[Federal Register Volume 72, Number 46 (Friday, March 9, 2007)]
[Proposed Rules]
[Pages 10820-10858]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 07-1009]
[[Page 10819]]
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Part II
Department of Homeland Security
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6 CFR Part 37
Minimum Standards for Driver's Licenses and Identification Cards
Acceptable by Federal Agencies for Official Purposes; Proposed Rule
Federal Register / Vol. 72, No. 46 / Friday, March 9, 2007 / Proposed
Rules
[[Page 10820]]
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DEPARTMENT OF HOMELAND SECURITY
Office of the Secretary
6 CFR Part 37
[Docket No. DHS-2006-0030]
RIN 1601-AA37
Minimum Standards for Driver's Licenses and Identification Cards
Acceptable by Federal Agencies for Official Purposes
AGENCY: Office of the Secretary, DHS.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Department of Homeland Security is proposing to establish
minimum standards for State-issued driver's licenses and identification
cards that Federal agencies would accept for official purposes after
May 11, 2008, in accordance with the REAL ID Act of 2005. This rule
proposes standards to meet the minimum requirements of the REAL ID Act
of 2005, including: information and security features that must be
incorporated into each card; application information to establish the
identity and immigration status of an applicant before a card can be
issued; and physical security standards for locations where driver's
licenses and applicable identification cards are issued.
DATES: Submit comments by May 8, 2007.
ADDRESSES: You may submit comments, identified by the DHS docket number
DHS-2006-0030 that corresponds to this rulemaking, using any one of the
following methods:
Federal Rulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
Fax: 866-466-5370.
Mail: Paper, disk or CD-ROM submissions can be mailed to
the Department of Homeland Security, Attn: NAC 1-12037, Washington, DC
20528.
FOR FURTHER INFORMATION CONTACT: Darrell Williams, REAL ID Program
Office, Department of Homeland Security, Washington, DC 20528 (202)
282-9829.
SUPPLEMENTARY INFORMATION:
Public Participation
The Department of Homeland Security (DHS) invites interested
persons to participate in this rulemaking by submitting written
comments or data, and has requested comments on specific portions of
this rulemaking as described in section VI below. We also invite
comments relating to the economic, environmental, energy, or federalism
impacts that might result from this rulemaking action. See ADDRESSES
above for information on where to submit comments.
With each comment, please include your name and address, identify
the docket number at the beginning of your comments, and give the
reason for each comment. The most helpful comments reference a specific
portion of the rulemaking, explain the reason for any recommended
change, and include supporting data. You may submit comments and
material electronically, by fax, or by mail as provided under
ADDRESSES, but please submit your comments and material by only one
means. If you submit comments by mail, submit them in two copies, in an
unbound format, no larger than 8.5 by 11 inches, suitable for copying
and electronic filing.
If you want DHS to acknowledge receipt of comments submitted by
mail, include with your comments a self-addressed, stamped postcard on
which the docket number appears. We will stamp the date on the postcard
and mail it back to you.
DHS will file in the public docket all comments received by DHS,
except for comments containing confidential information and sensitive
security information (SSI).\1\ DHS will consider all comments received
on or before the closing date for comments. The docket is available for
public inspection.
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\1\``Sensitive Security Information'' or ``SSI'' is information
obtained or developed in the conduct of security activities, the
disclosure of which would constitute an unwarranted invasion of
privacy, reveal trade secrets or privileged or confidential
information, or be detrimental to the security of transportation.
The protection of SSI is governed by 49 CFR part 1520.
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Handling of Confidential or Proprietary Information and Sensitive
Security Information (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.
Upon receipt of such comments, DHS will not place the comments in
the public docket and will handle them in accordance with applicable
safeguards and restrictions on access. DHS will hold them in a separate
file to which the public does not have access, and place a note in the
public docket that DHS has received such materials from the commenter.
If DHS receives a request to examine or copy this information, DHS will
treat it as any other request under the Freedom of Information Act
(FOIA) (5 U.S.C. 552) and the Department of Homeland Security's (DHS')
FOIA regulations 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 received into any of our dockets by the name of the
individual submitting the comment (or signing the comment, if submitted
on behalf of an association, business, labor union, etc.). You may
review the applicable Privacy Act Statement published at
www.regulations.gov. You may also review the comments in the public
docket on the Internet at http://www.regulations.gov.
Availability of Rulemaking Document
You can get an electronic copy using the Internet by--
(1) Searching on www.regulations.gov by docket number or title, or
(2) Accessing the Government Printing Office's Web page at http://www.gpoaccess.gov/fr/index.html.
In addition, copies are available by writing or calling the
individual in the FOR FURTHER INFORMATION CONTACT section. Make sure to
identify the docket number of this rulemaking.
Abbreviations and Terms Used in This Document
AAMVA--American Association of Motor Vehicle Administrators
CAC--Department of Defense Common Access Card
CBP--Customs and Border Protection
CDLIS--Commercial Driver's License Information System
CHRC--Criminal History Records Check
CRBA--Consular Report of Birth Abroad
DHS--Department of Homeland Security
DMV--Department of Motor Vehicles
DOS--Department of State
DOT--Department of Transportation
EAD--Employment Authorization Document
EVVE--Electronic Verification of Vital Events
HHS--Department of Health and Human Services
IAFIS--Integrated Automated Fingerprint Identification
ICAO--International Civil Aviation Organization
ID--Identification Card
LPR--Lawful Permanent Resident
MRT--Machine Readable Technology
[[Page 10821]]
MRZ--Machine Readable Zone
NCSL--National Conference of State Legislatures
NCIC--National Crime Information Center
NGA--National Governors Association
NPRM--Notice of Proposed Rulemaking
PDPS--Problem Driver Pointer System
SAVE--Systematic Alien Verification for Entitlements
SEVIS--Student and Exchange Visitor Information System
SSA--Social Security Administration
SSI--Sensitive Security Information
SSN--Social Security Number
SSOLV--Social Security On-Line Verification
TIF--Tagged Image Format
TSA--Transportation Security Administration
TWIC--Transportation Worker Identification Credential
USCIS--U.S. Citizenship and Immigration Services
VWP--Visa Waiver Program
WHTI--Western Hemisphere Travel Initiative
Table of Contents
I. Background
A. Statutory Authority
B. Consultation With States, Non-Governmental Organizations, and
the Department of Transportation
C. Summary of the Proposed Rule
II. Analysis of this Proposed Rule
A. Scope and Applicability
1. Definition of ``Official Purpose''
2. Definition of ``REAL ID driver's license or identification
card''
3. Definition of ``Identification Card''
B. Compliance Period
C. Privacy Considerations
D. Document Standards for Issuing a REAL ID Driver's License or
Identification Card
1. Documents Required for Proving Identity
2. Additional Documents Considered and Rejected for Proof of
Identity
3. Other Documentation Requirements
E. Verification of Information Presented
1. Verification of ``Address of Principal Residence''
2. Verification of Identity Information
3. Verification of Lawful Status
4. Verification of Date of Birth
5. Verification of Social Security Account Number or
Ineligibility
6. Connectivity to Systems and Databases Required for
Verification
F. Exceptions Processing for Extraordinary Circumstances
G. Temporary Driver's Licenses and Identification Cards
H. Minimum Driver's License or Identification Card Data Element
Requirements
1. Full Legal Name
2. Driver's License or Identification Card Number
3. Digital Photograph
4. Address of Principal Residence
5. Signature
6. Physical Security Features
7. Privacy of the Information Stored on the Driver's License or
Identification Card
8. Machine-Readable Technology (MRT)
9. Encryption
I. Validity Period and Renewals of Driver's Licenses and
Identification Cards
1. Remote/Non-In-Person Renewals
2. In-Person Renewals
J. Source Document Retention
K. Security of DMV Facilities Where Driver's Licenses and
Identification Cards are Manufactured and Produced; Facility
Security Plans
1. Background Checks for Certain Employees
2. Physical/Logical Security
3. Document Security Features on Driver's Licenses and
Identification Cards
4. Security of Information Stored in the DMV Database
5. Security of Personal Data and Documents Collected and Managed
Under the Act
III. State Certification Process
IV. Driver's Licenses and Identification Cards That Do Not Meet the
Standards of Subparts A and B of These Regulations
V. Section 7209 of the Intelligence Reform and Terrorism Prevention
Act of 2004
VI. Solicitation of Comments
VII. Regulatory Analyses
I. Background
A. Statutory Authority
The REAL ID Act of 2005 \2\ (the Act) prohibits Federal agencies,
effective May 11, 2008, from accepting a driver's license or DMV-issued
personal identification card issued by a State for an official purpose
unless the issuing State is meeting the requirements of the Act. The
Act requires DHS to determine whether a State is meeting the Act's
requirements based upon certifications submitted by each State in a
manner prescribed by DHS. The Secretary of Homeland Security is
authorized under section 203 of the Act to issue regulations as
necessary to set the standards required under the Act. This rule
proposes implementation standards for States to meet the Act's
requirements for issuance of driver's licenses and identification cards
intended for acceptance by Federal agencies for official purposes.
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\2\ Division B--REAL ID Act of 2005, the Emergency Supplemental
Appropriations Act for Defense, the Global War on Terror, and
Tsunami Relief, 2005, Pub. L. 109-13, 119 Stat. 231, 302 (2005)
(codified at 49 U.S.C. 30301 note).
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The Act sets forth minimum document requirements, minimum driver's
license and identification card issuance standards, and other
requirements, including the following--
Information and features that must appear on the face of
the driver's license or identification card, and inclusion of a common
machine-readable portion of a driver's license or identification card;
Presentation and verification of information an applicant
must provide before a driver's license or identification card may be
issued, including evidence that the applicant is a U.S. citizen or has
lawful status in the United States;
Physical security of locations where driver's licenses and
identification cards are produced, the security of document materials
and papers from which driver's licenses and identification cards are
produced, and the background check of certain employees involved in the
manufacture and production of licenses, and;
Physical security of the driver's licenses and
identification cards to prevent tampering, counterfeiting, and
duplication of the documents for a fraudulent purpose.
The Act also permits a State otherwise in compliance with the Act
to issue driver's licenses and identification cards that do not conform
to the Act's requirements. Such driver's licenses and identification
cards, however, cannot be used for an official purpose and must clearly
state on the face of the card that a Federal agency may not use it for
an official purpose. The State also must use a unique design or color
indicator so that it is readily apparent to Federal agency personnel
that the card is not to be accepted for an official purpose.
Section 203 of the Act amends 18 U.S.C. 1028(a) to establish a
Federal criminal penalty for persons who knowingly traffic in actual
authentication features for use in fraudulent identification cards.
B. Consultation With the States, Non-Governmental Organizations, and
the Department of Transportation
Section 205(a) of the Act requires that any regulations, standards,
or grants under the Act be carried out in consultation with the
Secretary of Transportation and the States. DHS has met and consulted
with the Department of Transportation (DOT), and formed an interagency
work group to develop these proposed regulations. DOT and other Federal
agencies with an interest in this rulemaking participated actively in
the work group.
DHS has also consulted with State officials and State
representative associations in the development of this proposed rule
through meetings and conference calls in 2005 and 2006. Many States and
State representative associations participated in these events and
submitted written comments for consideration in the development of this
proposed rule. These are available for inspection in the public docket.
In particular, DHS received comments from the National Governors
[[Page 10822]]
Association (NGA), the National Conference of State Legislatures
(NCSL), and the American Association of Motor Vehicle Administrators
(AAMVA), which aggregated responses from 48 jurisdictions impacted by
REAL ID, including 46 States, American Samoa, and the District of
Columbia. DHS also met with various non-governmental organizations
(NGOs), particularly civil rights, privacy and religious groups. The
States and NGOs raised a series of concerns about the requirements
mandated under the Act. A summary of these concerns is outlined below.
DHS addresses each of these concerns in the discussion of the proposed
requirements under this rule in section II.
One of the first issues of concern to the States was the brief
period for compliance. There was concern that DHS would interpret the
Act in such a way as to require that all driver's licenses and
identification cards nationally be brought into compliance with the Act
by May 2008, an impossible task according to the States. The States
instead suggested a ``date forward'' approach, which we have proposed
to adopt as a phase-in period through May 2013.
The detailed requirements of the Act, particularly requirements for
original documents and proof of principal residence, also raised State
concerns that individuals, through no fault of their own, might not be
able to meet certain requirements of the Act. The States advocated for
an exceptions process to accommodate certain circumstances (victims of
natural disasters such as Hurricanes Katrina and Rita who no longer
have certain documents, or elderly individuals with no birth
certificate, for example). We understand these concerns and therefore
propose that the States adopt an exceptions process in their
Departments of Motor Vehicles (DMVs) that will be monitored by the
State and included as part of the State's certification process to DHS.
This exception process would include any difficulties arising from
attempts to verify birth information for individuals born before 1935,
who, due to various considerations, may not have been issued birth
certificates.
The Act requires States to subject certain individuals involved in
the manufacture and production of driver's licenses and identification
cards to appropriate background checks. The States have suggested to
DHS that, due to the unique structure of each State's DMV system, the
identification of positions that should be subject to this requirement
be left up to the States. DHS agrees with this proposal. The States
have also proposed that new hires be allowed to begin work at the DMVs
while their background check is pending. DHS understands that the
States must have flexibility in their hiring, and therefore proposes
that States place new employees in positions that are not subject to
the background check until the check is complete and satisfaction of
employment conditions for the covered position is determined.
The States have indicated to DHS that the Act will lead to an
increase in the number of required in-person visits to DMVs. Generally
speaking, the States have sought to utilize alternate service channels
(particularly the internet and services by mail) to reduce the required
number of in-person visits to DMVs, as a means of reducing State costs
and improving service to customers. The States have, therefore,
expressed particular concerns with the renewal process under REAL ID.
DHS understands these concerns and is therefore proposing that States
continue their remote renewal procedures, as long as they establish a
procedure to verify the identity of individuals applying for renewal
remotely, maintain images of the source documents the individual used
to obtain a REAL ID driver's license or identification card, and
establish a procedure to re-verify the information on the source
documents retained by the State. DHS proposes, however, that
individuals with temporary REAL ID driver's licenses or temporary
identification cards renew their documents in person, in order to
present evidence of continued lawful status.
C. Summary of the Proposed Rule
DHS proposes to issue REAL ID regulations that create minimum
standards for State driver's licenses and identification cards that
Federal agencies can accept for official purposes on or after May 11,
2008. Under this proposal, States must certify that they are in
compliance with these requirements, and DHS must concur, before the
driver's licenses and identification cards that the States issue may be
accepted by Federal agencies for official purposes on or after May 11,
2008. Because DHS recognizes that not all driver's licenses and
identification cards can be reissued by May 11, 2008, the proposal
provides a five-year phase-in period for driver's license or
identification card renewals. All driver's licenses and identification
cards that are intended to be accepted for official purposes as defined
in these regulations must be REAL ID licenses and identification cards
by May 11, 2013
Key features of the proposal include:
Applicant documentation. States would require individuals
obtaining driver's licenses or personal identification cards to present
documentation to establish identity; U.S. citizenship or lawful
immigration status as defined by the Act; date of birth; social
security number (SSN) or ineligibility for SSN; and principal
residence. States may establish an exceptions process for the
documentation requirement, provided that each such exception is fully
detailed in the applicant's motor vehicle record.
Verification requirements. States would verify the
issuance, validity, and completeness of a document presented. This
proposal specifies electronic verification methods depending on the
category of the documents.
Information on driver's licenses and identification cards.
The following information would be required to appear on State-issued
driver's licenses and identification cards: full legal name, date of
birth, gender, a unique driver's license or identification card number
(not the SSN), a full facial digital photograph, address of principal
residence (with certain exceptions), issue and expiration dates,
signature, physical security features and a common machine-readable
technology (MRT).
Security features on the card. The proposal contains
standards for physical security features on the card designed to
prevent tampering, counterfeiting or duplication for a fraudulent
purpose, and a common MRT with defined data elements.
Physical security/security plans. Each State must prepare
a comprehensive security plan for all State DMV offices and driver's
license/identification card storage and production facilities,
databases and systems and submit these plans to DHS as part of its
certification package.
Employee background checks. States would conduct name-
based and fingerprint-based criminal history records checks against
State criminal records and the FBI's NCIC and IAFIS, respectively, on
certain employees working in State DMVs who have the ability to affect
the identity information that appears on the driver's license or
identification card, who have access to the production process, or who
are involved in the manufacture of the driver's licenses and
identification cards. States would pay a fee to FBI to cover the cost
of this check. States would also conduct a financial history check on
these employees.
State certification process. Similar to DOT regulations
governing State
[[Page 10823]]
administration of commercial driver's licenses (49 CFR part 383),
States will be required to submit a certification and specified
documents to DHS to demonstrate compliance with these regulations and
demonstrate continued compliance annually.
Database connectivity. States would be required to provide
electronic access to specific information contained in the motor
vehicle database of the State to all other States.
II. Analysis of This Proposed Rule
A. Scope and Applicability
The Act does not require any State to issue REAL ID driver's
licenses and identification cards. States may choose to issue driver's
licenses and identification cards that cannot be accepted by Federal
agencies for official purposes (referred to in this document as ``non-
REAL ID driver's licenses and identification cards''). This proposed
rule would apply to States and territories that choose to issue
driver's licenses and identification cards that Federal agencies can
accept for official purposes. Consistent with section 202(d)(11) of the
Act, this rule also proposes requirements for issuance of non-REAL ID
driver's licenses (as well as non-REAL ID identification cards) by
States in compliance with the Act. Under this proposed rule,
individuals can hold only one valid REAL ID driver's license or
identification card at a time.
DHS understands that at present an individual may hold active
driver's licenses in multiple jurisdictions. Although DHS is not
regulating issuance of non-REAL ID driver's licenses beyond what is
required in the REAL ID Act, DHS wishes to further the concept of ``one
driver, one record, one record of jurisdiction'' and seeks comment on
how the REAL ID Act may be implemented to discourage the issuance of
multiple non-REAL ID driver's licenses to an individual, or what steps
States can take to ensure individuals are not holding multiple driver's
licenses from multiple States.
1. Definition of ``Official Purpose''
Section 201(3) of the Act provides that the term ``official
purpose'' ``includes but is not limited to accessing Federal
facilities, boarding Federally-regulated commercial aircraft, entering
nuclear power plants, and any other purposes that the Secretary shall
determine.'' DHS proposes to limit the regulatory definition of
``official purpose'' at this time, to those purposes expressly stated
in the Act--accessing Federal facilities, boarding commercial aircraft,
and entering nuclear power plants. DHS, under the discretionary
authority granted to the Secretary of Homeland Security under the Act,
may expand this definition in the future. DHS seeks comment on the
proposed scope of ``official purpose,'' and how DHS could expand this
definition to other federal activities.
DHS considered including the acquisition of Federally-issued
identification documents, such as a Transportation Worker
Identification Card (TWIC), military Common Access Card (CAC),
passport, or PASSport card within the proposed definition of ``official
purpose.'' To do so would be consistent with the concept of
strengthening the reliability of identity documents, one of the primary
objectives of the Act. However, since no State would be required to
have all of its citizens possess Real ID driver's licenses and
identification cards until May 2013, DHS concluded that it would be
premature to require Federal agencies to accept only Real ID driver's
licenses and identification cards during the phase-in period and that
the imposition of such a requirement could inhibit individuals from
obtaining these necessary forms of Federal identification.
Federal agencies themselves do not currently examine identification
from all individuals seeking to board regulated commercial aircraft or
to enter nuclear power plants. In the case of aircraft, often it is
aircraft operators that examine driver's licenses or other
identification credentials of individuals seeking entry to the sterile
area of an airport. However, they do so in compliance with requirements
in security programs issued pursuant to TSA regulations. DHS interprets
the language of the REAL ID statute to mean that when nongovernmental
entities require identification for the scope of activities considered
``official purposes'' in compliance with Federal requirements, and an
individual presents a driver's license or DMV-issued identification
card, the REAL ID Act's federal acceptance requirements would also
apply to these nongovernmental entities.
These regulations are not intended to change current admittance
practices at Federal facilities. If a Federal facility does not
currently require presentation of photo identification prior to entry,
the Act and these proposed regulations would not require that process
to change. Similarly, if a Federal facility currently accepts
identification other than a State-issued driver's license or
identification card, the Act and these proposed regulations do not
require that the agency refuse to accept such other forms of
identification. If the individual intends to use a State-issued
driver's license or identification card, however, it must be one that
is issued by a State that is complying with the REAL ID Act.
2. Definition of ``REAL ID Driver's License or Identification Card''
Throughout this proposed rule, driver's licenses and identification
cards issued under these regulations that Federal agencies may accept
for official purposes are referred to as ``REAL ID driver's licenses
and identification cards.'' The term ``REAL ID driver's licenses and
identification cards'' includes driver's licenses and identification
cards issued by State DMVs (or other State agencies with comparable
responsibility for issuing driver's licenses and identification cards)
to U.S. citizens and Lawful Permanent Residents (LPRs) of the United
States for a maximum renewable period of eight years. The term ``REAL
ID driver's licenses and identification cards'' also includes driver's
licenses and identification cards acceptable for official purposes that
are issued to aliens legally present in the United States for a finite
period of time, upon verification of their current lawful status for
the period of their authorized length of stay, or for one year, if no
length of stay is specified. In instances where the proposed regulation
discusses these temporary driver's licenses and identification cards
independently, these types of REAL ID licenses and identification cards
are referred to as ``temporary REAL ID driver's licenses and
identification cards.''
3. Definition of ``Identification Card''
Section 201(2) of the Act defines ``identification card'' to mean
``a personal identification card, as defined in section 1028(d) of
title 18 United States Code, issued by a State.'' In turn, 18 U.S.C.
1028(d) defines this term, in pertinent part, to mean ``a document made
or issued by or under the authority of * * * a State [or] a political
subdivision of a State * * * which, when completed with information
concerning a particular individual, is of a type intended or commonly
accepted for the purpose of identification of individuals[.]'' Section
201(2), by its express terms, could cover any identification card
issued by or under the authority of a State, including identification
cards for State-chartered universities and colleges, and cards issued
by State agencies to obtain public benefits. At this time, DHS is
limiting the scope of this definition to identification cards issued by
State
[[Page 10824]]
DMVs or other State offices with comparable responsibility for issuing
driver's licenses.
DHS believes that these additional documents mentioned above are
not currently accepted as identification documents to the same degree
as State-issued driver's licenses and identification cards issued by a
State DMV. In addition, it would be unduly burdensome at this time for
DHS to require that the issuers of these additional documents comply
with these proposed standards, since DMVs have been considering the
Act's requirements for some time, and it is likely that universities
and other State entities have not.
B. Compliance Period
Section 202(a)(3) of the Act provides that, ``[b]eginning 3 years
after the date of enactment of this division, a Federal agency may not
accept, for any official purpose, a driver's license or identification
card issued by a State to any person unless the State is meeting the
requirements of this section.'' The Act further states that DHS ``shall
determine whether a State is meeting the requirements of [the Act]
based on certifications made by the State to the Secretary.'' Id.,
(a)(2). DHS, the Department charged with implementing and enforcing the
REAL ID Act requirements for identification standards, interprets the
compliance provision to mean that effective on May 11, 2008, Federal
officials will be prohibited from accepting State-issued driver's
licenses and identification cards for official purpose unless the State
has submitted the required certification or extension application to
DHS and DHS has determined that the State is meeting the requirements
of the Act. DHS is proposing under this rule to find that a State
certification is sufficient for compliance under the Act if the State
has established a program that ensures the State's DMVs will begin
issuing driver's licenses and identification cards that meet the
requirements of the Act and standards proposed under this regulation
beginning May 11, 2008. DHS does not interpret the Act as requiring the
States to recall and reissue all driver's licenses and identification
cards by May 11, 2008. Rather, States will be able to replace all
driver's licenses and identification cards with REAL ID driver's
licenses and identification cards intended to be accepted for official
purposes by May 11, 2013.
Accordingly, DHS proposes the following compliance requirements:
(1) Each State must submit its certification package to DHS on its
REAL ID driver's license and identification card programs no later than
February 10, 2008, 90 days before the May 11, 2008 compliance date
required under the Act. DHS strongly encourages States to communicate
their intent to certify compliance or request an extension by October
1, 2007;
(2) DHS will not find that a State is meeting the requirements of
the Act if the State's certification does not demonstrate that the all
REAL ID driver's licenses and identification cards issued by the State
on or after May 11, 2008, will meet the standards required under the
Act and proposed under these regulations, unless the State has sought
and received an extension;
(3) For unexpired driver's licenses and identification cards issued
prior to May 11, 2008, DHS proposes a five-year phase-in period to
allow individuals to apply for and receive new driver's licenses and
identification cards that comply with these rules. These driver's
licenses and identification cards would be acceptable for official
purposes until they expire, or until the phase-in period ends, on May
10, 2013--whichever is earlier. Driver's licenses and identification
cards issued before May 11, 2008 that do not expire until after the
phase-in period ends would have to be exchanged for driver's licenses
and identification cards issued under the new rules in order to be
accepted by Federal agencies for official purposes after May 10, 2013.
If a driver's license or identification card that would not
otherwise expire until after May 11, 2008 needs to be reissued by a
State prior to its expiration date, DHS is proposing that the driver's
license or identification card must meet the new standards at the time
it is reissued. This reissuance would occur, for example, if a driver's
license or identification card has been lost or stolen and needs to be
replaced, or if changes in information occur which would cause the DMV
to issue a new driver's license or identification card.
Under section 205(b) of the Act, DHS may grant an extension of time
to meet the requirements of the Act if the State provides adequate
justification. DHS recognizes that many States need a final rule in
order to guide their implementation efforts. Many States have informed
DHS that, absent sufficient time to consider and act upon the final
rule, the States will not be in a position to comply with the Act and
the final rule. In recognition of this fact, DHS is establishing a
mechanism where States can request an expedited extension of the
compliance deadline. States may request an extension based on the lack
of a final REAL ID rule by filing such a request no later than October
1, 2007. Based on information already received by DHS, and absent
extraordinary circumstances, an extension request will be deemed
justified for a period lasting until, but not beyond, December 31,
2009.
Under this provision of the Act, DHS also intends to issue
compliance guidance to the States. This guidance will set forth
benchmarks or best practices against which progress toward full
compliance will be measured and to assist States in drafting the
certification packages. As proposed in this rule, DHS would require
submission of certifications no later than February 10, 2008, but the
Department strongly encourages States to submit certification packages
by October 1, 2007. State certification packages should include
milestones, schedules, and estimated resources needed to meet all the
requirements of the final rule no later than May 11, 2008. States will
resubmit and DHS will re-evaluate State plans on an annual basis until
all requirements of this rule are met. DHS welcomes comments from the
States on appropriate benchmarks for measuring progress toward meeting
the requirements of this rule and on specific resource and schedule
constraints in meeting these benchmarks.
C. Privacy Considerations
The public has long been accustomed to providing personal
information for the purpose of obtaining driver's licenses and
identification cards and to having this information printed on driver's
licenses. Most States already include this information in a machine
readable technology (MRT). With the enactment of the REAL ID Act,
however, there has been increased attention to the privacy
ramifications involving the information that will appear on the
licenses and identification cards and the exchange of information. Some
have raised concerns that the Act could create an increased risk of
identity theft and erode privacy, or be a stepping-stone to a national
identity card.
A frequently-heard concern relates to the amount of additional
information the Federal Government will have about driver's license
holders and what the Federal Government will do with that data. In
fact, however, neither the Real ID Act nor these proposed regulations
gives the Federal Government any greater access to information than it
had before. Moreover, there is no information about a licensee that the
Federal Government will store that it is not already required to store.
As described below, DHS has sought to address these privacy
concerns within the limits of its authority under
[[Page 10825]]
the Act.\3\ At the Federal level, only the Driver's Privacy Protection
Act of 1994 (DPPA) \4\ addresses the privacy of motor vehicle records,
but its protections are limited. Although it addresses the use and
disclosure of personal information stored in State motor vehicle
records, the DPPA does not provides privacy protections for the
personal information stored on the licenses themselves or set any
security requirements for the motor vehicle databases. DHS has sought
in the NPRM to provide for appropriate privacy and security protections
to the extent of its authority.
---------------------------------------------------------------------------
\3\ The Act does not include statutory language authorizing DHS
to prescribe privacy requirements for the state-controlled databases
or data exchange necessary to implement the Act. This is in sharp
contrast with the express authorization provided in section 7212 of
IRTPA, which was the prior state licensing provision repealed by the
Real ID Act. Section 7212(b)(3)(E) of IRTPA stated that the Federal
regulations ``shall include procedures and requirements to protect
the privacy rights of individuals who apply for and hold driver's
licenses and personal identification cards.''
\4\ Pub. L. 103-322 as amended by Pub. L. 106-69, 18 U.S.C. 2721
et seq.
---------------------------------------------------------------------------
This section of the NPRM will summarize the requirements of the Act
that potentially have the greatest impact on privacy, the extent to
which those requirements change current State driver's licensing
practices, and how DHS intends to address privacy concerns regarding
the Act. This analysis will address the three key privacy issues posed
by the Act: (1) The connectivity of the databases; (2) the protection
of the personal information stored in the State databases; and (3) the
protection of the personal information stored on machine readable
technology on the DL/IDs. We invite comments on whether the steps
outlined below and otherwise discussed within the NPRM are appropriate
and adequate.
1. Connectivity of Databases Mandated by the Act
One voiced privacy concern regarding the Act is that it will create
a national identity card and centralized database on all drivers. This
concern stems from the provisions in the Act requiring that the
individual States electronically verify application information against
Federal databases and provide State-to-State access to verify that each
applicant only holds a valid license in one jurisdiction. DHS envisions
that the operation of both the State data query of Federal reference
databases and the State-to-State data exchanges will be left to the
States, as is currently the practice in driver's licensing.
As discussed below and in section II.E.6 of the NPRM, the
recommended architecture for implementing these data exchanges does not
create a national database, because it leaves the decision of how to
conduct the exchanges in the hands of the States. Moreover, no Federal
agency will operate the data exchanges affecting non-commercial
driver's licensing.\5\
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\5\ The database connectivity mandated by the REAL ID Act is in
addition to the database connectivity/functionality required to
implement the Department of Transportation's existing control over
commercial driver's licensing. In addition, law enforcement already
have access directly to a State's driver history via the National
Law Enforcement Telecommunication System (NLETS), which is the
International Justice & Public Safety Information Sharing Network, a
message switching system serving the criminal justice community.
NLETS is a not-for-profit organization owned and governed by the
States.
---------------------------------------------------------------------------
a. The State Data Query of Federal Reference Databases. Section
202(c)(3)(A) of the REAL ID Act requires that, before issuing a license
or ID, a State verify with the issuing agency, the ``issuance,
validity, and completeness of each document required to be presented.''
Given that it is very difficult to validate that the source documents
provided by applicants are genuine and have not been altered, certain
identifying data contained in the source documents will be checked
against authoritative Federal databases as described in more detail in
section II.E. of the NPRM.
As described in section II.E., many State DMVs already access one
or more of these databases as part of their current licensing
processes. The fact, however, that this data verification may now be
done by all 56 jurisdictions heightens privacy concerns. The proposed
rule seeks to address many of these issues by leaving the operation of
this data query, including the development of the business rules, to
the States. The rule proposes to require individual States to document
their business rules for reconciling data quality and formatting issues
and urges States to develop best practices and common business rules by
means of a collective governance structure.
A very important example of how administration of this data query
will be left to the States is the commitment by DHS to support the
development of a ``federated querying service'' to enable the States to
access the Federal reference databases in a timely, secure, and cost-
effective manner. (See section II.E.6.) Most States already query some
of these reference databases either directly or indirectly through a
portal provided by AAMVA. DHS is committed to the expedited development
and deployment of a common querying service to facilitate the State DMV
queries for REAL ID data verification.
To address the privacy concerns posed by such a service, the NPRM
makes clear that this service will only enable State DMVs to query
Federal systems. The purpose of this federated querying service will be
to minimize the impact of data verification on State DMV business
processes and reduce the costs of data access. So while DHS will
support the development of a querying service, it will not operate this
service.
Moreover, use of this federated querying service will be voluntary,
and States may choose to maintain or establish direct access to the
reference databases; combine direct access with partial use of a common
service; or verify applicant data against the reference databases in
some other manner. The proposal by DHS to leave the operation of
licensing verification with the States should resolve concerns about a
centralized database operated by the Federal Government.
In addition, as part of the State certification mandated by section
202(a)(2) of the Act, each State will be required to prepare a
comprehensive security plan for its DMV offices and driver's license
storage and production facilities, databases, and systems utilized for
collecting, disseminating or storing information used in the issuance
of REAL ID licenses. As part of this requirement, DHS will require that
each State include in its annual certification information as to how
the State will protect the privacy of the data collected, used, and
maintained in connection with REAL ID, including all the source
documents.
b. The State-to-State Data Exchange. Section 202(d)(12) of the Act
mandates that States provide electronic access to information contained
in the motor vehicle database of the State to all other States; and
section 202(d)(13) requires that the State motor vehicle database
contains, at a minimum, all data fields printed on driver's licenses
and identification cards, and motor vehicle driver's histories,
including motor vehicle violations, suspensions, and points on
licenses.\6\ These two provisions mandate the State-to-State data
exchange, however, the NPRM contemplates that the States will work out
the business process and data access rules necessary to implement these
provisions prior to May 11, 2008 by means of a collective governance
structure.
---------------------------------------------------------------------------
\6\ The information available in each jurisdiction's database
varies, but generally they already store what is required by the
Act.
---------------------------------------------------------------------------
[[Page 10826]]
As described in section II.E., below, although the REAL ID Act
creates a requirement for this State-to-State data exchange, such an
exchange already exists under the Department of Transportation's (DOT)
rules and regulations governing commercial driver's licenses (CDLs) and
State connections to the National Driver Register (NDR)/Problem Driver
Pointer System (PDPS) and the Commercial Driver's License Information
System (CDLIS).\7\ These systems exchange information about commercial
motor vehicle drivers, traffic convictions, and disqualifications.
---------------------------------------------------------------------------
\7\ CDLIS was developed to enable record checks of the nation's
professional truck and bus drivers. It is an enhanced pointer system
that requires States to update records and exchange data.
---------------------------------------------------------------------------
A State uses both the NDR/PDPS and CDLIS to check a driver's
record, and CDLIS to make certain that the applicant does not already
have a CDL. Under these programs, as well as the REAL ID Act, the
primary purpose of the State-to-State data exchange is to determine if
the applicant is unqualified and the application fraudulent; the
purpose is not specifically to verify the applicant's identity.
The existing State-to-State data exchange among DMVs, while focused
on commercial driver's licensing, also impacts non-commercial license
applicants, as States are currently required to run all license
applicants against the PDPS and CDLIS, which are both pointer systems
that collect limited information from each State in order to match
against the incoming inquiries. Both systems offer some mandatory
privacy protections. The PDPS is subject to Federal regulations 23 CFR
1327.1 et seq., which adopts the Privacy Act of 1974 \8\ principles of
individual participation and collection, use, and disclosure
limitation.
---------------------------------------------------------------------------
\8\ The Privacy Act of 1974, 5 U.S.C. 552a.
---------------------------------------------------------------------------
DHS intends to work closely with the DOT, AAMVA, and the States to
fulfill the requirements for State-to-State data exchange under the
REAL ID Act, while also supporting privacy protections for this
exchange. It has not been determined whether CDLIS or some other
service will be the platform for the State-to-State exchange, but
regardless of the platform, it will be necessary for the States,
working with DHS and DOT, to define the privacy protections for any
State-to-State data exchange. DHS and DOT will collaborate with states
on the privacy protections and access provisions for any State-to-State
data exchange.
For example, with support from the DHS Privacy Office,
representatives of the DMVs of California, Iowa, Massachusetts, and New
York formed a Federation in July 2006 to identify a collective
governance structure for the State-to-State data exchange and to begin
to develop business rules, including privacy protections. This
Federation has recently joined with the AAMVA REAL ID Steering
Committee to develop an independent governance structure for the State-
to-State data exchange. The development of privacy protective business
rules, standards, and governance mechanisms will be central to ensuring
that the privacy of license holders is protected.
2. Protection of the Personal Information Stored in State Databases
As discussed at the outset of this section, the DPPA only addresses
disclosure of motor vehicle record information but does not address the
security of the motor vehicle record information or databases. The REAL
ID Act, however, calls for DHS to issue regulations that ``ensure the
physical security of locations where licenses and identification cards
are produced and the security of document materials and papers from
which driver's licenses and identification cards are produced.''
DHS believes that this language provides authority for it to define
basic security program requirements to ensure the integrity of the
licenses and identification cards. The NPRM, therefore, proposes that
each State submit as part of the REAL ID Act certification process a
written, comprehensive, security plan. This requirement provides an
important safeguard for the personal information collected, maintained,
and used by State motor vehicles offices, and it will help assure the
public that their information is being handled appropriately. (See NPRM
section II.K., below.)
As part of its security plan, each State is also required to
outline how the State will protect the privacy of personal information
collected, disseminated or stored in connection with the issuance of
REAL ID licenses from unauthorized access, misuse, fraud, and identity
theft. Each State must prepare these plans to cover all State DMV
offices and driver's license storage and production facilities,
databases and systems and submit them as part of its comprehensive
security plan.
The State's certification should demonstrate that it has
implemented best practices to protect the privacy of the license holder
as guided by the fair information principles, which call for openness,
individual participation (access, correction, and redress), purpose
specification, data minimization, use and disclosure limitation, data
quality and integrity, security safeguards, and accountability and
auditing. These principles are widely recognized and embodied in
numerous Federal, State, and international law and codes of practice.
DHS requests comments on recommended best practices for protecting
the privacy of the personal information stored in the various State
motor vehicle databases pertaining to the requirements under this Act.
3. Protection of the Personal Information Stored in the Machine
Readable Technology
The REAL ID Act standardizes the minimum personal information on
REAL ID driver's licenses and identification cards, and mandates a
machine readable technology. DHS is sensitive to the privacy concerns
raised by the potential for non-governmental third parties to collect
and use the personal information on REAL ID driver's licenses and
identification cards. As discussed in sections II.H.7-9, DHS is
recommending that States use the PDF-417 2D bar code and DHS leans
toward recommending that States protect the personally identifiable
information stored in this 2D bar code by requiring encryption, if the
operational complexity of deploying a nationwide encryption
infrastructure to process access by law enforcement can be addressed.
4. Conclusion
In summary, DHS has proposed the following privacy protections in
its implementing regulations for the REAL ID Act: (1) The State-to-
State data exchanges and the State data query of Federal reference
databases will be State operated and governed; (2) as part of the State
certification process, States will be required to submit a
comprehensive security plan, including information as to how the State
implements fair information principles; and (3) while acknowledging the
benefits of employing encryption of the personal information stored on
the identification cards, we invite comment on its feasibility and
costs and benefits to ensure that its costs do not outweigh the
benefits to privacy.
These protections are intended to serve as a floor and do not
prevent the States from using their own statutory or executive
authority to provide additional privacy protections, consistent with
Federal law, for the personal information stored on the REAL ID
licenses and in their databases. DHS intends to work closely with the
States as they develop the information
[[Page 10827]]
system(s) necessary for querying appropriate Federal and State
databases to verify the information contained in the source documents
and to determine lawful status of applicants. DHS expects that any
system developed for purposes of the REAL ID Act will build in
appropriate privacy and security mechanisms to reduce the risk of
unauthorized access, misuse, fraud, and identity theft.
DHS believes that protecting the privacy of the personal
information associated with implementation of the REAL ID Act is
critical to maintaining the public trust that Government can provide
basic services to its citizens while preserving their privacy. DHS
recognizes the significant privacy issues that are associated with the
Act. The public is encouraged to comment on the privacy and security
issues associated with implementation of the Act in order to ensure
that the final rule implementing this statute reflects sufficient
public input on these important issues, which could include the
requirements of State comprehensive security plans; access to
information collected by States pursuant to the REAL ID Act and the
protection of such information stored in State databases; and the
operation and governance of electronic verification by States of
driver's license application information.
D. Document Standards for Issuing a REAL ID Driver's License or
Identification Card
Section 202(c)(1) and (2) of the Act requires that States issuing
REAL ID driver's licenses and identification cards obtain and verify
from applicants documentation establishing--
(1) The applicant's identity, through a photo identity document, or
a non-photo identity document that includes full legal name and date of
birth if a photo identity document is not available;
(2) Date of birth;
(3) Proof of SSN or ineligibility for an SSN;
(4) The applicant's address of principal residence; and
(5) Lawful status in the United States.
Currently, every State has a different list of the kind and number
of acceptable identification documents. Many are voluminous,
encompassing 40 or 50 different types of documents. Many States utilize
a ``points'' system where a combination of documents accumulating a
sufficient number of ``points'' is deemed sufficient. Others use a tier
system of ``primary'' and ``secondary'' documents, where, for example,
a primary (such as a passport) and a secondary (such as an electric
bill confirming an address) are required.
Driver's licenses are the documents used most frequently to
establish identity and often serve as source documents to obtain other
forms of identification. If an individual obtains a fraudulent driver's
license or identification card, he or she can potentially engage in
identity-based fraud, or even obtain access to areas and facilities
where he or she might cause harm or otherwise pose a severe risk to
security.
Based on these considerations, DHS has determined that many of the
documents currently accepted by DMVs and proposed by others are not
sufficient to address Congress' direction to enhance national security.
Many of the documents on these lists can easily be counterfeited, or
their authenticity cannot be easily verified by the States--especially
outside of the State of issuance. Therefore, this rule proposes a short
list of acceptable documents for REAL ID and temporary REAL ID driver's
licenses and identification cards.
This approach offers several advantages from a security
perspective. First, restricting the number of documents means that only
the documents which DHS has found to be the most secure are chosen to
demonstrate identity. Second, limiting the number improves the chances
that DMV employees will be able to distinguish valid from fraudulent
documents because there will be fewer categories of documents with
which they will need to be familiar. Third, a smaller list of documents
increases the ease of verifying the documents independently, a related
statutory requirement and one that will be very effective in reducing
document and identity fraud.
Under the NPRM, DHS proposes that States require that applicants
provide at least one of these documents in order to obtain a REAL ID
driver's license or identification card. States could add additional
documentation requirements to satisfy their own objectives, but at
least one of the documents listed below would have to be presented for
every application. State agencies would not be required to comply with
these requirements when issuing driver's licenses or identification
cards in support of the Federal Witness Security Program, codified at
18 U.S.C. 3521 et seq., or operations by other Federal, State, or local
criminal justice agencies. In addition, when requested by an authorized
representative of the Federal Witness Security Program or the criminal
justice agency, States should remove from public records appropriate
material relating to the prior or other identities of people involved
in the operation and should take sufficient other steps, as directed by
appropriate officials, to safeguard the identities of such persons.
1. Documents Required for Proving Identity
The list of acceptable documents that DHS proposes to establish
identity for purposes of this regulation is as follows:
A valid unexpired U.S. passport.\9\
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\9\ A passport also includes the passport card that the
Department of State announced in its Notice of Proposed Rulemaking
published October 17, 2006 concerning the Western Hemisphere Travel
Initiative (WHTI) (71 FR 60928).
---------------------------------------------------------------------------
A certified copy of a birth certificate.
A consular report of birth abroad.
An unexpired permanent resident card.
An unexpired employment authorization document (EAD).
An unexpired foreign passport with valid U.S. visa
affixed.
A U.S. certificate of citizenship.
A U.S. certificate of naturalization; or
A REAL ID driver's license or identification card issued
subsequent to the standards established by this regulation.
a. A Valid Unexpired United States Passport. A U.S. passport is
issued only by the U.S. Department of State (DOS). It may be issued
only to United States citizens or nationals. If issued for the full
validity period (ten years for adults; five years for minors under 16
and for diplomatic and official bearers) it is statutory proof of U.S.
citizenship during its period of validity. Before a U.S. passport is
issued, the written application is carefully adjudicated to establish
the citizenship and identity of the bearer. First-time applicants must
appear in person. A U.S. passport has security features that include
special paper, inks and photo printing that make it difficult to
counterfeit or alter. Beginning in 2006, U.S. passports also contain
the additional security feature of an integrated circuit chip
containing the bearer's bio-data, a biometric, and unique chip
identification information.
b. Certified Copy of a Birth Certificate Issued by a U.S. State or
Local Office of Public Health, Vital Records, Vital Statistics or
Equivalent. DHS recognizes that a birth certificate is not an identity
document in the true sense of the term. Instead, a birth certificate is
a record that a birth took place at a particular time and place, and
nothing (such as a photograph or other biometric) ties a particular
person to a particular birth
[[Page 10828]]
certificate. However, section 202(c)(1)(A) of the Act states that a
non-photo identity document is acceptable, if it includes the person's
full legal name and date of birth. DHS believes that this strongly
suggests that Congress intended to maintain the use of the birth
certificate for this purpose, recognizing the longstanding practice
that birth certificates are used to obtain driver's licenses and
identification cards. DHS also understands that the vast majority of
driver's license and identification card applicants may only have a
birth certificate available for this purpose; while U.S. citizens could
use a U.S. passport, passports are currently held only by an estimated
25 percent of Americans.
To achieve security objectives, DHS is proposing that only
certified copies of birth certificates that include the individual's
full name and can be verified by a State vital statistics, public
health, or similar office would be acceptable. Interpreting this more
broadly could result in a myriad of non-secure, non-verifiable
documentation being used to obtain a driver's license or identification
card. Given the fact that Congress specified that the requirements
enumerated in section 202(c)(11) were a ``minimum,'' and given also the
serious security implications associated with other implementation
considerations included in Title II of the Act, DHS believes that it
has the necessary authority to interpret this clause narrowly.
Accordingly, this regulation interprets section 202(c)(1)(A) to mean
only a certified copy of a birth certificate, and only one issued
pursuant to the other requirements discussed in this section. These
regulations do not preclude a State that accepts a birth certificate as
the applicant's identity document from requiring the individual to also
present one or more forms of photo identification to substantiate his
or her claimed identity.
A corollary issue considered by DHS is whether to recognize delayed
birth certificates issued more than one year after the birth itself.
While these cases are relatively few, States have established
procedures in place for adjudicating these claims and require evidence
to prove the actual occurrence of the birth prior to issuing the birth
certificate. Therefore, delayed birth certificates lawfully issued by
the States will also be acceptable as an identity document.
c. DOS Consular Report of Birth Abroad of a Citizen of the United
States, FS-240; and DS-1350 and FS-545. The Consular Report of Birth
Abroad (CRBA), FS-240, is a document issued by a United States consular
officer to a person born abroad who acquired United States citizenship
at birth. It is statutory proof of U.S. citizenship. The parent of a
child acquiring U.S. citizenship at birth abroad must apply for the
CRBA before the child's 18th birthday, and must document the child's
acquisition of U.S. citizenship. The CRBA is printed on secure paper in
a format that resembles a state birth certificate. There are two other
DOS documents issued for U.S. citizens born abroad and acquiring U.S.
citizenship at birth. Certifications of Report of Birth Abroad (DS
1350), issued only by Passport Services Vital Records Office, may be
accepted as the equivalent of the CRBA. Certifications of Birth (FS-
545) issued at U.S. Foreign Service posts prior to November 1990 but no
longer issued are still valid and list only the child's name, date of
birth, place of birth, and recording date.
d. Certificate of Naturalization, Form N-550 or N-570, or
Certificate of Citizenship, Form N-560 or N-561. The Certificate of
Naturalization is issued by the United States government as proof of a
person having obtained U.S. citizenship through naturalization (a legal
process of obtaining a new nationality). The Certificate of Citizenship
is proof of an individual having obtained U.S. citizenship through
derivation or acquisition at birth. These documents are currently
issued by DHS, printed on secure paper and have a photograph attached.
e. Unexpired Permanent Resident Card, Form I-551. This document,
also known as a ``green card,'' is issued by DHS to lawful permanent
residents of the United States. The current version contains numerous
security features, such as microline printing and a digital photograph.
While most of these documents display an expiration date, the status
itself does not expire.
f. Unexpired EAD, Form I-766 or Form I-688B. This document is
issued by DHS to numerous categories of aliens in the United States who
are lawfully authorized to work. The Form I-766 document is secure and
difficult to counterfeit. The I-688B is expected to be phased out by
2008, but under this proposal would be acceptable until it is phased
out.
g. Unexpired Foreign Passport with valid U.S. visa affixed. Valid
unexpired passports from around the world have traditionally been
acceptable documentation to establish identity in most, if not all,
States. Most passports meet certain international standards criteria
for security as defined by the International Civil Aviation
Organization (ICAO). Security features for these documents include
digital photographs, information stored on a machine-readable zone, and
other forensic features. Some passports issued by foreign countries,
however, do not have these features, and can even be hand-written. DHS
was concerned about requiring the States to maintain knowledge of
passport types from all around the world in order to be able to combat
fraud. Further, DHS believes that DMVs, once they verify the visa,
should be permitted to rely on the fact that, in issuing the visa and
admitting the alien to the United States, the Departments of State and
Homeland Security have verified the passport to the extent required by
the REAL ID Act (see section 202(c)(3)(A) of the Act, and subsection
II.E. of this preamble, below).
Accordingly, States may accept a U.S. visa contained in a foreign
passport as an acceptable means of authenticating identity. Not only
are the U.S. visas secure and contain a photograph, issued U.S. visas
can be verified against DOS systems electronically using the same
connectivity required to verify U.S. passports.
DHS is aware that inclusion of a visa alone will leave a large
group of aliens who have lawful status in the United States unable to
obtain a document that is on this list. First, this includes those
nonimmigrants admitted under section 217 of the Immigration and
Nationality Act (the Visa Waiver Program, or VWP), as well as the Guam
visa waiver program. However, these aliens are admitted solely for
short periods of time, are prohibited from working in the United
States, and are unlikely to qualify for a U.S. driver's license under
typical State residency requirements. Further, these aliens can
typically use either the driver's license from their home country or an
international driver's license to be able to drive a car while lawfully
in the United States. Also, they will still be able to obtain a non-
REAL ID license (if the State permits it) that could be used for
driving purposes, but not for official Federal purposes pursuant to
this regulation. Overall, DHS does not believe that this policy would
significantly impact VWP aliens.
Another classification of persons that would be unable to present a
visa are Canadians who enter the United States without having to obtain
a visa and who stay in the United States for extended periods (i.e.,
more than 90 days) at a time. While the majority of these are short-
term visitors who would not need a U.S. driver's license, and indeed
are not issued any U.S. documentation or recorded in U.S. nonimmigrant
data systems, some are longer-term visitors
[[Page 10829]]
who may be students, authorized workers or others who may have reason
to need a U.S. license. DHS requests comments specifically on how this
group could be affected if they are unable to obtain a U.S. REAL ID
driver's license that could be used for Federal purposes.
h. Driver's License/Identification Card Issued After the Standards
Established by the Regulation. Any REAL ID driver's license or
identification card issued after the establishment of these new
standards, except non-REAL ID driver's licenses and identification
cards issued under section 202(d)(11) of the Act, should be acceptable
to establish identity, when an individual moves from State to State or
when a driver's license or identification card is being renewed.
2. Additional Documents Considered and Rejected for Proof of Identity
a. Transportation Worker Identification Credential. One document
considered by DHS as acceptable to demonstrate identity is the
Transportation Worker Identification Credential (TWIC). This
identification document will be very secure and those who obtain it
will be subjected to rigorous background checks. However, DHS believes
that any identification document acceptable in this regulation must be
capable of being verified electronically by a State in a timely
fashion. Including a TWIC on the list of acceptable identity documents,
at this time, would require DHS to develop, and the DMVs to access,
information electronically using a system that has yet to be created.
All TWIC holders would also have one of the other documents prescribed
by the regulation. Thus, DHS is not at this time proposing to include
the TWIC as an acceptable identity document for REAL ID driver's
licenses and identification cards.
b. Department of Defense's Common Access Card. DHS also considered
the Department of Defense's Common Access Card (CAC). The CAC card may
prove convenient for members of the military who move frequently and
need to get new driver's licenses and identification cards. For the
same reasons as the TWIC, DHS is not proposing to include this document
on the list at this time. DHS does not dispute the quality or utility
of the CAC; however, DHS believes that any CAC holder would also have
one of the other documents on the DHS proposed list, and including the
CAC card would require States to connect to additional Federal
databases for verification purposes, without sufficient justification.
c. Native American Tribal Documents. DHS discussed these documents
with the Bureau of Indian Affairs of the Department of the Interior and
concluded that since all tribes obtain State-issued documentation to
verify birth, all tribal members will have, or can obtain, an eligible
identification document, rather than using tribal documents.
DHS solicits comments on whether these or any other documents
should be included as acceptable documentation for showing identity.
Commenters should address instances in which classifications of
individuals could not obtain any of the documents already on the
proposed list, issues of reliability of the document proposed, and
ability of the States to verify the proposed document. If DHS concludes
that other documents, including those listed above and others submitted
by commenters, are reliable and can be verified electronically by the
States, they may be included as acceptable identity documents in the
final REAL ID rule.
3. Other Documentation Requirements. In addition to presenting
evidence of identity, the Act requires that a driver's license or
identification card applicant present the following:
a. Documentation Showing Date of Birth. Individuals may use all
documents included on the list of identity documents to demonstrate
date of birth. Thus, while this is a statutory requirement, it is
fulfilled by presenting one of the documents already required under the
proposed list of identity documents.
b. Evidence of a SSN or Proof of Ineligibility. The United States,
on both Federal and State levels, has experienced significant amounts
of fraud due to the misuse of SSNs. Much of this has been in the
context of ``identity theft'' or other financial crimes. However, the
misuse of SSNs can have a national security impact as well. For
example, many of the September 11, 2001 (9/11) hijackers used numbers
that were either never issued by the Social Security Administration
(SSA), were issued in the name of a child, or had been associated with
multiple names. The hijackers used this information to obtain driver's
licenses, and some held multiple driver's licenses from States
including Virginia, Florida, California, Arizona, and Maryland.\10\
Accordingly, DHS believes that the congressional mandate to check all
SSNs against SSA databases prior to the issuance of a REAL ID driver's
license or identification card will increase security and decrease the
ability to obtain driver's licenses fraudulently. This will not be a
significant burden to the States as almost all jurisdictions currently
verify SSNs against SSA databases, 46 States using Social Security On-
Line Verification (SSOLV).
---------------------------------------------------------------------------
\10\ Testimony of James Huse, Jr. Inspector General, Social
Security Administration, House Judiciary Committee's Subcommittee on
Crime, Terrorism, and Homeland Security; and Subcommittee on
Immigration, Border Security, and Claims, 107th Cong., 2nd Sess.,
June 25, 2002.
---------------------------------------------------------------------------
SSA has taken significant steps since 2001 to strengthen the SSN
issuance process. SSA has a plan for improving the security of the SSN
card itself, in compliance with section 7213 of the Intelligence Reform
and Terrorism Prevention Act of 2004. In recognition of improvements in
the SSN issuance process and plans for improving the security of the
SSN card, DHS considered requiring DMVs to require individuals to
present a social security card with their full name and SSN as the only
mechanism to demonstrate evidence of their SSN.
DHS recognizes, however, that this approach would be costly and
would create an undue hardship on SSA and the public, particularly on
members of the public who had lost or misplaced their social security
cards. Accordingly, DHS proposes to allow an applicant to establish his
or her SSN by presenting his or her social security card, a W-2 form, a
SSA-1099 form, a non-SSA 1099, or a pay stub with the applicant's name
and SSN on it.
An alien in the United States without authorization to work is
generally not eligible for an SSN. Thus, to prove ineligibility for an
SSN, an alien must present evidence that he or she is currently in a
non-work authorized non-immigrant status.
c. Documentation of Address of Principal Residence. There are a
number of potential ways to define the term ``principal residence.''
DHS reviewed State definitions of this term and did not find a
consistent definition. The NGA observed that State laws vary widely on
how to define residency/domicile because a mobile society leads to
frequent relocations, ownership of multiple properties, as well as
lifestyles that include no fixed address. Accordingly, DHS proposes to
use the Black's Law Dictionary definition of ``domicile'' which DHS
believes captures the intent of the principal residence requirement of
the Act:
The place at which a person has been physically present and that
the person regards as home; a person's true, fixed, principal and
permanent home, to which that
[[Page 10830]]
person intends to return and remain even though currently residing
elsewhere.\11\
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\11\ Bryan A. Garner, editor, Black's Law Dictionary, 8th ed.,
p. 523 (Thomson-West, 2004).
The need to determine an individual's principal residence prior to
issuance of a REAL ID driver's license also has its origins in the 9/11
terrorist activity. Seven of the 9/11 hijackers fraudulently obtained
driver's licenses in the Commonwealth of Virginia, although none of
them actually lived there, by providing false information as to their
true place of residence. At the time Virginia allowed only a ``signed
affidavit'' of a Virginia resident to suffice as proof of residency in
the State, and two of the hijackers paid an illegal immigrant (who had
himself obtained a driver's license fraudulently) $100 to vouch for
them.\12\ By September 21, 2001, Virginia had eliminated this loophole.
---------------------------------------------------------------------------
\12\ Testimony of Paul McNulty, United States Attorney, Eastern
District of Virginia, House Judiciary Committee's Subcommittee on
Crime, Terrorism, and Homeland Security; and Subcommittee on
Immigration, Border Security, and Claims, 107th Cong., 2nd Sess.,
June 25, 2002.
---------------------------------------------------------------------------
DHS recognizes that some individuals do not have a fixed address,
as that term is commonly used. Individuals who do not have a fixed
address, such as the homeless, may still obtain a REAL ID driver's
license or identification card if they otherwise can produce the
documents a State must possess and verify prior to issuing a REAL ID
driver's license or identification card. For such individuals, a State
may issue REAL ID driver's licenses and identification cards by
adhering to a written exceptions policy as described in section II.F.
below.
d. Evidence of Lawful Status in the United States. The REAL ID Act
specifies the scope of lawful status in the United States for purposes
of eligibility for a REAL ID driver's license or identification card
acceptable for official purposes. The applicant must be a person who:
Is a citizen or national of the United States; is an alien lawfully
admitted for permanent or temporary residence in the United States; has
conditional permanent resident status in the United States; has an
approved application for asylum in the United States or has entered
into the United States in refugee status; has a valid, unexpired
nonimmigrant visa or nonimmigrant visa status for entry into the United
States; or has a pending application for asylum in the United States;
has a pending or approved application for temporary protected status
(TPS) in the United States; has approved deferred action status; or has
a pending application for LPR or conditional permanent resident status.
A U.S. passport, certified copy of a birth certificate, DOS
consular report of birth abroad, certificate of citizenship,
certificate of naturalization or a permanent resident card can be used
to establish lawful status in the United States for purposes of this
proposed regulation. If an applicant presents an employment
authorization document (Form I-766) or a foreign passport with a valid
U.S. visa and/or DHS nonimmigrant Form I-94 affixed for identification,
these documents may be accepted as provisional evidence of lawful
status, pending verification of status through the Systematic Alien
Verification for Entitlements (SAVE) system (see section II.E.3 below).
Note that while all documents presented must be verified through SAVE
or otherwise, the difference is that since a visa or EAD are not
necessarily linked to an authorized status, their acceptance is deemed
provisional pending confirmation of exact status through further
verification. DHS considered, but rejected, requiring additional
documentary evidence of status that may be issued by DHS, but
considered this requirement unworkable, particularly since many holders
of EADs simply do not have any other consistent, reliable
identification.
The EAD is envisioned as the document to be presented by the
following classes of REAL ID-authorized aliens: Temporary Protected
Status (TPS) aliens; asylees and asylum applicants; refugees;
adjustment applicants; and aliens granted deferred action. DHS
understands that regulatory limitations on issuance of EADs to asylum
and TPS applicants will result in a wait period before these aliens
will have acceptable documentation, and invites comment on what
alternative documentation regimen may serve for these groups, and
whether those groups need a REAL ID driver's license or identification
card before their applicable wait period expires.
The proposed rule also does not include immigration documentation
showing any status under the immigration laws of American Samoa or the
Commonwealth of the Northern Marianas for aliens within those
jurisdictions. REAL ID specifies U.S. immigration statuses. DHS invites
further comment about how these jurisdictions may better be integrated
into the REAL ID framework.
E. Verification of Information Presented
Section 202(c)(3)(A) of the Act requires verification from the
issuing agency for issuance, validity, and completeness of
documentation to establish the following:
Identity.
Date of birth.
Proof of SSN, or that the person is not eligible for an
SSN.
The person's name and address of principal residence.
The person's lawful status in the United States.
The documents that individuals are required to present are
described in section II.D.1 and are listed in Sec. 37.11 of the
proposed regulation.
To verify with the issuing agency, the issuance, validity, and
completeness of documentation means that the State must determine
independently that the document itself has been legitimately issued by
the issuing agency to the individual presenting the document, prior to
issuing the driver's license or identification card to the
individual.\13\ This means that DMVs are required to perform a physical
inspection of the source document to ensure that it appears authentic
and has not been tampered with. However, document verification is not
sufficient. DMVs must also verify the information contained in the
document with an authoritative or reference database. Thus, States must
verify both document and data under the Act, although this verification
may be phased in over time.
---------------------------------------------------------------------------
\13\ See discussion infra at II.J.2 on verification of birth
certificates through the Electronic Verification of Vital Events
system (EVVE). If this system is not operational by May 11, 2008, a
State must verify the validity of the birth certificate at the first
license renewal or re-issuance once EVVER is available.
---------------------------------------------------------------------------
The use of the phrase ``required to be presented by the person
under paragraph (1) and (2)'' in section 202(c)(3)(A) of the Act means
that only the specific documents required by this proposed regulation
need to be verified. Thus, in the case of identity, only the documents
listed in these regulations as required to be presented must be
verified. If States wish to require additional documentation to prove
identity--for example, if they wish to require photo identification in
addition to a certified copy of a birth certificate--then the State
does not need to independently verify these additional items, only the
birth certificate, as it is included on the Federal list. Ensuring that
at least one document presented is independently verified will increase
security by reducing the ability to fraudulently manufacture
documentation typically used to obtain driver's licenses and
identification cards.
Requiring additional documentation can help a State to confirm the
identity (or address, or whatever fact is at issue)
[[Page 10831]]
of a person. This is a common method used now by many States--the idea
of ``cross-verifying'' data elements included on different documents.
However, each independent verification of a document can cost time and
money for the DMVs--which can create a disincentive to require many
documents to prove identity and thus eliminate the benefits of this
cross-verification. If this regulation proposed to require that all
documents presented for any purpose be verified, this would be an
incentive for States to require only the one document that the REAL ID
regulation requires. In that circumstance, the verification requirement
could result in a less secure process. DHS believes that the better and
more secure solution is to require that a State verify the identity
document an applicant presents, pursuant to REAL ID requirements.
States retain the flexibility to require documents in addition to the
Federal document requirements, and to verify them pursuant to their own
regulations and practices. Any additional documents beyond those listed
in Sec. 37.11 need not be verified independently, but can be ``cross-
verified'' against the one document that must be verified according to
these regulations. DHS proposes that it be up to the States whether to
keep digital or paper copies of supplemental documentation beyond the
Federal document requirements, pursuant to the retention requirements
discussed in this regulation.
1. Verification of ``Address of Principal Residence''
Although the Act requires States to verify an applicant's ``address
of principal residence,'' DHS believes that there is no nationally
available, reliable, up-to-date, and cost-effective method for States
to verify this information with the issuing source of the document, as
the plain language of the Act would seem to require. DHS examined
existing governmental and non-governmental databases that alone, or in
combination, could be used by States to fulfill this requirement, and
determined that there is no single way for States to comply with this
requirement by May 11, 2008, or in the reasonably foreseeable future.
States currently have widely varying ways of determining a person's
residence, although all States require an applicant to demonstrate that
they live in the State in which they are applying for a driver's
license or identification card. While the U.S. Postal Service can do a
basic electronic check for a fee, this system is based on nothing more
than the applicant or some unrelated individual sending to the post
office a change of address card. Thus, although an electronic
verification, it is not based on reliable information.
Further, in almost all cases there is no way to verify
independently from documents presented that an address is a person's
principal address. A mortgage statement or lease may indicate that a
person owns or rents property in a particular place, and while the
landlord or bank holding the mortgage could verify this, it does not
establish that this is the person's principal residence, just that the
ownership or rental is legitimate. In addition, the cost to States of
verifying a multitude of documents presented to establish address, such
as utility bills, leases, mortgages, or other documents, is potentially
significant.
In spite of these limitations, there is a need for some reliability
in the information presented for principal residence, as evidenced by
the experience of the 9/11 hijackers and how they obtained Virginia
driver's licenses (see section II.D.3). Therefore, DHS is proposing
that the States require each applicant to present at least two
documents that include his or her name and current principal residence.
However, the States will retain the flexibility to determine for
themselves precisely which documents, or combination of documents, an
applicant must present to satisfy this requirement and how a State will
validate or verify this information. The proposed regulation would
require States to establish a written policy identifying acceptable
documents and how, or if, they will be independently validated or
verified. The proposal would also require that States provide this
information to DHS as part of their initial certification package and
whenever this policy is modified or superseded.
While States are free to determine the list of acceptable documents
for themselves, whatever documents individuals submit must contain a
street address for individuals where available. Post office boxes or
rural route numbers are not acceptable addresses, since the statute
requires a residence, not simply an address.\14\ Documents issued
monthly (e.g., bank statements, utility bills) could not be more than
three months old at the time of application. Documents issued annually
(e.g., property tax records) would need to be for the most current year
at the time of application.
---------------------------------------------------------------------------
\14\ One exception might be American Samoa as this territory
does not possess the same type of addresses commonly used in the 50
States.
---------------------------------------------------------------------------
Applicants would also be required to sign a declaration (that could
be included as part of the driver's license or identification card
application form) affirming that the information presented is true and
correct, including information presented to establish address of
principal residence. For minors and other dependents, parents or legal
guardians would submit the documentation establishing a principal
residence on behalf of the driver's license or identification card
applicant. The parent or legal guardian would need to present photo
identification (that the DMV would need to verify) and would be
required to submit two or more address documents, as if he or she were
the primary applicant, and sign the affirmation.
2. Verification of Identity Information
a. Certified copy of a Birth Certificate Issued by a U.S. State or
local office of Public Health, Vital Records, Vital Statistics or
equivalent. DHS anticipates that the States will be able to verify
electronically the issuance of a birth certificate through the
Electronic Verification of Vital Events (EVVE) system. Once functional,
this system will be able to verify that the information presented on a
certified copy of a birth certificate is a match to a vital statistics
birth record, in response to an electronic query from a State DMV.
While the EVVE system has not been tested nationwide, the National
Association of Public Health Statistics and Information Systems
(NAPHSIS) has informed DHS that such a system could be in place and
fully operational by May 2008. If such a system is either not available
nationally by the effective date of the regulations, or a State is
seeking to verify the validity of a birth certificate from a State that
is not participating in the EVVE system, a State may establish written
procedures for how it will attempt to verify such records, and document
its use of those procedures. At a minimum, the applicant's file and/or
records should contain a notation that the birth certificate
information was not verified electronically with the issuing agency,
and such electronic verification will be necessary at the first
driver's license or identification card renewal or re-issuance once the
information is available for electronic verification. Confirmation of
the birth certificate through EVVE will verify not only the person's
identity but also provide evidence that they are very likely to be a
U.S. citizen and therefore have lawful status in the United States.
As discussed above, individuals born before January 1, 1935, may be
unable to produce birth certificates, or States may be unable to verify
any birth certificates produced by such
[[Page 10832]]
individuals. Individuals born before 1935 may never have received a
birth certificate, and it may not be possible for their birth States to
reproduce the document for them. In addition, States may not have birth
information available electronically for all births prior to 1935, and
DHS believes that it would be too burdensome on States to verify this
information in a non-electronic method. Such cases should not preclude
persons from obtaining a REAL ID driver's license or identification
card, but should be handled according to the State's exceptions
process. DHS intends to align this provision with the final rule on
minimum standards for birth certificates promulgated by HHS, in
accordance with its statutory obligation under section 7211 of the
Intelligence Reform and Terrorism Prevention Act (Pub. L. 108-58).
b. U.S. passports or Consular Report of Birth Abroad issued to U.S.
citizens abroad by the Department of State. It is anticipated that a
State will be able to electronically verify a U.S. passport, or a birth
certificate issued to a U.S. citizen abroad. The automated system that
is eventually developed will confirm that the passport was issued by
DOS. In the case of a U.S. passport or a consular report of birth
abroad issued by DOS, electronic verification will also confirm that
the applicant has lawful status in the United States.
c. Valid U.S. visas affixed in an unexpired foreign passport. DHS
examined several options in determining how to independently verify a
U.S. visa affixed to a foreign passport as required by the REAL ID
statute. First, verifying the foreign passport itself with the
Government that issued it is simply not feasible. There is no guarantee
that a foreign Government would answer a State DMV's request to
authenticate a specific document, or any requirement in international
law that they do so in a timely manner. Requiring this foreign
independent verification would be an unfair burden to both the driver's
license or identification card applicant and the State DMV attempting
to adjudicate the application.
Recognizing that the U.S. visa affixed in the passport, and not the
passport itself, would be the acceptable documentation to demonstrate
identity, DHS turned to how that verification would occur. First, DHS
examined whether the DMVs could use the State Department systems to
verify the visa. While this was a feasible solution since access to DOS
databases will ultimately be necessary for all DMVs anyway (to verify
U.S. passports and certain birth certificates), authentication of a
U.S. visa does not, by itself, establish lawful status in the United
States.
While a U.S. visa can be issued for as long as ten years (and often
is), it is the Customs and Border Protection (CBP) Officer at U.S.
ports of entry who determines the actual admission period for the
person seeking to enter the United States. In most cases, this
admission period is less than the validity period of the U.S. visa.
Accordingly, foreign travelers often use the same visa for multiple
trips to the United States--and the length of validity period for the
visa is not dispositive as to whether someone has lawful status in the
United States. Therefore, to adopt a policy in which a U.S. visa holder
must use that visa to establish identity would require that aliens
using a U.S. visa as evidence of identity have to undergo three
separate checks--the DOS database (to confirm identity), SAVE (to
confirm lawful status), and SSOLV (to confirm the Social Security
Number). All other categories of driver's license or identification
card applicants, including U.S. citizens (whether born in the U.S. or
abroad), LPRs, and others would require only two database checks. This
approach was deemed to be unduly burdensome on both the applicant and
the DMV.
DHS then considered another solution--validating the U.S. visa
through existing U.S. immigration and border processing procedures,
including DHS's U.S.VISIT and the Department of State's BioVisa
Program. Currently, when a person applies for a U.S. visa abroad, he or
she is required to submit finger scans, which are biometrically
verified when the person arrives in the United States--so that the
United States can be sure that the person who received the visa is the
same person seeking admission.
DHS believes that, for purposes of obtaining a REAL ID driver's
license or identification card, the fact that the U.S. visa was used to
enter the United States, and that person was checked against US-VISIT,
is an acceptable verification that the document (the U.S. visa) is
legitimate. The U.S. visa has been checked against a Government-held
database via the biometric check upon arrival. State DMVs will not be
required to check the US-VISIT system to confirm that the visa was used
for admission. Thus, if the person holding a U.S. visa has lawful
status in the United States, which can be verified through SAVE, then
the person will have established both identity and lawful status. Under
this proposal, aliens presenting a foreign passport with a valid U.S.
visa would require only a SAVE and SSOLV check, placing them on par
with other driver's license or identification card applicants.
3. Verification of Lawful Status
If an applicant presents a permanent resident card (Form I-551), an
EAD (Form I-766), or a foreign passport with a U.S. visa affixed, the
applicant is not a U.S. citizen. In accordance with the Act, this
proposal would require the States to verify the authenticity of the
identity documentation and lawful status in the United States at the
same time, using the SAVE system maintained by U.S. Citizenship and
Immigration Services (USCIS). Under section 202(c)(3)(C) of the Act,
States have already been required to enter into memoranda of
understanding with DHS by September 11, 2005, to use the electronic and
automated system to verify the legal status of a non-U.S. citizen
applying for a REAL ID driver's license or identification card.
SAVE is an existing program within DHS that allows State DMVs (as
well as many other Federal, State, and local benefit and license
granting agencies) to verify electronically the immigration status of
the person applying for a driver's license or identification card. This
system can verify that a person presenting a Permanent Resident Card
(Form I-551) was issued lawful permanent resident status in the United
States and, thus, is lawfully in the country. SAVE can also confirm
that a person presenting an EAD (Form I-766 or Form I-688B) is in a
lawful nonimmigrant status and present in the United States for a fixed
period of time. Moreover, SAVE can confirm that an applicant presenting
a U.S.-issued visa affixed to a foreign-issued passport is lawfully in
the country for a temporary period of time. If a person presents a
U.S.-issued visa affixed to a foreign-issued passport, then the
applicant will also need to present additional documentation to allow
for a SAVE search. This could be a passport stamp, an I-797 Notice of
Action, or some other documentation issued by USCIS. The terms and
conditions of access to SAVE by a State, including any costs to be
borne by the State, shall be established by memorandum of agreement
between DHS and the State pursuant to section 202(c)(3)(C) of the Act.
For student aliens admitted for duration of status (D/S), DMVs
should use the Student and Exchange Visitor Information System (SEVIS)
for verification. SEVIS is a system in which DHS and schools who enroll
foreign students communicate to ensure that the aliens claiming student
status (as well
[[Page 10833]]
as exchange visitors such as au pairs) are in fact currently enrolled.
There will ultimately be a connection between SEVIS and SAVE, but until
such time, DHS has decided on the following:
DHS will use the SAVE/SEVIS connection, if the systems are
connected prior to May 2008.
If the SAVE/SEVIS connection is not available, DHS may
require foreign students to present a certified statement from the
registrar of the school in a sealed envelope demonstrating that he or
she is still in school at the time of the alien's application for a
driver's license or identification card (and thus still in lawful
status).
Individuals who are denied a temporary REAL ID driver's license or
identification card due to a SAVE check that they believe is in error
should contact the local USCIS branch, or as USCIS may otherwise
direct, to resolve concerns over verification of their lawful status.
4. Verification of Date of Birth
As stated earlier, all of the documents listed on the proposed list
of acceptable identity documents display the date of birth on the face
of the document. Thus, once the information on the document is
verified, as it must be for identity purposes, there is no further need
for the States to verify date of birth independently.
5. Verification of Social Security Account Number or Ineligibility
Because of the requirements for the issuance of commercial driver's
licenses, the majority of State DMVs already have access to the SSA
database for verification of SSNs. Thus, when the DMV applicant
presents evidence of an SSN, the DMV will be able to verify that number
through existing systems. Verification that a person is not eligible
for an SSN must also be provided. To satisfy this requirement, an alien
must present evidence, verifiable through SAVE, that he or she is
currently in a nonimmigrant status establishing that he or she does not
have the right to work in the United States. A person is never
permanently ineligible for an SSN, as he or she could obtain some type
of immigration status that would entitle him or her to one.
6. Connectivity to Systems and Databases Required for Verification
For individual States to verify information and documentation
provided by applicants, each State must have electronic access to
multiple databases and systems as described above. DHS considers the
deployment of the information systems needed to support the electronic
verification of applicant data to be its highest priority. Secure and
timely access to trusted data sources is a prerequisite for effective
verification of applicant data. Electronic access to the Federally-
sponsored databases described above will also significantly reduce the
costs of REAL ID driver's license and identification card issuance to
States. Finally, DHS will work closely with the States to improve their
capabilities for verifying the authenticity of source documents. Both
data verification and document authentication are necessary to ensure
the validity of REAL ID driver's licenses and identification cards.
a. Applicant Data Verification. Electronic data verification
requires secure and timely communications among a number of both
Federal and State-sponsored information systems. DHS can provide
assistance to states in three key areas: Enhancement of Federally-
sponsored reference databases; development of a cost effective service
for querying these reference databases; and the exchange of data among
states to reduce fraud. While DHS will provide assistance to states in
all three areas, its role and responsibilities will differ in each.
i. Reference databases. Confidence in the accuracy and reliability
of the data provided by applicants and included on their driver's
licenses and identification cards depends in large part on the quality
and completeness of data in the reference databases used for
verification. These databases, however, are Federally-sponsored and
Federally-funded initiatives. Therefore, DHS recognizes that one of its
primary responsibilities under the REAL ID Act is to expedite the
improvement of the databases required for electronic verification of
applicant data. DHS is working with the sponsoring agencies to ensure
that the reference databases meet the standards for data quality,
reliability, integrity, and completeness required to support REAL ID
data verification by the states and other jurisdictions. While some of
these reference databases are mature and fully operational, others are
still under development and need investments of resources.
First, almost all State DMVs currently access the SSOLV database to
verify social security numbers through a portal provided by the
American Association of Motor Vehicle Administrators (AAMVA). The
quality and reliability of this reference data is good and improving.
Second, all fifty states have signed MOUs for access to SAVE and twenty
State DMVs are currently querying SAVE to verify lawful status. While
secondary queries may be required in some instances to update applicant
records in SAVE, more than a million initial queries from State DMV are
already being processed each year. Moreover, DHS anticipates that the
SEVIS-SAVE connection will be completed before May 2008. Third, DHS is
working with NAPHSIS to enhance EVVE functionality and expedite
implementation of EVVE in all vital records jurisdictions. Since EVVE
is currently in pilot phase and will require states to bring their
vital records online, assistance to both NAPHSIS and individual states
will be needed. Finally, DHS is working with the Department of State to
develop an automated system for verifying data from U.S. Passports,
Consular Reports of Birth, and Certifications of Report of Birth. For
all of these systems, DHS is committed to improving data quality and
data consistency to support timely, cost-effective, and reliable data
verification.
ii. Federated querying service. States must be able to access the
reference databases in a timely, secure and cost-effective manner. As
noted above, most states already query some of these reference
databases either directly or indirectly through a portal provided by
AAMVA. This access, however, needs to be enhanced as the Federally-
sponsored systems are upgraded or deployed and all 56 jurisdictions
seek access for purposes of applicant data verification. DHS is
committed to expediting the development and deployment of a common
querying service that will automatically distribute State DMV queries
for REAL ID data verification to the appropriate reference databases
and combine the multiple responses into a single reply. The purpose of
this federated querying service will be to minimize the impact of data
verification on State DMV business processes and reduce the costs of
data access. DHS will support the development of querying service but
will not operate or control this service. DHS is currently exploring
alternative solutions. However, use of this federated querying service
will be voluntary and States may choose to: Maintain or establish
direct access to the reference databases; combine direct access with
partial use of the common service; or verify applicant data against the
reference databases in some other manner. Finally, DHS and DOT will
assist the States in their efforts to develop improved business rules
and data formats for data communications with reference databases.
These business
[[Page 10834]]
rules will, in turn, become part of the security plans submitted to
DHS.
iii. Data exchange among states. The third area of applicant data
verification involves access to other state databases to verify that
the applicant is not disqualified from obtaining a REAL ID driver's
license or identification card due to possession of a REAL ID driver's
license or identification card in another state. Data exchange among
states is mandated by section 202(d)(12) of the Act, wherein each State
must provide to each other State(s) electronic access to the DMV
database of that State. In particular, this rule requires the exchange
of data among all jurisdictions to verify that the applicant does not
hold a valid driver's license or identification card in another
jurisdiction and that other jurisdictions have terminated the
applicant's driver's licenses and identification cards before a REAL ID
can be issued. However, data exchange among State DMVs is also governed
by the National Driver Register Act of 1982, as amended, and the
Federal Commercial Motor Vehicle Safety Act of 1986. The Act and this
rule pose an additional requirement for State-to-State data exchange,
but it does not alter existing rules and regulations. Under all three
statutes, the primary purpose of State-to-State data exchange is driver
safety--to ensure that drivers are not holding multiple licenses in
multiple jurisdictions to avoid points from dangerous driving and to
determine if the applicant is unqualified or the application
fraudulent--not specifically to verify the applicant's identity. Thus,
data exchange among states is substantially different from verification
of applicant identity data with the Federally-sponsored databases
discussed above. State-to-State data exchange among DMVs is governed by
multiple statutes and multiple agency regulations and has been
effectuated through multiple database systems. DHS will build upon the
existing infrastructure of Federal statutes, regulations, and data
systems in implementing REAL ID.
Therefore, DHS will work closely with the Department of
Transportation, AAMVA and the States to fulfill the requirements for
State-to-State data exchange under the REAL ID Act. DHS will actively
support the enhancement and expansion of existing DOT-sponsored systems
to meet the requirements of the REAL ID Act. For example, verification
that the applicant does not hold a valid driver's license or
identification card in another jurisdiction can be accomplished by a
variety of methods, including the exchange and comparison of digital
image information based on applicant photos. DHS will support such
State-to-State exchange initiatives and will partner with DOT, the
States and territories, and AAMVA to leverage the value of existing
information systems, business rules, standards, and governance
mechanisms to facilitate implementation of the Act.
b. Source document authentication. In addition to verification of
applicant identity data, the Act requires that the jurisdictions
authenticate the source documents provided by the applicant. According
to section 202(3)(A), ``the State shall verify, with the issuing
agency, the issuance, validity, and completeness of each document
required to be presented.'' This requires that jurisdictions inspect
applicant source documents to ensure that they are genuine and have not
been tampered with. DHS recognizes that source document authentication
is the responsibility of State DMVs who employ a variety of procedures,
both manual and automated, to verify both the overt and covert security
features of identity documents. In addition, jurisdictions may
institute the exchange of data on identity document security features
in order to facilitate the manual or automated inspection and
authentication of source documents. DHS will support these State
initiatives and require that jurisdictions document their procedures
and standards for document authentication as part of their security
plans. However, DHS will not support the development of a federally-
controlled or operated repository for source documents or a national
facility for document authentication under the Act.
F. Exceptions Processing for Extraordinary Circumstances
DHS recognizes that there may be extraordinary circumstances where
the required documents verifying an applicant's identity, date of
birth, SSN, principal address or lawful status may be unavailable. This
would include applicants such as a homeless person with no fixed
address, as well as an individual who has lost all documentation to a
natural disaster such as Hurricanes Katrina and Rita. In such
circumstances, DHS believes that the States should have the flexibility
to accept alternative documents to establish a particular data element,
provided that the State follows defined, written, procedures that are
approved by DHS as part of the State certification process for REAL ID.
Therefore, DHS proposes that, where a State chooses to establish an
exceptions process, that process must include, at a minimum, the
following requirements:
The driver record maintained by the DMV must indicate when
an alternate document is accepted.
Any driver's license or identification card issued using
exceptions processing requires a complete record of the transaction,
including a full explanation of the reason for the exception,
alternative documents accepted and how applicable information from the
document was verified.
The jurisdiction retains the alternate documents accepted
or copies thereof in the same manner as for other source documents as
described in section II.J. and provides these upon request to DHS for
audit review.
G. Temporary Driver's Licenses and Identification Cards
Aliens who are in the following lawful statuses may receive REAL ID
driver's licenses and identification cards: Has a valid, unexpired
nonimmigrant visa or nonimmigrant visa status for entry into the United
States; has a pending application for asylum in the United States; has
a pending or approved application for temporary protected status (TPS)
in the United States; has approved deferred action status; or has a
pending application for LPR or conditional permanent resident status.
However, driver's licenses and identification cards issued to these
classes of aliens are only valid for the duration of the person's
lawful period of admission, but no more than eight years, or, if there
is no fixed date, a period of one year. Further, these ``temporary''
driver's licenses and identification cards must clearly identify on the
face of the document that they are temporary.
Renewal of these temporary driver's licenses and identification
cards must be in person. The renewal applicant must present valid
documentary evidence that the status by which the applicant qualified
for the temporary driver's license or temporary identification card has
been extended by the Secretary of DHS, or that the individual has
qualified for another lawful status category listed in the Act.
The following statuses are indeterminate and will always require
issuance of a driver's license or identification card limited to one
year: Asylum applicant, TPS applicant, and adjustment applicant. Other
temporary categories will vary, and the end of the period of authorized
stay, if any, must be verified through the SAVE or other designated
verification system. Expiration dates on an EAD are not
[[Page 10835]]
necessarily the same as the end date of the status. Visa expiration
dates have no relevance to the period of authorized stay. Aliens with
immigration statuses other than those designated by REAL ID for
temporary driver's licenses and identification cards are not subject to
this limitation on the length of their driver's licenses and
identification cards, regardless of any expiration date that may appear
on their documentation.
H. Minimum Driver's License or Identification Card Data Element
Requirements
To meet the requirements of section 202(b) of the Act, a State is
required to include, at a minimum, the following information and
features on each driver's license and identification card:
(1) Full legal name;
(2) Date of birth;
(3) Gender;
(4) Driver's license or identification card number;
(5) A digital color photograph;
(6) Address of principal residence;
(7) Signature;
(8) Physical security features designed to prevent tampering,
counterfeiting, or duplication of the document for any fraudulent
purpose;
(9) A common MRT, with defined minimum data elements.
In addition, DHS has determined that States must also include issue
date and expiration date on each driver's license or identification
card.
Some of these elements are discussed below.
1. Full Legal Name
The intent of this requirement is to improve the ability of law
enforcement officers, at all levels of Government, to confirm the
identity of individuals presenting State-issued driver's licenses or
identification cards. Many States do not have a ``full'' legal name
requirement, and using a name other than a full legal name results in
``no matches'' when checked against other public records that use the
full legal name. This occurred with some of the driver's licenses and
identification cards obtained by the 9/11 terrorists, where the
driver's licenses ``names'' were variants on the actual name carried in
some of the terrorists' validly issued passports.\15\
---------------------------------------------------------------------------
\15\ H.R. Rep. No. 109-72 (2005) (Conf. Rep.).
---------------------------------------------------------------------------
This requirement raises several issues. First, the name on the REAL
ID driver's license or identification card should be identical to the
name shown on the identity document used to obtain the driver's license
or identification card. However, formats for recording names on
identity documents differ and a driver's license or identification card
holder's name may change through marriage, divorce, adoption, or court
order. State DMVs currently require appropriate proof in the form of
documents indicating an official name change: A U.S. court-or
Government-issued marriage certificate, a U.S. court-issued divorce
decree, or a U.S. court-issued name change decree. States must require
an original or certified copy of one of these documents as proof of
change of name, and the document must include either the date of birth
or the age of the individual. States must also add the changed name in
the motor vehicles record database and not delete any previously
captured names so that a complete record of the individual's full name
history is present in the motor vehicles database.
With regard to the name placed by the DMV on the face of the
driver's license or identification card, DHS is proposing to adopt the
ICAO 9303 Standard. The ICAO 9303 standard requires Roman alphabet
characters, allows a total of 39 characters on the face of the driver's
license or identification card, and provides standards for truncation
of longer names.
For the machine readable portion of the card, the machine readable
technology standard proposed is the PDF-417 2D bar code (see section
II.H.8 below). For the machine readable portion of the card, DHS would
require States to capture and record up to 125 characters in the bar
code and State database to permit capture of the full name history.
Allowing at least 125 characters accommodates certain cultures in which
multiple, lengthy names, are common and permits greater accuracy in
identifying particular individuals.
2. Driver's License or Identification Card Number
Section 202(b)(4) of the Act requires that each REAL ID license or
identification card include the person's unique ``driver's license or
identification card number.'' Federal law prohibits the display of an
individual's SSN on a driver's license.\16\
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\16\ Section 7214 of the Intelligence Reform and Terrorism
Prevention Act of 2004 (Pub. L. 108-458, 118 Stat. 3638, Dec. 17,
2004) amended section 205(c)(2)(c)(vi) of the Social Security Act
(42 U.S.C. 405(c)(2)(C)(VI)).
---------------------------------------------------------------------------
3. Digital Photograph
Section 202(b)(5) of the Act requires that the State-issued REAL ID
license or identification card include a digital photograph of the
person. In addition, section 202(d)(3) provides that the State shall
require that each person applying for a driver's license or
identification card be subject to mandatory facial image capture. This
requirement applies whether or not the person is granted a driver's
license or identification card. DHS believes that these provisions
require each applicant to allow a DMV to take a photograph for the
motor vehicle record, and to place the digital image on the face of the
driver's license or identification card, if one is issued. If a
driver's license or identification card is not issued, DHS is proposing
that States dispose of the photograph after one year. The DMV's photo
of the individual should be updated with the most recent photograph in
the event the applicant reapplies, and any photos taken of the
individual prior to successful issuance of the document should be
discarded in favor of the photo associated with the successful
application. If the DMV does not issue the driver's license or
identification card because of suspected fraud, the record should be
maintained for ten years and reflect that a driver's license or
identification card was not issued for that purpose.
DHS recognizes that some individuals that may apply for a REAL ID
driver's license or identification card are opposed to having their
photograph taken based on their religious beliefs. However, the Act
requires a facial photograph, which serves important security purposes.
Given these concerns and the clear statutory mandate, DHS believes that
a driver's license or identification card issued without a photograph
could not be issued as a REAL ID driver's license or identification
card. Many States now issue non-photo driver's licenses or
identification cards based on the applicant's religious beliefs. States
may continue to issue these driver's licenses or identification cards
to such individuals and DHS recommends that these driver's licenses and
identification cards be issued in accordance with the rules for non-
compliant driver's licenses and identification cards.
DHS is proposing that digital photographs comply with current ICAO
standards.\17\ Such standards include diffused lighting over the full
face to eliminate shadows and ``hotspots,'' a full face image from the
crown to the base of the chin and from ear-to-ear (unless the State
chooses to use profiles for licensees under 21), and images with
[[Page 10836]]
no veils, scarves or headdresses to obscure facial features, or eyewear
that obscures the iris or pupil of the eyes. Photos should also be in
color.
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\17\ The relevant ICAO standard is ICAO 9303 part 1 vol 2,
specifically ISO/IEC 19794-5--Information technology--Biometric data
interchange formats--Part 5: Face image data, which is incorporated
into ICAO 9303.
---------------------------------------------------------------------------
4. Address of Principal Residence
This regulation proposes that, in most cases, the individual's
principal address be included on the face of the REAL ID driver's
license or identification card. DHS proposes exceptions to this
requirement, as described below.
a. Confidential Address. Section 202(b)(6) of the Act requires that
the driver's license or identification card include the person's
address of principal residence. Many States have laws that allow
addresses to be kept confidential in certain circumstances; for
example, where the disclosure of an address may jeopardize the personal
safety of such an individual, such as victims of domestic violence,
judges, protected witnesses, and law enforcement personnel. Some States
provide the standards for address confidentiality through legislation
or in their exceptions processing. Most States retain the ``real''
address in their database, but often protect it so that only authorized
personnel have access to the ``real'' address. In addition, most States
do not have the ``real'' address in the machine readable technology
barcode. Rather, the machine readable zone contains only what is on the
face of the driver's license or identification card.
Section 827 (Protection of domestic violence and crime victims from
certain disclosures of information) of the Violence Against Women and
Department of Justice Reauthorization Act of 2005,\18\ amended the REAL
ID Act 2005 (49 U.S.C. 30301 note), to protect against disclosure
addresses of individuals who have been subjected to battery, extreme
cruelty, domestic violence, dating violence, sexual assault, stalking
or trafficking. Consequently, DHS is proposing to exempt individuals
who are entitled to enroll in State address confidentiality programs,
whose addresses are entitled to be suppressed under State or Federal
law or by a court order, or who are protected from disclosure of
information pursuant to section 384 of the Illegal Immigration Reform
and Immigrant Responsibility Act of 1996 from the requirement to have
their address displayed on REAL ID driver's licenses and identification
cards. DHS understands that other categories of individuals, such as
federal judges, may also require that their addresses remain
confidential to protect their safety. DHS seeks comment on how these
categories of individuals can be protected, while remaining consistent
with requirements of the Act.
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\18\ Title VIII, subtitle C, Sec. 827 (Pub. L. 109-162, 119
Stat. 2960, 3066, Jan. 5, 2006).
---------------------------------------------------------------------------
b. No Fixed Address. DHS recognizes that some people do not have a
fixed address and that States have exceptions processes in place to
address this situation. DHS believes that each State should continue to
address these situations through a written and documented exceptions
process. For example, in some States homeless people may use addresses
of accredited organizations on the local or State level. A State can
address such circumstances through a written exceptions process, and
States must document each use of such a process. Exceptions processing
is discussed further at section II.F.
5. Signature
DHS proposes that the signature meet the requirements of the
existing AAMVA standards for the 2005 AAMVA Driver's License/
Identification Card Design Specifications, Annex A, section A.7.7.2.
This standard includes requirements for size, scaling, cropping, color,
borders, and resolution.
6. Physical Security Features
Section 202(b)(8) of the Act requires that States must include
physical security features on driver's licenses and identification
cards to ensure they are resistant to tampering, counterfeiting, or
duplication for fraudulent purposes. The legislative history of this
requirement states:
The importance of this requirement cannot be overstated. A
majority of States maintain a high level of physical security in the
manufacture of their cards. Unfortunately, a significant minority of
States do not issue licenses or ID cards with secure physical
characteristics. This results in criminals, identity thieves, and
amateurs such as college students being able to ``manufacture'' fake
driver's licenses or ID card from these States. Federal law
enforcement officials--national forensic document laboratory--can
validate that the driver's license of these States are not secure
from counterfeiting using easily available technology.\19\
---------------------------------------------------------------------------
\19\ H.R. Rep. No. 109-72, at 179 (2005) (Conf Rep.).
To develop a regulation that meets these objectives, DHS consulted
forensic document experts and evaluated information helpful in
determining minimum standards that would achieve significant security
benefits within the next few years, make it significantly harder for
amateurs to counterfeit or duplicate driver's licenses and
identification cards, and enable States to continue to improve the
security of their documents.
One option DHS considered was to permit States to select from a
``menu'' of recognized security features contained in many existing
driver's licenses and identification cards. This option would
essentially continue the status quo and provide States with the most
flexibility since no two States would necessarily select the same
security feature choices. DHS rejected this option since State choice
in this area has not produced sufficiently secure forms of
identification. There are a variety of websites offering counterfeit
driver's licenses and identification cards from each State, and even
trained officers cannot always detect counterfeit identification from
another jurisdiction. In addition, this option did not provide
sufficient incentives for States to continue to improve the security of
their driver's licenses and identification cards.
DHS also considered mandating all the required security features,
including the document card stock, to the States. This option had the
benefit of producing a set of standardized security features that law
enforcement and other personnel could be trained to recognize, would
achieve significant security benefits within the next few years, and
would make it significantly harder for amateurs to counterfeit or
duplicate. States were concerned that a fixed array of features would
permit professional counterfeiters to focus on countering a static set
of security features and might inhibit States from using new and
evolving technology. States were also concerned that mandating the
particular card stock a State could use would put States at a
competitive disadvantage with potential card stock suppliers and lead
to increased costs for the States.
The approach DHS is adopting is to combine some mandatory security
features with a performance standard, based on impartial adversarial
testing of the card and security features. The mandatory security
features DHS proposes, such as the use of offset lithography in place
of dye sublimation printing, is designed to impair the ability of
amateurs to manufacture counterfeit driver's licenses and
identification cards or alter genuine ones. It will also lead to a set
of standardized security features that law enforcement and other
personnel can be trained to recognize. The use of adversarial testing
permits States to experiment with a variety of card stocks and new
technologies while fulfilling the underlying security requirements of
the Act. DHS understands that a number of different types of card
stock,
[[Page 10837]]
including polycarbonate, would likely satisfy the proposed performance
standard.
DHS seeks comments on whether the proposed adversarial testing
standards will lead to the development of a secure document solution
that deters amateurs from producing deceptive counterfeits and/or
alterations. DHS also seeks comments on other alternative approaches
DHS could pursue on document security to achieve the same objective and
how those approaches compare to a performance-based independent
adversarial testing. DHS requests that States specifically comment on
what contractual issues, if any, the States will face in satisfying the
proposed document security requirements if the State's existing license
fails one or more of the proposed adversarial tests.
DHS understands that technology is ever-advancing. Therefore, the
proposed regulation would establish standards for achieving increased
document security for driver's licenses and identification cards. DHS
encourages experimentation and development of advanced security
technologies.
7. Privacy of the Information Stored on the Driver's License or
Identification Card
An important purpose of the Act is to improve law enforcement's
ability to confirm the identity of the individual bearing the driver's
license or identification card, in order to reduce identity theft and
fraud. Authorized users of the information on the REAL ID driver's
licenses and identification cards including, but not limited to, law
enforcement should be able to access the necessary personal information
stored on the driver's license or identification card in order to
accomplish a legitimate law enforcement purpose. The ability of
commercial entities and other non-law enforcement third parties to
collect the personal information encoded on driver's licenses or
identification cards raises serious privacy concerns. However, while
cognizant of this problem, DHS believes that it would be outside its
authority to address this issue within this rulemaking.
As discussed in the Privacy Considerations section of this
Preamble, DHS strongly encourages the States to address concerns about
the ability of non-law enforcement third parties to collect or skim
personal information stored on the REAL ID driver's licenses or
identification cards. Some States, such as California, Nebraska, New
Hampshire and Texas have passed laws that prohibit the collection of
information on a driver's license or identification card. In addition,
as noted above, AAMVA has drafted a Model Act \20\ that, if enacted by
a State, would prohibit commercial users, except as provided by the
State's legislation, from using a scanning device to: (1) Obtain
personal information printed or encoded on the card and; (2) buy, sell
or otherwise obtain and transfer or disclose to any third party or
download, use or maintain any data or database, knowing it to contain
personal information obtained from a driver's license or identification
card. The Model Act authorizes verification of age for purchasing
alcoholic beverages or tobacco products, but with strict limitations on
the storage and use of such information. DHS supports the privacy and
security benefits such State legislation affords and encourages the
States to consider the benefits of promulgating the Model Act or
similar legislation.
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\20\ ``Model Act to Prohibit the Capture and Storage of Personal
Information Obtained from a Driver's License or ID Card,'' AAMVA 26-
8.2-03, 2003.
---------------------------------------------------------------------------
DHS is attempting to achieve a balance between facilitating the
ability of law enforcement and other authorized persons to have access
to the information on the card and protecting the integrity of the
information on the card by limiting the ability of non-authorized
persons to obtain that same information. Encryption discussed in
section II.H.9 below is one option, but significant concerns exist
about the feasibility of deploying encryption, given the need for
Federal, State and local law enforcement access.
DHS seeks comments on how best to secure the data, or whether or
not to employ protections for the data encoded on the 2D bar code needs
to be protected at all, while permitting law enforcement access and
what technologies may be available to accomplish this balance. DHS is
interested in comments that address whether a technology, such as the
National Law Enforcement Telecommunications System (NLETS), or other
system currently being used by law enforcement, could be used by the
States to provide law enforcement ready access while maintaining the
security of the information on the driver's license or identification
card.
8. Machine-Readable Technology (MRT)
Section 202(b)(9) of the Act requires the States to include a
common MRT with defined minimum data elements for the driver's licenses
and identification cards to be accepted by a Federal agency for
official purposes. DHS looked at several types of technology that could
be used, including:
A 1D bar code, commonly used for tracking inventory,
mostly used by supermarket scanners. This does not have the capability
to store significant amounts of information.
A 2D bar code. This is currently used by 45 of 50 States,
plus the District of Columbia. It stores a greater amount of
information than the 1D bar code, although the ``scanning'' process is
extremely similar to the 1D bar code. This is also the current AAMVA
standard.
An optical stripe. This is currently used on DHS-issued
permanent resident cards and border crossing cards, and stores
information digitally, much like a compact disc.
A contact integrated circuit chip. A contact integrated
circuit chip (ICC) in a document could be read by inserting the
document in a contact ICC reader.
A contactless integrated circuit chip. A contactless
integrated circuit chip in a document could be read by transmitting
data via radio frequency to readers.
Of these five options, DHS believes the following are inappropriate
for the purposes of this proposal:
The 1D bar code does not have the storage capacity to hold
the amount of data that the Act requires, and would inhibit States from
storing additional State-specific information on the card, should they
so choose.
The integrated contactless chip was not deemed an
appropriate technology for this particular document, as there is not an
identifiable need for driver's licenses and identification cards to be
routinely read at a distance.
The optical stripe has had durability difficulties over
time.
Of the two remaining options--the 2D bar code and the contact
chip--DHS proposes the 2D bar code as the better option. The 2D bar
code is the existing standard for AAMVA, and is also something with
which the public is familiar. Forty-five of the fifty United States use
this technology currently, making it relatively easy for virtually
every State to meet this requirement by May 2008, at little additional
cost for most States. The proposed selection of the 2D bar code ensures
that the majority of States have available and usable technology that
is interoperable among all the States.
The proposed regulation would mandate the use of the PDF-417 2D bar
code as the common MRT standard and DHS proposes to adopt most of the
mandatory data elements described in the 2005 AAMVA Driver's License/
Identification Card Design
[[Page 10838]]
Specifications, Annex D, as its MRT data elements model. PDF417 is a
two dimensional, open source (public domain) barcode that is used to
store and transfer large amounts of data inexpensively. PDF stands for
``portable data file'' in that the barcode acts as an independent
database that travels along with the item, document, or card on which
it is affixed. The printed barcode symbol consists of several linear
(minimum 3, maximum 90) rows, each of which is like a small linear
barcode made up of code words that can carry up to 1.1 kilobytes of
machine-readable data in a space no larger than a standard bar code.
The American National Standards Institute has published a standard for
PDF417, and AAMVA has approved the use of PDF417 for driver's licenses
and identification cards. The PDF417 barcode can be read by a standard
2D barcode scanner.
The AAMVA list of data elements includes expiration date, bearer's
name, issue date, date of birth, gender, address, and a unique
identification number.\21\ DHS proposes that States consider storing in
the machine-readable zone (MRZ) only the minimum data elements
necessary for the purpose for which the REAL IDs will be used. DHS
requests comments on what data elements should be included in the
machine readable zone and the privacy considerations regarding the
selection of such data elements and this technology.
---------------------------------------------------------------------------
\21\ The AAMVA standard also includes eye color and height, but
DHS is not proposing these as required elements in the machine
readable zone.
---------------------------------------------------------------------------
9. Encryption
Annex D of the AAMVA standard requires that all of the data on the
2D bar code be unencrypted. Although DHS leans toward requiring
encryption for the data stored in the 2D bar code on REAL ID driver's
licenses and identification cards, DHS believes that access to this
information by law enforcement is essential to the requirements of the
Act and invites comment on how to provide this access and the
protection of the information at the same time.
Because 2D bar code readers are extremely common, there is a
possibility that the data could be captured from the driver's licenses
and identification cards and accessed by third parties by reading the
driver's license or identification card's 2D bar code. For example, a
bar could scan the 2D barcode to verify that the individual presenting
the driver's license or identification card was 21 or over, and at the
same time could conceivably obtain the person's name and address off
the barcode and compile a list of names and addresses of its patrons,
which it could subsequently sell or use. Encryption would help mitigate
this privacy risk by preventing the ``skimming'' of the information
from the MRZ, while still allowing the bar to read the date of birth
off the face of the license. Alternatively, the date of birth could be
left unencrypted so that the bar could scan the date of birth only.
Another alternative would be to eliminate the address from the 2D bar
code, requiring ``skimmers'' to take the extra step of using
information brokers to acquire and match an address to the name and
date of birth previously collected off the MRZ.
Because encryption of the data necessitates access to the
cryptographic key in order to decrypt the data, employing encryption in
the 2D bar code would require having a key infrastructure allowing
permitted agencies access to the secured key information. For example,
a least 16,000 local, State, and Federal law enforcement agencies would
need access to the key infrastructure to check the information on the
MRZ.
The need for a key infrastructure to support access to encrypted 2D
bar code data could create two separate scenarios of concern.
First, there could be a complex and comprehensive exchange of
encryption keys through or among all 56 jurisdictions. Although the
encryption system would be most secure the larger the number of keys
used to secure MRZ information, this large number of cryptographic keys
would need to be accessible to law enforcement personnel wherever they
would be reading the driver's license. Building such an infrastructure
would present certain complexities that, if not addressed
appropriately, could reduce the utility of encryption.
Second, there could be one single encryption key, which would avoid
the complexities of needing a key infrastructure, but this greatly
increases the risk that this single key could be compromised. Although
employing a single key greatly simplifies the availability of the
cryptographic key for law enforcement, the compromise of this single
cryptographic key would compromise all data secured on all REAL ID
driver's licenses and identification cards. In this case, encryption
could create a false sense of security if a license holder thought his
or her information was truly secure and it was not.
For all of the above reasons, we have not proposed that encryption
of MRZ data be required. Nonetheless, DHS leans toward an encryption
requirement if the practical concerns identified above can be overcome
in a cost-effective manner. We request comments on whether and how
encryption could be employed to secure the information stored in the
MRZ of the cards.
DHS understands the privacy concerns associated with including
personal information in an unencrypted machine readable zone of a
driver's license, particularly an individual's address, and also
recognizes a legitimate law enforcement need for access to certain data
elements. Because of this, DHS seeks comments on whether a demonstrable
law enforcement need exists to include address in the MRZ portion of
the REAL ID driver's license, as currently proposed in this rule.
I. Validity Period and Renewals of Driver's Licenses and Identification
Cards
Section 202(d) of the Act limits the period of validity of all
driver's licenses and identification cards that are not temporary to a
period that does not exceed eight years.
1. Remote/Non-In-Person Renewals
Under the Act, REAL ID driver's licenses and identification cards
(excluding temporary REAL ID driver's licenses and identification
cards) may be valid for a period not to exceed eight years. Remote
renewal will be allowed for REAL ID driver's licenses and
identification cards if the State has retained images or paper copies
of the source documents used by the State to issue the original
driver's license or identification card through the time of renewal,
and if no information has changed since prior issuance (name or
address, for example). The State must re-verify information on the
source documents that were used as the basis for issuing the original
REAL ID driver's license or identification card, to assure there is no
match against death information recorded with either the State vital
statistics offices or SSA, and in order to diminish the likelihood that
an individual obtained his or her original REAL ID driver's license or
identification card under a false name or with a fraudulent document.
Finally, under Section 202(d)(4) a State must take reasonable
measures to ensure that the individual seeking the renewal is the same
person to whom the REAL ID driver's license or identification card was
issued. DHS is considering how best to authenticate the identity of an
individual requesting renewal of his or her driver's license or
identification card remotely, to guarantee that the REAL ID driver's
license or identification card is being
[[Page 10839]]
reissued to its proper holder. For example, DHS proposes that the State
may choose to authenticate the identity of a renewal applicant through
use of personal identifiers such as PIN numbers or questions whose
answers only the proper holder would know, or through use of biometric
information. DHS requests comments on these renewal procedures,
including suggestions on any alternative approaches for remote renewals
and authentication of remote renewals.
2. In-Person Renewals
A holder of a REAL ID driver's license or identification card must
renew his or her driver's license or identification card in person with
the State DMV at least once every sixteen years (or every other renewal
period, if the State chooses a renewal period of less than the eight-
year statutory maximum) for the State to take an updated photograph.
The States must re-verify original information and source documents
used as the basis for issuance of the original REAL ID driver's license
or identification card, but the individual need not resubmit documents
for verification as long as the State has retained copies of source
documents for the period of renewal. Documents supporting name changes
or address changes since prior issuance must be presented to the DMV
and verified. This process should apply any time a driver's license or
identification card is renewed or reissued for any purpose.
Holders of temporary REAL ID driver's licenses and identification
cards must renew their driver's licenses and identification cards in
person at each renewal in order to present evidence of continued lawful
status. States must verify continued lawful status and re-verify source
documents as outlined above.
The renewal process for non-REAL ID driver's licenses and
identification cards is not subject to this regulation.
J. Source Document Retention
Section 202(d)(1) requires that States employ technology to capture
digital images of identity source documents so that the images can be
retained in electronic storage in a transferable format. The intent
behind this provision is applicant convenience upon renewal, and
availability of documentation to law enforcement.\22\ DHS is proposing
that if a State employs digital imaging of source documents, it use the
AAMVA Digital Image Exchange Program for this purpose and capture the
image in color. If a State does not currently use color scanners, DHS
is proposing that current black and white scanners be replaced with
color scanners by December 31, 2011. If a State uses a different
standard, that standard must be interoperable with the AAMVA standard
to ensure an efficient interstate exchange of data when DMVs need to do
so. Photo images should be stored in the Joint Photographic Experts
Group (JPEG) 2000 standard for image compression, as modified in the
future. Document and signature images should be stored in a compressed
Tagged Image Format (TIF). This proposal would require that all images
be linked to the applicant through the applicant's unique identifier
assigned by the DMV.
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\22\ H.R. Rep. No. 109-72, at 182 (2005) (Conf. Rep.).
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As an alternative, a State may retain the paper copies of the
source documents until it develops an electronic system.\23\ Capturing
paper documents on microfiche also would be acceptable, but the State
will likely find an electronic system to be more economically efficient
over time. Under section 202(d)(2) of the Act, States must retain paper
copies of source documents for a minimum of seven years, or images of
source documents for a minimum of ten years.
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\23\ Congress made it very clear in the legislative history of
section 202(d)(2) of the Act that the intent is for all States to
have an electronic system. ``The goal is to move all the State's
records into electronic format.'' H.R. Rep. 109-72, at 182 (2005)
(Conf Rep.).
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Retaining images of source documents allows for renewal of driver's
licenses and identification cards remotely, without requiring the
driver's license or identification card holder to present source
documents at the renewal. Since REAL ID driver's licenses and
identification cards must be issued for a maximum period of eight years
in accordance with the Act, States may wish to reconcile their source
document retention periods accordingly.
K. Security of DMV Facilities Where Driver's Licenses and
Identification Cards Are Manufactured and Produced; Facility Security
Plans
DHS is proposing that States that choose to produce REAL ID
driver's licenses and identification cards submit to DHS a security
plan that outlines the State's consolidated approach to security of DMV
facilities and the driver's license or identification card production
process. Such security plans should also include the State's approach
to conducting background checks of certain DMV employees pursuant to
section 202(d)(8) of the Act, physical security of the locations where
driver's licenses and identification cards are produced, and the
security of document materials and papers from which driver's licenses
and identification cards are produced, pursuant to section 202(d)(7) of
the Act. Security plans should also describe the security features
incorporated into the driver's licenses and identification cards as
required under section 202(b)(8) of the Act. Also, should the State
decide to incorporate biometrics as an additional security feature
(which is not mandated in the regulation), DHS is proposing that the
State should describe this use in its security plan and present the
technology standard the State intends to use to DHS for approval. This
will enable DHS to ensure interoperability of technical standards
amongst States seeking to incorporate biometrics in their licensing
programs.
This proposed regulation would require that the State submit the
security plan to DHS in conjunction with the State's request for
certification to enable DHS to review the plan, along with the State's
request for certification.
1. Background Checks for Certain Employees
Section 202(d)(8) of the Act requires that ``all persons authorized
to manufacture or produce driver's licenses and identification cards''
must be required to undergo ``appropriate security clearance
requirements.'' The purpose of this requirement is to make sure that
those individuals who are in a position to produce, manufacture or
issue driver's licenses and identification cards are trustworthy. In
some jurisdictions in the past, certain DMV employees involved in this
process have aided in the issuance of fraudulent driver's licenses and
identification cards.
Section 37.45 of the proposed regulations addresses the
requirements of section 202(d)(8) of the Act by identifying which
categories of DMV employees must undergo background checks \24\ and the
nature of the background checks. With respect to scope, Congress made
it clear that section 202(d)(8) was included in the Act because recent
investigations into driver's license/identification card insider
corruption cases in various
[[Page 10840]]
states ``revealed that a routine security investigation would have
prevented key perpetrators from ever being employed to handle documents
of high `street' value that can be sold to illegal aliens, criminals,
terrorists, and identity thieves.'' \25\
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\24\ A background check is the investigation into someone's past
history to permit them to either gain a security clearance or pass a
suitability screening. A security clearance is the end result of a
background investigation whereby the government makes a
determination that someone may be trusted with specified levels of
information, such as ``classified'' information. While section
202(d)(8) of the Act uses the term ``security clearance,'' DHS
believes that the intent was to conduct background checks, as DMV
employees do not need clearance to handle ``classified''
information.
\25\ Conference Report at 183.
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In light of Congress's clearly expressed intention that background
checks be used to prevent the fraudulent creation of identity
documents, DHS concluded that background checks should be required for
any DMV employee who has the ability to affect the identity information
that appears on the driver's license or identification card, who has
access to the production process, or who is involved in the manufacture
of driver's licenses and identification cards (``covered employees'').
Understanding that each State's DMV has a unique organization and
structure, it will be up to each State to determine which positions
would fall under this definition (``covered positions''). DHS proposes
to require that the State DMVs provide their employees and prospective
employees that have been selected for placement in a covered position
with notice that a background check is required for employment in a
covered position and what that background check will include.
With respect to the type of background check required, the
regulations propose that States collect fingerprints for individuals
who seek employment in a covered position, in order to conduct a
criminal history record check (CHRC) on those individuals through the
Federal Bureau of Investigation (FBI) and State repositories.
Individuals who have been convicted or found not guilty by reason of
insanity of certain permanent disqualifying offenses; or individuals
who have been convicted or found not guilty by reason of insanity
within the previous seven years or who have been released from prison
within the past five years for certain interim disqualifying offenses,
would not be allowed to hold covered positions within a State DMV. The
list of disqualifying offenses, based on current Federal requirements,
mirrors requirements for TSA's Hazardous Materials Endorsement program
(HAZMAT program) and Transportation Workers Identification Credential
(TWIC) program. See 49 CFR 1572.103 and the final rule on TWIC (72 FR
3492, Jan. 25, 2007).
DHS concluded that this list of crimes is sufficient as a Federal
minimum. States may add additional disqualifying offenses to this list
for their covered employees. States will be responsible for arranging
reimbursement with the FBI for the cost of conducting the fingerprint
CHRC check. DHS invites comment on whether the proposed list of
disqualifying offenses is appropriate, too large, or insufficient as it
concerns REAL ID.
DHS is also proposing that the States perform a financial history
check on individuals seeking employment in covered positions. Such
checks are already being conducted by many employers, including many
DMVs, as one indicator that an individual may warrant additional
scrutiny or supervision before assuming responsibilities that raise
security risks. While questionable financial history would not be
considered a Federal disqualifier, the information should be used by
the States in making their own determinations on how or whether
particular individuals should be employed at the DMV.
DHS recognizes that this requirement is not a feature of the TWIC
or HAZMAT programs. Nevertheless, DHS believes that it is warranted in
the instant case, due to the sensitivity of the personal information
that will routinely be handled by employees at State motor vehicle
administrations and the fact that a driver's license or identification
card serves as a key ``breeder'' document in securing other forms of
State and Federal identification. If the DMV personnel issuing and
authenticating the driver's license or identification card are
compromised and issue genuine REAL ID driver's licenses and
identification cards to individuals who are seeking to mask their true
identity, those individuals can obtain additional identification using
that false identity and thwart the Government's and law enforcement's
ability to identify accurately individuals lawfully stopped and
screened. Moreover, as set forth in the Conference Report on section
202(d)(8) of the REAL ID Act, Congress was concerned at the extent of
``driver's license insider corruption.'' H.R. Rep. No. 109-72, at 183
(2005) (Conf. Rep.). DHS believes that DMV employees with severe
financial difficulties might be more susceptible to bribery, and that
States should take this into consideration in determining whether an
individual should be placed in a covered position.
These proposed regulations do not preclude a DMV from hiring any
individual based on the results of the financial history check and do
not preclude the DMV from placing the individual in a covered position
based on that check. The financial history check information is
intended to provide the employer a fuller picture when deciding whether
to place a potential employee in a covered position.
DHS also proposes that States conduct a lawful status check through
SAVE to verify that the individual has lawful status in the United
States.
DHS proposes that States may grant waivers allowing individuals to
maintain their positions under particular circumstances as authorized
by the States; for example, where an individual has made full
disclosure of his or her criminal history to the State DMV. DHS
proposes that States adopt written practices for waiver processes and
provide them to DHS as part of the background check discussion of the
State's comprehensive security plan. Waiver practices will be reviewed
by DHS during a State's initial certification and thereafter as part of
periodic DHS audits of the State's REAL ID program.
2. Physical/Logical Security
The Act requires that States ``ensure the physical security of
locations where driver's licenses and identification cards are produced
and the security of document materials and papers from which driver's
licenses and identification cards are produced.'' This means that the
DMV buildings, storage areas, databases and systems, and other areas of
perceived vulnerability must be protected from theft and fraud. The
State's comprehensive security plan should include a written risk
assessment of each facility, physical security measures, access
identification and control measures for employees and vendors, written
policies and procedures, training and internal controls to identify and
minimize fraud, and an emergency/incident response plan if procedures
are breached.
DHS is considering the American National Standards Institute/North
American Security Products Organization's ``Security Assurance
Standards for the Document and Product Security Industries,'' ANSI/
NASPO-SA-v3.OP-2005, Level II, as the preferred performance-based
standard for physical security of DMV facilities. DHS seeks comment on
adoption of this standard, as well as recommendations on other
appropriate performance-based standards to meet this statutory
requirement. DHS also specifically seeks comment on the extent that the
adoption of any performance-based standard would require modification
of existing office space or construction of new space. DHS also seeks
comments on the extent to which physical changes to existing office
spaces required by the adoption of
[[Page 10841]]
the ANSI standards or any other physical security performance-based
standards would impact historical properties.
3. Document Security Features on Driver's Licenses and Identification
Cards
The security plan discussed above must detail the document security
features that States are adopting for their driver's licenses and
identification cards to prevent tampering, counterfeiting, or
duplication of the driver's license or identification card for
fraudulent purposes. These features are discussed in more detail in the
preamble at Section II.H.6, infra,
4. Security of Information Stored in the DMV Database
Section 202(d)(7) of the Act requires States to ``ensure the
physical security of locations where driver's licenses and
identification cards are produced and the security of document
materials and papers from which driver's licenses and identification
cards are produced.'' DHS believes that the scope of this provision
includes protecting the security of the personal information stored in
DMV databases. The House Conference Report discussion of this section
of the Act states that the requirement for improved physical security
is to address ``a growing problem of identity thieves and documents
purveyors breaking into State facilities and stealing driver's license
or identification card stock blanks, printing machines, and sometimes
actual computer hard drives in which current driver's license or
identification card holder data is stored.'' \26\ It is well documented
that a number of DMVs have had incidents of theft of personal
information from their databases,\27\ and security of personal
information is a high priority for all Federal and State governmental
agencies. Therefore, DHS believes it is reasonable to require that, as
part of the security plan mandated for State certification under the
Act, States address the security of the DMV databases storing personal
information.
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\26\ H.R. Rep. 109-72, at 183 (2005) (Conf. Rep.).
\27\ http://www.cdt.org/testimony/020805schwartz.shtml.
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5. Security of Personal Data and Documents Collected and Managed Under
the Act
As part of the Comprehensive Security Plan, States shall be
required to describe standards and procedures for managing driver
records and data collected, stored, modified, accessed and transmitted
under the requirements of this rule. With respect to the identity
documents required to be provided by applicants, States shall describe
procedures to prevent unauthorized access to, or dissemination of,
images of these documents stored pursuant to the Act. States shall also
detail procedures for document retention and destruction for both
physical and electronic records. With respect to applicant data
required under the Act, States shall document access controls and
related procedures governing the authorized use of such data. Finally,
States shall document procedures for resolving data formatting,
quality, and integrity issues. DHS encourages States to draft
collective standards and best practices for the management of both
documents and data required under the provisions of this rule.
In the event of a terrorist event or natural disaster as extensive
as 9/11 or Hurricane Katrina, the sharing of information collected and
maintained by DMVs pursuant to the REAL ID Act may prove useful to the
States for many purposes, such a recreating lost State data, providing
individuals' access to images of their source documents when originals
are destroyed, or assisting in recovery efforts. DHS seeks comment on
whether and to what extent States can or should include in their
security plans access to data for information sharing purposes as
necessary in the event of a catastrophic event.
III. State Certification Process
Section 202(a)(2) of the Act requires the Secretary to determine
whether a State is meeting the requirements of the Act based on
certifications made by the State to the Secretary of DHS.
Certifications ``shall be made at such times and in such manner as the
Secretary, in consultation with the Department of Transportation, may
prescribe by regulation.'' Section 37.55 of the regulations presents
the requirements for certification.
To ease the burden on the States, DHS determined that this
certification process should be similar to the certification process
included in DOT's regulations governing State administration of
commercial driver's licenses, 49 CFR Part 384. The States are
accustomed to these certification requirements, and the requirements
appear useful in providing the information DHS will need to ensure that
States are in compliance with applicable REAL ID standards.
Accordingly, Subpart F of these regulations was based, to a large
extent, on 49 CFR Part 384. States must demonstrate initial compliance
with these regulations by submitting a certification and certain
specified documents including a description of its REAL ID program, and
demonstrate continued compliance by annually submitting such
certification and documents. DHS will review such initial and annual
certifications and notify the State of its preliminary determination as
to the State's compliance with the regulations. The State will have 30
calendar days to respond to the preliminary determination and explain
how any identified deficiencies will be corrected or, alternatively,
why the DHS preliminary determination is incorrect. DHS will then
notify the State of its final determination for which the State may
seek judicial review.
IV. Driver's Licenses and Identification Cards That Do Not Meet the
Standards of Subparts A and B of These Regulations
Section 202(d)(11) of the Act requires that any driver's license or
identification card that does not satisfy the requirements of this
section must clearly state on its face that it may not be accepted by
any Federal agency for Federal identification or any other official
purpose. DHS is proposing that this statement be in bold lettering on
the face of the driver's license or identification card. States must
also differentiate non-REAL ID driver's licenses and identification
cards from REAL ID driver's licenses and identification cards by
incorporating a unique design or color indicator to alert Federal
agencies and other law enforcement personnel that it may not be
accepted for Federal official purposes pursuant to this regulation. DHS
seeks comment on whether a uniform design/color should be implemented
nationwide for non-REAL ID driver's licenses and identification cards.
V. Section 7209 of the Intelligence Reform and Terrorism Prevention Act
of 2004
Section 7209 of the Intelligence Reform and Terrorism Prevention
Act of 2004 (IRTPA) (Pub. L. 108-458, 118 Stat. 3638, Dec 17, 2004)
requires that the Secretary of Homeland Security, in consultation with
the Secretary of State, develop and implement a plan, as expeditiously
as possible, to require travelers entering the United States to present
a passport, other document, or combination of documents, that are
``deemed by the Secretary of Homeland Security to be sufficient to
denote identity and citizenship.'' Section 7209 of IRTPA is commonly
known as the Western Hemisphere Travel Initiative (WHTI).
[[Page 10842]]
DHS and DOS issued a final rule on the plan for the air
implementation of WHTI which took effect on January 23, 2007. The WHTI
requirements for the land and sea borders will be addressed in a
separate rulemaking proceeding. In a related WHTI proceeding, DOS
issued a Notice of Proposed Rulemaking concerning the Passport Card
that would be an acceptable WHTI document at U.S. land and sea borders.
See 71 FR 60928 (Oct. 17, 2006). The NPRM proposed that the Passport
Card incorporate integrated circuit chip (ICC) technology that would
transmit a unique identifier number that could be matched to the holder
only in a Government database. The use of ICC technology would
facilitate the border inspection of the Passport Card holder. DHS
understands that numerous States are interested in exploring whether
enhanced driver's licenses and identification cards could be acceptable
at the land border to satisfy the WHTI requirements. There are a number
of significant differences, however, between a Federally-issued border
crossing document and a State-issued driver's license or identification
card, including the different vetting criteria. In addition, for
purposes of satisfying WHTI requirements, the State would have to
ensure that the State-issued REAL ID driver's license or identification
card denoted citizenship for purposes of border crossing under WHTI.
For REAL ID purposes, DHS is not proposing that States must present the
individual's citizenship on the face of the driver's license or
identification card or MRZ.
Nevertheless, recognizing the strong interest in some border States
to explore the possible interplay between an enhanced driver's license/
identification card and WHTI requirements, DHS seeks comments on
several topics relating to this notion, including what procedures and
business processes a State DMV could develop in order to offer
individuals applying for a State-issued REAL ID driver's license or
identification card the voluntary option to use the document as a WHTI-
compliant border crossing document by meeting some additional
requirements. DHS also invites comments on how a State would integrate
the type of ICC technology necessary to provide a travel facilitation
benefit at the land and sea border along with the common machine
readable technology proposed in the REAL ID proceeding while also
including an MRZ meeting ICAO standards.
VI. Solicitation of Comments
DHS solicits public comments on all aspects of this proposed
regulation. DHS is particularly interested in comments on the following
issues:
(1) Whether the list of documents acceptable for establishing
identity should be expanded. Commenters who believe the list should be
expanded should include reasons for the expansion and how DMVs will be
able to verify electronically with issuing agencies the authenticity
and validity of these documents.
(2) Whether the data elements currently proposed for inclusion in
the machine readable zone of the driver's license or identification
card should be reduced or expanded; whether the data in the machine-
readable portion of the card should be encrypted for privacy reasons to
protect the data from being harvested by third parties, and whether
encryption would have any effect on law enforcement's ability to
quickly read the data and identify the individual interdicted. What
would it cost to build and manage the necessary information technology
infrastructure for State and Federal law enforcement agencies to be
able to access the information on the machine readable zone if the data
were encrypted?
(3) Whether individuals born before 1935 who have established
histories with a State should be wholly exempt from the birth
certificate verification requirements of this regulation, or whether,
as proposed, such cases should be handled under each State's exceptions
process.
(4) If a State chooses to produce driver's licenses and
identification cards that are WHTI-compliant, whether citizenship could
be denoted either on the face or machine-readable portion of the
driver's license or identification card, and more generally on the
procedures and business processes a State DMV could adopt in order to
issue a Real ID driver's license or identification card that also
included citizenship information for WHTI compliance. DHS also invites
comments on how States would or could incorporate a separate WHTI-
compliant technology, such as an RFID-enabled vicinity chip technology,
in addition to the REAL ID PDF417 barcode requirement.
(5) How DHS can tailor the address of principal residence
requirement to provide for the security of classes of individuals such
as federal judges and law enforcement officers.
(6) What benchmarks are appropriate for measuring progress toward
implementing the requirements of this rule and what schedule and
resource constraints will impact meeting these benchmarks.
(7) Adoption of a performance standard for the physical security of
DMV facility, including whether DHS should adopt the ANSI/NASPO
``Security Assurance Standards for the Document and Product Security
Industries,'' ANSI/NASPO-SA-v3.OP-2005, Level II as the preferred
standard.
(8) How DHS can better integrate American Samoa and the
Commonwealth of the Northern Marianas into the REAL ID framework.
(9) Whether the physical security standards proposed in this rule
are the most appropriate approach for deterring the production of
counterfeit or fraudulent documents, and what contractual issues, if
any, the States will face in satisfying the document security
requirements proposed in this rule.
(10) The federalism aspects of the rule, particularly those arising
from the background check requirements proposed herein.
(11) How the Federal government can better assist States in
verifying information against Federal databases.
(12) In addition to security benefits, what other ancillary
benefits could REAL ID reasonably be expected to produce? For example,
could REAL ID be expected to reduce instances of underage drinking
through use of false/fraudulent identification. If so, please provide
details about the expected benefit and how it would be achieved through
REAL ID.
(13) The potential environmental impacts of the physical security
standards and other requirements proposed under this rule.
(14) Whether other federal activities should be included in the
scope of ``official purpose.''
(15) How the REAL ID Act can be leveraged to promote the concept of
``one driver, one record, one record of jurisdiction'' and prevent the
issuance of multiple driver's licenses.
(16) Whether DHS should standardize the unique design or color
required for non-REAL ID under the REAL ID Act for ease of nationwide
recognition, and whether DHS should also implement a standardized
design or color for REAL ID licenses.
VII. Regulatory Analyses
A. Paperwork Reduction Act
The Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501 et seq.)
requires that DHS consider the impact of paperwork and other
information collection burdens imposed on the public and, under the
provisions of PRA
[[Page 10843]]
section 3507(d), 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 contains new and amended information collection
activities subject to the PRA. Accordingly, DHS has submitted the
following information requirements to OMB for its review.
Title: Minimum Standards for Driver's licenses and Identification
Cards Acceptable by Federal Agencies for Official Purposes.
Summary: This proposal would require States participating in the
REAL ID program to meet certain standards in the issuance of driver's
licenses and identification cards, including security plans and
background checks for certain persons who have the ability to affect
the recording of any information required to be verified, or who are
involved in the manufacture or production of drivers' licenses and
identification cards, or who have the ability to affect the identity
information that appears on the license (covered employees).
Use of: This proposal would support the information needs of: (a)
The Department of Homeland Security, in its efforts to oversee security
measures implemented by States issuing REAL ID driver's licenses and
identification cards; and (b) other Federal and State authorities
conducting or assisting with necessary background and immigration
checks for covered employees.
Respondents (including number of): The likely respondents to this
proposed information requirement are States (including the District of
Columbia, Puerto Rico, the Virgin Islands, Guam, American Samoa, and
the Commonwealth of the Northern Mariana Islands) and State agencies
(such as Departments of Motor Vehicles) and driver's license and
identification card applicants.
Frequency: DHS estimates that each State will submit an initial
certification of compliance or request for extension, together with a
comprehensive security plan. Subsequently, on an annual basis, each
State will re-certify its compliance with the REAL ID Act. States will
also submit quarterly reports analyzing their use of the exceptions
process and monitoring security trends. Further, DHS anticipates that
approximately 17,781 covered employees will receive background checks
(Criminal History Records Check or CHRC) on an annual basis. Thus, the
annual frequency of information requirements is: 17,781 background
checks; 56 annual certifications; and 224 quarterly reports. Background
check information will be submitted on an as-needed basis.
Additionally, driver's license and identification card applicants must
provide proof of identity and lawful status in the U.S. when applying
for a REAL ID drivers' licenses or identification cards. Applicants
would submit this information only for initial applications or when
their lawful status or identifying information has changed.
Annual Burden Estimate: This proposal would result in an annual
recordkeeping and reporting burden as follows: States will be
responsible for sending initial certifications (including security
plans), annual certifications and background check information to the
Federal Government. The compilation and transmission of the initial
certifications will require an annualized 76,000 labor hours by DMV
and/or State government staff. Using an average hourly total cost of
compensation of $24.92, the annual burden for labor hours would be
$1,895,000.
In the first three years of license issuance, applicants for REAL
ID would spend an average of 55.9 million more hours per year. This is
equal to approximately 44 additional minutes per applicant on average.
This time includes the increase in time to obtain source documents,
travel to the DMV, wait in line, and receive service at a customer
window.
One-time initial certifications of compliance would require an
estimated $1,106,000 for all jurisdictions. Using an average hourly
total cost of compensation of $24.92 yields an estimate of 44,397 hours
for the first year. This collection occurs only in the first year.
However, over three years the annualized burden is 14,799 hours or
$368,795.
State annual re-certification would cost the states, on average,
$295,035 per year. Using an average hourly total cost of compensation
of $24.92 yields an estimate of 11,839 hours each year.
Each quarterly report is likely to require effort similar to the
annual re-certifications. Accordingly, the hourly burden estimate is
11,839 hours per quarter or 47,356 hours annually. Using an average
total cost of compensation of $24.92 yields a monetized estimate of
$1,180,142 per year.
Forwarding information to the Federal Government for the employee
background checks would impose an annualized burden of 889 hours on
DMVs and/or State governments. This assumes that each submission will
take three minutes to forward information for the FBI CHRC. Multiplying
the three minutes per transaction by the 17,781 annualized employee
background checks yields the annualized hour burden above. Using an
average total cost of compensation of $24.92 yields an annual monetized
estimate of $22,156.
Driver's license and identification card applicants would incur an
annual $171 million in order to seek acceptable source documents as
required by this rule.
Running immigration checks on foreign-born applicants for driver's
licenses and identification cards will not impart a new hourly burden
upon DMVs. DMVs already collect biographic information from applicants'
source documentation. At most, this requirement will change which
pieces are collected, not the total amount of information collected.
Further, the transmission of information to the SAVE system run by DHS
will be automated and will therefore not require DMV labor hours to
conduct each check.
DHS is soliciting comments to--
(1) Evaluate whether the proposed information requirement is
necessary for the proper performance of the functions of the agency,
including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden;
(3) Enhance the quality, utility, and clarity of the information to
be collected; and
(4) Minimize the burden of the collection of information on those
who are to respond, including using appropriate automated, electronic,
mechanical, or other technological collection techniques or other forms
of information technology.
Individuals and organizations may submit comments on the
information collection requirements by May 8, 2007. Direct the comments
to the address listed in the ADDRESSES section of this document, and
fax a copy of them to the Office of Information and Regulatory Affairs,
Office of Management and Budget, Attention: DHS-TSA Desk Officer, at
(202) 395-5806. A comment to OMB is most effective if OMB receives it
within 30 days of publication. TSA will publish the OMB control number
for this information collection in the Federal Register after OMB
approves it.
As protection provided by the Paperwork Reduction Act, as amended,
an agency may not conduct or sponsor, and a person is not required to
respond to, a collection of information unless it displays a currently
valid OMB control number.
[[Page 10844]]
B. Economic Impact Analyses
Regulatory Evaluation Summary
Changes to Federal regulations must undergo several economic
analyses. A summary of the required analyses follows. A detailed
regulatory impact analysis has been prepared as a separate document and
is available for review in the docket.
First, Executive Order 12866, Regulatory Planning and Review (58 FR
51735, October 4, 1993), directs each Federal agency 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 (5 U.S.C. 601 et seq., as amended by the Small
Business Regulatory Enforcement Fairness Act (SBREFA) of 1996) requires
agencies to analyze the economic impact of regulatory changes on small
entities. Third, the Trade Agreements Act (19 U.S.C. 2531-2533)
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, 2 U.S.C. 1531-1538)
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 annually (adjusted for inflation).
Although Congress recognized that States will have to expend monies
in order to comply with REAL ID,\28\ it explicitly stated that the REAL
ID Act is binding on the Federal government, and not the States.\29\
Moreover, by its terms, UMRA does not apply to regulations ``necessary
for the national security'' and those which impose requirements
``specifically set forth in law.'' \30\ Thus, as a matter of law, the
UMRA requirements do not apply to this proposed rulemaking even though
States will be expending resources. However, the analyses that would
otherwise be required are similar to those required under Executive
Order 12866, which have been completed and may be found in the full
Regulatory Evaluation.
---------------------------------------------------------------------------
\28\ See, e.g., section 204(b) authorizing ``such sums as may be
necessary to carry out this title.''
\29\ See, e.g., section 202(a)(1) (``a Federal Agency may not
accept'' no-compliant State licenses) and Conference Report language
on section 202(a)(1) (``the law is binding on Federal agencies--not
the states'').
\30\ See 2 U.S.C. 1503(5), 1535.
---------------------------------------------------------------------------
Executive Order 12866 Assessment
DHS has determined that this rule will have an impact of over $100
million and that it raises novel or complex policy issues. Accordingly,
this rule is significant under Section 3(f)(1) of Executive Order 12866
and therefore has been reviewed by the Office of Management and Budget.
DHS has assessed the costs, benefits and alternatives of the
requirement proposed under this rule. A complete regulatory impact
assessment, as required under Executive Order 12866 and OMB Circular A-
4, is set forth in a separate document in the docket for this
regulatory action at http://www.regulations.gov at Docket Number DHS-
2006-0030. A summary of the estimated costs and benefits, including
potential ancillary benefits realized by the requirements proposed in
this rule, is set forth below.
The Department of Homeland Security (DHS) has conducted a
comprehensive, rigorous, and exhaustive Regulatory Evaluation of the
benefits and costs of the proposed minimum standards for state-issued
driver's licenses and non-driver identification cards pursuant to the
REAL ID Act of 2005. Since these standards will impact the lives of
approximately 240 million people and the operations of all 56 state and
territorial jurisdictions, DHS is committed to an ongoing dialogue with
all stakeholders on the benefits and burdens of the proposed
regulation. This Regulatory Evaluation is the initial step in joint
State, Federal, and public effort to improve the security and
trustworthiness of driver's licenses and identification cards.
Assumptions
This Regulatory Evaluation covers the ten-year costs of REAL ID
Program deployment and operations. This includes:
Year One--State and Federal government program startup
efforts prior to the statutory deadline of May 2008.
Years Two through Six--the five-year implementation period
ending in May 2013, by which time States must be in full compliance
with the statute and regulation
Years Seven through Ten--four years of program operation
Moreover, this Regulatory Evaluation is based upon five key
assumptions and to the extent that any of these five assumptions are
relaxed, then it is likely that the compliance costs may be lower.
(1) That all States will comply with the regulation by the
statutory deadline. DHS recognizes that some States will be unable to
comply by May 2008 and will file requests for extensions that may
result in phased compliance implementation schedules that could
mitigate some of the startup costs examined below. Hence, the costs
allocated to the period prior to May 2008--that is, program year one in
this analysis--may be redistributed to subsequent years.
(2) That all Driver's License/Identification (DL/ID) holders will
seek a REAL ID credential. DHS anticipates some individuals may not
need to access Federal facilities or fly on commercial airlines or may
choose to use a passport or alternative form of photo identification
for these purposes. To the extent that some people would not seek a
REAL ID credential, then the compliance costs may be considered high.
(3) That States will issue both REAL IDs and non-REAL IDs. DHS
anticipates that States will offer an alternative DL/ID (not acceptable
for Federal official purposes) to those who are unwilling or unable to
obtain a compliant one. Thus, this Regulatory Evaluation assumes that
States will deploy a two-tier or multi-tier licensing system. States
instead may choose to issue only REAL ID compliant driver's licenses
and identification cards, thereby reducing their operational and system
costs.
(4) That all IT systems will be functional by the statutory
deadline. DHS has calculated the costs assuming that all required
verification data systems be operational and fully populated by May
2008. DHS is working to bring these systems online and up to standards
as soon as possible and will work with the States to develop
alternative procedures. Again, to the extent that these systems are not
operational, then the discounted costs and benefits of the proposed
rule may be lower.
(5) State impact is not uniform due to progress already made in
some States. States that have already invested in improving the
security of their licenses will have to invest far less per capita than
states with less secure licenses and issuance processes. Those States
that are more advanced would incur lower compliance costs than other
States.
Costs and Benefits
It is impossible to quantify or monetize the benefits of REAL ID
using standard economic accounting techniques. However, though
difficult to quantify, everyone understands the benefits of secure and
trusted identification. The proposed minimum standards seek to improve
the security
[[Page 10845]]
and trustworthiness of a key enabler of public and commercial life--
state-used driver's licenses and identification cards. As detailed
below, these standards will impose additional burdens on individuals,
States, and even the Federal government. These costs, however, must be
weighed against the intangible but no less real benefits to both public
and commercial activities achieved by secure and trustworthy
identification.
Economic Costs
The costs of the proposed rule are significant. Implementing the
REAL ID Act will impact all 56 State and territorial jurisdictions,
more than 240 million applicants for and holders of State DL/IDs,
private sector organizations, and Federal government agencies. Figure 1
summarizes the estimated marginal economic costs of the proposed rule
over a ten-year period.
Figure 1.--Estimated Marginal Economic Cost of REAL ID Proposed Rule
----------------------------------------------------------------------------------------------------------------
$ Million $ Million (2006 % Total % Total
------------------- dollars) -------------------------------------
Estimated costs (10 years) -------------------
7% Discounted Undiscounted 7% Discounted Undiscounted
----------------------------------------------------------------------------------------------------------------
Costs to States..................... 10,770 14,600 62.5 63.2
Customer Services................... 5,253 6,901 30.5 29.9
Card production..................... 3,979 5,760 23.1 24.9
Data Systems & IT................... 1,127 1,436 6.5 6.2
Security & Information Awareness.... 388 471 2.3 2.0
Data Verification................... 12 18 0.1 0.1
Certification process............... 10 14 0.1 0.1
Costs to Individuals................ 5,991 7,875 34.8 34.1
Opportunity Costs (268.8 million 5,401 7,113 31.4 30.8
hours).............................
Application Preparation (161.9 3,243 4,283 18.8 18.5
million hours).....................
Obtain Birth Certificate (26.5 542 700 3.1 3.0
million hours).....................
Obtain Social Security Card (15.8 302 418 1.8 1.8
million hours).....................
DMV visits (64.7 million hours)..... 1,315 1,712 7.6 7.4
Expenditures: Obtain Birth 590 762 3.4 3.3
Certificate........................
Cost to Private Sector.............. 7 9 0.0 0.0
Costs to Federal Government......... 451 617 2.6 2.7
Social Security card issuance....... 349 483 2.0 2.1
Data Verification--SAVE............. 22 32 0.1 0.1
Data Systems & IT................... 63 78 0.4 0.3
Certification & training............ 17 24 0.1 0.1
---------------------------------------------------------------------------
Total Costs..................... 17,219 23,101 100.0 100.0
----------------------------------------------------------------------------------------------------------------
Figure 1 shows the primary estimates calculated in both
undiscounted 2006 dollars and discounted dollars at a 7% discounted
rate. Excluding the cost to individuals, primarily associated with
obtaining documents, DHS estimates that the discounted cost of the
proposed rule is $11.2 billion ($13.81 per issuance for each of the 813
million issuances over ten years) over ten years. The total discounted
cost of the proposed rule, including the cost to individuals is $17.2
billion ($21.18 per issuance). The undiscounted costs are estimated at
$15.2 billion ($18.73 per issuance), excluding the direct cost to
individuals or $23.1 billion total ($28.41 per issuance). DHS
acknowledges that an individual may have more than one application
experience over a ten year period due to the expiration period or
relocation between states.
States will incur the largest share of the costs as shown in Figure
1. More than 60 percent of the costs (discounted or undiscounted) are
associated with providing customer services and card production. Over
30 percent of the costs (discounted or undiscounted) are categorized as
costs to individuals and are associated with preparing applications and
obtaining necessary documents.
Several factors influence the high cost of this proposed rule.
First, this rule is assumed to affect 56 jurisdictions and 240 million
license holders. This regulatory evaluation assumes that every license
holder will acquire a REAL ID. Second, many individuals will not have
their required documents when they need them. Again, the regulatory
evaluation realistically assumes that many individuals will need to
find the appropriate documents. Third, individuals will need to renew
their licenses periodically. DHS does not foresee any way to
significantly lessen the 813 million issuances over the next ten years.
Estimated Benefits
The proposed REAL ID regulation would strengthen the security of
personal identification. Though difficult to quantify, nearly all
people understand the benefits of secure and trusted identification and
the economic, social, and personal costs of stolen or fictitious
identities. The proposed REAL ID NPRM seeks to improve the security and
trustworthiness of a key enabler of public and commercial life--state-
issued driver's licenses and identification cards.
The primary benefit of REAL ID is to improve the security and
lessen the vulnerability of federal buildings, nuclear facilities, and
aircraft to terrorist attack. The rule would give states, local
governments, or private sector entities an option to choose to require
the use of REAL IDs for activities beyond the official purposes defined
in this regulation. To the extent that states, local governments, and
private sector entities make this choice, the rule may facilitate
processes which depend on licenses and cards for identification and may
benefit from the enhanced security procedures and characteristics put
in place as a result of this proposed rule.
DHS provides a rough ``break-even'' analysis based on the rule
having an impact on the annual probability of the U.S. experiencing 9/
11 type attacks in the 10 years following the issuance of
[[Page 10846]]
the rule.\31\ DHS believes that the probability and consequences of a
successful terrorist attack cannot be determined for purposes of this
benefit analysis. However, for the purposes of this analysis, it is not
necessary to assume that there is a probability of being attacked in
any particular year. Setting a probability for a successful attack is
not necessary for this analysis, so long as we make some admittedly
tenuous assumptions about the costs of attack consequences, to
determine the reduction in probability of attack that REAL ID would
need to bring about so that the expected cost of REAL ID equals its
anticipated security benefits. Since it is exceedingly difficult to
predict the probability and consequences of a hypothetical terrorist
attack, DHS instead provides an answer to the following question: what
impact would this rule have to have on the annual probability of
experiencing a 9/11 type attack in order for the rule to have positive
quantified net benefits. This analysis does not assume that the U.S.
will necessarily experience this type of attack, but rather is
attempting to provide the best available information to the public on
the impacts of the rule. This analysis is preliminary, and DHS
specifically requests comments on the methodology used in this
discussion, and the types of additional security incidents this
rulemaking may impact. DHS is also continuing to develop this analysis
for the final rule.
---------------------------------------------------------------------------
\31\ This type of analysis is recommended by OMB Circular A-4
when it is difficult to quantify and monetize the benefits of
rulemaking.
---------------------------------------------------------------------------
In summary, if these requirements lowered by 3.60% per year the
annual probability of a terrorist attack that caused immediate impacts
of $63.9 billion (which is an estimate of the immediate impact incurred
in the 9/11 attack and might be considered a lower bound estimate), the
quantified net benefits of the REAL ID regulation would be positive. If
these requirements lowered by 0.61% per year the annual probability of
a terrorist attack that caused both immediate and longer run impacts of
$374.7 billion (which is an estimate of the immediate and longer run
impacts incurred in the 9/11 attack and might be considered an upper
bound estimate), the quantified net benefits of the REAL ID regulation
would be positive.
The potential ancillary benefits of REAL ID are numerous, as it
would be more difficult to fraudulently obtain a legitimate license and
would be substantially more costly to create a false license. These
other benefits include reducing identity theft, unqualified driving,
and fraudulent activities facilitated by less secure driver's licenses
such as fraudulent access to government subsidies and welfare programs,
illegal immigration, unlawful employment, unlawful access to firearms,
voter fraud, and possibly underage drinking and smoking. DHS assumes
that REAL ID would bring about changes on the margin that would
potentially increase security and reduce illegal behavior. Because the
size of the economic costs that REAL ID serves to reduce on the margin
are so large, however, a relatively small impact of REAL ID may lead to
significant benefits.
Regulatory Flexibility Act Assessment
The Regulatory Flexibility Act of 1980, as amended, (RFA) was
enacted by Congress to ensure that small entities (small businesses,
small not-for-profit organizations, and small governmental
jurisdictions) are not unnecessarily or disproportionately burdened by
Federal regulations. The RFA requires agencies to review rules to
determine if they have ``a significant economic impact on a substantial
number of small entities.'' The following analysis suggests that the
proposed rule would not have a significant economic impact on a
substantial number of small entities.
Under the RFA, the term ``small entity'' has the same meaning as
the terms ``small business,'' ``small organization'' and ``small
governmental jurisdiction.'' This action will affect States, and States
are governmental jurisdictions. However, States are not considered
``small governmental jurisdictions'' under the RFA. As defined by the
RFA, small governmental jurisdictions include governments of cities,
counties, towns, townships, villages, school districts, or special
districts with a population of less than 50 thousand. The proposed rule
would regulate driver's licenses and non-driver identification cards at
the state level. It would not directly regulate small government
jurisdictions nor would it directly regulate small entities in the
driver's license and identification card industry.
The rule would regulate the acceptance of a driver's license or
identification card by Federal agencies for official purposes. (If the
rule is adopted, Federal agencies would not accept state-issued
driver's licenses or identification cards unless they were REAL IDs for
the purposes of boarding federally regulated commercial aircraft,
entering nuclear power plants and accessing Federal facilities. The
rule does not require presentation of this, or any other document, nor
does it prohibit the acceptance of any other document.) Consequently,
employees and agents would be trained in the acceptance of REAL ID
driver's licenses and identification cards to ensure they are compliant
with the Act.
The acceptance of REAL ID driver's licenses and identification
cards for accessing Federal facilities does not directly regulate small
entities as the Federal government is not itself a small entity.
Nuclear power plants qualify as small entities if ``including its
affiliates, it is primarily engaged in the generation, transmission,
and/or distribution of electric energy for sale and its total electric
output for the preceding fiscal year did not exceed 4 million megawatt
hours.'' \32\ With only three exceptions, every nuclear power plant in
the United States produced more than 4 million megawatt hours in fiscal
year 2005.\33\ However, each of those three plants are owned by
companies producing more than 12 million megawatt hours.\34\ None of
the nuclear power plants qualify as a small business using the SBA
definition.
---------------------------------------------------------------------------
\32\ Small Business Administration. Small Business Size
Standards Matched to North American Industrial Classification
System, footnote 1. Available at http://www.sba.gov/size/sizetable2002.html#fn1. Accessed Jul 14, 2006.
\33\ Calculations based on data from the Energy Information
Administration. U.S. Department of Energy. Monthly Nuclear Utility
Generation by State and Reactor, 2004 and Monthly Nuclear Utility
Generation by State and Reactor, 2005. Available at http://www.eia.doe.gov/cneaf/nuclear/page/nuc_generation/gensum.html.
Accessed Jul 14, 2006.
\34\ Conclusion based on an internet search conducted on July
14, 2006 of the three specific power plants and the companies that
own and operate them.
---------------------------------------------------------------------------
DHS estimates that airlines and their representatives would need to
train some of their personnel in the acceptance of REAL ID driver's
licenses and identification cards under the proposed rule. While data
exist on the number of employees for some firms in the air carrier
industry, data do not exist on how many of these employees accept
identification from passengers before allowing them to board an
aircraft. DHS has therefore established a threshold measure to
determine if the proposed regulation would have a significant impact on
a substantial number of small entities.
DHS estimates that each employee accepting REAL ID driver's
licenses and identification cards for official purposes would require
two hours of training. This training will assist personnel in
identifying the differences between REAL IDs and non-compliant IDs. The
training will also inform personnel about which States are or are not
compliant during the phase-in period.
[[Page 10847]]
DHS calculated the fully loaded wage rate of $22.95 per hour for
airline ticket counter agents and $22.50 per hour for airport
checkpoint staff. Multiplying the wage rates by the estimated two hours
to complete the training yields estimates of $45.90 and $45.01 per-
employee for ticket counter agents and checkpoint staff, respectively.
If a firm's revenue divided by the number of ticket counter agents to
be trained is more than $4,590:1 then the effect is less than one
percent of their total revenue. To have an impact equal to or greater
than three percent of total revenue, the revenue to trained agents
would need to be equal to or less than $1,530:1. Firms employing
airport checkpoint staff with a total revenue to trained employee ratio
greater than $4,501:1 would experience impacts less than one percent of
total revenue. DHS estimates that, to have an impact of three percent
or more, the firm would need to have a revenue to trained employee
ratio equal to, or less than, $1,500:1. DHS is unable to identify any
firms for which the total revenue to trained employee ratio would be
less than $4,500:1.
[GRAPHIC] [TIFF OMITTED] TP09MR07.000
This analysis suggests that the proposed rule would not have a
significant impact on a substantial number of small entities. The
Department welcomes comments and data on the impacts of the proposed
regulation on small entities.
International Trade Impact Assessment
The Trade Agreement Act of 1979 prohibits Federal agencies from
engaging in any standards or related activities that create unnecessary
obstacles to the foreign commerce of the United States. Legitimate
domestic objectives, such as safety, are not considered unnecessary
obstacles. The statute also requires consideration of international
standards and, where appropriate, that they be the basis for U.S.
standards. There is no international standard for state-issued driver
licenses or identification cards. DHS has determined that the proposed
regulation would not have an impact on trade.
Unfunded Mandates Assessment
Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA)
requires Federal 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 more
than $100 million in any one year (adjusted for inflation with base
year of 1995). Before promulgating a rule for which a written statement
is needed, section 205 of the UMRA generally requires agencies 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 objective of the rule. Agencies are also
required to seek input from the States in the preparation of such
rules.
The provisions of section 205 do not apply when they are
inconsistent with applicable law. Moreover, section 205 allows DHS to
adopt an alternative other than the least costly, most cost-effective,
or least burdensome alternative if the agency publishes with the final
rule an explanation why that alternative was not adopted.
As indicated above, UMRA excludes from its scope regulations which
are required for national security reasons. National security was a
primary motivator for the REAL ID Act; indeed, the Act itself is an
effort to implement recommendations of the 9/11 Commission, and
Congress took pains to explain the connection between REAL ID and
national security, with over a dozen references to ``terrorists'' or
``terrorism'' in the Conference Report. See 9/11 Commission Public
Report, Chapter 12.4; Conf. Rep., 179-183.
Notwithstanding the national security nature of the REAL ID Act
requirements, DHS has analyzed the estimated cost to states and
considered appropriate alternatives to, and benefits derived from, the
proposed regulation. Moreover, as detailed in the following section
(Executive Order 13132, Federalism), DHS has solicited input from State
and local governments in the preparation of this proposed rule.
C. Executive Order 13132, Federalism
Executive Order (E.O.) 13132 requires each Federal agency to
develop a process to ensure ``meaningful and timely input by State and
local officials in the development of regulatory policies that have
federalism implications.'' The phrase ``policies that have federalism
implications'' is defined in the Executive Order to include regulations
that have ``substantial direct effects on the States, on the
relationship between the national government and the States, or on the
distribution of power and responsibilities among the various levels of
government.''
Executive Order 13132 lists as a ``Fundamental Federalism
Principle'' that ``[f]ederalism is rooted in the belief that issues
that are not national in scope or significance are most appropriately
addressed by the level of government closest to the people.'' The issue
covered by the instant regulation is, without question, national in
scope and significance. It is also one in which the States have
significant equities.
While driver's licenses and identification cards are issued by
states, they are also the most widely used identification documents.
Not
[[Page 10848]]
surprisingly, they are very frequently used by Americans to establish
their identities in the course of their interactions with the Federal
Government (e.g., when entering secure Federal facilities or passing
through Federally-regulated security procedures at U.S. airports). The
fact that the use of driver's licenses as identity documents is an
issue that is ``national in scope'' is illustrated by the events of
September 11, 2001. A number of the terrorists who hijacked U.S.
aircraft on that day had, through unlawful means, obtained genuine
driver's licenses; these documents were used to facilitate the
terrorists' operations against the United States.\35\
---------------------------------------------------------------------------
\35\ See 9/11 Commission Report, Chapter 12.4.
---------------------------------------------------------------------------
1. DHS Has Considered the Federalism Implications of Proposed REAL ID
Policies
Section 3 of the E.O. sets forth certain ``Federalism Policymaking
Criteria.'' In formulating or implementing policies with ``federalism
implications,'' agencies are required, to the extent permitted by law,
to adhere to certain criteria. DHS has considered this action in light
of the criteria set forth in E.O. 13132 section 3(a)-(d) and submits
the following:
(a) Constitutional principles and maximizing the policymaking
discretion of the States. The proposed rule is being promulgated in
strict adherence to constitutional principles, and the limits of DHS'
constitutional and statutory authority have been carefully considered.
DHS is proceeding with this action pursuant to direct Congressional
authorization as set forth in the REAL ID Act.
Notwithstanding this clear mandate, DHS has taken steps, in
consultation with the States, to maximize policymaking discretion at
the state level. In response to concerns expressed during the course of
DHS' discussions with stakeholders, DHS has proposed, as part of this
rule, an exceptions process (see section II.F, supra, Exceptions
Processing for Extraordinary Circumstances) that would allow each State
participating in REAL ID to exercise maximum discretion in responding
to exigencies arising in the course of verifying an individual's
identity.
In section II.K.1 of this proposed rule (section 37.45 of the
regulations Background checks for certain employees), DHS has
recognized that each State's unique situation mandates that the maximum
possible latitude be allowed to States in fulfilling the statutory
mandate that certain employees undergo background investigations. The
proposed rule provides parameters for use by the States in determining
which employees are subject to the statutory background check
requirements but allows the individual States to make the
determinations on a case-by-case basis.
States are also given the discretion to find the best way to
determine an individual driver's license or identification card
applicant's address of principal residence (see sections II.D, II.E.1).
In other aspects of the proposed regulation (see, e.g., section
II.H.6, supra, Physical Security Features), DHS has prescribed baseline
requirements while allowing States the discretion to impose more
stringent standards. Any State that chooses to participate in REAL ID
will retain the discretion to issue non-REAL ID driver's licenses and
identification cards in any manner it sees fit (provided such driver's
licenses and identification cards are clearly identified as non-REAL
ID). Most significantly, as set forth above, each State retains the
discretion to opt out of REAL ID in its entirety.
(b) Action limiting the policymaking discretion of the States. As
indicated above, the instant proposed rule strives to maximize State
policymaking discretion on two levels: first, because a State's
participation in REAL ID is optional; and second, because of the
policymaking discretion (e.g., the exceptions process) incorporated
into the regulation for States which do choose to participate. DHS
believes that it has incorporated into this action the maximum possible
State discretion consistent with the purposes of the statute.
(c) Avoiding intrusive Federal oversight. Consistent with Congress'
vision for REAL ID (see section 202(a)(2) of the Act), States which
choose to participate in the program will be responsible for monitoring
their own compliance. See section IV, State Certification Process,
supra. As detailed in that section (and section 37.55 of the instant
regulations), the Secretary of Homeland Security will determine whether
a State is meeting the requirements of the Act based on certifications
made by the State. Certifications ``shall be made at such times and in
such manner as the Secretary, in consultation with the Department of
Transportation, may prescribe by regulation.''
To facilitate compliance with REAL ID, DHS has adopted a
certification process similar to that used by DOT in its regulations
governing State administration of commercial driver's licenses. Under
the proposed rule, DHS will not directly oversee State compliance.
Rather, States will demonstrate initial compliance with REAL ID by
submitting a certification and certain specified documents including a
description of their REAL ID programs. Continued compliance will be
demonstrated through annual submission of such certification and
documents. DHS will make compliance determinations based on submissions
by the States (and will retain an audit function). States receiving
adverse determinations will have the opportunity for an internal
appeals process as well as judicial review. Thus, intrusive oversight
is avoided by allowing the States themselves to serve as the primary
compliance mechanism with this regulation.
(d) Formulation of policies with federalism implications. DHS
recognizes both the important national interest in secure identity
documents and the federalism implications of the policies which
underpin this proposed rule. Accordingly, DHS has welcomed and
encouraged State participation in this process. Consistent with
Congressional intent, DHS has sought, where possible, to draft this
regulation in such a way as to maximize State discretion. The examples
of exceptions processing and the State certification process are
outlined above in this Federalism Statement, and detailed elsewhere in
this proposed rule.
Where the exigencies of national security and the need to prevent
identity fraud have militated in favor of a uniform national standard
(e.g., baseline security features on identity cards and background
check requirements), DHS has, as reflected above, consulted with States
in order to ensure that the uniform standards prescribed could be
attained by the States and would reflect the accumulated security
experience of state motor vehicles administrations. The Department
recognizes that imposing qualifications for State employees through
background check requirements may raise federalism concerns. DHS
specifically requests comments on the federalism aspects of the
background check requirements proposed under this rule.
2. The REAL ID Proposed Rule Complies With the Regulatory Provisions of
E.O. 13132
Under section 6 of E.O. 13132, an agency may not issue a regulation
that has federalism implications, that imposes substantial direct
compliance costs, and that is not required by statute, unless the
Federal Government provides
[[Page 10849]]
the funds necessary to pay the direct compliance costs incurred by
State and local governments, or consults with state and local officials
early in the process of developing the proposed regulation. Moreover,
an agency may not issue a regulation that has federalism implications
and that preempts State law, unless the Agency consults with State and
local officials early in the process of developing the proposed
regulation.
(a) The proposed rule is required by statute. As stated above, the
regulatory requirements of E.O. 13132 apply only to regulations that
are not ``required by statute.'' See E.O. 13132, section 6(b). The REAL
ID Act authorizes the Secretary of Homeland Security to define and
implement the various requirements prescribed in the statute; the
instant rule merely carries out that mandate. Thus, given the statutory
mandate, E.O. 13132's regulatory requirements arguably may not apply to
this rulemaking.
(b) The proposed rule does not preempt state law. As detailed
elsewhere in this document, the REAL ID Act is binding on Federal
agencies, rather than on States. The proposed rule would not formally
compel any State to issue driver's licenses or identification cards
that will be acceptable for federal purposes. Importantly, under this
scheme, ``[a]ny burden caused by a State's refusal to regulate will
fall on those [citizens who need to acquire and utilize alternative
documents for federal purposes], rather than on the State as a
sovereign.'' \36\ In other words, the citizens of a given State--not
Congress--ultimately will decide whether the State complies with this
regulation and the underlying statute. DHS has concluded that the
proposed rule is consistent with the Tenth Amendment to the U.S.
Constitution and does not constitute an impermissible usurpation of
state sovereignty. Rather, it is a permissible ``program of cooperative
federalism'' in which the federal and state governments have acted
voluntarily in tandem to achieve a common policy objective.\37\
---------------------------------------------------------------------------
\36\ New York v. U.S., 505 U.S. 144, 173 (1992).
\37\ See id. at 167.
---------------------------------------------------------------------------
(c) DHS has engaged in extensive consultations with the States. The
statutory mandate and the lack of preemption both satisfy the
requirements of E.O. 13132. Nevertheless, in the spirit of federalism,
and consistent with section 205(a) of the REAL ID Act, DHS has engaged
in extensive consultations with the States prior to issuing this
proposed rule. As set forth in section I.B of this proposed rule, DHS
held meetings and solicited input from various States and such
stakeholders as the National Governors Association and the National
Conference of State Legislatures.
In particular, DHS' Office of State and Local Government
Coordination hosted three face-to-face meetings (October 2005, January
2006 and February 2006), as well as a conference call (March 2006). DHS
also participated in other conferences on REAL ID, hosted by various
other stakeholders, including the American Association of Motor Vehicle
Administrators. Details of conferences and the input received by DHS
from participants are reflected in the docket for this proposed rule
and are available for public review as set forth above. See Reviewing
Comments in the Docket, supra. As detailed in that section, input from
the States was instrumental in formulating the policies proposed
herein.
(d) DHS recognizes the burdens inherent in complying with the
regulation. Notwithstanding both the statutory mandate and the Federal
(rather than State) focus of the REAL ID Act, DHS recognizes that, as a
practical matter, States may view noncompliance with the requirements
of REAL ID as an unattractive alternative. DHS also recognizes that
compliance with the rule carries with it significant costs and
logistical burdens, for which federal funds are generally not
available. The costs (to the States, the public and the Federal
Government) of implementing this rule are by no means inconsiderable
and have been detailed in the regulatory evaluation accompanying this
proposed rule.
As indicated above, E.O. 13132 prohibits any agency from
implementing a regulation with federalism implications which imposes
substantial direct compliance costs on State and local governments
unless the regulation is required by statute, the Federal Government
will provide funds to pay for the direct costs, or the agency has
consulted with State and local officials. In such a case, the agency
must also incorporate a federalism statement into the preamble of the
regulation and make available to the Office of Management and Budget
any written communications from State and local officials. See E.O.
13132, section 6(b).
This proposed rule is required by the REAL ID Act. DHS has (as
detailed above) consulted extensively with State and local officials in
the course of preparing this regulation. Finally, DHS has incorporated
this Federalism Statement into the preamble to assess the federalism
impact of its proposed REAL ID regulation.
3. REAL ID and Federalism
The issuance of driver's licenses has traditionally been the
province of State governments; DHS believes that, to the extent
practicable, it should continue as such. However, given the threat to
both national security and the economy presented by identity fraud, DHS
believes that certain uniform standards should be adopted for the most
basic identity document in use in this country. DHS has, in this
proposed rule, attempted to balance State prerogatives with the
national interests at stake. We look forward to receiving input from
States, citizens and other stakeholders with regard to the federalism
implications of this proposed rule.
D. Environmental Analysis
Under this proposed rule, DHS is seeking specific public comment
and, in particular, information from State DMVs, on the potential
environmental impact of the physical standards and other proposed
requirements under this rule. DHS will be conducting the necessary
analysis to determine the environmental impacts of this rule for
purposes of complying with the National Environmental Policy Act of
1969 (NEPA), 42 U.S.C. 4321 et seq., and Council on Environmental
Quality (CEQ) regulations, 40 CFR parts 1501-1508, and will be
considering public comments received in this analysis.
E. Energy Impact Analysis
The energy impact of the proposed rule has been assessed in
accordance with the Energy Policy and Conservation Act (EPCA), Pub. L.
94-163, as amended (42 U.S.C. 6362). We have determined that this
rulemaking is not a major regulatory action under the provisions of the
EPCA.
List of Subjects in 6 CFR Part 37
Document security, Driver's licenses, Identification cards,
Incorporation by reference, Motor vehicle administrations, Physical
security.
The Proposed Amendments
For the reasons set forth in the preamble, the Department of
Homeland Security proposes to amend 6 CFR chapter I, by adding a new
part 37 to read as follows:
[[Page 10850]]
Title 6--Homeland Security
CHAPTER I--DEPARTMENT OF HOMELAND SECURITY, OFFICE OF THE SECRETARY
PART 37--REAL ID DRIVER'S LICENSES AND IDENTIFICATION CARDS
Subpart A--General
Sec.
37.1 Applicability.
37.3 Definitions.
37.5 Deadlines and validity periods for REAL ID driver's licenses
and identification cards.
Subpart B--Minimum Documentation, Verification and Driver's License and
Identification Card Issuance Requirements
37.11 Application and documents the applicant must provide.
37.13 Document verification requirements.
37.15 Physical security features for the driver's license or
identification card.
37.17 Requirements for the face of the driver's license or
identification card.
37.19 Machine readable technology on the driver's license or
identification card.
37.21 Temporary driver's licenses and identification cards.
37.23 Renewed and reissued driver's licenses and identification
cards.
Subpart C--Other Requirements
37.31 Source document retention.
37.33 Database connectivity with other States.
Subpart D--Security at DMVs and Driver's License and Identification
Card Production Facilities
37.41 Comprehensive security plan.
37.43 Physical security of DMV facilities.
37.45 Background checks for covered employees.
Subpart E--Procedures for Determining State Compliance
37.51 Compliance--general requirements.
37.55 Initial State certification.
37.57 Annual State certifications.
37.59 DHS reviews of State compliance.
37.61 Results of compliance determination.
37.63 Extension of deadline.
37.65 Effect of failure to comply with this part.
Subpart F--Non-REAL ID Driver's Licenses and Identification Cards
37.67 Non-REAL ID driver's licenses and identification cards.
Authority: 49 U.S.C. 30301 note; 6 U.S.C. 111, 112.
Subpart A--General
Sec. 37.1 Applicability.
(a) Subparts A through F of this part apply to States and
territories that choose to issue driver's licenses and identification
cards that can be accepted by Federal agencies for official purposes.
(b) Subpart F of this part establishes certain standards for State-
issued driver's licenses and identification cards that do not meet the
standards for acceptance for Federal official purposes.
Sec. 37.3 Definitions.
For purposes of this part:
Birth certificate means the record related to a birth that is
permanently stored either electronically or physically at the State
Office of Vital Statistics or equivalent agency in a registrant's State
of birth.
Card means either a driver's license or identification card issued
by the State DMV or equivalent State office.
Certification means an assertion by the State that the State has
met the requirements of this part.
Certified copy of a birth certificate means a copy of the whole or
part of a birth certificate registered with the State that the State
considers to be the same as the original birth certificate on file with
the State Office of Vital Statistics or equivalent agency.
Covered employees means DMV employees or DMV contractors who have
the ability to affect the recording of any information required to be
verified, or who are involved in the manufacture or production of
driver's licenses and identification cards, or who have the ability to
affect the identity information that appears on the driver's license or
identification card.
Data verification means checking the data contained in source
documents presented under this regulation against authoritative
reference databases.
Department of Motor Vehicles means any State Government entity that
issues driver's licenses and identification cards, or an office with
equivalent function for issuing driver's licenses and identification
cards.
Determination means a decision by the Department of Homeland
Security that a State has or has not met the requirements of this part
and that Federal agencies may or may not accept the driver's licenses
and identification cards issued by the State for official purposes.
DHS means the U.S. Department of Homeland Security. When used in
connection with the issuance of documents, the term also includes the
former Immigration and Naturalization Service (INS) of the Department
of Justice when INS issued documents that are still valid.
Digital photograph means a digitally printed reproduction of the
face of the holder of the license or identification card.
Document authentication means verifying that the source document
presented under these regulations is genuine and has not been altered.
Domestic violence and dating violence have the meanings given the
terms in section 3, Universal definitions and grant provisions, of the
Violence Against Women and Department of Justice Reauthorization Act of
2005 (Pub. L. 109-162, 119 Stat. 2960, 2964, Jan. 5, 2006); codified at
section 40002, Definitions and grant provisions, 42 U.S.C 13925.
Driver's license means a motor vehicle operator's license, as
defined in 49 U.S.C. 30301.
Federal agency means all executive agencies including Executive
departments, a Government corporation, and an independent establishment
as defined in 5 U.S.C. 105.
Federally-regulated commercial aircraft means a commercial aircraft
regulated by the Transportation Security Administration (TSA).
Full legal name means an individual's first name, middle names or
family names, and last name, without use of initials or nicknames.
IAFIS means the Integrated Automated Fingerprint Identification
System, a national fingerprint and criminal history system maintained
by the FBI that provides automated fingerprint search capabilities.
Identification card means a document made or issued by or under the
authority of a State Department of Motor Vehicles which, when completed
with information concerning a particular individual, is of a type
intended or commonly accepted for the purpose of identification of
individuals.
Lawful status: A person in lawful status: is a citizen or national
of the United States; Is an alien lawfully admitted for permanent or
temporary residence in the United States; has conditional permanent
resident status in the United States; has an approved application for
asylum in the United States or has entered into the United States in
refugee status; has a valid nonimmigrant status in the United States;
has a pending application for asylum in the United States; has a
pending or approved application for temporary protected status (TPS) in
the United States; has approved deferred action status; or has a
pending application for LPR or conditional permanent resident status.
NCIC means the National Crime Information Center, a computerized
index of criminal justice information maintained by the FBI that is
available to Federal, state, and local law enforcement and other
criminal justice agencies.
[[Page 10851]]
Official purpose means accessing Federal facilities, boarding
Federally-regulated commercial aircraft, and entering nuclear power
plants.
Passport means a passport booklet or card issued by the Department
of State that can be used as a travel document to gain entry into the
United States and that denotes identity and citizenship as determined
by the Department of State.
Principal residence means where a person has his or her true,
fixed, and permanent home and to where he or she has the intention of
returning whenever he or she is absent.
REAL ID Driver's License or Identification Card means a driver's
license or identification card that meets the standards of subparts A
through D of this part, including temporary driver's licenses or
identification cards issued under Sec. 37.21.
Reissued means a card that a State DMV issues to replace a card
that has been lost, stolen or damaged.
SAVE means the DHS Systematic Alien Verification for Entitlements
system, or such successor or alternate verification system at the
Secretary's discretion.
Secretary means the Secretary of Homeland Security.
Sexual assault and stalking have the meanings given the terms in
section 3, Universal definitions and grant provisions, of the Violence
Against Women and Department of Justice Reauthorization Act of 2005
(Pub. L. 109-162, 119 Stat. 2960, 2964, Jan. 5, 2006); codified at
section 40002, Definitions and grant provisions, 42 U.S.C 13925.
Source document(s) means original or certified copies (where
applicable) of documents presented by an applicant as required under
these regulations to the Department of Motor Vehicles to apply for a
driver's license or identification card.
Source information means the pertinent information present on
source documents that are presented by an applicant to the Departments
of Motor Vehicles to apply for a driver's license or identification
card.
State means a State of the United States, the District of Columbia,
Puerto Rico, the Virgin Islands, Guam, American Samoa, and the
Commonwealth of the Northern Mariana Islands.
State address confidentiality program means any State-authorized or
State-administered program that--
(1) Allows victims of domestic violence, dating violence, sexual
assault, stalking, or a severe form of trafficking to keep, obtain, and
use alternative addresses; or
(2) Provides confidential record-keeping regarding the addresses of
such victims.
Temporary lawful status: A person in temporary lawful status is a
person who: Has a valid nonimmigrant status in the United States; has a
pending application for asylum in the United States; has a pending or
approved application for temporary protected status (TPS) in the United
States; has approved deferred action status; or has a pending
application for LPR or conditional permanent resident status.
Sec. 37.5 Deadlines and validity periods for REAL ID driver's
licenses and identification cards.
(a) Cards issued on or after May 11, 2008. A State-issued driver's
license or identification card issued on or after May 11, 2008 is
acceptable by Federal agencies for official purposes only if the card
meets the requirements of this part, and DHS has determined that the
issuing State meets the requirements of the REAL ID Act of 2005 (Pub.
L. 109-13, 119 Stat. 231, 302, May 11, 2005).
(b) Cards issued before May 11, 2008. If DHS determines that a
State is in compliance with the REAL ID requirements in this part, all
cards issued before May 11, 2008 are acceptable by Federal agencies for
official purposes until and including May 10, 2013. All cards issued,
reissued, or renewed after May 11, 2008 must be REAL ID compliant by
May 11, 2013 or they shall not be acceptable by Federal agencies for
official purposes.
(c) REAL ID card validity period. Driver's licenses and
identification cards issued under this part that are not temporary
driver's licenses and identification cards are valid for a period not
to exceed eight years. A card may be valid for a shorter time period
based on other State or Federal requirements.
Subpart B--Minimum Documentation, Verification, and Card Issuance
Requirements
Sec. 37.11 Application and documents the applicant must provide.
States must require each individual applying for a REAL ID driver's
license or identification card to have their photograph taken by the
DMV, and maintain that photograph as described in paragraph (a) of this
section. States must further require each individual applying for a
REAL ID driver's license or identification card to submit the
declaration in paragraph (b) and to present the documents described in
paragraphs (c), (d), (e) and (f) of this section. Documents in
paragraph (g) of this section are required as described in that
paragraph. States are not required to comply with these requirements
when issuing REAL ID driver's licenses or identification cards in
support of Federal, State, or local criminal justice agencies or
programs that require special licensing or identification to safeguard
persons or in support of their other official duties. As directed by
appropriate officials of these Federal, State, or local agencies,
States should take sufficient steps to safeguard the identities of such
persons. Driver's licenses and identification cards issued in support
of Federal, State, or local criminal justice agencies or programs that
require special licensing or identification to safeguard persons or in
support of their other official duties shall not be distinguishable
from other REAL ID licenses or identification cards issued by the
State.
(a) The State must subject each person applying for a REAL ID
driver's license or identification card to a mandatory facial image
capture, whether or not such person is issued a REAL ID driver's
license or identification card. Photographs of individuals who were not
issued a REAL ID driver's license or identification card must be kept
for 1 year, unless the DMV did not issue the driver's license or
identification card because of suspected fraud, in which case the
record should be maintained for ten years and reflect that a driver's
license or identification card was not issued for that reason.
(b) Declaration. Each applicant must sign a declaration under
penalty of perjury that the information presented is true and correct,
and the State must retain this declaration with copies of the
applicant's source documents pursuant to Sec. 37.31. An applicant must
sign a new declaration when presenting new information to the DMV.
(c) Identity. (1) To establish the individual's identity, the
individual must present at least one of the following documents
containing a photograph or non-photo identity document including full
name and date of birth:
(i) A valid unexpired United States passport.
(ii) Certified copy of a birth certificate issued by a U.S. State
or local office of Public Health, Vital Records, Vital Statistics or
equivalent office.
(iii) Consular Report of Birth Abroad issued by DOS, Form FS-240,
DS-1350 or FS-545.
(iv) An unexpired Permanent Resident Card issued by DHS, Form I-
551.
(v) An unexpired employment authorization document (EAD) issued by
DHS, Form I-766 or Form I-688B.
[[Page 10852]]
(vi) Unexpired foreign passport with a valid unexpired U.S. visa
affixed.
(vii) Certificate of Naturalization issued by DHS, Form N-550 or
Form N-570.
(viii) Certificate of Citizenship, Form N-560 or Form N-561.
(ix) REAL ID driver's license or identification card issued in
compliance with the standards established by this part.
(2) If the individual's name has changed through adoption,
marriage, divorce, or court order, the individual must present an
original or certified copy of the documents showing a legal name
change, before the name is changed on the driver's license or
identification card. These documents must come from a U.S. or State-
level Court or government agency.
(d) Date of birth. To establish the person's date of birth, the
individual must present at least one document included in paragraph (c)
of this section.
(e) Social security number. The individual must provide
documentation establishing an SSN, or the person's ineligibility for an
SSN.
(1) To establish an SSN, an applicant must present his or her
social security account number card, a W-2 form, a SSA-1099 form, a
non-SSA 1099 form, or a pay stub with the applicant's name and SSN on
it; the SSN must be verified pursuant to Sec. 37.13 of this subpart.
(2) To establish ineligibility for an SSN, an alien must present
evidence that he or she is currently in a non-work authorized
nonimmigrant status.
(f) Documents demonstrating address of principal residence. To
document the address of principal residence, a person must present at
least two documents of the State's choice that include the individual's
name and principal residence.
(1) Documents used to demonstrate address of principal residence
that are issued monthly (such as bank statements or utility bills) must
not be more than three months old at the time of application.
(2) Documents used to demonstrate address of principal residence
that are issued annually (such as property tax records) must be for the
most current yearly period at the time of application.
(3) Except as provided in Sec. 37.17(f)(1), (f)(2) and (f)(3) of
this part, a street address must be required.
(g) Evidence of lawful status in the United States. A DMV may issue
a REAL ID driver's license or identification card only to a person who
has presented satisfactory evidence of lawful status. The documentation
listed under paragraph (c) of this section is also evidence of lawful
status, except that if the applicant presents an identity document
listed under paragraphs (c)(1)(v) or (c)(1)(vi) of this section, the
documentation is to be considered provisional evidence pending
verification of immigration status through SAVE. If the applicant
presents an identity document listed under paragraph (c)(1)(ix) of this
section, he or she must also present another document listed in
paragraph (c) of this section as evidence of lawful presence in the
United States.
(h) State DMVs may choose to establish a written exceptions process
in order to provide REAL ID driver's licenses and identification cards
to persons who, for reasons beyond their control, are unable to present
all necessary documents and must rely on alternate documents to
establish identity. An exceptions process may not be used to
demonstrate lawful status. Each State establishing an exceptions
process must have that process approved by DHS for the verification of
documents in this section, and document each time the process is used,
both on the applicant's record in the DMV's database and in the DMV's
files.
(1) The applicant's records must visibly indicate when an alternate
document is accepted and how applicable information from the document
was verified.
(2) The record must include a full explanation of the reason for
the exception and alternative documents accepted whenever a driver's
license or identification card is issued using exceptions processing.
(3) The State shall retain copies of the alternate documents
accepted pursuant to this section and provide these upon request to DHS
for audit.
(4) The State shall provide DHS with quarterly reports analyzing
the use of the exceptions process and any trends that indicate
potential vulnerabilities.
Sec. 37.13 Document verification requirements.
States must adopt procedures satisfying the requirements of
paragraph (a) of this section to verify with the issuing agency the
issuance, validity, and completeness of a document presented to
demonstrate a person's eligibility for a REAL ID driver's license or
identification card before issuance of the driver's license or
identification card.
(a) States must use the following procedures to verify the
documents required under this section:
(1) A certified copy of a birth certificate must be verified
through the Electronic Verification of Vital Events System, or an
alternative approved by DHS. In the event of a non-match, the DMV may
not issue a driver's license or identification card to an applicant,
and must refer the individual to their birth state's vital statistics
office for resolution.
(2) A U.S. passport or Consular report of birth abroad must be
verified through existing Department of State systems.
(3) A lawful permanent resident card (Form I-551) or other DHS-
issued document demonstrating permanent residency, an EAD (Form I-766
or Form I-688B), Certificate of Citizenship, Certificate of
Naturalization, or other documentation issued by DHS demonstrating
lawful status, must be verified through the Systematic Alien
Verification for Entitlements (SAVE) system operated by DHS, or an
alternate verification system approved by DHS. In the event of a non-
match to SAVE, the DMV may not issue a driver's license or
identification card to an applicant, and must refer the individual to
the local USCIS office for resolution.
(4) REAL ID driver's licenses and identification cards must be
verified with the State of issuance.
(5) Social security account numbers must be verified by the Social
Security Administration's (SSA) electronic database. In the event of a
non-match with SSA, a DMV must not issue a driver's license or
identification card to an applicant until the information verifies with
SSA's database.
(6) Documents demonstrating address of principal residence must be
verified by the State in accordance with a system of document
verification acceptable to DHS, to ensure that a document produced
establishes an individual's address of principal residence.
Sec. 37.15 Physical security features for the driver's license or
identification card.
(a) General. States must include document security features on REAL
ID driver's licenses and identification cards designed to deter forgery
and counterfeiting and promote an adequate level of confidence in the
authentication of genuine documents and the detection of fraudulent
ones in accordance with this section.
(1) These features must not be reproducible using commonly used or
available technologies.
(2) The proposed card solution must contain a well designed,
balanced set of features that when effectively combined provide
multiple layers of security. States must describe these document
security features in their security plans pursuant to Sec. 37.41.
(b) Integrated security features. REAL ID driver's licenses and
identification cards must contain at least three levels
[[Page 10853]]
of integrated security features that provide the maximum resistance to
persons' efforts to--
(1) Counterfeiting, simulating, or reproducing a genuine document;
(2) Altering, deleting, modifying, masking, or tampering with data
concerning the original or lawful card holder;
(3) Substituting or altering the original or lawful card holder's
photograph and/or signature by any means; and
(4) Creating a fraudulent document using components from legitimate
driver's licenses or identification cards.
(c) Security features to detect false cards. States must employ
security features to detect false cards for each of the following three
levels:
(1) Level 1. Cursory examination, without tools or aids involving
easily identifiable visual or tactile features, for rapid inspection at
point of usage.
(2) Level 2. Examination by trained inspectors with simple
equipment.
(3) Level 3. Inspection by forensic specialists.
(d) Minimum security features. States must employ, at a minimum,
the following security features in each REAL ID driver's license or
identification card:
(1) An intricate, fine-line, multicolored background design
produced via offset lithography that includes microcline printing and
an intentional error/field check.
(2) An optically variable feature providing adequate protection
against copying. The inclusion of a diffractive optically variable
feature is recommended to achieve an enhanced level of protection.
(3) An ultraviolet (UV) long wave responsive feature.
(4) The proposed card solution must include cards constructed such
that application of personal data provides for the highest quality of
printed information including sufficient depth, clarity and resolution.
The application of variable data shall be in a manner that is
considered secure and difficult, if not virtually impossible, to erase,
modify or otherwise successfully tamper. Some variable data must be
applied via laser engraving to include tactile features (that protect
the bearer portrait from substitution via thin film overlay) and
variable microline text that is specific to the bearer. The laser must
effectively penetrate the card layers ensuring that the data is
engraved into the layers containing the security characteristics.
(5) A series of check digit numbers or letters printed on the
cards.
(6) Incorporation of covert taggants and/or markers.
(e) Document card stock. States must use a document card stock in
the issuance of REAL ID driver's licenses and identification cards that
complies with the following performance standards:
(1) The card stock must be UV dull or possess a controlled response
to UV, such that when illuminated by UV light it exhibits fluorescence
distinguishable in color from the blue used in commonly available
fluorescent materials. The card stock must use suitable materials that
provide for a highly durable card stock that can survive, at least, an
eight-year card life. If the card stock is a multi-layered structure,
there must be adequate adhesion and/or tamper evident properties to
protect the personalized data and security features contained in the
card. The card stock must provide for the highest clarity for
information applied.
(2) External surfaces of the cards must be printed using recognized
security printing methods to resist duplication or facsimile
reproduction by commercially available products. The card must bear a
security background pattern designed to be resistant to counterfeiting
by scanning, printing or copying. To achieve this, the background
pattern shall not be composed of the primary colors Cyan, Magenta,
Yellow and Key (Black) (CMYK). The pattern shall show no evidence of
half-tone dots, or pixel structure typically found in digital printing
technologies.
(3) States must issue REAL ID driver's licenses and identification
cards produced on serialized card stock and implement controlled
inventory measures that meet recognized industry standards. The State
must maintain a record of any missing cards and report the loss to the
DMV and to law enforcement.
(4) Driver's licenses and identification cards must contain a
revision date that is printed or engraved on the card surface and which
must be updated whenever the card design changes.
(5) States must provide DHS with samples of REAL ID driver's
licenses and identification cards in a quantity that DHS will specify.
The cards provided will be representative of issued driver's licenses
and identification cards, produced on equipment identical to that used
by the State to issue REAL ID driver's licenses and identification
cards, and include all data fields and security features used by the
State.
(f) Document security and integrity. (1) States must conduct an
annual review of their card design and submit a report to DHS that
indicates the ability of the designs to resist compromise and document
fraud activity attempts. The report must be submitted as part of the
State's annual certification. The report required by this paragraph is
Sensitive Security Information (SSI) and will be handled in a manner
consistent with DHS regulations concerning SSI published at 49 CFR part
1520.
(i) States must provide DHS with examination results from a
recognized independent laboratory experienced with adversarial analysis
of identification documents as part of the State's initial
certification under Sec. 37.55, and annual certification under Sec.
37.57.
(ii) As part of the State's initial and annual certifications, the
State must submit to DHS results from a facility described in paragraph
(g)(2)(i) of this section, in the following areas:
(A) Photo substitution.
(B) Delamination and deconstruction.
(C) Reverse engineering.
(D) Modification of any data element.
(E) Erasure of information.
(F) Duplication, reproduction, or facsimile creation.
(G) Effectiveness of security features (three levels).
(H) Confidence and ease of second level authentication.
(iii) The specifics of the lab analysis requirements and the
analysis results are Sensitive Security Information (SSI) and will be
handled in a manner consistent with DHS regulations concerning SSI at
49 CFR part 1520.
(iv) DHS may change lab analysis requirements under this section
upon notice to the State and opportunity for comment or immediately if
DHS determines that there is a need for immediate application of the
new requirements.
Sec. 37.17 Requirements for the face of the driver's license or
identification card.
To be acceptable by a Federal agency for official purposes, REAL ID
driver's licenses and identification cards must include on the face of
the card the following information:
(a) Full legal name. The name on the face of the card must be the
same as the name on the document presented by the applicant to
establish identity. This includes the individual's first name, middle
names or family names, and last name without use of initials or
nicknames.
(b) Date of birth.
(c) Gender.
(d) Unique Driver's license or identification card number. This
cannot be the individual's Social Security Number (SSN).
(e) Full facial digital photograph. A full facial photograph must
be taken pursuant the standards set forth below:
[[Page 10854]]
(1) Lighting shall be equally distributed on the face.
(2) The face from crown to the base of the chin, and from ear-to-
ear, shall be clearly visible and free of shadows. States use
photographs in profile rather than ear-to-ear to differentiate
licensees that are under the age of 21.
(3) Veils, scarves or headdresses must not obscure any facial
features and not generate shadow. The person may not wear eyewear that
obstructs the iris or pupil of the eyes.
(4) There must be no dark shadows in the eye-sockets due to the
brow. The iris and pupil of the eyes shall be clearly visible.
(5) Care shall be taken to avoid ``hot spots'' (bright areas of
light shining on the face).
(f) Address of principal residence, except individuals who satisfy
one of the following:
(1) If the individual is enrolled in a State address
confidentiality program;
(2) If the individual's address is entitled to be suppressed under
State or Federal law or suppressed by a court order; or
(3) If the individual is protected from disclosure of information
pursuant to section 384 of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996.
(g) Printed information. The name, date of birth, gender, card
number, issue date, expiration date, and address on the face of the
card must be in Roman alphabet characters. The name must contain a
field of no less than a total of 39 characters for the full legal name,
and longer names may be truncated following the standard established by
International Civil Aviation Organization (ICAO) 9303, ``Machine
Readable Travel Documents,'' Part IV, Sixth Edition, 2005. The Director
of the Federal Register approves this incorporation by reference in
accordance with 5 U.S.C. 552(a) and 1 CFR part 51. You may obtain a
copy of ICAO 9303 from the ICAO, Document Sales Unit, 999 University
Street, Montr[eacute]al, Quebec, Canada H3C 5H7, tel: 1-(514) 954-8022;
E-mail: [email protected]. You may inspect a copy at the Office of the
Federal Register, 800 N. Capitol Street, NW., Suite 700, Washington,
DC.
(h) Signature. The card must include the signature of the card
holder. The signature must meet the requirements of the existing
American Association of Motor Vehicle Administrators (AAMVA) standards
for the 2005 AAMVA Driver's License/Identification Card Design
Specifications, Annex A, section A.7.7.2. This standard includes
requirements for size, scaling, cropping, color, borders, and
resolution. The Director of the Federal Register approves this
incorporation by reference in accordance with 5 U.S.C. 552(a) and 1 CFR
part 51. You may obtain a copy of these standards from AAMVA on-line at
http://www.aamva.org, or by contacting AAMVA at 4301 Wilson Boulevard,
Suite 400, Arlington, VA 22203, tel. (703) 522-4200. You may inspect a
copy at the Office of the Federal Register, 800 N. Capitol Street, NW.,
Suite 700, Washington, DC.
(i) Physical security features, pursuant to Sec. 37.15 of this
subpart.
(j) Machine-readable technology, pursuant to Sec. 37.19 of this
subpart.
(k) Issuance date.
(l) Expiration date.
Sec. 37.19 Machine readable technology on the driver's license or
identification card.
For the machine readable portion of the REAL ID driver's license or
identification card, States must use PDF417 2D bar code standard, with
the following defined minimum data elements:
(a) Expiration date.
(b) Holder's name. The machine readable portion of the card must
have at least 125 characters to permit capture of the full name
history, including full legal name and all name changes.
(c) Issue date.
(d) Date of birth.
(e) Gender.
(f) Address.
(g) Unique identification number.
(h) Revision date, indicating the most recent change or
modification to the visible format of the driver's license or
identification card.
(i) Inventory control number of the physical document.
Sec. 37.21 Temporary driver's licenses and identification cards.
States may issue only a temporary driver's license or
identification card to an individual who has temporary lawful status in
the United States.
(a) States must require, before issuing a temporary driver's
license or identification card to a person, valid documentary evidence
that the person has lawful status in the United States, as determined
by DHS, and verification of that status through SAVE.
(b) States shall not issue a temporary driver's license or
identification card pursuant to this section:
(1) For a time period longer than the expiration of the applicant's
authorized stay in the United States, or, if there is no expiration
date, for a period longer than one year.
(2) For longer than eight years or the State's maximum driver's
license or identification card term.
(c) States shall renew a temporary driver's license or
identification card pursuant to this section and Sec. 37.23(b)(2),
only if:
(1) The individual presents valid documentary evidence that the
status by which the applicant qualified for the temporary driver's
license or identification card has been extended by DHS, or
(2) The individual presents valid documentary evidence that they
have qualified for another lawful status under paragraph (a) of this
section, and such continued or new status is verified through SAVE.
(d) States must verify the documents an individual presents to
establish his or her temporary lawful status through SAVE.
(e) Temporary driver's licenses and identification cards must
clearly state on the face of the driver's license or identification
card in bold lettering, and in the machine readable zone of the
driver's license or identification card, that it is temporary.
Sec. 37.23 Renewed and reissued driver's licenses and identification
cards.
(a) General. Any driver's license or identification card that is
renewed or reissued between May 11, 2008, and May 10, 2013 that is
intended to be acceptable by federal agencies for official purposes
must meet the standards set forth in subparts A through C of this part.
(b) State procedure. States must establish an effective procedure
to confirm or verify an applicant's identity each time a REAL ID
driver's license or identification card is renewed or reissued, to
ensure that the individual receiving the renewed or reissued REAL ID
driver's license or identification card is the same individual to whom
the driver's license or identification card was issued originally.
(1) Remote/Non-in-person renewals and reissuance. Except as
provided in paragraph (b)(2) of this section a State may conduct a non-
in-person (remote) renewal or reissuance if the State continues to
retain the images or copies of source documents presented by the
individual and used by the State to issue the REAL ID driver's license
or identification card, and no source information has changed since
prior issuance.
(i) The State must re-verify information from the images or copies
of the source documents used as the basis for issuance of the original
REAL ID driver's license or identification card at each renewal and
reissuance in accordance with Sec. 37.13 of this part.
[[Page 10855]]
(ii) Any information that has changed since prior issuance (such as
name or address) must be established through presentation of an
original source document as provided in Subpart B, and must be
verified, or, in the case of address, validated.
(iii) The process described in paragraph (b) of this section
applies any time a driver's license or identification card is renewed
or reissued for any purpose.
(2) In-person renewals. States must require holders of REAL ID
driver's licenses and identification cards to renew their driver's
licenses and identification cards with the State DMV in person, every
other renewal cycle, or at least once every 16 years.
(i) The State shall take an updated photograph of the applicant, at
least at every other renewal.
(ii) The States must re-verify information and source documents
used as the basis for issuance of the original REAL ID driver's license
or identification card, or must require the individual to resubmit
documents and verify those documents.
(iii) Holders of temporary REAL ID driver's licenses and
identification cards must renew their driver's license or
identification card in person each time, and present evidence of
continued lawful status.
Subpart C--Other Requirements
Sec. 37.31 Source document retention.
States must retain copies of the application, declaration and
source documents presented under Sec. 37.11 of this part.
(a) States that choose to keep paper copies of source documents
must retain the copies for a minimum of seven years.
(b) States that choose to transfer information from paper copies to
microfiche must retain the microfiche for a minimum of seven years.
(c) States that choose to keep digital images of source documents
must retain the images for a minimum of ten years.
(1) States currently using black and white imagers must replace
them with color imagers by December 31, 2011.
(2) States using digital imaging to retain source documents, must
use the AAMVA Digital Image Exchange Program, or a standard other than
AAMVA that has interoperability with the AAMVA standard, so that the
digital images are retained in electronic storage in a transferable
format.
(i) Photo images must be stored in the Joint Photographic Experts
Group (JPEG) 2000 standard for image compression, or a standard that is
interoperable with the JPEG standard.
(ii) Document and signature images must be stored in a compressed
Tagged Image Format (TIF), or a standard that is interoperable with the
TIF standard.
(iii) All images must be linked to the applicant through the
applicant's unique identifier assigned by the DMV.
Sec. 37.33 Database connectivity with other States.
(a) States must maintain a State motor vehicle database that
contains, at a minimum--
(1) All data fields printed on driver's licenses and identification
cards issued by the State, individual serial numbers of the card, and
Social Security Number; and
(2) Motor vehicle driver's histories, including motor vehicle
violations, suspensions, and points on driver's licenses.
(b) States must provide to all other States electronic access to
information contained in the motor vehicle database of the State, in a
manner approved by DHS pursuant to this regulation. This section does
not intend to supersede DOT requirements codified at 49 CFR parts 383
and 384.
(c) Prior to issuing a REAL ID driver's license or identification
card, States must check with all other States to determine if any State
has already issued a REAL ID driver's license or identification card to
the applicant.
(1) If the State receives confirmation that the individual
currently holds a REAL ID driver's license or identification card
issued by another State, the receiving State must:
(i) Take measures to confirm that the person has taken steps to
terminate, or has terminated, the REAL ID driver's license or
identification card issued by the prior State.
(ii) Require the person to surrender the REAL ID driver's license
or identification card issued by another State, unless the person signs
a declaration under penalty of perjury pursuant to 28 U.S.C. 1746
stating that the driver's license or identification card was lost or
stolen.
(iii) If the person signs a declaration stating that the driver's
license or identification card was lost or stolen in another State, the
State receiving the declaration must inform the State that issued the
driver's license or identification card that it has been reported as
lost or stolen.
(iv) The State that issued the driver's license or identification
card reported as lost or stolen must record that information on its
database and terminate that driver's license or identification card
upon notice from another State.
Subpart D--Security at DMVs and Driver's License and Identification
Card Production Facilities
Sec. 37.41 Comprehensive security plan.
(a) States must prepare a comprehensive security plan for all State
DMV offices and driver's license/identification card storage and
production facilities, and submit it as part of its application for
certification.
(b) At a minimum, the security plan must address--
(1) Physical security for the following:
(i) Buildings used to manufacture or issue driver's licenses and
identification cards.
(ii) Storage areas for card stock and other materials used in card
production.
(iii) Reasonable administrative, technical, and physical safeguards
to protect the security, confidentiality, and integrity of the physical
location and the personal information stored and maintained in DMV
records and information systems.
(2) Document and physical security features for the face of the
card, consistent with the requirements of Sec. 37.15, including a
description of the State's use of biometrics, and the technical
standard utilized, if any;
(3) Access control, including the following:
(i) Employee identification and credentialing, including access
badges.
(ii) Employee background checks, in accordance with Sec. 37.45.
(iii) Controlled access systems.
(4) Periodic training requirements in--
(i) Fraudulent document recognition, approved by DHS, for
appropriate employees engaged in the issuance of driver's licenses and
identification cards.
(ii) Domain awareness training including threat identification;
(5) Privacy policy regarding personal information collected and
maintained by the DMV;
(6) Emergency/incident response plan;
(7) Internal audit controls;
(8) The State's standards and procedures for safeguarding
information collected, stored, or disseminated for purposes of
complying with the REAL ID Act, including procedures to prevent
unauthorized access, use, or dissemination of applicant information and
images of source documents retained pursuant to the Act and standards
and procedures for document retention and destruction;
(9) Procedures to revoke and confiscate driver's licenses or
identification cards fraudulently issued in another State;
[[Page 10856]]
(10) An affirmation that the State possesses both the authority and
the means to produce, revise, expunge, and protect the confidentiality
of REAL ID driver's licenses or identification cards issued in support
of Federal, State, or local criminal justice agencies or programs that
require special licensing or identification to safeguard persons or
support their official duties. These procedures must be designed in
coordination with the key requesting authorities to ensure the
procedures are effective and to prevent conflicting or inconsistent
requests. In order to safeguard the identities of individuals, these
procedures should not be discussed in the plan and States should make
every effort to prevent disclosure to those without a need to know
about either this confidential procedure or any substantive information
that may compromise the confidentiality of these operations. The
appropriate law enforcement official and United States Attorney should
be notified of any action seeking information that could compromise
Federal law enforcement interests; and
(11) Other information as determined by DHS.
Sec. 37.43 Physical security of DMV facilities.
(a) States must ensure the physical security of locations where
driver's licenses and identification cards are produced, and the
security of document materials and papers from which driver's licenses
and identification cards are produced. State compliance with a
performance-based standard approved by DHS will satisfy this
requirement.
(b) States must describe the security of DMV facilities as part of
their comprehensive security plan, in accordance with Sec. 37.41.
Sec. 37.45 Background checks for covered employees.
(a) Scope. States are required to subject persons who have the
ability to affect the recording of any information required to be
verified, or who are involved in the manufacture or production of REAL
ID driver's licenses and identification cards, or who have the ability
to affect the identity information that appears on the driver's license
or identification card (covered employees), to a background check. The
background check must include, at a minimum, the validation of
references from prior employment, a name-based and fingerprint-based
criminal history records check, a financial history check, and a lawful
status check. States shall describe their background check process as
part of their comprehensive security plan, in accordance with Sec.
37.41. This section also applies to contractors utilized in covered
positions under this paragraph.
(b) Background checks. States must ensure that any covered employee
or prospective employee under paragraph (a) of this section is provided
notice that he or she must undergo a background check and the contents
of that check, before employment in a covered position commences. For
persons employed in covered positions on the effective date of this
regulation, States must complete the background check described in this
section prior to that person's participation in the issuance of any
REAL ID driver's licenses or identification cards that comply with this
part.
(1) Criminal history records check. States must conduct a name-
based and fingerprint-based criminal history records check (CHRC)
using, at a minimum, the FBI's NCIC and IAFIS database and State
repository records on each covered employee or prospective employee
identified in paragraph (a) of this section, and determine if the
covered employee or prospective employee has been convicted of any of
the following disqualifying crimes:
(i) Permanent disqualifying criminal offenses. An applicant has a
permanent disqualifying offense if convicted, or found not guilty by
reason of insanity, in a civilian or military jurisdiction, of any of
the felonies set forth in 49 CFR 1572.103(a).
(ii) Interim disqualifying criminal offenses. The criminal offenses
referenced in 49 CFR 1572.103(b) are disqualifying, if the applicant
was either convicted of those offenses in a civilian or military
jurisdiction, or admits having committed acts which constitute the
essential elements of any of those criminal offenses within the seven
years preceding the date of application; or the applicant was released
from incarceration for the crime within the five years preceding the
date of application.
(iii) Under want or warrant. An applicant who is wanted or under
indictment in any civilian or military jurisdiction for a felony
referenced in this section is disqualified until the want or warrant is
released.
(iv) Determination of arrest status. When a fingerprint-based check
discloses an arrest for a disqualifying crime referenced in this
section without indicating a disposition, the State must determine the
disposition of the arrest.
(v) Waiver. The State may establish procedures to allow for a
waiver of the requirements of (b)(1)(ii) of this section under
circumstances determined by the State.
(2) Financial history check. The State must conduct a financial
history check on all covered employees and prospective employees
identified under paragraph (a) of this section in a manner consistent
with the Fair Credit Reporting Act. An employee's financial history
shall be considered for informational purposes by the States only and
shall not be considered a Federal disqualifier.
(3) Lawful status check. The State shall subject each covered
employee to a lawful status check through SAVE.
(4) Disqualification. If results of the State's CHRC reveal a
permanent disqualifying crime under paragraph (b)(1)(i) or an interim
disqualifying offense under paragraph (b)(1)(ii); or the results of the
lawful status check are unsatisfactory; the covered employee or
prospective employee may not be employed in a position described in
paragraph (a) of this section.
(c) Appeal. An individual who has been informed by the State that
he or she may not be employed in a covered position as identified in
paragraph (a) of this section as a result of the background check must
be so informed and provided the opportunity to appeal. If a State
determines that the individual does not meet the standards for the
CHRC, is not trustworthy based on the financial history check, or does
not have lawful status in the United States based on the lawful status
check, the State must so inform the employee of the determination to
allow the individual an opportunity to appeal to the State. Appeals
based on the lawful status check should be appealed to DHS.
Subpart E--Procedures for Determining State Compliance
Sec. 37.51 Compliance--general requirements.
(a) To be in compliance with the REAL ID Act of 2005, 49 U.S.C.
30301 note, States must be meeting each and every standard of subparts
A through D of this part, or have a REAL ID program that DHS has
determined to be comparable to the standards of subparts A through D.
DHS will find that a State is in compliance with REAL ID only if the
State's certification submitted pursuant Sec. Sec. 37.55 and 37.57 of
this part establishes that all REAL ID driver's licenses and
identification cards issued by the State on or after May 11, 2008 will
meet the standards required under the REAL ID Act and this part.
(b) States must meet the requirements of subparts A through D of
this part no later than May 11, 2008. In order to satisfy this
requirement, a State must demonstrate compliance with this part
[[Page 10857]]
by submitting a certification and the documents specified in Sec.
37.41 no later than February 10, 2008.
(c) States must demonstrate continued compliance by submitting a
certification and documents specified at Sec. 37.57 of this part as
required by DHS.
Sec. 37.55 Initial State certification.
States seeking DHS's determination that its program for issuing
REAL ID driver's licenses and identification cards is meeting the
requirements of this part, must provide DHS with the following
documents and information no later than February 10, 2008:
(a) A detailed narrative description of the State's program for
issuing REAL ID driver's licenses and identification cards, including a
description of the State's exceptions processing under Sec. 37.11(h),
the State's waiver processes under Sec. 37.45(b)(1)(v).
(b) The State's Comprehensive Security Plan under Sec. 37.41.
(c) A letter from the Attorney General of the State confirming that
the State has the legal authority to impose requirements necessary to
meet the standards established by this part.
(d) A copy of all statutes, regulations, administrative procedures
and practices, and other documents that demonstrate the State's
implementation program for this part.
(e) A certification by the Governor of the State reading as
follows:
I, Governor of the State (Commonwealth) of ----, do hereby
certify that the State (Commonwealth) has implemented a program for
issuing driver's licenses and identification cards in compliance
with the requirements of the REAL ID Act of 2005, as further defined
in 6 CFR part 37, and intends to remain in compliance with these
regulations through [the last date of the current year].
Sec. 37.57 Annual State certifications.
Prior to January 1 of each year, each State must review its
compliance with this part and certify to the Department of Homeland
Security as prescribed in paragraph (a) of this section.
(a) The certification must consist of a Statement signed by the
Governor of the State, reading as follows:
I (name of certifying official), (position title), of the State
(Commonwealth) of ----, do hereby certify that the State
(Commonwealth) has continuously been in compliance with all
requirements of the REAL ID Act of 2005 as further defined in 6 CFR
part 37, since [the first day of the current Federal fiscal year],
and intends to remain in compliance through [the last date of the
current year].
(b) States shall provide DHS any changes to the information
requiring certification, at least 30-days prior to the changes going
into effect in the State.
(c) States shall supply the comprehensive security plan under Sec.
37.41 of this part and a quarterly accounting of the State's use of its
exceptions process, and the report required by Sec. 37.15(f)(1) to DHS
as part of the annual certification.
Sec. 37.59 DHS reviews of State compliance.
States' REAL ID programs will be subject to DHS review to determine
whether or not the State meets the requirements for compliance with
this part.
(a) General inspection authority. States must cooperate with DHS's
review of the State's compliance during initial reviews, annual
reviews, and at any other time. The State must provide any information
requested by DHS, must permit DHS to conduct inspections of any and all
sites associated with the application and verification process,
manufacture, and production of driver's licenses or identification
cards, and must allow DHS to conduct interviews of the State's
employees or contractors who are involved in the application and
verification process, manufacture and production of driver's licenses
or identification cards.
(b) Preliminary DHS determination. After DHS reviews a State's
certification and related documents, DHS will make a preliminary
determination on whether the State has satisfied the requirements of
this part. If, after review, DHS makes a preliminary determination,
either that the State has not submitted a complete certification, or
that the State does not meet one or more of the minimum standards for
compliance under this part, DHS will inform the State of this
preliminary determination.
(c) State reply. The State will have up to 30 calendar days to
respond to the preliminary determination. The State's reply must
explain what corrective action it either has implemented, or intends to
implement, to correct the deficiencies cited in the preliminary
determination or, alternatively, detail why the DHS preliminary
determination is incorrect.
(1) The State must provide documentation of corrective action.
Corrective action must be adequate to correct the deficiencies noted in
the program review and be implemented on a schedule mutually agreed
upon by DHS and the State.
(2) Upon request by the State, an informal conference will be
provided during this time.
(d) Final DHS determination. If, after reviewing a timely response
by the State to the preliminary determination, DHS makes a final
determination that the State is not in compliance with this part, DHS
will notify the State of the final determination. In making its final
determination, DHS will take into consideration the corrective action
either implemented, or planned to be implemented, in accordance with
the mutually agreed upon schedule.
(e) State's right to judicial review. Any State aggrieved by an
adverse decision under this section may seek judicial review under 5
U.S.C. chapter 7.
Sec. 37.61 Results of compliance determination.
(a) DHS will determine that a State is not in compliance with this
part when it--
(1) Fails to submit the certification as prescribed in this
subpart; or
(2) Does not meet one or more of the standards of this part, as
established in a final determination by DHS under this section.
(b) A State shall be deemed in compliance with this part when DHS
issues a determination that the State meets the requirements of this
part.
Sec. 37.63 Extension of deadline.
A State may request a deadline extension based on the lack of a
final REAL ID regulation to guide its implementation by filing a
request with the Secretary no later than October 1, 2007.
(a) The request for consideration shall state that the State needs
sufficient time to consider the final rule and will not otherwise be in
a position to comply with the final rule.
(b) The Secretary has determined that, in the absence of
extraordinary circumstances, such an extension request will be deemed
justified for a period lasting until, but not beyond, December 31,
2009, providing that the requesting State complies with the
requirements of this section.
(c) Any State receiving an extension for expedited consideration
shall submit to the Secretary no later than six months from the date on
which the extension is granted a Compliance Plan detailing milestones,
schedules, and budgets allowing it to meet the requirements of the
final regulation.
(d) After the Compliance Plan is submitted, the Secretary may
require such progress reports or other information as the Secretary
determines to be necessary to evaluate the State's progress toward
compliance by December 31, 2009.
Sec. 37.65 Effect of failure to comply with this part.
(a) After May 11, 2013, any driver's license or identification card
issued by
[[Page 10858]]
any State that DHS determines was not in compliance with this part when
the driver's license or identification card was issued, is not
acceptable as identification by Federal agencies for official purposes.
(b) If a driver's license or identification card issued when a
State was in compliance with these regulations is renewed, the renewed
driver's license or identification card is acceptable by Federal
agencies for official purposes, only if the State is in compliance with
these regulations at the time of renewal.
Subpart F--Non-REAL ID Driver's Licenses and Identification Cards
Sec. 37.67 Non-REAL ID driver's licenses and identification cards.
States that issue driver's licenses and identification cards that
do not satisfy the standards of this part after May 11, 2008, must
ensure that such driver's licenses and identification cards--
(a) Clearly state, on their face in bold lettering, as well as in
the machine readable zone if the card contains one, that they may not
be accepted by any Federal agency for Federal identification or other
official purpose; and
(b) Have a unique design or color indicator that clearly
distinguishes them from driver's licenses and identification cards that
meet the standards of this part.
Michael Chertoff,
Secretary.
[FR Doc. 07-1009 Filed 3-8-07; 8:45 am]
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