[Federal Register: January 29, 2008 (Volume 73, Number 19)]
[Rules and Regulations]
[Page 5271-5340]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr29ja08-16]
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Part II
Department of Homeland Security
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6 CFR Part 37
Minimum Standards for Driver's Licenses and Identification Cards
Acceptable by Federal Agencies for Official Purposes; Final Rule
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DEPARTMENT OF HOMELAND SECURITY
Office of the Secretary
6 CFR Part 37
[Docket No. DHS-2006-0030]
RIN 1601-AA37
Minimum Standards for Driver's Licenses and Identification Cards
Acceptable by Federal Agencies for Official Purposes
AGENCY: Office of the Secretary, DHS.
ACTION: Final rule.
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SUMMARY: 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 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 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 consideration 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.
DATES: 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 later 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.
Enrollment: 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 unless such cards have been
issued by States that have certified to DHS their compliance with
Subparts A through D of this rule.
FOR FURTHER INFORMATION CONTACT: Darrell Williams, REAL ID Program
Office, Department of Homeland Security, Washington, DC 20528 (202)
282-9829.
SUPPLEMENTARY INFORMATION:
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
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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 Comments
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 Commission 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 Sec. 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, the 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 forth 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. Sec. 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 asylum 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. Sec. 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. Sec.
202(c)(3)(C).
States also must confirm with the Social Security
Administration (SSA) that the SSN presented by an applicant (as
required under Sec. 202(c)(1)(C)) is registered to that person. Sec.
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. Sec. 202(d)(7).
All persons authorized to manufacture or produce cards to
appropriate security clearance requirements. Sec. 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. Sec. 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
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requirements. See Sec. 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 Sec. 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 Sec. 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
Sec. 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 regulations 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 Plan 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 boarding 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 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 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 Sec. 37.55 of this rule, States must submit requests
for extensions to the REAL ID Program Office. Contact information 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, captured 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 http://www.dhs.gov. 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 renewal 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
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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 lower 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 aircraft. 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 years 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 enrollment 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 State-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
[[Page 5276]]
facilitate their ability to meet the verification requirements under
the Sec. 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 build 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 such 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 work 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 Sec. 37.33, moving that
provision to a separate section (Sec. 37.29), to clarify and emphasize
that a State cannot issue a REAL ID card without verifying that an
applicant 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 Sec.
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,\1\ 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
implementing 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).
---------------------------------------------------------------------------
\1\ Pub. L. 108-458, as amended, 118 Stat. 3638 (Dec. 17, 2004).
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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 licenses 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.
[[Page 5277]]
III. Section-By-Section Analysis of the Final Rule
Section 37.1 Applicability
DHS added a reference to Sec. 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 Sec. 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 identification 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 Sec. 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 Sec. 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 Sec. 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 Sec. 37.31, and maintains a record of both the recorded
name and the name on the source documents in a manner to be determined
by the State.
[[Page 5278]]
The NPRM proposed, under Sec. 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 name and SSN. A State, however, must
verify the SSN pursuant to Sec. 37.13(b)(2) of this final rule.
DHS has amended proposed Sec. 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 Sec. 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 Sec. 37.11(c) must be verified by the State in the manner
prescribed in Sec. 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 documents listed under
Sec. 37.11 (c)(1)(i)-(viii)(except for (v)), the issuing State's
verification of the applicant's identity in the manner prescribed in
Sec. 37.13 will also provide satisfactory evidence of lawful status.
State verification of the remaining identity documents listed in Sec.
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 Sec.
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 of their certification package per
Sec. 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 Sec. 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
Sec. 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 Sec. 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 Sec. 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 Sec.
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, Sec. 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, Sec. 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 Sec. 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
[[Page 5279]]
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, Sec. 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 rule 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, Sec. 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 identification 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 Sec. 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
(Sec. 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 Sec. 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,
Sec. 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 Sec. 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 Sec. 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 consecutively from May 11, 2006
to May 11, 2008. The final rule clarifies that the waiver provision in
Sec. 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.
[[Page 5280]]
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 standards.
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 DMVs 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, Sec. 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 inform 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 submitted 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 Sec. 37.71, consistent with the
structure of the Part. The section was also renamed to ``Driver's
licenses and identification cards issued under Sec. 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 acceptable 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 public 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
[[Page 5281]]
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 disadvantage 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 false 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 accept 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 government 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
[[Page 5282]]
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 of 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 identification 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
[[Page 5283]]
(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 submit 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 and 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 performance 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
[[Page 5284]]
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 collectively 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 believes 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 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.
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 rules 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 authorities 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 redress 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
[[Page 5285]]
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 thousands 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
http://www.uscis.gov 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 nationals 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 documents 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 greater 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 identification 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
[[Page 5286]]
to inform customers, and anticipate and handle increases in customer
inquiries. The commenters recommended several DHS actions, including
coordinating between 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 and
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 purposes. 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 wrote 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 their 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-citizen'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 license.
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 identification. 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
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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 supervised 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 access 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 individuals 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 requirement 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
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applicable Federal facilities. One commenter voiced concern over
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 Sec. 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 identification 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 residence'' 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 has 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 unfunded 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
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necessary legal and budgetary approval from within their State to
comply with 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 issuing 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 action