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\ fr \ Federal Register Publications (CIS, ICE, CBP) \ Federal Register Publications (CIS, ICE, CBP) - 2008 \ FEDERAL REGISTER FINAL REGULATIONS - 2008 \ Minimum Standards for Driver's Licenses and Identification Cards Acceptable by Federal Agencies for Official Purposes [73 FR 5271] [FR 5-08]
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Minimum Standards for Driver's Licenses and Identification Cards Acceptable by Federal Agencies for Official Purposes [73 FR 5271] [FR 5-08]
January 29, 2008
Office of the Secretary
6 CFR Part 37
[Docket No. DHS-2006-0030]
Minimum Standards for Driver's Licenses and Identification Cards Acceptable by Federal Agencies for Official Purposes
Office of the Secretary, DHS.
Final rule.
The Department of Homeland Security is establishing minimum standards for State-issued driver's licenses and identification cards that Federal agencies would accept for official purposes on or after May 11, 2008, in accordance with the REAL ID Act of 2005. This rule establishes standards to meet the minimum requirements of the REAL ID Act of 2005. These standards involve a number of aspects of the process used to issue identification documents, including: Information and security features that must be incor porated 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 facilities where driver's licenses and applicable identification cards are produced. This final rule also provides a process for States to seek an additional extension of the compliance deadline to May 11, 2011, by demonstrating material compliance with the core requirements of the Act and this rule. Finally, taking into considerati on the operational burdens on State Departments of Motor Vehicles, this rule extends the enrollment time period to allow States determined by DHS to be in compliance with the Act to replace all licenses intended for official purpose with REAL ID-compliant cards by December 1, 2014 for people born after December 1, 1964, and by December 1, 2017 for those born on or before December 1, 1964.
Effective Date
: This rule is effective March 31, 2008. The incorporation by reference of certain publications listed in the rule is approved by the Director of the Federal Register as of March 31, 2008.
Compliance DATES
Extensions: As of May 11, 2008, Federal agencies cannot accept driver's licenses or identification cards for official purposes, as defined herein, from States that have not been determined by DHS to be in compliance with the REAL ID Act unless a State has requested and obtained an extension of the compliance date from DHS. States seeking extensions must submit a request for an extension to DHS no later than March 31, 2008. As of December 31, 2009, any initial extension will terminate unless a State, no lat er than October 11, 2009, submits to DHS a request for an additional extension and certification that the State has achieved the benchmarks set forth in the Material Compliance Checklist. As of May 11, 2011, driver's licenses and identification cards will not be accepted from States that are not in full compliance with the provisions of REAL ID.
As of December 1, 2014, Federal agencies cannot accept driver's licenses or identification cards for official purposes, as defined herein, from any individual born after December 1, 1964, unless DHS has determined that the issuing State is in compliance with Subparts A through D of this rule and the card presented by the individuals meet the standards of this rule. As of December 1, 2017, Federal agencies will not accept any State-issued driver's licenses and identification cards for official purposes unle ss such cards have been issued by States that have certified to DHS their compliance with Subparts A through D of this rule.
Darrell Williams, REAL ID Program Office, Department of Homeland Security, Washington, DC 20528 (202) 282-9829.
Abbreviations and Terms Used in This Document
AAMVA American Association of Motor Vehicle Administrators
ACLU American Civil Liberties Union
CAC U.S. Department of Defense Common Access Card
CDLIS Commercial Drivers License Information System
CHRC Criminal History Records Check
CRBA Consular Report of Birth Abroad
DHS U.S. Department of Homeland Security
DMV Department of Motor Vehicles
DOS U.S. Department of State
DOT U.S. Department of Transportation
EAD Employment Authorization Document
EDL Enhanced driver's license and identification card
EVVE Electronic Verification of Vital Events
FOIA Freedom of Information Act
IAFIS Integrated Automated Fingerprint Identification
ICAO International Civil Aviation Organization
ID Identification Card
JPEG Joint Photographic Experts Group
LPR Lawful Permanent Resident
MRZ Machine Readable Zone
NAPHSIS National Association of Public Health Statistics and Information Systems
NASCIO National Association of State Chief Information Officers
NCSL National Conference of State Legislatures
NCIC National Crime Information Center
NGA National Governors Association
NPRM Notice of Proposed Rulemaking
PII Personally Identifiable Information
RFID Radio Frequency Identification
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
WHTI Western Hemisphere Travel Initiative
Table of Contents
I. Background
II. Discussion of the Final Rule
A. Extension of Deadlines
B. Implementation Dates
C. Verification and Data Exchange Systems Architecture
D. Marking of Compliant REAL ID Documents
E. Prohibition on States Issuing Real ID Cards to Persons Who Hold a Driver's License in Another State
F. Western Hemisphere Travel Initiative
III. Section-by-Section Analysis of the Final Rule
IV. Discussion of Comments
A. General Comments on the Proposed Regulation
B. Scope, Applicability, and Definitions
C. Compliance Period
D. Privacy Considerations
E. State to State Database Queries
F. Document Standards for Issuing REAL ID Driver's Licenses and Identification Cards
G. Exceptions Processing for Extraordinary Circumstances
H. Temporary or Limited-Term Driver's Licenses and Identification Cards
I. Minimum Driver's License or Identification Card Data Element Requirements
J. Validity Period and Renewals of REAL ID Driver's Licenses and Identification Cards
K. Source Document Retention
L. Database Connectivity
M. Security of DMV Facilities Where Driver's Licenses and Identification Cards are Manufactured and Produced
N. State Certification Process; Compliance Determinations
O. Driver's Licenses and Identification Cards that Do Not Meet the Standards of the REAL ID Act
P. Section 7209 of the Intelligence Reform and Terrorism Prevention Act of 2004
Q. Responses to Specific Solicitation of CommentsV. Regulatory Analyses
V. Regulatory Analyses
A. Paperwork Reduction Act
B. Economic Impact Analyses
C. Executive Order 13132, Federalism
D. Environmental Impact Analysis
E. Energy Impact Analysis
F. Executive Order 13175, Tribal Consultation
I. Background
A. Statutory Authority and Regulatory History
This final rule establishes minimum standards for State-issued driver's licenses and identification cards that Federal agencies can accept for official purposes on or after May 11, 2008, as required under the REAL ID Act of 2005. See, Public Law 109-13, 119 Stat. 231, 302 (May 11, 2005) (codified at 49 U.S.C. 30301 note) (the Act).
During the terrorist attacks on the United States on September 11, 2001, all but one of the terrorist hijackers acquired some form of identification document, some by fraud, and used these forms of identification to assist them in boarding commercial flights, renting cars, and other necessary activities leading up to the attacks. See, The 9/11 Commission Report, Final Report of the National Commission on Terrorist Attacks upon the United States (July 2004) (9/11 Commission Report), p. 390. The 9/11 Commissi on recommended implementing more secure sources of identification for use in, among other activities, boarding aircraft and accessing vulnerable facilities. In its report, the Commission stated:
Secure identification should begin in the United States. The federal government should set standards for the issuance of birth certificates and sources of identification, such as driver's licenses. Fraud in identification documents is no longer just a problem of theft. At many entry points to vulnerable facilities, including gates for boarding aircraft, sources of identification are the last opportunity to ensure that people are who they say they are and to check whether they are terrorists.
Id. at 390.
Congress enacted the Act in May 2005, in response to the 9/11 Commission's recommendations.
Under the Act, Federal agencies are prohibited, effective May 11, 2008, from accepting a driver's license or a State-issued personal identification card for an official purpose unless the issuing State is meeting the requirements of the Act. "Official purpose" is defined under § 201 of the Act to include access to Federal facilities, boarding Federally-regulated commercial aircraft, entry into nuclear power plants, and such other purposes as established by the Secretary of Homeland Security. Undoubtedly, t he most significant impact on the public of this statutory mandate is that, effective May 11, 2008, citizens of States that have not been determined by DHS to be in compliance with the mandatory minimum requirements set forth in the REAL ID Act may not use their State-issued driver's licenses or identification cards to pass through security at airports. Citizens in this category will likely encounter significant travel delays.
The Act authorizes the Secretary of Homeland Security, in consultation with the States and the Secretary of Transportation, to promulgate regulations to implement the requirements under this Act. Section 205(b) of the Act further authorizes the Secretary of Homeland Security to grant extensions of time to meet the minimum standards of the Act when States provide adequate justification for noncompliance. The Act does not, however, give DHS the authority to waive any of the mandatory minimum standards set for th in the Act. Those mandatory provisions are set forth below.
Section 202(b) of the Act directs that REAL ID-compliant licenses and identification cards must include the following information:
(1) The person's full legal name, date of birth, and gender;
(2) The person's driver's license or identification card number;
(3) A digital photograph of the person;
(4) The person's address of principal residence;
(5) The person's signature;
(6) Physical security features designed to prevent tampering, counterfeiting, or duplication of the driver's licenses and identification cards for fraudulent purposes; and
(7) A common machine-readable technology, with defined minimum elements.
Section 202(c) of the Act also mandates certain minimum standards that States must adopt when issuing driver's licenses and identification cards intended for use for official purposes (referred to as REAL ID-compliant cards). Those standards include, but are not limited to, the following:
The State shall require, at a minimum, presentation and verification of (1) A photo identity document (except that a non-photo identity document is acceptable if it includes both the applicant's full legal name and date of birth); (2) documentation showing the applicant's date of birth; (3) proof of the person's Social Security Number (SSN) or verification that the applicant is not eligible for a SSN; and (4) documentation showing the applicant's name and address of principal residence. § 202(c).
The State shall require valid documentary evidence that the applicant is lawfully present in the United States. Such evidence shall include documentary evidence that the applicant: (1) Is a citizen or national of the United States; (2) is an alien lawfully admitted for permanent residence or temporary residence in the United States or pending application for same; (3) has conditional permanent resident status in the United States or pending application for such status; (4) has an approved application for a sylum in the United States, a pending application for asylum, or has been admitted to the United States in refugee status; (5) was lawfully admitted to the United States using a valid, unexpired nonimmigrant visa; (6) has a pending or approved application for temporary protected status in the United States; or (7) has approved deferred action status. § 202(c)(2)(B).
States must establish procedures to verify each document required to be presented by the applicant. The State also shall have entered into a memorandum of understanding (MOU) with DHS to use the Systematic Alien Verification for Entitlements (SAVE system) to verify the lawful status of an applicant, other than a U.S. citizen. § 202(c)(3)(C).
States also must confirm with the Social Security Administration (SSA) that the SSN presented by an applicant (as required under § 202(c)(1)(C)) is registered to that person. § 202(d)(5).
States must ensure the physical security of facilities where driver's licenses and identification cards are produced; and the security of document materials and papers from which driver's licenses and identification cards are produced. § 202(d)(7).
All persons authorized to manufacture or produce cards to appropriate security clearance requirements. § 202(d)(8).
Physical security features on the driver's licenses and identification cards designed to prevent tampering, counterfeiting, and duplication of the documents for a fraudulent purpose. § 202(b)(8).
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. See § 202(d)(11). Federal agencies, however, cannot accept such driver's licenses and identification cards for an official purpose and States must ensure that such cards or licenses must state on their faces that a Federal agency may not accept it for an official purpose. See § 202(d)(11)(A). States 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. See § 202(d)(11)(B).
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.
II. Discussion of Final Rule
DHS published an NPRM on March 3, 2007, proposing requirements to meet the minimum standards required under the Act. The proposed requirements included 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 facilities where driver's licenses and identification cards are produced. For additional information, please see the NPRM at 72 FR 10820.
DHS received over 21,000 comments on the NPRM and supporting regulatory evaluation during the sixty-day public comment period for this rulemaking action. Responses to those comments are set forth in Section IV of this final rule. This final rule implements the requirements of the Act, but with significant changes from the NPRM as a result of public comment, as discussed below.
As discussed above, effective May 11, 2008, Federal agencies are prohibited from accepting for official purposes state-issued driver's licenses or identification cards unless an issuing State certifies, and DHS determines, that it has met the mandatory minimum requirements of § 202 of the REAL ID Act. Several States have implemented--or are working to implement--legislation prohibiting their Departments of Motor Vehicles (DMVs) from complying with the requirements of the Act or any related implementing reg ulations issued by DHS. DHS wants to make clear that effective May 11, 2008, individuals from States who have not obtained an extension of the compliance date from DHS, or who have not submitted a Compliance Package to DHS under the deadlines provided in this final rule, will not be able to use their State-issued license for federal official purposes, including for identification to board a commercial airplane. Residents of States that do choose to comply, however, through submission of their Compliance Pla n or a timely-filed request for an extension, will be able to continue to use their current license to board commercial aircraft (and for other official purposes) through December 1, 2014. Effective December 1, 2014, Federal agencies will refuse to accept non-REAL ID-compliant driver's licenses from all persons born before December 1, 1964 (i.e. under the age of fifty). Effective December 1, 2017, anyone seeking to use a State-issued driver's license or identification card for official purpose, including bo arding of commercial aircraft, must have a REAL ID-compliant card.
A. Extension of Deadlines
Under section 205(b) of the Act, the Secretary of Homeland Security is authorized to grant extensions of the May 11, 2008 compliance date to those States who provide adequate justification for their inability to comply by the statutory deadline. On March 1, 2007, the Secretary of Homeland Security announced, in conjunction with the release of the NPRM, that the Department would grant extensions to all States requesting extensions, not to exceed December 31, 2009. In the NPRM, DHS proposed that States that w ould not be able to comply by May 11, 2008, should request an extension of the compliance date no later than February 10, 2008, and the proposal encouraged States to submit requests for extension as early as October 1, 2007. Under this final rule, States must file requests for an initial extension no later than March 31, 2008. That initial extension would expire on December 31, 2009. Pursuant to § 37.55 of this rule, States must submit requests for extensions to the REAL ID Program Office. Contact informat ion is provided in the "For Further Information" section of this rule. Requests for extension must be submitted from the highest level executive official in the State overseeing the DMV to the REAL ID Program Office.
DHS received numerous comments from States arguing that the lack of a centralized verification system would make it impossible for most, if not all, States to comply with the minimum statutory requirements by December 31, 2009. DHS recognizes the difficulty that many States may have in meeting the statutory requirements under the Act, but emphasizes that the Department has a critical responsibility to ensure that identification documents used to board commercial air carriers or access Federal buildings are secure documents and adequately prevent persons from circumventing Federal security and screening requirements by use of false or fraudulent identification.
In balancing the operational needs of the States against the security responsibilities of DHS and the Federal Government, DHS has decided to allow States to obtain an extension beyond December 31, 2009. DHS, however, will only grant a second extension to States that demonstrate that they have achieved certain milestones towards compliance with the Act and the final rule. States unable to demonstrate this progress will not be able to receive an additional extension. DHS has identified eighteen milestones, ca ptured in the "Material Compliance Checklist," that States must certify they have met in order to obtain an extension of the compliance deadline beyond December 31, 2009. The Material Compliance Checklist is available at DHS' Web site at
. The eighteen milestones are all mandatory
requirements under the Act; one of the most important ones, however, is the State's ability to verify that the applicant is lawfully present in the United States. Any second extension will terminate effective May 11, 2011, at which time, as discussed above, the State must begin issuing fully compliant REAL ID cards.
B. Phased Enrollment Periods
DHS initially proposed that States determined by DHS to be in compliance with the Act and the final rule would have until May 11, 2013 to replace all driver's licenses and identification cards with REAL ID-compliant cards. Under the NPRM, licenses intended for Federal official purposes issued by States on or after May 11, 2008 and determined by DHS to be in compliance with the Act and this final rule would be REAL ID-compliant, and the State would have worked to replace existing licenses, through standard r enewal or replacement processes no later than May 11, 2013. Until that phased-in enrollment period concluded on May 11, 2013, Federal agencies would accept from residents of compliant States both REAL ID-compliant licenses dated on or after May 11, 2008 or standard licenses issued before May 11, 2013. The NPRM also proposed the same phase-in period for States requesting initial extensions of the compliance date until December 31, 2009, i.e., States receiving an extension would still have until May 11, 2013 to enroll their current drivers.
During the public comment period, a number of States and State associations noted that States obtaining an initial extension of the compliance date until
December 31, 2009, would still be required to enroll their existing driver population (estimated to be approximately 240 million) by May 11, 2013. This would essentially halve the phase-in period and create an untenable burden and increased costs on States who were committed to complying with the REAL ID requirements. Several commenters suggested that DHS consider a risk-based approach that would permit States and DMVs to defer enrollment of a proportion of the population that statistically may present a lo wer risk of obtaining false or fraudulent identification to, among other potential purposes, circumvent Transportation Security Administration (TSA) passenger screening procedures and requirements or to access Federal buildings with a false identification.
DHS recognizes the significant operational impact on State DMVs if all licenses issued by a State were required to be REAL ID-compliant by May 11, 2008, or May 11, 2013; and believes that an age-based approach is the best way to balance operational concerns against security concerns. DHS has considered the best methodology to target preventive efforts against an individual attempting to fraudulently obtain an identification document to gain access to a Federal facility, nuclear facility, or commercial aircr aft. In the absence of threat reporting about particular individuals, to which the DMVs will not have access, DHS has determined that the most appropriate substitute criteria to apply is age.
DHS has determined that the most logical option to reduce the significant operational burden on States is to allow States to divide their license-bearing population and re-issue REAL ID-compliant licenses through a two-phased enrollment. This approach would reduce the operational burdens on States, which otherwise would have to reissue licenses to the majority of their license-bearing populations within two years for States requiring and obtaining extensions until May 11, 2011. DHS also has determined that a phased enrollment based on age is consistent with the intent of the REAL ID Act by focusing the first phase of enrollment on the population of persons that may have a higher propensity to obtain and use fraudulent identification.
To determine a logical age to use as a cut-off point for a two-phased enrollment, DHS determined, based on comments received and statistical analysis of incident reports obtained from the TSA, that solely for purposes of establishing an age-based enrollment for compliance with the REAL ID Act, the logical point of division would be to allow States to defer enrollment for persons over the age of fifty. The statistical analysis supporting this determination was conducted by DHS utilizing TSA incident reports identifying persons arrested or detained for use of fraudulent identification at TSA screening areas during the period from October 1, 2004 through July 25, 2007. This analysis roughly indicates that persons over the age of fifty were less likely to be involved in TSA-related law enforcement incidents involving false or fraudulent identification. More specific information on the methodology underlying this assessment is provided in Section IV.C. below.
Accordingly, DHS, under this final rule, has developed a phased enrollment approach for States who have certified compliance with the requirements of the Act and this final rule, and have been determined by DHS to be in compliance with the Act and this rule. Under this final rule, once a State certifies compliance with the REAL ID Act and this final rule, the State may focus enrollment first on issuing REAL ID-compliant cards to individuals born after December 1, 1964 (those who will be less than fifty year s of age as of December 1, 2014, the date of full compliance). States may delay the full enrollment of persons born on or before December 1, 1964, for three additional years, until December 1, 2017.
DHS believes that this approach balances the security objective of improving the reliability of identification documents presented for official purposes, including the boarding of commercial aircraft, with the needs of the States to spread out their compliance costs over a greater period of time and to obtain the necessary legal and budgetary approval from within their States to comply with the regulations. DHS also notes that States will be able to reduce their overall compliance costs based on phased enro llment approach. The economic analysis is presented in section V. of this rule.
C. Verification and Data Exchange Systems Architecture
The REAL ID Act requires States to verify supporting documents with the issuing agency. Because our population moves freely among the States, each State will need the capability to verify documents from issuing agencies in all other States. Although the Act places this burden on the States, DHS has worked to consider several technical solutions that would provide States with this capability. DHS has initiated a verification systems design project to define the requirements for the optimal system for REAL ID . DHS is working with the American Association of Motor Vehicle Administrators (AAMVA), the Department of Transportation (DOT), the Social Security Administration, the Department of State (DOS), the National Association of Public Health Statistics and Information Systems (NAPHSIS), and State representatives to define requirements for a "hub" based network and messaging systems to support the requirements of REAL ID. DHS is assessing the extent to which the current AAMVA network, communications, and systems architecture can serve as a platform for deployment of REAL ID data verification and State-to-State data exchanges.
The backbone of this hub would be AAMVAnet, the network system that AAMVA operates to facilitate data verification for State DMVs. DOT is currently funding an ongoing project to upgrade the capability of AAMVAnet by building in such security features as end-to-end data encryption and Federal Information Security Management Act-based security standards. The DOT-funded project will potentially expand AAMVAnet's capability to provide the capacity to handle the increased transaction volume for the required Stat e-to-State transactions. Finally, the AAMVAnet backbone resides on a private network with no connectivity to the Internet. It has been, and will continue to be, a highly secure transportation layer for all communications between States and agency databases.
With respect to data verification, AAMVAnet already supports verification of both social security numbers (SSNs) and birth certificates. These application systems enable States to query the Social Security On-Line Verification (SSOLV) database managed by the Social Security Administration (SSA) and the Electronic Verification of Vital Events (EVVE) system owned and operated by NAPHSIS. While 47 States currently verify SSNs through AAMVAnet, verification of birth certificates is limited to those States whose vital events records are available online. In both cases only State DMVs can initiate queries; personal data are verified and not exchanged; and no personal information is created, modified, or stored as a result of the transaction. Working with both SSA and NAPHSIS, DHS is identifying requirements for enhancements to both application systems.
U.S. Citizenship and Immigration Services (USCIS) is working to modify the SAVE system to allow States to acilitate their ability to meet the verification requirements under the § 202(c)(3) of REAL ID Act, a requirement that States routinely utilize the SAVE system to verify the lawful status of REAL ID card applicants. Currently, a majority of States have already entered into Memoranda of Understanding with USCIS to access and use SAVE, as required under section 202(c)(3) of the Act. USCIS is developing a standard user interface to meet all State DMV business process needs for immigration-related transactions and to draft requirements for a common messaging system that takes advantage of the same AAMVAnet standards and infrastructure that support State DMV queries against SSOLV, EVVE, and other Federal and State databases.
DHS also is exploring the alternative of using the Commercial Drivers Licensing Information System (CDLIS) as the baseline platform for supporting the State-to-State data exchange requirements of the REAL ID Act and regulation. CDLIS currently supports queries to every State DMV every time an individual applies for a driver's license in any State or the District of Columbia. CDLIS already meets the data exchange requirements of REAL ID for those drivers holding commercial driver's licenses. Moreover, CDLIS is a secure, State-governed system that stores the minimum amount of personal information possible to facilitate the routing of queries and responses between States. DHS is considering an effort to define system requirements for REAL ID State-to-State data exchanges based upon the CDLIS model or platform. This project would define a systems architecture for REAL ID State-to-State data exchanges that would leverage the ongoing CDLIS modernization project led by the DOT. DHS will work closely with DOT to buil d upon current and planned systems designs to meet the requirements of REAL ID.
D. Marking of Compliant REAL ID Documents
Section 202(d)(11) of the Act allows States to issue, in addition to REAL ID-compliant licenses, identification cards not intended to be accepted by Federal agencies for official purposes. Under the Act, however, any such card must clearly state on its face that it may not be accepted by any Federal agency for federal identification or any other official purpose; and States must use a unique design or color indicator to alert Federal agencies and other law enforcement that it may not be accepted for any suc h purpose. DHS will leave the types of marking and unique coloring to the discretion of the individual States, subject to DHS approval as part of the Compliance Package to ensure that DHS officials, such as TSA screeners, can adequately distinguish between REAL ID-compliant cards and those not intended for official purposes.
Based on an analysis of feedback from several commenters, DHS, however, has determined it would be in the best interest of the nation's security for States to place a security marking on licenses and identification cards to allow Federal agencies to more readily determine which States are issuing licenses or identification cards that are REAL ID-compliant or have been determined to be "materially compliant" (including verifying that REAL ID applicants are lawfully present in the United States). DHS will wor k with States concerning marking compliant licenses and identification cards that indicate whether the document was issued in material compliance of the Act's requirements, or in full compliance of the Act's requirements as set forth in Subpart E of this rule.
E. Prohibition on States Issuing REAL ID Cards to Persons Who Hold a Driver's License in Another State
Section 202(d)(6) of the Act requires that States "refuse to issue a driver's license or identification card to a person holding a driver's license issued by another State without confirmation that the person is terminating or has terminated the driver's license." In the NPRM, DHS maintained that we are not regulating the issuance of driver's licenses beyond that required under the REAL ID Act, but encourage the policy of "one driver, one license." Following comments on the rule, however, DHS believes it is necessary to clarify that the REAL ID Act mandates that a State cannot issue a REAL ID license to a person who is holding a license issued by another State or to an individual who already holds a REAL ID card. (A person can, however, hold a REAL ID card and another non-REAL ID, non-driver's license identification card). DHS, therefore, revised § 37.33, moving that provision to a separate section (§ 37.29), to clarify and emphasize that a State cannot issue a REAL ID card without verifying that an applica nt does not hold another REAL ID card or a driver's license from another State, or if the applicant holds another driver's license, that he or she is taking steps to terminate that license. See § 202(d)(6) of the Act.
F. Western Hemisphere Travel Initiative
Section 7209 of the Intelligence Reform and Terrorism Prevention Act of 2004, as amended,
requires the Secretary of Homeland Security, in consultation with the Secretary of State, to develop and implement a plan to require travelers entering the United States to present a passport, other document, or combination of documents, that are "deemed by the Secretary of Homeland Security to be sufficient to denote identity and citizenship." This DHS and Department of State (DOS) initiative is referred to as the Western Hemisphere Travel Initiative (WHTI). DHS and DOS have issued several regulations impl ementing WHTI travel document requirements at air ports of entry, and proposing documents acceptable for cross border travel at land and sea ports-of-entry. For additional information on the WHTI rulemaking actions, please see 71 FR 68411 (Nov. 24, 2006) (final air rule) and 72 FR 35087 (proposed land and sea rule).
As part of WHTI, the Secretary of Homeland Security has the authority to designate alternative documents that denote identity and citizenship that can be used for cross border purposes at land and sea ports-of-entry. In determining which documents should provide a convenient, low-cost alternative for U.S. citizens, particularly those residing in border states, DHS notes that State DMVs are well positioned to provide an enhanced driver's license (EDL) to meet this need. DHS is coordinating efforts to ensure that an EDL, developed to meet the requirements of WHTI, will adopt standards that REAL ID requires, as they are defined through the REAL ID rulemaking process. For an EDL to be an acceptable WHTI document for land and sea cross-border travel, it can only be issued to U.S. citizens, denote such citizenship on the face of the card, and must include technologies that facilitate electronic verification and travel at ports-of-entry. DHS will continue to work closely with interested states to develop driver's li censes that can meet both REAL ID and WHTI requirements.
The requirements outlined above constitute substantive changes between the March 2007 proposed rule and this final rule. A more robust discussion of this final rule and DHS's responses to comments are set forth below.
III. Section-By-Section Analysis of the Final Rule
Section 37.1 Applicability
DHS added a reference to § 202(d)(11) of the REAL ID Act to make it clear that the provisions of this rule apply to States who intend to issue driver's licenses or identification cards that can be accepted by Federal agencies for official purposes and that intend to be determined by DHS to be in compliance with section 202 of the REAL ID Act.
Section 37.3 Definitions
DHS added a definition of "full compliance" to clarify the relationships between full compliance with the requirements of Subparts A through D, and "material compliance" with the procedures in Subpart E that allow a State to file for and receive an extension.
DHS refined the definition of "covered employees" in this final rule to clarify that employees refers to DMV employees.
DHS added a definition of "duplicate" for driver's licenses and identification cards issued subsequent to the original license or card bearing the same information and expiration date as the original.
DHS has modified the definition of "full legal name" to bring it closer to existing name conventions used by the Social Security Administration, the Department of State, and other issuers of source documents.
DHS has added the definition of "material change" to provide clarity for States as to when an individual may be required to make an in-person visit to a DMV office to obtain an updated REAL ID driver's license or identification card when certain information changes from the time they obtained their previous REAL ID document. For the purpose of this final rule, a change of address of principal residence does not constitute a material change.
DHS has added a definition of "material compliance" as a basis for establishing the benchmarks that DHS will use to evaluate State progress toward meeting the requirements of this rule. States in material compliance with Subparts A through D of this rule will be granted a second extension until no later than May 10, 2011 to meet all the requirements of this rule.
DHS maintained the same definition of "official purpose" as that proposed in the NPRM and set forth in the REAL ID Act; to mean "accessing Federal facilities, boarding Federally-regulated commercial aircraft, and entering nuclear power plants."
DHS also added a definition for "personally identifiable information" as it pertains to these rules and the REAL ID Act.
DHS changed the definition of "principal residence" from the location where a person has his or her true, fixed, and permanent home and intends to return, to the location where a person currently resides even if this location is temporary, in conformance with the residency requirements of the State issuing the driver's license or identification card, if such requirements exist. DHS made this change in response to comments that the prior definition would unfairly prevent persons such as military personnel or students residing temporarily in a State from obtaining a driver's license or identification card from that State.
DHS revised the definition of "sexual assault and stalking" to incorporate the meaning of these terms given by State laws.
DHS broadened the scope of the term "State address confidentiality" to allow States to cover not only victims of violence or assault, but also "other categories of persons" that may need to have their addresses kept confidential.
DHS added a comprehensive definition of the term "verify" to clarify the scope of application in the rule. The definition makes it clear that verification includes two interrelated procedures: (1) inspection to see if the document is genuine and has not been altered, and (2) checking to see that the identity data on the document is valid.
Section 37.5 Validity Periods and Deadlines for REAL ID Driver's Licenses and Identification Cards
The proposed language in § 37.5 required that all cards issued, reissued, or renewed after May 11, 2008 had to be REAL ID-compliant by May 11, 2013 in order to be acceptable by Federal agencies for official purposes. As discussed in Section II above and the responses to comments in Section IV below, DHS has determined that the following enrollment schedule will apply under this final rule: (1) Effective December 1, 2014, Federal agencies will be prohibited from accepting State-issued driver's licenses or i dentification cards for official purpose from individuals born after December 1, 1964, unless the individual presents a REAL ID-compliant card from a State that has certified and that DHS has determined compliance with the REAL ID Act and this final rule; and (2) effective December 1, 2017, Federal agencies will be prohibited from accepting for official purposes from any individual (regardless of age) State-issued driver's licenses or identification cards that are not REAL ID-compliant.
Section 37.11 Application and Documents the Applicant Must Provide
DHS proposed, in the March NPRM, that States must maintain photographs of individuals who applied for, but ultimately were denied a REAL ID card by the State, for up to one year. However, DHS also proposed that States must maintain photographs of persons denied REAL ID cards based on suspected fraud for ten years and reflect in the State's records that a driver's license or identification card was not issued by the State because of suspicions of fraud. In response to comments, this final rule was amended to provide a uniform photograph retention provision of five years for persons who are denied a REAL ID card, regardless of the reason that the State denies issuance of a REAL ID card. DHS has also added a provision requiring States to retain the photo for two years after expiration of the card to allow individuals to renew licenses after they have expired.
The NPRM also proposed to require, under § 37.11(b), that States retain with applicant source documents the required signed declaration that the information presented by the applicant is true and accurate. This final rule no longer requires States to retain the required declaration with the applicant's source documents, the retention of which is mandated under § 202(d)(2) of the Act. Instead, recognizing the operational burdens on the States, DHS is exercising its discretion on this matter to require only that the declaration must be retained by States consistent with applicable State document retention requirements or policies.
Under § 37.11(c), DHS has added a provision that would allow DHS to change the list of documents acceptable to establish identity following publication of a notice in the Federal Register.
DHS also has provided States a broader latitude to accept documents other than documents issued by a Federal or State-level Court or government agency to establish a name change. Moreover, where State law or regulation permits, the State may record a name other than that contained in the identity document on the face of the license or card as long as the State maintains copies of the documentation presented pursuant to § 37.31, and maintains a record of both the recorded name and the name on the source doc uments in a manner to be determined by the State.
The NPRM proposed, under § 37.11(e), that an applicant for a REAL ID card must provide documentation establishing a Social Security Number (SSN) or the applicant's ineligibility for an SSN. This final rule amends that proposed requirement to allow an applicant, if a Social Security Administration account card is not available, to present any of the following documents bearing the applicant's SSN: (i) A W-2 form, (ii) a SSA-1099 form, (iii) a non-SSA-1099 form, or (iv) a pay stub bearing the applicant's nam e and SSN. A State, however, must verify the SSN pursuant to § 37.13(b)(2) of this final rule.
DHS has amended proposed § 37.11(f) to give States more discretion in the acceptance of documents required to demonstrate the applicant's principal address by removing specific requirements that documents used to demonstrate address of principal residence be issued "monthly" and "annually."
In response to comments regarding demonstrating the applicant's lawful status in the United States, DHS has amended § 37.11(g) with regard to which identity documents may serve as satisfactory evidence of the applicant's lawful status. While all identity documents listed in § 37.11(c) must be verified by the State in the manner prescribed in § 37.13, State verification of some of the identity documents also provides satisfactory evidence of lawful status. Therefore, if the applicant presents one of the d ocuments listed under § 37.11 (c)(1)(i)-(viii)(except for (v)), the issuing State's verification of the applicant's identity in the manner prescribed in § 37.13 will also provide satisfactory evidence of lawful status. State verification of the remaining identity documents listed in § 37.11(c), however, does not provide satisfactory evidence of lawful status and the applicant must provide additional documentation of lawful status as determined by USCIS.
In response to comments on the exceptions process proposed in § 37.11(h), DHS has amended this final rule to allow U.S. citizens to utilize the process to prove lawful status. In response to comments that it was unrealistic and too costly to require States to provide quarterly reports analyzing the use of their exceptions process, this proposed requirement has been replaced with a requirement that States must conduct a review of the DMV's use of the exceptions process and submit the report to DHS as part o f their certification package per § 37.55. Section 37.11(h) has also reduced the information required to be maintained by the State when the exceptions process is used.
Section 37.13 Document Verification Requirements
Based on numerous comments and ongoing State DMV programs, the rule now includes the provision that the State must make reasonable efforts to ensure that the person has not been issued identification documents in multiple or different names. Identified by several responders as the top priority for reducing the number of fraudulent licenses issued, this requirement has been reformulated and moved from § 37.11 to 37.13.
In response to concerns that a number of the verification systems contained in the proposal would not be operational by the verification deadlines, the final rule gives States more flexibility in verifying documents and identity data.
DHS added language that provides that nothing in this section precludes a DMV from issuing an interim license or a license under § 202(d)(11) of the Act to permit an individual to resolve any non-match issue, but clarifies that such cards cannot be accepted for official purposes.
Section 37.15 Physical Security Features for the Driver's License or Identification Card
DHS has deleted the proposed card design standards in response to comments which stated that the standards were an undue burden on the States. DHS has added language that States must conduct a review of their card design and submit a report to DHS as part of its certification package that indicates the ability of the designs to resist compromise and document fraud attempts.
Section 37.17 Requirements for the Surface of the Driver's License or Identification Card
In response to comments that some States allow a name other than the full legal name on the identity document to be on the surface of the license, this section has been amended to require full legal name as demonstrated on the applicant's identity document, but an individual may establish his or her name with other documentation where State law or regulation permits, as long as the State maintains copies of the documentation presented pursuant to § 37.31 and maintains a record of both the recorded name and the full legal name on the identity document in a manner to be determined by the State.
Under § 37.17(d), the unique license or card identification number must only be unique to each license or card holder within the State and not unique across all the States and other covered jurisdictions.
With regard to full facial digital photographs pursuant to § 37.17(e), DHS has clarified the discussion to bring it into closer compliance with DHS, Federal and national standards. Language was added that allows photographs to be in black and white or color.
To provide States with greater flexibility in protecting confidential addresses, § 37.17(f) contains new language that allows the display of an alternative address on the license or card, if a State permits this, and acceptance of an administrative order issued by a State or Federal court to show that an individual's address is entitled to be suppressed. States may also use an address convention used by the U.S. Postal Service where a street number and street name have not been assigned.
Further, § 37.17(g) now requires that States establish an alternative procedure for individuals unable to sign their names. The requirement to use the Roman alphabet has been replaced with use of the Latin alphabet which is more common.
In response to several comments from States and AAMVA that REAL ID-compliant documents should be marked or "branded" as REAL ID-compliant, DHS has added 37.17(n) which requires that REAL ID-compliant licenses and identification cards bear a DHS-approved security marking in accordance with the level of compliance with the Act.
Section 37.19 Machine Readable Technology on the Driver's License or Identification Card
This section contains technical conforming changes to reflect the changes made in § 37.11(c)(2) allowing a name other than the full legal name to appear on the license or card if a State law permits. State or territory of issuance has been added to the MRZ data fields to accommodate instances where a State may not have a residency requirement or may allow use of an out-of-State address to receive a license.
