, private persons);

• Commercial transactions; or
• Physical driver's licenses or identification cards.

Nothing in this proposed rule would require Federal agencies to accept mDLs; each Federal agency retains the discretion to determine its identification policies. Additionally, nothing in this proposed rule would require a State to seek a waiver or issue mDLs.

IV. Discussion of Public Comments in the RFI

As discussed in Part II.B., above, DHS issued an RFI on April 19, 2021, and requested comments from the public to be submitted by June 18, 2021. In addition, DHS and TSA held a virtual public meeting on June 30, 2021, to provide an additional forum for public comments, and extended the RFI comment period until July 30, 2021, to permit additional comments following the public meeting. Approximately 100 persons attended the public meeting. In response to discussion at the public meeting and comments to the RFI concerning the importance of access to the primary industry standard referenced in the RFI, ISO/IEC 18013–5:2021, DHS facilitated public access to the standard by publishing a notification in the Federal Register on September 16, 2021, providing instructions to the public to gain access to the standard without cost. Approximately 30 persons requested and received access. Additionally, DHS reopened the comment period until October 18, 2021. With the comment period extension and reopening, DHS provided a total RFI comment period of 180 days.

DHS received roughly 60 comments to the RFI from a diverse group of stakeholders, including advocacy groups representing varied interests, individuals, State government agencies, trade associations, and industry. An analysis of comments received showed that topics of interest to stakeholders concerned: the need for standardization and/or Federal guidance, potential benefits to the public from mDLs generally, and the appropriateness of ISO/IEC standards as a starting point for regulatory requirements. Input received from these stakeholders, as it relates to the focus of this NPRM, is included and referenced throughout this proposed rule.

In addition to the issues already discussed, many commenters raised concerns about potential privacy risks depending on the mode of data transfer. For background, an mDL reader can retrieve an individual's data under two different modes of operation: a “device retrieval” mode (also known as “offline”) in which data is retrieved directly from an mDL holder's mobile device, and a “server retrieval” mode (also known as “online”) in which the data is retrieved from a State driver's licensing agency. In its RFI, DHS noted that it was considering both modes of operation for Federal acceptance for official purposes, and specifically sought comments on the security and privacy risks, and mitigating solutions for both modes. DHS received numerous comments from advocacy groups, industry, and States concerning potential privacy risks posed specifically by server retrieval mode. Chief among these concerns was the potential for mDL usage to be tracked. TSA has observed that security and privacy protections to mitigate such concerns are evolving and unsettled, and after careful consideration of commenters' concerns, TSA does not believe server retrieval mode is appropriate for Federal acceptance for official purposes at this time. TSA will continue monitoring industry developments and may update its conclusions in the Phase 2 rulemaking, if warranted.

DHS also received comments on other topics, including non-REAL ID use cases such as commercial transactions and technical information on various topics. As noted above, a waiver issued under the proposed rule would not address use of an mDL for commercial transactions or any other non-Federal purposes not covered by the REAL ID Act or regulations. In general, mDL acceptance by Federal agencies for non-REAL ID official purposes, mDL acceptance by non-Federal agencies, and mDL use in commercial transactions go beyond the scope of the REAL ID Act's official purposes. Although not the focus of this proposal, TSA may examine some of these issues through its on-going mDL efforts, such as mDL collaborations with industry, which could inform future regulatory proposals. To support this interest, TSA appreciates stakeholders' perspectives on these topics.

V. Consultation With States, Non-Governmental Organizations, and the Department of Transportation

Under section 205 of the REAL ID Act, issuance of REAL ID regulations must be conducted in consultation with the Secretary of Transportation and the States. During the development of this NPRM, DHS and TSA consulted with the Department of Transportation and other Federal agencies with an interest in this rulemaking. DHS and TSA also consulted with State officials via AAMVA. In addition, DHS and TSA met with various non-governmental organizations, including civil rights and privacy advocacy groups. Stakeholder input, informed by extensive outreach, was critical to informing this NPRM.

