[Federal Register: March 9, 2007 (Volume 72, Number 46)]
[Proposed Rules]
[Page 10819-10858]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr09mr07-23]
[[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
[[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
http://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 http://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.
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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\
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\15\ H.R. Rep. No. 109-72 (2005) (Conf. Rep.).
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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)).
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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.
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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).
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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