Real Id Nprm

Friday,
March 9, 2007

Part II

Department of
Homeland Security

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6 CFR Part 37
Minimum Standards for Driver’s Licenses
and Identification Cards Acceptable by
Federal Agencies for Official Purposes;
Proposed Rule

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Federal Register / Vol. 72, No. 46 / Friday, March 9, 2007 / Proposed Rules

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
Office of the Secretary, DHS.
Notice of proposed rulemaking.

AGENCY:
ACTION:

SUMMARY: The Department of Homeland
Security is proposing to establish
minimum standards for State-issued
driver’s licenses and identification cards
that Federal agencies would accept for
official purposes after May 11, 2008, in
accordance with the REAL ID Act of
2005. This rule proposes standards to
meet the minimum requirements of the
REAL ID Act of 2005, including:
information and security features that
must be incorporated into each card;
application information to establish the
identity and immigration status of an
applicant before a card can be issued;
and physical security standards for
locations where driver’s licenses and
applicable identification cards are
issued.
DATES:

Submit comments by May 8,

2007.
You may submit comments,
identified by the DHS docket number
DHS–2006–0030 that corresponds to
this rulemaking, using any one of the
following methods:
• Federal Rulemaking Portal: http://
www.regulations.gov. Follow the
instructions for submitting comments.
• Fax: 866–466–5370.
• Mail: Paper, disk or CD–ROM
submissions can be mailed to the
Department of Homeland Security, Attn:
NAC 1–12037, Washington, DC 20528.
FOR FURTHER INFORMATION CONTACT:
Darrell Williams, REAL ID Program
Office, Department of Homeland
Security, Washington, DC 20528 (202)
282–9829.
SUPPLEMENTARY INFORMATION:
ADDRESSES:

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Public Participation
The Department of Homeland
Security (DHS) invites interested
persons to participate in this rulemaking
by submitting written comments or data,
and has requested comments on specific
portions of this rulemaking as described
in section VI below. We also invite
comments relating to the economic,

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environmental, energy, or federalism
impacts that might result from this
rulemaking action. See ADDRESSES
above for information on where to
submit comments.
With each comment, please include
your name and address, identify the
docket number at the beginning of your
comments, and give the reason for each
comment. The most helpful comments
reference a specific portion of the
rulemaking, explain the reason for any
recommended change, and include
supporting data. You may submit
comments and material electronically,
by fax, or by mail as provided under
ADDRESSES, but please submit your
comments and material by only one
means. If you submit comments by mail,
submit them in two copies, in an
unbound format, no larger than 8.5 by
11 inches, suitable for copying and
electronic filing.
If you want DHS to acknowledge
receipt of comments submitted by mail,
include with your comments a selfaddressed, stamped postcard on which
the docket number appears. We will
stamp the date on the postcard and mail
it back to you.
DHS will file in the public docket all
comments received by DHS, except for
comments containing confidential
information and sensitive security
information (SSI).1 DHS will consider
all comments received on or before the
closing date for comments. The docket
is available for public inspection.
Handling of Confidential or Proprietary
Information and Sensitive Security
Information (SSI) Submitted in Public
Comments
Do not submit comments that include
trade secrets, confidential commercial
or financial information, or SSI to the
public regulatory docket. Please submit
such comments separately from other
comments on the rulemaking.
Comments containing this type of
information should be appropriately
marked as containing such information
and submitted by mail to the address
listed in the FOR FURTHER INFORMATION
CONTACT section.
Upon receipt of such comments, DHS
will not place the comments in the
public docket and will handle them in
accordance with applicable safeguards
and restrictions on access. DHS will
hold them in a separate file to which the
1‘‘Sensitive Security Information’’ or ‘‘SSI’’ is
information obtained or developed in the conduct
of security activities, the disclosure of which would
constitute an unwarranted invasion of privacy,
reveal trade secrets or privileged or confidential
information, or be detrimental to the security of
transportation. The protection of SSI is governed by
49 CFR part 1520.

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public does not have access, and place
a note in the public docket that DHS has
received such materials from the
commenter. If DHS receives a request to
examine or copy this information, DHS
will treat it as any other request under
the Freedom of Information Act (FOIA)
(5 U.S.C. 552) and the Department of
Homeland Security’s (DHS’) FOIA
regulations found in 6 CFR part 5.
Reviewing Comments in the Docket
Please be aware that anyone is able to
search the electronic form of all
comments received into any of our
dockets by the name of the individual
submitting the comment (or signing the
comment, if submitted on behalf of an
association, business, labor union, etc.).
You may review the applicable Privacy
Act Statement published at
www.regulations.gov. You may also
review the comments in the public
docket on the Internet at http://
www.regulations.gov.
Availability of Rulemaking Document
You can get an electronic copy using
the Internet by—
(1) Searching on www.regulations.gov
by docket number or title, or
(2) Accessing the Government
Printing Office’s Web page at http://
www.gpoaccess.gov/fr/index.html.
In addition, copies are available by
writing or calling the individual in the
FOR FURTHER INFORMATION CONTACT

section. Make sure to identify the docket
number of this rulemaking.
Abbreviations and Terms Used in This
Document
AAMVA—American Association of
Motor Vehicle Administrators
CAC—Department of Defense Common
Access Card
CBP—Customs and Border Protection
CDLIS—Commercial Driver’s License
Information System
CHRC—Criminal History Records Check
CRBA—Consular Report of Birth Abroad
DHS—Department of Homeland
Security
DMV—Department of Motor Vehicles
DOS—Department of State
DOT—Department of Transportation
EAD—Employment Authorization
Document
EVVE—Electronic Verification of Vital
Events
HHS—Department of Health and
Human Services
IAFIS—Integrated Automated
Fingerprint Identification
ICAO—International Civil Aviation
Organization
ID—Identification Card
LPR—Lawful Permanent Resident
MRT—Machine Readable Technology

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MRZ—Machine Readable Zone
NCSL—National Conference of State
Legislatures
NCIC—National Crime Information
Center
NGA—National Governors Association
NPRM—Notice of Proposed Rulemaking
PDPS—Problem Driver Pointer System
SAVE—Systematic Alien Verification
for Entitlements
SEVIS—Student and Exchange Visitor
Information System
SSA—Social Security Administration
SSI—Sensitive Security Information
SSN—Social Security Number
SSOLV—Social Security On-Line
Verification
TIF—Tagged Image Format
TSA—Transportation Security
Administration
TWIC—Transportation Worker
Identification Credential
USCIS—U.S. Citizenship and
Immigration Services
VWP—Visa Waiver Program
WHTI—Western Hemisphere Travel
Initiative
Table of Contents
I. Background
A. Statutory Authority
B. Consultation With States, NonGovernmental Organizations, and the
Department of Transportation
C. Summary of the Proposed Rule
II. Analysis of this Proposed Rule
A. Scope and Applicability
1. Definition of ‘‘Official Purpose’’
2. Definition of ‘‘REAL ID driver’s license
or identification card’’
3. Definition of ‘‘Identification Card’’
B. Compliance Period
C. Privacy Considerations
D. Document Standards for Issuing a REAL
ID Driver’s License or Identification Card
1. Documents Required for Proving Identity
2. Additional Documents Considered and
Rejected for Proof of Identity
3. Other Documentation Requirements
E. Verification of Information Presented
1. Verification of ‘‘Address of Principal
Residence’’
2. Verification of Identity Information
3. Verification of Lawful Status
4. Verification of Date of Birth
5. Verification of Social Security Account
Number or Ineligibility
6. Connectivity to Systems and Databases
Required for Verification
F. Exceptions Processing for Extraordinary
Circumstances
G. Temporary Driver’s Licenses and
Identification Cards
H. Minimum Driver’s License or
Identification Card Data Element
Requirements
1. Full Legal Name
2. Driver’s License or Identification Card
Number
3. Digital Photograph
4. Address of Principal Residence
5. Signature
6. Physical Security Features

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7. Privacy of the Information Stored on the
Driver’s License or Identification Card
8. Machine-Readable Technology (MRT)
9. Encryption
I. Validity Period and Renewals of Driver’s
Licenses and Identification Cards
1. Remote/Non-In-Person Renewals
2. In-Person Renewals
J. Source Document Retention
K. Security of DMV Facilities Where
Driver’s Licenses and Identification
Cards are Manufactured and Produced;
Facility Security Plans
1. Background Checks for Certain
Employees
2. Physical/Logical Security
3. Document Security Features on Driver’s
Licenses and Identification Cards
4. Security of Information Stored in the
DMV Database
5. Security of Personal Data and
Documents Collected and Managed
Under the Act
III. State Certification Process
IV. Driver’s Licenses and Identification Cards
That Do Not Meet the Standards of
Subparts A and B of These Regulations
V. Section 7209 of the Intelligence Reform
and Terrorism Prevention Act of 2004
VI. Solicitation of Comments
VII. Regulatory Analyses

I. Background
A. Statutory Authority
The REAL ID Act of 2005 2 (the Act)
prohibits Federal agencies, effective
May 11, 2008, from accepting a driver’s
license or DMV-issued personal
identification card issued by a State for
an official purpose unless the issuing
State is meeting the requirements of the
Act. The Act requires DHS to determine
whether a State is meeting the Act’s
requirements based upon certifications
submitted by each State in a manner
prescribed by DHS. The Secretary of
Homeland Security is authorized under
section 203 of the Act to issue
regulations as necessary to set the
standards required under the Act. This
rule proposes implementation standards
for States to meet the Act’s requirements
for issuance of driver’s licenses and
identification cards intended for
acceptance by Federal agencies for
official purposes.
The Act sets forth minimum
document requirements, minimum
driver’s license and identification card
issuance standards, and other
requirements, including the following—
• Information and features that must
appear on the face of the driver’s license
or identification card, and inclusion of
a common machine-readable portion of
a driver’s license or identification card;
2 Division B—REAL ID Act of 2005, the
Emergency Supplemental Appropriations Act for
Defense, the Global War on Terror, and Tsunami
Relief, 2005, Pub. L. 109–13, 119 Stat. 231, 302
(2005) (codified at 49 U.S.C. 30301 note).

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• Presentation and verification of
information an applicant must provide
before a driver’s license or identification
card may be issued, including evidence
that the applicant is a U.S. citizen or has
lawful status in the United States;
• Physical security of locations where
driver’s licenses and identification cards
are produced, the security of document
materials and papers from which
driver’s licenses and identification cards
are produced, and the background check
of certain employees involved in the
manufacture and production of licenses,
and;
• Physical security of the driver’s
licenses and identification cards to
prevent tampering, counterfeiting, and
duplication of the documents for a
fraudulent purpose.
The Act also permits a State otherwise
in compliance with the Act to issue
driver’s licenses and identification cards
that do not conform to the Act’s
requirements. Such driver’s licenses and
identification cards, however, cannot be
used for an official purpose and must
clearly state on the face of the card that
a Federal agency may not use it for an
official purpose. The State also must use
a unique design or color indicator so
that it is readily apparent to Federal
agency personnel that the card is not to
be accepted for an official purpose.
Section 203 of the Act amends 18
U.S.C. 1028(a) to establish a Federal
criminal penalty for persons who
knowingly traffic in actual
authentication features for use in
fraudulent identification cards.
B. Consultation With the States, NonGovernmental Organizations, and the
Department of Transportation
Section 205(a) of the Act requires that
any regulations, standards, or grants
under the Act be carried out in
consultation with the Secretary of
Transportation and the States. DHS has
met and consulted with the Department
of Transportation (DOT), and formed an
interagency work group to develop these
proposed regulations. DOT and other
Federal agencies with an interest in this
rulemaking participated actively in the
work group.
DHS has also consulted with State
officials and State representative
associations in the development of this
proposed rule through meetings and
conference calls in 2005 and 2006.
Many States and State representative
associations participated in these events
and submitted written comments for
consideration in the development of this
proposed rule. These are available for
inspection in the public docket.
In particular, DHS received comments
from the National Governors

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Association (NGA), the National
Conference of State Legislatures (NCSL),
and the American Association of Motor
Vehicle Administrators (AAMVA),
which aggregated responses from 48
jurisdictions impacted by REAL ID,
including 46 States, American Samoa,
and the District of Columbia. DHS also
met with various non-governmental
organizations (NGOs), particularly civil
rights, privacy and religious groups. The
States and NGOs raised a series of
concerns about the requirements
mandated under the Act. A summary of
these concerns is outlined below. DHS
addresses each of these concerns in the
discussion of the proposed requirements
under this rule in section II.
One of the first issues of concern to
the States was the brief period for
compliance. There was concern that
DHS would interpret the Act in such a
way as to require that all driver’s
licenses and identification cards
nationally be brought into compliance
with the Act by May 2008, an
impossible task according to the States.
The States instead suggested a ‘‘date
forward’’ approach, which we have
proposed to adopt as a phase-in period
through May 2013.
The detailed requirements of the Act,
particularly requirements for original
documents and proof of principal
residence, also raised State concerns
that individuals, through no fault of
their own, might not be able to meet
certain requirements of the Act. The
States advocated for an exceptions
process to accommodate certain
circumstances (victims of natural
disasters such as Hurricanes Katrina and
Rita who no longer have certain
documents, or elderly individuals with
no birth certificate, for example). We
understand these concerns and therefore
propose that the States adopt an
exceptions process in their Departments
of Motor Vehicles (DMVs) that will be
monitored by the State and included as
part of the State’s certification process
to DHS. This exception process would
include any difficulties arising from
attempts to verify birth information for
individuals born before 1935, who, due
to various considerations, may not have
been issued birth certificates.
The Act requires States to subject
certain individuals involved in the
manufacture and production of driver’s
licenses and identification cards to
appropriate background checks. The
States have suggested to DHS that, due
to the unique structure of each State’s
DMV system, the identification of
positions that should be subject to this
requirement be left up to the States.
DHS agrees with this proposal. The
States have also proposed that new hires

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be allowed to begin work at the DMVs
while their background check is
pending. DHS understands that the
States must have flexibility in their
hiring, and therefore proposes that
States place new employees in positions
that are not subject to the background
check until the check is complete and
satisfaction of employment conditions
for the covered position is determined.
The States have indicated to DHS that
the Act will lead to an increase in the
number of required in-person visits to
DMVs. Generally speaking, the States
have sought to utilize alternate service
channels (particularly the internet and
services by mail) to reduce the required
number of in-person visits to DMVs, as
a means of reducing State costs and
improving service to customers. The
States have, therefore, expressed
particular concerns with the renewal
process under REAL ID. DHS
understands these concerns and is
therefore proposing that States continue
their remote renewal procedures, as
long as they establish a procedure to
verify the identity of individuals
applying for renewal remotely, maintain
images of the source documents the
individual used to obtain a REAL ID
driver’s license or identification card,
and establish a procedure to re-verify
the information on the source
documents retained by the State. DHS
proposes, however, that individuals
with temporary REAL ID driver’s
licenses or temporary identification
cards renew their documents in person,
in order to present evidence of
continued lawful status.
C. Summary of the Proposed Rule
DHS proposes to issue REAL ID
regulations that create minimum
standards for State driver’s licenses and
identification cards that Federal
agencies can accept for official purposes
on or after May 11, 2008. Under this
proposal, States must certify that they
are in compliance with these
requirements, and DHS must concur,
before the driver’s licenses and
identification cards that the States issue
may be accepted by Federal agencies for
official purposes on or after May 11,
2008. Because DHS recognizes that not
all driver’s licenses and identification
cards can be reissued by May 11, 2008,
the proposal provides a five-year phasein period for driver’s license or
identification card renewals. All driver’s
licenses and identification cards that are
intended to be accepted for official
purposes as defined in these regulations
must be REAL ID licenses and
identification cards by May 11, 2013
Key features of the proposal include:

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• Applicant documentation. States
would require individuals obtaining
driver’s licenses or personal
identification cards to present
documentation to establish identity;
U.S. citizenship or lawful immigration
status as defined by the Act; date of
birth; social security number (SSN) or
ineligibility for SSN; and principal
residence. States may establish an
exceptions process for the
documentation requirement, provided
that each such exception is fully
detailed in the applicant’s motor vehicle
record.
• Verification requirements. States
would verify the issuance, validity, and
completeness of a document presented.
This proposal specifies electronic
verification methods depending on the
category of the documents.
• Information on driver’s licenses and
identification cards. The following
information would be required to
appear on State-issued driver’s licenses
and identification cards: full legal name,
date of birth, gender, a unique driver’s
license or identification card number
(not the SSN), a full facial digital
photograph, address of principal
residence (with certain exceptions),
issue and expiration dates, signature,
physical security features and a
common machine-readable technology
(MRT).
• Security features on the card. The
proposal contains standards for physical
security features on the card designed to
prevent tampering, counterfeiting or
duplication for a fraudulent purpose,
and a common MRT with defined data
elements.
• Physical security/security plans.
Each State must prepare a
comprehensive security plan for all
State DMV offices and driver’s license/
identification card storage and
production facilities, databases and
systems and submit these plans to DHS
as part of its certification package.
• Employee background checks.
States would conduct name-based and
fingerprint-based criminal history
records checks against State criminal
records and the FBI’s NCIC and IAFIS,
respectively, on certain employees
working in State DMVs who have the
ability to affect the identity information
that appears on the driver’s license or
identification card, who have access to
the production process, or who are
involved in the manufacture of the
driver’s licenses and identification
cards. States would pay a fee to FBI to
cover the cost of this check. States
would also conduct a financial history
check on these employees.
• State certification process. Similar
to DOT regulations governing State

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administration of commercial driver’s
licenses (49 CFR part 383), States will
be required to submit a certification and
specified documents to DHS to
demonstrate compliance with these
regulations and demonstrate continued
compliance annually.
• Database connectivity. States would
be required to provide electronic access
to specific information contained in the
motor vehicle database of the State to all
other States.
II. Analysis of This Proposed Rule
A. Scope and Applicability
The Act does not require any State to
issue REAL ID driver’s licenses and
identification cards. States may choose
to issue driver’s licenses and
identification cards that cannot be
accepted by Federal agencies for official
purposes (referred to in this document
as ‘‘non-REAL ID driver’s licenses and
identification cards’’). This proposed
rule would apply to States and
territories that choose to issue driver’s
licenses and identification cards that
Federal agencies can accept for official
purposes. Consistent with section
202(d)(11) of the Act, this rule also
proposes requirements for issuance of
non-REAL ID driver’s licenses (as well
as non-REAL ID identification cards) by
States in compliance with the Act.
Under this proposed rule, individuals
can hold only one valid REAL ID
driver’s license or identification card at
a time.
DHS understands that at present an
individual may hold active driver’s
licenses in multiple jurisdictions.
Although DHS is not regulating issuance
of non-REAL ID driver’s licenses beyond
what is required in the REAL ID Act,
DHS wishes to further the concept of
‘‘one driver, one record, one record of
jurisdiction’’ and seeks comment on
how the REAL ID Act may be
implemented to discourage the issuance
of multiple non-REAL ID driver’s
licenses to an individual, or what steps
States can take to ensure individuals are
not holding multiple driver’s licenses
from multiple States.

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1. Definition of ‘‘Official Purpose’’
Section 201(3) of the Act provides
that the term ‘‘official purpose’’
‘‘includes but is not limited to accessing
Federal facilities, boarding Federallyregulated commercial aircraft, entering
nuclear power plants, and any other
purposes that the Secretary shall
determine.’’ DHS proposes to limit the
regulatory definition of ‘‘official
purpose’’ at this time, to those purposes
expressly stated in the Act—accessing
Federal facilities, boarding commercial

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aircraft, and entering nuclear power
plants. DHS, under the discretionary
authority granted to the Secretary of
Homeland Security under the Act, may
expand this definition in the future.
DHS seeks comment on the proposed
scope of ‘‘official purpose,’’ and how
DHS could expand this definition to
other federal activities.
DHS considered including the
acquisition of Federally-issued
identification documents, such as a
Transportation Worker Identification
Card (TWIC), military Common Access
Card (CAC), passport, or PASSport card
within the proposed definition of
‘‘official purpose.’’ To do so would be
consistent with the concept of
strengthening the reliability of identity
documents, one of the primary
objectives of the Act. However, since no
State would be required to have all of
its citizens possess Real ID driver’s
licenses and identification cards until
May 2013, DHS concluded that it would
be premature to require Federal agencies
to accept only Real ID driver’s licenses
and identification cards during the
phase-in period and that the imposition
of such a requirement could inhibit
individuals from obtaining these
necessary forms of Federal
identification.
Federal agencies themselves do not
currently examine identification from
all individuals seeking to board
regulated commercial aircraft or to enter
nuclear power plants. In the case of
aircraft, often it is aircraft operators that
examine driver’s licenses or other
identification credentials of individuals
seeking entry to the sterile area of an
airport. However, they do so in
compliance with requirements in
security programs issued pursuant to
TSA regulations. DHS interprets the
language of the REAL ID statute to mean
that when nongovernmental entities
require identification for the scope of
activities considered ‘‘official purposes’’
in compliance with Federal
requirements, and an individual
presents a driver’s license or DMVissued identification card, the REAL ID
Act’s federal acceptance requirements
would also apply to these
nongovernmental entities.
These regulations are not intended to
change current admittance practices at
Federal facilities. If a Federal facility
does not currently require presentation
of photo identification prior to entry,
the Act and these proposed regulations
would not require that process to
change. Similarly, if a Federal facility
currently accepts identification other
than a State-issued driver’s license or
identification card, the Act and these
proposed regulations do not require that

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the agency refuse to accept such other
forms of identification. If the individual
intends to use a State-issued driver’s
license or identification card, however,
it must be one that is issued by a State
that is complying with the REAL ID Act.
2. Definition of ‘‘REAL ID Driver’s
License or Identification Card’’
Throughout this proposed rule,
driver’s licenses and identification cards
issued under these regulations that
Federal agencies may accept for official
purposes are referred to as ‘‘REAL ID
driver’s licenses and identification
cards.’’ The term ‘‘REAL ID driver’s
licenses and identification cards’’
includes driver’s licenses and
identification cards issued by State
DMVs (or other State agencies with
comparable responsibility for issuing
driver’s licenses and identification
cards) to U.S. citizens and Lawful
Permanent Residents (LPRs) of the
United States for a maximum renewable
period of eight years. The term ‘‘REAL
ID driver’s licenses and identification
cards’’ also includes driver’s licenses
and identification cards acceptable for
official purposes that are issued to
aliens legally present in the United
States for a finite period of time, upon
verification of their current lawful status
for the period of their authorized length
of stay, or for one year, if no length of
stay is specified. In instances where the
proposed regulation discusses these
temporary driver’s licenses and
identification cards independently,
these types of REAL ID licenses and
identification cards are referred to as
‘‘temporary REAL ID driver’s licenses
and identification cards.’’
3. Definition of ‘‘Identification Card’’
Section 201(2) of the Act defines
‘‘identification card’’ to mean ‘‘a
personal identification card, as defined
in section 1028(d) of title 18 United
States Code, issued by a State.’’ In turn,
18 U.S.C. 1028(d) defines this term, in
pertinent part, to mean ‘‘a document
made or issued by or under the
authority of * * * a State [or] a political
subdivision of a State * * * which,
when completed with information
concerning a particular individual, is of
a type intended or commonly accepted
for the purpose of identification of
individuals[.]’’ Section 201(2), by its
express terms, could cover any
identification card issued by or under
the authority of a State, including
identification cards for State-chartered
universities and colleges, and cards
issued by State agencies to obtain public
benefits. At this time, DHS is limiting
the scope of this definition to
identification cards issued by State

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DMVs or other State offices with
comparable responsibility for issuing
driver’s licenses.
DHS believes that these additional
documents mentioned above are not
currently accepted as identification
documents to the same degree as Stateissued driver’s licenses and
identification cards issued by a State
DMV. In addition, it would be unduly
burdensome at this time for DHS to
require that the issuers of these
additional documents comply with
these proposed standards, since DMVs
have been considering the Act’s
requirements for some time, and it is
likely that universities and other State
entities have not.
B. Compliance Period
Section 202(a)(3) of the Act provides
that, ‘‘[b]eginning 3 years after the date
of enactment of this division, a Federal
agency may not accept, for any official
purpose, a driver’s license or
identification card issued by a State to
any person unless the State is meeting
the requirements of this section.’’ The
Act further states that DHS ‘‘shall
determine whether a State is meeting
the requirements of [the Act] based on
certifications made by the State to the
Secretary.’’ Id., (a)(2). DHS, the
Department charged with implementing
and enforcing the REAL ID Act
requirements for identification
standards, interprets the compliance
provision to mean that effective on May
11, 2008, Federal officials will be
prohibited from accepting State-issued
driver’s licenses and identification cards
for official purpose unless the State has
submitted the required certification or
extension application to DHS and DHS
has determined that the State is meeting
the requirements of the Act. DHS is
proposing under this rule to find that a
State certification is sufficient for
compliance under the Act if the State
has established a program that ensures
the State’s DMVs will begin issuing
driver’s licenses and identification cards
that meet the requirements of the Act
and standards proposed under this
regulation beginning May 11, 2008. DHS
does not interpret the Act as requiring
the States to recall and reissue all
driver’s licenses and identification cards
by May 11, 2008. Rather, States will be
able to replace all driver’s licenses and
identification cards with REAL ID
driver’s licenses and identification cards
intended to be accepted for official
purposes by May 11, 2013.
Accordingly, DHS proposes the
following compliance requirements:
(1) Each State must submit its
certification package to DHS on its
REAL ID driver’s license and