VI. Regulatory Analyses

A. Economic Impact Analyses

1. Regulatory Impact Analysis Summary

Changes to Federal regulations must undergo several economic analyses. First, E.O. 12866 of September 30, 1993 (Regulatory Planning and Review), as supplemented by E.O. 13563 of January 18, 2011 (Improving Regulation and Regulatory Review), and amended by E.O. 14094 of April 6, 2023 (Modernizing Regulatory Review) directs Federal agencies to propose or adopt a regulation only upon a reasoned determination that the benefits of the intended regulation justify its costs. Second, the Regulatory Flexibility Act of 1980 (RFA) requires agencies to consider the economic impact of regulatory changes on small entities. Third, the Trade Agreement Act of 1979 prohibits agencies from setting standards that create unnecessary obstacles to the foreign commerce of the United States. Fourth, the Unfunded Mandates Reform Act of 1995 (UMRA) requires agencies to prepare a written assessment of the costs, benefits, and other effects of proposed or final rules that include a Federal mandate likely to result in the expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted for inflation) in any one year.

2. Assessments Required by E.O. 12866 and E.O. 13563

E.O. 12866 and E.O. 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Under E.O. 12866, as amended by E.O. 14094, agencies must also determine whether a regulatory action is significant. These requirements were supplemented by E.O. 13563, which emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility.

In conducting these analyses, TSA has made the following determinations:

(a) While TSA attempts to quantify costs where available, TSA primarily discusses the costs and benefits of this rulemaking in qualitative terms. At present, mDLs are part of an emerging and evolving industry with an elevated level of uncertainty surrounding costs and benefits. Nonetheless, TSA anticipates the rulemaking would not result in an effect on the economy of $200 million or more in any year of the analysis. The rulemaking would not adversely affect the economy, interfere with actions taken or planned by other agencies, or generally alter the budgetary impact of any entitlements.

(b) TSA has not prepared an Initial Regulatory Flexibility Analysis (IRFA) and, pursuant to 5 U.S.C. 605(b), the Secretary certifies that the proposed rule would not have a significant economic impact on a substantial number of small entities. The proposed rule would only directly regulate the fifty States, the District of Columbia, and the five U.S. territories who voluntarily participate in the mDL waiver process, who under the RFA are not considered small entities.

(c) TSA has determined that the NPRM imposes no significant barriers to international trade as defined by the Trade Agreement Act of 1979; and

(d) TSA has determined that the NPRM does not impose an unfunded mandate on State, local, or tribal governments, such that a written statement would be required under the UMRA, as its annual effect on the economy does not exceed the $100 million threshold (adjusted for inflation) in any year of the analysis.

TSA has prepared an analysis of its estimated costs and benefits, summarized in the following paragraphs, and in the OMB Circular A–4 Accounting Statement. When estimating the cost of a rulemaking, agencies typically estimate future expected costs imposed by a regulation over a period of analysis. For this proposed rule's period of analysis, TSA uses a 10-year period of analysis to estimate costs.

This proposed rule would establish a temporary waiver process that would permit Federal agencies to accept mDLs for official purposes, as defined in the REAL ID Act, when full enforcement of the REAL ID Act and regulations begins on May 7, 2025. Federal agencies would be able to accept mDLs for official purposes on an interim basis, provided that: (1) the mDL holder has been issued a valid and unexpired REAL ID-compliant physical driver's license or identification card from the same State that issued the mDL; (2) TSA has determined the issuing State to be REAL ID-compliant; and (3) TSA has issued a waiver to the State. Federal agencies that opt to accept mDLs for official purposes must also procure a mDL reader in order to validate the identity of the mDL holder. As part of the application process for the mDL waiver, States would be required to submit to TSA an application, including supporting data, and other documentation necessary to establish that their mDLs meet specified criteria concerning security, privacy, and interoperability. The criteria concerning security, privacy, and interoperability would not change absent a subsequent rulemaking. When REAL ID Act and regulations enforcement begins on May 7, 2025, Federal agencies will be prohibited from accepting non-compliant driver's licenses and identification cards, including both physical cards and mDLs, for official purposes.

