REAL ID 2025 deadline might really be real

Nearly 20 years after the passage of the REAL ID Act, and following multiple postponements of its implementation for air travel, the US Department of Homeland Security wants to finally implement the rule. Eventually.

The rulemaking would allow individual agencies to use their own expertise to structure enforcement plans in such a manner that will lead to successful enforcement of the REAL ID regulations while mitigating potential risks of immediately transitioning to full enforcement on May 7, 2025.

For the first time since its passage, the Department wants to hold to its announced efficacy date, despite knowing that roughly a third of IDs in circulation do not comply with the Act. But rather than enforcing the implementation on 7 May 2025, DHS will allow individual federal agencies to set internal policies allowing for a two-year ramp-up period.

Without this flexibility, and especially if the adoption rate remains low leading up to May 7, 2025, DHS believes Federal agencies could face a serious risk of operational disruption, negative public impact, and potential security vulnerabilities.

Yes, this sounds an awful lot like another two year delay of the program. But DHS officials see it differently, as by accepting the phased approach option the agencies are agreeing to a hard deadline of May 2027 for full compliance.

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Compliance Challenges

DHS suggests an “Informed Compliance Model” beginning next May. This would still allow travelers to use noncompliant IDs, but the TSA would be required to “provide written and verbal notice to any individual that seeks to use a valid, unexpired, noncompliant DL/ID for an official purpose on or after the card-based enforcement date of May 7, 2025. Individuals would then be permitted to continue the process for accessing a Federal facility or boarding a commercial aircraft.”

DHS also proposes a model that allows for limited noncompliant usage, but it does not appear TSA would be inclined to choose that option given significantly more complex implementation challenges.

Separately, it would appear that DHS has made this phased enforcement decision unilaterally. It is unclear if the recent SCOTUS ruling on the Chevron Deference would open an avenue for legal action against the agency’s decision to not implement the rules immediately.

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Unclear Costs

As with all proposed federal rules, DHS also provides cost estimates for implementation of this phased approach. The numbers are woefully incomplete.

The Agency is able to quantify the costs for making a decision about which policy to pursue, suggesting that one attorney and one manager would each spend 1.1 hours familiarizing themselves with the rule. Another 10-40 hours would be spent “to determine if based on their specific environment, developing and coordinating a phased enforcement plan is necessary.” Another 150-300 hours would be spent developing the plan and policies.

But DHS also acknowledges it cannot estimate the costs of actual implementation owing to “a high degree of variability among such plans…” For the TSA this would likely include production of the paper notification cards, distribution of them to all airports, and training of TSA employees on distribution of them to the appropriate passengers. The agency would also incur costs to inform travelers about the policy and the phased enforcement approach.

The proposed rule also notes “Individuals may also incur costs to become aware of phased enforcement plans and respond accordingly.” This is an anodyne way of stating that the bulk of compliance costs are transferred to consumers, both in the real costs of acquiring the ID, including collection of the necessary documentation and time spent getting it processed.

DHS also admits “the benefits associated with the 2008 rule are difficult to quantify,” so it cannot determine if the additional costs of the phased implementation (or a hard cutover) would outweigh the value of REAL ID enforcement.

Subject to review

Ultimately, this is a proposal from DHS, not a final ruling. The agency is required to accept comments from the public. The full filing can be found here or here.