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identification card programs no later
than February 10, 2008, 90 days before
the May 11, 2008 compliance date
required under the Act. DHS strongly
encourages States to communicate their
intent to certify compliance or request
an extension by October 1, 2007;
(2) DHS will not find that a State is
meeting the requirements of the Act if
the State’s certification does not
demonstrate that the all REAL ID
driver’s licenses and identification cards
issued by the State on or after May 11,
2008, will meet the standards required
under the Act and proposed under these
regulations, unless the State has sought
and received an extension;
(3) For unexpired driver’s licenses
and identification cards issued prior to
May 11, 2008, DHS proposes a five-year
phase-in period to allow individuals to
apply for and receive new driver’s
licenses and identification cards that
comply with these rules. These driver’s
licenses and identification cards would
be acceptable for official purposes until
they expire, or until the phase-in period
ends, on May 10, 2013—whichever is
earlier. Driver’s licenses and
identification cards issued before May
11, 2008 that do not expire until after
the phase-in period ends would have to
be exchanged for driver’s licenses and
identification cards issued under the
new rules in order to be accepted by
Federal agencies for official purposes
after May 10, 2013.
If a driver’s license or identification
card that would not otherwise expire
until after May 11, 2008 needs to be
reissued by a State prior to its expiration
date, DHS is proposing that the driver’s
license or identification card must meet
the new standards at the time it is
reissued. This reissuance would occur,
for example, if a driver’s license or
identification card has been lost or
stolen and needs to be replaced, or if
changes in information occur which
would cause the DMV to issue a new
driver’s license or identification card.
Under section 205(b) of the Act, DHS
may grant an extension of time to meet
the requirements of the Act if the State
provides adequate justification. DHS
recognizes that many States need a final
rule in order to guide their
implementation efforts. Many States
have informed DHS that, absent
sufficient time to consider and act upon
the final rule, the States will not be in
a position to comply with the Act and
the final rule. In recognition of this fact,
DHS is establishing a mechanism where
States can request an expedited
extension of the compliance deadline.
States may request an extension based
on the lack of a final REAL ID rule by
filing such a request no later than

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October 1, 2007. Based on information
already received by DHS, and absent
extraordinary circumstances, an
extension request will be deemed
justified for a period lasting until, but
not beyond, December 31, 2009.
Under this provision of the Act, DHS
also intends to issue compliance
guidance to the States. This guidance
will set forth benchmarks or best
practices against which progress toward
full compliance will be measured and to
assist States in drafting the certification
packages. As proposed in this rule, DHS
would require submission of
certifications no later than February 10,
2008, but the Department strongly
encourages States to submit certification
packages by October 1, 2007. State
certification packages should include
milestones, schedules, and estimated
resources needed to meet all the
requirements of the final rule no later
than May 11, 2008. States will resubmit
and DHS will re-evaluate State plans on
an annual basis until all requirements of
this rule are met. DHS welcomes
comments from the States on
appropriate benchmarks for measuring
progress toward meeting the
requirements of this rule and on specific
resource and schedule constraints in
meeting these benchmarks.
C. Privacy Considerations
The public has long been accustomed
to providing personal information for
the purpose of obtaining driver’s
licenses and identification cards and to
having this information printed on
driver’s licenses. Most States already
include this information in a machine
readable technology (MRT). With the
enactment of the REAL ID Act, however,
there has been increased attention to the
privacy ramifications involving the
information that will appear on the
licenses and identification cards and the
exchange of information. Some have
raised concerns that the Act could
create an increased risk of identity theft
and erode privacy, or be a steppingstone to a national identity card.
A frequently-heard concern relates to
the amount of additional information
the Federal Government will have about
driver’s license holders and what the
Federal Government will do with that
data. In fact, however, neither the Real
ID Act nor these proposed regulations
gives the Federal Government any
greater access to information than it had
before. Moreover, there is no
information about a licensee that the
Federal Government will store that it is
not already required to store.
As described below, DHS has sought
to address these privacy concerns
within the limits of its authority under

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the Act.3 At the Federal level, only the
Driver’s Privacy Protection Act of 1994
(DPPA) 4 addresses the privacy of motor
vehicle records, but its protections are
limited. Although it addresses the use
and disclosure of personal information
stored in State motor vehicle records,
the DPPA does not provides privacy
protections for the personal information
stored on the licenses themselves or set
any security requirements for the motor
vehicle databases. DHS has sought in
the NPRM to provide for appropriate
privacy and security protections to the
extent of its authority.
This section of the NPRM will
summarize the requirements of the Act
that potentially have the greatest impact
on privacy, the extent to which those
requirements change current State
driver’s licensing practices, and how
DHS intends to address privacy
concerns regarding the Act. This
analysis will address the three key
privacy issues posed by the Act: (1) The
connectivity of the databases; (2) the
protection of the personal information
stored in the State databases; and (3) the
protection of the personal information
stored on machine readable technology
on the DL/IDs. We invite comments on
whether the steps outlined below and
otherwise discussed within the NPRM
are appropriate and adequate.

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1. Connectivity of Databases Mandated
by the Act
One voiced privacy concern regarding
the Act is that it will create a national
identity card and centralized database
on all drivers. This concern stems from
the provisions in the Act requiring that
the individual States electronically
verify application information against
Federal databases and provide State-toState access to verify that each applicant
only holds a valid license in one
jurisdiction. DHS envisions that the
operation of both the State data query of
Federal reference databases and the
State-to-State data exchanges will be left
to the States, as is currently the practice
in driver’s licensing.
As discussed below and in section
II.E.6 of the NPRM, the recommended
architecture for implementing these data
3 The Act does not include statutory language
authorizing DHS to prescribe privacy requirements
for the state-controlled databases or data exchange
necessary to implement the Act. This is in sharp
contrast with the express authorization provided in
section 7212 of IRTPA, which was the prior state
licensing provision repealed by the Real ID Act.
Section 7212(b)(3)(E) of IRTPA stated that the
Federal regulations ‘‘shall include procedures and
requirements to protect the privacy rights of
individuals who apply for and hold driver’s
licenses and personal identification cards.’’
4 Pub. L. 103–322 as amended by Pub. L. 106–69,
18 U.S.C. 2721 et seq.

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exchanges does not create a national
database, because it leaves the decision
of how to conduct the exchanges in the
hands of the States. Moreover, no
Federal agency will operate the data
exchanges affecting non-commercial
driver’s licensing.5
a. The State Data Query of Federal
Reference Databases. Section
202(c)(3)(A) of the REAL ID Act requires
that, before issuing a license or ID, a
State verify with the issuing agency, the
‘‘issuance, validity, and completeness of
each document required to be
presented.’’ Given that it is very difficult
to validate that the source documents
provided by applicants are genuine and
have not been altered, certain
identifying data contained in the source
documents will be checked against
authoritative Federal databases as
described in more detail in section II.E.
of the NPRM.
As described in section II.E., many
State DMVs already access one or more
of these databases as part of their
current licensing processes. The fact,
however, that this data verification may
now be done by all 56 jurisdictions
heightens privacy concerns. The
proposed rule seeks to address many of
these issues by leaving the operation of
this data query, including the
development of the business rules, to
the States. The rule proposes to require
individual States to document their
business rules for reconciling data
quality and formatting issues and urges
States to develop best practices and
common business rules by means of a
collective governance structure.
A very important example of how
administration of this data query will be
left to the States is the commitment by
DHS to support the development of a
‘‘federated querying service’’ to enable
the States to access the Federal
reference databases in a timely, secure,
and cost-effective manner. (See section
II.E.6.) Most States already query some
of these reference databases either
directly or indirectly through a portal
provided by AAMVA. DHS is
committed to the expedited
development and deployment of a
common querying service to facilitate
5 The database connectivity mandated by the
REAL ID Act is in addition to the database
connectivity/functionality required to implement
the Department of Transportation’s existing control
over commercial driver’s licensing. In addition, law
enforcement already have access directly to a
State’s driver history via the National Law
Enforcement Telecommunication System (NLETS),
which is the International Justice & Public Safety
Information Sharing Network, a message switching
system serving the criminal justice community.
NLETS is a not-for-profit organization owned and
governed by the States.

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the State DMV queries for REAL ID data
verification.
To address the privacy concerns
posed by such a service, the NPRM
makes clear that this service will only
enable State DMVs to query Federal
systems. The purpose of this federated
querying service will be to minimize the
impact of data verification on State
DMV business processes and reduce the
costs of data access. So while DHS will
support the development of a querying
service, it will not operate this service.
Moreover, use of this federated
querying service will be voluntary, and
States may choose to maintain or
establish direct access to the reference
databases; combine direct access with
partial use of a common service; or
verify applicant data against the
reference databases in some other
manner. The proposal by DHS to leave
the operation of licensing verification
with the States should resolve concerns
about a centralized database operated by
the Federal Government.
In addition, as part of the State
certification mandated by section
202(a)(2) of the Act, each State will be
required to prepare a comprehensive
security plan for its DMV offices and
driver’s license storage and production
facilities, databases, and systems
utilized for collecting, disseminating or
storing information used in the issuance
of REAL ID licenses. As part of this
requirement, DHS will require that each
State include in its annual certification
information as to how the State will
protect the privacy of the data collected,
used, and maintained in connection
with REAL ID, including all the source
documents.
b. The State-to-State Data Exchange.
Section 202(d)(12) of the Act mandates
that States provide electronic access to
information contained in the motor
vehicle database of the State to all other
States; and section 202(d)(13) requires
that the State motor vehicle database
contains, at a minimum, all data fields
printed on driver’s licenses and
identification cards, and motor vehicle
driver’s histories, including motor
vehicle violations, suspensions, and
points on licenses.6 These two
provisions mandate the State-to-State
data exchange, however, the NPRM
contemplates that the States will work
out the business process and data access
rules necessary to implement these
provisions prior to May 11, 2008 by
means of a collective governance
structure.
6 The information available in each jurisdiction’s
database varies, but generally they already store
what is required by the Act.

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As described in section II.E., below,
although the REAL ID Act creates a
requirement for this State-to-State data
exchange, such an exchange already
exists under the Department of
Transportation’s (DOT) rules and
regulations governing commercial
driver’s licenses (CDLs) and State
connections to the National Driver
Register (NDR)/Problem Driver Pointer
System (PDPS) and the Commercial
Driver’s License Information System
(CDLIS).7 These systems exchange
information about commercial motor
vehicle drivers, traffic convictions, and
disqualifications.
A State uses both the NDR/PDPS and
CDLIS to check a driver’s record, and
CDLIS to make certain that the applicant
does not already have a CDL. Under
these programs, as well as the REAL ID
Act, the primary purpose of the State-toState data exchange is to determine if
the applicant is unqualified and the
application fraudulent; the purpose is
not specifically to verify the applicant’s
identity.
The existing State-to-State data
exchange among DMVs, while focused
on commercial driver’s licensing, also
impacts non-commercial license
applicants, as States are currently
required to run all license applicants
against the PDPS and CDLIS, which are
both pointer systems that collect limited
information from each State in order to
match against the incoming inquiries.
Both systems offer some mandatory
privacy protections. The PDPS is subject
to Federal regulations 23 CFR 1327.1 et
seq., which adopts the Privacy Act of
1974 8 principles of individual
participation and collection, use, and
disclosure limitation.
DHS intends to work closely with the
DOT, AAMVA, and the States to fulfill
the requirements for State-to-State data
exchange under the REAL ID Act, while
also supporting privacy protections for
this exchange. It has not been
determined whether CDLIS or some
other service will be the platform for the
State-to-State exchange, but regardless
of the platform, it will be necessary for
the States, working with DHS and DOT,
to define the privacy protections for any
State-to-State data exchange. DHS and
DOT will collaborate with states on the
privacy protections and access
provisions for any State-to-State data
exchange.
For example, with support from the
DHS Privacy Office, representatives of
7 CDLIS was developed to enable record checks
of the nation’s professional truck and bus drivers.
It is an enhanced pointer system that requires States
to update records and exchange data.
8 The Privacy Act of 1974, 5 U.S.C. 552a.

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the DMVs of California, Iowa,
Massachusetts, and New York formed a
Federation in July 2006 to identify a
collective governance structure for the
State-to-State data exchange and to
begin to develop business rules,
including privacy protections. This
Federation has recently joined with the
AAMVA REAL ID Steering Committee
to develop an independent governance
structure for the State-to-State data
exchange. The development of privacy
protective business rules, standards, and
governance mechanisms will be central
to ensuring that the privacy of license
holders is protected.
2. Protection of the Personal Information
Stored in State Databases
As discussed at the outset of this
section, the DPPA only addresses
disclosure of motor vehicle record
information but does not address the
security of the motor vehicle record
information or databases. The REAL ID
Act, however, calls for DHS to issue
regulations that ‘‘ensure the physical
security of locations where licenses and
identification cards are produced and
the security of document materials and
papers from which driver’s licenses and
identification cards are produced.’’
DHS believes that this language
provides authority for it to define basic
security program requirements to ensure
the integrity of the licenses and
identification cards. The NPRM,
therefore, proposes that each State
submit as part of the REAL ID Act
certification process a written,
comprehensive, security plan. This
requirement provides an important
safeguard for the personal information
collected, maintained, and used by State
motor vehicles offices, and it will help
assure the public that their information
is being handled appropriately. (See
NPRM section II.K., below.)
As part of its security plan, each State
is also required to outline how the State
will protect the privacy of personal
information collected, disseminated or
stored in connection with the issuance
of REAL ID licenses from unauthorized
access, misuse, fraud, and identity theft.
Each State must prepare these plans to
cover all State DMV offices and driver’s
license storage and production facilities,
databases and systems and submit them
as part of its comprehensive security
plan.
The State’s certification should
demonstrate that it has implemented
best practices to protect the privacy of
the license holder as guided by the fair
information principles, which call for
openness, individual participation
(access, correction, and redress),
purpose specification, data

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minimization, use and disclosure
limitation, data quality and integrity,
security safeguards, and accountability
and auditing. These principles are
widely recognized and embodied in
numerous Federal, State, and
international law and codes of practice.
DHS requests comments on
recommended best practices for
protecting the privacy of the personal
information stored in the various State
motor vehicle databases pertaining to
the requirements under this Act.
3. Protection of the Personal Information
Stored in the Machine Readable
Technology
The REAL ID Act standardizes the
minimum personal information on
REAL ID driver’s licenses and
identification cards, and mandates a
machine readable technology. DHS is
sensitive to the privacy concerns raised
by the potential for non-governmental
third parties to collect and use the
personal information on REAL ID
driver’s licenses and identification
cards. As discussed in sections II.H.7–
9, DHS is recommending that States use
the PDF–417 2D bar code and DHS leans
toward recommending that States
protect the personally identifiable
information stored in this 2D bar code
by requiring encryption, if the
operational complexity of deploying a
nationwide encryption infrastructure to
process access by law enforcement can
be addressed.
4. Conclusion
In summary, DHS has proposed the
following privacy protections in its
implementing regulations for the REAL
ID Act: (1) The State-to-State data
exchanges and the State data query of
Federal reference databases will be State
operated and governed; (2) as part of the
State certification process, States will be
required to submit a comprehensive
security plan, including information as
to how the State implements fair
information principles; and (3) while
acknowledging the benefits of
employing encryption of the personal
information stored on the identification
cards, we invite comment on its
feasibility and costs and benefits to
ensure that its costs do not outweigh the
benefits to privacy.
These protections are intended to
serve as a floor and do not prevent the
States from using their own statutory or
executive authority to provide
additional privacy protections,
consistent with Federal law, for the
personal information stored on the
REAL ID licenses and in their databases.
DHS intends to work closely with the
States as they develop the information

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system(s) necessary for querying
appropriate Federal and State databases
to verify the information contained in
the source documents and to determine
lawful status of applicants. DHS expects
that any system developed for purposes
of the REAL ID Act will build in
appropriate privacy and security
mechanisms to reduce the risk of
unauthorized access, misuse, fraud, and
identity theft.
DHS believes that protecting the
privacy of the personal information
associated with implementation of the
REAL ID Act is critical to maintaining
the public trust that Government can
provide basic services to its citizens
while preserving their privacy. DHS
recognizes the significant privacy issues
that are associated with the Act. The
public is encouraged to comment on the
privacy and security issues associated
with implementation of the Act in order
to ensure that the final rule
implementing this statute reflects
sufficient public input on these
important issues, which could include
the requirements of State
comprehensive security plans; access to
information collected by States pursuant
to the REAL ID Act and the protection
of such information stored in State
databases; and the operation and
governance of electronic verification by
States of driver’s license application
information.
D. Document Standards for Issuing a
REAL ID Driver’s License or
Identification Card
Section 202(c)(1) and (2) of the Act
requires that States issuing REAL ID
driver’s licenses and identification cards
obtain and verify from applicants
documentation establishing—
(1) The applicant’s identity, through a
photo identity document, or a nonphoto identity document that includes
full legal name and date of birth if a
photo identity document is not
available;
(2) Date of birth;
(3) Proof of SSN or ineligibility for an
SSN;
(4) The applicant’s address of
principal residence; and
(5) Lawful status in the United States.
Currently, every State has a different
list of the kind and number of
acceptable identification documents.
Many are voluminous, encompassing 40
or 50 different types of documents.
Many States utilize a ‘‘points’’ system
where a combination of documents
accumulating a sufficient number of
‘‘points’’ is deemed sufficient. Others
use a tier system of ‘‘primary’’ and
‘‘secondary’’ documents, where, for
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and a secondary (such as an electric bill
confirming an address) are required.
Driver’s licenses are the documents
used most frequently to establish
identity and often serve as source
documents to obtain other forms of
identification. If an individual obtains a
fraudulent driver’s license or
identification card, he or she can
potentially engage in identity-based
fraud, or even obtain access to areas and
facilities where he or she might cause
harm or otherwise pose a severe risk to
security.
Based on these considerations, DHS
has determined that many of the
documents currently accepted by DMVs
and proposed by others are not
sufficient to address Congress’ direction
to enhance national security. Many of
the documents on these lists can easily
be counterfeited, or their authenticity
cannot be easily verified by the States—
especially outside of the State of
issuance. Therefore, this rule proposes a
short list of acceptable documents for
REAL ID and temporary REAL ID
driver’s licenses and identification
cards.
This approach offers several
advantages from a security perspective.
First, restricting the number of
documents means that only the
documents which DHS has found to be
the most secure are chosen to
demonstrate identity. Second, limiting
the number improves the chances that
DMV employees will be able to
distinguish valid from fraudulent
documents because there will be fewer
categories of documents with which
they will need to be familiar. Third, a
smaller list of documents increases the
ease of verifying the documents
independently, a related statutory
requirement and one that will be very
effective in reducing document and
identity fraud.
Under the NPRM, DHS proposes that
States require that applicants provide at
least one of these documents in order to
obtain a REAL ID driver’s license or
identification card. States could add
additional documentation requirements
to satisfy their own objectives, but at
least one of the documents listed below
would have to be presented for every
application. State agencies would not be
required to comply with these
requirements when issuing driver’s
licenses or identification cards in
support of the Federal Witness Security
Program, codified at 18 U.S.C. 3521 et
seq., or operations by other Federal,
State, or local criminal justice agencies.
In addition, when requested by an
authorized representative of the Federal
Witness Security Program or the
criminal justice agency, States should

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remove from public records appropriate
material relating to the prior or other
identities of people involved in the
operation and should take sufficient
other steps, as directed by appropriate
officials, to safeguard the identities of
such persons.
1. Documents Required for Proving
Identity
The list of acceptable documents that
DHS proposes to establish identity for
purposes of this regulation is as follows:
• A valid unexpired U.S. passport.9
• A certified copy of a birth
certificate.
• A consular report of birth abroad.
• An unexpired permanent resident
card.
• An unexpired employment
authorization document (EAD).
• An unexpired foreign passport with
valid U.S. visa affixed.
• A U.S. certificate of citizenship.
• A U.S. certificate of naturalization;
or
• A REAL ID driver’s license or
identification card issued subsequent to
the standards established by this
regulation.
a. A Valid Unexpired United States
Passport. A U.S. passport is issued only
by the U.S. Department of State (DOS).
It may be issued only to United States
citizens or nationals. If issued for the
full validity period (ten years for adults;
five years for minors under 16 and for
diplomatic and official bearers) it is
statutory proof of U.S. citizenship
during its period of validity. Before a
U.S. passport is issued, the written
application is carefully adjudicated to
establish the citizenship and identity of
the bearer. First-time applicants must
appear in person. A U.S. passport has
security features that include special
paper, inks and photo printing that
make it difficult to counterfeit or alter.
Beginning in 2006, U.S. passports also
contain the additional security feature
of an integrated circuit chip containing
the bearer’s bio-data, a biometric, and
unique chip identification information.
b. Certified Copy of a Birth Certificate
Issued by a U.S. State or Local Office of
Public Health, Vital Records, Vital
Statistics or Equivalent. DHS recognizes
that a birth certificate is not an identity
document in the true sense of the term.
Instead, a birth certificate is a record
that a birth took place at a particular
time and place, and nothing (such as a
photograph or other biometric) ties a
particular person to a particular birth
9 A passport also includes the passport card that
the Department of State announced in its Notice of
Proposed Rulemaking published October 17, 2006
concerning the Western Hemisphere Travel
Initiative (WHTI) (71 FR 60928).