In the following paragraph TSA summarizes the estimated costs of the proposed rule on the affected parties: States, TSA, mDL users, and relying parties (Federal agencies that voluntarily choose to accept mDLs for official purposes). TSA has also identified other non-quantified impacts to affected parties. As Table 1 displays, TSA estimates the 10-year total cost of the proposed rule to be $826.8 million undiscounted, $695.6 million discounted at 3 percent, and $562.0 million discounted at 7 percent. The total cost to States comprises approximately 98 percent of the total quantified costs of the proposed rule.

States incur costs to familiarize themselves with the requirements of the proposed rule, purchase access to an industry standard, submit their mDL waiver application, submit an mDL waiver reapplication, and comply with mDL application criteria requirements. As displayed in Table 2, the 10-year cost to States is $813.7 million undiscounted, $684.2 million discounted at 3 percent, and $552.4 million discounted at 7 percent.

TSA incurs costs associated with reviewing mDL waiver applications and mDL waiver renewals, purchasing access to industry standards, procuring mDL readers, and mDL training. As displayed in Table 3, the 10-year cost to TSA is $9.84 million undiscounted, $8.62 million discounted at 3 percent, and $7.35 million discounted at 7 percent.

Relying parties represent Federal agencies that elect to accept a mDLs for official purposes. Per the proposed rule, relying parties would be required to use a mDL reader to retrieve and validate mDL data. As a result, relying parties would incur costs to procure mDL readers should they voluntarily choose to accept mDLs for official purposes. TSA is also considered a relying party, but due to the particular impact to TSA related to the requirement for REAL ID related to boarding federally regulated commercial aircraft, those impacts are discussed separately. As displayed in Table 4, the 10-year cost to relying parties is $3.29 million undiscounted, $2.74 million discounted at 3 percent, and $2.19 million discounted at 7 percent.

TSA has also identified other non-quantified impacts to the affected entities. States may incur costs to: monitor and study mDL technology as it evolves; resolve the underlying issues that could lead to a suspension or termination of a mDL waiver; report serious threats to security, privacy, or data integrity; report material changes to mDL issuance processes; remove conflicts of interest with a third-party auditor; and request reconsideration of a denied mDL waiver application. TSA may incur costs to: investigate circumstances that could lead to suspension or termination of a State's mDL waiver; provide notice to States, relying parties, and the public related to mDL waiver suspensions or terminations; develop an IT solution that maintains an up-to-date list of States with valid mDL waivers; and resolve a request for reconsideration of a denied mDL waiver application. mDL users may incur costs with additional application requirements to obtain a mDL. Relying parties may incur costs to resolve any security or privacy issue with the mDL reader; report serious threats to security, privacy, or data integrity; verifying the list of States with valid mDL waivers; train personnel to verify mDLs; and update the public on identification policies.

TSA believes that States implementing a mDL, absent the rulemaking, would still comply with the AAMVA mDL Implementation Guidelines (hereafter referred to as the “AAMVA Guidelines”). Many of the requirements of the mDL application criteria are already contained within the AAMVA Guidelines. This includes mDL application criteria concerning: data encryption; authentication; device identification keys; user identity verification; applicant presentation; REAL ID compliant physical card; data record; records retention; privacy; and interoperability. Only the mDL application criteria related to escalated review and infrastructure security/issuance are not contained with the AAMVA Guidelines. Operating under the assumption that States interested in mDLs would comply with the AAMVA Guidelines, TSA assumes the application criteria that overlap with the AAMVA Guidelines would otherwise be incurred and thus not included as a cost of the proposed rule. However, TSA requests comment on this assumption and any cost information associated with the mDL application criteria.

This proposed rule would establish mDL application criteria that would serve as an interim mDL standard for those States choosing to issue mDLs that can be accepted for official purposes. TSA's application criteria may help guide States in their development of mDL technologies which would provide a shared standard that could potentially improve efficiency while also promoting higher security, privacy, and interoperability safeguards.

The application criteria set requirements establishing security and privacy protections to safeguard an mDL holder's identity data. They also set interoperability requirements to ensure secure transactions with Federal agencies. States, via their mDL waiver application, must establish that their mDLs meet the application criteria thus helping to ensure adequate security and privacy protections are in place. Absent the proposed rule, individual States may choose insufficient security and privacy safeguards for mDL technologies that fail to meet the intended security purposes of REAL ID and the privacy needs of users.

mDLs themselves may provide additional security benefits by offering a more secure verification of an individual's identity and authentication of an individual's credential compared to physical cards. In general, mDLs use a cryptographic protocol that ensures the mDL was obtained through a trusted authority, such as a State's Department of Motor Vehicles. This same protocol may prevent the alteration of mDLs and reduce the threat of counterfeit credentials. mDLs also offer increased protection of personal identifiers by preventing over-collection of information. mDLs may possess the ability to share only those attributes necessary to validate the user identity with the relying party. When using a physical card, the user has no ability to limit the information that is shared, regardless of the amount of information required for verification.

TSA's mDL application criteria can help guide State development and investment in mDLs. The mDL application criteria would foster a level of standardization that would potentially reduce complexity by limiting individual State nuances while also ensuring interoperability across States and with the Federal Government. This increased interoperability reduces implementation costs by limiting the need for different protocols or mechanisms to accept mDLs from individual States.

Identification of mDL application criteria that can be used across States would result in efficiency gains through multiple States pursuing similar objectives, goals, and solutions. Establishing application criteria early in the technology development process has the potential to align development activities across disparate efforts. Early guidance might also reduce re-work or modifications required in future regulations thus saving time and resources redesigning systems and functionality to adhere to subsequent Federal guidelines.

Furthermore, the mDL application criteria may potentially encourage investment in mDLs and the pooling of resources to develop mDL technology capabilities across States and address common concerns or issues. Such collaboration, or unity of effort, can help spread research and development risk and reduce inefficiencies that may arise from States working independently. Greater clarity over mDL regulations, with the proposed rule part of an incremental, multi-phased rulemaking approach, may spur new entrants (States and technology companies) into the mDL ecosystem.

The proposed rule, would allow Federal agencies to continue to accept mDLs for official purposes when REAL ID enforcement begins. This would avoid the sudden halting of mDL acceptance when REAL ID enforcement begins which would reverse trends in providing for a more customer-friendly screening experience. The experience and insight learned through the mDL waiver process could also be used to inform future standards and rulemaking.

3. OMB A–4 Statement

The OMB A–4 Accounting Statement presents annualized costs and qualitative benefits of the proposed rule.

4. Alternatives Considered

In addition to the proposed rule, or the “preferred alternative”, TSA also considered four alternative regulatory options.

The first alternative (Alternative 1) represents the status quo, or no change relative to the proposed creation of a mDL waiver. This represents a scenario without a rulemaking or a waiver process to enable mDL acceptance for official Federal purposes. Under this alternative, States would continue to develop mDLs in a less structured manner while waiting for relevant guiding standards to be published which would likely result in dissimilar mDL implementation and technology characteristics. This alternative was not selected because it does not address the market failures associated with a lack of common standards, such as increased complexity of mDL use across States, and may result in larger costs in the long run when formal mDL standards are finalized.

The second alternative (Alternative 2) features the same requirements of the proposed rule, including an mDL waiver process, but allows for an auto acceptance of certain State waivers that are “low-risk.” TSA would identify mDLs from States who have fulfilled the proposed rule's minimum requirements prior to applying for the waiver and have sufficiently demonstrated ( e.g., via TSA initiative or recent evaluation by a trusted party) to TSA that their mDL systems present adequate interoperability and low security and privacy risk. The auto acceptance provision would allow Federal agencies to immediately (or conditionally) accept those “low-risk” mDLs for official purposes pending final approval of the respective State mDL waiver applications. However, TSA rejects this alternative because TSA believes the emerging technology underlying mDLs is insufficiently established to accept the security, privacy, and interoperability of States' mDL systems without an evaluation by TSA or another trusted party. In addition, a similar presumptive eligibility process is not available for other aspects of REAL ID and such an action would not reduce the burden on States or TSA to comply with any framework DHS develops.

Under the third alternative (Alternative 3), TSA would establish more comprehensive requirements than those in the proposed rule to ensure mDLs comply with the REAL ID Act. States would be required to adopt the more comprehensive requirement to issue valid mDLs that can be accepted for official purposes. These technical requirements could include specific standards related to mDL issuance, provisioning, verification, readers, privacy, and other security measures. TSA rejects this alternative because promulgating more comprehensive requirements for mDLs is premature, as both industry standards and technology used by States are still evolving. Restrictive requirements could stifle innovation by forcing all stakeholders to pivot toward compliance. This could impede TSA from identifying and implementing a more efficient regulatory approach in the future.

Finally, under the fourth alternative (Alternative 4), instead of a waiver process, TSA would first establish minimum requirements for issuing REAL ID compliant mDLs before TSA later sets more comprehensive requirements as additional guidance and standards become available in the mid- and long-term. The interim minimum requirements would consist of the same requirements for security, privacy, and interoperability, based on nineteen industry and government standards and guidelines, described in the proposed rule to guide waiver applications. Alternative 4 effectively would codify standards that may become obsolete in the near future, as existing standards are revised, emerging standards publish, and new cyber threats proliferate. TSA rejects this alternative because establishing minimum requirements that may become obsolete in the near future may limit the ability for TSA to revise standards quickly and would increase the security and privacy risks of accepting mDLs. In addition, costs under Alternative 4 would roughly be similar to costs under the proposed rule, as both options would require audits and other compliance costs. TSA requests comments as to whether finalizing these minimum requirements for REAL ID compliance would be preferable to the temporary waiver process described in this proposal. Specifically, TSA seeks comment on whether Alternative 4 would realize higher benefits, either quantitative or qualitative, for States and the public, than the waiver process described in this proposal. TSA also seeks comment on costs to the affected entities to comply with the minimum requirements.

5. Regulatory Flexibility Act Assessment

The Regulatory Flexibility Act (RFA) of 1980, as amended, was enacted by Congress to ensure that small entities (small businesses, small not-for-profit organizations, and small governmental jurisdictions) would not be unnecessarily or disproportionately burdened by Federal regulations. Section 605 of the RFA allows an agency to certify a rule in lieu of preparing an analysis if the regulations are not expected to have a significant economic impact on a substantial number of small entities.

In accordance with the RFA, TSA has not prepared a Regulatory Flexibility Analysis and pursuant to 5 U.S.C. 605(b), the Secretary certifies that the proposed rule would not have a significant economic impact on a substantial number of small entities. The proposed rule would directly impact States that voluntarily choose to apply for a waiver that would permit mDLs issued by those States to be accepted for official Federal purposes.

6. International Trade Impact Assessment

The Trade Agreement Act of 1979 prohibits Federal agencies from establishing any standards or engaging in related activities that create unnecessary obstacles to the foreign commerce of the United States. The Trade Agreement Act does not consider legitimate domestic objectives, such as essential security, as unnecessary obstacles. The statute also requires that international standards be considered and, where appropriate, that they be the basis for U.S. standards. TSA has assessed the potential effect of this proposed rule and has determined this rule would not have an adverse impact on international trade.

7. Unfunded Mandates Reform Act Assessment

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104–4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. Under sec. 202 of the UMRA, TSA generally must prepare a written Statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures by State, local, and tribal governments in the aggregate or by the private sector of $100 million or more (adjusted for inflation) in any one year.

Before TSA promulgates a rule for which a written statement is required, sec. 205 of the UMRA generally requires TSA to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective, or least burdensome alternative that achieves the objectives of the rulemaking. The provisions of sec. 205 do not apply when they are inconsistent with applicable law. Moreover, sec. 205 allows TSA to adopt an alternative other than the least costly, most cost-effective, or least burdensome alternative if the final rule provides an explanation why that alternative was not adopted. Before TSA establishes any regulatory requirements that may significantly or uniquely affect small governments, including tribal governments, it must develop under sec. 203 of the UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of TSA regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements.

When adjusted for inflation, the threshold for expenditures becomes $177.1 million in 2022 dollars. TSA has determined that this proposed rule does not contain a Federal mandate that may result in expenditures that exceed that amount either for State, local, and tribal governments in the aggregate in any one year. TSA will publish a final analysis, including its response to public comments, when it publishes a final rule.

B. Paperwork Reduction Act

The Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501 et seq.) requires that TSA consider the impact of paperwork and other information collection burdens imposed on the public. Under the provisions of PRA section 3507(d), DHS must obtain approval from the Office of Management and Budget (OMB) for each collection of information it conducts, sponsors, or requires through regulations. This proposed rule would call for a collection of information under the PRA. Accordingly, TSA has submitted to OMB the proposed rule and this analysis, including the sections relating to collections of information. See5 CFR 1320.11(a). As defined in 5 CFR 1320.3(c), “collection of information” includes reporting, recordkeeping, monitoring, posting, labeling, and other similar actions. This section provides the description of the information collection and of those who must collect the information as well as an estimate of the total annual time burden.

The proposed rule establishes a process for States to apply to TSA for a temporary waiver. Such a request is voluntary but would require the submission of an mDL waiver application, resubmission of an mDL waiver application deemed insufficient or denied, and reapplication for a mDL waiver when the term of the mDL waiver expires. All of these items would be considered new information collections.

TSA uses the current State of mDL implementation to inform its estimate on how many State entities would request a mDL waiver during the period of analysis. All 50 States, the District of Columbia, and five territories (collectively referred to as States hereafter) are eligible to apply for a mDL waiver as discussed in the proposed rule. However, DHS assumes that not all States would apply for the mDL waiver. TSA assumes 15 States would apply for a mDL waiver in Year 1 of the analysis, 10 States in Year 2, and five States in Year 3.

Following the State submission of its mDL waiver application, TSA determines if the application is approved, insufficient, or denied. States are allowed to amend an insufficient or denied mDL waiver application and resubmit to TSA review.

TSA assumes that all submissions would initially be deemed insufficient due to the mDL waiver criteria being new and with mDLs an emerging technology. Nonetheless, TSA intends to work individually with interested States to meet the mDL criteria to maximize the likelihood of receiving a waiver. Based on these assumptions, TSA estimates all initial mDL waiver applications would be deemed insufficient and that 90 percent of States would resubmit their mDL waiver applications.

A State's mDL waivers would be valid for three years. Therefore, States granted a mDL waiver in Year 1 would need to reapply in Year 4 which is beyond the scope of this particular information collection.

TSA technology subject matter experts estimate that the mDL waiver application would take, on average, 20 hours to complete. TSA also estimates that mDL waiver resubmissions would take 25 percent of the initial mDL waiver application time which equates to 5 hours. Finally, TSA estimates that mDL waiver reapplications would take 75 percent of the initial mDL waiver application time which equates to 15 hours.

These hour burden estimates are combined with the number of collection activities to calculate the total and average time burden associated with the proposed rule. TSA estimates the proposed rule's total three-year burden for mDL waiver applications, mDL waiver resubmissions, and mDL waiver reapplications is 57 responses and 735 hours. TSA estimates an average yearly burden of 19 responses and 245 hours. Details of the calculation can be found in Table 6.

In addition, States TSA incur costs associated with independent entity audits of their mDL infrastructure. DHS estimates this cost at $32,500 per submission. States would incur this cost for the initial mDL waiver application and mDL waiver reapplication. As there are no reapplications anticipated for this information collection request, TSA multiplies the annual average number of mDL waiver applications from Table 6 above (10) and the independent entity audit cost of $32,500 for a total mDL waiver application cost of $325,000.

C. Federalism (E.O. 13132)

A rule has implications for federalism under E.O. 13132 of August 6, 1999 (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. TSA analyzed this proposed rule under this order and determined it does not have these implications for federalism.

D. Customer Service (E.O. 14058)

E.O. 14058 of December 13, 2021 (Transforming Federal Customer Experience and Service Delivery to Rebuild Trust in Government), is focused on enhancing the of technology “to modernize Government and implement services that are simple to use, accessible, equitable, protective, transparent, and responsive for all people of the United States.” The Secretary of Homeland Security has specifically committed to testing the use of innovative technologies at airport security checkpoints to reduce passenger wait times. This proposed rule supports this commitment. Using mDLs to establish identity at airport security checkpoints is intended to provide the public with increased convenience, security, privacy, and health benefits from “contact-free” identity verification. In 2022, DHS began a limited initiative to evaluate some mDLs to determine the viability of using an mDLs as a form of identification at an airport security checkpoint.

E. Energy Impact Analysis (E.O. 13211)

TSA analyzed this proposed rule under E.O. 13211 of May 18, 2001 (Actions Concerning Regulations That Significantly Affected Energy Supply, Distribution or Use), and determined that it is not a “significant energy action” under that E.O. and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. Therefore, this rulemaking does not require a Statement of Energy Effects.

F. Environmental Analysis

TSA reviews proposed actions to determine whether the National Environmental Policy Act (NEPA) applies to them and, if so, what degree of analysis is required. DHS Directive 023–01 Rev. 01 (Directive) and Instruction Manual 023–01–001–01 Rev. 01 (Instruction Manual) establish the procedures that DHS and its components use to comply with NEPA and the Council on Environmental Quality (CEQ) regulations for implementing NEPA, 40 CFR parts 1500 through 1508. The CEQ regulations allow Federal agencies to establish, with CEQ review and concurrence, categories of actions (“categorical exclusions”) which experience has shown do not individually or cumulatively have a significant effect on the human environment and, therefore, do not require an Environmental Assessment (EA) or Environmental Impact Statement (EIS). See40 CFR 1507.3(b)(2)(ii), 1508.4. DHS has determined that this action will not have a significant effect on the human environment. This action is covered by categorical exclusion number A3(d) in DHS Management Directive 023–01 Rev. 01.

VII. Specific Questions

While commenters are asked to comment on this proposal in its entirety, TSA specifically requests comments in response to the following questions. Commenters are encouraged to address issues that may not be discussed below based upon their knowledge of the issues and implications. In providing your comments, please follow the instructions in the Commenter Instructions section above.

1. Applications for waivers. Provide comments on:

a. The estimated cost and time required for States to complete and submit applications for waivers, including the initial mDL waiver application, resubmission, and reapplication;

b. The estimated number of States and territories that would submit a waiver application, and when those States and territories would submit a waiver application;

c. The percentage of States that would receive a decision of approved, insufficient, or denied;

d. The percentage of States receiving a decision of insufficient that would resubmit an amended application; and

e. The assumption that TSA would approve all resubmitted applications.

2. Application Criteria. Provide comments on:

a. The costs States may incur to demonstrate compliance with the criteria to apply for a waiver as required by proposed § 37.10(a) and appendix A to subpart A of the part, including the costs and availability of any professional services required;

b. The appropriateness of the application requirements set forth in proposed § 37.10(a) and appendix A to subpart A of the part;

c. The impact that the Initial Public Versions of Revision 4 of NIST SP 800–63, NIST SP 800–63A, NIST SP 800–63B, and NIST SP 800–63C may have on the requirements set forth in proposed § 37.10(a) and appendix A to subpart A of the part, including States' ability to demonstrate compliance with the criteria to apply for a waiver as required by proposed § 37.10(a) and appendix A to subpart A of the part.

3. Audit report. Provide comments on requiring States to submit a report of an audit as required in proposed § 37.10(b), which report would require verifying the materials that a State would provide in its application for a waiver as required by proposed § 37.10(a), including:

a. The appropriateness of requiring an audit to be conducted by a recognized independent entity;

b. The appropriateness of requiring an auditor to hold an active Certified Public Accountant license in the State that is seeking a waiver;

c. The appropriateness of requiring an auditor to be experienced with information systems security audits, including whether such auditors should have different or additional experience;

d. The appropriateness of requiring the auditor to be accredited by the State seeking a waiver;

e. The appropriateness of requiring an auditor to hold a current and active American Institute of Certified Public Accountants (AICPA) Certified Information Technology Professional (CITP) credential or ISACA (F/K/A Information Systems Audit and Control Association) Certified Information System Auditor certification;

f. The availability of auditors who meet the criteria specified in proposed § 37.10(b)(1);

g. The estimated cost and time incurred by States to obtain a report by the auditor; and

h. Any other considerations relating to auditing.

4. DHS Mobile Driver's License Waiver Application Guidance. Provide comments on the “Mobile Driver's License Waiver Application Guidance,” available at www.dhs.gov/real-id/mDL.

5. Waiver validity period. DHS is considering a three-year validity period for waivers. Provide comments on the appropriateness of a three-year validity period for waivers and on alternate validity periods.

6. Mobile driver's license readers. Provide comment on the costs to procure mDL reader equipment, estimated reader usage by Federal agencies, States, and businesses, and the functional form of such reader equipment.

7. mDL acceptance. Provide comment on the number of Federal agencies other than TSA DHS and DHS component agencies that voluntarily choose to accept mDLs for official purposes for identity verification, including:

a. The number and types of locations where mDLs will be accepted; and

b. The number of individuals that are expected to obtain mDLs.

8. Costs to individuals. Provide comment on costs incurred by mDL users, including costs associated with obtaining an mDL.

9. TSA invites public comments on Alternative 4, including, but not limited to, costs to the affected entities to comply with the minimum standards, benefits of the alternative compared to the preferred alternative, and risks to security and privacy of accepting mDLs based on the minimum requirements.

List of Subjects in 6 CFR Part 37

• Document security
• Driver's licenses
• Identification cards
• Incorporation by reference
• Licensing and registration
• Motor vehicle administrations
• Motor vehicle safety
• Motor vehicles
• Personally identifiable information
• Physical security
• Privacy
• Reporting and recordkeeping requirements
• Security measures

The Proposed Amendments

For the reasons set forth in the preamble, the Transportation Security Administration is proposing to amend part 37 of title 6, Code of Federal Regulations, to read as follows:

PART 37—REAL ID DRIVER'S LICENSES AND IDENTIFICATION CARDS

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.

Subpart A—General

2. Amend § 37.3 by adding the definitions for “A Root Certificate Authority,” “Administration,” “Certificate Authority,” “Certificate Management System,” “Certificate Policy,” “Certificate System,” “Critical Security Event,” “Delegated Third Party,” “Delegated Third Party System,” “Denial of Service,” “Digital Certificates,” “Digital Signatures,” “Distributed Denial of Service,” “Execution Environment,” “Front End System,” “Hardware security module,” “High Security Zone,” “Identity Proofing,” “Identity verification,” “Internal Support System,” “Issuing Authority,” “Issuing Authority Certificate Authority,” “Issuing System,” “mDL,” “Mobile driver's license,” “Mobile identification card,” “Multi-Factor Authentication,” “Online Certificate Status Protocol,” “Penetration Test,” “Public Key Infrastructure,” “Rich Execution Environment,” “Root Certificate Authority System,” “Secure Element,” “Secure hardware,” “Secure Key Storage Device,” “Secure Zone,” “Security Support System,” “Sole Control,” “State Root Certificate,” “System,” “Trusted Execution Environment,” “Trusted Role,” “Virtual Local Area Network,” “Vulnerability,” “Vulnerability scanning,” and “Zone” in alphabetical order to read as follows:

3. Amend § 37.4 by adding paragraphs (a)(2), (b)(2), and (d) through (f) to read as follows:

4. Add § 37.7 to read as follows:

5. Add § 37.8 to read as follows:

6. Add § 37.9 to read as follows:

7. Add § 37.10 to read as follows:

8. Add appendix A to subpart A to read as follows:

Appendix A to Subpart A of Part 37—Mobile Driver's License Issuance Infrastructure Requirements

A State that issues mDLs for acceptance by Federal agencies for official purposes as specified in the REAL ID Act must implement the requirements set forth in this appendix in full compliance with the cited references as set forth in the following table. All the standards identified in the following table are incorporated by reference, see § 37.4. If a State utilizes the services of a Delegated Third Party, the State must ensure the Delegated Third Party complies with all applicable requirements of this appendix for the services provided.