Section 37.21 Temporary or Limited-Term Driver's Licenses and Identification Cards
In response to comments that the term "temporary" may cause confusion under current terminology practices with some DMVs, this section adds new terminology and now refers to such licenses/cards as "limited-term or temporary." DHS also added language that provides that the verification of lawful status for such licenses/cards may be through SAVE, or "another method approved by DHS."
Section 37.23 Reissued REAL ID Driver's Licenses and Identification Cards
In response to comments, § 37.23 now provides that States may conduct a non-in-person (i.e., remote) reissuance of a driver's license or card if State procedures permit the reissuance to be conducted remotely, except that a State may not remotely reissue a license or card where there has been any material change in information since prior issuance.
Section 37.25 Renewal of REAL ID Driver's Licenses and Identification Cards
Section 37.25(a)(2) adds language that requires the States to reverify SSN information to ensure that the applicant's information is still valid. DHS has also added explicit language requiring that the State must verify electronically information that it was not able to verify at a previous issuance or renewal, if the systems or processes exist to do so.
Section 37.27 Driver's Licenses and Identification Cards Issued During the Age-Based Enrollment Period
This section has been added to affirm the acceptability of driver's licenses and identification cards issued, reissued, or renewed prior to the end of the age-based enrollment period. For example, if an individual is 60 years of age and their license naturally expires in 2009, the State may issue that individual a license under that State's current practices, and that license will be accepted for official purposes until 2017, after which time that individual must present a license that complies with this ru le for that card to be accepted for official purposes. As of December 1, 2014, individuals born after December 1, 1964 (that is, under fifty years old on that date) must present a REAL ID card when they present a State-issued driver's license or identification for official purposes. As of December 1, 2017, all individuals presenting a State-issued driver's license or identification card for official purposes must present a REAL ID card. The new section reemphasizes that an individual's driver's license will continue to be accepted for official purposes until the expiration of the individual's applicable enrollment period.
Section 37.29 Prohibition Against Holding More Than One REAL ID Card or More Than One Driver's License
In response to numerous comments to clarify the "one driver one license" concept in the REAL ID rules, DHS has created a stand-alone section, § 37.29, that specifically states that an individual may hold only one REAL ID card, whether it is a REAL ID identification card or a REAL ID driver's license. In addition, prior to issuing a REAL ID driver's license, a State that is complying with REAL ID must check with all other States to determine if the applicant currently holds a driver's license or REAL ID ide ntification card in another State, and if so, the receiving State must take measures to confirm that the person has terminated or is terminating the driver's license or REAL ID identification card issued by the prior State pursuant to State law, regulation or procedure.
Section 37.31 Source Document Retention
DHS has added language to § 37.31 to reiterate the requirement that States must protect any personally identifiable information collected pursuant to the REAL ID Act as described in the Security Plan (§ 37.41).
In response to comments, DHS deleted the following requirements from this section:
That States must replace black and white imagers with color imagers by December 31, 2011;
That States using digital imaging to retain source documents must use the AAMVA Digital Exchange Program or a standard that has interoperability with the AAMVA standard;
That all images must be linked to the applicant through the applicant's unique identifier assigned by the DMV; the amended requirement now states that all images must be retrievable by the DMV if properly requested by law enforcement.
DHS has also added a provision that allows States to record information from birth certificates in lieu of retaining an image or copy if State law permits and if requested by the applicant. This will protect medical and other personal information not relevant to REAL ID.
Section 37.33 DMV Databases
DHS changed the title of this section from "Database connectivity with other States" to "DMV Databases." This section has also been amended to require that the DMV database allow capture of the full legal name and any other name recorded under § 37.11(c)(2) without truncation.
Section 37.41 Security Plan
DHS amended this section to clarify that each State submit a single security plan to address DMV facilities involved in the enrollment, issuance, manufacturing and production of driver's licenses and identification cards, rather than all State DMV driver's license/identification facilities as stated in the NPRM. This change is in response to comments that it does not enhance overall security to require every DMV office (which could be interpreted to include administrative offices) to submit a security plan and individual risk assessments.
Furthermore, in response to comments asking for clarification, § 37.41(b)(iii) now provides that the release and use of personal information must, at a minimum, be consistent with the Driver's Privacy Protection Act, 18 U.S.C. 2721 et seq.
This section of the final rule now indicates that the fraudulent document training requirement would be satisfied by a fraudulent document training program approved by AAMVA. DHS has also deleted the requirements that the security plan contain procedures to revoke and confiscate driver's licenses or identification cards fraudulently issued in another State, in response to comments that States have no authority to carry out such a requirement.
A new section has been added to § 37.41 to state that the Security Plans contain Sensitive Security Information and must be handled and protected in accordance with 49 CFR Part 1520.
Section 37.43 Physical Security of DMV Production Facilities
This section is unchanged.
Section 37.45 Background Checks for Covered Employees
Section 37.45(d) has been amended to recognize background checks that are similar to those required under § 37.45 and that were conducted on or after May 11, 2006, and that the DMV does not have to check references from prior employers for individuals that have been working with the DMV for at least two consecutive years prior to the Act taking effect. (The Act becomes effective on May 11, 2008). Therefore DMVs would not have to seek references from prior employers of employees who have been with the DMV c onsecutively from May 11, 2006 to May 11, 2008. The final rule clarifies that the waiver provision in § 37.45(b)(1)(v) allows a waiver of requirements for the determination of arrest status and includes circumstances where the individual has been arrested, but no final disposition on the matter has been reached.
In response to comments, DHS deleted the requirement that States must conduct a financial history check as part of the background check of covered employees.
Section 37.45 now requires that the State confirm the employment eligibility of the covered employee, rather than lawful status through SAVE, and recommends that the State participate in the USCIS E-Verify program (or any successor program) for employment eligibility verification.
Section 37.51 Compliance--General Requirements
DHS has modified this section in response to many comments. DHS recognizes that States will be unable to meet all the requirements of this rule beginning on January 1, 2010, the day after the termination of the extension period proposed by DHS in the NPRM. For example, requirements for State verification of source documents depend upon the deployment of electronic systems that have not yet been developed. Therefore, DHS proposes that States meeting key benchmarks for progress toward compliance with the REAL ID Act be granted an additional extension until no later than May 10, 2011 to meet all the requirements of Subparts A through D. States seeking a second extension would submit a Material Compliance Checklist to DHS no later than October 11, 2009, documenting their progress in meeting the benchmark requirements. States meeting these benchmarks would also be able to issue driver's licenses and identification cards bearing security markings indicating that the license was issued in conformity with REAL ID sta ndards.
Section 37.55 State Certification Documentation
The title of the section was amended to reflect the changes to the certification process discussed above. The required contents of the State certification have been amended in the final rule to delete the requirement for a copy of all statutes, regulations, and administrative procedures and practices related to the State's implementation program. DHS has amended the requirement that a State's governor certify compliance to read that a State's highest level official with oversight responsibility over the DMV s certify compliance. In addition, the frequency of certification reporting has been modified to be similar to the three-year intervals required by several Department of Transportation programs. Thus, in accordance, § 37.57 "Annual State Certifications" has been removed.
Section 37.59 DHS Reviews of State Compliance
DHS has rephrased the information requirement in the section to require any reasonable information pertinent to determining compliance with this part as requested by DHS. Also, DHS must now provide written notice to the State in advance of an inspection visit. The final rule provides that, in the event of a DHS preliminary determination that the State has not submitted a complete certification or that the State does not meet one or more of the minimum standards for compliance under this part, DHS will infor m the State of the preliminary determination within forty-five days. Finally, this section now includes DHS procedures for reviewing a Material Compliance Checklist as part of the procedure for granting States an additional extension until no later than May 10, 2011.
Section 37.61 Results of Compliance Determination
The final rule now states that DHS will determine that a State is not in compliance when it fails to submit the certification as prescribed or to request an extension as prescribed in the subpart.
Section 37.63 Extension of Deadline
The NPRM was not clear on the timing of submissions for requests for extension. Although proposed regulatory text stated that requests for extension must be submitted no later than October 1, 2007; the preamble requested submission of compliance plans and strongly encouraged "States to communicate their intent to certify compliance or request an extension by October 1, 2007." We clarify the deadline for submission of requests for extension in the final rule, providing that requests for extension must be sub mitted to DHS "no later than March 31, 2008." DHS will notify a State of its acceptance of the extension within forty-five days of receipt.
This section now includes the procedure for requesting an additional extension until no later than May 10, 2011. States seeking an additional extension shall submit a Material Compliance Checklist to DHS no later than October 11, 2009, documenting the State's progress in meeting certain benchmarks. States meeting the benchmarks included in this checklist will be granted a second extension until no later than May 10, 2011.
Section 37.65 Effect of Failure To Comply With This Part
DHS amended this section to provide that REAL ID driver's licenses and identification cards issued by the State during the term of any extension will continue to be acceptable for official purposes until the card expires.
Section 37.67 Non-REAL ID Driver's Licenses and Identification Cards
This section was renumbered to § 37.71, consistent with the structure of the Part. The section was also renamed to "Driver's licenses and identification cards issued under § 202(d)(11) of the REAL ID Act" to further clarify that DHS interprets this section of the Act to apply only to States that certify and DHS determines are compliant with the REAL ID Act, as defined by these regulations, and that choose to also issue driver's licenses and identification cards under the Act that are otherwise not accepta ble by Federal agencies for official purposes.
IV. Discussion of Comments
During the sixty-day comment period, DHS received over 21,000 comments on the NPRM. DHS received numerous requests to extend the comment period past the sixty days provided in the NPRM. DHS has carefully considered the comments and determined not to extend the comment period for the NPRM. As discussed above, under the REAL ID Act, Federal agencies will be prohibited from accepting driver's licenses or other State-issued identification cards from States that are not in compliance with the requirements of the Act by May 11, 2008, less than one year away. Given the complexity of the Act's requirements and these implementing regulations, extending the comment period beyond sixty days would serve only to delay issuance of this final rule and deprive States of the information necessary for their DMVs to begin preparations and adjust their operations consistent with the requirements of this final rule and the Act. Further, in addition to the 60-day comment period, DHS provided several opportunities for additional pu blic participation through such events as the May 1, 2007, public meeting in Davis, California (with participation also available via webcast); and meetings with stakeholders. We determined that the 60-day comment period and additional DHS outreach during the comment period provided adequate time for the public to consider and provide meaningful comment on the NPRM.
We also received several comments that were filed well past May 8, 2007, the close of the comment period. As discussed above, given the upcoming May 11, 2008, compliance deadline and the adequacy of the sixty-day comment period and public outreach, DHS has not accepted or considered comments that were filed after the May 8, 2007 close of the comment period. Because DHS did not extend the comment period, allowing some commenters to file late--or to provide late filed supplements to their comments--would disa dvantage those commenters who did not file late and would also have preferred additional time to file comments or amend the comments that were filed within the deadline. Comments that were timely filed, but not processed immediately by DHS due to technical errors by the submitter or DHS, are not considered to have been filed late and were considered in the development of this final rule.
A. General Comments on the Proposed Regulation
1. General Comments in Support of the Proposed Regulation
Comments: Several commenters expressed general support for the proposed rule. Commenters wrote that the REAL ID program will provide a measurable and positive impact on a wide range of security matters, and that the cost estimates, methods of implementation, and the projected time frames were reasonable. One commenter wrote that REAL ID correctly specified a set of performance standards rather than listing static prescriptive standards, and that enhanced document security is essential to combat terrorists, can help improve transportation safety, and can combat identity theft or other criminal acts.
Response: DHS agrees with these commenters, and believes that States that fully implement these rules will improve national security by improving the security and reliability of a key document carried by many Americans. Both the REAL ID Act and the REAL ID regulations focus on improving the reliability of State-issued driver's licenses and identification cards and decreasing the likelihood that an individual can fraudulently obtain an identity document or alter a legitimate identity document to create a fal se identity. The availability of better and more reliable security documents means that government and law enforcement officials have a greater opportunity to prevent terrorists and other unauthorized persons from gaining access to commercial airplanes and Federal facilities.2. General Comments in Opposition to the Proposed Regulation
Comment: Many commenters expressed general opposition to the REAL ID program. General comments included the following: DHS misinterpreted the REAL ID Act, the proposed rule is incomplete and problematic, adequate studies have not been conducted to determine that the program will work, the rule's requirements will lead to degradation in the level of State DMV customer service, the rule would harm citizens' privacy, and the rule requires additional Federal funding. Many commenters wrote that the rule fails to provide appropriate security, utility, or privacy and one commenter said the rule "is inadequate to meet the intent of the REAL ID Act and the needs of the states and citizens of the U.S." Another commenter wrote that DHS "could have done a better job of creating a regulatory framework that does not increase the risk of identity theft nor enable widespread governmental and commercial tracking of U.S. residents." Several commenters requested that DHS provide a revised NPRM reflecting comments and that DHS a ccept at least a second round of comments before issuing a final rule. Other commenters asked that public advocacy groups and other stakeholders be consulted to ensure the final rule properly considers citizen rights and interests. Several commenters, including States, wrote that a secure identity credential could increase fraud, identity theft, and other forms of misuse, including the ability to access confidential information, and that many security leaks would occur. Two commenters said the Federal gover nment has an existing program, the passport program, that does everything the REAL ID is supposed to accomplish, and that it makes sense to expand the passport program rather than revamping State driver's license requirements. Other commenters wrote that an improved system of Social Security number verification is a more efficient, less intrusive system for work status verification and driver's license eligibility.
Response: DHS appreciates the many comments received; however, DHS respectfully disagrees with the comments generally opposing the REAL ID program. DHS believes that both DMVs and the American public will welcome having a more secure and reliable form of identification, and that DMVs will take the necessary steps to ensure that their customer service efforts are not degraded as a result of the regulations. DHS strongly disagrees with the proposition that the rules will lead to an increase in identity theft, harm privacy, or enable the government to track individuals in their daily lives. To the contrary, the rules create an environment where it is far less likely that an individual can fraudulently obtain a State-issued identity document using another person's identity and identity documents and minimizes the possibility that one individual can obtain identification documents in multiple names and identities. The privacy interests of driver's license and identification card applicants are strengthened, rather than weakened, since this rule requires all States to protect the personally identifiable information that DMVs collect from applicants. Establishing minimum standards for States to issue more secure licenses does not confer any ability on the government to monitor or track anyone, although it does improve the ability of the government and private sector parties to rely on the identity document an individual presents.
DHS does not believe that additional rounds of comments on the requirements proposed in the NPRM are necessary before issuing this rule. Some 21,000 comments were filed in the docket covering the full range of issues. In addition, DHS hosted a town hall meeting in California to hear directly from the public and reconstituted the groups that participated in the 2005 Department of Transportation-led negotiated rulemaking committee in order to gather input and comments directly from those groups.
DHS does not agree that a passport issued by the Department of State fulfills the same function as a State-issued driver's license. Individuals who have no intention of leaving the United States do not need to obtain a passport in order to enter another country or reenter the United States. Any of these same individuals who desire to drive would need to obtain a driver's license.
DHS also disagrees with the comment that a Social Security number (SSN) is an adequate substitute for the statutory requirement that an individual have lawful status in the United States. Mere possession of a SSN cannot replace the statutory requirement that States verify an individual's lawful status in the United States. There are individuals who are no longer lawfully present in the United States who have SSNs.3. Cost Considerations
Comment: Numerous commenters questioned the anticipated costs of the REAL ID requirements. Specifically, commenters wrote that the costs of the REAL ID program would be "huge," "exorbitant," "significant," or "excessive." Some States wrote that estimated costs for implementing REAL ID were equal to or substantially
exceeded their current operating budgets for motor vehicle licensing. One State estimated its costs for verification and re-verification will be over $100 million in the first year; another State estimated its costs would be $19.5 million for initial expenses and $9 million a year for ongoing expenses. Another commenter suggested that the burden would be particularly heavy on small States, which would be overwhelmed by the volume of queries they would receive each day from States with large populations and which would not have funds to improve their systems to handle the query volume. Commenters identified several features of REAL ID implementation that they believed would be the most costly, including verification requirements; the requirements for issuing driver's license and identification card renewals; background checks for State personnel issuing cards; the need to upgrade computer systems; hiring additional staff; and renegotiation of existing contracts.
Response: DHS has examined both the budgetary impacts and economic impacts of the proposed rule and understands the significance of these costs for States. DHS has also reviewed various options that would reduce the disproportionate burden upon small states but have not found a feasible alternative that would provide the same benefits but at a lower cost.
DHS has also reviewed many of the high-cost options of the proposed rule and has significantly reduced both the infrastructure costs and the costs of reenrollment for States. As stated in other parts of this document, DHS agrees with an age-based approach and concludes that there is a higher risk of individuals under age fifty obtaining fraudulent identification than there is for those over this age limit.
Comment: Commenters wrote that DHS had overestimated the benefits of REAL ID and that the potential benefits did not justify the high cost of implementation. One commenter stated that cost estimates are low given that DHS has "no clear idea of how to implement the REAL ID Act's dictates and has made some unrealistic calculations."
Response: DHS understands that the benefits of the proposed rule on REAL ID are difficult to quantify and that there are some imperfections in the methodology. Commenters stated that DHS has overestimated the benefits when in fact it developed a "break-even analysis." DHS estimated that if the requirements of the proposed rule lowered by 0.061% per year the annual probability of a terrorist attack that caused both immediate and longer run impacts then the quantified benefits of the REAL ID regulation would be positive.
This "break-even" analysis was based on the rule having an impact on the annual probability of the U.S. experiencing 9/11 type attacks in the ten years following the issuance of the rule. DHS believes that the probability and consequences of a successful terrorist attack cannot be determined for the purposes of this analysis. However, it was not necessary to assume that there was (or is) a probability of being attacked in any particular year. Instead, the analysis examined the reduction in the probability o f an attack so that the expected cost of REAL ID equaled the expected value of the benefits. Since it is extremely difficult to predict the probability and consequences of a hypothetical terrorist attack, DHS asked what impact would the proposed and final rule have to have on the annual probability of experiencing a 9/11 type of attack in order for the final rule to have positive quantified net benefits. The analysis does not assume that the United States will necessarily experience this type of attack, but rather is attempting to provide the best available information to the public on the impacts of this rule.
Comment: Many commenters wrote that the cost of REAL ID would be borne initially by the States, and then passed on to those States' citizens in the form of higher fees for driver's licenses, higher taxes, or reduced services. Commenters wrote that higher fees would be paid by persons who need driver's licenses but who do not fly, enter Federal buildings, or go into nuclear facilities. Another commenter wrote that citizens would incur large costs to acquire the source documents needed to obtain REAL ID cards . One commenter wrote that the costs of REAL ID would drain resources from other vital public services. One commenter wrote lost income would be borne by commercial drivers and motor carriers domiciled in non-compliant States, and that the costs to commercial drivers to obtain new REAL ID commercial drivers licenses may result in reduced trucking services to Federal facilities. One commenter wrote that the DHS cost estimate of $7.88 billion over ten years would amount to a cost of $96.25 per REAL ID holder.
Response: DHS acknowledges the concerns of the individuals who commented that this rule will impose significant costs and believes that a large portion of the costs will be passed on from the States to the States' REAL ID applicants in the form of higher fees for driver's licenses. But each citizen in the United States, whether he or she has a driver's license or not will be receiving security benefits as a result of this rulemaking. For example, the 9/11 Commission believes that acceptable forms of identif ication will help ensure that people are properly identified. The Commission's report, which informed the basis for the REAL ID Act of 2005 said that: "At many entry points to vulnerable facilities, including gates for boarding aircraft, sources of identification are the last opportunity to ensure that people are who they say they are and to check whether they are terrorists."
DHS agrees that some applicants might incur added costs to acquire the source documents needed to obtain REAL ID cards but, overall, DHS has attempted to minimize the potential added costs while remaining true to the intent of the Act. People are being provided ample time to acquire any source documents that they might not have so the potential added costs will be lessened should they take advantage of this flexibility. Consequently, the added costs are expected to be small.
With regards to commercial drivers and motor carriers domiciled in non-compliant States, the commenter did not provide any useful cost data that could be included in the regulatory analysis. This was probably due to the fact that it is impossible to estimate at this time how many states would choose to not participate.
Comment: Several States wrote that the costs of REAL ID would divert money from other homeland security projects whether or not the States diverted a portion of the Homeland Security Grant Program funding, as DHS would allow them to do. States that raised the possibility of diverting twenty percent of their Homeland Security Grant funds wrote that a diversion would be impossible immediately as funds were already committed to other uses. One commenter called the use of DHS grants for REAL ID "at best, window dressing," and another commenter called it "an empty hole." An additional commenter identified training and equipment for rescue and first responder personnel as areas likely to suffer reduced funding. One commenter wrote that if REAL ID security measures ultimately have no effect, those spent dollars would have been spent more effectively in maintaining and strengthening proven security measures.
Response: DHS believes that some commenters may have misunderstood DHS's announcement about the use of State Homeland Security Grant Program
(SHSGP) funds for REAL ID purposes. DHS did not suggest that SHSGP funds would replace appropriated monies from Congress to help the States implement the rules and comply with the REAL ID Act. DHS and the Administration are continuing to work with Congress on the availability of additional funding to the States for these purposes.
All homeland security funding decisions require trade-offs among various competing priorities given the available funding. The 9/11 Commission Report noted that fraudulently-obtained identification is equivalent to a weapon in the hands of a terrorist.4. Unfunded Mandate Reform Act
Comment: Numerous commenters wrote that REAL ID is an unfunded mandate. The American Association of Motor Vehicle Administrators (AAMVA) wrote that past and proposed Federal budget submissions had fallen far short of securing necessary funding for both the Federal government and the States to implement REAL ID. More than twenty-seven States called for Federal funding of the REAL ID program. Two States suggested that Federal funding for REAL ID not be in the form of grants for which a State would have to sub mit applications, but rather be either a block grant or set-aside match for State funds. AAMVA wrote that because eighty percent of a SHSGP funding must be passed along to local governments, in fact a much smaller percentage of available DHS funding will be available to each State for REAL ID implementation.
Response: As discussed elsewhere in this preamble, DHS is adopting a more flexible approach for States to implement the requirements of REAL ID, including a second extension period and age-based enrollment. This approach will permit States to spread out implementation costs over a greater period of time. Congress has appropriated $40,000,000 in grant funding to the States. These grants will be made available to the States through both categorical and competitive grants. In addition, States may utilize up to 20% of their SHSGP funding. This combination of funding, flexibility and phasing provides the relief that States and other commenters are seeking.5. Privacy Concerns
Comments: Several States and many other commenters expressed concerns about threats to the privacy of State residents who apply for REAL ID cards once the requirements are implemented. Commenters also expressed concern for the privacy of DMV employees who would be subject to background screening. Some commenters wrote that any privacy requirements must adhere to those of the Driver Privacy Protection Act and applicable State laws. Other commenters urged DHS to encourage States to meet agreed-upon privacy an d security requirements. Another commenter asked that privacy and acceptable use policies address State DMV information systems, equipment, employees, and contractors. One commenter wrote that the regulations omit crucial privacy and security protections to the point that the proposed rule conflicts with Federal privacy and security principles. Several commenters were concerned about privacy protection for immigrants, ethnic minorities, and others who might be discriminated against based on use of the REAL ID.
Response: DHS understands that commenters have many concerns that implementation of the REAL ID Act may impact the privacy of driver's license and identification card holders and their personally identifiable information. DHS recognizes, however, the importance of privacy protection and has sought to address privacy in a comprehensive manner. First, the final rule requires a minimum of information to be collected by the States to verify identity for issuance of a license or identification card and a minimum of information to be printed on the card and in the machine readable zone.
Second, the final rule requires the States to file, as part of the certification process, a security plan that explains how the State will protect the personally identifiable information collected, stored, and maintained in DMV records or information systems including a privacy policy.
In addition to this rulemaking, DHS intends to issue a set of Privacy and Security Best Practices that are built on the Fair Information Principles and Federal Information Security Management Act (FISMA) standards to help guide the States in protecting the information collected, stored, and maintained pursuant to the REAL ID Act.
DHS plans to include the following elements in its Privacy and Security Best Practices: Issuing a clear and understandable privacy policy to each card holder; providing individual access and correction rights for card holders; specifying the purpose for collecting personally identifiable information in the privacy policy and limitation of the use to those purposes; limiting the information collected for those purposes; limiting disclosure of the information except to a governmental agency engaged in the per formance of official responsibilities pertaining to law enforcement, the verification of personal identity, or highway and motor vehicle safety, or a third party as authorized under the Driver's Privacy Protection Act; requiring data quality standards and security safeguards to protect against loss or unauthorized access, destruction, misuse, modification, or disclosure; performing a Privacy Impact Assessment (PIA) to identify and analyze how personally identifiable information related to implementation of the REAL ID Act is collected, used, maintained, and protected; and establishing accountability for compliance with the State's privacy and security policies to ensure that these best practices are fully implemented.
Finally, DHS recognizes that States will also be guided by their own privacy laws, which may provide greater protections and are not preempted by the REAL ID Act.6. Concerns With the REAL ID Act Itself
Comments: Many commenters wrote that the REAL ID Act has deficiencies that the regulatory process cannot cure. One State asked DHS to work with States to identify problematic statutory components and to seek Congressional amendments to facilitate a "rational and funded approach for implementation." Some commenters wrote that the rule sets no clear minimum standards for States to follow. A commenter wrote that there were no hearings or Senate floor debate on the REAL ID Act; another commenter wrote that DHS held only one town hall meeting before the comment period ended. One commenter asserted that the development process did not recognize its tribal entitlement to meaningful consultation regarding the REAL ID regulations.
Response: DHS was charged to issue regulations to implement the law that Congress enacted. DHS held extensive consultations with the States during the development of the NPRM and during the public comment period, and the Town Hall meeting held in California during the comment period was published in the Federal Register and available via the Web to a national audience. Over 21,000 comments were filed in the docket. While additional individuals may have preferred to express their comments orally at town hall meetings, DHS believes that the scope and breadth of the comments filed adequately informed DHS on the issues of concern to the commenters. DHS does not believe that the tribal consultation obligations required by Executive Order 13175 were triggered in this rulemaking, as this final rule will not have a
substantial direct effect on one or more Indian tribes and will not impose substantial direct compliance costs on Indian tribal governments. Further, tribal governments will not be substantially affected as tribal members are licensed through State agencies.7. DHS Acting Outside the Scope of Its Authority
Comment: Several commenters wrote that DHS is acting outside the scope of its authority, and cited several examples, including requiring States to conduct various document verifications, requiring States to implement motor vehicle facility security plans, and requiring States to revoke licenses collected by other States. Two States commented that requiring background checks for employees other than those engaged in manufacturing REAL ID cards was outside the scope of authority and interferes with employee c ollectively bargained rights. Several commenters wrote that the REAL ID Act constitutes a delegation of licensing authority to DHS. Another commenter wrote that Congress only intended to exclude illegal aliens from eligibility to obtain a REAL ID.
Response: The REAL ID Act provides the Secretary of Homeland Security with authority to issue regulations necessary to implement the requirements of the Act. DHS understands that there is a balance between Executive discretion in interpreting the REAL ID Act through regulation, while also respecting the State's autonomy to govern an inherently State function--the driver's license issuance process. DHS has attempted to preserve State autonomy wherever possible, while remaining consistent with the Act, and be lieves these regulations represent a logical interpretation of the Act and Congressional intent.8. Constitutional Concerns
Comment: Several commenters wrote that requiring a REAL ID for access to Federal courts may raise Constitutional issues for litigants, jurors, attorneys, witnesses, media, and the public. Another commenter wrote that requiring REAL ID for accessing Federal ports will have consequences for intrastate licensees attempting to conduct business.
Response: DHS does not believe that the REAL ID Act or the implementing regulations will impede the public's Constitutional rights. Once REAL ID is in effect, an individual presenting a driver's license to access a Federal courthouse must use a REAL ID driver's license to do so. However, that individual may present other documents, or may not be required to present identification at all, depending on the courthouse's pre-existing identification policies.
Comment: Several commenters wrote that the REAL ID rules would impermissibly commandeer and coerce State governments in service of a Federal objective and would prohibit Congress from exercising its Commerce Clause powers. One commenter wrote that courts have long recognized that licensing of drivers is a traditional State police, health, and safety function, and under the Tenth Amendment, such State authority generally is not subject to encroachment by the Federal government.
Response: DHS recognizes both the important national interest in secure identity documents and the Federalism implications of the policies which underpin this rule. Accordingly, DHS has welcomed and encouraged State participation in this process and, where possible, drafted these rules in such a way as to maximize State discretion. Where the exigencies of national security and the need to prevent identity fraud have militated in favor of a uniform national standard (e.g., baseline security features on ident ity cards and background check requirements), DHS has, as reflected above, consulted with States in order to ensure that the uniform standards prescribed could be attained by the States and would reflect the accumulated security experience of State motor vehicles administrations.
Comment: Some commenters wrote that the REAL ID Act and regulations violate the Constitutional right to travel freely from one State to another by denying citizens in non-compliant States the right to board any plane, interstate bus, or Amtrak train. Other commenters wrote that government initiatives conditioning the ability to travel upon the "surrender of privacy rights" require particular scrutiny. One commenter wrote that the situation is acute for residents of Hawaii or Alaska who often have no choice but to travel via Federally-regulated modes of travel.
Response: DHS does not agree that the REAL ID Act will hinder individuals' rights to interstate travel. The REAL ID Act states that a Federal agency may not accept State driver's licenses or identification cards for official purposes unless a State is meeting the requirements of the Act. At this time, the definition of "official purposes" includes boarding Federally-regulated commercial aircraft; no other form of transportation is included. Moreover, travelers will be able to use identification other than a REAL ID driver's license to board an aircraft. While Federally-regulated commercial aircraft are a mode of transportation, the Act only prohibit Federal agencies from accepting a non-REAL ID license or card where a State-issued driver's license is presented by the individual. Where individuals are allowed to board aircraft or enter Federal facilities with documents other than a State-issued driver's license or identification (such as a passport or military identification card), neither the Act nor these ru les change those processes and procedures. Further, an individual with a State-issued non-compliant driver's license or identification card may travel interstate or intrastate in a commercial motor carrier, Amtrak train, ship, individual automobile, or any other mode of transport aside from Federally-regulated commercial aircraft. These transportation options illustrate that individuals' rights to travel are not substantially impeded.
Comment: Several commenters and States expressed concern with a State's lack of authority to request or demand that other jurisdictions correct erroneous records about individuals and that there is no easily available process for resolving errors. A number of commenters wrote that the lack of a process for correcting errors in the REAL ID Act violates both procedural and substantive due process under the Fifth and Fourteenth Amendments. One commenter expressed concern with the requirements that licensing au thorities maintain for ten years the name and photograph of individuals denied licenses because of suspicion of attempting to obtain a fraudulent license.
Response: DHS recognizes that the provision of redress is an important element of any credentialing program. Applicants need a process by which they can access their records, correct errors, and obtain due process if denied a card. States already provide such a redress process for driver's license applicants. Generally, State DMVs direct applicants to the appropriate Federal agency, SSA, to resolve SSN verification issues or to USCIS to resolve immigration status verification issues. SSA and USCIS have redr ess programs in place to assist individuals whose records are incomplete or inaccurate. State-to-State record checks are also done routinely, and when an applicant needs to access his or her out-of-State DMV record, the applicant must make the request directly to the State DMV. DHS will work with the States to inform the public of their ability to access and correct DMV records as well as records held in the various Federal data verification systems used to implement this rule.
The ten-year retention period proposed in the NPRM for the photograph and identity of individuals denied a license has been reduced in the final rule to five years. This limited retention is necessary to enable State DMVs to reduce the incidence of individuals who shop among DMVs until one issues a license.
Comment: Three commenters wrote that there is no due process in instructing DMVs to refer an applicant to the local USCIS office when there is a non-match through SAVE. There may be no local USCIS office, and a non-citizen has no straightforward route to review and correct their records and USCIS lacks jurisdiction to correct errors made by different immigration agencies. One commenter wrote that only through the FOIA process can an immigrant gain access to his or her immigration records, and that tens of t housands of FOIA requests are currently pending.
Response: DHS disagrees that there is a lack of effective due process or redress when there is a non-match through SAVE. An individual who believes that information about him or her in SAVE is inaccurate, can schedule an appointment online with USCIS at
and be assigned an appointment at the appropriate USCIS
office based on the individual's residential zip code. These appointments afford an opportunity to meet with an Immigration Officer face-to-face to resolve any non-asylum related issues relating to a current or pending immigration case. Minimal information, including an Alien Registration Number or Receipt Number is required to schedule an appointment.
Comment: Several commenters wrote that REAL ID has the potential for fostering discrimination, particularly against non-citizens. One commenter urged DHS to ensure REAL ID-compliant cards are all accepted equally, without "geographic discrimination." One commenter wrote that REAL ID will cause discrimination against U.S. citizens who "look" or "sound" foreign. This commenter wrote that DMV employees must make subtle judgments about who is a citizen. Another commenter wrote that non-citizens and foreign nati onals who are in the United States for work or study will be singled out and that renewing a document will be difficult because DMV employees will not understand the complexities of immigration law. One commenter urged DHS to promulgate rules prohibiting discriminatory behavior and creating penalties for DMV staff who discriminate against individuals.
Response: DHS believes that the States will take adequate measures to prevent discrimination and is unable to create private rights of action for the behavior of DMV employees. DHS disagrees that citizens will be treated differently based on their "looks" or "sounds" since all persons seeking to obtain a REAL ID-compliant driver's license or identification card have to establish their identity, date of birth, and lawful status in the United States. Furthermore, State DMVs already work with immigration docum ents and questions of citizenship and immigration status under their applicable State laws and have developed increasing familiarity with this subject already, without evidence of discriminatory practices in so doing.9. REAL ID Will Not Make the Nation Safer
Comment: Commenters wrote that terrorist intentions cannot be predicted based on identification and that REAL ID will not prevent determined bad actors from using a compliant REAL ID to gain access to Federal buildings, nuclear facilities, and aircraft. A number of commenters wrote that it is not clear whether REAL ID will enhance the nation's security or create new opportunities for those seeking to exploit the nation's security. Commenters also wrote that centralization of personal data would create a gre ater security risk and may raise demand and value of a counterfeit document. Some commenters wrote that the proposed regulations would not have prevented the 9/11 terror attacks since all but one of the hijackers could still have obtained a State driver's license. One commenter said that REAL ID is predicated on a flawed belief that only "outsiders" intend to harm the United States, yet U.S. citizen "insiders" have committed terrorist acts.
Response: The commenters are correct that the REAL ID rules cannot completely eliminate the possibility that an individual will commit an act of terrorism inside the United States. However, by improving the security and reliability of State-issued identification documents, the rules substantially increase the ability of the government and law enforcement to identify with greater accuracy an individual at a check point or screening opportunity. Furthermore, the rules minimize the possibility of an individual possessing multiple documents, as some of the 9/11 terrorists did. The 9/11 Commission and Congress have concluded that this ability may prevent or deter future acts of terrorism.
It is incorrect to assume that the REAL ID rules could have had no impact on the 9/11 terror attack. As described in great detail in the 9/11 Commission Report, the ability of the terrorists to easily obtain multiple, legitimate identity documents facilitated their ability to move about the country and to board the ill-fated aircraft with minimal scrutiny. Under this final rule, it will be significantly more difficult for an individual to use a false name or provide fraudulent documents to obtain an identif ication that can be used for purposes of boarding a commercial airplane. Therefore, the final rule makes it less likely that a terrorist could circumvent watch-list screening processes and security procedures (as upgraded or developed post-9/11) and board a commercial airplane.
Further, several of the terrorists no longer had lawful status in the United States. Under the REAL ID Act and this final rule, those individuals would now be unable to obtain REAL ID driver's licenses or would only obtain a temporary driver's license that clearly indicates on its face an expiration date tied to the expiration of the holder's status.10. REAL ID Will Result in Persons Driving Without Licenses and Auto Insurance
Comment: Several commenters wrote that REAL ID, and the weeks it can take to collect documents needed to replace lost or stolen licenses, would result in illegal immigrants driving without a license and auto insurance, and this would present health and safety risks on the roadways.
Response: DHS does not believe that the implementation of the REAL ID requirements will result in persons, particularly illegal aliens, driving without a license and auto insurance any more than may already be occurring. Most States already require the collection and submission of particular documents in order to replace lost and stolen licenses.11. REAL ID Will Place a Heavy Burden on State DMVs
Comment: Many States and AAMVA wrote that if States are to maintain their present levels of service while incorporating REAL ID, they will need to hire additional employees, increase service hours, expand or increase facilities to accommodate customer volume, purchase additional equipment to support personnel, create and implement public education campaigns to inform customers, and anticipate and handle increases in customer inquiries. The commenters recommended several DHS actions, including coordinating b etween DHS and DOT's Federal Motor Carrier Safety Administration (FMCSA) to reassess their approach to funding REAL ID requirements; prohibiting Federal agencies from charging transaction fees for verification; coordinating among DMVs, the National Association for Public Health Statistics and Information Systems (NAPHSIS), and State vital record agencies to provide reliable data and acceptable fees; requiring States to employ electronic verification systems only as they become available; and consolidating a nd synchronizing system development schedules. Other commenters recommended changes to the enrollment and renewal processes, including allowing for waivers of verification requirements for certain categories of persons whose identification had already been vetted by the Federal government, allowing transfers of authorization from State to State of persons with valid REAL ID identification cards, and exempting certain segments of the population from REAL ID requirements.
Response: Based on these comments, DHS is taking several measures to reduce the impact of the rule. First, States meeting specific DHS benchmarks for progress toward REAL ID compliance will qualify for additional extensions until no later than May 10, 2011. Second, DHS is adopting an age-based approach to REAL ID implementation. The rule requires individuals born after December 1, 1964 to enroll and receive REAL ID cards prior to December 1, 2014, in order for those cards to be accepted for official purpose s. Individuals aged fifty or older on December 1, 2014 will not be required to enroll until December 1, 2017. After December 1, 2017, all individuals will have to possess REAL ID cards in order for those cards to be accepted for official purposes. This timeline will substantially reduce the impact of REAL ID on DMV operations and budgets.
Comment: Many States and commenters wrote that REAL ID will significantly increase service times at DMVs, resulting in a degradation of service. AAMVA estimated that DMV workloads will increase by 132 percent and that transaction times for license renewals will double. One commenter wrote that central issuance would impose considerable burdens on citizens of rural, low-density states. Several States wrote that the inability to use the Internet would impose a significant burden on DMV operations; one State w rote that the elimination of telephone and mail-in address changes would force approximately 400,000 additional persons into its DMV offices. Commenters also wrote that State DMVs will be required to add new staffing and infrastructure and, at the same time, replace or reconfigure their existing offices. States commented that hundreds of new employees will need to be hired and new costs incurred to obtain fingerprinting and background and financial checks of DMV staff. A few States noted that they will have to renegotiate contracts for services such as card printing or purchase new printers.
Response: DHS understands the commenters' concerns and agrees that forcing the entire driver's license and identification card holder population into a compressed timeframe would likely result in increased DMV service times and a general degradation of services. The final rule permits, for example, additional time for enrollment, remote license transaction processing, and eliminates the necessity of in-person DMV visits for address changes. Further, there is no requirement for financial background checks or central issuance of licenses, although a number of States have adopted central issuance as a best practice.
Comment: Several commenters wrote that State DMV officials will require extensive training in recognizing the many types of immigration documents and statuses that applicants may present. One commenter wrote that REAL ID would change State DMVs "into a wide-ranging enforcement agent of the Federal government in areas from immigration rules to Social Security fraud." Commenters also wrote that State DMVs will be required to add new staffing and infrastructure and, at the same time, replace or reconfigure the ir existing offices. A few States noted that they will have to renegotiate contracts for services such as card printing or purchase new printers.
Response: DHS disagrees that the REAL ID Act or its implementing rules would result in DMV employees acting as enforcement agents. The rules require that the DMV issue compliant licenses only to individuals lawfully present in the United States and whose Social Security Number can be verified with the Social Security Administration. DHS also believes that the rules simplify the handling of immigration-related issues, which DHS concedes is a very complicated area. DMV officials are required to verify a non-c itizen's lawful status with DHS. The SAVE system administered by USCIS permits DMVs "one stop shopping" to verify an individual's lawful status in the United States. Furthermore, many States provide extensive document training to their personnel to assist in identification and authentication of valid documents. Furthermore, State DMVs already work with immigration documents and questions of immigration status under their applicable State laws and have developed increasing familiarity with this subject.
Comment: Commenters wrote that State DMVs will be required to undertake other activities that they do not currently perform. One State wrote that by some State laws, driver's licenses and State ID cards are issued by two separate government agencies. Several States said they would need to acquire new or enhanced records management systems. Other States wrote that they will have to physically rearrange their facilities to comply with the REAL ID requirement to maintain a photo of everyone who applied for a l icense.
Response: While there may be activities DMVs may now need to perform in order to issue more secure driver's licenses and identification cards under REAL ID, Congress determined that these activities are necessary in order to ensure more secure and reliable forms of identification. Understanding that these new functions may cause strain on some DMV facilities, the final rule provides flexibility and additional time for states to implement these activities.12. Those Without Access to Required Documents
Comment: Several commenters wrote that REAL ID would impose significant burdens on low-income individuals in the form of significantly higher fees for licenses and ID cards, higher additional costs to obtain necessary underlying documents, and extra time from work, potentially involving lost wages, to apply for REAL ID cards. One commenter wrote that a consequence of these burdens could be a likely increase in counterfeited ID cards and large numbers of individuals who lack Federally-compliant identificatio n. Several commenters stated that certain groups would be unfairly affected by the requirement to produce certain documents, including foreign nationals, Native Americans, domestic violence victims, the homeless, the elderly, and military personnel. In addition, commenters described circumstances that could impede individuals' access to required documents, such as natural disasters.
Response: DHS believes that the REAL ID Act does not have a disproportionate impact on certain groups. There is no evidence that many of these groups lack the documents required to establish an individual's name, date of birth, SSN, and lawful status. Should States determine that the economically disadvantaged individuals are experiencing a hardship in obtaining the necessary documents or cannot afford the license fee established by the State, nothing in the rule precludes a State from offering the driver's license or identification card or copy of a birth certificate at a reduced cost or waiving the fee altogether. In addition, the final rule enables States to establish an exceptions process for a variety of situations and circumstances, including circumstances where a particular suite of documents are unavailable following a natural disaster.13. REAL ID Will Be a Burden to End-Users
Comment: Two commenters wrote that the responsibility for validating REAL ID cards is a government function and should not be delegated to air carriers. Instead, DHS should provide "readers," similar to those used by Immigration and Customs Enforcement, for use at airports. Two commenters requested the rule make clear that the current option regarding individuals submitting to a more extensive physical search rather than showing ID before passing through airport security will not be affected by the REAL ID Act.
Response: Neither the NPRM nor this final rule govern what documents should be accepted or procedures followed at airports and Federal facilities when an individual is unable to present a REAL ID-compliant document as his or her form of identification. DHS does not agree with the comment that validating a REAL ID is exclusively a government function, and believes that a wide variety of entities would want to validate a REAL ID document before accepting it as a valid form of identification.
Comment: Another commenter asked how end-users could continue routine functions if, after 2013, State-issued driver's licenses do not meet REAL ID standards, since REAL ID would be required for access to nuclear facilities. If a State is not in compliance or elects not to participate in the REAL ID program, access by persons with licenses from those States would be prohibited, and the ability of the plants to function could be seriously impaired. A commenter mentioned that an access authorization program su pervised by the Nuclear Regulatory Commission is already in place. One commenter wrote that while commercial nuclear power plants are licensed by the NRC, they are privately owned and operated and security is the responsibility of the owner/operator, not the Federal government; therefore, they should be exempted from the final rule requirements.
Response: Since the REAL ID Act specifically included access to a nuclear facility as an example of an "official purpose," DHS cannot simply exempt nuclear power plants from the scope of the rules. DHS agrees with the commenter that access authorization programs supervised by the Nuclear Regulatory Commission may provide sufficient safeguards concerning access to nuclear facilities. The NRC-supervised programs may set forth alternative procedures or acceptable forms of identification for persons seeking acc ess to a nuclear facility; however, if an individual is presenting a driver's license or State-issued identification card, it must be REAL ID-compliant pursuant to the REAL ID Act.
Comment: One commenter expressed concern about the impact of REAL ID on commercial truck drivers, and suggested that drivers without REAL ID identification cards would be far less valuable to carriers. One commenter wrote that motor carriers domiciled in non-compliant States would be at a severe disadvantage in finding drivers, and commercial drivers themselves will have to absorb the additional costs of REAL ID, including increased fees to obtain licenses and lost income.
Response: Any additional fees that DMVs may charge to obtain a REAL ID document will not fall disproportionately on commercial drivers. Nothing in the rules precludes companies employing commercial drivers from subsidizing the costs incurred by the drivers they employ. Furthermore, a REAL ID driver's license is not the sole document a commercial driver could use to access a Federal facility. Since a Federal facility may accept other forms of identification or establish alternative procedures to admit indivi duals with non-compliant licenses to Federal facilities, DHS does not believe that commercial driver's license holders will be disadvantaged by living in a State that chooses not to comply with the REAL ID requirements.
B. Scope, Applicability, and Definitions
Comment: Two State commenters and the AAMVA requested clarification of the terms verification, authentication, and validation. Two commenters asked for a clear definition of the term "Federal facility." One commenter wrote that it is a statutory requirement to consult with the U.S. Department of Transportation in developing new definitions for driver licensing terms. Commenters also requested clarification regarding what age individuals will be required to obtain a REAL ID. It was suggested that the age req uirement should be consistent with the age airlines require passengers to have their own identification documents. One commenter expressed the need to inform the public, in detail, how individuals will be impacted by not obtaining a REAL ID.
Response: DHS agrees that the term "verification" should be clarified. The final rule defines "verify" to include two processes: Ensuring that the source document is genuine and has not been altered and that the identity data contained on the document are valid.
DHS does not believe that the term Federal facility needs further definition and cannot predict how individuals without a REAL ID-compliant driver's license or identification card (either through their own choice or because a State does not issue compliant documents) will be impacted. DHS notes that individuals without a REAL ID-compliant document will still be able to enter Federal facilities and board commercial aircraft, and these rules cannot determine what alternative documents are acceptable for those purposes. DHS believes that each State can determine the appropriate minimum age to issue a REAL ID-compliant driver's license or identification card to its residents and does not believe that a single Federal standard is necessary in this area.1. Definition of "Official Purpose"
Comment: Two States wrote that since many Federal areas require identification, all "official purposes" must be clearly stated in the rule so that States can make informed decisions on whether to be REAL ID-compliant based upon the impact on the State budget versus the negative convenience impact on its citizens. Numerous commenters wrote that the definition of "official purpose" captures the requirements of the REAL ID Act and they are opposed to expanding the definition. Commenters stated that, should DHS decide on expanding the definition of "official purpose," it should not be done without an open comment period. One commenter wrote that DHS has arbitrarily chosen to restrict the required presentment of REAL ID-compliant documents to a much smaller set of official uses than was contemplated by Congress, and this contradicts and undermines DHS's statutory mandate to enforce Federal immigration law. One State suggested that DHS create a list of applicable Federal facilities. One commenter voiced concern ove r possible expansion of the definition to include Federally licensed firearms dealers and that residents of non-compliant States could be blocked from purchasing firearms. One commenter encouraged DHS to consider all the ways in which REAL ID could be used and not limit it to boarding of Federally-regulated commercial aircrafts, entering of Federal facilities, and nuclear power plants.
Response: DHS agrees with those commenters who noted that the proposed definition of "official purpose" is consistent with Congressional intent. DHS is neither expanding nor limiting the definition further in this rule. DHS will continue to consider additional ways in which a REAL ID license can or should be used and will implement any changes to the definition of "official purpose" or determinations regarding additional uses for REAL ID consistent with applicable laws and regulatory requirements. DHS does not agree that it must seek the approval of Congress as a prerequisite to changing the definition in the future (except of course to remove one of the three statutorily-mandated official purposes) as § 201(3) of the Act gives discretion to the Secretary of Homeland Security to determine other purposes.
DHS does not intend that a REAL ID document become a de facto national ID based on the actions of others outside of DHS to limit the99ir acceptance of an identity document to a REAL ID-compliant driver's license or identification card.
Comment: Commenters proposed other acceptable documents, including over-the-counter interim identification cards and tribal identification documents that should be accepted for official purposes. Another State noted that Canadian citizens drive to the United States and fly out of local airports and that it would benefit them economically to accept Canadian passports as identification cards for Federal purposes. AAMVA wrote that for States choosing not to comply with REAL ID, an alternate form of identificat ion is essential to ensure that commercial carriers and drivers who deliver to Federal facilities continue to have unimpeded access to these facilities and that interstate commerce is not impeded. One commenter wrote that tribal ID issues must be incorporated into the regulation at the outset. One commenter wrote that DHS's disallowing of Transportation Worker Identification Credential (TWIC) as an alternative to a REAL ID document because of "slow progress" in implementing the TWIC program will be invalid if DHS extends REAL ID implementation. The commenter suggests permitting use of TWIC because like REAL ID, TWIC also is a Federally-vetted identification card.
Response: As noted in other responses, the REAL ID rule does not control what other, if any, alternative documents can be accepted by Federal agencies where an individual seeks to present an identification document other than a State-issued driver's license or identification card (which, under the Act and this final rule, must be REAL ID-compliant).2. Other Definitions
Comment: One State asked for several amendments to the rule definitions. Specifically, the State asked that "ability to affect" be clarified to mean "direct ability to affect"; that digital photograph should read as "a digitally printed color reproduction of the face of the holder of the license or ID card"; that a definition be added for foreign passports; clarification that providing a foreign passport with a valid visa is an acceptable document for validating a REAL ID; clarification that "principal resi dence" is not a residency requirement, but merely defines principal address; and clarification that Secretary means "Secretary of the U.S. Department of Homeland Security." AAMVA suggested that the term "reissued" be amended to include "only when material changes are required such as name changes."
Response: DHS agrees that the term "principal residence" needs additional clarification and has defined the term in the rule to mean the location where a person is currently domiciled (i.e., presently resides even if at a temporary address) in conformance with the residency requirements of the State of domicile, if such requirements exist. DHS agrees with the comment regarding material changes and the rule now states that a State may conduct a remote reissuance if State procedures permit as long as there ha s been no material change in the applicant's information since prior issuance. DHS believes that the definitions of "ability to affect" and "foreign passport" do not need further clarification. DHS decided against the proposed definition of "digital photograph" since certain high-security features work best with a black and white photograph and DHS does not want to preclude States from using such technology to secure their licenses.
C. Compliance Period
Comment: Many commenters, including at least twenty States and AAMVA, wrote that the compliance period is too short and is impossible to meet. Specific reasons cited for why the compliance period is too short included the following: The compliance deadline fails to take into account the States' cycles for valid driver's licenses and identifications; systems that DMVs must use to verify documents under REAL ID either do not exist or are not operational; the compliance deadline compels States to take on the u nfunded expenses of hiring and training more staff and making significant infrastructure changes, waiting times for customers at DMVs will increase, the compliance deadline reflects a failure to understand how State legislatures work and how complex the process is for issuing State driver's licenses and identification cards, and compliance deadline leaves insufficient time for States to appropriate funds for the cost of implementing REAL ID. Commenters also wrote that States have no incentive for requesting such extensions, and several State legislatures have declined to even attempt compliance with the Act or the rule.
Response: DHS agrees with the commenters that States would be unable to fulfill the entire range of REAL ID regulatory requirements by May 11, 2008. Therefore, DHS is taking several measures to reduce the impact of the rule. First, States meeting specific DHS benchmarks for progress toward REAL ID compliance will be granted additional extensions until no later than May 10, 2011. Second, DHS is adopting an age-based approach to REAL ID enrollment and will only require individuals born after December 1, 1964 to enroll by December 1, 2014, in order to receive cards acceptable for official purposes on December 1, 2014. Thus, individuals aged fifty or older on December 1, 2014, will not be required to be enrolled until December 1, 2017. These measures will substantially reduce the impact of REAL ID enrollment on DMV operations and budgets.
DHS has chosen this approach as the most effective and expeditious way to achieve the purposes of the Act. DHS believes that this approach balances the strong national security objective of improving the reliability of identification documents presented for official purposes, including the boarding of commercial aircraft, with the needs of the States to spread out their compliance costs over a greater period of time and to obtain the necessary legal and budgetary approval from within their State to comply w ith the regulations.
Comment: Many commenters and States did not agree on the proposed compliance period and suggested additional ideas, from basing the compliance period on the natural license expiration date to extending compliance through 2018. Two commenters wrote that a six-month planning deadline after possible publication of a final rule is unrealistic, and once there are operational systems available to all jurisdictions for implementing REAL ID, States should have at least one year to connect to those systems before is suing compliant cards. Other commenters suggested delaying the full implementation date by some other term of years commensurate with State driver's license renewal periods. Another commenter wrote that State legislatures need two years after issuance of a final rule to enact enabling legislation. One State suggested a four-year compliance delay, as the State has a lack of funding; other States proposed a delay of five years following final rule publication because those States will not complete legislation and budget actions before that time. One commenter wrote that the compliance date would result in every State requesting a waiver and compressing the enrollment process from five years to something less. AAMVA suggested a ten-year compliance period, to 2018, and also recommended that DHS avoid setting the implementation period until there are systems for verification accessible in all jurisdictions.
Response: As noted above, DHS agrees that the compliance date should be extended and therefore has extended the enrollment deadline to December 1, 2014, for drivers after December 1, 1964 (that is, under age fifty), and to December 1, 2017 for all other drivers as described above.
Comment: Commenters wrote that DHS should permit States to grandfather into REAL ID compliance those individuals who have held a driver's license for ten years. Another commenter wrote that DHS should give States the flexibility to delay re-verifying certain populations so that States maximize their resources and avoid severe service disruptions. Where a State can verify customer data before issuing a license or identification document, DHS should permit States to use "alternative renewal processes" during the REAL ID enrollment period. Another commenter wrote that a State should be able to waive verification requirements for members of the military, Federal employees, and passport holders who already have been through a Federal vetting process. Another commenter proposed grandfathering in any State that can demonstrate that its process for issuing driver's licenses or identification documents is similar to REAL ID.
Response: The REAL ID Act does not authorize Federal agencies to accept non-compliant cards from specific age groups or other populations through a grandfather clause. DHS, as discussed above, recognizes the operational burden on States if they were required to reenroll all licensed drivers by the initial proposed enrollment date of May 2013. DHS has determined, based on comments received requesting deferments or exemptions for populations based on age and a statistical analysis of TSA incident report data, that an age-based enrollment would provide States with the most reasonable implementation options.
DHS has determined that, based on TSA incident report data it has reviewed, that a logical dividing point for age-based enrollment would be fifty years of age. As a result, the rule requires the States to focus first on individuals born after December 1, 1964, when issuing REAL ID cards. These individuals will be under fifty years of age on December 1, 2014. DHS has determined that deferring the REAL ID enrollment requirements until December 1, 2017, for those individuals born on or before December 1, 1964, will relieve the States of some operational burden associated with re-licensing their license holders. This provision will enable States to extend the enrollment of this lower-risk population until December 1, 2017.
This approach is based on a review of several data sets that correlated age and the propensity to commit a terrorist act and age and the likelihood to commit a criminal act.
Depending on the specific data set examined, different age cutoffs starting at the age of thirty-five would be appropriate for the REAL ID final rule. Of the several data sets that were examined, the best data set is one from TSA, because it is the only one that shows a correlation between activities occurring within TSA's purviews, an incident resulting in a arrest, the age of the individual and the use of a fraudulent identification.
For this final rule, data was collected and analyzed on the total number of TSA incidents involving the use of fraudulent identification representing the time period from October 1, 2004 through July 25, 2007. The data was then sorted and those potential incidents involving the use of a fraudulent identification (using the key words fraud, false, fake, and ID) were extracted. Each incident report was read and those incidents that were not germane to the REAL ID rulemaking were purged. Finally, DHS, using bo th the raw data as well as the calculated rates (based on the number of individuals flying), grouped the incidents into different age groups. The results were a data set that correlated one of the primary requirements of this rulemaking (the need to present an appropriate identification prior to boarding an airplane) to the use of a fraudulent identification by the age of an individual.
A total of 98 incidents of where an individual was arrested that involved the use of a fraudulent identification was included in this group. The age of the individuals arrested was available for 86 of the arrests. The weighted mean age of an individual arrested was 32 years of age with a standard deviation of 8.95 years. This means that about two-thirds of those individuals who were involved in an incident where an arrest occurred were between the ages of 23 and 41. About ninety-five percent were between th e ages of 14 and 50.
Using this data, DHS estimated the percentage of individuals who would be prevented from using a fraudulent identification (as a result of the REAL ID rule) for the age cutoffs 41, 45.5, and 50. Based upon a normal distribution, 66.7% of all individuals using a fraudulent identification would be between the ages of 23 and 41 (1 standard deviation) and 95% of all individuals would be between the ages of 41 and 50. These statistics were then used to estimate the risks associated with the age cutoffs of 41, 45 .5, and 50. An age cutoff of 41 would allow DHS to potentially prevent the likelihood of 83% of all individuals from using a fraudulent identification. But as a means of providing additional national security, the final REAL ID rule would not have prevented 17% of the individuals from using a fraudulent identification.
With a cutoff of age 50, DHS would potentially prevent the likelihood of 97% of all individuals from using fraudulent identification. But as a means of providing additional national security, the final REAL ID rule would not have prevented 3% of the individuals from using a fraudulent identification. Since the age cutoff 45.5 is the midpoint of the ages 50 and 41, DHS estimated the likelihood that REAL ID would prevent the use of a fraudulent identification, by using the averages for the age cutoffs 50 and 41 and found that an age cutoff of 45.5 would prevent the likelihood of 90% of all individuals from using a fraudulent identification. But as a means of providing additional national security, the final REAL ID rule would not have potentially prevented 10% of the individuals from using a fraudulent identification (See Table Below).
Table 1.--Risks Associated With Different Age Cutoffs
See URL to view table:
The TSA data was analyzed even further by stratifying the universe of these 86 arrests into three categories. The categories are (1) Arrests where a fraudulent identification was discovered, but the fraudulent identification was not the reason that the individual became a suspect; (2) arrests where the individual was a TSA Selectee and during the process, a fraudulent identification was discovered; and (3) arrests where the individual became a suspect because of his/her use of that identification and the us e of a fraudulent identification was the cause for the arrest. Because DHS was not able to determine a priori the characteristics of the population as a whole as to who uses a fake identification and who does not (in order to determine an appropriate age cutoff), the best that can be done is to examine the ages of those who were arrested when the use of a fraudulent identification was the cause of the arrest and compare that population to those who were arrested where a fraudulent identification was discove red at the time of the arrest but the fraudulent identification was not the reason to suspect the individual. The results show that the means of each population are not statistically different from each other. In other words, we cannot say that the samples are from different populations and we accept the null hypothesis.
Comment: One commenter wrote that the waiver process by which a State may request an extension of the compliance deadline to December 31, 2009 is acceptable, as it gives States the time they need to plan, budget, and implement the regulations. Another commenter wrote that compliance related to the verification of lawful status of aliens could be implemented by all 56 states and territories by the May 11, 2008 deadline, and that there is no rational basis to extend the specific deadline for SAVE compliance. One commenter wrote that DHS should institute a formal safe harbor so that a State may be deemed compliant if it is making reasonable progress toward implementing REAL ID. One commenter wrote that when there is a legitimate reason to grant an extension for one State, it should apply to all states. Another commenter wrote that a State's request for an extension should be deemed justified in the absence of extraordinary circumstances. One commenter wrote that DHS has demonstrated flexibility by allowing State s to delay implementation and creating a petition process for States needing more time, and the commenter encouraged DHS to continue collaborating so that States have the necessary flexibility to comply with the law.
Response: Although the above comments indicated that certain aspects of the proposed rule do not require an extended compliance period, all the commenters observed that States would be unable to meet the overall compliance deadline proposed in the NPRM. As noted earlier in this preamble, in addition to the extension proposed in the NPRM through December 31, 2009, DHS is allowing a second extension request valid until no later than May 10, 2011.
Also as noted earlier in this preamble, DHS has chosen this approach as the most effective and expeditious way to achieve the purposes of the Act. DHS believes that this approach balances the strong national security objective of improving the reliability of identification documents presented for official purposes, including the boarding of commercial aircraft, with the needs of the States to spread out their compliance costs over a greater period of time and to obtain the necessary legal and budgetary appr oval from within their State to comply with the regulations. Furthermore, because some States are uniquely situated and have taken different steps to come potentially closer to compliance with the REAL ID Act than other States, DHS does not believe that "one size fits all" when it comes to the use of the Secretary's extension authority.
D. Privacy Considerations
Comment: DHS received numerous comments regarding the need to protect the privacy of REAL ID cardholders. The comments raised a wide range of concerns including the creation of a national ID; establishment of a Federal database on all ID holders; the uses of the ID; the need to set specific standards to protect privacy, including addressing data storage, access rules, safeguarding the data, and retention period for the data; the need to provide a redress process; limiting Federal access to the data; who sho uld operate or govern the query system; and best practices for privacy protection of the data. AAMVA also commented that the States are committed to protecting privacy and that they are prepared to address privacy in their security plans and many already have such plans in place.
At least one State and several other commenters, including NASCIO, expressed concerns about the development, governance, and protection of privacy in Federal reference databases. NASCIO recommended collective State governance. Many commenters wrote that State information security requires extreme caution, given that exposing personal information in untested databases would result in great harm if a security breach occurred.
Response: DHS recognizes that protecting the privacy of REAL ID cardholders is a prerequisite to obtaining the public's trust in the REAL ID card. DHS has addressed those concerns in the final rule to the full extent of its authority by mandating protections for the personally identifiable information DMVs collect, store, and use pursuant to the REAL ID Act and its implementing regulations.1. Privacy Concerns Regarding a National ID and a Federal Database
With regard to concerns that REAL ID will create a national ID, DHS does not intend that REAL ID documents become a de facto national ID and does not support creation of a national ID. The REAL ID Act, however, does not provide authority for DHS to issue restrictions on who may or may not use REAL ID cards. DHS can only define those "official purposes" for which a REAL ID credential must be used in lieu of other State-issued driver's licenses. The final rule has limited "official purposes" to those set fort h in the Act--accessing Federal facilities, boarding Federally-regulated commercial aircraft, and entering nuclear power plants. In addition, the final rule does not require that the REAL ID driver's license or identification card number or design be unique nationally, thus possibly limiting the functionality of the REAL ID card or identification number as a national ID card. It is unclear at this early stage whether REAL ID cards in fact will be used differently from current State driver's licenses and ide ntification cards; but if cardholders experience specific abuses regarding third-party misuse of these cards, Congress and the States can determine whether and how to address such abuses.
With regard to concerns that REAL ID will create a Federal database on all REAL ID card holders, DHS does not intend to own or operate a database on all driver's license and identification card holders. REAL ID implementation, however, will require a messaging system (generally known as a "hub") to serve as the backbone to support the verification checks REAL ID requires. In addition, the State-to-State data exchange will likely require a software application (likely an index or pointer system) to enable th e States to exchange limited information to identify whether an applicant for a card holds a card in another jurisdiction.
DHS is mindful that the States expect to continue to have control over their systems, their information, and the processes that govern any use or access. DHS agrees that issues relating to the governance of any State-to-State exchange of information are critically important, and that the States will need to play an important role in determining the governance structure of any system(s) that may interface with State licensing systems and the Federal verification systems required to implement REAL ID. Many of the individual State comments emphasized that they are committed to protecting privacy and that they are prepared to address privacy in their security plans and already have such plans in place. The governance of the system(s) necessary to conduct the data checks will be established in consultation with DOT and the States during the first phase of the REAL ID implementation. The Privacy Impact Assessment issued in conjunction with the final rule discusses the governance issue in more detail.
As described above, DHS is currently working with AAMVA, DOT, the Social Security Administration, the Department of State, National Association of Public Health Statistics and Information Systems (NAPHSIS), and State representatives to define requirements for a messaging system to support the multiple data verification checks REAL ID requires. The backbone of the messaging system could be AAMVAnet, the network system AAMVA already operates to facilitate data verification for the State DMVs. It is important to note for purposes of privacy and security that the AAMVAnet backbone resides on a private network with no connectivity to the Internet, making it much less vulnerable to attacks. It has been, and will continue to be, a highly secure transportation layer for all communications between the States and agency databases. DHS will work with DOT and AAMVA to build upon the security, privacy, and governance principles that have guided AAMVA and the States for decades in conducting licensing checks by reinforcing the security and privacy features of the AAMVA communications and systems architecture.
In addition to potentially using AAMVAnet as the backbone, DHS, DOT, and the States are exploring the alternative of using the Commercial Drivers Licensing Information System (CDLIS) as the platform for supporting the State-to-State data exchange requirements of the REAL ID Act and regulation. CDLIS already supports queries to every State DMV every time an individual applies for a driver's license in any State or the District of Columbia. Although privacy groups urged DHS not to build upon CDLIS since it is a centralized database, it is more technically and economically difficult to design a State-to-State data exchange system that avoids using a central repository (an index or pointer system) to direct the checks to the appropriate State. DHS understands that State systems would not be able to handle the volume of messages received if all jurisdictions were sending and receiving messages from all jurisdictions at the same time. The central repository would facilitate the check by identifying which jurisdicti on(s) has a match and obtaining the relevant record information. The repository would only be used to facilitate the State-to-State data exchange or for authorized law enforcement personnel who are checking a specific license or identification card against the system. Moreover, CDLIS is a secure, State-governed system that stores only the minimum amount of personal information necessary to minimize false positives and to facilitate the routing of queries and responses between States.
With regard to limiting access, (Federal, State, and private-sector) to the State DMV data stored in the data verification system, DHS, DOT, and the States will define the access rules. The REAL ID Act does not create Federal access rights to State DMV databases. Moreover, DHS supports limiting access to the data verification system to authorized State DMV personnel and to Federal government agencies engaged in official responsibilities pertaining to law enforcement, the verification of personal identity, o r highway and motor vehicle safety. For example, DHS personnel do not currently access CDLIS or AAMVAnet. Its law enforcement agents obtain access to State driver's license information using National Law Enforcement Telecommunications System (NLETs) and commercial data sources.2. Protection of State DMV Databases
To help protect the privacy and security of the personally identifiable information (PII) held in State DMV databases, § 37.41 of the final rule requires States to prepare a security plan for all State DMV facilities and systems involved in the issuance, enrollment, production, or manufacture of driver's licenses and identification cards, and to submit the plan to DHS as part of the State's application for certification. The final rule requirement for the security plan to include reasonable administrative, technical, and physical safeguards to protect the security, confidentiality, and integrity of the personally identifiable information collected, stored, and maintained in DMV records and information systems is consistent with key information safeguards outlined in the Privacy Act of 1974 (5 U.S.C. 552a) and the Federal Information Security Management Act of 2002 (44 U.S.C. 36).
The security plan requires a number of important privacy and security safeguards including, but not limited to: (1) Procedures to prevent unauthorized access, use, or dissemination of applicant information and images of source documents retained pursuant to the Act; (2) standards and procedures for document retention and destruction; (3) a privacy policy; (4) a prohibition on release and use of personal information that, at a minimum, is consistent with the Driver's Privacy Protection Act, 18 U.S.C. 2721 et seq.; (5) access controls, including employee access badges, background checks and systems controls; (6) emergency incident response plans; (7) internal audit controls; (8) physical security of facilities where driver's licenses and identification cards are produced; (9) security of the document materials and papers from which driver's licenses and identification cards are produced (§ § 37.41 and 37.43).
The requirement that the security plan include a privacy policy regarding the personally identifiable information collected and maintained by the DMV provides a key privacy protection. Although the final rule does not define
the specific content of the privacy policy, DHS expects that the policy will reflect the fair information principles noted in the NPRM, 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. In addition to reflecting these principles, DHS recognizes that the privacy policies will need to be consistent with State privacy laws governing DMVs information practices, and the final rule in no way reduces the protections States already afford PII held by DMVs.
With regard to concerns regarding disclosure of PII from DMV databases, the final rule requires that the security plan include a prohibition on release and use of personal information that, at a minimum, is consistent with the DPPA. Although the DPPA provides for a large number of permissible uses, it is the only Federal law that currently applies to State DMV records and will provide a floor that States can build upon to further limit the disclosure of DMV record information.3. Privacy Concerns Regarding t he Machine Readable Technology Employed by REAL ID
Section.IV.I.8 of the comments discussion discusses the comments and responses regarding the machine readable zone (MRZ) on REAL ID cards. In brief, commenters were split between the privacy groups that were concerned about third party "skimming" of information from the MRZ if it is not encrypted, and the State and law enforcement groups that opposed encryption because it could interfere with speedy law enforcement access to the information and it would be difficult and costly to manage encryption keys acro ss so many jurisdictions.
Given law enforcement's need for easy access to the information, and the complexities and costs of implementing an encryption infrastructure, DHS is not requiring encryption of the MRZ at this time. If, in the future, the States collectively determine that it is feasible to introduce encryption, DHS may consider such an effort so long as the encryption program enables law enforcement easy access to the information in the MRZ. Moreover, in the future, DHS, in consultation with the States and DOT, and may con sider technology alternatives to the PDF417 2D bar code that provide greater privacy protections after providing for public comment.
As discussed in the Privacy Considerations section of the NPRM (72 FR at 10824-25), DHS strongly encourages the States to address concerns about the ability of non-law enforcement third parties to collect or skim personal information stored on the REAL ID driver's licenses or identification cards. Some States, such as California, Nebraska, New Hampshire, and Texas have passed laws that prohibit the collection of information on a driver's license or identification card. In addition, AAMVA has drafted a Model Act
that, if enacted by a State, would prohibit commercial users, except as provided by the State's legislation, from using a scanning device to: (1) obtain personal information printed or encoded on the card and; (2) buy, sell or otherwise obtain and transfer or disclose to any third party or download, use or maintain any data or database, knowing it to contain personal information obtained from a driver's license or identification card. The Model Act authorizes verification of age for purchasing alcoholic be verages or tobacco products, but with strict limitations on the storage and use of such information.
In addition to concerns about third-party skimming, privacy groups commented that access to the MRZ should be restricted to law enforcement, while other commenters also supported access without information collection for bars and liquor stores to help prevent underage drinking. In response to commenters urging that the rule limit Federal agency access to the MRZ, DHS is not aware of any current plans by Federal agencies to collect and maintain any of the information stored in the MRZ. If a Federal agency sh ould want to use the MRZ to collect and maintain personally identifiable information in the future, any such information collected from the MRZ would be subject to the protections of the Privacy Act of 1974 (5 U.S.C. 552a), and other Federal laws and policies regulating the use and handling of personally identifiable information, including requiring appropriate time for public notice.
A number of commenters also urged DHS to limit the data elements in the MRZ to the minimum necessary, particularly if the MRZ is not encrypted. DHS has reviewed the elements identified in the NPRM and eliminated the requirement to include the name history in the MRZ. All other data elements are necessary for DMV and law enforcement purposes.4. Additional Privacy Concerns
The privacy groups and individuals also filed comments on a number of other privacy issues such as redress, the confidentiality of the address for certain at-risk individuals, and the Western Hemisphere Travel Initiative (WHTI)-compliant card and its use of Radio Frequency Identification (RFID) technology. The comments and responses to these additional privacy concerns are discussed in other sections of this final rule.
Comment: Two States wrote that the proposed rule did not provide adequate safeguards for data storage, thereby significantly increasing the risk of identity theft. One commenter wrote that even the most rigorous security measures could be foiled by personnel with legitimate access intentionally or inadvertently exposing information. Several commenters wrote that the rule's broad expansion of data collection and storage creates a significant threat to privacy and that guidance on access to data and accountab ility should be issued. Commenters also wrote that stored data should be secured to protect the identities of victims from abusers in State government who have database access.
Response: Section 37.41 of the final rule helps address concerns about adequate protections for the DMV databases and information systems. It calls for States to prepare a security plan, including providing reasonable administrative, technical, and physical safeguards to protect the security, confidentiality, and integrity of the personally identifiable information stored and maintained in DMV records and information systems. The rule specifically points out the need to include access control measures to pr event unauthorized access to the information. States are already sensitive to the importance of protecting their data and systems. Section 37.33(b) will help ensure that DMVs provide comprehensive, layered security protection to reduce the incidence of unauthorized access and use. In addition, this final rule does not preempt States from implementing privacy protections that are even more protective.
Comment: One State wrote that DHS should set standards for accessing the required information from the Federal government and other States so that the verification process is performed similarly by all States. Multiple commenters stated that they want data systems to be one-way and used solely for the purpose of verification; Federal system owners would not be able to query State databases. Similarly, other commenters wrote that the rule should limit how States can access Federal databases for purposes of v erifying source documents and should only allow authorized DMV employees access to Federal databases. One commenter requested that the final rule make clear that no State may electronically access source documents contained in DMV databases in other States. Several States opposed Federal government access to the extensive data collected by States and suggested a network interface that only allowed State queries of the databases. One commenter wrote that it is unclear from the proposed rule how the federated query service will operate and manage the data between databases and DMVs, and while strict access controls to REAL ID data and documents will help minimize security and privacy risks, such controls will not be possible without DHS answering these questions prior to implementing REAL ID.
Response: DHS is working with DOT, AAMVA, and the States to enhance existing querying systems to meet the requirements of the REAL ID Act and rule. This "federated querying system" builds upon existing systems that include verification of DMV applicant birth certificates and social security numbers. These existing systems enable States to query the SSOLV database managed by SSA and the EVVE database managed by NAPHSIS. In both cases, only State DMVs can initiate queries. Moreover, SAVE, the USCIS system for verifying the lawful status of individuals in the United States, is designed on a similar basis, with only States able to initiate queries. Enhancements to existing systems to verify information held by the Department of State will be designed and built on the same principles.
In addition, State-to-State data exchanges required by REAL ID may consider leveraging the Commercial Drivers Licensing Information System (CDLIS) as the baseline platform for systems design, development and deployment. CDLIS is a secure, State-governed system that stores the minimum amount of personal information possible to facilitate the routing of queries and responses between States. Enhancements to CDLIS to support the requirements of REAL ID will not change the fundamental architectural, security, an d privacy principles upon which CDLIS has been built and operated by the States for nearly two decades.
As noted above, § 37.41 of the final rule addresses these concerns. It calls for States to prepare a security plan, including providing reasonable administrative, technical, and physical safeguards to protect the security, confidentiality, and integrity of the personally identifiable information stored and maintained in DMV records and information systems. The rule specifically points out the need to include access control measures to prevent unauthorized access to the information.
Comment: One State recommended that paper document retention should not be required once electronic formats were secured. Another commenter wrote that REAL ID should collect only the data that is absolutely necessary and keep it for only as long as necessary, and requirements should be in place to periodically review and purge information.
Response: Section 202(d)(2) of the Act mandates that States "retain paper copies of source documents for a minimum of 7 years or images of source documents presented for a minimum of 10 years." DHS does not have discretion to change that requirement. Accordingly, under this final rule, States may choose to keep paper copies, microfiche, or digital images of source documents. Depending on the method of document retention adopted by the State, the State must maintain paper copies for a minimum of seven years, or microfiche or digital images of source documents for a minimum of 10 years pursuant to the Act. We note that the NPRM proposed to allow retention of microfiche for 7 years; however, as discussed above the statute mandates retention of "images" of source documents for 10 years. A microfiche is a film image, rather than a paper copy, of a document; therefore, we have corrected the error in the proposed rule to more accurately reflect the statutory mandate.
Comment: Many commenters wrote that obtaining a REAL ID could become a requirement for participation in American life, and that a REAL ID could be used for purposes beyond what is contemplated today, such as controlling gun ownership or smoking. Another commenter wrote that implementing REAL ID would undoubtedly result in a system that political and agency heads would not restrain themselves from using and expanding in the future, and that REAL ID would become a practical necessity for anyone wishing to tra vel on an airplane, open a bank account, collect Social Security benefits, or take advantage of other government benefit programs. Other commenters wrote that the result would be a dividing of the citizenry into those who have REAL identification cards and those who do not, with the later group subject to suspicion. One commenter urged DHS to make clear in the final regulations that driver's license numbers and ID card numbers must be unique within a State and that the REAL ID cards should not have a nation ally standard format.
Response: DHS agrees with the comment that a driver's license or identification card number needs to be unique only within a State and need not be a unique nationally identifying number. DHS also understands the concerns raised in the comments about how a REAL ID might be used outside of the defined "official purposes" identified in the Act and this final rule. DHS does not intend that a REAL ID document become a de facto national identification card. Whether States choose to require presentation of a REAL ID for State purposes is not within the purview of DHS's authority under the Act--which applies to documents that Federal agencies can accept for official purposes--and thus is outside of the scope of this rulemaking.
E. State to State Database Queries
Comment: Several commenters suggested the following requirements for State databases: using a single agreed-upon naming record keeping, clarifying "transferable" functionalities, implementation of point-to-point interfaces for data verification, a decentralized query system, and a system to check for duplicate registrations in multiple States. One commenter suggested that every State have a data governance committee. Several States offered best practice suggestions to support State database security, includ ing encryption, annual employee confidentiality agreements, secured data centers, testing programs to determine tampering, security audits, and multi-factor authentication.
Response: DHS agrees that issues relating to the governance of any State-to-State exchange of information is critically important, and that the States will need to play an important role in determining the governance structure of any system(s) that may interface with State licensing systems and the Federal verification systems. DHS is mindful that the States expect to continue to have control over their systems, their information, and the processes that govern any use or access.
During the initial period of REAL ID implementation, States will conduct data verification using their current methods of connection to SSOLV, SAVE, and the other State DMVs. States will continue to use AAMVAnet to connect to these data sources. AAMVAnet is governed by the Board of AAMVA and is subject to the security and privacy requirements established by the association of DMVs. As DHS, DOT, AAMVA, and the States complete the upgrade of existing systems to meet the requirements of REAL ID, these systems will be deployed and operated on the same basis as the current network of AAMVAnet-based systems for DMV verification of applicant data and State-to-State exchanges of driver information. The architecture of these systems will determine the scope and extent of the privacy concerns they pose.
F. Document Standards for Issuing REAL ID Driver's Licenses and Identification Cards
1. Identity
Comment: One State agency asked whether the term "source document" in the proposed rule is synonymous with "identity document" used in the Act. One State wrote that it was concerned about individuals having to surrender their REAL ID card from one State when moving to a new State and applying for a new card. Many commenters wrote that certain applicants would have difficulties obtaining proper source documents, including refugees, lower-income individuals, persons who live in rural areas, the elderly, minor ities, and abuse victims. Another State suggested that the rule should only specify criteria and procedures rather than a list of specific documents.
Response: DHS disagrees with the comment that the rule should specify criteria rather than a list of specific documents acceptable to establish a person's identity. Limiting the number of documents means that only the documents which DHS has found to be the most secure may be used to demonstrate identity. Second, identifying specific documents 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 the y 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.
DHS does not agree that certain categories of individuals cannot reasonably obtain the identity documents specified in the rule, but the rule provides a reasonable level of discretionary flexibility to address these types of cases.
Comment: Commenters wrote that the list should be expanded to include a variety of documents, including adoption papers, refugee status paperwork, expired foreign passports if USCIS documentation is current, passports with expired visas, derivative visas, Immigration Court documents, foreign birth records, foreign national identification cards, the I-94 (Arrival-Departure Record), and the I-797 (Notice of Action). Refugees and asylees are more likely to have these documents before they receive an Employment Authorization Document (EAD). Two States suggested that documents that can be electronically verified through SAVE should be acceptable. Commenters wrote also that foreign applicants may have documents that are not on the list but may have been issued by DHS or the courts to prove immigration status.
Response: The document list provided in the proposed regulation and adopted under this final rule is only for demonstrating identity, not lawful status in the United States. DHS agrees with the commenters who suggest that any document verifiable by SAVE is acceptable for proving lawful status, and that is what this final regulation provides. These can include Forms I-797 and I-94 as they provide sufficient information for a State DMV to check SAVE, which will be the method by which aliens lawfully present i n the United States establish lawful status. But because many of these documents (including the ones listed above) cannot, and are not intended to, prove a person's identity, an additional document must be provided for that purpose. In the case of refugees and asylees, they will be able to obtain a Form I-766, Employment Authorization Document.
DHS cannot accept the comment that foreign documents be included on the list of acceptable documents to prove identity. First, section 202(c)(3)(B) of the Act specifically prohibits any States from accepting any foreign document other than a passport. Second, the Act requires that documents presented for proof of identity be verified by the issuing agency. State DMVs cannot be expected to verify with foreign governments the validity of documents. DHS has, instead, decided to use the U.S. visa within the for eign passport as the identity document that a nonimmigrant alien can present.
Comment: One commenter wrote that a delayed birth certificate should be considered an acceptable document. One State wrote that many births in rural areas are not recorded, and States should be able to use other documents. One commenter wrote that a requirement for a certified copy of a birth certification would place a hardship on poor persons. One commenter supported the concept of re-verification of birth certificates for renewals of REAL identification cards, except that the rule should allow the option for the applicant to use documents with the current legal name instead of the name at birth.
Response: While confirming identities with delayed birth certificates can be problematic, this final rule does not preclude a State from accepting a validly-issued delayed birth certificate. DHS agrees that some, mostly elderly, individuals may not have a birth certificate at all. As a result, the final rule permits a State to use its exceptions process to determine what alternative documents an individual may present in this limited circumstance to establish his or her date of birth. DHS does not agree tha t lower-income individuals will have a hardship obtaining certified copies of their birth certificates and believes that States may be able to assist those individuals for whom the cost of obtaining a birth certificate is prohibitive. Further, DHS believes that there is value in re-verifying applicant information upon renewal of driver's licenses and identification cards and has amended the renewal sections to require re-verification of SSN prior to issuance.
Comment: Commenters requested a variety of additional documents be considered as acceptable source documents, including Federally-issued identification documents such as military identification cards, the Common Access Card, retired military ID cards, dependent military ID cards, Veteran Affairs Universal Access Photo ID cards, and Transportation Workers Identification Credentials (TWIC). Some commenters also requested that Native American Tribal Documents be deemed acceptable source documents. One State as ked whether a tribal photo identification card accompanied with a Canadian birth certificate (which is currently acceptable to the commenting State) will be acceptable to DHS. If not, these populations may encounter particular difficulty obtaining a REAL ID.
Response: DHS does not agree with comments suggesting addition of Native American Tribal Documents, TWIC cards, or Common Access Cards (CAC) or military identification issued by the U.S. Department of Defense as identity documents for REAL ID purposes at this time. DHS continues to understand from the Department of the Interior and Bureau of Indian Affairs that Tribal members are similarly situated to the general population, and have access to the identification documents set forth in the rule. Where a Trib al member does not have the necessary document to establish identity, date of birth, or lawful status, a State's exception process can take this into account based on the State's knowledge and experience with Tribal documents in its area of jurisdiction.
In regard to the use of a TWIC as proof of identity, at this time, DHS does not believe that it would be feasible for States to accept TWIC cards as initial proof of identity by persons applying for a REAL ID card. First, section 202(c)(3) of the REAL ID Act requires States to verify all documents presented by applicants as proof of identity. The capability for States to verify a TWIC card currently does not exist at this time.
Second, although a TWIC holder must have been determined to be lawfully present in the United States to obtain the TWIC, the TWIC does not necessarily expire when the holder's lawful status expires. Therefore, a DMV could not use the TWIC card alone as evidence of lawful status and the applicant would have to present both a TWIC (for identity) and a separate document (for status).
Accordingly, there is little benefit to the individual or the DMV at this time to include a TWIC as an acceptable identity document. As such, the final rule does not include TWIC as an acceptable form of identification. However, DHS will revisit this issue in the future should such a capability become available and will consider the ability for States to verify TWICs with the federal government as the standards for the "hub" are developed.2. Social Security Documentation
Comment: Several commenters, including States, wrote that obtaining a Social Security card can be a lengthy process. They argued that some individuals may have lost their original card, a Social Security number (SSN) does not enhance the identification process, and ineligibility for a SSN is difficult to determine and verify. One commenter wrote that individuals might not have a SSN because of religious beliefs. One State wrote that States should have the option of requiring a Social Security card.
Response: The REAL ID Act requires that individuals provide proof of their Social Security account number or verification that they are not eligible for a Social Security account number. While the typical proof submitted to DMVs is a Social Security card, the rule allows for the submission of alternate documents, such as a W-2 form, SSA-1099 form, or pay stub to establish the SSN. Use and verification of the SSN is widely seen by almost every State as an effective tool in enhancing the identification proces s. DHS has further amended the rule to clarify for the DMVs when an individual will have not have a SSN, which is largely tied to immigration status and identity documents used to apply for a driver's license. Other instances may be addressed in exceptions processing.3. Principal Residence Documentation
Comment: Many commenters suggested that the definition of "principal residence" be amended. One State recommended that DHS define "principal residence" as the jurisdiction in which an individual spends the most time. Another commenter requested "principal residence" be defined as the primary or most important place of abode of an individual and at which he or she presently has an intention of living for an indeterminate period. Another State suggested that the definition be changed to require that a person' s principal residence be within the jurisdiction issuing the card and to allow the States to issue exemptions. One State suggested that DHS clarify the definition so that students, military, visitors, and others who are temporarily residing in another jurisdiction are not required to change their principal residences.
Response: DHS agrees that the definition of "principal residence" needs to be clarified in the rule. The term is defined in the final rule as the location where a person is currently domiciled (i.e., presently resides even if at a temporary address) in conformance with the residency requirements of the State of domicile, if such requirements exist.
Comment: Commenters wrote that requiring two documents proving residence is burdensome on certain individuals (i.e., recent movers, minors, homeless, and those not listed as primary payer on accounts) and suggested use of the United States Postal Service (USPS) National Change of Address system as a verification tool. One State recommended that the rule allow use of an on-line address verification system to replace the two forms of address documents, at least for remote renewals.
Response: DHS does not agree that it is too burdensome to require an individual to produce two documents to establish his or her address of principal residence. Since the State has maximum flexibility in determining what documents are acceptable for this purpose, DHS believes that the States will be able to find a combination of documents for each person eligible to apply for a REAL ID driver's license or identification card. DHS believes States may use the procedures established in their exceptions process es when seeking to document the address of principal residence of the homeless or other individuals who may not have a fixed street address.
Comment: Commenters wrote that there are certain groups of people including students, long-haul truck drivers, the homeless, migrant workers, and others who do not have a single fixed address and who will not be able to meet this requirement. One commenter requested that the rule be strengthened by clarifying in the exceptions process that the requirement of a fixed address will be waived as long as a REAL ID applicant can make a showing that they have none and that they can comply with other documentation requirements.
Response: As noted above, DHS believes that States will be able to resolve these issues through the use of their exceptions process.
Comment: Several commenters noted the difficulty in providing a street address because many rural addresses use rural route numbers only, and recommended new regulatory text: "An acceptable street address includes rural delivery route and/or box number or other address convention used by the USPS in all areas of the U.S. where a number and street name has not been assigned for U.S. mail delivery." One commenter wrote that in its jurisdiction, it is common to find streets with same names throughout different communities and that rural addresses are identified by kilometers and hectometers within a street address or neighborhood. Another commenter (a State) has islands that do not have home addresses; mail is delivered to post offices where the residents must go to retrieve their mail. One State noted that many Native American populations do not have physical addresses.
Response: DHS agrees with these comments and has amended the rule to define "address" as an address convention used by the USPS in areas of the United States and Territories where a number and street name has not been assigned for U.S. mail delivery.
Comment: One commenter wrote that address changes make up the largest number of driver record changes and many States do not require issuance of
a replacement card until the next renewal cycle. Several commenters, including States, wrote that when an address change occurs, no REAL ID card need be required and that it is cost prohibitive for States to issue new documents for address changes.
Response: DHS agrees with these comments and is no longer requiring an in-person transaction for an individual to change his or her address. DHS also leaves it to State law and procedure when and under what circumstances a State requires issuance of a replacement driver's license or identification card.4. Lawful Status Documentation
Comment: Several commenters wrote that there are many examples of lawfully present immigrants who may not have the listed documents and that the list should be expanded. One commenter wrote that these omissions violate the Constitution by denying to individuals in these classes the rights and privileges accorded to others, and stated immigration documents do not always reflect actual status. A State wrote that Temporary Protected Status aliens should be required to provide documentation from DHS of an estab lished identity. Some commenters objected to the need for an unexpired U.S. visa on a foreign passport. They pointed out that renewing a visa would involve foreign travel, and in any case a visa does not authorize a stay in the U.S. for any particular period of time. An alien with nonimmigrant status may lawfully extend or change his or her nonimmigrant status without maintaining a valid visa stamp. One State noted that in some cases a passport might expire before the visa.
Response: DHS has included the list of documents as verifying identity of the person presenting them, not lawful status. Lawful status may be determined through verification against DHS's SAVE system. Aliens who are granted Temporary Protected Status are already eligible for EADs, Form I-766, and thus have a document proving identity. DHS does not believe that this rule treats citizens and aliens differently--each is required to prove identity and lawful status to obtain a REAL ID driver's license. Further, DHS does not believe that treating citizens and aliens differently is in violation of the Constitution, but an inherent right of a sovereign nation and one that reflects American constitutional law. Regarding the visa in a foreign passport, DHS is not treating the visa itself as a document establishing lawful status. Again, the check of DHS's SAVE system will accomplish that purpose. The visa is used to verify identity and can be verified with the issuing agency--the U.S. State Department. DHS cannot verif y, with the issuing agency as required by statute, foreign passports because there is no guarantee that issuing a foreign government would respond to a DMV request for a specific passport. Finally, like all documents that verify identity, the document itself must be unexpired to assure that a significant amount of time has not passed such that the person's appearance has changed. This is a fundamental rule with issuance of all types of documents that are designed to prove a person's identity.5. Verification of Documentation Presented
Comment: One commenter wrote that DHS should partner with AAMVA in implementing document verification requirements. Several commenters wrote that States need ongoing training and guidance for verification and to be advised what to do if documents cannot be verified. A few commenters noted that the verification of documents is only a verification that paper contains legitimate data and not that the applicant is the owner of the paper or that the document is authentic. A State asked who makes the determinatio n of whether a State's verification procedure is "effective." Several commenters wrote that Federal electronic verification systems do not exist yet or need significant enhancements; therefore, compliance requirements should be delayed. One commenter wrote that States must find their own ways to verify documents but that States lack the legal authority to force compliance. Commenters suggested States use third party databases or automated document authentication systems and share images to deter identity fr aud. One State asked whether it would have to re-verify source documents if the applicant already had a REAL ID from another State.
Response: DHS is working with AAMVA and State representatives to design and implement verification systems to support the requirements of the REAL ID Act and this rule. Representatives of numerous States and the Federal agencies responsible for verification of identity information for REAL ID and related Federal government programs are continuing to meet to develop recommendations on prioritization of data and document verification systems based on risk and value. Two verification systems are currently avai lable for use by all States--the SSOLV system for verification of social security numbers with the SSA and the SAVE system managed by USCIS for verifying that an applicant is lawfully present in the United States and for how long. These systems have been in widespread use for many years and are highly effective. DHS is working to improve further the usability and accuracy of these systems and to meet REAL ID-specific requirements. DHS is also working with the appropriate Federal and nongovernmental agencies to verify other documents and applicant data mandated by this rule. As these systems are deployed and become widely available for use by States, DHS plans to publish notices of availability and timetables for required use in the Federal Register.
DHS recognizes that verification consists of two separate elements: (1) Determining that the source document is genuine and has not been altered; and (2) determining that the identity data contained on the document is valid. Electronic verification systems can support these elements. However, DHS recognizes that other methods can be employed by States to confirm one or more elements of identity assurance. Electronic verification systems are only one component of a suite of measures to assure States that the applicants are who they say they are and that they are lawfully present in the United States.
DHS recognizes that there are many different techniques for verifying the identity and qualification of applicants and will evaluate the effectiveness of such techniques.
Comment: AAMVA and several States wrote that a system of passport verifications through the Department of State is not available and it will be difficult for States to determine name matches. One commenter wrote that States must find their own ways to verify documents but that States lack the legal authority to force compliance. Commenters suggested that States use third party databases or automated document authentication systems and share images to deter identity fraud. One State asked whether it would ha ve to re-verify source documents if the applicant already had a REAL ID from another State.
Response: DHS is working with the Department of State and AAMVA to provide a capability to verify passports, U.S. visas, and other information held by the Department of State. When this capability is widely available for State use, DHS will publish a Notice of Availability in the Federal Register and establish timelines for State use of this capability. DHS is also working with Federal, State, and nongovernmental organizations to identify and improve name formats and matching algorithms used by identity ver ification systems.
Comment: Commenters wrote that they supported the use of a SAVE system to verify lawful status because State DMV staff should not have to be immigration officials, but that many improvements needed to be made to the system. Commenters wrote that SAVE needs to indicate the type of pending nonimmigrant status the applicant has, as well as work authorization information. Another commenter wrote that for students and exchange visitors, information is provided in the Student and Exchange Visitor Information Syst em (SEVIS) system, but SAVE and SEVIS are not yet linked. Several States wrote that they should not have to pay transactional costs for Federally-mandated verification through a Federal system.
Response: The SAVE system has proven to be a highly effective means of verifying immigration status information for many DMVs and other Federal and State agency users for twenty years. DHS is working with AAMVA and USCIS to improve the usability, accuracy, and reliability of the SAVE system even further, to include access to SEVIS and other data through SAVE.
DHS is committed to expediting and subsidizing the improvement, design, development, deployment, and operation of verifications systems to support the requirements of the REAL ID Act and this rule; however, the States have typically borne the costs of verifying the identity and qualifications of applicants for driver's licenses and identification cards.
Comment: Several commenters supported the use of the EVVE system, but pointed out that it is not ready for implementation, and that an exception process would be needed. States opposed having to bear the costs for verification.
Response: DHS recognizes that the EVVE system is not ready for full implementation. The final rule provides for additional time for States to implement EVVE or another system that provides for the verification of birth records. Verification of identity information is a valuable tool that many DMVs utilize. Birth data is currently collected and maintained by the States, and DHS is not seeking to Federalize these records.
Comment: A few commenters supported the continued use of the SSOLV system, even though manual intervention is sometimes needed and the system is sometimes not available. One State wrote that it opposed having to re-verify SSNs that were previously verified through SSOLV.
Response: DHS agrees that the SSOLV system is the best existing system to verify an individual's SSN. DHS does not believe that the short amount of time it takes a State to enter an SSN and verify it through SSOLV is an unreasonable burden to impose, even for those persons whose SSN was previously verified through SSOLV. Forty-eight States and the District of Columbia currently have the capability to verify SSNs through SSOLV or other means. This requires electronic verification of SSNs with SSA but allows States to use other means than SSOLV. Verification of SSNs through SSOLV costs pennies and is typically completed in a few seconds. DHS, AAMVA, and the States are working with SSA to improve the accuracy and reliability of the SSOLV system.
Comment: Several States and commenters expressed concern that States are required to verify an individual's address of principal residence, yet DHS concedes in the rule that no such method exists. AAMVA wrote that in order for the States to support the verification process, DHS must clarify what the "system of document verification acceptable to DHS" really means. One State wrote that DHS should develop national standards for address requirements and verification; AAMVA wrote that this verification should b e left to the States to determine and provide to DHS in their certification plans. Several States wrote that development or implementation of an electronic verification system for proof of principal residence is not feasible.
Response: DHS agrees that States are best situated to verify an individual's address of principal residence. The rule gives States maximum flexibility in determining an individual's address of principal residence.
Comment: Many commenters wrote that DHS should delay implementation of this final rule until all system components needed for verification are in place and tested. AAMVA and several States expressed concern about the cost for verification processes, particularly programming costs for States to adapt State systems for the new requirements and to establish connections with verification systems. States wrote that an all-driver verification system is needed for implementing the REAL ID program. Commenters sugge sted expanded use of the Commercial Driver License Information System to satisfy the one-driver, one-record goal. Some commenters objected to the concept of a national database. Some commenters wrote that electronic verification systems must be fast and reliable; provide real-time, accurate information; and be integrated into the REAL ID issuance process. One commenter favored a decentralized query system where one DMV uses an applicant's basic identifying information to send requests to other jurisdictions . A few States asked how a compliant State would interface with a noncompliant State in verifying an out-of-State card. Other commenters wrote that the requirement to check with other States to see whether a REAL ID had been issued should apply to all driver's licenses, not just REAL ID identification cards.
Response: Two of the critical systems for verifying Social Security Numbers and lawful status are fully operational and currently used by many or most States. As stated above, DHS is working with other Federal agencies, nongovernmental agencies like AAMVA and NAPHSIS, and the States to design and deploy additional systems as quickly as possible. These systems will be integrated with the licensing issuance process in each State. States cannot and will not be required to use systems that are not fully operati onal and available for use.
DHS is also working with the Department of Transportation, AAMVA, and the States to enhance the functionality of CDLIS to meet the requirements of the REAL ID Act and this regulation. Neither the Act nor this regulation requires the design or deployment of a new national database or any new system of exchanging of information between States beyond that already implemented through CDLIS and the National Driver Register. All States currently participate in the exchange of driver information mandated under the se processes. The REAL ID final regulation simply requires States issuing REAL ID driver's licenses or identification cards to verify that an individual does not possess a valid driver's license or identification card in another State. This requirement is similar to the existing statutory and regulatory requirements for commercial driver's licenses. When this functionality is available, DHS will publish a Notice in the Federal Register detailing the procedures and timeline for State-to-State exchange of dat a required under the Act.
G. Exceptions Processing for Extraordinary Circumstances
Comment: Three States and three other commenters said that DHS should set minimum standards for the exceptions process so that there is consistency across the States. However, other States noted that the process should not be too rigidly defined, because the very nature of an exception will by necessity deviate from the current process, and that there are too many variables that need to be analyzed on a case-by-case basis to develop a rigid exceptions process.
Response: DHS disagrees with the comments that DHS should establish a uniform exceptions process for each State. DHS recognizes that each jurisdiction may face its own unique and particular set of facts and circumstances to resolve and that DHS is unable to address all such circumstances. DHS believes that States must have the flexibility to craft an exceptions process adequate to the needs of their States and recognizes that no two State exceptions processes may be identical.
Comment: AAMVA and multiple States opposed the requirement that States submit quarterly reports to DHS analyzing their exceptions processes. Four of these commenters suggested that the information could be included in a State's annual certification report instead. Further, AAMVA and many States opposed the provision requiring State exceptions processes to be approved by DHS and said this requirement would reach too far into the day-to-day operations of State agencies.
Response: DHS agrees that the proposed rule's requirement for a quarterly report on the use of the exceptions process is too burdensome a requirement for the States. The final rule strikes the quarterly reporting and requires States to submit a report as part of the recertification package a State will submit to DHS in connection with REAL ID. As necessary and appropriate, a State can designate this report as Sensitive Security Information (SSI).
Comment: One commenter said that DHS should allow States to employ exceptions processing on any list of documents that they deem circumstantially appropriate. Numerous commenters opposed prohibiting use of the exceptions process to demonstrate lawful status. In general, these commenters believed that many legal immigrants and other groups of people would not be able to meet the rule's requirements for proving lawful status. One commenter said that the scope of the exceptions process described in the propose d regulatory text does not correspond to the scope of the exceptions process described in the rule's preamble. The commenter urged DHS to revise the proposed regulation to explicitly include all data elements required under the REAL ID Act within the scope of the exceptions process.
Response: DHS agrees in part with the comments submitted. Under this rule, the exceptions process can now also be used by a U.S. citizen to establish his or her lawful status in the United States. This will accommodate the needs of elderly or rural residents, for example, who have not obtained a birth certificate but were born in the United States. The exceptions process may not be used by non-citizens to establish lawful status in the United States. That status must be verified in all instances with DHS.
Comment: Several commenters requested that State records not include a "full explanation" regarding why alternative documentation was accepted. These commenters expressed concern that victims of domestic violence would be forced to disclose their history of abuse and that information about their location and any name changes would be widely accessible in State databases of driver records. They recommended that a generic statement be added to records of victims of domestic abuse that would indicate that alte rnative documents were accepted "for reasons of public safety." Three commenters said that it would not be feasible for States to mark exceptions in their data files until they complete computer system upgrades.
Response: DHS agrees that States may use statements like "for reasons of public safety" or similar generic expressions when using the exceptions process for victims of domestic violence or others, where the State feels it is necessary to preserve the confidentiality of the reason the exceptions process was used.
Comment: Some commenters suggested that the exceptions process be broadened to include specific populations of individuals who may have problems producing the required documents, who may not spend the majority of time at home (out-of-State students, active military personnel), or who may not be able to come to the DMV in person (individuals with disabilities). Other commenters, including AAMVA, suggested that the exceptions be related to risk and could factor in year of birth or duration of continuous relat ionship with the State of licensure. Similarly, one State suggested that the rule grandfather all current holders of driver's licenses or identification cards that were previously verified as lawfully-present through SSOLV and/or SAVE.
Response: As noted above, DHS does not believe it would be beneficial to establish a uniform exceptions process for all States. DHS recognizes that each jurisdiction may face its own unique and particular set of facts and circumstances to resolve and that DHS is unable to address all such circumstances. DHS believes that States must have the flexibility to craft an exceptions process adequate to the needs of their State and recognizes that no two State exceptions processes may be identical.
DHS does not agree with the comment that individuals can be "grandfathered" for REAL ID purposes. The fact that an individual once had lawful status in the United States when checked through SAVE is not indicative of his or her present status. As noted elsewhere above, DHS does not believe it is burdensome to require an SSOLV check for all persons seeking a REAL ID driver's license or identification card.
H. Temporary or Limited-Term Driver's Licenses and Identification Cards [§ 37.21]
Comment: Two commenters said that use of the term could cause confusion with other license types and requested that another label such as "limited-term" be substituted to avoid confusion. One commenter suggested that temporary cards indicate on the face whether the holder is a citizen or non-citizen because any immigration status can be lost or revoked or expire at any time during life of the card.
Response: DHS agrees with these commenters. DHS has added the phrase "limited-term" to avoid any confusion with existing State licensing schemes involving temporary driver's licenses or identification cards. The section of the rule is now entitled "Temporary or Limited-Term Driver's Licenses and Identification Cards."
Comment: Two States said that matching the expiration date of a temporary driver's license or ID card to the end date of an applicant's authorized stay would require major internal system and business process changes and may also require a legislative change in some States.
Response: DHS notes that matching the expiration date of a temporary or limited-term driver's license to the end date of an applicant's authorized stay in the United States is a requirement of the statute that DHS lacks the authority to change.
Comment: Several commenters opposed the provision limiting the duration of temporary licenses or ID cards to the duration of admission or to one year if the applicant's authorized stay does not have a fixed expiration date. Numerous commenters cited concern with how the period of authorized stay is determined, in the
event, for example, that a person has a visa that expires in two years but the I-94 expires in two months. One country urged DHS to accept the term of validity of the visa, which are generally valid for relatively long periods, as the "period of time of applicant's authorized stay."
Response: These comments cannot be accepted. Section 202(c)(2)(C)(ii) of the Act requires that the duration of the driver's license to be limited to the period of the person's authorized stay or in the case of no specific period, a duration of one year. DHS does not have the authority to amend or change this direct statutory requirement. The period of admission will be determined not by documents themselves, but with the use of the SAVE system which can best identify a person's lawful period of admission. F inally, a visa cannot be considered to be a person's period of authorized stay as a visa only allows a person to apply for admission to the United States. It does not represent, in any sense, permission to stay within the United States for any particular period of time.
Comment: Commenters said that this provision would be unduly burdensome for many individuals who have lawful status for extended periods of time, such as F and J visa holders, and specifically expressed concern that the rule is eliminating a long-standing provision for J-1 participants, who, under State Department regulations, are entitled to a thirty-day grace period after completion of their programs to travel within the United States One of these commenters suggested that States be allowed to use the end dates listed on the certificates of eligibility for each of these visa types as the "ending date" of status for the purpose of obtaining a driver's license.
Response: Again, the determination for lawful status in the United States will be made by the SAVE system, not particular documents. SAVE takes into account the grace periods to which those in certain F and J statuses are generally entitled. It should be noted, however, that since F and J non-immigrants are admitted for "duration of status," which is an indeterminate period, they would normally be issued licenses valid for one year.
Comment: Two States said that annual, in-person enrollment for these individuals would provide little added homeland security value while overcrowding DMV offices.
Response: DHS agrees in part with these comments. The final rule provides that individuals holding REAL ID cards that are not temporary or limited-term may renew remotely where there has been no material change in the individual's information (i.e., name or lawful status) and the State re-verifies the individual's lawful status and SSN where applicable. Because lawful status can change over time, DHS believes that it is necessary for a State to determine that these individuals remain in lawful status prior to extending the validity period of any REAL ID-compliant driver's license or identification card.
Comment: Three commenters asked DHS to clarify whether temporary driver's licenses and ID cards need to have the security features of REAL ID-compliant documents.
Response: Temporary or limited-term driver's licenses and identification cards qualify as REAL ID-compliant documents so they must contain the same security features as any full-term REAL ID driver's license or identification card.
Comment: One commenter asserted that temporary driver's license or identification cards should not be permitted because international and foreign licenses are valid for individuals who are in the United States for less than one year.
Response: The REAL ID Act permits States to issue temporary or limited-term driver's licenses and identification cards. States will continue to determine how long an individual must be present or have residence in a State before the State requires that person to obtain a driver's licenses or identification card. Nothing in these rules precludes States from permitting an individual to use an international or foreign license to operate a motor vehicle in a State.
Comment: Commenters had specific comments about how this annual renewal provision would affect particular groups. Several domestic abuse advocacy organizations said that the annual requirement would give more power to abusers who have confiscated or destroyed the identification documents of their victims. One commenter said that DHS needs to amend the rule because the confidentiality requirements under the Violence Against Women Act (VAWA) preclude entry of certain immigrant victims into the SAVE system. Th e group suggested that if yearly renewal is required of immigrant victims, it should use the fax-back system developed by the INS to verify eligibility for Federal public benefits. A State expressed concern with DHS having defined "sexual assault," "stalking," "[d]omestic violence," and "dating violence" in establishing exceptions for the REAL ID requirement to display an individual's principal residence address on the license or identification card. The State argues that the proposed regulation would requi re that any State wishing to comply with the regulations must adopt the Federal definition of these crimes. This commenter argues that DHS can avoid this Federalism implication by allowing States to continue to decide who should be protected under address confidentiality programs.
Response: DHS agrees, in part, with these comments. The final rule clarifies any misperception in the NPRM that a State would have to adopt the VAWA definition of certain terms, and makes it clear that States can continue to enroll and safeguard victims based on their own laws. DHS disagrees with the comments that the renewal requirement conflicts with any provisions of VAWA. If an individual's identity documents have been destroyed by an abuser, a State can address this situation through its exceptions pro cess.
Comment: AAMVA, two other commenters, and four States expressed concern with the proposed requirement that a temporary document clearly state on its face that it is temporary. The commenters said that modifying cards to comply with the proposed rule would be costly and suggested that the rule instead allow States to use a restriction code on the front with clarifying language on the back. One State requested that DHS provide the exact wording that must be displayed on the face of a temporary card. One priva cy group said that identifying the card as temporary on its face would amount to a "scarlet letter" for immigrants and would lead to discriminatory interactions with police and other individuals. One State commented that it does not support the "facial branding" of cards.
Response: DHS does not agree with these comments and has clarified the rule to state that a temporary or limited-term license must indicate on the license and in the machine-readable zone that it is temporary. States may use different methods to indicate the temporary nature of the license, such as using restriction codes on the front of the card and explanatory text on the back of the card.
Comment: AAMVA and one State said that they support in-person renewals for temporary REAL ID driver's licenses or identification cards because lawful status can change and the population of individuals with temporary lawful status is far smaller and easier to manage with in-person renewals than the larger population of U.S. citizens. In contrast, one State requested that DHS allow applicants to mail in copies of the appropriate documents proving lawful status as long as the State verifies the information vi a the SAVE system. One commenter suggested that foreign students be allowed to renew online if they are required to do so annually. One State questioned how many one-year terms of extension would be permitted if length of stay is not specified on a submitted Federal immigration document. Two States wrote that after an applicant obtains a REAL ID card, the applicant should not have to re-supply source documents for renewals or conversions. Several States suggested that the rule state that notice of change of address may be made on-line or by mail as long as electronic verification can be accomplished.
Response: DHS agrees with the AAMVA comment that individuals holding a temporary or limited-term license must renew in person in order to present evidence of continued lawful status. DHS believes that this is necessary because lawful status can change, and this policy is consistent with the language of the REAL ID Act. As such, the requirement remains unchanged from the NPRM.
Changes of address may be made on-line, by mail, or as otherwise permitted by the DMV. There are no limits on how many years a State can issue a one-year license or identification card to an individual who is present for an undetermined "duration of status" as long as that individual remains in that lawful status or another.
Comment: Numerous States expressed concern that the current processing time involved in USCIS review of applications for various immigration statuses impacted by REAL ID will result in a large number of applicants who wish to renew their licenses but their applications to extend their status has not been acted on by USCIS within the year. Two States suggested that States issue interim documents that would be valid for very short periods until an applicant receives his or her permanent document demonstrating lawful status. Another commenter suggested that such an interim card be based on the applicant's visa until authorization is received and verified through SAVE, which should be programmed to contact the querying State when there is an updated applicant status. One commenter recommended that the rule allow States to use a license expiration date 90 days beyond the expiration date of the immigration document to allow for USCIS processing of applications to extend lawful status. Commenters said that individua ls in certain statuses will not be able to comply with the requirement to present documentation showing extended lawful status upon renewal because in most cases, their statuses will not have been extended but merely continued.
Response: Again, State DMVs will use the SAVE system, and not particular documentation, to determine that the license applicant is in lawful status. An application that is properly filed with USCIS entitles the person to remain in lawful status beyond the period listed on the person's Form I-94 or other immigration document, that information is reflected in the SAVE system. Thus, aliens in these situations would be able to obtain REAL ID-compliant licenses and States would not have to add any additional pro cesses with USCIS.
I. Minimum Driver's License or Identification Card Data Element Requirements
1. Full Legal Name
Comment: Many commenters raised issues about the concept of full legal name. One commenter stated that the provision infringes on powers reserved to the States in that it dictates to the States acceptable methods for name changes, and that it effectively nullifies the common law name change process that some States permit. Proposed § 37.11(c)(2) would have required the applicant to present documents showing a legal name change, but several commenters pointed out that these documents may come from local or foreign government sources in addition to Federal and State governments. Two States opposed the proposed requirement to present these documents, and an individual opposed having name change information on the REAL ID. One State suggested that the rule also should provide instructions for individuals whose gender has been legally changed.
Response: DHS agrees that where State law or regulation permits an individual to establish a name other than that contained on the identity document he or she presents for a REAL ID driver's license or identification card, the State shall maintain copies of the documentation presented pursuant to § 37.31 and maintain a record of both the recorded name and the name on the source documents in a manner to be determined by the State. The use of initials or nicknames shall not be permitted, except to the extent that an initial is necessary to truncate a name longer than 39 characters in length, in which case the name should be truncated pursuant to ICAO-9303 standards. DHS also agrees that local or foreign government-issued documents can be used to establish a name history. The final rule reflects these changes.
Comment: Numerous States and AAMVA stated that there is no standard naming convention for Federal agencies and as a result passports, immigration documents, and social security cards list disparate names, making identifying the full legal name difficult. Many States commented that the Federal government needs to adopt a single standard for full legal name and apply it to all Federal records, rather than depending on the State DMVs to resolve this in the face of multiple Federal approaches. Due to discrepanc ies among naming conventions, one commenter suggested that DHS provide a list of most acceptable to least acceptable documents used to establish full legal name. Several commenters wrote that documents evidencing a name change may come from local or foreign government sources in addition to Federal and State governments.
Response: DHS agrees that there is no standard naming convention currently used by Federal agencies. It would be beyond the scope of DHS's rulemaking authority to impose such a convention on all Federal agencies. Nevertheless, the lack of a common Federal standard does not mean that DHS should not establish minimum standards for the States to follow as required by the REAL ID Act. However, based on comments received, DHS is slightly modifying the definition of the definition of "full legal name" to bring it closer to existing name conventions used by the Social Security Administration, the Department of State, and other issuers of source documents.
Comment: AAMVA and numerous States commented that the States need flexibility and DHS should drop the prohibition against using initials and nicknames. One State wrote that the name on the driver's license should be the one the person chooses to use, with the full legal name stored in the database and in the MRZ, and that without common naming conventions, it is imprudent to assume that a regulatory requirement forcing the public to adopt a single name will achieve any desired end. One State commented that it should be able to use an alternative name if the applicant's source documents clearly show a link between that name and the name presented on other source documents.
Response: As noted above, DHS agrees that where State law permits an individual to establish a name other than that contained on the identity document presented for a REAL ID driver's license or identification card, the State must maintain a record of how the name was established in a manner to be prescribed by the State. The use of initials or nicknames shall not be permitted, except to the extent that an initial is necessary to truncate a name longer than 39 characters in length, in which case the name sh ould be truncated pursuant to ICAO-9303 standards. Where the individual has only one name, that name should be entered in the last name or family name field, and the first and middle name fields should be left blank. Place holders such as NFN and NMN should not be used.
Comment: Both States and victim advocacy groups objected to the full legal name requirement because the rule would not provide exceptions for victims of domestic violence. The rule would require that past names be included in DMV records, which would expose victims to danger. In addition, the SSA requires victims to change their names before changing SSNs and prohibits them from revealing previous names and SSNs. Commenters wrote that the proposed rule conflicts with this prohibition by requiring that the p revious names be revealed as well as with the court orders under which many victims are granted new identities.
Response: The REAL ID Act does not include any exceptions for victims of domestic violence not to provide their full legal names. DMVs may want to take appropriate measures to protect the confidentiality of those records so that a stalker or victimizer could not use the DMV database to locate the individual.
Comment: Many commenters noted concern with the name requirement for the MRZ, particularly inclusion of the name history on the MRZ. States questioned whether some name histories would fit on the MRZ. Others questioned the need for the requirement if the history is available in the State DMV database and cited the potential for abuse. Many also commented that the requirement would result in a complete rewrite of States' systems and is one of the most costly parts of the rule. For example, one State commente d that the 125-character field would delay its implementation for 3 to 5 years until it can obtain a new mainframe.
Response: DHS agrees with the comments and is no longer requiring that the name history be stored on the MRZ.
Comment: One State asked for guidelines for translating names from other alphabets: a name in the Cyrillic alphabet can be changed to the Latin alphabet a variety of ways. Another commenter recommended referencing the AAMVA name specifications generically rather than a particular edition. The commenter also suggested changing "Roman alphabet" to "Latin alphabet." Commenters noted other problems with the full legal name requirement, such as naming conventions in other countries and cultures, conversion of th ese names onto various immigration documents, and the "Americanization" of foreign names when living in the United States.
Response: DHS has changed "Roman" alphabet to "Latin" alphabet in the final rule. DHS is not requiring any particular transliteration method, but notes that both AAMVA and ICAO have published standards that address the issues raised in these comments.2. Gender
Comment: Two States raised issues about how gender is determined for transgender individuals and whether gender will be included as a verifiable identifier through EVVE.
Response: DHS will leave the determination of gender up to the States since different States have different requirements concerning when, and under what circumstances, a transgendered individual should be identified as another gender. Data fields in EVVE are outside the scope of this rulemaking.3. Digital Photograph
Comment: A number of States objected to the requirement to take the applicant's photograph at the beginning of the licensing process because doing so would require extensive changes to State processes, facilities, and vendor contracts. According to one commenter, only seven States currently take an applicant's photo at the beginning of the process. One State requested a cost-benefit analysis for taking the photograph at the start of the process. One commenter suggested using an inexpensive image capture at first, then replacing the image with the final digital photo on issuance.
Response: Under § 202(d)(3) of the REAL ID Act, States must subject each person applying for a driver's license or identification card to a mandatory facial image capture. Submission of an application for a driver's license occurs at the beginning of the licensing process, and as such, requires that the photo be taken at the beginning of the process. Additionally, from a law enforcement and operational perspective, an up-front image capture process serves as a deterrent to individuals attempting to present fraudulent documents or to "office shop" within a jurisdiction when their application may have been already denied in another office.
Comment: A number of commenters objected to the requirement for a color photograph because it would bar the use of laser engraving. One commenter stated that photographs are better for checking identities. However, AAMVA and other States recommended that the required image be in color.
Response: DHS agrees with those commenters that a black and white photograph should also be acceptable in order to facilitate the use of laser engraving technology by States choosing to employ this technology to deter counterfeiters, and the altering and tampering of their driver's licenses and identification cards. The final rule has been changed accordingly.
Comment: One commenter suggested that DHS replace the ICAO 9303 standard's aspect ratio with the AAMVA's aspect ratio, which is the Universal Camera Aspect Ratio.
Response: DHS believes the proposed ICAO aspect ratio, with an Image Width: Image Height aspect ratio range of 1:1.25 and 1:1.34, will accommodate the AAMVA Universal Camera Aspect Ratio of 1:1.33.
Comment: Several commenters wrote that requiring photographs could burden the free exercise of religion for some groups, such as Amish Christians and Muslim women. One commenter noted that banning the wearing of veils and scarves would require new State legislation. Another commenter asked DHS to clarify that a person may not wear any garment that affects the reliability of facial recognition technologies. Another State said the regulation should require States to refuse a license or ID to anyone who appear s in disguise or distorts the face when photographed.
Response: As DHS stated in the preamble to the NPRM, the REAL ID Act requires a facial photograph, which serves important security purposes. Given these security 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-compliant 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 continu e 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 at § 37.71.
While the final rule does not specifically address individuals who appear in disguise or who distort their face when photographed, DHS expects that States will implement their own procedures to ensure that the photographs are accurate representations of the individuals.
Comment: Some States objected to the requirement for a profile photograph for people under 21 years of age because it will defeat biometric facial recognition systems. One commenter suggested printing the cards with a different orientation to differentiate under-21 licensees while allowing for facial recognition technologies.
Response: A typographical error in the NPRM left the misimpression that DHS was requiring a profile photograph for individuals under age 21. The final rule does not require a profile photograph for people under 21, and instead requires a full facial digital photograph.
Comment: One commenter recommended that States be required to share their images. Another State commented that the requirement to retain images of people suspected of fraud would mean that they had to keep all images because the suspicion of fraud may occur long after the license is issued, and data storage costs would be significant.
Response: DHS agrees that there would be substantial value in preventing the acquisition of multiple identity documents if States were able to exchange images of their license holders with one another. DHS believes that the States have the same interest and therefore States must ensure that the same individual does not have multiple driver's licenses or identification cards from the same State. DHS also encourages States to participate in AAMVA Fraud Early Warning System (FEWS) or similar system for exchang ing information on fraud or attempted fraud in the issuance of driver's licenses or identification cards. DHS believes that the volume of images of individuals who start, but do not complete the application process, will not be so great as to impose substantial data storage costs on the States.4. Address of Principal Residence
Comment: One State noted that it has a "homeless exception" to its proof of residency requirement where proof of residency documents are waived if the applicant provides a letter, on letterhead, signed by the director of a homeless shelter, certifying that the individual is homeless and stays at that shelter. It suggested that this be an acceptable action under an "exceptions process" for the homeless. Other States voiced concern that the rule does not address the "truly homeless," those not living in a she lter.
Response: DHS agrees that a letter, on letterhead, signed by the director of the homeless shelter, certifying that an individual is homeless and stays at that shelter, should be sufficient to establish an individual's address of principal residence under a State's exceptions process. As noted above, States have wide latitude to address issues concerning an individual's address of principal residence within their State-specific exceptions process.
Comment: AAMVA, other commenters, and many States commented that DHS allow States the authority to provide for the confidentiality of individual's address of principal residence, including the categories of individuals who would be subject to the address exception. One commenter suggested that DHS devise standard rules governing address confidentiality rather than allowing each State to devise separate and unique requirements. One State claimed that a confidential address program is unnecessary.
Response: DHS agrees that States should have broad authority to protect the confidentiality of the address of principal residence for certain classes of individuals. DHS has added additional clarifying language in the final rule that should help to alleviate any uncertainties.
Comment: Numerous commenters claimed that the confidential address provision in the rule did not address all individuals who may have legitimate reasons for protecting their addresses from public disclosure. Commenters noted that § 37.17(f)(1) was too narrow and would not qualify individuals who would otherwise be protected under State law. Several States recommended additional address exceptions for the following categories: sitting and former judges, Federal officials in limited circumstances, covert law enforcement officers as long as the officer provides a letter of authorization, State administrative personnel engaged in law enforcement, participants in the witness protection program, and victims of domestic violence. One commenter stated that the exemption should include family members when laws or court orders suppress the addresses of those individuals.
One commenter claimed that the partial exemption to the principal address requirement is inadequate by removing the option of not listing an address and relying solely on State laws that cover a limited number of individuals. The commenter noted that only 24 States have confidentiality programs in place, which is a requirement for the exemption to apply. Victims in the remaining jurisdictions will not be protected unless they can obtain a court order suppressing their addresses. Another commenter wrote that States have created formal address confidentiality programs and have also provided general measures of residential address privacy and this rule overrides these substantial protections.
Response: As noted above, DHS agrees that States should have broad authority to protect the confidentiality of addresses. DHS has clarified language in the final rule so that it is clear that a DMV may apply an alternate address on a driver's license or identification card if the individual's address is entitled to be suppressed under State or Federal law or suppressed by a court order including an administrative order issued by a State or Federal court.
Comment: A few States claimed that use of alternative addresses is justified on the REAL ID cards, but that the principal residence must be captured and stored in a secure database. They requested clarification from DHS on how States would meet the requirements related to the protection of the principal residence addresses. Another State noted that it has no confidential address program, but it permits a post office box to be displayed on the identification document if requested, but again it retains the pe rmanent address in a database. One commenter stated that the better level of protection would be to note in the MRZ that the individual's address is protected and provide a pointer to whatever relevant authority handles those addresses for that jurisdiction. This process would also serve a secondary purpose in that anyone seeking the address would make a request that could be logged and validated.
Response: DHS agrees that an individual's true address must be captured and stored in a secure manner in the DMV database even if an alternate address appears on the face and MRZ portions of the driver's license or identification card.
Comment: One commenter recommended that the final rule allow courts to issue administrative orders suppressing the collection of REAL ID information or its display on identification documents in any jurisdiction where the legislature has not acted to protect privacy.
Response: DHS agrees with this comment and has changed the final rule to reflect that an address may be suppressed by a court order including an administrative order issued by a State or Federal court.
5. Signature
Comment: Two States and another commenter stated that the rule needs to allow for people who cannot sign the card, such as minors, and older or disabled persons. If States use a signature match, an alternative process must be available.
Response: DHS agrees with these comments. Section 37.17(g) now provides that a State "shall establish alternative procedures for individuals unable to sign their names." This language gives the States wide latitude in how to address situations where an individual is unable to sign his or her driver's license or identification card.6. Physical Security Features
Comment: Numerous States and other commenters stated that DHS should provide security objectives or performance standards, and not specify particular technologies, materials, or methods. AAMVA wrote that States are using the AAMVA Driver Licensing/Identification Card Design Specification as the minimum standard and to change direction now would be costly for States. AAMVA further commented that restricting all State-issued driver's licenses and identification cards to a single security configuration could i ntroduce new security vulnerabilities rather than protect the driver's licenses and identification cards against fraud. AAMVA wrote that it is not aware of any jurisdiction that uses all the listed security features with the proposed card stock in its card design or production. Numerous commenters stated that the proposed requirements would eliminate over-the-counter issuance systems and place an unnecessary financial burden on States.
Response: DHS understands that there are challenges States may face in producing secure driver's licenses and identification cards. The final rule removes requirements to use specific technologies, and provides the flexibility for States to implement solutions using a combined set of security features that provide maximum resistance to counterfeiting, alteration, substitution, and the creation of fraudulent documents from legitimate documents. DHS will work with stakeholders to develop performance standards and a methodology for adversarial testing.
Comment: Commenters were concerned that DHS was not targeting its security enhancement properly, and that increased security features would not accomplish the goal of reducing fraud. AAMVA and another State commented that major DMV fraud and abuse issues are not associated with the cards, but with source documents that cannot be verified, system breakdowns, and people who breach integrity. Another State commented that unless airports, Federal facilities, and nuclear plants have document authentication syste ms, implementation of REAL ID is without purpose. One State also stated that unless inspectors are trained in fraud detection or equipment is available for detection, fraud will continue. One commenter recommended that the AAMVA fraudulent document recognition training be used.
Response: DHS agrees, generally, that no single solution eliminates all fraud relating to an identity document. That is why the NPRM proposed, and the final rule requires, steps to improve internal procedures at DMVs as well as the physical driver's license or identification card issued by the States. DHS agrees that fraud detection training is an important element in an anti-fraud regime and endorses the use of AAMVA's fraudulent document recognition training or equivalent by the States.
Comment: AAMVA stated that States cannot consider making any changes until existing contracts with card integrators expire or they will face high penalties for breaking existing contracts; any change would require States to proceed though the competitive bidding processes, evaluate proposals, award new contracts, and implement the complex and expensive process of re-engineering their issuance processes. Any wholesale change in card design will be costly, complex, and time consuming. Several States also note d that contractual processes will slow implementation.
Response: DHS understands that existing vendor contracts make it difficult for some States to make changes during the term of their card contracts. The final rule provides flexibility in card solutions. DHS will require States to take appropriate measures to issue driver's licenses and identification cards that are resistant to tampering, alteration or counterfeiting.
Comment: Commenters, particularly States that issue driver's licenses and identification cards "over the counter," objected to check digit specification, unique serial number, application of variable data, and laser printing. One commenter supported associating card stock serial number with a customer. One State agreed with incorporation into the card of taggant (a radio frequency identification chip) and marker, but said that only State employees need to know if the State is using such embedded technology. One State noted that it uses seventeen overt, covert, and forensic security features to make counterfeiting difficult; it recommended that States use different designs and combinations of security features to deter counterfeiters. One commenter wrote that the proposed rule includes a requirement for an optically variable feature and suggests that a "diffractive optically variable feature" be included to enhance protection. The commenter said it is unclear how this feature enhances protection over existing State-issued driver's licenses and identification cards as many already use such technology. The commenter recommended optically variable ink as a security feature. This ink technology, currently used in U.S. passports and outlined in the FIPS 201 security standards, is not reproducible using commonly used or available technologies, and requires much less training to authenticate quickly. No readers or special equipment are required to observe the color shifting effect, meeting the requirements in the propo sed rule for a Level 1 security feature. Additional forensic security, such as micro-flakes with etched on numbers, logos or words that are visible under low-power magnification can be included in the micro-flakes of the overt optically variable color shift technology, meeting the requirements in the proposed rule for Level 2 and Level 3 security features.
Response: The final rule provides for a performance-based, not prescriptive, approach to card solutions. Specific security requirements are not mandated in the rule. However, the final rule includes requirements for three levels of document security designed to provide maximum resistance to counterfeiting, alteration, substitution, and the creation of fraudulent documents from legitimate documents that are not reproducible using common or available technologies. DHS encourages States to explore the range of existing and still-to-be developed technologies in this area. The final rule requires States to use card stock and printing materials that are not widely available commercially in order to significantly decrease the likelihood that a driver's license or identification card could be easily counterfeited or altered.
Comment: One commenter recommended inclusion of a digital signature as a Level 3 security feature.
Response: The final rule provides for performance-based, not prescriptive requirements for implementation. While digital signatures offer a higher level of security, States may choose to invest in other, similarly secure technologies.
DHS encourages States to consider the use of this and other security features.
Comment: States asked for clarification as to the meanings of "inspector," "microline text," "micro print," "external surfaces," "taggant," and "marker."
Response: DHS has removed the requirements involving these terms, so does not need to clarify these terms.
Comment: Two commenters stated that security features should not make it impossible to copy or create a digital image of a license, and that the rule should make it clear that any print on the image must not obscure the features. One State asked that DHS remove language forbidding reproducible security features and retain § 37.15(f)(2).
Response: DHS agrees that the security features employed should not make it impossible to copy or create a digital image of a license. Many private sector industries, including the banking sector, often need to reproduce and retain a copy of an individual account holder's driver's license or identification card. DHS also agrees that print on the image should not obscure the individual's features.
Comment: One commenter recommended incorporating some security features in the substrate.
Response: The final rule requires level 1, 2 and 3 security features that provide multiple layers of security, and States may adopt security features that meet their needs, including incorporating security features into the substrate.
Comment: One commenter stated that requiring a color photo and laser printing means that two printers will be needed.
Response: The final rule allows for either a color or black and white photograph. Laser engraving, while a very effective security measure, is not a requirement of this rule.
Comment: One State commented that it currently uses adversarial testing for its cards and provided detailed information on its process. AAMVA and several States said that there are no adversarial testing standards and that DHS should develop them and either take responsibility for testing the cards or certify the testing organizations. Another commenter recommended that there should be a single center for adversarial testing using a single set of criteria to avoid the undue influence of vendors and disparat e standards. Some States suggested alternatives to adversarial testing, such as card design security programs or security audits. One commenter suggested that adversarial testing occur only if the State card has changed rather than annually. Another commenter recommended testing every five years or at contract changes.
Response: The development of standards and adversarial analysis and testing of driver's licenses and identification cards is an effective approach to ensuring that these documents provide maximum resistance to counterfeiting, simulation, alteration and creation of fraudulent driver's licenses and identification cards. DHS will work to develop performance standards and adversarial analysis and testing.
Independent adversarial testing is an important tool in limiting the ability of someone to tamper, alter, or counterfeit a driver's license or identification card. DHS agrees with the comments that there are no recognized testing standards to date and a lack of available and accredited testing facilities. Therefore, DHS has removed the requirement for States to obtain an independent adversarial test of their card security.
Comment: Numerous commenters objected to the card stock requirement, stating that the NPRM design specification essentially calls for polycarbonate material and AAMVA and its members do not support polycarbonate as the only option for the cards. This material is not used anywhere in the United States today, is the highest cost card material in production today, and is only available from a limited number of vendors, which negates State requirements for competitive bidding. Another commenter noted an inconsi stency between polycarbonate card stock and the requirement to meet ICAO 9303. The ICAO standard requires a color photo, but polycarbonate card stock allows only black and white photos.
Privacy groups supported use of polycarbonate cardstock in conjunction with laser engraving because laser engraving on other card stocks may be removable. One commenter indicated that other stocks would function as well. Another commenter stated that requirements for card stock durability should be based on the renewal period used by the State. One State asked to whom missing card stock should be reported.
Response: The final rule reflects a less-prescriptive approach to card security, and does not mandate the use of a specific card stock and prescriptive security features. The final rule requires States to use card stock and printing methods that are not widely available commercially in order to significantly decrease the likelihood that a driver's license or identification card can easily be counterfeited or altered. States should develop and utilize a system of reporting missing card stock and other secure supplies and equipment related to the production of driver's licenses and identification cards to other State DMVs and law enforcement.7. Machine Readable Technology
Comment: Privacy groups and several States recommended laws limiting the collection and storage of Machine Readable Zone (MRZ) data by third parties. Several other States commented on the importance of accessibility for law enforcement and noted that the same information is available on the front of the identification cards in human-readable form. Some commenters wanted MRZ access restricted to law enforcement, while others supported also providing access for bars and liquor stores to help prevent underage drinking but limiting their collection and storage of the personal information. One commenter stated that nothing in the REAL ID Act authorizes Federal agencies to read and collect information contained in the MRZ and cited to the Conference Report statement that the MRZ must only be able to be read by law enforcement officials. One commenter opposed any indication in the MRZ that a person was an owner or buyer of firearms or was licensed to carry a firearm; the commenter also asked that DHS forbid the incl usion of this information unless required by State law.
Response: The REAL ID Act does not provide DHS with authority to prohibit third party private-sector uses of the information stored on the REAL ID card. As noted in the proposed rule and the PIA issued in conjunction with the rulemaking, at least four States (California, Nebraska, New Hampshire, and Texas) currently limit third-party use of the MRZ, and AAMVA has issued a model Act limiting such use. DHS encourages other States to take similar steps to protect the information stored in the MRZ from unauthor ized access and collection. In response to commenters urging that the rule limit Federal agency access to the MRZ, DHS is not aware of any current plans by Federal agencies to collect and maintain any of the information stored in the MRZ. If a Federal agency should decide to use the MRZ to collect and maintain personally identifiable information in the future, any such information collected from the MRZ will, of course, be subject to the protections of the Privacy Act and other Federal laws and policies reg ulating the use and handling of personally identifiable information. This final rule does not require (and the NPRM did not propose) that the MRZ contain any information about firearm ownership.
Comment: Many commenters suggested data elements that should or should not be in the MRZ. AAMVA stated that the final rule should limit the MRZ elements to those set out in its driver license card design standard. Another commenter wrote that DHS should set the minimum data elements in the MRZ at zero and the maximum at full legal name, date of birth, and license number. Other commenters stated that data on the MRZ should be limited to what is on the face of the document. One State recommended inclusion of the issuing State in the MRZ to facilitate the routing of NCIC inquiries by law enforcement agencies using in-car bar code reading equipment. Another commenter suggested limiting the MRZ data to a pointer that does not correspond to the ID number that would link to a database limited to law enforcement. One commenter recommended including the digital image in the MRZ using the ISO/IEC 18013-2 standard. Two States opposed including an inventory control number (ICN). One commenter objected to the PDF standard because the NPRM preamble had referenced adopting most of the data elements in the 2005 AAMVA Driver's License/Identification Card Design, which includes coding for race.
Response: The final rule mandates that the States use the PDF417 2D bar code standard with the following defined minimum data elements: Expiration date; holder's legal name; issue or transaction date; date of birth; gender; address; unique identification number; revision date (indicating the most recent change or modification to the visible format of the license or identification card); inventory control number of the physical document; and State or territory of issuance. The proposal in the NPRM to include the full name history, including all name changes, has been dropped. Race is not a data element contemplated in this rulemaking and the reference in the NPRM to the AAMVA standard was not intended to include race as a data element in the MRZ for REAL ID.
The majority of commenters on the issue of data elements recommended limiting the data elements to those needed by law enforcement and the DMVs to carry out their duties. The final rule sets the minimum elements to include, but recognizes the authority of the individual States to add other elements such as biometrics, which some currently include in their cards.
Changes in technology in the future may enable the States to reduce the elements to a pointer that would electronically link to a database and provide only authorized parties access to information that today is stored in the MRZ. The current technology available to State DMVs and most law enforcement officers, however, does not provide that capability.
Comment: Several commenters said the 2D barcode is easily copied and reproduced. One commenter supported the 2D barcode, but noted that it is not meant to be a security feature; the 2D barcode does not allow an upgrade of an encryption scheme, does not employ dynamic forms of authentication, does not store audit trails, and does not use other security features. One commenter stated that the rule for the barcode was insufficient, particularly that there was no barcode standard specified which would facilitat e the common machine readable technology requirement mandated by the REAL ID Act. Two existing standards could provide the basis for what is needed: One is the AAMVA format and the other is the format in the draft of part 2 ISO standard 18012. However, the proposed rule required fields that are specified differently or are just not in either of these standards. One commenter objected to the standard because the selected version includes coding for race. One commenter stated that mandatory requirements make it difficult to keep up with technology. A security group and one State stated the bar code should include a revision date.
Response: DHS recognizes that a 2D barcode may have security vulnerabilities and technology limitations compared to other available technologies. However, the PDF417 2D barcode is already used by 45 jurisdictions and law enforcement officials across the country. A different technology choice could hamper law enforcement efforts and may pose an additional financial burden on the States. DHS supports efforts of States to explore additional possible technologies in addition to the PDF417 2D barcode.
DHS disagrees with the notion that the standard selected should be rejected because it includes coding for race. DHS has never stated that race should be encoded on the license, and specifically stated in the proposed rule that it was not incorporating wholesale the card data elements currently required by AAMVA.
Comment: One commenter supported the decision to omit an RFID device. It stated, however, that the NPRM does not discuss what information from a card should be made available digitally and what purpose it would serve.
Response: DHS is not requiring that States employ RFID in REAL ID Act cards; rather the only technology required by the final rule is the use of the PDF417 bar code, which most States already use on their cards. The information stored on the MRZ enables law enforcement officers to compare the information on the MRZ with the information on the front of the card to determine whether any of the information on the front has been altered and to automatically populate law enforcement reports, increasing officer s afety. The ability to run the MRZ through a scanner device also enables an officer to quickly retrieve the information on the card and request from their dispatch office additional information on the individual, while maintaining visual contact with a suspect, a safety consideration for the officer.8. Encryption of MRZ Information
Comment: Commenters were divided on whether some or all data in the MRZ should be encrypted. In general, groups concerned with privacy issues supported encryption, although one commenter argued that encryption would provide a false sense of security. Three States supported encrypting MRZ data. Groups supporting encryption cited the following:
--The capture of data by other users, such as financial, retail, or commercial institutions that could retain, use, and sell the personal data.--The possible inclusion of additional private information in MRZ, such as residential address, race, [trans]gender, or legal name history that could expose the holder to harm if captured and revealed.--Congressional intent to limit use of the data to law enforcement.
Some commenters stated that if DHS does not mandate encryption, it should at least not prohibit it. Others supported encryption of only some data, specifically data not available on the front of the card. One supporter stated that DHS should have done a comprehensive analysis of encryption systems and their costs and presented that data.
Numerous other commenters, including the States and AAMVA, opposed encrypting the data. Other commenters were divided among those who believed it is feasible to encrypt the data, those who considered it infeasible, and those who offered alternative technologies, particularly smart cards and public key infrastructure. Commenters opposing encryption cited the following reasons:
--The difficulty of managing encryption keys that could be used to decrypt any REAL ID. If a single key was used, once the key was compromised, every driver's license issued with the key would be insecure. If multiple keys are used (e.g., different keys for each State), then every law enforcement agency would have to be able to access all of the keys. Multiple keys would limit the threat because key compromise would affect fewer driver's licenses, but would increase the difficulty of using the MRZ data acro ss the country. Once a key is compromised, any license issued using that key would have to be replaced to be secure.--The cost of systems for law enforcement. The costs cited included the cost to replace existing readers plus the cost of setting up an encryption system and the ongoing costs of managing keys.--The additional time required for law enforcement. Particularly if multiple keys are used, law enforcement and DMV officials may need more time to read the data. This added time requirement would limit the ability to check the validity of documents quickly, particularly those from other States.--The inability of non-law enforcement to use the data to verify the validity of the information on the face of the card. Businesses also use the MRZ data to determine if the document is genuine. Eliminating that ability would harm businesses that rely on the driver's license and would affect the ability of restaurants and bars to confirm ages. These businesses can help identify criminal use of false documents using the MRZ. Some commenters argued that the government should set limits on the retention and use of the data rather than encrypt the MRZ.--The futility of encrypting data present on the front of the card. Commenters stated that if the data included in the MRZ are readable on the front of the card, encrypting the MRZ provides no protection because optical scanning readers are capable of translating the card data into a database. The information can also be copied or transcribed.
Response: DHS considered the many comments on this issue and acknowledges that the skimming of the personally identifiable information from the MRZ raises important privacy concerns. Nevertheless, given law enforcement's need for easy access to the information and the complexities and costs of implementing an encryption infrastructure, no encryption of the MRZ will be required at this time. If the States collectively determine that it is feasible to introduce encryption in the future, DHS will consider such an effort, as long as the encryption program enables law enforcement to have easy access to the information in the MRZ. Moreover, DHS, in consultation with the States, DOT, and after providing for public comment, is open to considering technology alternatives to the PDF417 2D bar code in the future to provide greater privacy protections.
J. Validity Period and Renewals of REAL ID Driver's Licenses and Identification Cards
1. Validity Period
Comment: At least two commenters said that the proposed eight-year validity period is too long, because it would give counterfeiters and forgers too much time to learn how to simulate or alter cards in circulation. The groups recommended that DHS require States to adopt a validity period of no more than five years. AAMVA and one State said that State DMVs should be allowed to determine the duration of their licenses based on business processes and needs. A few States said that a validity period of no more t han eight years would create difficulties for elderly and some disabled persons who are clearly not national security risks. These States asked for the flexibility to grandfather these populations or to issue cards with extended validity periods.
Response: The REAL ID Act establishes a maximum license validity period of eight years. Nothing in the Act or the rules precludes a State from adopting a shorter validity period for business, security, or other needs.2. Reverification of Source Document Information
Comment: AAMVA and several States expressed strong opposition to the requirement that States re-verify information and source documents for renewals and replacements of driver's licenses and identification cards. They said that this requirement would be costly, burdensome, and unnecessary in part because of the processes that many States already have in place for renewals and replacements. In addition, some commenters claimed that the requirement to re-verify source documents such as address documentation i s impossible to comply with because there is no electronic system to do so. One State DMV pointed out that because Federal and State databases are not updated in real time, it is likely that changes would not be immediately verifiable.
One State supported requiring re-verification of birth certificates because changes to the birth certificate, such as a name change, could be made after the original birth certificate verification occurred. This suggestion would also allow for matching against State death information to prevent fraud. Another State endorsed the re-verification of information for temporary REAL ID licenses and for driver and ID card holders who do not have Social Security numbers.
Response: DHS agrees with the comments that it is not necessary to re-verify all source documents at renewal. DHS proposed this requirement in the NPRM since it recognized that the quality of recordkeeping in both Federal and State databases would improve over time. Instead DHS has amended the rule to require reverification of SSN and lawful status prior to renewal and verification of information that the State was previously unable to verify electronically.
Comment: Several State DMVs asked DHS to clarify exactly what they would need to do to "re-verify" information. For example, one State asked if States would be required to verify each source document and imaged piece of information if electronic verification systems were not available at the time of initial enrollment. One State asked if States could use original source documents to re-verify applicant information if the documents have expired since the date of original verification. Another State asked DHS to explain the difference between "verified" and "validated" as referenced in § 37.23(b)(1)(ii) of the NPRM.
Response: As noted above, DHS is not requiring States to re-verify source documents at renewal. However, States must reverify the SSN and lawful status upon renewal and electronically verify information that the State was previously unable to verify electronically.
Comment: AAMVA said that DHS should allow States to determine if they want to re-verify information that has already been verified by another State. AAMVA said that the new State of residency should be able to determine whether to "re-vet" an applicant's information. One State requested that DHS allow a license transferred from another State to be renewed or replaced remotely, even if the new State of residence does not have electronic copies of the applicant's identity documentation. One State said that th e renewal of a REAL ID-compliant card should only require the minimum combination of a REAL ID document and some proof of address. Another State suggested that States be allowed to exempt from re-verification applicants who have been verified at initial enrollment as U.S. citizens and who have had no changes to name or Social Security information. A few commenters mentioned that a birth certificate should not be re-verified if there was a copy of it maintained at the DMV.
Response: The NPRM did not propose any requirements for how a State should treat a REAL ID issued by another State except to propose that a REAL ID driver's license or identification card be accepted as an identity document, to establish name and date of birth. When an individual moves from one State to another, the new State would still be required to verify the individual's SSN and ensure that he or she is lawfully present in the United States3. Renewals
Comment: AAMVA recommended that § 37.23 be entirely stricken except for paragraph (b)(2)(iii) of the NPRM, which would require holders of temporary REAL ID cards to renew them in person each time and to present evidence of continued lawful status.
Response: DHS disagrees with the comment and believes that it is necessary to have standards governing the renewal of a REAL ID-compliant driver's license or identification card.
Comment: One commenter wrote that the rule would make it far more difficult and expensive for current holders of a commercial driver's license (CDL) to renew or replace their licenses, that delays and the expense in having a license renewed or reissued are particularly important for this segment of the population, and that they might force drivers to seek other employment altogether.
Response: DHS disagrees with this comment. DHS has not been presented with evidence that CDL holders will be affected disproportionately by the REAL ID requirements or that the REAL ID requirements will force commercial driver's license holders to seek other employment.
Comment: Commenters expressed strong opposition to the restriction that remote transactions would be allowed only if "no source information has changed since prior issuance" (§ 37.23(b)(1) of the NPRM). In particular, many States, AAMVA, and other commenters wrote that applicants should be able to make address changes without having to appear in a DMV office, and that only material changes (e.g., name change) should prompt the need for an in-person visit. In general, commenters wrote that they do not curre ntly require an office visit for address changes, and some said they do not issue a new card when notified of an address change. They said that requiring in-person visits for address changes would dramatically increase the number of visitors to DMV offices, with huge cost increases for State agencies (which some DMVs said the Federal government should cover), without necessarily improving national security. Some States further commented that making address changes more difficult for customers will result in these individuals simply not notifying the motor vehicle department of new addresses, which creates greater problems for State and local government and law enforcement.
Response: DHS agrees with these comments and has removed the requirement that an address change must be accomplished through an in-person visit to the DMV. Additionally, there is no requirement in the final rule for States to issue a new card when notified of an address change.
Comment: DHS received several comments on some of the methods listed in the preamble for authenticating identity prior to issuing a renewed license.
Response: Since DHS is only requiring that States establish a procedure to ensure that the proper individual is receiving a renewed document and is not requiring any specific method, these comments are not discussed as they are deemed outside the scope of the regulation.
Comment: AAMVA commented that the requirement that every other renewal take place in-person to allow for an updated photo would penalize residents of States with shorter renewal cycles. One State suggested that § 37.23(b)(2) of the NPRM should be changed to require in-person renewals and recapture of a digital image once every sixteen years, regardless of the period of validity of a State's cards. Two commenters stated that allowing sixteen years between photo updates might be too long because a person's a ppearance can change significantly during that time, and that the usefulness of the photos for facial recognition (manual or computerized) would greatly diminish over a sixteen-year time period. One State recommended that DHS adopt a ten-year in-person renewal cycle. Two States commented that exceptions to in-person renewals should be established for active military and the elderly.
Response: DHS disagrees with the comments and is retaining the requirement that a new photo be taken at every other renewal of a REAL ID driver's license or identification card. Enabling States to maintain their own renewal cycles permits States to plan for the flow of people through the DMVs. While DHS agrees that an individual's appearance can change significantly over sixteen years, DHS has concluded that an every-other-cycle photo requirement will meet State needs to reduce in-person visits at the DMVs while not posing an unacceptable security risk. States are free to impose a more frequent photo requirement.4. Reissuance of Documents
Comment: One State said that it would be overly burdensome to require all applicants for replacement driver's licenses or ID cards resulting from lost, stolen, or mutilated documents to personally appear at a DMV office. Another State wrote that, in many instances, the affected customer will not have the supporting documents readily available, which may result in some individuals driving without a license.
Response: DHS agrees with the comments. In the final rule, States may replace a lost, stolen, or mutilated document without requiring an in-person transaction. Current State practices will dictate what documentation needs to be presented for replacement driver's licenses and identification cards.
Comment: Some States, AAMVA, and several other commenters recommended against requiring a new card for address changes and asked that DHS allow States to propose interim methods of tracking address changes between renewal cycles without the requirement for issuance of a replacement card (unless State law requires it).
Response: DHS agrees with the comments. The final rule does not mandate that a State reissue a driver's license or identification card for an address change unless otherwise required by State law.
Comment: A number of States suggested that the definition of "reissued" be changed to indicate that the license contains material changes to the personal information on the document. An applicant for a "reissued" document would be required to personally appear at a DMV office to provide proof of the change. Furthermore, the State suggested that DHS create a definition of "duplicate" as a card that was issued subsequent to the original document that bears the same information and expiration date as the origi nal.
Response: DHS agrees with the comments. The final rule does not mandate a personal appearance at a DMV for a reissued driver's license or identification card unless material information, such as name or lawful status, has changed. The final rule adopts the proposed definition for a duplicate card.
K. Source Document Retention
Comment: AAMVA expressed concern about the proposed requirements dealing with transferring document images and linking document images to the driver record, and opined that the requirement to color scan and exchange documents using AAMVA's Digital Image Exchange program is misplaced. Another commenter stated that this program deals only with photos and that "it would be a giant leap to consider its use for documents." Several commenters objected to the costs of purchasing scanners, using computer storage sp ace, retaining color images, and integrating the image into the driver record. Some commenters believed the document retention period should be the same for paper copies and electronic storage, while others believed that the retention period for paper copies should be shorter than electronic. A few commenters pointed out that the Driver Privacy Protection Act and State laws had their own record retention requirements. Some commenters objected to the storage of documents containing sensitive personal informa tion as such documents are attractive target for criminals and hackers, and thereby pose significant privacy and security risks.
Response: The specific record retention period for imaged documents and paper documents is required by the REAL ID Act and the final rule applies those time periods. However, DHS agrees with the comments that some source documents may contain sensitive personal information and has modified the document retention requirements for birth certificates. Under the final rule, a State shall record and retain the applicant's name, date of birth, certificate numbers, date filed, and issuing agency in lieu of an imag e or copy of the applicant's birth certificate, where such procedures are required by State law and if requested by the applicant.
L. Database Connectivity
Comment: AAMVA stated that DHS has yet to provide specific information on how this "query" system will work and does not expect to provide that information until the comment period is over. AAMVA wrote that final rulemaking should not take place until there is opportunity for another round of comments and an extension of compliance dates.
Privacy groups argued that the proposal does not define security standards or a governance structure for managing any of the shared databases and systems. In their view, this abdication places the States in an impossible position: they are being forced to make their own citizens' personal information available to every other State with no guarantee of privacy or security.
One commenter recommended that the PCI Data Security Standards that apply to the credit card industry should be applied to DMV databases. One group suggested a decentralized query system that allows States to check all other States to see if an applicant already holds a REAL ID and returns a yes or no answer, rather than providing detailed data. One commenter recommended audit logs and audits to ensure compliance with privacy policies.
Response: DHS has provided a brief overview of the proposed architecture for data verification and State-to-State data exchange in the sections above. This architecture will likely build on the existing architecture of AAMVAnet and the systems design principles of its hosted applications. The proposed architecture will also build upon the security, privacy and governance principles that have guided AAMVA and the States for decades.
In addition, DHS will work with DOT, AAMVA and the States to reinforce the security and privacy features of this communications and systems architecture.
Comment: A commenter stated that DHS had exceeded its authority in the requirement that interstate access must be "in a manner approved by DHS." This commenter stated that since the rule does not describe, even in general terms, what the approval is based upon, States are left to guess at the DHS criteria for approval. Since the database exchange and the connectivity thereto are of utmost importance to States, the conditions upon which approval will be based need to be specified in the rule. They should not be provided by some yet to be developed guideline issued by DHS after the rule has become final.
Response: DHS will work with DOT, AAMVA, and the States to develop a path forward for both verification systems and State-to-State data exchange, including criteria DHS will employ to evaluate the adequacy, security, and reliability of such data exchanges.
M. Security of DMV Facilities Where Driver's Licenses and Identification Cards Are Manufactured and Produced
1. Physical Security of DMV Facilities
Comment: A few States said the security requirements would force closure of many DMV offices. At least one State said that the security requirements would lead to closure of remote offices, and that this could lead the State to opt out of complying with REAL ID requirements.
Response: In general, DHS does not agree with comments that indicate a State would prefer to have a security vulnerability rather than take the necessary steps to close it. There have been a number of well-documented instances where DMV offices have been burglarized and the equipment and supplies to manufacture driver's licenses and identification cards taken, highlighting the need to ensure that adequate procedures are in place to protect the equipment and supplies necessary for the production of REAL ID d river's licenses and identification cards. Protecting these materials and equipment are critical to reducing the possibility of fraud and identity theft.
Comment: While a few States supported the proposed ANSI/NASPO-SA-v3.OP-2005, Level II standard, numerous States said that this standard was intended to apply to manufacturing facilities, not to the issuance of driver's licenses. The commenters opposing use of the ANSI/NASPO standard stated that until a reasonable standard is developed, States should have the flexibility to determine what works for their issuance processes. Privacy groups are concerned that without a uniform standard, States could have 56 di fferent security and privacy policies with different levels of protection.
One State supported a narrow application of the ANSI/NASPO standard only to the DMV facility containing the database on license holders, while another State thought that the standards should apply only to the DMV production facilities. One commenter wrote that the NASPO standard needs to be reviewed every two years and that requirements should be added throughout the supply chain.
Response: DHS agrees with the comments that the proposed NASPO standard may be more appropriate to manufacturing and production facilities, as opposed to issuance sites. DHS is not requiring the use of the ANSI/NASPO standard in the final rule, but commends to the States the proposed standards as a good practice for securing materials and printing supplies.
Comment: One commenter proposed additional requirements for alarm systems, disposals, and suppliers. Another commenter suggested allowing DMVs to secure part of a building, rather than the whole building. The commenter wrote that the standard did not address the security of work stations and recommended biometric passwords. One commenter noted that providing the license directly to the person, rather than mailing it, was more secure; one State noted that the Post Office does not guarantee delivery.
Response: The final rule specifies what must be addressed in a security plan, including physical security of the buildings used to produce driver's licenses and identification cards, storage areas for card stock and other materials used in card production, and security of Personally Identifiable Information (PII).
If a DMV is located in a building shared by other offices or tenants, the area dedicated to the manufacture or issuance of driver's licenses and identification cards, storage of card stock and related materials, and PII must be secured in such a fashion to prevent unauthorized access. This requirement covers any equipment utilized to produce driver's licenses and identification cards as well as storage, access and retrieval of PII. States will determine how these items are protected in their security plans.
The rule does not mandate central issuance versus over-the-counter issuance.2. Security Plan
Comment: One State said that DHS had exceeded its authority under the Act in the requirement that a State's security plan address "reasonable administrative, technical and physical safeguards to protect the security, confidentiality, and integrity of * * * personal information stored and maintained in DMV * * * information systems." Another State wrote that the Act does not authorize DHS to compel States to establish or make available standards or procedures for safeguarding the information collected by mot or vehicle agencies. AAMVA asserted that tools such as information security audits, individual employee access audits, employee confidentiality polices, and privacy and security plans are already used in many DMVs.
Privacy groups commented that the rule must provide meaningful privacy and security protections and that the lack of clear privacy and security guidance in the Act does not preclude DHS from providing strong protections in the regulations. In fact, they urged DHS to include specific standards or minimum criteria against which the State plans could be evaluated.
At least two States objected to the provision that DHS could require "other information as determined by DHS." The States argued that any further requirements should be agreed upon and clearly identified in the regulations. One State said that unspecified requirements should not be left to DHS to develop outside of the regulatory process. Another State wrote that the access badge requirement is unrealistic.
Response: DHS believes that it has the authority to require States to take reasonable measures to safeguard the confidentiality of PII maintained in DMV information systems pursuant to the REAL ID Act. DHS believes that inherent in the Act's requirement that States must provide electronic access to the information contained in their databases is the principle that such information must be protected, and this concept is supported in the legislative history for section 202(d) (12) of the Act which states that "DHS will be expected to establish regulations which adequately protect the privacy of the holders of licenses and ID cards * * *." H.R. Rep. No.109-72, at 184 (2005) (Conf. Rep). Failure to protect the PII held in DMV databases could result in identity theft and undermine the very purpose of the Act, which is to strengthen the validity of the cards. DHS also believes that it can require States to provide other, reasonable information that DHS determines is necessary in the future without requiring future rulemaking.
Comment: AAMVA and several States requested guidance on what "written risk assessment of each facility" means and a template. Another State asked for guidance on which law enforcement officials should be notified. One State recommended that the rule limit the amount of data in any State's database and create stronger protections for information to limit the danger of aggregating information on 240 million Americans.
Response: DHS, DOT, AAMVA and the States will work together to develop best practices for risk and vulnerability assessments as well as for security plans for DMV facilities.
Comment: A trade association objected to the lack of standards for the security plan and further stated that because the State databases must be interconnected, the lack of standards would mean that the weakest plan implemented by any State would put all States at risk. DHS should require clear, strong, and verifiable minimum security measures. An association said that DHS was ignoring the threat posed by insiders, employees and contractors. According to this association, the rule should recognize the threa t and the importance of training to mitigate those risks.
Response: The final rule specifies what must be addressed in a security plan, including: Physical security of the buildings used to produce driver's licenses and identification cards, storage areas for card stock and other materials used in card production; security of personally identifiable information including reasonable administrative, technical, and physical safeguards, a privacy policy, and limits on disclosure; document and physical security features for the face of the driver's license or ID card, including a description of the State's use of biometrics and the technical standards utilized (if any); access control, including employee identification and credentialing, employee background checks, and controlled access systems; periodic training requirements in fraudulent document recognition for covered employees; emergency/incident response plan; internal audit controls; and affirmation that the State possesses both the authority and the means to produce, revise, expunge and protect the confidentialit y of REAL ID driver's licenses and identification cards issued in support of Federal, State or local criminal justice agencies or similar programs that require the safeguard of a person's identity in the performance of their official duties. Such requirements shall also apply to contractors involved in the manufacture or issuance of REAL ID-compliant driver's licenses and identification cards.3. Background Checks for Covered Employees
Comment: Generally, States did not support the proposed background check provisions. A few States objected to these provisions as too broad and impractical. AAMVA stated that these requirements are a Federal intervention into State personnel rules and one commenter stated that these provisions are a particularly invasive intrusion on State autonomy to decide the qualifications and conditions of persons within its employ, which is a fundamental attribute of State sovereignty. States also objected to § 37.45 (c), the provision instructing the States to notify persons of unfavorable checks and provide them appeal rights, and claimed that this provision may grant rights nonexistent in State law.
Numerous States said that background checks and the standards applied should be at the discretion of the State and not required. AAMVA and several
States suggested that existing employees should be grandfathered in to allow States to determine whether they want to do complete background checks on such employees.
Response: DHS disagrees that it cannot require background checks of covered employees. Such checks are a necessary step to protect against insider fraud, one of many vulnerabilities to a secure licensing system. DHS also disagrees with the concept of "grandfathering" existing personnel since there is no way to know in most States whether employees who have not been subject to a background check would satisfy this important requirement. Further, § 202(d)(8) expressly directs States to "[s]ubject all persons authorized to manufacture or produce driver's licenses and identification cards to appropriate security clearance requirements." The background checks required under this final rule are authorized by and consistent with that statutory mandate. The statute does not provide for an exemption for personnel employed by a State DMV before the effective date of the Act or this final rule and thus DHS cannot include a grandfather clause in this rule.
Comment: Some States believed that DHS has exceeded the authority granted by the Act on background check provisions because of its expansive definition of "covered employees." These States asserted that DHS is without authority to extend the background check requirements beyond employees who "manufacture or produce" cards. Similarly, one State asked that employees at branch offices who are not involved in the production and manufacture of driver's licenses or identification cards be exempt from the backgrou nd check requirements. One State noted that the rule attempts to subject "covered employees," "prospective employees," and "applicants" to the criminal history record check, yet only defines the term "covered employee."
Response: DHS disagrees that its definition of a covered employee is too expansive. DHS, the agency charged with interpreting and enforcing the Act, interprets "persons authorized to manufacture or produce" REAL ID cards to include those individuals who collect and verify required source documents and information from applicants as such information is a necessary part of the production of a REAL ID card. It would be illogical to cover only those DMV employees and contractors who carry out only the physical act of cutting or printing a license while exempting those individuals who interact with the public and may be most able to introduce fraudulent information into the system and thus thwart the intent of the Act.
Comment: Commenters wrote that States currently only undertake background investigations at the time of hiring, and that since existing employees are not applicants, it is entirely reasonable for labor organizations and permanent State employees not covered by collective bargaining agreements to argue that non-probationary employees fall outside the scope of the background check provisions. Some commenters claimed that the requirement that all designated employees, including those who are already employed, undergo background investigations is contrary to many State labor contracts and personnel practices. Numerous employees were hired under terms and conditions not requiring a security clearance. Should these employees be disqualified under the new regulations, States may be obligated to provide them with alternative employment or severance.
Response: As noted above, DHS believes that it would be a significant security vulnerability to exempt current DMV employees from a background check.
Comment: One commenter claimed that the use of the phrases "applicant" and "application" in the rule governing interim disqualifying criminal offenses poses a practical problem, since the time periods are defined in terms of the date of the application. Existing employees would have been considered applicants on the date they filed the application for the position in which they are currently employed, which may be well outside the time period that applies to interim disqualifying offenses (five years from t he date of application). Thus, commenters argued, the time period for interim disqualifications should start from the date of employment, not application. With regard to the proposed list of disqualifiers, AAMVA and some States wrote that States should determine their own disqualifying crimes and could outline those disqualifiers in the DHS certification package. Several States objected to the disqualification of people who have not been convicted on the grounds that such person should be considered innocen t until found guilty.
Response: DHS agrees that the time period for interim disqualifications for existing employees should start at the date of employment, not application. DHS agrees that States may supplement the list of disqualifying offenses with their own lists, but those lists cannot replace the Federal list. Finally, DHS agrees that States may make different decisions about whether to move an individual from a covered to a non-covered position even though the individual has not been convicted, and can exercise his or her waiver authority for this purpose under § 37.45(b)(1)(v).
Comment: A few States argued that States should have the option to give employees provisional clearance pending background check results, and that States could outline the procedures for provisional clearance in their certification packages.
Response: As discussed above, DHS believes that it would be a significant security vulnerability to exempt current DMV employees from a background check. DHS has included language that substantially similar background checks (i.e., those that use a fingerprint-based CHRC check and have applied the same disqualifiers as this rule; that include an employment eligibility determination; and that include a reference check) conducted on current employees on or after May 11, 2006, need not be re-conducted.
Comment: One commenter wrote that, of the twenty-nine States that currently carry out some level of employee background checks, only two conduct credit checks. AAMVA and many States objected to the credit check as costly and in conflict with State personnel rules. One State noted that the Equal Employment Opportunity Commission (EEOC) has determined that unless justified by business necessity, it is unlawful to reject candidates based on poor credit ratings.
One State asserted that this requirement is a Federal encroachment into an area historically reserved to States. Some States questioned the link between an employee's financial history and the propensity to commit a crime and posited that implementing this provision as written would cause many union-related issues affecting existing and future employees. Other States pointed out that many law enforcement personnel are not subject to this level of checking. Another commenter objected to the financial check a s an invasion of privacy that would not provide useful information, and if DHS requires a financial history check, it should provide standards on how the results of that check should be used by the States.
Response: DHS agrees that it would be difficult to make conclusive judgments about an employee or prospective employee's vulnerability to bribery based on a financial history check alone. Since the financial history check would not be determinative, DHS is eliminating the requirement for a financial history check from the final rule.
Comment: AAMVA said that lawful status checks are unnecessary and excessive because States already conduct such checks as part of the hiring process. One State noted that the requirement differs from current Federal requirements for completion of the Form 1-9. Other States pointed out that SAVE only covers immigrants, not native born Americans. AAMVA and several States noted that lawful status checks are often addressed in union bargaining contracts, and are covered by State personnel laws.
Response: In response to these comments and further consideration of this matter DHS has revised the final rule. Employment eligibility verification using Form I-9 procedures is required for all employees (whether U.S. citizens or aliens) hired for employment at DMVs (or any other U.S. employer) on or after November 7, 1986. REAL ID defines lawful status in a way that is not synonymous with employment eligibility under the INA. Thus, the final rule now cross-references current Form I-9 requirements under se ction 274A of the INA rather than requiring employees to be checked through SAVE. As part of its background check process, the State must ensure that it has fully complied with Form I-9 requirements with respect to covered employees (including reverification in the case of expired employment authorization), but additional status checks are not required. Nothing in this rule in any way modifies any Form I-9 requirement; rather, the background check, if done at a later time than the initial hire, provides ano ther opportunity for the State to check its previous compliance and correct any deficiencies. Form I-9 completion is, of course, required no later than three days subsequent to the first day of employment for all employees.
USCIS operates, in partnership with the Social Security Administration (SSA), an electronic employment eligibility verification program called E-Verify (formerly known as the Basic Pilot program). Participants in E-Verify can query SSA and DHS databases to verify the documentation provided by new employees when completing the Form I-9. States are strongly encouraged to enroll in this program, but, consistent with the voluntary nature of the E-Verify program as provided by the statutory provisions authorizin g the program, it is not required by the final rule.
Comment: One commenter stated that background check processes are flawed, misidentifying people five percent of the time. According to this commenter, in half the States, forty percent of the arrest records have not been updated in five years to indicate disposition of the case. Another State wrote that it would be easier to run checks if they could interface with the FBI database. One State wrote that States should not have to repeat FBI checks if done within the past five years. One commenter asked that t he FBI not charge States for accessing their systems.
Response: DHS believes that a fingerprint-based background check is the most efficient way to determine if an individual is subject to a disqualifying offense. FBI checks conducted on or after May 11, 2006 would not need to be conducted again.
Comment: One commenter said that workers subject to a background check deserve a clear and quick process to clear their names and win their jobs back with full restitution of any lost wages. Another commenter suggested that TSA should incorporate provisions from the HAZMAT rules which provide instructions for applicants on how to clear criminal records into the REAL ID rule.
Response: DHS believes that an individual denied employment based on the results of a background check should have the ability to challenge the accuracy of those records. States should make instructions available on how best to contest any inaccurate records or results.
N. State Certification Process; Compliance Determinations
1. Certification Process
Comment: Several commenters requested that DHS receive input and collaborate with States and other organizations on certification guidance and standards. One commenter requested that DHS provide certification packets outlining specific requirements as well as a clear definition of "until all requirements are met." AAMVA and several States recommended that States work with DHS in the development of a streamlined self-certification process to meet the requirements of the Act. One commenter suggested that risk assessment and mitigation plans be included in States' self-certification, and that States participating in the Driver's License Agreement should be able to substitute their compliance review process for DHS audit requirements. One commenter recommended that DHS establish a committee composed of Federal and State officials and representatives of groups which face unique challenges with respect to the REAL ID Act to recommend proposed content for the guidance documents on certification. Some States asked DH S to clarify the requirement for States to provide DHS with any changes to the information requiring certification. Regarding guidance requests, a few States requested a template for the certification document and the security declaration as well as a quarterly reporting standardized format.
Response: DHS has streamlined the certification process, and includes a compliance checklist with this rule. The Material Compliance Checklist will document State progress toward meeting DHS security benchmarks and will serve as the basis for DHS approval of additional extensions until no later than May 10, 2011.
Comment: Several States argued that the certification requirements are too burdensome, citing staffing issues as well as the need for ample preparation time and flexibility to comply with regulations. Similarly, many States argued that the frequency of certification reporting is too burdensome and questioned the need for quarterly certification reporting. One State recommended a triennial review. Other States thought the requirement to track all exceptions and to notify DHS 30 days before program changes we re over-reaching and not authorized by statute. One State recommended that the DHS establish a system of measuring performance instead of recertification.
Response: As documented above, DHS has simplified the certification process.
Comment: Some States suggested allowing States whose DMVs fall under a jurisdiction other than the Governor the ability for the relevant public official to certify compliance. AAMVA and one State argued that the rule should provide that certification be signed by the highest-ranking State official overseeing the DMV, including the DMV Administrator, and not require additional certification from the Attorney General.
Response: DHS agrees that requiring the Governor of each State to personally certify State compliance is too burdensome and has amended the requirement to allow either the Governor or the highest-ranking executive official with oversight responsibility over the operations of the DMV to certify State compliance.2. Compliance Determination
Comment: One State argued that unless and until a State loses a judicial review, it should be considered in compliance. Another State recommended that DHS recognize States that have implemented a number of requirements and plan to continue making substantial progress as compliant. A State asked DHS to allow for the Governor to indicate that the State will remain in compliance until it withdraws from the program. Some States argued that a phased approach was the only viable means to bring States into complia nce. One State recommended that DHS convene a working group with AAMVA to develop a phasing plan for compliance.
Response: As documented above, DHS has adopted a compliance process that significantly lessens the burden of REAL ID implementation on the States.
Comment: Various State and non-State commenters addressed noncompliance issues. One State asked how licenses issued during a compliant period would be treated if a State later fell out of compliance. Another State requested that DHS provide written notification of preliminary non-compliance determination and notice of final determination of noncompliance which would not be effective for 30 business days following receipt. A State indicated it would not agree with non-compliance issues until the standards ar e clearly identified and agreed upon. One commenter opposed DHS's ability to withdraw a State's certification to issue REAL ID driver's licenses and identification cards on short notice, noting that decertification would negatively impact truck driver communities, government facilities, and the overall economy of the State.
Response: REAL ID driver's licenses and identification cards issued when a State was in compliance with REAL ID will remain acceptable for official purposes until they expire, even if the State subsequently becomes non-compliant. The REAL ID certification process will provide a standardized means of measuring and monitoring the DMVs' compliance with REAL ID requirements. DHS will not withdraw a State's compliance on short notice, as certification reporting dates will be established in advance.
Comment: A commenter requested that DHS provide written statements of notice prior to inspections, interviews, or any noncompliance determinations. Some States asked for flexibility and reasonable prior notice when scheduling site visits and REAL ID compliance audits, in order to have appropriately trained staff available to answer questions and to prevent audit overlaps. Commenters believed that States should have ample opportunity for review and appeal of decisions regarding self-certification.
Response: DHS agrees with these comments. Language has been added to § 37.59(a) to indicate that DHS will provide written notice of inspections, interviews and audit visits. States will be provided with a sufficient opportunity for review and appeal of decisions regarding their self-certification.
Comment: Commenters addressed various training issues. One recommended that DHS allow the current AAMVA fraudulent document recognition training program to be used to meet the REAL ID Act's requirements. This program has been used by States and "is widely recognized as comprehensive, directly related to and easily comprehended by DMV staff." One commenter objected to the requirement for DHS approval of fraudulent document training. Another commenter emphasized the need for ongoing evaluator/authenticator tr aining. Without specific requirements for the training, States lack notice as to whether or not the training will comply with the regulations and will be subject to the unfettered discretion of DHS.
Response: DHS agrees that AAMVA's training program on fraudulent document recognition will be acceptable to meet the requirement of the Act and the final rule. The majority of States currently utilize AAMVA's program.
Comment: One commenter requested a definition of "expedited consideration" of a request for an extension. Other States requested opportunity for input, justification, and consulting in the extension process and assistance with development of the quarterly and annual reports. One non-State commenter requested standards for the issue of redress, and another suggested that DHS develop standards and plans to audit States' security plans.
Response: The final rule spells out a simple and straightforward process for States to request an extension to the REAL ID implementation deadline. DHS will also allow States to receive an additional extension based on achievement of certain benchmarks established by DHS until no later than May 10, 2011. DHS will notify a State of its determination on a request for extension no later than 45 days of receipt of the request. DHS will work with States and territories throughout the implementation process to as sist as required.
The input DHS receives from its stakeholders has been of tremendous value in crafting a final rule that the States may implement and that achieves a greater level of security and confidence in the State-issued driver's licenses and identification cards. DHS will continue engaging its valued stakeholders to shape the exceptions processes as well as other requirements of the rule.
O. Driver's License and Identification Cards That Do Not Meet the Standards of the REAL ID Act
Comment: One commenter did not agree with DHS that foreign nationals denied REAL ID licenses, even though they are lawfully present but do not yet have the documentation required to demonstrate such status, can simply obtain a non-REAL ID alternative. The commenter wrote that a driver's license increasingly has become a ticket to daily living, and a non-REAL ID license will unfairly and improperly tag the holder as "illegal" and result in discrimination. One commenter wrote that it is not a valid assumption that most States will issue some other kind of license for immigrants who cannot obtain a REAL ID license. Another commenter wrote that marking non-REAL ID cards would divide the country into two groups and that those with other cards would instantly be suspect and subject to delay, harassment, and discrimination.
One commenter noted that many people such as the elderly or disabled will not need a REAL ID and asked that the State be able to issue a non-compliant identification card to them. By excluding them from the REAL ID process, it will be easier for the State to process those who do need a REAL ID within the time allowed.
AAMVA stated that although DHS has argued that States do not have to comply with the Act, the Act and DHS still impose requirements on States for the issuance of noncompliant licenses. AAMVA wrote that this requirement forces States to be in compliance and that the rulemaking goes well beyond Congressional intent in prescriptively outlining State requirements for "non-compliant" REAL ID cards. One State and one individual commenter noted that requiring States to follow these standards imposes a cost on Stat es that choose not to comply, a violation of the 10th Amendment. Another State said that the Federal government cannot require a redesign of documents if the State is not complying. The Federal government should acknowledge the sovereignty of States' rights and respect the traditional State function of licensing drivers.
Response: DHS does not agree that an individual carrying a non-compliant driver's license or identification card from a State issuing REAL ID-compliant driver's licenses or identification cards would be subject to discrimination. States will make their own business and policy decisions about whether to issue noncompliant cards under 202(d)11 of the Act.
DHS has clarified in the rule that it interprets § 202(d)(11) of the REAL ID Act, which provides requirements for the issuance of driver's licenses and identification cards that will not be accepted by Federal agencies for official purposes, as applying only to States participating in the Act that choose to also make these types of documents available. This might apply, for example, to individuals with a religious objection to having their photos taken. DHS does not interpret this section to apply to State s that choose not to participate in the Act.
P. Section 7209 of the Intelligence Reform and Terrorism Prevention Act of 2004
Comment: AAMVA, some States, and several additional commenters support the development of REAL ID cards that are WHTI-compliant. AAMVA stated that this is an important direction to ensure the free flow of commerce and travel between the United States and Canada. Some States said that they already collected citizenship data and adding this to REAL ID cards will have little to no additional cost impact.
Several States argued against development of a WHTI-compliant/REAL ID-compliant card. One State said that citizenship is the purview of the Federal government and not that of States, and making a State DMV responsible for verifying citizenship places State employees in a Federal role. This State also noted that citizens with no desire to cross the border will derive no additional benefit from obtaining a REAL ID card that also denotes citizenship. A few States made similar arguments that very few of their r esidents would find it useful to have a WHTI-compliant REAL ID card. These States also argued that the expense to implement a WHTI-compliant solution would be cost prohibitive.
One commenter emphasized that REAL ID cards must not include citizenship information because of the potential of discrimination against those who choose not to carry a national identification card. Another commenter said that the creation of a dual-use driver's license should be a decision that is made by individuals, after they are fully informed of the benefits, risk, costs, and other details of the programs consistent with the Fair Information Principles.
A few commenters stated that they did not support States listing citizenship information on the REAL ID card or using a REAL ID card as an immigration/border document. These individuals believed that that WHTI-compliant REAL IDs would be significantly more useful to criminals and terrorists and therefore targeted for theft, counterfeiting, and fraud. One individual suggested that DHS could mitigate some concerns that the Department is trying to create a Federal ID by not requiring DMV to denote citizenship on REAL ID cards.
All of the organizations that responded to the question on where citizenship should be listed on the card stated that it should be on the machine-readable zone (MRZ) portion of the card. There were no supporters for listing the citizenship information on the face of the card. These organizations all claimed that placing citizenship information on the face of the card could result in discrimination against the bearer of the card; placing it on the MRZ portion of the card could prevent this from happening.
One commenter described in great detail the need to develop two encrypted MRZs on the card; one zone that can only be accessed and used by DMV and law enforcement officials, and another zone that can only be accessed and used by border and immigration officials. A few organizations commented that placing the WHTI information on a card may be challenging without increasing the size of the card itself. However, increasing the size of the card would be extremely costly.
Response: DHS welcomes the various helpful comments submitted in response to DHS's questions in the NPRM relating to WHTI. In June 2007, DHS published a NPRM to implement the land and sea phases of WHTI. While DHS acknowledges the desire of some, but not all, States and other commenters to use a REAL ID-compliant driver's license or identification card as a WHTI-compliant border crossing document, DHS did not propose that a REAL ID-compliant driver's license or identification card serve as a WHTI-compliant document in that NPRM and does not propose such in this rulemaking. While the proposed REAL ID requirements include proof of legal status in the U.S., the EDL will require that the cardholder be a U.S. citizen. In addition, EDLs will include technologies that facilitate electronic verification and legitimate movement of travelers through land and sea ports-of-entry.
Comment: A few commenters provided suggestions on the types of business processes and procedures that a State DMV could adopt to create a REAL ID that is also WHTI-compliant. One group suggested that citizens who desire to have a REAL ID that allows for WHTI border entry should be vetted by the State Department in the same manner as a person applying for a passport. The State Department would verify that the individual is eligible to receive WHTI identification and inform the appropriate State DMV that the individual has been approved to obtain a WHTI-compliant REAL ID. The State DMV should create the license/ID card as it normally would and then send it to the State Department to add the WHTI MRZ. There should be two machine-readable zones; one zone would only be able to be used and accessed by law enforcement and DMVs, and another MRZ that would only be able to be accessed and used by immigration/border officials.
One organization commented that State DMVs will need to be able to utilize the State Department's citizenship adjudication process or create a similar process for adjudicating citizenship.
One State opposed storing citizenship data on the MRZ, preferring to store this information centrally and access it via electronic means.
Response: DHS welcomes the comments submitted concerning potential business practices a DMV could follow to issue both a REAL ID and WHTI-compliant driver's license or identification card, including issues surrounding the adjudication of citizenship for WHTI purposes. As noted above, DHS published a NPRM to implement the land and sea phases of WHTI. At this time, DHS has decided not to incorporate requirements necessary for a WHTI-compliant document into the REAL ID rulemaking.
Comment: Many commenters said that RFID technology, the proposed technology for WHTI documents, should not be used on REAL IDs. Because RFID can be read from up to thirty feet away there are significant privacy and security risks. A few commenters noted that the DHS Data Privacy and Integrity Advisory Committee and the Government Accountability Office both advised against using RFID technology. One organization felt strongly that the use of RFID technology without the use of Basic Access Control and other s afeguards would contravene the basic security features that the Department of State has included in new U.S. passports.
Another group believed that States can leverage the same infrastructure that they will need to purchase for REAL ID to incorporate MRZ, proximity chips, and vicinity chip technology onto a driver's license. The only difference would be the cardstock and the quality assurance processes to ensure that electronics within the card are functioning properly. Another organization suggested that its product can turn the wireless function on or off as needed.
One State suggested that DHS not identify a specific technology to be used, but leave it up to the States to decide.
Response: The use of RFID is essential to the WHTI program in order to ensure facilitation at crowded U.S. land and sea crossing points. Similar concerns are not implicated by REAL ID, which is one of the factors that led DHS to select the 2D bar code as the common machine readable technology on driver's licenses and identification cards. DHS encourages States to explore alternative technologies on their driver's licenses and identification cards in order to promote security and technology advances as well as e-government initiatives a State may wish to explore.
Comment: There were several other comments related to the issue of creating WHTI-compliant REAL ID cards. One commenter requested clarification on why REAL IDs themselves would not be sufficient documentation to re-enter the United States. The commenter noted that REAL ID issuance standards require proof of lawful residence status within the United States, and the overall higher standards will make the cards more resistant to tampering and counterfeiting. Therefore, the commenters argued, it may be presumed that a holder of a REAL ID license has the right to re-enter the United States. Another commenter requested clarification on whether "enhanced" driver's license (EDLs) and ID cards that are issued through pilot programs will also have to be REAL ID-compliant. The commenter also requested clarification on how DHS will respond to States, like Washington State, that have passed legislation refusing to comply with the REAL ID Act unless the Federal government fully funds the State's implementation of the Act.
One commenter requested that DHS consult with tribal governments on how to best implement the REAL ID Act and that DHS consult with tribal leaders on the development of an Indigenous Identification Card for international border crossing.
One individual urged DHS to allow Canadians who are residents of the United States to be allowed to obtain REAL ID/WHTI-compliant driver's licenses or ID cards, as these individuals make up a significant portion of individuals who cross the border frequently.
Response: DHS acknowledges the desire of some, but not all, States and other commenters to use a REAL ID-compliant driver's license or identification card as a WHTI-compliant border crossing document. In the WHTI NPRM, DHS included a specific discussion of its ongoing efforts with Washington State regarding the issuance and use of an EDL as a WHTI-compliant document. EDLs can only be issued to U.S. citizens since the EDL would serve as the functional equivalent of a passport or passport card at land and sea border crossings. In addition, EDLs must also incorporate the technology specified by DHS to facilitate the legitimate movement of travelers through land and sea ports of entry. With respect to other holders of REAL ID-compliant driver's licenses or identification cards, any assumption that lawful status as defined for REAL ID purposes equates to a right to reenter the United States is incorrect. For example, applicants for adjustment of status typically must obtain advance parole in order to depart the Un ited States and lawfully return. DHS has decided not to incorporate requirements necessary for a WHTI-compliant document into the REAL ID rulemaking at this time.
Q. Responses to Specific Solicitation of Comments
Question 1: Whether the list of documents acceptable for establishing identity should be expanded. Commenters who believe the list should be expanded should include reasons for the expansion and how DMVs will be able to verify electronically with issuing agencies the authenticity and validity of these documents.
Comment: Several commenters did not think the list of documents acceptable for establishing identity needed to be expanded, at least for U.S. citizens, and they were concerned that expanding the list would place a burden on State DMVs. One State did not know of any additional documents that would be electronically verifiable. Another State recommended that the list should not be included in the rule, so that future changes can be easily made. One commenter favored the use of the "acceptable verifiable resou rce list" of identity documents approved by AAMVA. Another State suggested that the rule should only specify criteria and procedures rather than a list of specific documents for establishing identity.
Response: As noted above, DHS has decided not to alter the list of acceptable documents proposed and discussed in the NPRM.
Comment: One commenter thought that § 37.11 should require non-citizen applicants to provide their alien registration documents so that State officials can compare it to the name on other documents. Various commenters pointed out that foreign applicants would have documents that are not on the list but may have been issued by DHS or the courts to prove immigration status. Some commenters supported other immigration forms, such as Form I-94 (which may indicate lawful status in the United States) and I-797 ( which may be evidence of a pending application). Refugees and asylees are more likely to have these documents before they receive a Form I-766 Employment Authorization Document (EAD). Canadians present in the United States might have these forms rather than a visa. Two States suggested that any document that can be electronically verified through SAVE should be acceptable. Others argued for refugee status paperwork, expired foreign passports if USCIS documentation is current, as well as passports with expir ed visas and Immigration Court documents. One group recommended that DHS expand the list of acceptable documentation to include family members in the United States on derivative visas. Another group suggested that USCIS consider issuing a temporary refugee photo ID card that could be used to apply for a REAL ID.
Response: State DMVs will use the SAVE system to verify whether an applicant for a driver's license or identification card is lawfully present in the United States. Part of the information required in order to query SAVE is the name of the individual, which can be confirmed through one of the source documents for proving identity. Applicants are free to use any other documentation available, including an I-94 or an I-797, in order to demonstrate lawful status and assist the State in making a SAVE check. DHS also agrees with the commenters who suggested that any document that can be electronically verified through SAVE should be acceptable, since the purpose of providing that document is to prove lawful status, not identity. Neither the I-94 nor the I-797, for example, is sufficient to prove identity. DHS believes that refugees and asylees are issued EADs within a reasonable amount of time such that they are able to obtain REAL ID driver's licenses and identification cards, and so there is no reason to include other refugee or asylee paperwork or documentation to the list of documents used to establish identity.
Applicants who need an immediate driver's license can obtain a non-REAL ID document from States issuing such cards.
Canadians, however, will need to use their Canadian passport or obtain a U.S.-issued document in order to establish identity for a REAL ID license, as neither DHS nor the States can verify in a timely way that the document has been issued by the issuing agency (a foreign government in this case) as the statute requires. Canadians, however, can typically drive using their Canadian driver's license in the United States and can also obtain a non-REAL ID driver's license from States issuing such cards.
Comment: Some commenters had specific thoughts about the proposed provisions on birth certificates. A State agency suggested that a delayed birth certificate should be specifically named as an acceptable document. Other commenters argued for acceptance of hospital records or baptismal certificates within a year of birth and adoption papers. Another State noted that many births in rural areas are not recorded, and suggested that States should be able to use other documents. Many commenters wrote that the pro posed requirement for a certified copy would place a hardship on poor persons and the homeless.
Response: If State law permits the use of a delayed birth certificate, that document can be used by a State. Hospital and baptismal records are not acceptable documents to establish identity, though, in appropriate circumstances, can be used in a State's exceptions process to establish date of birth or lawful status in the United States.
Comment: Two commenters recommended that current State-issued non-compliant driver's licenses and identification cards and bank-issued credit cards be included on the list of documents acceptable to prove identity because technology exists to verify and authenticate these documents. Commenters were divided on the acceptance of Native American Tribal Documents, with a few commenters, some Tribes, AAMVA, and two States supporting acceptance of the documents (particularly for birth records), and a few States o pposing acceptance of these documents.
Response: DHS does not believe that non-compliant driver's licenses or credit cards are acceptable documents to establish identity. No identity verification has taken place with respect to these documents. Tribal documents are addressed elsewhere in the responses to comments.
Question 2: Whether the data elements currently proposed for inclusion in the machine readable zone of the driver's license should be reduced or expanded; whether the data in the machine-readable portion of the card should be encrypted for privacy reasons to protect the data from being harvested by third parties; and whether encryption would have any effect on law enforcement's ability to quickly read the data and identify the individual interdicted. What would it cost to build and manage the necessary info rmation technology infrastructure for State and Federal law enforcement agencies to be able to access the information on the machine readable zone if the data were encrypted?
See full discussion of comments and responses to this question in section I.
Question 3: Whether individuals born before 1935 who have established histories with a State should be wholly exempt from the birth certificate verification requirements of this regulation, or whether, as proposed, such cases should be handled under each State's exceptions process.
Comment: Numerous commenters favored the premise that individuals born before 1935 with established histories should be exempt from the birth certificate verification requirements. Some States added that States should be allowed to establish alternative documents acceptable for ID verification in this circumstance. AAMVA and some States acknowledged that many in this age group may not be able to obtain a birth certificate or related documents. AAMVA also said that citizens born before 1951 with ten or more years of history with the State DMV and who have passed State-approved verifications should be exempt. Several States said that electronic verification would likely be incomplete and non-electronic verification would be too burdensome for persons born before 1935. Another commenter said jurisdictions should be allowed to segregate the population by risk assessment to enable a managed approach to enrollment in REAL ID. One commenter added that it explicitly proposes using the term "American citizens born bef ore 1935" rather than the term "individuals." A couple of States suggested granting an exemption based on the age of the applicant instead of an exemption based on a fixed date, with one suggesting 62 years of age, based on eligibility to receive social security benefits, for those persons with established histories with the State.
Response: DHS has determined that it will not allow a broad birth certificate exemption for those persons born before 1935, and allows States to accommodate such persons as necessary in their exceptions process.
Comment: States requested clarification regarding "established histories with a State" i.e., whether this means individuals who already have a license or identification card in the State where they are seeking a product. One commenter suggested a history with the State for a minimum period of time, such as twenty to thirty years. This exemption should be part of each State's security plan so risks can be further mitigated through the overall REAL ID plan at the jurisdictional level. A couple of States also said that individuals without established histories should be handled through the State exceptions process, enabling qualified drivers to obtain a compliant license or identification card. A number of organizations said that these cases should be handled under the State exceptions process. One commenter wrote that DHS should establish a standard to which all States should conform in issuance of birth certificates. Another wrote that the process should be thoroughly documented, reviewed, and updated on an on -going basis. One commenter wrote that the process should substitute some form of identity verification that precludes imposter fraud. Another commenter wrote that this elaborate process is itself another argument in favor of restricting the Federal role in licensing altogether.
Response: DHS has taken a different approach to reducing the number of people that a State DMV must process. DHS consulted with intelligence analysts and experts about how best to target preventive efforts against an individual attempting to fraudulently obtain an identification document to gain access to a Federal facility, nuclear facility, or commercial aircraft.
DHS has determined that, based on information it has reviewed, there is a higher risk that individuals under age 50 will obtain fraudulent identification. As a result, the rule requires States to focus enrollment first on individuals born on or after May 11, 1965 when issuing REAL ID cards. DHS has further determined that there is an acceptable level of risk in deferring the REAL ID enrollment requirements until December 1, 2017 for those individuals who are older than age 50 as of December 1, 2014.
Comment: Two States said that customers born before 1935 should make every attempt to comply with REAL ID rather than being granted a blanket exemption. If compliance is not possible, exceptions procedures (along with other documents to reasonably prove identity) should be the next step.
Response: DHS agrees with these comments and has decided not to adopt an exemption for individuals born before 1935, as discussed above.
Comment: AAMVA and several States said that individuals born before 1935 should not only be exempted from the birth certificate requirements, but also wholly exempt from the entire enrollment process since these individuals do not pose any potential threat. However, one State said it lacks the expertise to opine on the risk of terrorism this exemption would pose.
Response: As noted above, DHS is not proposing to exempt any individuals from the REAL ID enrollment process.
Comment: Other commenters suggested the following exemptions from reenrollment: individuals for whom proof of identity, residency, lawful status and SSN can be proven electronically, and citizens who are elderly, disabled, in nursing homes or mental institutions and who will not be getting on an airplane or entering a Federal facility.
Response: As noted above, DHS is not proposing to exempt any individuals from the REAL ID enrollment process. DHS urges States to make appropriate accommodations for handling the elderly, disabled, and those in nursing homes or mental institutions. Section 202(d)(11) of the Act gives States the opportunity to issue non-compliant licenses that are not accepted for official purposes and may not necessarily require an in-person enrollment, depending on the State's issuance process.
Question 4: If a State chooses to produce driver's licenses and identification cards that are WHTI-compliant, whether citizenship could be denoted either on the face or machine-readable portion of the driver's license or identification card, and more generally on the procedures and business processes a State DMV could adopt in order to issue a REAL ID driver's license or identification card that also included citizenship information for WHTI compliance. DHS also invites comments on how States would or could incorporate a separate WHTI-compliant technology, such as an RFID-enabled vicinity chip technology, in addition to the REAL ID PDF417 barcode requirement.
See full discussion of comments and responses to this question in section P.
Question 5: How DHS can tailor the address of principal residence requirement to provide for the security of classes of individuals such as Federal judges and law enforcement officers.
See full discussion of comments and responses to this question in section I.
Question 6: What benchmarks are appropriate for measuring progress toward implementing the requirements of this rule and what schedule and resource constraints will impact meeting these benchmarks.
Comment: AAMVA listed ten criteria for measuring a State's progress towards implementation of the REAL ID requirements--procurement practices, process changes, contractual arrangements, funding, legislative authority, personnel, facilities, computer systems, new verification systems, and existing verification systems. Some States suggested variations on these themes, proposing that a set of standardized benchmarks was not realistic. Rather, each State should be able to determine appropriate benchmarks depen ding on what they had to do to implement REAL ID. Progress could be measured against implementation plans States submitted to DHS and should be based on a phased approach. One State suggested that DHS create a matrix that could be used to show progress for the major components of REAL ID. Another State argued that it is difficult to establish benchmarks before all regulatory requirements have been finalized. One State recommended a "strategic" rather than "prescriptive" implementation approach.
One privacy group stated that the final rule must include robust security standards for national querying systems. A vendor association provided detailed recommendations on access control and authentication practices. One State made very detailed recommendations on privacy standards including a pre-defined audit requirement. A vendor association recommended strong sanctions for violations of procedures to deter the insider threat and notification of anyone whose information is breached.
Response: The final rule specifies the elements necessary to be REAL ID-compliant, and DHS has proposed a checklist process for States to demonstrate completion of certain compliance benchmarks, and full compliance with the Act and these regulations.
Question 7: Adoption of a performance standard for the physical security of DMV facility, including whether DHS should adopt the ANSI/NASPO "Security Assurance Standards for the Document and Product Security Industries," ANSI/NASPO-SA-v3.OP-2005, Level II as the preferred standard.
See comments and responses to this question in section M.
Question 8: How DHS can better integrate American Samoa and the Commonwealth of the Northern Marianas into the REAL ID framework.
Comment: Several States indicated that individuals from American Samoa and the Commonwealth of the Northern Marianas should be issued a REAL ID if they provided acceptable documents like birth certificates, valid passports, unexpired driver's license, or U.S. issued immigration documents.
In addition, a few States supported an exception process for these territories. One State said that without Federal funds, it would be difficult if not impossible for both territories to comply due to complexity, cost and timing issues. Some States questioned whether American Samoa would be able to issue driver's licenses and identification cards under the REAL ID Act and regulations. Other States claimed that without evidence of U.S. citizenship, Northern Marianas residents would not be able to obtain a li cense or card. One State recommended that DHS accept the Northern Mariana Card (I-873) to establish identity and residency. Customers without this card could be assisted under current State exceptions processes. Another State also suggested acceptance of the Re-entry Permit/Refugee Travel Document (I-327, I-571).
AAMVA and some States requested clarification as to the specific issue caused by these groups of applicants.
Response: DHS believes that American Samoa and the Commonwealth of the Northern Marianas will be capable of complying with the REAL ID requirements in the same time frame as other States and Territories.
Question 9: Whether the physical security standards proposed in this rule are the most appropriate approach for deterring the production of counterfeit or fraudulent documents, and what contractual issues, if any, the States will face in satisfying the document security requirements proposed in this rule.
Comment: See comments and responses to this question in section I. Also, AAMVA commented that States will face significant contractual conflicts if the document security standards in this NPRM remain in the final rule. States are using the AAMVA Driver Licensing and Identification Card Design Specification as the model to prepare bid packages for new contracts or renewals. Contract periods for card vendors vary by State and are driven by procurement rules. One State, for example, has a contract in place for the next seven years. Most States have at least five year contracts. AAMVA recommended that DHS use the AAMVA Driver Licensing and Identification Card Design Specification as the minimum card security standard, allowing States to build on its provisions. States should not be expected to break or amend existing contracts and should not be expected to implement any changes to card security until their existing contracts expire.
Response: See comments and responses to this question in Section I.
Question 10: The Federalism aspects of the rule, particularly those arising from the background check requirements proposed herein.
Comment: Several commenters said that REAL ID was beyond Congress's enumerated powers because the States have a valid immunity claim. Another commenter wrote that REAL ID usurped States' traditional authority. One commenter wrote that it is a violation of the tribal-Federal relationship to require a tribal government official to go to a State government official in order to obtain proof of identification in order to travel and conduct official tribal-Federal government business. One commenter said that Stat e DMVs cannot revoke licenses or identification cards issued by another State. One State found no Federalism issues as States are able to control the design, and, potentially, the security features of its cards. However, other States voiced a number of Federalism concerns.
One State presented a list of impacts flowing from the REAL ID program: Procurement practices, process changes, existing contractual arrangements that cannot be altered without significant penalty, fund appropriations, laws, facilities, computer systems, requirement of new verification systems. Similarly, some States argued that the REAL ID regulation could not survive a challenge brought under the 10th Amendment of the Constitution. It continued, "Given an affidavit issued by the Governor of the Commonweal th, DHS would have universal, unfettered access to employees and systems that are dedicated to a traditionally State function." Another State wrote that DHS should not intrude into the traditional State function of licensing drivers and issuing identification cards by attempting to prescribe the processes for creating, issuing, and administering REAL ID cards, and that DHS should specify the security, performance, and quality characteristics that REAL ID participating jurisdictions must achieve. Some commen ters believed that the REAL ID Act violates both the spirit and the letter of Federalism law. The commenters wrote that the REAL ID Act aims to conscript the States into creating a national ID system, and that it is "this kind of scheme" that the Framers expected Federalism to guard against. Because of this, many States have passed anti-REAL-ID resolutions and legislation.
Response: The REAL ID Act provides the Secretary of Homeland Security with authority to issue regulations. DHS understands that there is a balance between Executive discretion in interpreting the REAL ID Act through regulation, while also respecting the States' autonomy to govern an inherently State function--the driver's license and identification card issuance process. DHS has attempted to preserve State autonomy wherever possible, while remaining consistent with the Act, and believes these regulations re present a logical interpretation of the Act and Congressional intent.
Comment: One commenter argued that States should have discretion to determine whether to conduct background checks on State employees. One State DMV said that because it conducts a fingerprint-based background check on its employee-applicants, implementing the REAL ID requirement would have "minimal" impact. In contrast, one State said that in requiring a background check for State employees, DHS is "overreaching." Because the requirement includes several checks, only one of which a DMV could use to disqual ify an employee from performing certain REAL-ID-related activities, a State argued that the rule impacts both the individuals a State may hire and retain in certain positions. It also requires a collection of information for no stated reason. Another State DMV wrote that DHS goes beyond the statutory language in requiring a background check, and suggested that DHS strike the provision.
With regard to the financial history check, one State noted that this aspect of the draft regulation would intrude into the relationship that State governments have with their employees. It argued that DHS could avoid Federalism issues by having its regulations "express the security characteristics that a State would need to achieve rather than prescribe how State processes should operate." The Federal government, it said, should not regulate hiring practices for State employees. One State wrote that it has discontinued credit checks because it was not an adequate indicator of a person's behavior or ethics.
Response: As noted above, DHS believes it has the authority to require background checks. Based on the comments received, DHS has decided to eliminate the financial history check of DMV covered employees and prospective employees.
Comment: Although one State agreed that DHS has authority to review State compliance within the scope and criteria of the auditing granted by the statute, this State asserted that DHS exceeded the scope of its authority in promulgating § 37.59(a), which lacks a check on seemingly unlimited Federal authority to inspect State processes.
Response: DHS does not believe the language of § 37.59(a) provides DHS with unfettered authority to oversee the actions of State government. Indeed, the section provides the opportunity for States to challenge a DHS determination of non-compliance, rather than a Federal authority with no right of appeal. DHS has also relaxed the reporting requirements in this final rule in response to comments that the reporting requirements in the NPRM were too burdensome.
Comment: One State asserted that it is beyond DHS's authority to compel non-participating States to maintain a motor vehicle database with the minimum required REAL ID information and to share access to any such database with other States.
Response: DHS is not compelling non-participating States to meet any of the requirements of these rules.
Comment: A State objected to the requirement that a REAL ID cardholder's address change requires the person to report and document the change in person at a DMV office. The State says it is apprehensive that the proposed rules erode the important principles of Federalism, especially regarding managing elections. When a driver applies for voter registration, the State automatically checks to see whether the address given on that card is the same as the address on a State-issued driver's license or identifica tion card. If there is a mismatch, State law requires automatically changing the license or identification card address to match that on the voter application form. This State requested that DHS give serious consideration to allowing this automatic updating practice to continue. Another commenter said DHS should ensure that the final regulations continue to provide States maximum flexibility to determine which employees are subject to the requirements of this section.
Response: As noted elsewhere, the final rules do not require an individual to have an in-person transaction with the DMV to change their address.
Comment: One commenter said that because direct regulation of the States would be unconstitutional, the REAL ID
Act inappropriately conditions Federal acceptance of State-issued identification cards and driver's licenses on their meeting certain Federal standards. The commenter was also concerned that DHS was using State machinery to implement a Federal program. However, the commenter asserted that it is within Federal power for DHS to condition acceptance of identification cards and driver's licenses on priorities closely related to national security, including meeting standards for privacy and data security.
Response: Congress passed the REAL ID Act to implement a recommendation of the 9/11 Commission Report to increase the security, credibility and confidence in identification documents. Congress, in drafting the law, and understanding the Constitutional concern of directly regulating the States, made the law binding on Federal agencies in specifying that only REAL ID-compliant driver's licenses would be accepted by Federal agencies for official purposes after the law is implemented. DHS agrees with the commen ter that the Federal government has the authority to condition acceptance of driver's licenses and identification cards on the meeting of certain standards and requirements as defined in the REAL ID Act and the implementing regulations.
Comment: One commenter concluded that Congress and DHS could have supported meaningful Federalism by supporting States' pre-REAL ID initiatives to produce an interstate compact to achieve interoperability of State databases.
Response: This comment is outside the scope of the rulemaking.
Question 11: How the Federal government can better assist States in verifying information against Federal databases.
Comment: Several States and other commenters had a number of suggestions including the following:
--Develop and test or enhance Federal databases to meet States' needs.--Establish standards for system performance and connectivity.--Ensure that matches can be made with as little manual intervention as possible.--Establish standard naming conventions.--Put security standards in place.--Fund system development and assist States financially in performing verifications.
Response: DHS is collaborating with its Federal partners, AAMVA and the States to design and implement verification systems to support the requirements of the REAL ID Act and regulations. DHS is working on improving the reliability, usability and accuracy of existing systems like SSOLV and SAVE to meet States' needs to minimize the manual intervention necessary.
In addition, DHS will work with DOT, AAMVA and the States to reinforce the security and privacy features of this communications and systems architecture to include practices consistent with fair information and Federal Information Security Management Act principles. In partnership with DOT, AAMVA, and the States, DHS will issue best practices to guide future systems design, development and operation. DHS is also working with Federal, State, and nongovernmental organizations to identify and improve name form ats and matching algorithms used by identify verification.
Question 12: In addition to security benefits, what other ancillary benefits could REAL ID reasonably be expected to produce? For example, could REAL ID be expected to reduce instances of underage drinking through use of false/fraudulent identification. If so, please provide details about the expected benefit and how it would be achieved through REAL ID.
Comment: Several commenters wrote that REAL ID will decrease identity theft. Several other commenters thought that a decrease in theft might not be attributed to REAL ID but be due to the fact that many States are implementing more stringent rules for obtaining a driver's license.
A few commenters claimed that REAL ID will have little to no impact on identity theft. One commenter noted that most instances of identify theft are a result of a stolen social security numbers or credit cards, and that REAL ID does not address these types of thefts. Another organization stated that "loopholes" in the source documentation requirements for those without a permanent addresses or birth certificates take away any perceived REAL ID benefit.
Most of the commenters thought that REAL ID would increase identity theft. Commenters wrote that the NPRM did not propose sufficient protection and security controls to ensure that the information being collected and stored will be immune to theft or misuse. Several commenters said that the databases storing digital images of social security numbers, bank statements, and birth certificates will be an identity-thief's dream target. These images, once in the hands of criminals, will be easy to counterfeit. If systems are linked, a single breach in security will potentially compromise 240 million individuals. Several commenters also highlighted that threat to this information may come from within DMVs. One organization quoted that over 100 million records of U.S. residents have been exposed due to security breaches.
Response: DHS provided a detailed analysis on the ancillary benefits of the proposed rule on REAL ID. We noted, as the comments suggested, that the proposed rule may have only a small impact on reducing identity theft. REAL ID will only have the ability to impact those types of identity theft that require a drivers license for successful implementation and only to the extent that the rulemaking leads to incidental and required use of REAL ID documents in everyday transactions, which is an impact that also d epends critically on decisions made by State and local governments and the private sector. With the current costs of identity theft being high, we believe that even if the ancillary benefits associated with identity theft are low, when these benefits are combined with other benefits of this rulemaking, that this rule is cost-beneficial.
Many commenters believe that REAL ID would increase identity theft. We find, at the current time, that it would be difficult to draw any conclusions such as this since the effort or cost to individuals to obtain and use a passable fraudulent identification card is expected to be much higher than it is at present. Only those people who believe that they will reap substantial benefits would be willing to incur the cost of creating and using a fraudulent identification card.
With regard to the general comment that REAL ID is expected to reduce instances of underage drinking through the use of false/fraudulent identification, DHS believes that REAL ID may reduce on the margin the rate at which underage drinking occurs. The rate at which it does so partly depends on State and local authority and/or private employer decisions as to what form of identification is acceptable for particular purposes, and the effectiveness with which identification checks are implemented. DHS is not w illing to quantify, at this time, the expected benefits that would be achieved from a reduction in underage drinking.
Comment: Regarding the ancillary benefits of REAL ID, some States supported DHS's suggestion that REAL ID could reduce underage drinking and purchase of cigarettes by making it easier for vendors to identify fake identification cards. Other commenters wrote that REAL ID could also promote highway safety by allowing law enforcement officers to process vehicular accidents and traffic citations faster and more accurately, and potentially aid other law enforcement efforts.
Several commenters noted that one of the possible ancillary effects of a REAL ID is that commercial entities will be able to market to individuals without the individual's permission. The MRZ and the 2-D barcode technology discussed in the NPRM makes it easier for third parties to obtain sensitive information about the holder of the cards. Several commenters gave examples of how commercial entities will make REAL ID the default document for everyday transactions and thus will be able to obtain, store, and t rack individual's age, address, and purchases.
Three organizations noted that State transactions, such as the issuance of professional/occupational licenses (for example, licensing for doctors, lawyers, nurses, real estate brokers) and hunting and fishing licenses, could be done with a higher level of assurance that the license is being given to the right person. Two other organizations also said that health-related and financial companies would also receive security benefits associated with more trust in the validity of the identification cards. One co mmenter stated that all employers would benefit because they would be better able to determine employment eligibility.
Response: DHS believes that the potential ancillary benefits of this rulemaking would be in many areas. Should acceptance of REAL ID cards become widespread, such ancillary benefits may include reduction in fraudulent access to public subsidies and benefits programs, illegal immigration, unlawful employment, unlawful access to firearms, voter fraud, underage drinking, and underage smoking. DHS believes that REAL ID may reduce on the margin, the rate at which these fraudulent activities take place. The degre e to which they do so will partly depend on State and local authority and/or private employer decisions as to what form of identification is acceptable for particular purposes, and the effectiveness with which identification checks are implemented. DHS cannot, at this time, measure these benefits quantitatively.
With regards to organizations, businesses, etc., DHS is not preventing the use of REAL ID in State transactions and the individual who is having the document presented to him can place any level of trust he/she wants in the REAL ID document.
Question 13: The potential environmental impacts of the physical security standards and other requirements proposed under this rule.
Comment: A State recommended that DHS seek out U.S. EPA or a similar group to evaluate the potential environmental impacts. One State DMV wrote that the environmental impacts of the rule would be minimal. States may have to perform the required environmental impact analysis if changes to issuance facilities are necessary. AAMVA suggested that environmental impacts associated with retrofitting the facilities to meet physical security standards will result in some environmental risks such as asbestos removal.
One State asserted that the increased visits by individuals to renew their licenses and corresponding activities associated with creating a license (for example, increased usage of electricity, scanners, copiers, printers, and paper) will impact air, ground, and water quality, and result in unnecessary waste disposal and consumption of natural resources, electricity, and other fuels and add to traffic congestion. This State recommended that DHS revise the rule to employ a phased approach which could allow S tates to certify and renew on schedules that will not adversely impact the normally occurring renewal cycle.
One commenter suggested that the durability provided by longer life driver's licenses and identification cards could result in less material going into the waste stream resulting in an environmental benefit.
Response: DHS carefully evaluated those comments along with other potential environmental impacts of this rule. The comments show that, if the States choose to create a REAL ID process, any potential environmental impacts which might be significant, can be mitigated. DHS concludes that the rule's potential impacts are minimal and notes that the rule does not force an immediate action but only lays the foundation for subsequent action. If States seek follow-on DHS grant funding, approval, or other activity f or implementation of the rule, then the potential environmental impacts associated with the follow on activity must be reviewed.
Question 14: Whether other Federal activities should be included in the scope of "official purpose."
See comment and response to this question in section B.
Question 15: How the REAL ID Act can be leveraged to promote the concept of "one driver, one record, one record of jurisdiction" and prevent the issuance of multiple driver's licenses.
Comment: Most commenters supported the "one driver, one record concept," and most States said Federal funding for an "all drivers" system would promote the concept. A couple of States specifically endorsed DRIVerS (Driver Record Information Verification System). Many States joined AAMVA in endorsing a State's initiative to enter into a Driver License Agreement to develop "a nationwide pointer system with the driver record and driver history transferred to a `change State record' when the driver moves to a n ew State." AAMVA and many States also endorsed basing any such pointer system on the Commercial Driver License Information System (CDLIS).
One State said that any "all drivers" verification system must include "reciprocity rules" so that an individual who is required to move frequently across States need not undergo a complete REAL ID check every time. However, one commenter said a CDLIS-type system is a concern because it is a "one person one license (or ID card) one record system" with no regulatory or statutory limitations on who can access information and for what purpose. To protect privacy and ensure driver safety across States, the comm enter said the existing Problem Driver Pointer System/National Driver Register is better.
A few commenters also joined AAMVA in endorsing the AAMVA/National Highway Traffic Safety Administration joint initiative to develop a digital image exchange project to identify multiple State license holders. Some States echoed a comment from AAMVA that because a driver's license applicant must surrender his or her current license from another State as a condition of receiving a new license, the States already follow a policy of one driver, one license. Another State said that States should require a drive r's license applicant to self-declare the existence of a prior compliant or non-compliant license or card and require confiscation and notification to cancel before the new State issues a document. Several commenters endorsed using the Driver License Agreement compact as an extant system for promoting "one driver, one record."
Other process recommendations included the suggestion that a national business process standard be developed to let jurisdictions know of the theft or loss of a REAL ID card and forming an agreement similar to the DLA that both REAL ID and non-REAL ID States can use to ensure cross-checking before a jurisdiction issues any driver's license.
Requiring "cleaning" of existing databases and comparing legacy databases used to issue a REAL-ID compliant card was also recommended.
One commenter said that having only one license for multiple purposes would better promote the concept than having non-REAL ID and REAL ID driver's licenses. It also said that the United States must accept standards nationwide to be used with confidence of driver's license exchange to move across boundaries and should encourage/mandate reciprocity of like licenses.
Some commenters noted problems with implementing the "one driver, one record" concept, stating that, without participation by all States, the system is fundamentally flawed in that a person could hold multiple non-REAL ID driver licenses and a REAL ID-compliant card. One State said that DHS lacked authority to compel a non-REAL ID State to participate in systems that promote the concept. It suggested that the "one driver, one record concept" should only apply to the REAL ID-compliant system.
Other States said the rules should allow a person to hold both a REAL ID-compliant card and a non-REAL ID card in any combination "with the limitation that a driver has no more than one license and one card at a time." One State suggested that a person not hold more than two REAL ID-compliant cards at a time: a driver's license and an identification card. This commenter said a person might wish to carry a REAL ID-compliant card and keep another at home. One State said that it issues identification cards to individuals who may hold a license in another State.
Some States said that DHS's proposal and the REAL ID Act impede "one driver, one record." That would happen, these commenters said, where these authorities require "a State DMV to take measures to confirm that an applicant has terminated or has taken steps to terminate a REAL ID driver's license or identification card issued in another State." One State proposed that DHS change § 37.33(c) to state that a person who applies for a REAL ID in his or her State of residence has "taken steps to terminate the pri or card." One State wanted to know how DHS would define "terminate."
One State said that because there is no system through which a State could check whether a person already holds a REAL ID driver's license or identification card in another jurisdiction, DHS should eliminate the requirement that States must make such a check. Another State asserts that such a capability should exist now across all fifty States.
Several commenters remarked on the use of technology to promote the "one driver, one record" concept. One commenter endorsed smart card-enabled REAL ID documents requiring a one-to-one match. A consulting group described a biometric identifier as the only known manner to prevent one individual from procuring more than one license or identification document. This commenter said DHS should identify and standardize a suitable biometric property and create a privacy-sensitive solution for performing the necessa ry biometric comparisons.
One commenter said that DHS should have presented and analyzed in detail different architecture models (other than CDLIS) for the system States can use to check whether a REAL ID applicant already holds a REAL ID card issued by another jurisdiction. Noting that a system promoting "one driver, one record" must promote privacy, security, and accuracy, another commenter said CDLIS is not a federated query system, but a national database. It commented that simply scaling up this system will not establish a fede rated query service, but will create a national ID.
One commenter wrote that it is concerned about DHS's failure to articulate what defines a person's unique driver's license or identification card number; the proposed rule is silent on the form this unique number will take and does not specify whether the number will be unique nationally or solely within a single State.
Response: Section 202(d) of the REAL ID Act prohibits States from issuing REAL ID cards to a person who holds a driver's license in another State without confirmation that the person has terminated, or is taking steps to terminate, the other license. We have amended this final rule to clarify this statutory requirement. See § 37.33. DHS supports the concept of one driver, one license. DHS is not, however, authorized under the REAL ID Act to use this final rule to prohibit States from issuing non-REAL ID dr iver's licenses to persons who hold licenses in other States or to find that a State is not in compliance with the minimum standards of the REAL ID Act if such State issues driver's licenses to persons holding licenses in other States. DHS is limited under its authority in the REAL ID Act to prohibiting States from issuing REAL ID cards to persons who hold licenses in other States or who hold another REAL ID card.
Question 16: Whether DHS should standardize the unique design or color required for non-REAL ID under the REAL ID Act for ease of nationwide recognition, and whether DHS should also implement a standardized design or color for REAL ID licenses.
Comment: A few States said that although a REAL ID should be recognizable as such, a standardized appearance would facilitate counterfeiting. Another State suggested that States should only have to mark REAL ID-compliant cards, not mark non-compliant cards. Other commenters supported the use of an identifier for non-compliant licenses and cards, as DHS would need a mechanism to tell if a license issued before the Act was compliant. NGA recommended placing a restriction code on the front of the license with text on the back to denote whether the license was REAL ID-compliant. AAMVA, several States, and another commenter all argued against standardizing a unique design or color for the non-Real ID cards. Some commenters wrote that DHS had no authority to require States to adopt a standard design or color for the non-REAL ID cards, citing Federalism. One commenter wrote that mandating distinct designs or colors for both REAL ID and regular license and ID cards and requiring non-REAL ID driver's licenses to have an "invalid for Federal purposes" designation turns the voluntary card into a mandatory national ID. Several also expressed concern that standardization would make counterfeiting of the cards easier, since counterfeiters would only have to focus on one document. The consequences of successful counterfeiting would be more severe, they said, since the whole system would be compromised and all States would then have to change their cards. Some commenters said that diversity in security features, as long as the y met a common performance standard, would be best. Commenters said that a standardized design would increase the perception that a national identification system was being created.
Response: While cards that do not satisfy the requirements of the Act must clearly state on their face that they are not acceptable for official purposes, DHS is not mandating a specific design or color for such cards. DHS agrees with States that recommended marking compliant cards and as such, requires compliant cards to be marked with a DHS-approved security marking.
Comment: Many commenters opposed a REAL ID standard design. One commenter wrote that requiring a single standard configuration will limit the ability of jurisdictions to adapt to changing threats in their particular environment and could drive up costs unnecessarily. Many States expressed concern about increasing the threat and consequences of counterfeiting. Several States said they should be allowed to continue to use unique designs for their driver's licenses and ID cards (one noting it held great value for State identity), while others argued that States should be allowed to maintain control of the design of their licenses to the greatest extent possible. AAMVA noted that its current Card Design Specification does not require a similar color for all States, although it standardizes security features. AAMVA recommended that "branding" be applied to the REAL ID, but it also recognized that this would lead some individuals to believe this was a step toward a national ID card. State commenters wrote that a be nefit of a standard color would be to ease training of screeners and help ensure that screeners could easily identify a compliant REAL ID-compliant card.
One commenter wrote that REAL ID should mandate a standardized color or design. However, other commenters wrote that DHS should not mandate a standard design or color, that a standard design is not authorized by the REAL ID Act, that a standardized design is strictly prohibited by the Intelligence Reform and Terrorism Prevention Act of 2004, Public Law 108-458, and that a uniform REAL ID design would be an "enormous" security risk.
Response: DHS is not mandating a single design or color for REAL ID-compliant driver's licenses or identification cards, and recognizes a State's right to have a unique design. However, in response to several commenters, DHS is requiring that cards issued in compliance with REAL ID be marked with a DHS-approved security marking.
V. Regulatory Analyses
A. Paperwork Reduction Act
The Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501 et seq.) requires that DHS consider the impact of paperwork and other information collection burdens imposed on the public and, under the provisions of PRA section 3507(d), obtain approval from the Office of Management and Budget (OMB) for each collection of information it conducts, sponsors, or requires through regulations.
This rule contains the following new information collection requirements. Accordingly, DHS submitted a copy of these sections to OMB for its review. OMB has not yet approved the collection of this information.
This final rule will require States participating in the REAL ID program to meet certain standards in the issuance of driver's licenses and identification cards, including security plans and background checks for certain persons who are involved in the manufacture or production of driver's licenses and identification cards, or who have the ability to affect the identity information that appears on the license (covered employees). This rule will support the information needs of: (a) The Department of Homelan d Security, in its efforts to oversee security measures implemented by States issuing REAL ID driver's licenses and identification cards; and (b) other Federal and State authorities conducting or assisting with necessary background and immigration checks for covered employees.
The likely respondents to this proposed information requirement are States (including the District of Columbia, Puerto Rico, the Virgin Islands, Guam, American Samoa, and the Commonwealth of the Northern Mariana Islands) and State agencies (such as Departments of Motor Vehicles).
DHS estimates that each State will submit a certification of compliance or request for extension, together with a security plan. Subsequently, each State will be required to re-certify its compliance with the REAL ID Act every three years on a rolling basis. As part of the certification package, States will be required to submit (1) A copy of their security plan; (2) their documented exceptions and waivers procedures; and (3) a written report on card security and integrity (which must be updated whenever a security feature is modified, added or deleted). DHS estimates that States will spend approximately 42,000 burden hours in the first year to complete the certification requirements. DHS projects that the burden hours will rise to 56,000 hours annually in subsequent years. DHS estimates the cost to the States will be $1.11 million in the first year and $1.48 million every year thereafter, for an annualized cost estimate (over three years) of $1.35 million.
States must subject covered employees to a background check, which includes a name-based and fingerprint-based criminal history records check (CHRC). DHS estimates States will incur costs for employee background checks of $1.44 million in the first year, $0.61 million in the second year, and $0.37 million in the third year, for an annualized cost estimate of $0.80 million.
Finally, States must maintain photographs of applicants and records of certain source documents. DHS estimates that States will incur 2,275,000 hours for information technology (IT) in the first year, and 348,000 hours in subsequent years, for an annualized hour burden estimate (over three years) of 990,333. DHS estimates that ten percent of all IT costs is related to the recordkeeping requirements. Thus, DHS estimates that out of a total one time cost of $601.9 million for all State systems, ten percent, o r $60.2 million, will be incurred in the first year, and $9.3 million in the second and third years as a result of this collection of information, for an annualized cost of $26.26 million.
DHS received no comments directed to the information collection burden.
As protection provided by the Paperwork Reduction Act, as amended, an agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.
B. Economic Impact Analyses
Regulatory Evaluation Summary
Changes to Federal regulations must undergo several economic analyses. First, Executive Order 12866, Regulatory Planning and Review (58 FR 51735, October 4, 1993), directs each Federal agency to propose or adopt a regulation only upon a reasoned determination that the benefits of the intended regulation justify its costs. Second, the Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq., as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996) requires agencies to analyze th e economic impact of regulatory changes on small entities. Third, the Trade Agreements Act (19 U.S.C. 2531-2533) prohibits agencies from setting standards that create unnecessary obstacles to the foreign commerce of the United States. Fourth, the Unfunded Mandates Reform Act of 1995 (UMRA, 2 U.S.C. 1531-1538) requires agencies to prepare a written assessment of the costs, benefits, and other effects of proposed or final rules that include a Federal mandate likely to result in the expenditure by State, local , or tribal governments, in the aggregate, or by the private sector, of $100 million or more annually (adjusted for inflation).
Although Congress recognized that States will have to expend monies in order to comply with REAL ID, it explicitly stated that the REAL ID Act is binding on the Federal government, and not the States. Moreover, by its terms, UMRA does not apply to regulations "necessary for the national security" and those which impose requirements "specifically set forth in law." Thus, as a matter of law, the UMRA requirements do not apply to this final rulemaking even though States will be expending resources. However, th e analyses that would otherwise be required are similar to those required under Executive Order 12866, which have been completed and may be found in the detailed Regulatory Evaluation placed in the public docket.Executive Order 12866 Assessment
DHS has determined that this rule will have an impact of over $100 million and that it raises novel or complex policy issues. Accordingly, this rule is economically significant under Section 3(f)(1) of Executive Order 12866 and therefore has been reviewed by the Office of Management and Budget.
DHS has assessed the costs, benefits and alternatives of the requirements finalized by this rule. A complete regulatory impact assessment, as required under Executive Order 12866 and OMB Circular A-4, will be set forth in a separate document in the docket for this regulatory action at
at Docket Number DHS-
2006-0030. The details of the estimated costs and benefits, including potential ancillary benefits realized by the requirements set forth in this rule, follow the A-4 Accounting Statement. The uncertainty analyses are being recomputed and will be published in the forthcoming final regulatory impact assessment.
The Department of Homeland Security (DHS) is conducting a Regulatory Evaluation of the benefits and costs of the final minimum standards for State-issued driver's licenses and non-driver identification cards pursuant to the REAL ID Act of 2005. These standards will impact the lives of approximately 240 million people and the operations of all 56 State and territorial jurisdictions.Assumptions
This Regulatory Evaluation covers the eleven-year costs of REAL ID Program deployment and operations. This includes:
Years One through Four--the three and one-half year period from January 2008 to May 11, 2011 during which States will have time to make the business process changes and investments to meet the standards of REAL ID. In addition, States meeting the interim standards of Material Compliance with the rule must begin enrolling their populations in REAL ID beginning no later than January 1, 2010.
Years Four through Eleven--the seven year period during which States will continue and complete enrollment of their populations in REAL ID. States will begin issuing fully compliant REAL ID licenses no later than May 11, 2011. Moreover, DHS has adopted an age-based approach to REAL ID enrollment. By December 1, 2014 all individuals born on or after December 1, 1964 (that is, 50 years of age or under) will be required to present a REAL ID if they use a State-issued document for official purposes. Thus, indi viduals born on or after December 1, 1964 will have a minimum of four years to obtain a REAL ID. Individuals born before December 1, 1964 will have an additional three years to enroll before the final enforcement deadline of December 1, 2017.
The final rule incorporates significant changes to the Notice of Proposed Rulemaking. As a result, we have revised some of the assumptions upon which the original Regulatory Evaluation was based. The revised assumptions are detailed below:(1) That All States Will Comply in Accordance With the Revised Timeline
DHS recognizes that most, if not all States will be unable to comply by May 2008 and will file requests for extensions that will result in compliance implementation schedules that could mitigate some of the startup costs examined below. Hence, the costs allocated to the period prior to May 2008 will be redistributed to subsequent years.(2) That 75 Percent of the Nation's DL/ID Holders Will Seek a REAL ID Credential
The original NPRM assumed that 100% of the candidate population would seek to obtain REAL IDs. This assumption was combined with two additional assumptions, namely that:
1. States will not require all individuals to obtain a REAL ID;
2. Some States will continue to issue non-compliant licenses along with REAL IDs.
The Department has reviewed the 100% assumption and concluded that it is unrealistic in light of the latter two assumptions. If States do not require all applicants to obtain REAL IDs, it is highly improbable that 100% of the population will apply. It is difficult to cite any example of a truly voluntary course of action that results in 100% compliance. If States offer a choice of either compliant or non-compliant licenses to applicants, some portion of the population will choose to receive a non-compliant license because:
1. They do not need a REAL ID for Federal official purposes.
2. They already possess a substitute document--for example, a U.S. passport--that will serve the same purpose as a REAL ID.
Thus, the Department has reconsidered and eliminated the assumption that every individual 16 or older will seek to obtain a REAL ID within the timeframe of this analysis.
The difficult question, therefore, is what level of participation in REAL ID can be realistically expected? What should be the primary estimate for participation by the American public in REAL ID?
The Regulatory Evaluation utilizes a primary estimate of 75% based upon the following analysis:
1. A significant number of States will not require that all residents seeking driver's licenses or identification card obtain a REAL ID. Eight states currently issue licenses to individuals who cannot demonstrate lawful states and a significant number of States are likely to make REAL IDs an option.
2. 25% of the population already holds a valid passport and the Department of State anticipates that this figure will increase to approximately 33% in the next few years.
Individuals with valid passports do not need to obtain a REAL ID as passports are likely to also be accepted for the same official purposes (i.e., boarding commercial aircraft) as a REAL ID.
3. 20% of the population has never flown on a commercial airplane and 47% flies "rarely or never."
This second group is unlikely to need a REAL ID and members of this group are highly unlikely to belong to the group of valid passport holders.
4. These two groups, combining to constitute a group of at least 40% of the population, should not need to obtain a REAL ID as acceptance of identification for official purposes. Assuming that a large proportion of this group will seek to obtain a REAL ID regardless of imminent need, we believe that 25% of the candidate population will not seek to obtain a REAL ID.(3) States Will Issue Both REAL IDs and Non-REAL IDs
DHS anticipates that States will offer an alternative DL/ID (not acceptable for official purposes) to those who are unwilling or unable to obtain a compliant one. A number of States issue or plan to issue licenses to individuals that cannot document lawful status. Other States are expected to allow individuals to hold both a driver's license and identification card. Finally, a number of States have evaluated or expressed interest in offering REAL IDs as an additional, voluntary license. This Regulatory Eval uation assumes that States will deploy a two-tier or multi-tier licensing system. States instead may choose to issue only REAL ID-compliant driver's licenses and identification cards, thereby reducing their operational and system costs.
(4) That All IT Systems Will Be Functional by May 11, 2011
The NPRM assumed that all IT systems would be functional by May 11, 2008. DHS now recognizes that this assumption was overly optimistic. Therefore, DHS has extended the deadline for compliance with the rule until May 11, 2011 to give the States, Federal agencies, and non-governmental organizations like AAMVA the time to complete the communications and IT infrastructure needed to implement REAL ID. Therefore, DHS has recalculated the costs assuming that all required verification data systems be operational a nd fully populated by May 11, 2011, the deadline for full compliance by States. DHS is working to bring these systems on-line and up to standards as soon as possible and will work with the States to develop alternative procedures.(5) That State Impact Is Not Uniform Due to Progress Already Made in Some States
States that have already invested in improving the security of their licenses will have to invest far less per capita than States with less secure licenses and issuance processes. Those States that are more advanced will incur lower compliance costs than other States.(6) The Typical Validity Period of Driver's Licenses in a Given State is the Validity Period for All DL/IDs in That State
DHS is aware that within a State DL/IDs often have varying validity periods but was unable to determine how many people held each of these varying types of credentials and when they were issued. (For more details, see the discussion of Validity Periods in the Status Quo section.) Also, the final regulation creates a one-year license for certain aliens. DHS was able to determine that some people already hold such licenses, but not how many people hold them. DHS was also unable to determine how many people wi ll hold them under the REAL ID rule. While this methodology has limitations, using the typical validity period of DL/IDs was the most reliable method available to estimate future issuances.(7) Those Drivers Who Would Be Required To Comply Later in the Issuance Cycle Will Take Advantage of This Delayed Compliance
DHS has computed the costs for the over age 50 drivers by moving that segment of renewals towards the 2017 deadline. DHS assumes the distribution over time for renewals is similar to the rest of the population. Therefore these license renewals are not bunched up but entered as the same distribution as other drivers but with the last of the pool completing in 2017.(8) The Cost of Lost/Stolen DLs/IDs and Central Issuance Is Included in the Cost of This Final Rule
The regulatory evaluation for the proposed rule assigned the cost of having to replace a lost or stolen legacy ID with a REAL ID as being a regulatory compliance cost. This means that if an individual loses his/her legacy license, the burden of replacing it with a REAL ID requiring an in-person visit was attributed to this rulemaking. The regulatory evaluation for the final rule employs the assumption that individuals who replace their lost or stolen legacy license will choose to obtain a REAL ID and pay th e additional opportunity costs of an in-person visit to the DMV with the required source documents. After careful consideration, we believe that this assumption may be conservative based upon the revised requirements of the final rule. The enrollment periods of REAL ID have been designed to enable DMVs to enroll individuals with REAL IDs on their normal renewal cycles to the maximum extent possible. Individuals simply replacing a lost or stolen license are likely to want a replacement license as quickly as possible and delay the process of obtaining a REAL ID until their scheduled renewals. However, we maintain the original assumption in this economic analysis because we cannot estimate the different rate at which lost or stolen licenses will be replaced with REAL IDs. Therefore, we assume the rate to be 75% or the same as that for renewals.
The regulatory evaluation still assumes that States will move to central issuance because of the high cost of printing equipment for REAL ID cards. However, the final rule provides added flexibility and therefore States may not have to do this. We are not adjusting this regulatory evaluation to account for this due to uncertainties in States' behavior under the revised provisions of this final rule, and because there are remaining requirements in this final rule that may still make central issuance the most efficient response.(9) The Cost of Security Markings on REAL ID Cards
Based on discussions with State driver's license card vendors, we have estimated the cost for a security marking for compliant cards to be $0.25 per card, and have included this cost estimate in the card production analysis later in this document.
The final rule also requires that if a State issues a license that is not in compliance with REAL ID, the State must by statute and regulation indicate on the document that it is not valid for official Federal purposes. According to U.S. license vendors contacted by DHS,
there is typically an upfront one time set up fee for the State, which may include license redesign, system reconfiguration, and other related costs. Based on our analysis of information received from vendors and States, DHS estimates that the added cost would be about $10,000 per State, or $.01 per document. The actual cost will vary depending on the State, vendor and any existing contractual agreement they may have concerning design changes. DHS believes that the added cost of no more than $0.01 per docu ment will be indirectly incurred by those individuals who will be acquiring REAL IDs.
Summary of Major Differences Between the Final Rule and NPRM
Based upon the many comments received, the Final Rule incorporates major changes from the NPRM. The major changes impacting the economic analysis include:(1) Extension of Deadlines
In the NPRM, DHS proposed that States that would not be able to comply by May 11, 2008, should request an extension of the compliance date no later than February 10, 2008, and encouraged States to submit requests for extension as early as October 1, 2007. During the public comment period, DHS received numerous comments from States and Territories, State associations, and others, noting that almost all States would be unable to meet the May 2008 compliance deadline. Accordingly, to allow more time for States to implement the provisions of the rule in general and verification systems in particular, DHS is also providing in the final rule the opportunity for States to request extensions of the compliance date beyond the initial extension of December 31, 2009. To obtain a second extension, States must file a Material Compliance Checklist by October 11, 2009. This checklist will document State progress in meeting certain benchmarks toward full compliance with the requirements of this rule. States meeting the bench marks shall be granted a second extension until no later than May 10, 2011. This would give States making significant progress additional time to meet all of the requirements of this rule.(2) Extended Enrollment Periods and Risk-Based Enrollment
The NPRM proposed that States determined by DHS to be in full compliance with the REAL ID Act and these implementing regulations by May 11, 2008, would have a five-year phase-in period--until May 11, 2013--to replace all licenses intended for use for official purposes with REAL ID cards.
During the public comment period, a number of States and State associations commented that States obtaining an initial extension of the compliance date until December 31, 2009, would still be required to enroll their existing driver population (estimated to be approximately 240 million) by May 11, 2013--essentially halving the phase-in period. Several commenters suggested that DHS employ a risk-based approach that would permit States and DMVs to focus first on perceived higher-risk individuals while deferri ng lower-risk individuals to a date beyond May 11, 2013.
DHS agrees with both these comments. Accordingly, in this final rule, DHS is extending the deadline for enforcing the provisions of the Act for all driver's licenses and identification cards until no later than December 1, 2017, but requiring REAL ID-compliant driver's licenses and identification cards for individuals 50 years of age or under (that is, individuals born on or after December 1, 1964) when used for official purposes beginning on December 1, 2014. This will effectively give States an eight-year enrollment period beginning in January 1, 2010 when Materially Compliant States can begin the enrollment process, thus avoiding an unnecessary operational burden on State DMVs from a crush of applicants on or before the original May 11, 2013 compliance date.(3) Physical Card Security
DHS has modified the proposed card security requirements in response to comments which stated that the requirements were too prescriptive and placed an undue burden on the States. Instead, DHS has proposed a performance-based approach that provides the flexibility for States to implement solutions using a well-designed balanced set of security features for cards that, when effectively combined, provide maximum resistance to counterfeiting, alteration, substitution, and the creation of fraudulent documents f rom legitimate documents.(4) Marking of Compliant REAL ID Documents
Based on an analysis of feedback from several commenters, DHS has determined that it would be in the best interest of the nation's security for States to place a security marking on driver's licenses and identification cards that are issued in compliance with the REAL ID Act. Such a marking would facilitate the verification of the authenticity of such documents by Federal agencies requiring identification for official purposes.(5) Certification and Security Plan Documentation
Based on feedback from commenters, DHS has eased the reporting and documentation requirements placed upon States by circumscribing the scope of security plans and requiring submission of updated plans and certification packages on a rolling, triennial basis.(6) Address Change and Documentation Requirements
Based on numerous responses, DHS has removed the requirement that an address change must be accomplished through an in-person visit to the DMV. Additionally, there is no requirement in the final rule for States to issue a new card when notified of an address change. Moreover, DHS now allows States fuller discretion over the acceptance of address documents by removing specific requirements that documents used to demonstrate address of principal residence be issued "monthly" and "annually."(7) Financial Check
DHS agreed with comments that the financial history check would not be determinative. Therefore, DHS has eliminated the requirement for a financial history check from the final rule.Costs and Benefits
This Regulatory Evaluation attempts to quantify or monetize the economic benefits of REAL ID. In spite of the difficulty, most everyone understands the benefits of secure and trusted identification. The final minimum standards seek to improve the security and trustworthiness of a key enabler of public and commercial life--State-issued driver's licenses and identification cards. As detailed below, these standards will impose additional burdens on individuals, States, and even the Federal government. These co sts, however, have been weighed against the quantifiable and nonquantifiable but no less real benefits to both public and commercial activities achieved by secure and trustworthy identification.Economic Costs
Implementing the REAL ID Act will impact all 56 jurisdictions, more than 240 million applicants for and holders of State DL/IDs, private sector organizations, and Federal government agencies.
Figure 1: summarizes the estimated marginal economic costs of the final rule over an eleven year period.
Figure 1: Estimated marginal economic cost of REAL ID final rule.
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Figure 1 shows the primary estimates calculated in both undiscounted 2006 dollars and discounted dollars at both the 3% and the 7% discounted rates. The total, undiscounted eleven-year cost of the final rule is $9.9 billion. Based on a total of 477.1 million issuances over the 11-years of the analysis, the average marginal cost per issuance for States is $8.30. Individuals will incur the largest share of the costs as shown in Figure ES-2. More than 58 percent of the costs (discounted or undiscounted) are as sociated with preparing applications, obtaining necessary documents, or visiting motor vehicle offices.
The costs shown in Figure ES-2 show a substantial decrease in those reported in the NPRM. In particular, the costs for States are 27% of those estimated for the NPRM. This substantial decrease in costs can be attributed to a number of factors, including a revised assumption that only 75% of DL/ID holders will apply for a REAL ID as well as a less prescriptive, performance-based, and balanced approach to REAL ID implementation. As many commenters suggested, providing additional time for implementation and en rollment of DL/ID holders will allow States to accommodate the enrollment process without disrupting their normal renewal cycles, resulting in a decrease in total REAL ID issuances from 813 million to 477 million issuances. In addition, the undiscounted estimates for card production costs have decreased substantially from $5.8 billion in the NPRM to $953 million in the final rule based on the performance-based approach to card security standards recommended by numerous commenters.
DHS recognizes that many States have made significant progress in improving the integrity of their licenses. DHS also recognizes that the prescriptive technology standards included in the NPRM, compared to the final rule, provided relatively few additional security benefits at great cost to States. Moreover, the estimated opportunity costs to individuals have been reduced from $7.1 to $5.8 billion in undiscounted dollars primarily as a result of the changed assumption that only 75% of DL/ID holders will see k REAL IDs. Individuals will still have to obtain source documents and visit their DMVs under this analysis. Finally, the undiscounted costs to States for data systems and IT have actually increased from $1.4 billion in the NPRM to $1.5 billion in the final rule. This slight increase reflects the critical role of information technology and verification systems in reducing identity theft and identity fraud in the issuance of DL/IDs.
The four largest cost areas, in descending order (in undiscounted dollars) are:
Opportunity costs to individuals ($5.2 billion),
Maintaining the necessary data and interconnectivity systems ($1.5 billion),
Customer service ($970 million), and
Card production and issuance ($953 million)
The largest impact category is the cost to individuals of obtaining source documents, preparing applications, and visiting DMVs. The magnitude of this category is driven largely by the fact that all applicants for a REAL ID will need to complete an application process similar to those of a first-time driver or a driver moving from one State to another.
The second largest impact category is the creation and maintenance of necessary data and interconnectivity systems. These systems will require substantial up-front effort to create but are likely to require smaller marginal increases in maintenance costs.
The third largest impact is customer service. While the extension of the enrollment period in the final rule will minimize marginal increases in the number or flow of transactions, the rule accounts for costs that increased transaction and wait times will produce. REAL ID should not substantially accelerate the rate of transactions, but the per transaction costs to States will increase.
The fourth largest impact is the production and issuance of the REAL IDs themselves. The final minimum standards are intended to make counterfeit production, tampering and other fraud more difficult. While some State cards may already meet the standards of the final rule, many States may have to upgrade their cards and production processes in response to the rule. These upgrades will also require a substantial up-front effort followed by smaller marginal costs for subsequent years.Estimated Benefits
The final REAL ID regulation will strengthen the security of personal identification. Though difficult to quantify, nearly all people understand the benefits of secure and trusted identification and the economic, social, and personal costs of stolen or fictitious identities. The REAL ID final rule seeks to improve the security and trustworthiness of a key enabler of public and commercial life--State- issued driver's licenses and identification cards.
The primary benefit of REAL ID is to improve the security and lessen the vulnerability of federal buildings, nuclear facilities, and aircraft to terrorist attack. The rule gives States, local governments, or private sector entities an option to choose to require the use of REAL IDs for activities beyond the official purposes defined in this regulation. To the extent that States, local governments, and private sector entities make this choice, the rule may facilitate processes which depend on licenses and ca rds for identification and may benefit from the enhanced security procedures and characteristics put in place as a result of this final rule.
DHS provides a "break-even" analysis based on the rule having an impact on the annual probability of the United States experiencing a 9/11 type attack in the 11 years following the issuance of the rule. It is exceedingly difficult to predict the probability and consequences of a hypothetical terrorist attack. DHS believes that those factors cannot be determined for purposes of this benefit analysis. However, for the purposes of this analysis, it is not necessary to assume that there is a probability of bein g attacked in any particular year.
By making some generalized but conservative assumptions about the costs of attack consequences, DHS determined the reduction in probability of attack that REAL ID will need to bring about so that the expected cost of REAL ID equals its anticipated security benefits. DHS posed the following question: what impact would this rule have to have on the annual probability of experiencing a 9/11 type attack in order for the rule to have positive quantified net benefits? This analysis does not assume that the United States will necessarily experience this type of attack, but rather is attempting to provide the best available information to the public on the impacts of the rule.
DHS also developed an analysis based on the discounted cost of a single terrorist attack comparable to the 9/11 attacks on New York City and Washington, DC taking place sometime over an eleven-year span. The agency determined at what point the final rule would be cost-beneficial given the likelihood of an attack and the effectiveness of preventing the attack.
The final rule on REAL ID is likely to produce potential ancillary benefits as well. It will be more difficult to fraudulently obtain a legitimate license and more costly to create a false license, which could reduce identity theft, unqualified driving, and fraudulent activities facilitated by less secure driver's licenses such as fraudulent access to government subsidies and welfare programs, illegal immigration, unlawful employment, unlawful access to firearms, voter fraud and possibly underage drinking a nd smoking. DHS assumes that REAL ID will bring about changes on the margin that will potentially increase security and reduce illegal behavior. Because the size of the economic costs that REAL ID serves to reduce on the margin are so large, however, a relatively small impact of REAL ID may lead to significant benefits.Regulatory Flexibility Act Assessment
The Regulatory Flexibility Act of 1980
(RFA), as amended, was enacted by Congress to ensure that small entities (small businesses, small not-for-profit organizations, and small governmental jurisdictions) are not unnecessarily or disproportionately burdened by Federal regulations. The RFA requires agencies to review rules to determine if they have "a significant economic impact on a substantial number of small entities." The following analysis suggests that the rule will not have a significant economic impact on a substantial number of small en tities.
The Department is implementing the regulations in order to enact the requirements outlined in the REAL ID Act.
This rule establishes minimum standards for the issuance of State-issued driver's licenses and non-driver identification cards (DL/IDs). These minimum standards will:
Enhance the security features of DL/IDs, rendering them more difficult to counterfeit, tamper with, or cannibalize;
Ensure that holders of unexpired REAL IDs are lawfully present in the United States;
Enhance physical security of materials and production locations to reduce the likelihood of theft of materials and infiltration of DMVs by nefarious individuals;
Enhance identity source document requirements and verifications to reduce the number of DL/IDs issued by DMVs to persons committing identity fraud; and,
Ensure that a REAL ID driver's license holder is licensed in only one State.
In short, these standards are designed to ensure that holders of unexpired REAL IDs are who they say they are and that they are lawfully present in the United States.
DHS did not receive any public comments on the Initial Regulatory Flexibility Analysis that was issued in support of the NPRM during the public comment period. All public comments are available for the public to view at the Federal Docket Management System:
As part of this rulemaking effort, DHS has summarized and responded to all public comments relating to the Regulatory Evaluation issued with the NPRM. Comment summaries and responses are located in the preamble to the final rule, which is also available at
and in the Federal Register.
The rule directly regulates States, which by definition are not small entities. The rule indirectly regulates entities that accept State-issued DL/IDs for official purposes. The rule defines those purposes as accessing Federal facilities, entering nuclear power plants and boarding federally regulated commercial aircraft. The entities that accept DL/IDs for those purposes include the Federal Government, operators of nuclear power plants and entities examining personal identity documents of people boarding fe derally regulated commercial aircraft. The rule does not require action from any of these three entities. However, these entities are likely to engage in some activity to ensure that they comply with the Act. The remainder of this section estimates the number of small entities that are affected in this indirect way.
The Federal Government is not a small entity. Therefore, no small entities are affected by the prohibition on accepting State-issued DL/IDs that are not REAL IDs to access Federal facilities.
Nuclear power plants, though not directly regulated, may experience indirect impacts from this regulation. A nuclear power plant qualifies as a small entity if "including its affiliates, it is primarily engaged in the generation, transmission, and/or distribution of electric energy for sale and its total electric output for the preceding fiscal year did not exceed 4 million megawatt hours."
With only three exceptions, every nuclear power plant in the United States produced more than 4 million megawatt hours in fiscal year 2005.
However, companies producing more than 12 million megawatt hours own each of those three plants.
None of the nuclear power plants qualifies as small businesses using the SBA definition. Therefore, no small entities are affected by the prohibition on accepting State-issued DL/IDs that are not REAL IDs to enter nuclear power plants.
Entities examining identity documents of people who are boarding federally regulated commercial aircraft will not be directly regulated by the rulemaking. However, they may experience indirect effects. Different types of entities examine personal identity documents of people boarding federally regulated commercial aircraft. Currently, this responsibility falls on the entity with whom passengers check their luggage, the entity examining boarding passes and IDs immediately in front of TSA screening checkpoint s, and, when completed to fulfill federal requirements, the entities examining IDs directly before allowing passengers to board aircraft. The easiest group of entities to identify in this category is the airlines that enplane from and/or deplane into the sterile area of an airport.
The Small Business Administration considers companies operating either scheduled or non-scheduled chartered passenger air transportation to be small entities if they have fewer than 1,500 employees.
Using these criteria, DHS has identified 24 specific small entities that offer scheduled or non-scheduled air passenger transportation and that enplane from or deplane into an airport sterile area. Other federally regulated commercial aircraft include charter flights, air taxis, scenic air tours and other similar operations where the transportation of passengers for compensation comprises the majority of their revenues. Many of these entities would qualify as small entities under the SBA definition. SBA da ta show that, overall, 2,719 of the 2,877 firms engaged in air transportation (NAICS 481) had fewer than 500 employees in 2004.
Nearly all firms in the air transportation industry fall well below the 1,500-employee size standard to qualify as a small entity. (Note that the federal requirements may not require all of these firms to examine passenger identity documents prior to boarding.)
DHS estimates that each employee accepting DL/IDs for official purposes will require two hours of training. This training will assist personnel in identifying the differences between REAL IDs and other State-issued DL/IDs. The training will also inform personnel about which States are or are not compliant during the enrollment period. In order to assess the cost of this training, DHS calculated the fully loaded wage rate of $22.95 per hour for airline ticket counter agents and $22.50 per hour for airport ch eckpoint staff. Multiplying the wage rates by the estimated two hours to complete the training yields estimates of $45.90 and $45.01 per-employee for ticket counter agents and checkpoint staff, respectively. The next step to determine if firms' action will have a significant impact is to divide the summed products of wage rates and trained employees by firm revenue. Doing so yields the impact on the firm as a percent of their total receipts. However, data on how many employees firms will train do not exist on an industry level, much less at the firm level throughout the industry. Alternatively, a threshold analysis can determine at what point the revenue to trained employee ratio would constitute a one or three percent impact for a firm.
The Department has determined threshold levels that will cause an indirect impact equal to or less than one percent and equal to or greater than three percent of an entity's total revenue. If a firm's ratio is higher than the one percent threshold, the economic impact for that firm is not significant. If the ratio is lower than the three percent threshold, the economic impact will be larger than three percent of the firm's revenue. The threshold values are measured as the ratio of total revenue to the numbe r of employees to be trained regarding REAL ID. If the amount of a firm's revenue per trained counter agent is more than $4,590, then the effect is less than one percent of total revenue. If one percent requires revenue per agent of $4,590, then the three percent threshold revenue per agent lies at $1,530. If a firm's revenue per counter agent is less than $1,530, then the effect will be greater than three percent. The same approach can be applied to airport checkpoint staff yielding $4,501 at one percent a nd $1,500 at three percent. (See Figure 2)
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Applying the one percent threshold--the most stringent--to the 24 scheduled service firms specifically identified as small entities suggests that training employees regarding REAL ID will not impose a significant economic impact on a substantial number of small entities. Dividing a firm's total 2005 revenue by $4,590 yields an estimate of how many employees would need to be trained before the indirect impact reaches the one percent of total revenue threshold. Comparing that estimate to the number of employe es at each firm in 2005 reveals that companies would need to train anywhere from 6 to 56 times their total number of employees, including those who will not examine identification documents.
The aggregated nature of industry-wide data does not allow for a firm-by firm analysis of the more than 2,719 small firms involved in air transportation. However, analysis of firms grouped by receipts in 2002 provides insight into the likelihood that entities will experience a significant indirect impact. Dividing receipts by the one percent threshold of $4,590 for each group estimates the number of employees that would result in a one percent impact on each group. The ratio of actual reported employees to threshold employees reveals that every group for which data is available would need to train multiple times more employees regarding REAL ID than they actually employ. The smallest ratio (largest impact) is for scheduled passenger air transportation (NAICS 48111) that earned less than $100,000, implying that they would need to train more than 11 times the number of people than they employed before the impact would reach one percent of their receipts.
The largest ratio (smallest impact in terms of percent of revenues) would fall on nonscheduled chartered passenger firms (NAICS 481211) earning more than $100 million. These firms would need to train more than 85 times the size of their workforce to reach the one percent impact threshold.
The combination of the firm specific analysis and the analysis of aggregated firms within receipt categories suggests that the indirect impact of training agents regarding REAL ID for the official purpose of boarding federally regulated commercial aircraft will not constitute a significant economic impact on a substantial number of small entities.
The above analyses show that it is unlikely that the prohibition on accepting State-issued DL/IDs unless they are REAL IDs will have a significant economic impact on a substantial number of small entities. Further, the only directly regulated entities are States, which by definition are not small entities. Therefore, the Department concludes that this rule will not have a significant economic impact on a substantial number of small entities.International Trade Impact Assessment
The Trade Agreement Act of 1979 prohibits Federal agencies from engaging in any standards or related activities that create unnecessary obstacles to the foreign commerce of the United States. Legitimate domestic objectives, such as safety, are not considered unnecessary obstacles. The statute also requires consideration of international standards and, where appropriate, that they be the basis for U.S. standards. There is no international standard for State-issued driver licenses or non-driver identification cards. DHS has determined that this rule will not have an impact on trade.Unfunded Mandates Assessment
Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA) requires Federal agencies to prepare a written assessment of the costs, benefits, and other effects of proposed or final rules that include a Federal mandate likely to result in the expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of more than $100 million in any one year (adjusted for inflation with base year of 1995). Before promulgating a rule for which a written statement is needed, section 205 of the UMRA generally requires agencies to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective, or least burdensome alternative that achieves the objective of the rule. Agencies are also required to seek input from the States in the preparation of such rules.
The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows DHS to adopt an alternative other than the least costly, most cost-effective, or least burdensome alternative if the agency publishes with the final rule an explanation why that alternative was not adopted.
As set forth in section 202(a)(1) of the REAL ID Act, the law is binding on Federal agencies--not on the States.
Indeed, in the Conference Report, Congress specifically stated that the "application of the law is indirect, and hence States need not comply with the listed standards." Conf. Rep. at 177.
Moreover, as indicated above, UMRA excludes from its scope, regulations which are required for national security reasons. National security was a primary motivator for the REAL ID Act; indeed, the Act itself is an effort to implement recommendations of the 9/11 Commission, and Congress took pains to explain the connection between REAL ID and national security, with over a dozen references to "terrorists" or "terrorism" in the Conference Report. See 9/11 Commission Public Report, Chapter 12.4; Conf. Rep., 17 9--183.
Notwithstanding the voluntary nature of the REAL ID Act, DHS assumes that States will willingly comply with the regulation to maintain the conveniences enjoyed by their residents when using their State-issued driver's licenses and non-driver identity cards for official purposes, particularly as it pertains to domestic air travel. While, for the reasons set forth above, DHS believes that the REAL ID Act does not constitute an unfunded mandate, DHS nevertheless believes that many States may find noncompliance an unattractive option.
Based on that knowledge, DHS has taken steps to comply with the requirements of UMRA. Specifically, DHS has analyzed the estimated cost to States and considered appropriate alternatives to, and benefits derived from, the final regulation. Moreover, DHS has solicited input from State and local governments in the preparation of this final rule.
C. Executive Order 13132, Federalism
Executive Order 13132 requires each Federal agency to develop a process to ensure "meaningful and timely input by State and local officials in the development of regulatory policies that have Federalism implications." The phrase "policies that have Federalism implications" is defined in the Executive Order to include regulations that have "substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among t he various levels of government."
Executive Order 13132 lists as a "Fundamental Federalism Principle" that "[f]ederalism is rooted in the belief that issues that are not national in scope or significance are most appropriately addressed by the level of government closest to the people." The issue covered by this final rule is, without question, national in scope and significance. It is also one in which the States have significant equities.
While driver's licenses and identification cards are issued by States, they are also the most widely-used identification documents. Not surprisingly, they are very frequently used by individuals to establish their identities in the course of their interactions with the Federal Government (e.g., when entering secure Federal facilities or passing through Federally-regulated security procedures at U.S. airports). The fact that the use of driver's licenses as identity documents is an issue that is "national in scope" is illustrated by the events of September 11, 2001. A number of the terrorists who hijacked U.S. aircraft on that day had, through unlawful means, obtained genuine driver's licenses; these documents were used to facilitate the terrorists' operations against the United States.
1. DHS has Considered the Federalism Implications of the REAL ID Rule
Section 3 of the Executive Order sets forth certain "Federalism Policymaking Criteria." In formulating or implementing policies with "Federalism implications," agencies are required, to the extent permitted by law, to adhere to certain criteria. DHS has considered this action in light of the criteria set forth in Executive Order 13132 § 3(a)-(d) and submits the following:(a) Constitutional Principles and Maximizing the Policymaking Discretion of the States
The rule is being promulgated in strict adherence to constitutional principles, and the limits of DHS's constitutional and statutory authority have been carefully considered. Congress, through the REAL ID Act, has mandated that Federal agencies refuse to accept for official purpose, State-issued driver's licenses or identification cards unless DHS has determined that the issuing State is in compliance with the statutorily-mandated minimum standards for such identification documents. Notwithstanding the clea r statutory mandate directing this rulemaking action, DHS has taken steps, in consultation with the States, to maximize policymaking discretion at the State level wherever possible. For example, States may establish an exceptions process that would allow each State participating in REAL ID to exercise maximum discretion in responding to exigencies arising in the course of verifying an individual's identity.
DHS also recognizes that each State's unique situation mandates that the maximum possible latitude be allowed to States in fulfilling the statutory mandate that certain employees undergo background investigations. The final rule provides parameters for use by the States in determining which employees are "covered employees" and thus subject to the statutory background check requirements, but allows the individual States to determine which employees fall into categories deemed to be covered as defined under this final rule (e.g. DMV "employees or contractors who are involved in the manufacture or production of REAL ID driver's licenses and identification cards, or who have the ability to affect the identity information that appears on the driver's license or identification card.").
States are also given the discretion to find the best way to determine an individual driver's license or identification card applicant's address of principal residence, and provides greater latitude in accepting alternatives or making exceptions based on State practices.
In other aspects of the regulation DHS has prescribed baseline requirements while allowing States the discretion to impose more stringent standards, the greatest example of which is in the area of protecting personally identifiable information collected for REAL ID purposes. Most significantly, each State retains the discretion to opt out of REAL ID in its entirety.(b) Action Limiting the Policymaking Discretion of the States
As indicated above, the final rule strives to maximize State policymaking discretion on two levels: First, because a State's participation in REAL ID is optional; and second, because of the policymaking discretion incorporated into the regulation for States that do choose to participate. DHS believes that it has incorporated the maximum possible State discretion consistent with the purposes of the statute into this action.(c) Avoiding Intrusive Federal Oversight
Consistent with Congress' vision for REAL ID (see § 202(a)(2) of the Act), States that choose to participate in the program will be responsible for monitoring their own compliance. Under the Act and the final regulations, the Secretary of Homeland Security will determine whether a State is meeting the requirements of the Act based on certifications made by the State and DHS has adopted a certification process similar to that used by DOT in its regulations governing State administration of commercial driver 's licenses. States receiving adverse determinations will have the opportunity for an internal appeals process as well as judicial review.(d) Formulation of Policies With Federalism Implications
DHS recognizes both the important national interest in secure identity documents and the Federalism implications of the policies which underpin this rule. Accordingly, DHS has welcomed and encouraged State participation in this process and has sought, where possible, to draft this regulation in such a way as to maximize State discretion.
Where the exigencies of national security and the need to prevent identity fraud have militated in favor of a uniform national standard (e.g., baseline security features on identity cards and background check requirements), DHS has, as reflected above, consulted with States in order to ensure that the uniform standards prescribed could be attained by the States and would reflect the accumulated security experience of State motor vehicles administrations.2. The REAL ID Final Rule Complies With the Regulatory Provisions of Executive Order 13132
Under § 6 of Executive Order 13132, an agency may not issue a regulation that has Federalism implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the Federal Government provides the funds necessary to pay the direct compliance costs incurred by State and local governments, or consults with State and local officials early in the process of developing the proposed regulation. Moreover, an agency may not issue a regulation that has Federalism implications and that preempts State law, unless the Agency consults with State and local officials early in the process of developing the regulation.(a) The Final Rule Does Not Preempt State Law
As detailed elsewhere in this document, the REAL ID Act is binding on Federal agencies, rather than on States. The rule would not formally compel any State to issue driver's licenses or identification cards that will be acceptable for Federal purposes. Importantly, under this scheme, "[a]ny burden caused by a State's refusal to regulate will fall on those [citizens who need to acquire and utilize alternative documents for Federal purposes], rather than on the State as a sovereign."
In other words, the citizens of a given State--not Congress--ultimately will decide whether the State complies with this regulation and the underlying statute. DHS has concluded that the rule is consistent with the Tenth Amendment to the U.S. Constitution and does not constitute an impermissible usurpation of State sovereignty. Rather, it is a permissible "program of cooperative Federalism" in which the Federal and State governments have acted voluntarily in tandem to achieve a common policy objective.
(b) DHS Has Engaged in Extensive Consultations With the States
The statutory mandate and the lack of preemption both satisfy the requirements of Executive Order 13132. Nevertheless, in the spirit of Federalism, and consistent with § 205(a) of the REAL ID Act, DHS has engaged in extensive consultations with the States prior to issuing this final rule. As set forth earlier in this preamble of this rule, DHS held meetings and solicited input from various States and such stakeholders as the National Governors Association and the National Conference of State Legislatures.
In particular, during the comment period, DHS hosted sessions that were available via webcast across the country to engage State Governors' chiefs of staff, homeland security directors in the States, and motor vehicles administrators, as well as a separate session with State legislators. DHS also convened the various stakeholder representatives that were identified as participants in the negotiated rulemaking group established under section 7212 of the Intelligence Reform and Terrorism Prevention Act. Furth er, DHS held a public meeting in Sacramento, California that was available nationwide via webcast and received comments from the public on a variety of topics, including consumer and personal impacts, privacy/security, electronic verification systems, funding/implementation, and law enforcement.(c) DHS Recognizes the Burdens Inherent in Complying With the Regulations
Notwithstanding both the statutory mandate and the Federal (rather than State) focus of the REAL ID Act, DHS recognizes that, as a practical matter, States may view noncompliance with the requirements of REAL ID as an unattractive alternative. DHS also recognizes th