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certificate. However, section
202(c)(1)(A) of the Act states that a nonphoto identity document is acceptable,
if it includes the person’s full legal
name and date of birth. DHS believes
that this strongly suggests that Congress
intended to maintain the use of the birth
certificate for this purpose, recognizing
the longstanding practice that birth
certificates are used to obtain driver’s
licenses and identification cards. DHS
also understands that the vast majority
of driver’s license and identification
card applicants may only have a birth
certificate available for this purpose;
while U.S. citizens could use a U.S.
passport, passports are currently held
only by an estimated 25 percent of
Americans.
To achieve security objectives, DHS is
proposing that only certified copies of
birth certificates that include the
individual’s full name and can be
verified by a State vital statistics, public
health, or similar office would be
acceptable. Interpreting this more
broadly could result in a myriad of nonsecure, non-verifiable documentation
being used to obtain a driver’s license or
identification card. Given the fact that
Congress specified that the requirements
enumerated in section 202(c)(11) were a
‘‘minimum,’’ and given also the serious
security implications associated with
other implementation considerations
included in Title II of the Act, DHS
believes that it has the necessary
authority to interpret this clause
narrowly. Accordingly, this regulation
interprets section 202(c)(1)(A) to mean
only a certified copy of a birth
certificate, and only one issued
pursuant to the other requirements
discussed in this section. These
regulations do not preclude a State that
accepts a birth certificate as the
applicant’s identity document from
requiring the individual to also present
one or more forms of photo
identification to substantiate his or her
claimed identity.
A corollary issue considered by DHS
is whether to recognize delayed birth
certificates issued more than one year
after the birth itself. While these cases
are relatively few, States have
established procedures in place for
adjudicating these claims and require
evidence to prove the actual occurrence
of the birth prior to issuing the birth
certificate. Therefore, delayed birth
certificates lawfully issued by the States
will also be acceptable as an identity
document.
c. DOS Consular Report of Birth
Abroad of a Citizen of the United States,
FS–240; and DS–1350 and FS–545. The
Consular Report of Birth Abroad
(CRBA), FS–240, is a document issued

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by a United States consular officer to a
person born abroad who acquired
United States citizenship at birth. It is
statutory proof of U.S. citizenship. The
parent of a child acquiring U.S.
citizenship at birth abroad must apply
for the CRBA before the child’s 18th
birthday, and must document the
child’s acquisition of U.S. citizenship.
The CRBA is printed on secure paper in
a format that resembles a state birth
certificate. There are two other DOS
documents issued for U.S. citizens born
abroad and acquiring U.S. citizenship at
birth. Certifications of Report of Birth
Abroad (DS 1350), issued only by
Passport Services Vital Records Office,
may be accepted as the equivalent of the
CRBA. Certifications of Birth (FS–545)
issued at U.S. Foreign Service posts
prior to November 1990 but no longer
issued are still valid and list only the
child’s name, date of birth, place of
birth, and recording date.
d. Certificate of Naturalization, Form
N–550 or N–570, or Certificate of
Citizenship, Form N–560 or N–561. The
Certificate of Naturalization is issued by
the United States government as proof
of a person having obtained U.S.
citizenship through naturalization (a
legal process of obtaining a new
nationality). The Certificate of
Citizenship is proof of an individual
having obtained U.S. citizenship
through derivation or acquisition at
birth. These documents are currently
issued by DHS, printed on secure paper
and have a photograph attached.
e. Unexpired Permanent Resident
Card, Form I–551. This document, also
known as a ‘‘green card,’’ is issued by
DHS to lawful permanent residents of
the United States. The current version
contains numerous security features,
such as microline printing and a digital
photograph. While most of these
documents display an expiration date,
the status itself does not expire.
f. Unexpired EAD, Form I–766 or
Form I–688B. This document is issued
by DHS to numerous categories of aliens
in the United States who are lawfully
authorized to work. The Form I–766
document is secure and difficult to
counterfeit. The I–688B is expected to
be phased out by 2008, but under this
proposal would be acceptable until it is
phased out.
g. Unexpired Foreign Passport with
valid U.S. visa affixed. Valid unexpired
passports from around the world have
traditionally been acceptable
documentation to establish identity in
most, if not all, States. Most passports
meet certain international standards
criteria for security as defined by the
International Civil Aviation
Organization (ICAO). Security features

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for these documents include digital
photographs, information stored on a
machine-readable zone, and other
forensic features. Some passports issued
by foreign countries, however, do not
have these features, and can even be
hand-written. DHS was concerned about
requiring the States to maintain
knowledge of passport types from all
around the world in order to be able to
combat fraud. Further, DHS believes
that DMVs, once they verify the visa,
should be permitted to rely on the fact
that, in issuing the visa and admitting
the alien to the United States, the
Departments of State and Homeland
Security have verified the passport to
the extent required by the REAL ID Act
(see section 202(c)(3)(A) of the Act, and
subsection II.E. of this preamble, below).
Accordingly, States may accept a U.S.
visa contained in a foreign passport as
an acceptable means of authenticating
identity. Not only are the U.S. visas
secure and contain a photograph, issued
U.S. visas can be verified against DOS
systems electronically using the same
connectivity required to verify U.S.
passports.
DHS is aware that inclusion of a visa
alone will leave a large group of aliens
who have lawful status in the United
States unable to obtain a document that
is on this list. First, this includes those
nonimmigrants admitted under section
217 of the Immigration and Nationality
Act (the Visa Waiver Program, or VWP),
as well as the Guam visa waiver
program. However, these aliens are
admitted solely for short periods of
time, are prohibited from working in the
United States, and are unlikely to
qualify for a U.S. driver’s license under
typical State residency requirements.
Further, these aliens can typically use
either the driver’s license from their
home country or an international
driver’s license to be able to drive a car
while lawfully in the United States.
Also, they will still be able to obtain a
non-REAL ID license (if the State
permits it) that could be used for driving
purposes, but not for official Federal
purposes pursuant to this regulation.
Overall, DHS does not believe that this
policy would significantly impact VWP
aliens.
Another classification of persons that
would be unable to present a visa are
Canadians who enter the United States
without having to obtain a visa and who
stay in the United States for extended
periods (i.e., more than 90 days) at a
time. While the majority of these are
short-term visitors who would not need
a U.S. driver’s license, and indeed are
not issued any U.S. documentation or
recorded in U.S. nonimmigrant data
systems, some are longer-term visitors

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who may be students, authorized
workers or others who may have reason
to need a U.S. license. DHS requests
comments specifically on how this
group could be affected if they are
unable to obtain a U.S. REAL ID driver’s
license that could be used for Federal
purposes.
h. Driver’s License/Identification Card
Issued After the Standards Established
by the Regulation. Any REAL ID driver’s
license or identification card issued
after the establishment of these new
standards, except non-REAL ID driver’s
licenses and identification cards issued
under section 202(d)(11) of the Act,
should be acceptable to establish
identity, when an individual moves
from State to State or when a driver’s
license or identification card is being
renewed.
2. Additional Documents Considered
and Rejected for Proof of Identity
a. Transportation Worker
Identification Credential. One document
considered by DHS as acceptable to
demonstrate identity is the
Transportation Worker Identification
Credential (TWIC). This identification
document will be very secure and those
who obtain it will be subjected to
rigorous background checks. However,
DHS believes that any identification
document acceptable in this regulation
must be capable of being verified
electronically by a State in a timely
fashion. Including a TWIC on the list of
acceptable identity documents, at this
time, would require DHS to develop,
and the DMVs to access, information
electronically using a system that has
yet to be created. All TWIC holders
would also have one of the other
documents prescribed by the regulation.
Thus, DHS is not at this time proposing
to include the TWIC as an acceptable
identity document for REAL ID driver’s
licenses and identification cards.
b. Department of Defense’s Common
Access Card. DHS also considered the
Department of Defense’s Common
Access Card (CAC). The CAC card may
prove convenient for members of the
military who move frequently and need
to get new driver’s licenses and
identification cards. For the same
reasons as the TWIC, DHS is not
proposing to include this document on
the list at this time. DHS does not
dispute the quality or utility of the CAC;
however, DHS believes that any CAC
holder would also have one of the other
documents on the DHS proposed list,
and including the CAC card would
require States to connect to additional
Federal databases for verification
purposes, without sufficient
justification.

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c. Native American Tribal Documents.
DHS discussed these documents with
the Bureau of Indian Affairs of the
Department of the Interior and
concluded that since all tribes obtain
State-issued documentation to verify
birth, all tribal members will have, or
can obtain, an eligible identification
document, rather than using tribal
documents.
DHS solicits comments on whether
these or any other documents should be
included as acceptable documentation
for showing identity. Commenters
should address instances in which
classifications of individuals could not
obtain any of the documents already on
the proposed list, issues of reliability of
the document proposed, and ability of
the States to verify the proposed
document. If DHS concludes that other
documents, including those listed above
and others submitted by commenters,
are reliable and can be verified
electronically by the States, they may be
included as acceptable identity
documents in the final REAL ID rule.
3. Other Documentation
Requirements. In addition to presenting
evidence of identity, the Act requires
that a driver’s license or identification
card applicant present the following:
a. Documentation Showing Date of
Birth. Individuals may use all
documents included on the list of
identity documents to demonstrate date
of birth. Thus, while this is a statutory
requirement, it is fulfilled by presenting
one of the documents already required
under the proposed list of identity
documents.
b. Evidence of a SSN or Proof of
Ineligibility. The United States, on both
Federal and State levels, has
experienced significant amounts of
fraud due to the misuse of SSNs. Much
of this has been in the context of
‘‘identity theft’’ or other financial
crimes. However, the misuse of SSNs
can have a national security impact as
well. For example, many of the
September 11, 2001 (9/11) hijackers
used numbers that were either never
issued by the Social Security
Administration (SSA), were issued in
the name of a child, or had been
associated with multiple names. The
hijackers used this information to obtain
driver’s licenses, and some held
multiple driver’s licenses from States
including Virginia, Florida, California,
Arizona, and Maryland.10 Accordingly,
DHS believes that the congressional
10 Testimony of James Huse, Jr. Inspector General,
Social Security Administration, House Judiciary
Committee’s Subcommittee on Crime, Terrorism,
and Homeland Security; and Subcommittee on
Immigration, Border Security, and Claims, 107th
Cong., 2nd Sess., June 25, 2002.

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mandate to check all SSNs against SSA
databases prior to the issuance of a
REAL ID driver’s license or
identification card will increase security
and decrease the ability to obtain
driver’s licenses fraudulently. This will
not be a significant burden to the States
as almost all jurisdictions currently
verify SSNs against SSA databases, 46
States using Social Security On-Line
Verification (SSOLV).
SSA has taken significant steps since
2001 to strengthen the SSN issuance
process. SSA has a plan for improving
the security of the SSN card itself, in
compliance with section 7213 of the
Intelligence Reform and Terrorism
Prevention Act of 2004. In recognition
of improvements in the SSN issuance
process and plans for improving the
security of the SSN card, DHS
considered requiring DMVs to require
individuals to present a social security
card with their full name and SSN as
the only mechanism to demonstrate
evidence of their SSN.
DHS recognizes, however, that this
approach would be costly and would
create an undue hardship on SSA and
the public, particularly on members of
the public who had lost or misplaced
their social security cards. Accordingly,
DHS proposes to allow an applicant to
establish his or her SSN by presenting
his or her social security card, a W–2
form, a SSA–1099 form, a non-SSA
1099, or a pay stub with the applicant’s
name and SSN on it.
An alien in the United States without
authorization to work is generally not
eligible for an SSN. Thus, to prove
ineligibility for an SSN, an alien must
present evidence that he or she is
currently in a non-work authorized nonimmigrant status.
c. Documentation of Address of
Principal Residence. There are a number
of potential ways to define the term
‘‘principal residence.’’ DHS reviewed
State definitions of this term and did
not find a consistent definition. The
NGA observed that State laws vary
widely on how to define residency/
domicile because a mobile society leads
to frequent relocations, ownership of
multiple properties, as well as lifestyles
that include no fixed address.
Accordingly, DHS proposes to use the
Black’s Law Dictionary definition of
‘‘domicile’’ which DHS believes
captures the intent of the principal
residence requirement of the Act:
The place at which a person has been
physically present and that the person
regards as home; a person’s true, fixed,
principal and permanent home, to which that

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person intends to return and remain even
though currently residing elsewhere.11

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The need to determine an individual’s
principal residence prior to issuance of
a REAL ID driver’s license also has its
origins in the 9/11 terrorist activity.
Seven of the 9/11 hijackers fraudulently
obtained driver’s licenses in the
Commonwealth of Virginia, although
none of them actually lived there, by
providing false information as to their
true place of residence. At the time
Virginia allowed only a ‘‘signed
affidavit’’ of a Virginia resident to
suffice as proof of residency in the State,
and two of the hijackers paid an illegal
immigrant (who had himself obtained a
driver’s license fraudulently) $100 to
vouch for them.12 By September 21,
2001, Virginia had eliminated this
loophole.
DHS recognizes that some individuals
do not have a fixed address, as that term
is commonly used. Individuals who do
not have a fixed address, such as the
homeless, may still obtain a REAL ID
driver’s license or identification card if
they otherwise can produce the
documents a State must possess and
verify prior to issuing a REAL ID
driver’s license or identification card.
For such individuals, a State may issue
REAL ID driver’s licenses and
identification cards by adhering to a
written exceptions policy as described
in section II.F. below.
d. Evidence of Lawful Status in the
United States. The REAL ID Act
specifies the scope of lawful status in
the United States for purposes of
eligibility for a REAL ID driver’s license
or identification card acceptable for
official purposes. The applicant must be
a person who: Is a citizen or national of
the United States; is an alien lawfully
admitted for permanent or temporary
residence in the United States; has
conditional permanent resident status in
the United States; has an approved
application for asylum in the United
States or has entered into the United
States in refugee status; has a valid,
unexpired nonimmigrant visa or
nonimmigrant visa status for entry into
the United States; or has a pending
application for asylum in the United
States; has a pending or approved
application for temporary protected
status (TPS) in the United States; has
approved deferred action status; or has
11 Bryan A. Garner, editor, Black’s Law
Dictionary, 8th ed., p. 523 (Thomson-West, 2004).
12 Testimony of Paul McNulty, United States
Attorney, Eastern District of Virginia, House
Judiciary Committee’s Subcommittee on Crime,
Terrorism, and Homeland Security; and
Subcommittee on Immigration, Border Security,
and Claims, 107th Cong., 2nd Sess., June 25, 2002.

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a pending application for LPR or
conditional permanent resident status.
A U.S. passport, certified copy of a
birth certificate, DOS consular report of
birth abroad, certificate of citizenship,
certificate of naturalization or a
permanent resident card can be used to
establish lawful status in the United
States for purposes of this proposed
regulation. If an applicant presents an
employment authorization document
(Form I–766) or a foreign passport with
a valid U.S. visa and/or DHS
nonimmigrant Form I–94 affixed for
identification, these documents may be
accepted as provisional evidence of
lawful status, pending verification of
status through the Systematic Alien
Verification for Entitlements (SAVE)
system (see section II.E.3 below). Note
that while all documents presented
must be verified through SAVE or
otherwise, the difference is that since a
visa or EAD are not necessarily linked
to an authorized status, their acceptance
is deemed provisional pending
confirmation of exact status through
further verification. DHS considered,
but rejected, requiring additional
documentary evidence of status that
may be issued by DHS, but considered
this requirement unworkable,
particularly since many holders of EADs
simply do not have any other consistent,
reliable identification.
The EAD is envisioned as the
document to be presented by the
following classes of REAL ID-authorized
aliens: Temporary Protected Status
(TPS) aliens; asylees and asylum
applicants; refugees; adjustment
applicants; and aliens granted deferred
action. DHS understands that regulatory
limitations on issuance of EADs to
asylum and TPS applicants will result
in a wait period before these aliens will
have acceptable documentation, and
invites comment on what alternative
documentation regimen may serve for
these groups, and whether those groups
need a REAL ID driver’s license or
identification card before their
applicable wait period expires.
The proposed rule also does not
include immigration documentation
showing any status under the
immigration laws of American Samoa or
the Commonwealth of the Northern
Marianas for aliens within those
jurisdictions. REAL ID specifies U.S.
immigration statuses. DHS invites
further comment about how these
jurisdictions may better be integrated
into the REAL ID framework.
E. Verification of Information Presented
Section 202(c)(3)(A) of the Act
requires verification from the issuing
agency for issuance, validity, and

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completeness of documentation to
establish the following:
• Identity.
• Date of birth.
• Proof of SSN, or that the person is
not eligible for an SSN.
• The person’s name and address of
principal residence.
• The person’s lawful status in the
United States.
The documents that individuals are
required to present are described in
section II.D.1 and are listed in § 37.11 of
the proposed regulation.
To verify with the issuing agency, the
issuance, validity, and completeness of
documentation means that the State
must determine independently that the
document itself has been legitimately
issued by the issuing agency to the
individual presenting the document,
prior to issuing the driver’s license or
identification card to the individual.13
This means that DMVs are required to
perform a physical inspection of the
source document to ensure that it
appears authentic and has not been
tampered with. However, document
verification is not sufficient. DMVs must
also verify the information contained in
the document with an authoritative or
reference database. Thus, States must
verify both document and data under
the Act, although this verification may
be phased in over time.
The use of the phrase ‘‘required to be
presented by the person under
paragraph (1) and (2)’’ in section
202(c)(3)(A) of the Act means that only
the specific documents required by this
proposed regulation need to be verified.
Thus, in the case of identity, only the
documents listed in these regulations as
required to be presented must be
verified. If States wish to require
additional documentation to prove
identity—for example, if they wish to
require photo identification in addition
to a certified copy of a birth certificate—
then the State does not need to
independently verify these additional
items, only the birth certificate, as it is
included on the Federal list. Ensuring
that at least one document presented is
independently verified will increase
security by reducing the ability to
fraudulently manufacture
documentation typically used to obtain
driver’s licenses and identification
cards.
Requiring additional documentation
can help a State to confirm the identity
(or address, or whatever fact is at issue)
13 See discussion infra at II.J.2 on verification of
birth certificates through the Electronic Verification
of Vital Events system (EVVE). If this system is not
operational by May 11, 2008, a State must verify the
validity of the birth certificate at the first license
renewal or re-issuance once EVVER is available.

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of a person. This is a common method
used now by many States—the idea of
‘‘cross-verifying’’ data elements
included on different documents.
However, each independent verification
of a document can cost time and money
for the DMVs—which can create a
disincentive to require many documents
to prove identity and thus eliminate the
benefits of this cross-verification. If this
regulation proposed to require that all
documents presented for any purpose be
verified, this would be an incentive for
States to require only the one document
that the REAL ID regulation requires. In
that circumstance, the verification
requirement could result in a less secure
process. DHS believes that the better
and more secure solution is to require
that a State verify the identity document
an applicant presents, pursuant to REAL
ID requirements. States retain the
flexibility to require documents in
addition to the Federal document
requirements, and to verify them
pursuant to their own regulations and
practices. Any additional documents
beyond those listed in § 37.11 need not
be verified independently, but can be
‘‘cross-verified’’ against the one
document that must be verified
according to these regulations. DHS
proposes that it be up to the States
whether to keep digital or paper copies
of supplemental documentation beyond
the Federal document requirements,
pursuant to the retention requirements
discussed in this regulation.
1. Verification of ‘‘Address of Principal
Residence’’
Although the Act requires States to
verify an applicant’s ‘‘address of
principal residence,’’ DHS believes that
there is no nationally available, reliable,
up-to-date, and cost-effective method for
States to verify this information with the
issuing source of the document, as the
plain language of the Act would seem to
require. DHS examined existing
governmental and non-governmental
databases that alone, or in combination,
could be used by States to fulfill this
requirement, and determined that there
is no single way for States to comply
with this requirement by May 11, 2008,
or in the reasonably foreseeable future.
States currently have widely varying
ways of determining a person’s
residence, although all States require an
applicant to demonstrate that they live
in the State in which they are applying
for a driver’s license or identification
card. While the U.S. Postal Service can
do a basic electronic check for a fee, this
system is based on nothing more than
the applicant or some unrelated
individual sending to the post office a
change of address card. Thus, although

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an electronic verification, it is not based
on reliable information.
Further, in almost all cases there is no
way to verify independently from
documents presented that an address is
a person’s principal address. A mortgage
statement or lease may indicate that a
person owns or rents property in a
particular place, and while the landlord
or bank holding the mortgage could
verify this, it does not establish that this
is the person’s principal residence, just
that the ownership or rental is
legitimate. In addition, the cost to States
of verifying a multitude of documents
presented to establish address, such as
utility bills, leases, mortgages, or other
documents, is potentially significant.
In spite of these limitations, there is
a need for some reliability in the
information presented for principal
residence, as evidenced by the
experience of the 9/11 hijackers and
how they obtained Virginia driver’s
licenses (see section II.D.3). Therefore,
DHS is proposing that the States require
each applicant to present at least two
documents that include his or her name
and current principal residence.
However, the States will retain the
flexibility to determine for themselves
precisely which documents, or
combination of documents, an applicant
must present to satisfy this requirement
and how a State will validate or verify
this information. The proposed
regulation would require States to
establish a written policy identifying
acceptable documents and how, or if,
they will be independently validated or
verified. The proposal would also
require that States provide this
information to DHS as part of their
initial certification package and
whenever this policy is modified or
superseded.
While States are free to determine the
list of acceptable documents for
themselves, whatever documents
individuals submit must contain a street
address for individuals where available.
Post office boxes or rural route numbers
are not acceptable addresses, since the
statute requires a residence, not simply
an address.14 Documents issued
monthly (e.g., bank statements, utility
bills) could not be more than three
months old at the time of application.
Documents issued annually (e.g.,
property tax records) would need to be
for the most current year at the time of
application.
Applicants would also be required to
sign a declaration (that could be
included as part of the driver’s license
14 One exception might be American Samoa as
this territory does not possess the same type of
addresses commonly used in the 50 States.

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or identification card application form)
affirming that the information presented
is true and correct, including
information presented to establish
address of principal residence. For
minors and other dependents, parents or
legal guardians would submit the
documentation establishing a principal
residence on behalf of the driver’s
license or identification card applicant.
The parent or legal guardian would
need to present photo identification
(that the DMV would need to verify) and
would be required to submit two or
more address documents, as if he or she
were the primary applicant, and sign the
affirmation.
2. Verification of Identity Information
a. Certified copy of a Birth Certificate
Issued by a U.S. State or local office of
Public Health, Vital Records, Vital
Statistics or equivalent. DHS anticipates
that the States will be able to verify
electronically the issuance of a birth
certificate through the Electronic
Verification of Vital Events (EVVE)
system. Once functional, this system
will be able to verify that the
information presented on a certified
copy of a birth certificate is a match to
a vital statistics birth record, in response
to an electronic query from a State
DMV. While the EVVE system has not
been tested nationwide, the National
Association of Public Health Statistics
and Information Systems (NAPHSIS)
has informed DHS that such a system
could be in place and fully operational
by May 2008. If such a system is either
not available nationally by the effective
date of the regulations, or a State is
seeking to verify the validity of a birth
certificate from a State that is not
participating in the EVVE system, a
State may establish written procedures
for how it will attempt to verify such
records, and document its use of those
procedures. At a minimum, the
applicant’s file and/or records should
contain a notation that the birth
certificate information was not verified
electronically with the issuing agency,
and such electronic verification will be
necessary at the first driver’s license or
identification card renewal or reissuance once the information is
available for electronic verification.
Confirmation of the birth certificate
through EVVE will verify not only the
person’s identity but also provide
evidence that they are very likely to be
a U.S. citizen and therefore have lawful
status in the United States.
As discussed above, individuals born
before January 1, 1935, may be unable
to produce birth certificates, or States
may be unable to verify any birth
certificates produced by such

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individuals. Individuals born before
1935 may never have received a birth
certificate, and it may not be possible
for their birth States to reproduce the
document for them. In addition, States
may not have birth information
available electronically for all births
prior to 1935, and DHS believes that it
would be too burdensome on States to
verify this information in a nonelectronic method. Such cases should
not preclude persons from obtaining a
REAL ID driver’s license or
identification card, but should be
handled according to the State’s
exceptions process. DHS intends to
align this provision with the final rule
on minimum standards for birth
certificates promulgated by HHS, in
accordance with its statutory obligation
under section 7211 of the Intelligence
Reform and Terrorism Prevention Act
(Pub. L. 108–58).
b. U.S. passports or Consular Report
of Birth Abroad issued to U.S. citizens
abroad by the Department of State. It is
anticipated that a State will be able to
electronically verify a U.S. passport, or
a birth certificate issued to a U.S. citizen
abroad. The automated system that is
eventually developed will confirm that
the passport was issued by DOS. In the
case of a U.S. passport or a consular
report of birth abroad issued by DOS,
electronic verification will also confirm
that the applicant has lawful status in
the United States.
c. Valid U.S. visas affixed in an
unexpired foreign passport. DHS
examined several options in
determining how to independently
verify a U.S. visa affixed to a foreign
passport as required by the REAL ID
statute. First, verifying the foreign
passport itself with the Government that
issued it is simply not feasible. There is
no guarantee that a foreign Government
would answer a State DMV’s request to
authenticate a specific document, or any
requirement in international law that
they do so in a timely manner.
Requiring this foreign independent
verification would be an unfair burden
to both the driver’s license or
identification card applicant and the
State DMV attempting to adjudicate the
application.
Recognizing that the U.S. visa affixed
in the passport, and not the passport
itself, would be the acceptable
documentation to demonstrate identity,
DHS turned to how that verification
would occur. First, DHS examined
whether the DMVs could use the State
Department systems to verify the visa.
While this was a feasible solution since
access to DOS databases will ultimately
be necessary for all DMVs anyway (to
verify U.S. passports and certain birth

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certificates), authentication of a U.S.
visa does not, by itself, establish lawful
status in the United States.
While a U.S. visa can be issued for as
long as ten years (and often is), it is the
Customs and Border Protection (CBP)
Officer at U.S. ports of entry who
determines the actual admission period
for the person seeking to enter the
United States. In most cases, this
admission period is less than the
validity period of the U.S. visa.
Accordingly, foreign travelers often use
the same visa for multiple trips to the
United States—and the length of
validity period for the visa is not
dispositive as to whether someone has
lawful status in the United States.
Therefore, to adopt a policy in which a
U.S. visa holder must use that visa to
establish identity would require that
aliens using a U.S. visa as evidence of
identity have to undergo three separate
checks—the DOS database (to confirm
identity), SAVE (to confirm lawful
status), and SSOLV (to confirm the
Social Security Number). All other
categories of driver’s license or
identification card applicants, including
U.S. citizens (whether born in the U.S.
or abroad), LPRs, and others would
require only two database checks. This
approach was deemed to be unduly
burdensome on both the applicant and
the DMV.
DHS then considered another
solution—validating the U.S. visa
through existing U.S. immigration and
border processing procedures, including
DHS’s U.S.VISIT and the Department of
State’s BioVisa Program. Currently,
when a person applies for a U.S. visa
abroad, he or she is required to submit
finger scans, which are biometrically
verified when the person arrives in the
United States—so that the United States
can be sure that the person who
received the visa is the same person
seeking admission.
DHS believes that, for purposes of
obtaining a REAL ID driver’s license or
identification card, the fact that the U.S.
visa was used to enter the United States,
and that person was checked against
US-VISIT, is an acceptable verification
that the document (the U.S. visa) is
legitimate. The U.S. visa has been
checked against a Government-held
database via the biometric check upon
arrival. State DMVs will not be required
to check the US-VISIT system to
confirm that the visa was used for
admission. Thus, if the person holding
a U.S. visa has lawful status in the
United States, which can be verified
through SAVE, then the person will
have established both identity and
lawful status. Under this proposal,
aliens presenting a foreign passport with

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a valid U.S. visa would require only a
SAVE and SSOLV check, placing them
on par with other driver’s license or
identification card applicants.
3. Verification of Lawful Status
If an applicant presents a permanent
resident card (Form I–551), an EAD
(Form I–766), or a foreign passport with
a U.S. visa affixed, the applicant is not
a U.S. citizen. In accordance with the
Act, this proposal would require the
States to verify the authenticity of the
identity documentation and lawful
status in the United States at the same
time, using the SAVE system
maintained by U.S. Citizenship and
Immigration Services (USCIS). Under
section 202(c)(3)(C) of the Act, States
have already been required to enter into
memoranda of understanding with DHS
by September 11, 2005, to use the
electronic and automated system to
verify the legal status of a non-U.S.
citizen applying for a REAL ID driver’s
license or identification card.
SAVE is an existing program within
DHS that allows State DMVs (as well as
many other Federal, State, and local
benefit and license granting agencies) to
verify electronically the immigration
status of the person applying for a
driver’s license or identification card.
This system can verify that a person
presenting a Permanent Resident Card
(Form I–551) was issued lawful
permanent resident status in the United
States and, thus, is lawfully in the
country. SAVE can also confirm that a
person presenting an EAD (Form I–766
or Form I–688B) is in a lawful
nonimmigrant status and present in the
United States for a fixed period of time.
Moreover, SAVE can confirm that an
applicant presenting a U.S.-issued visa
affixed to a foreign-issued passport is
lawfully in the country for a temporary
period of time. If a person presents a
U.S.-issued visa affixed to a foreignissued passport, then the applicant will
also need to present additional
documentation to allow for a SAVE
search. This could be a passport stamp,
an I–797 Notice of Action, or some other
documentation issued by USCIS. The
terms and conditions of access to SAVE
by a State, including any costs to be
borne by the State, shall be established
by memorandum of agreement between
DHS and the State pursuant to section
202(c)(3)(C) of the Act.
For student aliens admitted for
duration of status (D/S), DMVs should
use the Student and Exchange Visitor
Information System (SEVIS) for
verification. SEVIS is a system in which
DHS and schools who enroll foreign
students communicate to ensure that the
aliens claiming student status (as well

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as exchange visitors such as au pairs)
are in fact currently enrolled. There will
ultimately be a connection between
SEVIS and SAVE, but until such time,
DHS has decided on the following:
• DHS will use the SAVE/SEVIS
connection, if the systems are connected
prior to May 2008.
• If the SAVE/SEVIS connection is
not available, DHS may require foreign
students to present a certified statement
from the registrar of the school in a
sealed envelope demonstrating that he
or she is still in school at the time of the
alien’s application for a driver’s license
or identification card (and thus still in
lawful status).
Individuals who are denied a
temporary REAL ID driver’s license or
identification card due to a SAVE check
that they believe is in error should
contact the local USCIS branch, or as
USCIS may otherwise direct, to resolve
concerns over verification of their
lawful status.
4. Verification of Date of Birth
As stated earlier, all of the documents
listed on the proposed list of acceptable
identity documents display the date of
birth on the face of the document. Thus,
once the information on the document
is verified, as it must be for identity
purposes, there is no further need for
the States to verify date of birth
independently.

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5. Verification of Social Security
Account Number or Ineligibility
Because of the requirements for the
issuance of commercial driver’s
licenses, the majority of State DMVs
already have access to the SSA database
for verification of SSNs. Thus, when the
DMV applicant presents evidence of an
SSN, the DMV will be able to verify that
number through existing systems.
Verification that a person is not eligible
for an SSN must also be provided. To
satisfy this requirement, an alien must
present evidence, verifiable through
SAVE, that he or she is currently in a
nonimmigrant status establishing that
he or she does not have the right to
work in the United States. A person is
never permanently ineligible for an
SSN, as he or she could obtain some
type of immigration status that would
entitle him or her to one.
6. Connectivity to Systems and
Databases Required for Verification
For individual States to verify
information and documentation
provided by applicants, each State must
have electronic access to multiple
databases and systems as described
above. DHS considers the deployment of
the information systems needed to

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support the electronic verification of
applicant data to be its highest priority.
Secure and timely access to trusted data
sources is a prerequisite for effective
verification of applicant data. Electronic
access to the Federally-sponsored
databases described above will also
significantly reduce the costs of REAL
ID driver’s license and identification
card issuance to States. Finally, DHS
will work closely with the States to
improve their capabilities for verifying
the authenticity of source documents.
Both data verification and document
authentication are necessary to ensure
the validity of REAL ID driver’s licenses
and identification cards.
a. Applicant Data Verification.
Electronic data verification requires
secure and timely communications
among a number of both Federal and
State-sponsored information systems.
DHS can provide assistance to states in
three key areas: Enhancement of
Federally-sponsored reference
databases; development of a cost
effective service for querying these
reference databases; and the exchange of
data among states to reduce fraud.
While DHS will provide assistance to
states in all three areas, its role and
responsibilities will differ in each.
i. Reference databases. Confidence in
the accuracy and reliability of the data
provided by applicants and included on
their driver’s licenses and identification
cards depends in large part on the
quality and completeness of data in the
reference databases used for
verification. These databases, however,
are Federally-sponsored and Federallyfunded initiatives. Therefore, DHS
recognizes that one of its primary
responsibilities under the REAL ID Act
is to expedite the improvement of the
databases required for electronic
verification of applicant data. DHS is
working with the sponsoring agencies to
ensure that the reference databases meet
the standards for data quality,
reliability, integrity, and completeness
required to support REAL ID data
verification by the states and other
jurisdictions. While some of these
reference databases are mature and fully
operational, others are still under
development and need investments of
resources.
First, almost all State DMVs currently
access the SSOLV database to verify
social security numbers through a portal
provided by the American Association
of Motor Vehicle Administrators
(AAMVA). The quality and reliability of
this reference data is good and
improving. Second, all fifty states have
signed MOUs for access to SAVE and
twenty State DMVs are currently
querying SAVE to verify lawful status.

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While secondary queries may be
required in some instances to update
applicant records in SAVE, more than a
million initial queries from State DMV
are already being processed each year.
Moreover, DHS anticipates that the
SEVIS–SAVE connection will be
completed before May 2008. Third, DHS
is working with NAPHSIS to enhance
EVVE functionality and expedite
implementation of EVVE in all vital
records jurisdictions. Since EVVE is
currently in pilot phase and will require
states to bring their vital records online,
assistance to both NAPHSIS and
individual states will be needed.
Finally, DHS is working with the
Department of State to develop an
automated system for verifying data
from U.S. Passports, Consular Reports of
Birth, and Certifications of Report of
Birth. For all of these systems, DHS is
committed to improving data quality
and data consistency to support timely,
cost-effective, and reliable data
verification.
ii. Federated querying service. States
must be able to access the reference
databases in a timely, secure and costeffective manner. As noted above, most
states already query some of these
reference databases either directly or
indirectly through a portal provided by
AAMVA. This access, however, needs to
be enhanced as the Federally-sponsored
systems are upgraded or deployed and
all 56 jurisdictions seek access for
purposes of applicant data verification.
DHS is committed to expediting the
development and deployment of a
common querying service that will
automatically distribute State DMV
queries for REAL ID data verification to
the appropriate reference databases and
combine the multiple responses into a
single reply. The purpose of this
federated querying service will be to
minimize the impact of data verification
on State DMV business processes and
reduce the costs of data access. DHS
will support the development of
querying service but will not operate or
control this service. DHS is currently
exploring alternative solutions.
However, use of this federated querying
service will be voluntary and States may
choose to: Maintain or establish direct
access to the reference databases;
combine direct access with partial use
of the common service; or verify
applicant data against the reference
databases in some other manner.
Finally, DHS and DOT will assist the
States in their efforts to develop
improved business rules and data
formats for data communications with
reference databases. These business

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rules will, in turn, become part of the
security plans submitted to DHS.
iii. Data exchange among states. The
third area of applicant data verification
involves access to other state databases
to verify that the applicant is not
disqualified from obtaining a REAL ID
driver’s license or identification card
due to possession of a REAL ID driver’s
license or identification card in another
state. Data exchange among states is
mandated by section 202(d)(12) of the
Act, wherein each State must provide to
each other State(s) electronic access to
the DMV database of that State. In
particular, this rule requires the
exchange of data among all jurisdictions
to verify that the applicant does not
hold a valid driver’s license or
identification card in another
jurisdiction and that other jurisdictions
have terminated the applicant’s driver’s
licenses and identification cards before
a REAL ID can be issued. However, data
exchange among State DMVs is also
governed by the National Driver Register
Act of 1982, as amended, and the
Federal Commercial Motor Vehicle
Safety Act of 1986. The Act and this
rule pose an additional requirement for
State-to-State data exchange, but it does
not alter existing rules and regulations.
Under all three statutes, the primary
purpose of State-to-State data exchange
is driver safety—to ensure that drivers
are not holding multiple licenses in
multiple jurisdictions to avoid points
from dangerous driving and to
determine if the applicant is unqualified
or the application fraudulent—not
specifically to verify the applicant’s
identity. Thus, data exchange among
states is substantially different from
verification of applicant identity data
with the Federally-sponsored databases
discussed above. State-to-State data
exchange among DMVs is governed by
multiple statutes and multiple agency
regulations and has been effectuated
through multiple database systems. DHS
will build upon the existing
infrastructure of Federal statutes,
regulations, and data systems in
implementing REAL ID.
Therefore, DHS will work closely
with the Department of Transportation,
AAMVA and the States to fulfill the
requirements for State-to-State data
exchange under the REAL ID Act. DHS
will actively support the enhancement
and expansion of existing DOTsponsored systems to meet the
requirements of the REAL ID Act. For
example, verification that the applicant
does not hold a valid driver’s license or
identification card in another
jurisdiction can be accomplished by a
variety of methods, including the
exchange and comparison of digital

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image information based on applicant
photos. DHS will support such State-toState exchange initiatives and will
partner with DOT, the States and
territories, and AAMVA to leverage the
value of existing information systems,
business rules, standards, and
governance mechanisms to facilitate
implementation of the Act.
b. Source document authentication. In
addition to verification of applicant
identity data, the Act requires that the
jurisdictions authenticate the source
documents provided by the applicant.
According to section 202(3)(A), ‘‘the
State shall verify, with the issuing
agency, the issuance, validity, and
completeness of each document
required to be presented.’’ This requires
that jurisdictions inspect applicant
source documents to ensure that they
are genuine and have not been tampered
with. DHS recognizes that source
document authentication is the
responsibility of State DMVs who
employ a variety of procedures, both
manual and automated, to verify both
the overt and covert security features of
identity documents. In addition,
jurisdictions may institute the exchange
of data on identity document security
features in order to facilitate the manual
or automated inspection and
authentication of source documents.
DHS will support these State initiatives
and require that jurisdictions document
their procedures and standards for
document authentication as part of their
security plans. However, DHS will not
support the development of a federallycontrolled or operated repository for
source documents or a national facility
for document authentication under the
Act.
F. Exceptions Processing for
Extraordinary Circumstances
DHS recognizes that there may be
extraordinary circumstances where the
required documents verifying an
applicant’s identity, date of birth, SSN,
principal address or lawful status may
be unavailable. This would include
applicants such as a homeless person
with no fixed address, as well as an
individual who has lost all
documentation to a natural disaster
such as Hurricanes Katrina and Rita. In
such circumstances, DHS believes that
the States should have the flexibility to
accept alternative documents to
establish a particular data element,
provided that the State follows defined,
written, procedures that are approved
by DHS as part of the State certification
process for REAL ID. Therefore, DHS
proposes that, where a State chooses to
establish an exceptions process, that

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process must include, at a minimum,
the following requirements:
• The driver record maintained by the
DMV must indicate when an alternate
document is accepted.
• Any driver’s license or
identification card issued using
exceptions processing requires a
complete record of the transaction,
including a full explanation of the
reason for the exception, alternative
documents accepted and how
applicable information from the
document was verified.
• The jurisdiction retains the
alternate documents accepted or copies
thereof in the same manner as for other
source documents as described in
section II.J. and provides these upon
request to DHS for audit review.
G. Temporary Driver’s Licenses and
Identification Cards
Aliens who are in the following
lawful statuses may receive REAL ID
driver’s licenses and identification
cards: Has a valid, unexpired
nonimmigrant visa or nonimmigrant
visa status for entry into the United
States; has a pending application for
asylum in the United States; has a
pending or approved application for
temporary protected status (TPS) in the
United States; has approved deferred
action status; or has a pending
application for LPR or conditional
permanent resident status. However,
driver’s licenses and identification cards
issued to these classes of aliens are only
valid for the duration of the person’s
lawful period of admission, but no more
than eight years, or, if there is no fixed
date, a period of one year. Further, these
‘‘temporary’’ driver’s licenses and
identification cards must clearly
identify on the face of the document
that they are temporary.
Renewal of these temporary driver’s
licenses and identification cards must
be in person. The renewal applicant
must present valid documentary
evidence that the status by which the
applicant qualified for the temporary
driver’s license or temporary
identification card has been extended by
the Secretary of DHS, or that the
individual has qualified for another
lawful status category listed in the Act.
The following statuses are
indeterminate and will always require
issuance of a driver’s license or
identification card limited to one year:
Asylum applicant, TPS applicant, and
adjustment applicant. Other temporary
categories will vary, and the end of the
period of authorized stay, if any, must
be verified through the SAVE or other
designated verification system.
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necessarily the same as the end date of
the status. Visa expiration dates have no
relevance to the period of authorized
stay. Aliens with immigration statuses
other than those designated by REAL ID
for temporary driver’s licenses and
identification cards are not subject to
this limitation on the length of their
driver’s licenses and identification
cards, regardless of any expiration date
that may appear on their
documentation.
H. Minimum Driver’s License or
Identification Card Data Element
Requirements
To meet the requirements of section
202(b) of the Act, a State is required to
include, at a minimum, the following
information and features on each
driver’s license and identification card:
(1) Full legal name;
(2) Date of birth;
(3) Gender;
(4) Driver’s license or identification
card number;
(5) A digital color photograph;
(6) Address of principal residence;
(7) Signature;
(8) Physical security features designed
to prevent tampering, counterfeiting, or
duplication of the document for any
fraudulent purpose;
(9) A common MRT, with defined
minimum data elements.
In addition, DHS has determined that
States must also include issue date and
expiration date on each driver’s license
or identification card.
Some of these elements are discussed
below.

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1. Full Legal Name
The intent of this requirement is to
improve the ability of law enforcement
officers, at all levels of Government, to
confirm the identity of individuals
presenting State-issued driver’s licenses
or identification cards. Many States do
not have a ‘‘full’’ legal name
requirement, and using a name other
than a full legal name results in ‘‘no
matches’’ when checked against other
public records that use the full legal
name. This occurred with some of the
driver’s licenses and identification cards
obtained by the 9/11 terrorists, where
the driver’s licenses ‘‘names’’ were
variants on the actual name carried in
some of the terrorists’ validly issued
passports.15
This requirement raises several issues.
First, the name on the REAL ID driver’s
license or identification card should be
identical to the name shown on the
identity document used to obtain the
driver’s license or identification card.
15 H.R.

Rep. No. 109–72 (2005) (Conf. Rep.).

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3. Digital Photograph
Section 202(b)(5) of the Act requires
that the State-issued REAL ID license or
identification card include a digital
photograph of the person. In addition,

section 202(d)(3) provides that the State
shall require that each person applying
for a driver’s license or identification
card be subject to mandatory facial
image capture. This requirement applies
whether or not the person is granted a
driver’s license or identification card.
DHS believes that these provisions
require each applicant to allow a DMV
to take a photograph for the motor
vehicle record, and to place the digital
image on the face of the driver’s license
or identification card, if one is issued.
If a driver’s license or identification
card is not issued, DHS is proposing
that States dispose of the photograph
after one year. The DMV’s photo of the
individual should be updated with the
most recent photograph in the event the
applicant reapplies, and any photos
taken of the individual prior to
successful issuance of the document
should be discarded in favor of the
photo associated with the successful
application. If the DMV does not issue
the driver’s license or identification
card because of suspected fraud, the
record should be maintained for ten
years and reflect that a driver’s license
or identification card was not issued for
that purpose.
DHS recognizes that some individuals
that may apply for a REAL ID driver’s
license or identification card are
opposed to having their photograph
taken based on their religious beliefs.
However, the Act requires a facial
photograph, which serves important
security purposes. Given these concerns
and the clear statutory mandate, DHS
believes that a driver’s license or
identification card issued without a
photograph could not be issued as a
REAL ID driver’s license or
identification card. Many States now
issue non-photo driver’s licenses or
identification cards based on the
applicant’s religious beliefs. States may
continue to issue these driver’s licenses
or identification cards to such
individuals and DHS recommends that
these driver’s licenses and identification
cards be issued in accordance with the
rules for non-compliant driver’s licenses
and identification cards.
DHS is proposing that digital
photographs comply with current ICAO
standards.17 Such standards include
diffused lighting over the full face to
eliminate shadows and ‘‘hotspots,’’ a
full face image from the crown to the
base of the chin and from ear-to-ear
(unless the State chooses to use profiles
for licensees under 21), and images with

16 Section 7214 of the Intelligence Reform and
Terrorism Prevention Act of 2004 (Pub. L. 108–458,
118 Stat. 3638, Dec. 17, 2004) amended section
205(c)(2)(c)(vi) of the Social Security Act (42 U.S.C.
405(c)(2)(C)(VI)).

17 The relevant ICAO standard is ICAO 9303 part
1 vol 2, specifically ISO/IEC 19794–5—Information
technology—Biometric data interchange formats—
Part 5: Face image data, which is incorporated into
ICAO 9303.

However, formats for recording names
on identity documents differ and a
driver’s license or identification card
holder’s name may change through
marriage, divorce, adoption, or court
order. State DMVs currently require
appropriate proof in the form of
documents indicating an official name
change: A U.S. court-or Governmentissued marriage certificate, a U.S. courtissued divorce decree, or a U.S. courtissued name change decree. States must
require an original or certified copy of
one of these documents as proof of
change of name, and the document must
include either the date of birth or the
age of the individual. States must also
add the changed name in the motor
vehicles record database and not delete
any previously captured names so that
a complete record of the individual’s
full name history is present in the motor
vehicles database.
With regard to the name placed by the
DMV on the face of the driver’s license
or identification card, DHS is proposing
to adopt the ICAO 9303 Standard. The
ICAO 9303 standard requires Roman
alphabet characters, allows a total of 39
characters on the face of the driver’s
license or identification card, and
provides standards for truncation of
longer names.
For the machine readable portion of
the card, the machine readable
technology standard proposed is the
PDF–417 2D bar code (see section II.H.8
below). For the machine readable
portion of the card, DHS would require
States to capture and record up to 125
characters in the bar code and State
database to permit capture of the full
name history. Allowing at least 125
characters accommodates certain
cultures in which multiple, lengthy
names, are common and permits greater
accuracy in identifying particular
individuals.
2. Driver’s License or Identification Card
Number
Section 202(b)(4) of the Act requires
that each REAL ID license or
identification card include the person’s
unique ‘‘driver’s license or
identification card number.’’ Federal
law prohibits the display of an
individual’s SSN on a driver’s license.16

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no veils, scarves or headdresses to
obscure facial features, or eyewear that
obscures the iris or pupil of the eyes.
Photos should also be in color.
4. Address of Principal Residence
This regulation proposes that, in most
cases, the individual’s principal address
be included on the face of the REAL ID
driver’s license or identification card.
DHS proposes exceptions to this
requirement, as described below.
a. Confidential Address. Section
202(b)(6) of the Act requires that the
driver’s license or identification card
include the person’s address of
principal residence. Many States have
laws that allow addresses to be kept
confidential in certain circumstances;
for example, where the disclosure of an
address may jeopardize the personal
safety of such an individual, such as
victims of domestic violence, judges,
protected witnesses, and law
enforcement personnel. Some States
provide the standards for address
confidentiality through legislation or in
their exceptions processing. Most States
retain the ‘‘real’’ address in their
database, but often protect it so that
only authorized personnel have access
to the ‘‘real’’ address. In addition, most
States do not have the ‘‘real’’ address in
the machine readable technology
barcode. Rather, the machine readable
zone contains only what is on the face
of the driver’s license or identification
card.
Section 827 (Protection of domestic
violence and crime victims from certain
disclosures of information) of the
Violence Against Women and
Department of Justice Reauthorization
Act of 2005,18 amended the REAL ID
Act 2005 (49 U.S.C. 30301 note), to
protect against disclosure addresses of
individuals who have been subjected to
battery, extreme cruelty, domestic
violence, dating violence, sexual
assault, stalking or trafficking.
Consequently, DHS is proposing to
exempt individuals who are entitled to
enroll in State address confidentiality
programs, whose addresses are entitled
to be suppressed under State or Federal
law or by a court order, or who are
protected from disclosure of information
pursuant to section 384 of the Illegal
Immigration Reform and Immigrant
Responsibility Act of 1996 from the
requirement to have their address
displayed on REAL ID driver’s licenses
and identification cards. DHS
understands that other categories of
individuals, such as federal judges, may
also require that their addresses remain
18 Title VIII, subtitle C, Sec. 827 (Pub. L. 109–162,
119 Stat. 2960, 3066, Jan. 5, 2006).

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confidential to protect their safety. DHS
seeks comment on how these categories
of individuals can be protected, while
remaining consistent with requirements
of the Act.
b. No Fixed Address. DHS recognizes
that some people do not have a fixed
address and that States have exceptions
processes in place to address this
situation. DHS believes that each State
should continue to address these
situations through a written and
documented exceptions process. For
example, in some States homeless
people may use addresses of accredited
organizations on the local or State level.
A State can address such circumstances
through a written exceptions process,
and States must document each use of
such a process. Exceptions processing is
discussed further at section II.F.
5. Signature
DHS proposes that the signature meet
the requirements of the existing
AAMVA standards for the 2005
AAMVA Driver’s License/Identification
Card Design Specifications, Annex A,
section A.7.7.2. This standard includes
requirements for size, scaling, cropping,
color, borders, and resolution.
6. Physical Security Features
Section 202(b)(8) of the Act requires
that States must include physical
security features on driver’s licenses
and identification cards to ensure they
are resistant to tampering,
counterfeiting, or duplication for
fraudulent purposes. The legislative
history of this requirement states:
The importance of this requirement cannot
be overstated. A majority of States maintain
a high level of physical security in the
manufacture of their cards. Unfortunately, a
significant minority of States do not issue
licenses or ID cards with secure physical
characteristics. This results in criminals,
identity thieves, and amateurs such as
college students being able to ‘‘manufacture’’
fake driver’s licenses or ID card from these
States. Federal law enforcement officials—
national forensic document laboratory—can
validate that the driver’s license of these
States are not secure from counterfeiting
using easily available technology.19

To develop a regulation that meets
these objectives, DHS consulted forensic
document experts and evaluated
information helpful in determining
minimum standards that would achieve
significant security benefits within the
next few years, make it significantly
harder for amateurs to counterfeit or
duplicate driver’s licenses and
identification cards, and enable States to
19 H.R. Rep. No. 109–72, at 179 (2005) (Conf
Rep.).

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continue to improve the security of their
documents.
One option DHS considered was to
permit States to select from a ‘‘menu’’ of
recognized security features contained
in many existing driver’s licenses and
identification cards. This option would
essentially continue the status quo and
provide States with the most flexibility
since no two States would necessarily
select the same security feature choices.
DHS rejected this option since State
choice in this area has not produced
sufficiently secure forms of
identification. There are a variety of
websites offering counterfeit driver’s
licenses and identification cards from
each State, and even trained officers
cannot always detect counterfeit
identification from another jurisdiction.
In addition, this option did not provide
sufficient incentives for States to
continue to improve the security of their
driver’s licenses and identification
cards.
DHS also considered mandating all
the required security features, including
the document card stock, to the States.
This option had the benefit of producing
a set of standardized security features
that law enforcement and other
personnel could be trained to recognize,
would achieve significant security
benefits within the next few years, and
would make it significantly harder for
amateurs to counterfeit or duplicate.
States were concerned that a fixed array
of features would permit professional
counterfeiters to focus on countering a
static set of security features and might
inhibit States from using new and
evolving technology. States were also
concerned that mandating the particular
card stock a State could use would put
States at a competitive disadvantage
with potential card stock suppliers and
lead to increased costs for the States.
The approach DHS is adopting is to
combine some mandatory security
features with a performance standard,
based on impartial adversarial testing of
the card and security features. The
mandatory security features DHS
proposes, such as the use of offset
lithography in place of dye sublimation
printing, is designed to impair the
ability of amateurs to manufacture
counterfeit driver’s licenses and
identification cards or alter genuine
ones. It will also lead to a set of
standardized security features that law
enforcement and other personnel can be
trained to recognize. The use of
adversarial testing permits States to
experiment with a variety of card stocks
and new technologies while fulfilling
the underlying security requirements of
the Act. DHS understands that a number
of different types of card stock,

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including polycarbonate, would likely
satisfy the proposed performance
standard.
DHS seeks comments on whether the
proposed adversarial testing standards
will lead to the development of a secure
document solution that deters amateurs
from producing deceptive counterfeits
and/or alterations. DHS also seeks
comments on other alternative
approaches DHS could pursue on
document security to achieve the same
objective and how those approaches
compare to a performance-based
independent adversarial testing. DHS
requests that States specifically
comment on what contractual issues, if
any, the States will face in satisfying the
proposed document security
requirements if the State’s existing
license fails one or more of the proposed
adversarial tests.
DHS understands that technology is
ever-advancing. Therefore, the proposed
regulation would establish standards for
achieving increased document security
for driver’s licenses and identification
cards. DHS encourages experimentation
and development of advanced security
technologies.
7. Privacy of the Information Stored on
the Driver’s License or Identification
Card
An important purpose of the Act is to
improve law enforcement’s ability to
confirm the identity of the individual
bearing the driver’s license or
identification card, in order to reduce
identity theft and fraud. Authorized
users of the information on the REAL ID
driver’s licenses and identification cards
including, but not limited to, law
enforcement should be able to access
the necessary personal information
stored on the driver’s license or
identification card in order to
accomplish a legitimate law
enforcement purpose. The ability of
commercial entities and other non-law
enforcement third parties to collect the
personal information encoded on
driver’s licenses or identification cards
raises serious privacy concerns.
However, while cognizant of this
problem, DHS believes that it would be
outside its authority to address this
issue within this rulemaking.
As discussed in the Privacy
Considerations section of this Preamble,
DHS strongly encourages the States to
address concerns about the ability of
non-law enforcement third parties to
collect or skim personal information
stored on the REAL ID driver’s licenses
or identification cards. Some States,
such as California, Nebraska, New
Hampshire and Texas have passed laws
that prohibit the collection of

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information on a driver’s license or
identification card. In addition, as noted
above, AAMVA has drafted a Model
Act 20 that, if enacted by a State, would
prohibit commercial users, except as
provided by the State’s legislation, from
using a scanning device to: (1) Obtain
personal information printed or
encoded on the card and; (2) buy, sell
or otherwise obtain and transfer or
disclose to any third party or download,
use or maintain any data or database,
knowing it to contain personal
information obtained from a driver’s
license or identification card. The
Model Act authorizes verification of age
for purchasing alcoholic beverages or
tobacco products, but with strict
limitations on the storage and use of
such information. DHS supports the
privacy and security benefits such State
legislation affords and encourages the
States to consider the benefits of
promulgating the Model Act or similar
legislation.
DHS is attempting to achieve a
balance between facilitating the ability
of law enforcement and other
authorized persons to have access to the
information on the card and protecting
the integrity of the information on the
card by limiting the ability of nonauthorized persons to obtain that same
information. Encryption discussed in
section II.H.9 below is one option, but
significant concerns exist about the
feasibility of deploying encryption,
given the need for Federal, State and
local law enforcement access.
DHS seeks comments on how best to
secure the data, or whether or not to
employ protections for the data encoded
on the 2D bar code needs to be protected
at all, while permitting law enforcement
access and what technologies may be
available to accomplish this balance.
DHS is interested in comments that
address whether a technology, such as
the National Law Enforcement
Telecommunications System (NLETS),
or other system currently being used by
law enforcement, could be used by the
States to provide law enforcement ready
access while maintaining the security of
the information on the driver’s license
or identification card.
8. Machine-Readable Technology (MRT)
Section 202(b)(9) of the Act requires
the States to include a common MRT
with defined minimum data elements
for the driver’s licenses and
identification cards to be accepted by a
Federal agency for official purposes.
DHS looked at several types of
20 ‘‘Model Act to Prohibit the Capture and Storage
of Personal Information Obtained from a Driver’s
License or ID Card,’’ AAMVA 26–8.2–03, 2003.

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technology that could be used,
including:
• A 1D bar code, commonly used for
tracking inventory, mostly used by
supermarket scanners. This does not
have the capability to store significant
amounts of information.
• A 2D bar code. This is currently
used by 45 of 50 States, plus the District
of Columbia. It stores a greater amount
of information than the 1D bar code,
although the ‘‘scanning’’ process is
extremely similar to the 1D bar code.
This is also the current AAMVA
standard.
• An optical stripe. This is currently
used on DHS-issued permanent resident
cards and border crossing cards, and
stores information digitally, much like a
compact disc.
• A contact integrated circuit chip. A
contact integrated circuit chip (ICC) in
a document could be read by inserting
the document in a contact ICC reader.
• A contactless integrated circuit
chip. A contactless integrated circuit
chip in a document could be read by
transmitting data via radio frequency to
readers.
Of these five options, DHS believes
the following are inappropriate for the
purposes of this proposal:
• The 1D bar code does not have the
storage capacity to hold the amount of
data that the Act requires, and would
inhibit States from storing additional
State-specific information on the card,
should they so choose.
• The integrated contactless chip was
not deemed an appropriate technology
for this particular document, as there is
not an identifiable need for driver’s
licenses and identification cards to be
routinely read at a distance.
• The optical stripe has had
durability difficulties over time.
Of the two remaining options—the 2D
bar code and the contact chip—DHS
proposes the 2D bar code as the better
option. The 2D bar code is the existing
standard for AAMVA, and is also
something with which the public is
familiar. Forty-five of the fifty United
States use this technology currently,
making it relatively easy for virtually
every State to meet this requirement by
May 2008, at little additional cost for
most States. The proposed selection of
the 2D bar code ensures that the
majority of States have available and
usable technology that is interoperable
among all the States.
The proposed regulation would
mandate the use of the PDF–417 2D bar
code as the common MRT standard and
DHS proposes to adopt most of the
mandatory data elements described in
the 2005 AAMVA Driver’s License/
Identification Card Design

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Specifications, Annex D, as its MRT
data elements model. PDF417 is a two
dimensional, open source (public
domain) barcode that is used to store
and transfer large amounts of data
inexpensively. PDF stands for ‘‘portable
data file’’ in that the barcode acts as an
independent database that travels along
with the item, document, or card on
which it is affixed. The printed barcode
symbol consists of several linear
(minimum 3, maximum 90) rows, each
of which is like a small linear barcode
made up of code words that can carry
up to 1.1 kilobytes of machine-readable
data in a space no larger than a standard
bar code. The American National
Standards Institute has published a
standard for PDF417, and AAMVA has
approved the use of PDF417 for driver’s
licenses and identification cards. The
PDF417 barcode can be read by a
standard 2D barcode scanner.
The AAMVA list of data elements
includes expiration date, bearer’s name,
issue date, date of birth, gender,
address, and a unique identification
number.21 DHS proposes that States
consider storing in the machinereadable zone (MRZ) only the minimum
data elements necessary for the purpose
for which the REAL IDs will be used.
DHS requests comments on what data
elements should be included in the
machine readable zone and the privacy
considerations regarding the selection of
such data elements and this technology.
9. Encryption
Annex D of the AAMVA standard
requires that all of the data on the 2D
bar code be unencrypted. Although DHS
leans toward requiring encryption for
the data stored in the 2D bar code on
REAL ID driver’s licenses and
identification cards, DHS believes that
access to this information by law
enforcement is essential to the
requirements of the Act and invites
comment on how to provide this access
and the protection of the information at
the same time.
Because 2D bar code readers are
extremely common, there is a possibility
that the data could be captured from the
driver’s licenses and identification cards
and accessed by third parties by reading
the driver’s license or identification
card’s 2D bar code. For example, a bar
could scan the 2D barcode to verify that
the individual presenting the driver’s
license or identification card was 21 or
over, and at the same time could
conceivably obtain the person’s name
and address off the barcode and compile
21 The AAMVA standard also includes eye color
and height, but DHS is not proposing these as
required elements in the machine readable zone.

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a list of names and addresses of its
patrons, which it could subsequently
sell or use. Encryption would help
mitigate this privacy risk by preventing
the ‘‘skimming’’ of the information from
the MRZ, while still allowing the bar to
read the date of birth off the face of the
license. Alternatively, the date of birth
could be left unencrypted so that the bar
could scan the date of birth only.
Another alternative would be to
eliminate the address from the 2D bar
code, requiring ‘‘skimmers’’ to take the
extra step of using information brokers
to acquire and match an address to the
name and date of birth previously
collected off the MRZ.
Because encryption of the data
necessitates access to the cryptographic
key in order to decrypt the data,
employing encryption in the 2D bar
code would require having a key
infrastructure allowing permitted
agencies access to the secured key
information. For example, a least 16,000
local, State, and Federal law
enforcement agencies would need
access to the key infrastructure to check
the information on the MRZ.
The need for a key infrastructure to
support access to encrypted 2D bar code
data could create two separate scenarios
of concern.
First, there could be a complex and
comprehensive exchange of encryption
keys through or among all 56
jurisdictions. Although the encryption
system would be most secure the larger
the number of keys used to secure MRZ
information, this large number of
cryptographic keys would need to be
accessible to law enforcement personnel
wherever they would be reading the
driver’s license. Building such an
infrastructure would present certain
complexities that, if not addressed
appropriately, could reduce the utility
of encryption.
Second, there could be one single
encryption key, which would avoid the
complexities of needing a key
infrastructure, but this greatly increases
the risk that this single key could be
compromised. Although employing a
single key greatly simplifies the
availability of the cryptographic key for
law enforcement, the compromise of
this single cryptographic key would
compromise all data secured on all
REAL ID driver’s licenses and
identification cards. In this case,
encryption could create a false sense of
security if a license holder thought his
or her information was truly secure and
it was not.
For all of the above reasons, we have
not proposed that encryption of MRZ
data be required. Nonetheless, DHS
leans toward an encryption requirement

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if the practical concerns identified
above can be overcome in a costeffective manner. We request comments
on whether and how encryption could
be employed to secure the information
stored in the MRZ of the cards.
DHS understands the privacy
concerns associated with including
personal information in an unencrypted
machine readable zone of a driver’s
license, particularly an individual’s
address, and also recognizes a legitimate
law enforcement need for access to
certain data elements. Because of this,
DHS seeks comments on whether a
demonstrable law enforcement need
exists to include address in the MRZ
portion of the REAL ID driver’s license,
as currently proposed in this rule.
I. Validity Period and Renewals of
Driver’s Licenses and Identification
Cards
Section 202(d) of the Act limits the
period of validity of all driver’s licenses
and identification cards that are not
temporary to a period that does not
exceed eight years.
1. Remote/Non-In-Person Renewals
Under the Act, REAL ID driver’s
licenses and identification cards
(excluding temporary REAL ID driver’s
licenses and identification cards) may
be valid for a period not to exceed eight
years. Remote renewal will be allowed
for REAL ID driver’s licenses and
identification cards if the State has
retained images or paper copies of the
source documents used by the State to
issue the original driver’s license or
identification card through the time of
renewal, and if no information has
changed since prior issuance (name or
address, for example). The State must
re-verify information on the source
documents that were used as the basis
for issuing the original REAL ID driver’s
license or identification card, to assure
there is no match against death
information recorded with either the
State vital statistics offices or SSA, and
in order to diminish the likelihood that
an individual obtained his or her
original REAL ID driver’s license or
identification card under a false name or
with a fraudulent document.
Finally, under Section 202(d)(4) a
State must take reasonable measures to
ensure that the individual seeking the
renewal is the same person to whom the
REAL ID driver’s license or
identification card was issued. DHS is
considering how best to authenticate the
identity of an individual requesting
renewal of his or her driver’s license or
identification card remotely, to
guarantee that the REAL ID driver’s
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reissued to its proper holder. For
example, DHS proposes that the State
may choose to authenticate the identity
of a renewal applicant through use of
personal identifiers such as PIN
numbers or questions whose answers
only the proper holder would know, or
through use of biometric information.
DHS requests comments on these
renewal procedures, including
suggestions on any alternative
approaches for remote renewals and
authentication of remote renewals.

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2. In-Person Renewals
A holder of a REAL ID driver’s license
or identification card must renew his or
her driver’s license or identification
card in person with the State DMV at
least once every sixteen years (or every
other renewal period, if the State
chooses a renewal period of less than
the eight-year statutory maximum) for
the State to take an updated photograph.
The States must re-verify original
information and source documents used
as the basis for issuance of the original
REAL ID driver’s license or
identification card, but the individual
need not resubmit documents for
verification as long as the State has
retained copies of source documents for
the period of renewal. Documents
supporting name changes or address
changes since prior issuance must be
presented to the DMV and verified. This
process should apply any time a driver’s
license or identification card is renewed
or reissued for any purpose.
Holders of temporary REAL ID
driver’s licenses and identification cards
must renew their driver’s licenses and
identification cards in person at each
renewal in order to present evidence of
continued lawful status. States must
verify continued lawful status and reverify source documents as outlined
above.
The renewal process for non-REAL ID
driver’s licenses and identification cards
is not subject to this regulation.
J. Source Document Retention
Section 202(d)(1) requires that States
employ technology to capture digital
images of identity source documents so
that the images can be retained in
electronic storage in a transferable
format. The intent behind this provision
is applicant convenience upon renewal,
and availability of documentation to law
enforcement.22 DHS is proposing that if
a State employs digital imaging of
source documents, it use the AAMVA
Digital Image Exchange Program for this
purpose and capture the image in color.
22 H.R. Rep. No. 109–72, at 182 (2005) (Conf.
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If a State does not currently use color
scanners, DHS is proposing that current
black and white scanners be replaced
with color scanners by December 31,
2011. If a State uses a different standard,
that standard must be interoperable
with the AAMVA standard to ensure an
efficient interstate exchange of data
when DMVs need to do so. Photo
images should be stored in the Joint
Photographic Experts Group (JPEG)
2000 standard for image compression, as
modified in the future. Document and
signature images should be stored in a
compressed Tagged Image Format (TIF).
This proposal would require that all
images be linked to the applicant
through the applicant’s unique
identifier assigned by the DMV.
As an alternative, a State may retain
the paper copies of the source
documents until it develops an
electronic system.23 Capturing paper
documents on microfiche also would be
acceptable, but the State will likely find
an electronic system to be more
economically efficient over time. Under
section 202(d)(2) of the Act, States must
retain paper copies of source documents
for a minimum of seven years, or images
of source documents for a minimum of
ten years.
Retaining images of source documents
allows for renewal of driver’s licenses
and identification cards remotely,
without requiring the driver’s license or
identification card holder to present
source documents at the renewal. Since
REAL ID driver’s licenses and
identification cards must be issued for
a maximum period of eight years in
accordance with the Act, States may
wish to reconcile their source document
retention periods accordingly.
K. Security of DMV Facilities Where
Driver’s Licenses and Identification
Cards Are Manufactured and Produced;
Facility Security Plans
DHS is proposing that States that
choose to produce REAL ID driver’s
licenses and identification cards submit
to DHS a security plan that outlines the
State’s consolidated approach to
security of DMV facilities and the
driver’s license or identification card
production process. Such security plans
should also include the State’s approach
to conducting background checks of
certain DMV employees pursuant to
section 202(d)(8) of the Act, physical
security of the locations where driver’s
licenses and identification cards are
23 Congress made it very clear in the legislative
history of section 202(d)(2) of the Act that the intent
is for all States to have an electronic system. ‘‘The
goal is to move all the State’s records into electronic
format.’’ H.R. Rep. 109–72, at 182 (2005) (Conf
Rep.).

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10839

produced, and the security of document
materials and papers from which
driver’s licenses and identification cards
are produced, pursuant to section
202(d)(7) of the Act. Security plans
should also describe the security
features incorporated into the driver’s
licenses and identification cards as
required under section 202(b)(8) of the
Act. Also, should the State decide to
incorporate biometrics as an additional
security feature (which is not mandated
in the regulation), DHS is proposing that
the State should describe this use in its
security plan and present the
technology standard the State intends to
use to DHS for approval. This will
enable DHS to ensure interoperability of
technical standards amongst States
seeking to incorporate biometrics in
their licensing programs.
This proposed regulation would
require that the State submit the
security plan to DHS in conjunction
with the State’s request for certification
to enable DHS to review the plan, along
with the State’s request for certification.
1. Background Checks for Certain
Employees
Section 202(d)(8) of the Act requires
that ‘‘all persons authorized to
manufacture or produce driver’s
licenses and identification cards’’ must
be required to undergo ‘‘appropriate
security clearance requirements.’’ The
purpose of this requirement is to make
sure that those individuals who are in
a position to produce, manufacture or
issue driver’s licenses and identification
cards are trustworthy. In some
jurisdictions in the past, certain DMV
employees involved in this process have
aided in the issuance of fraudulent
driver’s licenses and identification
cards.
Section 37.45 of the proposed
regulations addresses the requirements
of section 202(d)(8) of the Act by
identifying which categories of DMV
employees must undergo background
checks 24 and the nature of the
background checks. With respect to
scope, Congress made it clear that
section 202(d)(8) was included in the
Act because recent investigations into
driver’s license/identification card
insider corruption cases in various
24 A background check is the investigation into
someone’s past history to permit them to either gain
a security clearance or pass a suitability screening.
A security clearance is the end result of a
background investigation whereby the government
makes a determination that someone may be trusted
with specified levels of information, such as
‘‘classified’’ information. While section 202(d)(8) of
the Act uses the term ‘‘security clearance,’’ DHS
believes that the intent was to conduct background
checks, as DMV employees do not need clearance
to handle ‘‘classified’’ information.

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states ‘‘revealed that a routine security
investigation would have prevented key
perpetrators from ever being employed
to handle documents of high ‘street’
value that can be sold to illegal aliens,
criminals, terrorists, and identity
thieves.’’ 25
In light of Congress’s clearly
expressed intention that background
checks be used to prevent the fraudulent
creation of identity documents, DHS
concluded that background checks
should be required for any DMV
employee who has the ability to affect
the identity information that appears on
the driver’s license or identification
card, who has access to the production
process, or who is involved in the
manufacture of driver’s licenses and
identification cards (‘‘covered
employees’’). Understanding that each
State’s DMV has a unique organization
and structure, it will be up to each State
to determine which positions would fall
under this definition (‘‘covered
positions’’). DHS proposes to require
that the State DMVs provide their
employees and prospective employees
that have been selected for placement in
a covered position with notice that a
background check is required for
employment in a covered position and
what that background check will
include.
With respect to the type of
background check required, the
regulations propose that States collect
fingerprints for individuals who seek
employment in a covered position, in
order to conduct a criminal history
record check (CHRC) on those
individuals through the Federal Bureau
of Investigation (FBI) and State
repositories. Individuals who have been
convicted or found not guilty by reason
of insanity of certain permanent
disqualifying offenses; or individuals
who have been convicted or found not
guilty by reason of insanity within the
previous seven years or who have been
released from prison within the past five
years for certain interim disqualifying
offenses, would not be allowed to hold
covered positions within a State DMV.
The list of disqualifying offenses, based
on current Federal requirements,
mirrors requirements for TSA’s
Hazardous Materials Endorsement
program (HAZMAT program) and
Transportation Workers Identification
Credential (TWIC) program. See 49 CFR
1572.103 and the final rule on TWIC (72
FR 3492, Jan. 25, 2007).
DHS concluded that this list of crimes
is sufficient as a Federal minimum.
States may add additional disqualifying
offenses to this list for their covered
25 Conference

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Report at 183.

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employees. States will be responsible
for arranging reimbursement with the
FBI for the cost of conducting the
fingerprint CHRC check. DHS invites
comment on whether the proposed list
of disqualifying offenses is appropriate,
too large, or insufficient as it concerns
REAL ID.
DHS is also proposing that the States
perform a financial history check on
individuals seeking employment in
covered positions. Such checks are
already being conducted by many
employers, including many DMVs, as
one indicator that an individual may
warrant additional scrutiny or
supervision before assuming
responsibilities that raise security risks.
While questionable financial history
would not be considered a Federal
disqualifier, the information should be
used by the States in making their own
determinations on how or whether
particular individuals should be
employed at the DMV.
DHS recognizes that this requirement
is not a feature of the TWIC or
HAZMAT programs. Nevertheless, DHS
believes that it is warranted in the
instant case, due to the sensitivity of the
personal information that will routinely
be handled by employees at State motor
vehicle administrations and the fact that
a driver’s license or identification card
serves as a key ‘‘breeder’’ document in
securing other forms of State and
Federal identification. If the DMV
personnel issuing and authenticating
the driver’s license or identification
card are compromised and issue
genuine REAL ID driver’s licenses and
identification cards to individuals who
are seeking to mask their true identity,
those individuals can obtain additional
identification using that false identity
and thwart the Government’s and law
enforcement’s ability to identify
accurately individuals lawfully stopped
and screened. Moreover, as set forth in
the Conference Report on section
202(d)(8) of the REAL ID Act, Congress
was concerned at the extent of ‘‘driver’s
license insider corruption.’’ H.R. Rep.
No. 109–72, at 183 (2005) (Conf. Rep.).
DHS believes that DMV employees with
severe financial difficulties might be
more susceptible to bribery, and that
States should take this into
consideration in determining whether
an individual should be placed in a
covered position.
These proposed regulations do not
preclude a DMV from hiring any
individual based on the results of the
financial history check and do not
preclude the DMV from placing the
individual in a covered position based
on that check. The financial history
check information is intended to

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provide the employer a fuller picture
when deciding whether to place a
potential employee in a covered
position.
DHS also proposes that States conduct
a lawful status check through SAVE to
verify that the individual has lawful
status in the United States.
DHS proposes that States may grant
waivers allowing individuals to
maintain their positions under
particular circumstances as authorized
by the States; for example, where an
individual has made full disclosure of
his or her criminal history to the State
DMV. DHS proposes that States adopt
written practices for waiver processes
and provide them to DHS as part of the
background check discussion of the
State’s comprehensive security plan.
Waiver practices will be reviewed by
DHS during a State’s initial certification
and thereafter as part of periodic DHS
audits of the State’s REAL ID program.
2. Physical/Logical Security
The Act requires that States ‘‘ensure
the physical security of locations where
driver’s licenses and identification cards
are produced and the security of
document materials and papers from
which driver’s licenses and
identification cards are produced.’’ This
means that the DMV buildings, storage
areas, databases and systems, and other
areas of perceived vulnerability must be
protected from theft and fraud. The
State’s comprehensive security plan
should include a written risk
assessment of each facility, physical
security measures, access identification
and control measures for employees and
vendors, written policies and
procedures, training and internal
controls to identify and minimize fraud,
and an emergency/incident response
plan if procedures are breached.
DHS is considering the American
National Standards Institute/North
American Security Products
Organization’s ‘‘Security Assurance
Standards for the Document and
Product Security Industries,’’ ANSI/
NASPO–SA–v3.OP–2005, Level II, as
the preferred performance-based
standard for physical security of DMV
facilities. DHS seeks comment on
adoption of this standard, as well as
recommendations on other appropriate
performance-based standards to meet
this statutory requirement. DHS also
specifically seeks comment on the
extent that the adoption of any
performance-based standard would
require modification of existing office
space or construction of new space.
DHS also seeks comments on the extent
to which physical changes to existing
office spaces required by the adoption of

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the ANSI standards or any other
physical security performance-based
standards would impact historical
properties.
3. Document Security Features on
Driver’s Licenses and Identification
Cards
The security plan discussed above
must detail the document security
features that States are adopting for their
driver’s licenses and identification cards
to prevent tampering, counterfeiting, or
duplication of the driver’s license or
identification card for fraudulent
purposes. These features are discussed
in more detail in the preamble at
Section II.H.6, infra,

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4. Security of Information Stored in the
DMV Database
Section 202(d)(7) of the Act requires
States to ‘‘ensure the physical security
of locations where driver’s licenses and
identification cards are produced and
the security of document materials and
papers from which driver’s licenses and
identification cards are produced.’’ DHS
believes that the scope of this provision
includes protecting the security of the
personal information stored in DMV
databases. The House Conference Report
discussion of this section of the Act
states that the requirement for improved
physical security is to address ‘‘a
growing problem of identity thieves and
documents purveyors breaking into
State facilities and stealing driver’s
license or identification card stock
blanks, printing machines, and
sometimes actual computer hard drives
in which current driver’s license or
identification card holder data is
stored.’’ 26 It is well documented that a
number of DMVs have had incidents of
theft of personal information from their
databases,27 and security of personal
information is a high priority for all
Federal and State governmental
agencies. Therefore, DHS believes it is
reasonable to require that, as part of the
security plan mandated for State
certification under the Act, States
address the security of the DMV
databases storing personal information.
5. Security of Personal Data and
Documents Collected and Managed
Under the Act
As part of the Comprehensive
Security Plan, States shall be required to
describe standards and procedures for
managing driver records and data
collected, stored, modified, accessed
and transmitted under the requirements
26 H.R.

Rep. 109–72, at 183 (2005) (Conf. Rep.).

27 http://www.cdt.org/testimony/

020805schwartz.shtml.

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of this rule. With respect to the identity
documents required to be provided by
applicants, States shall describe
procedures to prevent unauthorized
access to, or dissemination of, images of
these documents stored pursuant to the
Act. States shall also detail procedures
for document retention and destruction
for both physical and electronic records.
With respect to applicant data required
under the Act, States shall document
access controls and related procedures
governing the authorized use of such
data. Finally, States shall document
procedures for resolving data
formatting, quality, and integrity issues.
DHS encourages States to draft
collective standards and best practices
for the management of both documents
and data required under the provisions
of this rule.
In the event of a terrorist event or
natural disaster as extensive as 9/11 or
Hurricane Katrina, the sharing of
information collected and maintained
by DMVs pursuant to the REAL ID Act
may prove useful to the States for many
purposes, such a recreating lost State
data, providing individuals’ access to
images of their source documents when
originals are destroyed, or assisting in
recovery efforts. DHS seeks comment on
whether and to what extent States can
or should include in their security plans
access to data for information sharing
purposes as necessary in the event of a
catastrophic event.
III. State Certification Process
Section 202(a)(2) of the Act requires
the Secretary to determine whether a
State is meeting the requirements of the
Act based on certifications made by the
State to the Secretary of DHS.
Certifications ‘‘shall be made at such
times and in such manner as the
Secretary, in consultation with the
Department of Transportation, may
prescribe by regulation.’’ Section 37.55
of the regulations presents the
requirements for certification.
To ease the burden on the States, DHS
determined that this certification
process should be similar to the
certification process included in DOT’s
regulations governing State
administration of commercial driver’s
licenses, 49 CFR Part 384. The States are
accustomed to these certification
requirements, and the requirements
appear useful in providing the
information DHS will need to ensure
that States are in compliance with
applicable REAL ID standards.
Accordingly, Subpart F of these
regulations was based, to a large extent,
on 49 CFR Part 384. States must
demonstrate initial compliance with
these regulations by submitting a

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certification and certain specified
documents including a description of its
REAL ID program, and demonstrate
continued compliance by annually
submitting such certification and
documents. DHS will review such
initial and annual certifications and
notify the State of its preliminary
determination as to the State’s
compliance with the regulations. The
State will have 30 calendar days to
respond to the preliminary
determination and explain how any
identified deficiencies will be corrected
or, alternatively, why the DHS
preliminary determination is incorrect.
DHS will then notify the State of its
final determination for which the State
may seek judicial review.
IV. Driver’s Licenses and Identification
Cards That Do Not Meet the Standards
of Subparts A and B of These
Regulations
Section 202(d)(11) of the Act requires
that any driver’s license or
identification card that does not satisfy
the requirements of this section must
clearly state on its face that it may not
be accepted by any Federal agency for
Federal identification or any other
official purpose. DHS is proposing that
this statement be in bold lettering on the
face of the driver’s license or
identification card. States must also
differentiate non-REAL ID driver’s
licenses and identification cards from
REAL ID driver’s licenses and
identification cards by incorporating a
unique design or color indicator to alert
Federal agencies and other law
enforcement personnel that it may not
be accepted for Federal official purposes
pursuant to this regulation. DHS seeks
comment on whether a uniform design/
color should be implemented
nationwide for non-REAL ID driver’s
licenses and identification cards.
V. Section 7209 of the Intelligence
Reform and Terrorism Prevention Act
of 2004
Section 7209 of the Intelligence
Reform and Terrorism Prevention Act of
2004 (IRTPA) (Pub. L. 108–458, 118
Stat. 3638, Dec 17, 2004) requires that
the Secretary of Homeland Security, in
consultation with the Secretary of State,
develop and implement a plan, as
expeditiously as possible, to require
travelers entering the United States to
present a passport, other document, or
combination of documents, that are
‘‘deemed by the Secretary of Homeland
Security to be sufficient to denote
identity and citizenship.’’ Section 7209
of IRTPA is commonly known as the
Western Hemisphere Travel Initiative
(WHTI).

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DHS and DOS issued a final rule on
the plan for the air implementation of
WHTI which took effect on January 23,
2007. The WHTI requirements for the
land and sea borders will be addressed
in a separate rulemaking proceeding. In
a related WHTI proceeding, DOS issued
a Notice of Proposed Rulemaking
concerning the Passport Card that
would be an acceptable WHTI
document at U.S. land and sea borders.
See 71 FR 60928 (Oct. 17, 2006). The
NPRM proposed that the Passport Card
incorporate integrated circuit chip (ICC)
technology that would transmit a
unique identifier number that could be
matched to the holder only in a
Government database. The use of ICC
technology would facilitate the border
inspection of the Passport Card holder.
DHS understands that numerous States
are interested in exploring whether
enhanced driver’s licenses and
identification cards could be acceptable
at the land border to satisfy the WHTI
requirements. There are a number of
significant differences, however,
between a Federally-issued border
crossing document and a State-issued
driver’s license or identification card,
including the different vetting criteria.
In addition, for purposes of satisfying
WHTI requirements, the State would
have to ensure that the State-issued
REAL ID driver’s license or
identification card denoted citizenship
for purposes of border crossing under
WHTI. For REAL ID purposes, DHS is
not proposing that States must present
the individual’s citizenship on the face
of the driver’s license or identification
card or MRZ.
Nevertheless, recognizing the strong
interest in some border States to explore
the possible interplay between an
enhanced driver’s license/identification
card and WHTI requirements, DHS
seeks comments on several topics
relating to this notion, including what
procedures and business processes a
State DMV could develop in order to
offer individuals applying for a Stateissued REAL ID driver’s license or
identification card the voluntary option
to use the document as a WHTIcompliant border crossing document by
meeting some additional requirements.
DHS also invites comments on how a
State would integrate the type of ICC
technology necessary to provide a travel
facilitation benefit at the land and sea
border along with the common machine
readable technology proposed in the
REAL ID proceeding while also
including an MRZ meeting ICAO
standards.

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VI. Solicitation of Comments
DHS solicits public comments on all
aspects of this proposed regulation. DHS
is particularly interested in comments
on the following issues:
(1) Whether the list of documents
acceptable for establishing identity
should be expanded. Commenters who
believe the list should be expanded
should include reasons for the
expansion and how DMVs will be able
to verify electronically with issuing
agencies the authenticity and validity of
these documents.
(2) Whether the data elements
currently proposed for inclusion in the
machine readable zone of the driver’s
license or identification card should be
reduced or expanded; whether the data
in the machine-readable portion of the
card should be encrypted for privacy
reasons to protect the data from being
harvested by third parties, and whether
encryption would have any effect on
law enforcement’s ability to quickly
read the data and identify the individual
interdicted. What would it cost to build
and manage the necessary information
technology infrastructure for State and
Federal law enforcement agencies to be
able to access the information on the
machine readable zone if the data were
encrypted?
(3) Whether individuals born before
1935 who have established histories
with a State should be wholly exempt
from the birth certificate verification
requirements of this regulation, or
whether, as proposed, such cases should
be handled under each State’s
exceptions process.
(4) If a State chooses to produce
driver’s licenses and identification cards
that are WHTI-compliant, whether
citizenship could be denoted either on
the face or machine-readable portion of
the driver’s license or identification
card, and more generally on the
procedures and business processes a
State DMV could adopt in order to issue
a Real ID driver’s license or
identification card that also included
citizenship information for WHTI
compliance. DHS also invites comments
on how States would or could
incorporate a separate WHTI-compliant
technology, such as an RFID-enabled
vicinity chip technology, in addition to
the REAL ID PDF417 barcode
requirement.
(5) How DHS can tailor the address of
principal residence requirement to
provide for the security of classes of
individuals such as federal judges and
law enforcement officers.
(6) What benchmarks are appropriate
for measuring progress toward
implementing the requirements of this

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rule and what schedule and resource
constraints will impact meeting these
benchmarks.
(7) Adoption of a performance
standard for the physical security of
DMV facility, including whether DHS
should adopt the ANSI/NASPO
‘‘Security Assurance Standards for the
Document and Product Security
Industries,’’ ANSI/NASPO–SA–v3.OP–
2005, Level II as the preferred standard.
(8) How DHS can better integrate
American Samoa and the
Commonwealth of the Northern
Marianas into the REAL ID framework.
(9) Whether the physical security
standards proposed in this rule are the
most appropriate approach for deterring
the production of counterfeit or
fraudulent documents, and what
contractual issues, if any, the States will
face in satisfying the document security
requirements proposed in this rule.
(10) The federalism aspects of the
rule, particularly those arising from the
background check requirements
proposed herein.
(11) How the Federal government can
better assist States in verifying
information against Federal databases.
(12) In addition to security benefits,
what other ancillary benefits could
REAL ID reasonably be expected to
produce? For example, could REAL ID
be expected to reduce instances of
underage drinking through use of false/
fraudulent identification. If so, please
provide details about the expected
benefit and how it would be achieved
through REAL ID.
(13) The potential environmental
impacts of the physical security
standards and other requirements
proposed under this rule.
(14) Whether other federal activities
should be included in the scope of
‘‘official purpose.’’
(15) How the REAL ID Act can be
leveraged to promote the concept of
‘‘one driver, one record, one record of
jurisdiction’’ and prevent the issuance
of multiple driver’s licenses.
(16) Whether DHS should standardize
the unique design or color required for
non-REAL ID under the REAL ID Act for
ease of nationwide recognition, and
whether DHS should also implement a
standardized design or color for REAL
ID licenses.
VII. Regulatory Analyses
A. Paperwork Reduction Act
The Paperwork Reduction Act of 1995
(PRA) (44 U.S.C. 3501 et seq.) requires
that DHS consider the impact of
paperwork and other information
collection burdens imposed on the
public and, under the provisions of PRA

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Federal Register / Vol. 72, No. 46 / Friday, March 9, 2007 / Proposed Rules
section 3507(d), obtain approval from
the Office of Management and Budget
(OMB) for each collection of
information it conducts, sponsors, or
requires through regulations.
This proposed rule contains new and
amended information collection
activities subject to the PRA.
Accordingly, DHS has submitted the
following information requirements to
OMB for its review.
Title: Minimum Standards for Driver’s
licenses and Identification Cards
Acceptable by Federal Agencies for
Official Purposes.
Summary: This proposal would
require States participating in the REAL
ID program to meet certain standards in
the issuance of driver’s licenses and
identification cards, including security
plans and background checks for certain
persons who have the ability to affect
the recording of any information
required to be verified, or who are
involved in the manufacture or
production of drivers’ licenses and
identification cards, or who have the
ability to affect the identity information
that appears on the license (covered
employees).
Use of: This proposal would support
the information needs of: (a) The
Department of Homeland Security, in its
efforts to oversee security measures
implemented by States issuing REAL ID
driver’s licenses and identification
cards; and (b) other Federal and State
authorities conducting or assisting with
necessary background and immigration
checks for covered employees.
Respondents (including number of):
The likely respondents to this proposed
information requirement are States
(including the District of Columbia,
Puerto Rico, the Virgin Islands, Guam,
American Samoa, and the
Commonwealth of the Northern Mariana
Islands) and State agencies (such as
Departments of Motor Vehicles) and
driver’s license and identification card
applicants.
Frequency: DHS estimates that each
State will submit an initial certification
of compliance or request for extension,
together with a comprehensive security
plan. Subsequently, on an annual basis,
each State will re-certify its compliance
with the REAL ID Act. States will also
submit quarterly reports analyzing their
use of the exceptions process and
monitoring security trends. Further,
DHS anticipates that approximately
17,781 covered employees will receive
background checks (Criminal History
Records Check or CHRC) on an annual
basis. Thus, the annual frequency of
information requirements is: 17,781
background checks; 56 annual
certifications; and 224 quarterly reports.

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Background check information will be
submitted on an as-needed basis.
Additionally, driver’s license and
identification card applicants must
provide proof of identity and lawful
status in the U.S. when applying for a
REAL ID drivers’ licenses or
identification cards. Applicants would
submit this information only for initial
applications or when their lawful status
or identifying information has changed.
Annual Burden Estimate: This
proposal would result in an annual
recordkeeping and reporting burden as
follows: States will be responsible for
sending initial certifications (including
security plans), annual certifications
and background check information to
the Federal Government. The
compilation and transmission of the
initial certifications will require an
annualized 76,000 labor hours by DMV
and/or State government staff. Using an
average hourly total cost of
compensation of $24.92, the annual
burden for labor hours would be
$1,895,000.
In the first three years of license
issuance, applicants for REAL ID would
spend an average of 55.9 million more
hours per year. This is equal to
approximately 44 additional minutes
per applicant on average. This time
includes the increase in time to obtain
source documents, travel to the DMV,
wait in line, and receive service at a
customer window.
One-time initial certifications of
compliance would require an estimated
$1,106,000 for all jurisdictions. Using an
average hourly total cost of
compensation of $24.92 yields an
estimate of 44,397 hours for the first
year. This collection occurs only in the
first year. However, over three years the
annualized burden is 14,799 hours or
$368,795.
State annual re-certification would
cost the states, on average, $295,035 per
year. Using an average hourly total cost
of compensation of $24.92 yields an
estimate of 11,839 hours each year.
Each quarterly report is likely to
require effort similar to the annual recertifications. Accordingly, the hourly
burden estimate is 11,839 hours per
quarter or 47,356 hours annually. Using
an average total cost of compensation of
$24.92 yields a monetized estimate of
$1,180,142 per year.
Forwarding information to the Federal
Government for the employee
background checks would impose an
annualized burden of 889 hours on
DMVs and/or State governments. This
assumes that each submission will take
three minutes to forward information for
the FBI CHRC. Multiplying the three
minutes per transaction by the 17,781

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annualized employee background
checks yields the annualized hour
burden above. Using an average total
cost of compensation of $24.92 yields an
annual monetized estimate of $22,156.
Driver’s license and identification
card applicants would incur an annual
$171 million in order to seek acceptable
source documents as required by this
rule.
Running immigration checks on
foreign-born applicants for driver’s
licenses and identification cards will
not impart a new hourly burden upon
DMVs. DMVs already collect biographic
information from applicants’ source
documentation. At most, this
requirement will change which pieces
are collected, not the total amount of
information collected. Further, the
transmission of information to the SAVE
system run by DHS will be automated
and will therefore not require DMV
labor hours to conduct each check.
DHS is soliciting comments to—
(1) Evaluate whether the proposed
information requirement is necessary for
the proper performance of the functions
of the agency, including whether the
information will have practical utility;
(2) Evaluate the accuracy of the
agency’s estimate of the burden;
(3) Enhance the quality, utility, and
clarity of the information to be
collected; and
(4) Minimize the burden of the
collection of information on those who
are to respond, including using
appropriate automated, electronic,
mechanical, or other technological
collection techniques or other forms of
information technology.
Individuals and organizations may
submit comments on the information
collection requirements by May 8, 2007.
Direct the comments to the address
listed in the ADDRESSES section of this
document, and fax a copy of them to the
Office of Information and Regulatory
Affairs, Office of Management and
Budget, Attention: DHS–TSA Desk
Officer, at (202) 395–5806. A comment
to OMB is most effective if OMB
receives it within 30 days of
publication. TSA will publish the OMB
control number for this information
collection in the Federal Register after
OMB approves it.
As protection provided by the
Paperwork Reduction Act, as amended,
an agency may not conduct or sponsor,
and a person is not required to respond
to, a collection of information unless it
displays a currently valid OMB control
number.

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B. Economic Impact Analyses

Executive Order 12866 Assessment

Regulatory Evaluation Summary

DHS has determined that this rule
will have an impact of over $100
million and that it raises novel or
complex policy issues. Accordingly, this
rule is significant under Section 3(f)(1)
of Executive Order 12866 and therefore
has been reviewed by the Office of
Management and Budget.
DHS has assessed the costs, benefits
and alternatives of the requirement
proposed under this rule. A complete
regulatory impact assessment, as
required under Executive Order 12866
and OMB Circular A–4, is set forth in a
separate document in the docket for this
regulatory action at http://
www.regulations.gov at Docket Number
DHS–2006–0030. A summary of the
estimated costs and benefits, including
potential ancillary benefits realized by
the requirements proposed in this rule,
is set forth below.
The Department of Homeland
Security (DHS) has conducted a
comprehensive, rigorous, and
exhaustive Regulatory Evaluation of the
benefits and costs of the proposed
minimum standards for state-issued
driver’s licenses and non-driver
identification cards pursuant to the
REAL ID Act of 2005. Since these
standards will impact the lives of
approximately 240 million people and
the operations of all 56 state and
territorial jurisdictions, DHS is
committed to an ongoing dialogue with
all stakeholders on the benefits and
burdens of the proposed regulation.
This Regulatory Evaluation is the initial
step in joint State, Federal, and public
effort to improve the security and
trustworthiness of driver’s licenses and
identification cards.

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Changes to Federal regulations must
undergo several economic analyses. A
summary of the required analyses
follows. A detailed regulatory impact
analysis has been prepared as a separate
document and is available for review in
the docket.
First, Executive Order 12866,
Regulatory Planning and Review (58 FR
51735, October 4, 1993), directs each
Federal agency to propose or adopt a
regulation only upon a reasoned
determination that the benefits of the
intended regulation justify its costs.
Second, the Regulatory Flexibility Act
of 1980 (5 U.S.C. 601 et seq., as
amended by the Small Business
Regulatory Enforcement Fairness Act
(SBREFA) of 1996) requires agencies to
analyze the economic impact of
regulatory changes on small entities.
Third, the Trade Agreements Act (19
U.S.C. 2531–2533) prohibits agencies
from setting standards that create
unnecessary obstacles to the foreign
commerce of the United States. Fourth,
the Unfunded Mandates Reform Act of
1995 (UMRA, 2 U.S.C. 1531–1538)
requires agencies to prepare a written
assessment of the costs, benefits, and
other effects of proposed or final rules
that include a Federal mandate likely to
result in the expenditure by State, local,
or tribal governments, in the aggregate,
or by the private sector, of $100 million
or more annually (adjusted for
inflation).
Although Congress recognized that
States will have to expend monies in
order to comply with REAL ID,28 it
explicitly stated that the REAL ID Act is
binding on the Federal government, and
not the States.29 Moreover, by its terms,
UMRA does not apply to regulations
‘‘necessary for the national security’’
and those which impose requirements
‘‘specifically set forth in law.’’ 30 Thus,
as a matter of law, the UMRA
requirements do not apply to this
proposed rulemaking even though
States will be expending resources.
However, the analyses that would
otherwise be required are similar to
those required under Executive Order
12866, which have been completed and
may be found in the full Regulatory
Evaluation.
28 See, e.g., section 204(b) authorizing ‘‘such sums
as may be necessary to carry out this title.’’
29 See, e.g., section 202(a)(1) (‘‘a Federal Agency
may not accept’’ no-compliant State licenses) and
Conference Report language on section 202(a)(1)
(‘‘the law is binding on Federal agencies—not the
states’’).
30 See 2 U.S.C. 1503(5), 1535.

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Assumptions
This Regulatory Evaluation covers the
ten-year costs of REAL ID Program
deployment and operations. This
includes:
• Year One—State and Federal
government program startup efforts
prior to the statutory deadline of May
2008.
• Years Two through Six—the fiveyear implementation period ending in
May 2013, by which time States must be
in full compliance with the statute and
regulation
• Years Seven through Ten—four
years of program operation
Moreover, this Regulatory Evaluation
is based upon five key assumptions and
to the extent that any of these five
assumptions are relaxed, then it is likely
that the compliance costs may be lower.
(1) That all States will comply with
the regulation by the statutory deadline.

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DHS recognizes that some States will be
unable to comply by May 2008 and will
file requests for extensions that may
result in phased compliance
implementation schedules that could
mitigate some of the startup costs
examined below. Hence, the costs
allocated to the period prior to May
2008—that is, program year one in this
analysis—may be redistributed to
subsequent years.
(2) That all Driver’s License/
Identification (DL/ID) holders will seek
a REAL ID credential. DHS anticipates
some individuals may not need to
access Federal facilities or fly on
commercial airlines or may choose to
use a passport or alternative form of
photo identification for these purposes.
To the extent that some people would
not seek a REAL ID credential, then the
compliance costs may be considered
high.
(3) That States will issue both REAL
IDs and non-REAL IDs. DHS anticipates
that States will offer an alternative DL/
ID (not acceptable for Federal official
purposes) to those who are unwilling or
unable to obtain a compliant one. Thus,
this Regulatory Evaluation assumes that
States will deploy a two-tier or multitier licensing system. States instead may
choose to issue only REAL ID compliant
driver’s licenses and identification
cards, thereby reducing their
operational and system costs.
(4) That all IT systems will be
functional by the statutory deadline.
DHS has calculated the costs assuming
that all required verification data
systems be operational and fully
populated by May 2008. DHS is working
to bring these systems online and up to
standards as soon as possible and will
work with the States to develop
alternative procedures. Again, to the
extent that these systems are not
operational, then the discounted costs
and benefits of the proposed rule may
be lower.
(5) State impact is not uniform due to
progress already made in some States.
States that have already invested in
improving the security of their licenses
will have to invest far less per capita
than states with less secure licenses and
issuance processes. Those States that are
more advanced would incur lower
compliance costs than other States.
Costs and Benefits
It is impossible to quantify or
monetize the benefits of REAL ID using
standard economic accounting
techniques. However, though difficult to
quantify, everyone understands the
benefits of secure and trusted
identification. The proposed minimum
standards seek to improve the security

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and trustworthiness of a key enabler of
public and commercial life—state-used
driver’s licenses and identification
cards. As detailed below, these
standards will impose additional
burdens on individuals, States, and
even the Federal government. These
costs, however, must be weighed against

the intangible but no less real benefits
to both public and commercial activities
achieved by secure and trustworthy
identification.
Economic Costs
The costs of the proposed rule are
significant. Implementing the REAL ID
Act will impact all 56 State and

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territorial jurisdictions, more than 240
million applicants for and holders of
State DL/IDs, private sector
organizations, and Federal government
agencies. Figure 1 summarizes the
estimated marginal economic costs of
the proposed rule over a ten-year
period.

FIGURE 1.—ESTIMATED MARGINAL ECONOMIC COST OF REAL ID PROPOSED RULE
$ Million

$ Million
(2006 dollars)

% Total

% Total

7% Discounted

Undiscounted

7% Discounted

Undiscounted

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Estimated costs (10 years)

Costs to States ........................................................................
Customer Services ..................................................................
Card production .......................................................................
Data Systems & IT ..................................................................
Security & Information Awareness ..........................................
Data Verification ......................................................................
Certification process ................................................................
Costs to Individuals .................................................................
Opportunity Costs (268.8 million hours) ..................................
Application Preparation (161.9 million hours) .........................
Obtain Birth Certificate (26.5 million hours) ............................
Obtain Social Security Card (15.8 million hours) ....................
DMV visits (64.7 million hours) ................................................
Expenditures: Obtain Birth Certificate .....................................
Cost to Private Sector .............................................................
Costs to Federal Government .................................................
Social Security card issuance .................................................
Data Verification—SAVE .........................................................
Data Systems & IT ..................................................................
Certification & training .............................................................

10,770
5,253
3,979
1,127
388
12
10
5,991
5,401
3,243
542
302
1,315
590
7
451
349
22
63
17

14,600
6,901
5,760
1,436
471
18
14
7,875
7,113
4,283
700
418
1,712
762
9
617
483
32
78
24

62.5
30.5
23.1
6.5
2.3
0.1
0.1
34.8
31.4
18.8
3.1
1.8
7.6
3.4
0.0
2.6
2.0
0.1
0.4
0.1

63.2
29.9
24.9
6.2
2.0
0.1
0.1
34.1
30.8
18.5
3.0
1.8
7.4
3.3
0.0
2.7
2.1
0.1
0.3
0.1

Total Costs .......................................................................

17,219

23,101

100.0

100.0

Figure 1 shows the primary estimates
calculated in both undiscounted 2006
dollars and discounted dollars at a 7%
discounted rate. Excluding the cost to
individuals, primarily associated with
obtaining documents, DHS estimates
that the discounted cost of the proposed
rule is $11.2 billion ($13.81 per issuance
for each of the 813 million issuances
over ten years) over ten years. The total
discounted cost of the proposed rule,
including the cost to individuals is
$17.2 billion ($21.18 per issuance). The
undiscounted costs are estimated at
$15.2 billion ($18.73 per issuance),
excluding the direct cost to individuals
or $23.1 billion total ($28.41 per
issuance). DHS acknowledges that an
individual may have more than one
application experience over a ten year
period due to the expiration period or
relocation between states.
States will incur the largest share of
the costs as shown in Figure 1. More
than 60 percent of the costs (discounted
or undiscounted) are associated with
providing customer services and card
production. Over 30 percent of the costs
(discounted or undiscounted) are
categorized as costs to individuals and

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are associated with preparing
applications and obtaining necessary
documents.
Several factors influence the high cost
of this proposed rule. First, this rule is
assumed to affect 56 jurisdictions and
240 million license holders. This
regulatory evaluation assumes that
every license holder will acquire a
REAL ID. Second, many individuals
will not have their required documents
when they need them. Again, the
regulatory evaluation realistically
assumes that many individuals will
need to find the appropriate documents.
Third, individuals will need to renew
their licenses periodically. DHS does
not foresee any way to significantly
lessen the 813 million issuances over
the next ten years.
Estimated Benefits
The proposed REAL ID regulation
would strengthen the security of
personal identification. Though difficult
to quantify, nearly all people
understand the benefits of secure and
trusted identification and the economic,
social, and personal costs of stolen or
fictitious identities. The proposed REAL
ID NPRM seeks to improve the security

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and trustworthiness of a key enabler of
public and commercial life—stateissued driver’s licenses and
identification cards.
The primary benefit of REAL ID is to
improve the security and lessen the
vulnerability of federal buildings,
nuclear facilities, and aircraft to terrorist
attack. The rule would give states, local
governments, or private sector entities
an option to choose to require the use
of REAL IDs for activities beyond the
official purposes defined in this
regulation. To the extent that states,
local governments, and private sector
entities make this choice, the rule may
facilitate processes which depend on
licenses and cards for identification and
may benefit from the enhanced security
procedures and characteristics put in
place as a result of this proposed rule.
DHS provides a rough ‘‘break-even’’
analysis based on the rule having an
impact on the annual probability of the
U.S. experiencing 9/11 type attacks in
the 10 years following the issuance of

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the rule.31 DHS believes that the
probability and consequences of a
successful terrorist attack cannot be
determined for purposes of this benefit
analysis. However, for the purposes of
this analysis, it is not necessary to
assume that there is a probability of
being attacked in any particular year.
Setting a probability for a successful
attack is not necessary for this analysis,
so long as we make some admittedly
tenuous assumptions about the costs of
attack consequences, to determine the
reduction in probability of attack that
REAL ID would need to bring about so
that the expected cost of REAL ID equals
its anticipated security benefits. Since it
is exceedingly difficult to predict the
probability and consequences of a
hypothetical terrorist attack, DHS
instead provides an answer to the
following question: what impact would
this rule have to have on the annual
probability of experiencing a 9/11 type
attack in order for the rule to have
positive quantified net benefits. This
analysis does not assume that the U.S.
will necessarily experience this type of
attack, but rather is attempting to
provide the best available information to
the public on the impacts of the rule.
This analysis is preliminary, and DHS
specifically requests comments on the
methodology used in this discussion,
and the types of additional security
incidents this rulemaking may impact.
DHS is also continuing to develop this
analysis for the final rule.
In summary, if these requirements
lowered by 3.60% per year the annual
probability of a terrorist attack that
caused immediate impacts of $63.9
billion (which is an estimate of the
immediate impact incurred in the 9/11
attack and might be considered a lower
bound estimate), the quantified net
benefits of the REAL ID regulation
would be positive. If these requirements
lowered by 0.61% per year the annual
probability of a terrorist attack that
caused both immediate and longer run
impacts of $374.7 billion (which is an
estimate of the immediate and longer
run impacts incurred in the 9/11 attack
and might be considered an upper
bound estimate), the quantified net
benefits of the REAL ID regulation
would be positive.
The potential ancillary benefits of
REAL ID are numerous, as it would be
more difficult to fraudulently obtain a
legitimate license and would be
substantially more costly to create a
false license. These other benefits
include reducing identity theft,
31 This type of analysis is recommended by OMB
Circular A–4 when it is difficult to quantify and
monetize the benefits of rulemaking.

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unqualified driving, and fraudulent
activities facilitated by less secure
driver’s licenses such as fraudulent
access to government subsidies and
welfare programs, illegal immigration,
unlawful employment, unlawful access
to firearms, voter fraud, and possibly
underage drinking and smoking. DHS
assumes that REAL ID would bring
about changes on the margin that would
potentially increase security and reduce
illegal behavior. Because the size of the
economic costs that REAL ID serves to
reduce on the margin are so large,
however, a relatively small impact of
REAL ID may lead to significant
benefits.
Regulatory Flexibility Act Assessment
The Regulatory Flexibility Act of
1980, as amended, (RFA) was enacted
by Congress to ensure that small entities
(small businesses, small not-for-profit
organizations, and small governmental
jurisdictions) are not unnecessarily or
disproportionately burdened by Federal
regulations. The RFA requires agencies
to review rules to determine if they have
‘‘a significant economic impact on a
substantial number of small entities.’’
The following analysis suggests that the
proposed rule would not have a
significant economic impact on a
substantial number of small entities.
Under the RFA, the term ‘‘small
entity’’ has the same meaning as the
terms ‘‘small business,’’ ‘‘small
organization’’ and ‘‘small governmental
jurisdiction.’’ This action will affect
States, and States are governmental
jurisdictions. However, States are not
considered ‘‘small governmental
jurisdictions’’ under the RFA. As
defined by the RFA, small governmental
jurisdictions include governments of
cities, counties, towns, townships,
villages, school districts, or special
districts with a population of less than
50 thousand. The proposed rule would
regulate driver’s licenses and non-driver
identification cards at the state level. It
would not directly regulate small
government jurisdictions nor would it
directly regulate small entities in the
driver’s license and identification card
industry.
The rule would regulate the
acceptance of a driver’s license or
identification card by Federal agencies
for official purposes. (If the rule is
adopted, Federal agencies would not
accept state-issued driver’s licenses or
identification cards unless they were
REAL IDs for the purposes of boarding
federally regulated commercial aircraft,
entering nuclear power plants and
accessing Federal facilities. The rule
does not require presentation of this, or
any other document, nor does it prohibit

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the acceptance of any other document.)
Consequently, employees and agents
would be trained in the acceptance of
REAL ID driver’s licenses and
identification cards to ensure they are
compliant with the Act.
The acceptance of REAL ID driver’s
licenses and identification cards for
accessing Federal facilities does not
directly regulate small entities as the
Federal government is not itself a small
entity.
Nuclear power plants qualify as small
entities if ‘‘including its affiliates, it is
primarily engaged in the generation,
transmission, and/or distribution of
electric energy for sale and its total
electric output for the preceding fiscal
year did not exceed 4 million megawatt
hours.’’ 32 With only three exceptions,
every nuclear power plant in the United
States produced more than 4 million
megawatt hours in fiscal year 2005.33
However, each of those three plants are
owned by companies producing more
than 12 million megawatt hours.34 None
of the nuclear power plants qualify as a
small business using the SBA definition.
DHS estimates that airlines and their
representatives would need to train
some of their personnel in the
acceptance of REAL ID driver’s licenses
and identification cards under the
proposed rule. While data exist on the
number of employees for some firms in
the air carrier industry, data do not exist
on how many of these employees accept
identification from passengers before
allowing them to board an aircraft. DHS
has therefore established a threshold
measure to determine if the proposed
regulation would have a significant
impact on a substantial number of small
entities.
DHS estimates that each employee
accepting REAL ID driver’s licenses and
identification cards for official purposes
would require two hours of training.
This training will assist personnel in
identifying the differences between
REAL IDs and non-compliant IDs. The
training will also inform personnel
about which States are or are not
compliant during the phase-in period.
32 Small Business Administration. Small Business
Size Standards Matched to North American
Industrial Classification System, footnote 1.
Available at http://www.sba.gov/size/
sizetable2002.html#fn1. Accessed Jul 14, 2006.
33 Calculations based on data from the Energy
Information Administration. U.S. Department of
Energy. Monthly Nuclear Utility Generation by State
and Reactor, 2004 and Monthly Nuclear Utility
Generation by State and Reactor, 2005. Available at
http://www.eia.doe.gov/cneaf/nuclear/page/
nuc_generation/gensum.html. Accessed Jul 14,
2006.
34 Conclusion based on an internet search
conducted on July 14, 2006 of the three specific
power plants and the companies that own and
operate them.

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DHS calculated the fully loaded wage
rate of $22.95 per hour for airline ticket
counter agents and $22.50 per hour for
airport checkpoint staff. Multiplying the
wage rates by the estimated two hours
to complete the training yields estimates
of $45.90 and $45.01 per-employee for
ticket counter agents and checkpoint
staff, respectively. If a firm’s revenue
divided by the number of ticket counter

agents to be trained is more than
$4,590:1 then the effect is less than one
percent of their total revenue. To have
an impact equal to or greater than three
percent of total revenue, the revenue to
trained agents would need to be equal
to or less than $1,530:1. Firms
employing airport checkpoint staff with
a total revenue to trained employee ratio
greater than $4,501:1 would experience

impacts less than one percent of total
revenue. DHS estimates that, to have an
impact of three percent or more, the
firm would need to have a revenue to
trained employee ratio equal to, or less
than, $1,500:1. DHS is unable to identify
any firms for which the total revenue to
trained employee ratio would be less
than $4,500:1.

This analysis suggests that the
proposed rule would not have a
significant impact on a substantial
number of small entities. The
Department welcomes comments and
data on the impacts of the proposed
regulation on small entities.

which a written statement is needed,
section 205 of the UMRA generally
requires agencies to identify and
consider a reasonable number of
regulatory alternatives and adopt the
least costly, most cost-effective, or least
burdensome alternative that achieves
the objective of the rule. Agencies are
also required to seek input from the
States in the preparation of such rules.
The provisions of section 205 do not
apply when they are inconsistent with
applicable law. Moreover, section 205
allows DHS to adopt an alternative other
than the least costly, most cost-effective,
or least burdensome alternative if the
agency publishes with the final rule an
explanation why that alternative was
not adopted.
As indicated above, UMRA excludes
from its scope regulations which are
required for national security reasons.
National security was a primary
motivator for the REAL ID Act; indeed,
the Act itself is an effort to implement
recommendations of the 9/11
Commission, and Congress took pains to
explain the connection between REAL
ID and national security, with over a
dozen references to ‘‘terrorists’’ or
‘‘terrorism’’ in the Conference Report.
See 9/11 Commission Public Report,
Chapter 12.4; Conf. Rep., 179–183.
Notwithstanding the national security
nature of the REAL ID Act requirements,
DHS has analyzed the estimated cost to
states and considered appropriate
alternatives to, and benefits derived

from, the proposed regulation.
Moreover, as detailed in the following
section (Executive Order 13132,
Federalism), DHS has solicited input
from State and local governments in the
preparation of this proposed rule.

International Trade Impact Assessment
The Trade Agreement Act of 1979
prohibits Federal agencies from
engaging in any standards or related
activities that create unnecessary
obstacles to the foreign commerce of the
United States. Legitimate domestic
objectives, such as safety, are not
considered unnecessary obstacles. The
statute also requires consideration of
international standards and, where
appropriate, that they be the basis for
U.S. standards. There is no international
standard for state-issued driver licenses
or identification cards. DHS has
determined that the proposed regulation
would not have an impact on trade.

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Unfunded Mandates Assessment
Section 202 of the Unfunded
Mandates Reform Act of 1995 (UMRA)
requires Federal agencies to prepare a
written assessment of the costs, benefits,
and other effects of proposed or final
rules that include a Federal mandate
likely to result in the expenditure by
State, local, or tribal governments, in the
aggregate, or by the private sector, of
more than $100 million in any one year
(adjusted for inflation with base year of
1995). Before promulgating a rule for

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C. Executive Order 13132, Federalism
Executive Order (E.O.) 13132 requires
each Federal agency to develop a
process to ensure ‘‘meaningful and
timely input by State and local officials
in the development of regulatory
policies that have federalism
implications.’’ The phrase ‘‘policies that
have federalism implications’’ is
defined in the Executive Order to
include regulations that have
‘‘substantial direct effects on the States,
on the relationship between the national
government and the States, or on the
distribution of power and
responsibilities among the various
levels of government.’’
Executive Order 13132 lists as a
‘‘Fundamental Federalism Principle’’
that ‘‘[f]ederalism is rooted in the belief
that issues that are not national in scope
or significance are most appropriately
addressed by the level of government
closest to the people.’’ The issue
covered by the instant regulation is,
without question, national in scope and
significance. It is also one in which the
States have significant equities.
While driver’s licenses and
identification cards are issued by states,
they are also the most widely used
identification documents. Not

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surprisingly, they are very frequently
used by Americans to establish their
identities in the course of their
interactions with the Federal
Government (e.g., when entering secure
Federal facilities or passing through
Federally-regulated security procedures
at U.S. airports). The fact that the use of
driver’s licenses as identity documents
is an issue that is ‘‘national in scope’’ is
illustrated by the events of September
11, 2001. A number of the terrorists who
hijacked U.S. aircraft on that day had,
through unlawful means, obtained
genuine driver’s licenses; these
documents were used to facilitate the
terrorists’ operations against the United
States.35
1. DHS Has Considered the Federalism
Implications of Proposed REAL ID
Policies
Section 3 of the E.O. sets forth certain
‘‘Federalism Policymaking Criteria.’’ In
formulating or implementing policies
with ‘‘federalism implications,’’
agencies are required, to the extent
permitted by law, to adhere to certain
criteria. DHS has considered this action
in light of the criteria set forth in E.O.
13132 section 3(a)–(d) and submits the
following:
(a) Constitutional principles and
maximizing the policymaking discretion
of the States. The proposed rule is being
promulgated in strict adherence to
constitutional principles, and the limits
of DHS’ constitutional and statutory
authority have been carefully
considered. DHS is proceeding with this
action pursuant to direct Congressional
authorization as set forth in the REAL ID
Act.
Notwithstanding this clear mandate,
DHS has taken steps, in consultation
with the States, to maximize
policymaking discretion at the state
level. In response to concerns expressed
during the course of DHS’ discussions
with stakeholders, DHS has proposed,
as part of this rule, an exceptions
process (see section II.F, supra,
Exceptions Processing for Extraordinary
Circumstances) that would allow each
State participating in REAL ID to
exercise maximum discretion in
responding to exigencies arising in the
course of verifying an individual’s
identity.
In section II.K.1 of this proposed rule
(section 37.45 of the regulations
Background checks for certain
employees), DHS has recognized that
each State’s unique situation mandates
that the maximum possible latitude be
allowed to States in fulfilling the
statutory mandate that certain
35 See

9/11 Commission Report, Chapter 12.4.

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employees undergo background
investigations. The proposed rule
provides parameters for use by the
States in determining which employees
are subject to the statutory background
check requirements but allows the
individual States to make the
determinations on a case-by-case basis.
States are also given the discretion to
find the best way to determine an
individual driver’s license or
identification card applicant’s address
of principal residence (see sections II.D,
II.E.1).
In other aspects of the proposed
regulation (see, e.g., section II.H.6,
supra, Physical Security Features), DHS
has prescribed baseline requirements
while allowing States the discretion to
impose more stringent standards. Any
State that chooses to participate in
REAL ID will retain the discretion to
issue non-REAL ID driver’s licenses and
identification cards in any manner it
sees fit (provided such driver’s licenses
and identification cards are clearly
identified as non-REAL ID). Most
significantly, as set forth above, each
State retains the discretion to opt out of
REAL ID in its entirety.
(b) Action limiting the policymaking
discretion of the States. As indicated
above, the instant proposed rule strives
to maximize State policymaking
discretion on two levels: first, because a
State’s participation in REAL ID is
optional; and second, because of the
policymaking discretion (e.g., the
exceptions process) incorporated into
the regulation for States which do
choose to participate. DHS believes that
it has incorporated into this action the
maximum possible State discretion
consistent with the purposes of the
statute.
(c) Avoiding intrusive Federal
oversight. Consistent with Congress’
vision for REAL ID (see section 202(a)(2)
of the Act), States which choose to
participate in the program will be
responsible for monitoring their own
compliance. See section IV, State
Certification Process, supra. As detailed
in that section (and section 37.55 of the
instant regulations), the Secretary of
Homeland Security will determine
whether a State is meeting the
requirements of the Act based on
certifications made by the State.
Certifications ‘‘shall be made at such
times and in such manner as the
Secretary, in consultation with the
Department of Transportation, may
prescribe by regulation.’’
To facilitate compliance with REAL
ID, DHS has adopted a certification
process similar to that used by DOT in
its regulations governing State
administration of commercial driver’s

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licenses. Under the proposed rule, DHS
will not directly oversee State
compliance. Rather, States will
demonstrate initial compliance with
REAL ID by submitting a certification
and certain specified documents
including a description of their REAL ID
programs. Continued compliance will
be demonstrated through annual
submission of such certification and
documents. DHS will make compliance
determinations based on submissions by
the States (and will retain an audit
function). States receiving adverse
determinations will have the
opportunity for an internal appeals
process as well as judicial review. Thus,
intrusive oversight is avoided by
allowing the States themselves to serve
as the primary compliance mechanism
with this regulation.
(d) Formulation of policies with
federalism implications. DHS recognizes
both the important national interest in
secure identity documents and the
federalism implications of the policies
which underpin this proposed rule.
Accordingly, DHS has welcomed and
encouraged State participation in this
process. Consistent with Congressional
intent, DHS has sought, where possible,
to draft this regulation in such a way as
to maximize State discretion. The
examples of exceptions processing and
the State certification process are
outlined above in this Federalism
Statement, and detailed elsewhere in
this proposed rule.
Where the exigencies of national
security and the need to prevent
identity fraud have militated in favor of
a uniform national standard (e.g.,
baseline security features on identity
cards and background check
requirements), DHS has, as reflected
above, consulted with States in order to
ensure that the uniform standards
prescribed could be attained by the
States and would reflect the
accumulated security experience of state
motor vehicles administrations. The
Department recognizes that imposing
qualifications for State employees
through background check requirements
may raise federalism concerns. DHS
specifically requests comments on the
federalism aspects of the background
check requirements proposed under this
rule.
2. The REAL ID Proposed Rule
Complies With the Regulatory
Provisions of E.O. 13132
Under section 6 of E.O. 13132, an
agency may not issue a regulation that
has federalism implications, that
imposes substantial direct compliance
costs, and that is not required by statute,
unless the Federal Government provides

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the funds necessary to pay the direct
compliance costs incurred by State and
local governments, or consults with
state and local officials early in the
process of developing the proposed
regulation. Moreover, an agency may
not issue a regulation that has
federalism implications and that
preempts State law, unless the Agency
consults with State and local officials
early in the process of developing the
proposed regulation.
(a) The proposed rule is required by
statute. As stated above, the regulatory
requirements of E.O. 13132 apply only
to regulations that are not ‘‘required by
statute.’’ See E.O. 13132, section 6(b).
The REAL ID Act authorizes the
Secretary of Homeland Security to
define and implement the various
requirements prescribed in the statute;
the instant rule merely carries out that
mandate. Thus, given the statutory
mandate, E.O. 13132’s regulatory
requirements arguably may not apply to
this rulemaking.
(b) The proposed rule does not
preempt state law. As detailed
elsewhere in this document, the REAL
ID Act is binding on Federal agencies,
rather than on States. The proposed rule
would not formally compel any State to
issue driver’s licenses or identification
cards that will be acceptable for federal
purposes. Importantly, under this
scheme, ‘‘[a]ny burden caused by a
State’s refusal to regulate will fall on
those [citizens who need to acquire and
utilize alternative documents for federal
purposes], rather than on the State as a
sovereign.’’ 36 In other words, the
citizens of a given State—not
Congress—ultimately will decide
whether the State complies with this
regulation and the underlying statute.
DHS has concluded that the proposed
rule is consistent with the Tenth
Amendment to the U.S. Constitution
and does not constitute an
impermissible usurpation of state
sovereignty. Rather, it is a permissible
‘‘program of cooperative federalism’’ in
which the federal and state governments
have acted voluntarily in tandem to
achieve a common policy objective.37
(c) DHS has engaged in extensive
consultations with the States. The
statutory mandate and the lack of
preemption both satisfy the
requirements of E.O. 13132.
Nevertheless, in the spirit of federalism,
and consistent with section 205(a) of the
REAL ID Act, DHS has engaged in
extensive consultations with the States
prior to issuing this proposed rule. As
set forth in section I.B of this proposed
36 New
37 See

York v. U.S., 505 U.S. 144, 173 (1992).
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rule, DHS held meetings and solicited
input from various States and such
stakeholders as the National Governors
Association and the National
Conference of State Legislatures.
In particular, DHS’ Office of State and
Local Government Coordination hosted
three face-to-face meetings (October
2005, January 2006 and February 2006),
as well as a conference call (March
2006). DHS also participated in other
conferences on REAL ID, hosted by
various other stakeholders, including
the American Association of Motor
Vehicle Administrators. Details of
conferences and the input received by
DHS from participants are reflected in
the docket for this proposed rule and are
available for public review as set forth
above. See Reviewing Comments in the
Docket, supra. As detailed in that
section, input from the States was
instrumental in formulating the policies
proposed herein.
(d) DHS recognizes the burdens
inherent in complying with the
regulation. Notwithstanding both the
statutory mandate and the Federal
(rather than State) focus of the REAL ID
Act, DHS recognizes that, as a practical
matter, States may view noncompliance
with the requirements of REAL ID as an
unattractive alternative. DHS also
recognizes that compliance with the
rule carries with it significant costs and
logistical burdens, for which federal
funds are generally not available. The
costs (to the States, the public and the
Federal Government) of implementing
this rule are by no means inconsiderable
and have been detailed in the regulatory
evaluation accompanying this proposed
rule.
As indicated above, E.O. 13132
prohibits any agency from
implementing a regulation with
federalism implications which imposes
substantial direct compliance costs on
State and local governments unless the
regulation is required by statute, the
Federal Government will provide funds
to pay for the direct costs, or the agency
has consulted with State and local
officials. In such a case, the agency must
also incorporate a federalism statement
into the preamble of the regulation and
make available to the Office of
Management and Budget any written
communications from State and local
officials. See E.O. 13132, section 6(b).
This proposed rule is required by the
REAL ID Act. DHS has (as detailed
above) consulted extensively with State
and local officials in the course of
preparing this regulation. Finally, DHS
has incorporated this Federalism
Statement into the preamble to assess
the federalism impact of its proposed
REAL ID regulation.

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3. REAL ID and Federalism
The issuance of driver’s licenses has
traditionally been the province of State
governments; DHS believes that, to the
extent practicable, it should continue as
such. However, given the threat to both
national security and the economy
presented by identity fraud, DHS
believes that certain uniform standards
should be adopted for the most basic
identity document in use in this
country. DHS has, in this proposed rule,
attempted to balance State prerogatives
with the national interests at stake. We
look forward to receiving input from
States, citizens and other stakeholders
with regard to the federalism
implications of this proposed rule.
D. Environmental Analysis
Under this proposed rule, DHS is
seeking specific public comment and, in
particular, information from State
DMVs, on the potential environmental
impact of the physical standards and
other proposed requirements under this
rule. DHS will be conducting the
necessary analysis to determine the
environmental impacts of this rule for
purposes of complying with the
National Environmental Policy Act of
1969 (NEPA), 42 U.S.C. 4321 et seq.,
and Council on Environmental Quality
(CEQ) regulations, 40 CFR parts 1501–
1508, and will be considering public
comments received in this analysis.
E. Energy Impact Analysis
The energy impact of the proposed
rule has been assessed in accordance
with the Energy Policy and
Conservation Act (EPCA), Pub. L. 94–
163, as amended (42 U.S.C. 6362). We
have determined that this rulemaking is
not a major regulatory action under the
provisions of the EPCA.
List of Subjects in 6 CFR Part 37
Document security, Driver’s licenses,
Identification cards, Incorporation by
reference, Motor vehicle
administrations, Physical security.
The Proposed Amendments
For the reasons set forth in the
preamble, the Department of Homeland
Security proposes to amend 6 CFR
chapter I, by adding a new part 37 to
read as follows:

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Title 6—Homeland Security
CHAPTER I—DEPARTMENT OF
HOMELAND SECURITY, OFFICE OF THE
SECRETARY

(b) Subpart F of this part establishes
certain standards for State-issued
driver’s licenses and identification cards
that do not meet the standards for
acceptance for Federal official purposes.

PART 37—REAL ID DRIVER’S
LICENSES AND IDENTIFICATION
CARDS

§ 37.3

Subpart A—General
Sec.
37.1 Applicability.
37.3 Definitions.
37.5 Deadlines and validity periods for
REAL ID driver’s licenses and
identification cards.
Subpart B—Minimum Documentation,
Verification and Driver’s License and
Identification Card Issuance Requirements
37.11 Application and documents the
applicant must provide.
37.13 Document verification requirements.
37.15 Physical security features for the
driver’s license or identification card.
37.17 Requirements for the face of the
driver’s license or identification card.
37.19 Machine readable technology on the
driver’s license or identification card.
37.21 Temporary driver’s licenses and
identification cards.
37.23 Renewed and reissued driver’s
licenses and identification cards.
Subpart C—Other Requirements
37.31 Source document retention.
37.33 Database connectivity with other
States.
Subpart D—Security at DMVs and Driver’s
License and Identification Card Production
Facilities
37.41 Comprehensive security plan.
37.43 Physical security of DMV facilities.
37.45 Background checks for covered
employees.
Subpart E—Procedures for Determining
State Compliance
37.51 Compliance—general requirements.
37.55 Initial State certification.
37.57 Annual State certifications.
37.59 DHS reviews of State compliance.
37.61 Results of compliance determination.
37.63 Extension of deadline.
37.65 Effect of failure to comply with this
part.
Subpart F—Non-REAL ID Driver’s Licenses
and Identification Cards
37.67 Non-REAL ID driver’s licenses and
identification cards.
Authority: 49 U.S.C. 30301 note; 6 U.S.C.
111, 112.

Subpart A—General
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§ 37.1

Applicability.

(a) Subparts A through F of this part
apply to States and territories that
choose to issue driver’s licenses and
identification cards that can be accepted
by Federal agencies for official
purposes.

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Definitions.

For purposes of this part:
Birth certificate means the record
related to a birth that is permanently
stored either electronically or physically
at the State Office of Vital Statistics or
equivalent agency in a registrant’s State
of birth.
Card means either a driver’s license or
identification card issued by the State
DMV or equivalent State office.
Certification means an assertion by
the State that the State has met the
requirements of this part.
Certified copy of a birth certificate
means a copy of the whole or part of a
birth certificate registered with the State
that the State considers to be the same
as the original birth certificate on file
with the State Office of Vital Statistics
or equivalent agency.
Covered employees means DMV
employees or DMV contractors who
have the ability to affect the recording
of any information required to be
verified, or who are involved in the
manufacture or production of driver’s
licenses and identification cards, or who
have the ability to affect the identity
information that appears on the driver’s
license or identification card.
Data verification means checking the
data contained in source documents
presented under this regulation against
authoritative reference databases.
Department of Motor Vehicles means
any State Government entity that issues
driver’s licenses and identification
cards, or an office with equivalent
function for issuing driver’s licenses
and identification cards.
Determination means a decision by
the Department of Homeland Security
that a State has or has not met the
requirements of this part and that
Federal agencies may or may not accept
the driver’s licenses and identification
cards issued by the State for official
purposes.
DHS means the U.S. Department of
Homeland Security. When used in
connection with the issuance of
documents, the term also includes the
former Immigration and Naturalization
Service (INS) of the Department of
Justice when INS issued documents that
are still valid.
Digital photograph means a digitally
printed reproduction of the face of the
holder of the license or identification
card.
Document authentication means
verifying that the source document

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presented under these regulations is
genuine and has not been altered.
Domestic violence and dating
violence have the meanings given the
terms in section 3, Universal definitions
and grant provisions, of the Violence
Against Women and Department of
Justice Reauthorization Act of 2005
(Pub. L. 109–162, 119 Stat. 2960, 2964,
Jan. 5, 2006); codified at section 40002,
Definitions and grant provisions, 42
U.S.C 13925.
Driver’s license means a motor vehicle
operator’s license, as defined in 49
U.S.C. 30301.
Federal agency means all executive
agencies including Executive
departments, a Government corporation,
and an independent establishment as
defined in 5 U.S.C. 105.
Federally-regulated commercial
aircraft means a commercial aircraft
regulated by the Transportation Security
Administration (TSA).
Full legal name means an individual’s
first name, middle names or family
names, and last name, without use of
initials or nicknames.
IAFIS means the Integrated
Automated Fingerprint Identification
System, a national fingerprint and
criminal history system maintained by
the FBI that provides automated
fingerprint search capabilities.
Identification card means a document
made or issued by or under the
authority of a State Department of Motor
Vehicles which, when completed with
information concerning a particular
individual, is of a type intended or
commonly accepted for the purpose of
identification of individuals.
Lawful status: A person in lawful
status: is a citizen or national of the
United States; Is an alien lawfully
admitted for permanent or temporary
residence in the United States; has
conditional permanent resident status in
the United States; has an approved
application for asylum in the United
States or has entered into the United
States in refugee status; has a valid
nonimmigrant status in the United
States; has a pending application for
asylum in the United States; has a
pending or approved application for
temporary protected status (TPS) in the
United States; has approved deferred
action status; or has a pending
application for LPR or conditional
permanent resident status.
NCIC means the National Crime
Information Center, a computerized
index of criminal justice information
maintained by the FBI that is available
to Federal, state, and local law
enforcement and other criminal justice
agencies.

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Official purpose means accessing
Federal facilities, boarding Federallyregulated commercial aircraft, and
entering nuclear power plants.
Passport means a passport booklet or
card issued by the Department of State
that can be used as a travel document
to gain entry into the United States and
that denotes identity and citizenship as
determined by the Department of State.
Principal residence means where a
person has his or her true, fixed, and
permanent home and to where he or she
has the intention of returning whenever
he or she is absent.
REAL ID Driver’s License or
Identification Card means a driver’s
license or identification card that meets
the standards of subparts A through D
of this part, including temporary
driver’s licenses or identification cards
issued under § 37.21.
Reissued means a card that a State
DMV issues to replace a card that has
been lost, stolen or damaged.
SAVE means the DHS Systematic
Alien Verification for Entitlements
system, or such successor or alternate
verification system at the Secretary’s
discretion.
Secretary means the Secretary of
Homeland Security.
Sexual assault and stalking have the
meanings given the terms in section 3,
Universal definitions and grant
provisions, of the Violence Against
Women and Department of Justice
Reauthorization Act of 2005 (Pub. L.
109–162, 119 Stat. 2960, 2964, Jan. 5,
2006); codified at section 40002,
Definitions and grant provisions, 42
U.S.C 13925.
Source document(s) means original or
certified copies (where applicable) of
documents presented by an applicant as
required under these regulations to the
Department of Motor Vehicles to apply
for a driver’s license or identification
card.
Source information means the
pertinent information present on source
documents that are presented by an
applicant to the Departments of Motor
Vehicles to apply for a driver’s license
or identification card.
State means a State of the United
States, the District of Columbia, Puerto
Rico, the Virgin Islands, Guam,
American Samoa, and the
Commonwealth of the Northern Mariana
Islands.
State address confidentiality program
means any State-authorized or Stateadministered program that—
(1) Allows victims of domestic
violence, dating violence, sexual
assault, stalking, or a severe form of
trafficking to keep, obtain, and use
alternative addresses; or

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(2) Provides confidential recordkeeping regarding the addresses of such
victims.
Temporary lawful status: A person in
temporary lawful status is a person who:
Has a valid nonimmigrant status in the
United States; has a pending application
for asylum in the United States; has a
pending or approved application for
temporary protected status (TPS) in the
United States; has approved deferred
action status; or has a pending
application for LPR or conditional
permanent resident status.
§ 37.5 Deadlines and validity periods for
REAL ID driver’s licenses and identification
cards.

(a) Cards issued on or after May 11,
2008. A State-issued driver’s license or
identification card issued on or after
May 11, 2008 is acceptable by Federal
agencies for official purposes only if the
card meets the requirements of this part,
and DHS has determined that the
issuing State meets the requirements of
the REAL ID Act of 2005 (Pub. L. 109–
13, 119 Stat. 231, 302, May 11, 2005).
(b) Cards issued before May 11, 2008.
If DHS determines that a State is in
compliance with the REAL ID
requirements in this part, all cards
issued before May 11, 2008 are
acceptable by Federal agencies for
official purposes until and including
May 10, 2013. All cards issued,
reissued, or renewed after May 11, 2008
must be REAL ID compliant by May 11,
2013 or they shall not be acceptable by
Federal agencies for official purposes.
(c) REAL ID card validity period.
Driver’s licenses and identification
cards issued under this part that are not
temporary driver’s licenses and
identification cards are valid for a
period not to exceed eight years. A card
may be valid for a shorter time period
based on other State or Federal
requirements.
Subpart B—Minimum Documentation,
Verification, and Card Issuance
Requirements
§ 37.11 Application and documents the
applicant must provide.

States must require each individual
applying for a REAL ID driver’s license
or identification card to have their
photograph taken by the DMV, and
maintain that photograph as described
in paragraph (a) of this section. States
must further require each individual
applying for a REAL ID driver’s license
or identification card to submit the
declaration in paragraph (b) and to
present the documents described in
paragraphs (c), (d), (e) and (f) of this
section. Documents in paragraph (g) of
this section are required as described in

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that paragraph. States are not required
to comply with these requirements
when issuing REAL ID driver’s licenses
or identification cards in support of
Federal, State, or local criminal justice
agencies or programs that require
special licensing or identification to
safeguard persons or in support of their
other official duties. As directed by
appropriate officials of these Federal,
State, or local agencies, States should
take sufficient steps to safeguard the
identities of such persons. Driver’s
licenses and identification cards issued
in support of Federal, State, or local
criminal justice agencies or programs
that require special licensing or
identification to safeguard persons or in
support of their other official duties
shall not be distinguishable from other
REAL ID licenses or identification cards
issued by the State.
(a) The State must subject each person
applying for a REAL ID driver’s license
or identification card to a mandatory
facial image capture, whether or not
such person is issued a REAL ID driver’s
license or identification card.
Photographs of individuals who were
not issued a REAL ID driver’s license or
identification card must be kept for 1
year, unless the DMV did not issue the
driver’s license or identification card
because of suspected fraud, in which
case the record should be maintained
for ten years and reflect that a driver’s
license or identification card was not
issued for that reason.
(b) Declaration. Each applicant must
sign a declaration under penalty of
perjury that the information presented is
true and correct, and the State must
retain this declaration with copies of the
applicant’s source documents pursuant
to § 37.31. An applicant must sign a new
declaration when presenting new
information to the DMV.
(c) Identity. (1) To establish the
individual’s identity, the individual
must present at least one of the
following documents containing a
photograph or non-photo identity
document including full name and date
of birth:
(i) A valid unexpired United States
passport.
(ii) Certified copy of a birth certificate
issued by a U.S. State or local office of
Public Health, Vital Records, Vital
Statistics or equivalent office.
(iii) Consular Report of Birth Abroad
issued by DOS, Form FS–240, DS–1350
or FS–545.
(iv) An unexpired Permanent
Resident Card issued by DHS, Form I–
551.
(v) An unexpired employment
authorization document (EAD) issued
by DHS, Form I–766 or Form I–688B.

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(vi) Unexpired foreign passport with a
valid unexpired U.S. visa affixed.
(vii) Certificate of Naturalization
issued by DHS, Form N–550 or Form N–
570.
(viii) Certificate of Citizenship, Form
N–560 or Form N–561.
(ix) REAL ID driver’s license or
identification card issued in compliance
with the standards established by this
part.
(2) If the individual’s name has
changed through adoption, marriage,
divorce, or court order, the individual
must present an original or certified
copy of the documents showing a legal
name change, before the name is
changed on the driver’s license or
identification card. These documents
must come from a U.S. or State-level
Court or government agency.
(d) Date of birth. To establish the
person’s date of birth, the individual
must present at least one document
included in paragraph (c) of this section.
(e) Social security number. The
individual must provide documentation
establishing an SSN, or the person’s
ineligibility for an SSN.
(1) To establish an SSN, an applicant
must present his or her social security
account number card, a W–2 form, a
SSA–1099 form, a non-SSA 1099 form,
or a pay stub with the applicant’s name
and SSN on it; the SSN must be verified
pursuant to § 37.13 of this subpart.
(2) To establish ineligibility for an
SSN, an alien must present evidence
that he or she is currently in a non-work
authorized nonimmigrant status.
(f) Documents demonstrating address
of principal residence. To document the
address of principal residence, a person
must present at least two documents of
the State’s choice that include the
individual’s name and principal
residence.
(1) Documents used to demonstrate
address of principal residence that are
issued monthly (such as bank
statements or utility bills) must not be
more than three months old at the time
of application.
(2) Documents used to demonstrate
address of principal residence that are
issued annually (such as property tax
records) must be for the most current
yearly period at the time of application.
(3) Except as provided in § 37.17(f)(1),
(f)(2) and (f)(3) of this part, a street
address must be required.
(g) Evidence of lawful status in the
United States. A DMV may issue a
REAL ID driver’s license or
identification card only to a person who
has presented satisfactory evidence of
lawful status. The documentation listed
under paragraph (c) of this section is
also evidence of lawful status, except

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that if the applicant presents an identity
document listed under paragraphs
(c)(1)(v) or (c)(1)(vi) of this section, the
documentation is to be considered
provisional evidence pending
verification of immigration status
through SAVE. If the applicant presents
an identity document listed under
paragraph (c)(1)(ix) of this section, he or
she must also present another document
listed in paragraph (c) of this section as
evidence of lawful presence in the
United States.
(h) State DMVs may choose to
establish a written exceptions process in
order to provide REAL ID driver’s
licenses and identification cards to
persons who, for reasons beyond their
control, are unable to present all
necessary documents and must rely on
alternate documents to establish
identity. An exceptions process may not
be used to demonstrate lawful status.
Each State establishing an exceptions
process must have that process
approved by DHS for the verification of
documents in this section, and
document each time the process is used,
both on the applicant’s record in the
DMV’s database and in the DMV’s files.
(1) The applicant’s records must
visibly indicate when an alternate
document is accepted and how
applicable information from the
document was verified.
(2) The record must include a full
explanation of the reason for the
exception and alternative documents
accepted whenever a driver’s license or
identification card is issued using
exceptions processing.
(3) The State shall retain copies of the
alternate documents accepted pursuant
to this section and provide these upon
request to DHS for audit.
(4) The State shall provide DHS with
quarterly reports analyzing the use of
the exceptions process and any trends
that indicate potential vulnerabilities.
§ 37.13 Document verification
requirements.

States must adopt procedures
satisfying the requirements of paragraph
(a) of this section to verify with the
issuing agency the issuance, validity,
and completeness of a document
presented to demonstrate a person’s
eligibility for a REAL ID driver’s license
or identification card before issuance of
the driver’s license or identification
card.
(a) States must use the following
procedures to verify the documents
required under this section:
(1) A certified copy of a birth
certificate must be verified through the
Electronic Verification of Vital Events
System, or an alternative approved by

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DHS. In the event of a non-match, the
DMV may not issue a driver’s license or
identification card to an applicant, and
must refer the individual to their birth
state’s vital statistics office for
resolution.
(2) A U.S. passport or Consular report
of birth abroad must be verified through
existing Department of State systems.
(3) A lawful permanent resident card
(Form I–551) or other DHS-issued
document demonstrating permanent
residency, an EAD (Form I–766 or Form
I–688B), Certificate of Citizenship,
Certificate of Naturalization, or other
documentation issued by DHS
demonstrating lawful status, must be
verified through the Systematic Alien
Verification for Entitlements (SAVE)
system operated by DHS, or an alternate
verification system approved by DHS. In
the event of a non-match to SAVE, the
DMV may not issue a driver’s license or
identification card to an applicant, and
must refer the individual to the local
USCIS office for resolution.
(4) REAL ID driver’s licenses and
identification cards must be verified
with the State of issuance.
(5) Social security account numbers
must be verified by the Social Security
Administration’s (SSA) electronic
database. In the event of a non-match
with SSA, a DMV must not issue a
driver’s license or identification card to
an applicant until the information
verifies with SSA’s database.
(6) Documents demonstrating address
of principal residence must be verified
by the State in accordance with a system
of document verification acceptable to
DHS, to ensure that a document
produced establishes an individual’s
address of principal residence.
§ 37.15 Physical security features for the
driver’s license or identification card.

(a) General. States must include
document security features on REAL ID
driver’s licenses and identification cards
designed to deter forgery and
counterfeiting and promote an adequate
level of confidence in the authentication
of genuine documents and the detection
of fraudulent ones in accordance with
this section.
(1) These features must not be
reproducible using commonly used or
available technologies.
(2) The proposed card solution must
contain a well designed, balanced set of
features that when effectively combined
provide multiple layers of security.
States must describe these document
security features in their security plans
pursuant to § 37.41.
(b) Integrated security features. REAL
ID driver’s licenses and identification
cards must contain at least three levels

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of integrated security features that
provide the maximum resistance to
persons’ efforts to—
(1) Counterfeiting, simulating, or
reproducing a genuine document;
(2) Altering, deleting, modifying,
masking, or tampering with data
concerning the original or lawful card
holder;
(3) Substituting or altering the original
or lawful card holder’s photograph and/
or signature by any means; and
(4) Creating a fraudulent document
using components from legitimate
driver’s licenses or identification cards.
(c) Security features to detect false
cards. States must employ security
features to detect false cards for each of
the following three levels:
(1) Level 1. Cursory examination,
without tools or aids involving easily
identifiable visual or tactile features, for
rapid inspection at point of usage.
(2) Level 2. Examination by trained
inspectors with simple equipment.
(3) Level 3. Inspection by forensic
specialists.
(d) Minimum security features. States
must employ, at a minimum, the
following security features in each
REAL ID driver’s license or
identification card:
(1) An intricate, fine-line,
multicolored background design
produced via offset lithography that
includes microcline printing and an
intentional error/field check.
(2) An optically variable feature
providing adequate protection against
copying. The inclusion of a diffractive
optically variable feature is
recommended to achieve an enhanced
level of protection.
(3) An ultraviolet (UV) long wave
responsive feature.
(4) The proposed card solution must
include cards constructed such that
application of personal data provides for
the highest quality of printed
information including sufficient depth,
clarity and resolution. The application
of variable data shall be in a manner
that is considered secure and difficult,
if not virtually impossible, to erase,
modify or otherwise successfully
tamper. Some variable data must be
applied via laser engraving to include
tactile features (that protect the bearer
portrait from substitution via thin film
overlay) and variable microline text that
is specific to the bearer. The laser must
effectively penetrate the card layers
ensuring that the data is engraved into
the layers containing the security
characteristics.
(5) A series of check digit numbers or
letters printed on the cards.
(6) Incorporation of covert taggants
and/or markers.

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(e) Document card stock. States must
use a document card stock in the
issuance of REAL ID driver’s licenses
and identification cards that complies
with the following performance
standards:
(1) The card stock must be UV dull or
possess a controlled response to UV,
such that when illuminated by UV light
it exhibits fluorescence distinguishable
in color from the blue used in
commonly available fluorescent
materials. The card stock must use
suitable materials that provide for a
highly durable card stock that can
survive, at least, an eight-year card life.
If the card stock is a multi-layered
structure, there must be adequate
adhesion and/or tamper evident
properties to protect the personalized
data and security features contained in
the card. The card stock must provide
for the highest clarity for information
applied.
(2) External surfaces of the cards must
be printed using recognized security
printing methods to resist duplication or
facsimile reproduction by commercially
available products. The card must bear
a security background pattern designed
to be resistant to counterfeiting by
scanning, printing or copying. To
achieve this, the background pattern
shall not be composed of the primary
colors Cyan, Magenta, Yellow and Key
(Black) (CMYK). The pattern shall show
no evidence of half-tone dots, or pixel
structure typically found in digital
printing technologies.
(3) States must issue REAL ID driver’s
licenses and identification cards
produced on serialized card stock and
implement controlled inventory
measures that meet recognized industry
standards. The State must maintain a
record of any missing cards and report
the loss to the DMV and to law
enforcement.
(4) Driver’s licenses and identification
cards must contain a revision date that
is printed or engraved on the card
surface and which must be updated
whenever the card design changes.
(5) States must provide DHS with
samples of REAL ID driver’s licenses
and identification cards in a quantity
that DHS will specify. The cards
provided will be representative of
issued driver’s licenses and
identification cards, produced on
equipment identical to that used by the
State to issue REAL ID driver’s licenses
and identification cards, and include all
data fields and security features used by
the State.
(f) Document security and integrity.
(1) States must conduct an annual
review of their card design and submit
a report to DHS that indicates the ability

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10853

of the designs to resist compromise and
document fraud activity attempts. The
report must be submitted as part of the
State’s annual certification. The report
required by this paragraph is Sensitive
Security Information (SSI) and will be
handled in a manner consistent with
DHS regulations concerning SSI
published at 49 CFR part 1520.
(i) States must provide DHS with
examination results from a recognized
independent laboratory experienced
with adversarial analysis of
identification documents as part of the
State’s initial certification under § 37.55,
and annual certification under § 37.57.
(ii) As part of the State’s initial and
annual certifications, the State must
submit to DHS results from a facility
described in paragraph (g)(2)(i) of this
section, in the following areas:
(A) Photo substitution.
(B) Delamination and deconstruction.
(C) Reverse engineering.
(D) Modification of any data element.
(E) Erasure of information.
(F) Duplication, reproduction, or
facsimile creation.
(G) Effectiveness of security features
(three levels).
(H) Confidence and ease of second
level authentication.
(iii) The specifics of the lab analysis
requirements and the analysis results
are Sensitive Security Information (SSI)
and will be handled in a manner
consistent with DHS regulations
concerning SSI at 49 CFR part 1520.
(iv) DHS may change lab analysis
requirements under this section upon
notice to the State and opportunity for
comment or immediately if DHS
determines that there is a need for
immediate application of the new
requirements.
§ 37.17 Requirements for the face of the
driver’s license or identification card.

To be acceptable by a Federal agency
for official purposes, REAL ID driver’s
licenses and identification cards must
include on the face of the card the
following information:
(a) Full legal name. The name on the
face of the card must be the same as the
name on the document presented by the
applicant to establish identity. This
includes the individual’s first name,
middle names or family names, and last
name without use of initials or
nicknames.
(b) Date of birth.
(c) Gender.
(d) Unique Driver’s license or
identification card number. This cannot
be the individual’s Social Security
Number (SSN).
(e) Full facial digital photograph. A
full facial photograph must be taken
pursuant the standards set forth below:

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(1) Lighting shall be equally
distributed on the face.
(2) The face from crown to the base
of the chin, and from ear-to-ear, shall be
clearly visible and free of shadows.
States use photographs in profile rather
than ear-to-ear to differentiate licensees
that are under the age of 21.
(3) Veils, scarves or headdresses must
not obscure any facial features and not
generate shadow. The person may not
wear eyewear that obstructs the iris or
pupil of the eyes.
(4) There must be no dark shadows in
the eye-sockets due to the brow. The iris
and pupil of the eyes shall be clearly
visible.
(5) Care shall be taken to avoid ‘‘hot
spots’’ (bright areas of light shining on
the face).
(f) Address of principal residence,
except individuals who satisfy one of
the following:
(1) If the individual is enrolled in a
State address confidentiality program;
(2) If the individual’s address is
entitled to be suppressed under State or
Federal law or suppressed by a court
order; or
(3) If the individual is protected from
disclosure of information pursuant to
section 384 of the Illegal Immigration
Reform and Immigrant Responsibility
Act of 1996.
(g) Printed information. The name,
date of birth, gender, card number, issue
date, expiration date, and address on the
face of the card must be in Roman
alphabet characters. The name must
contain a field of no less than a total of
39 characters for the full legal name,
and longer names may be truncated
following the standard established by
International Civil Aviation
Organization (ICAO) 9303, ‘‘Machine
Readable Travel Documents,’’ Part IV,
Sixth Edition, 2005. The Director of the
Federal Register approves this
incorporation by reference in
accordance with 5 U.S.C. 552(a) and 1
CFR part 51. You may obtain a copy of
ICAO 9303 from the ICAO, Document
Sales Unit, 999 University Street,
Montre´ al, Quebec, Canada H3C 5H7, tel:
1–(514) 954–8022; E-mail:
[email protected]. You may inspect a copy
at the Office of the Federal Register, 800
N. Capitol Street, NW., