DHS moves toward final phase of REAL ID enforcement, promises 120-day notice period for commercial flights

Five states may soon be subject to the federal REAL ID Act’s final phase of enforcement, but the Department of Homeland Security (DHS) says it will provide at least 120 days’ notice before anyone is required to show more than a driver’s license for domestic flights at commercial airports.

The REAL ID Act was passed by Congress and signed by President George W. Bush in 2005. Among the law’s provisions is a requirement that driver’s licenses include a machine-readable data chip or magnetic strip. Some states have balked at issuing licenses that comply with the law, citing privacy concerns.

To date, 22 states and the District of Columbia are compliant with the Act. Twenty-three have received extensions. Five states – Illinois, Minnesota, Missouri, New Mexico and Washington – are noncompliant and have not been granted an extension.

DHS says it may continue to accept enhanced driver’s licenses issued by Minnesota. Other than that, the final phase of REAL ID enforcement is set to begin in the noncompliant states on Sunday, Jan. 10. Initially, this means that driver’s licenses will not be accepted forms of ID to enter military bases, nuclear power plants and certain other federal facilities. DHS has said it will give at least 120 days of notice before enforcing the REAL ID Act at airport security checkpoints, however.

“Until otherwise announced, the Transportation Security Administration (TSA) will continue to accept driver’s licenses and state-issued identification cards from all jurisdictions,” DHS says on a REAL ID Frequently Asked Questions site. “DHS will ensure the public has ample advanced notice before identification requirements for boarding aircraft change.”

Should DHS move to enforce the REAL ID Act at commercial airports, acceptable forms of ID for states that are out of compliance would likely include passports, passport cards and green cards. A state-by-state breakdown on REAL ID compliance is available on this DHS website.

BAL Analysis: DHS says it is in the “process of scheduling plans for implementing REAL ID enforcement” at commercial airports, but the agency has made it clear that it will give at least 120 days’ notice before refusing to accept driver’s licenses from noncompliant states at airport security. It is also possible that noncompliant states will move into compliance or receive extensions in the interim. BAL will continue following the implementation of REAL ID enforcement and will update clients if it becomes necessary for travelers to obtain alternate forms of ID before making travel plans.

Copyright © 2016 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries please contact copyright@bal.com.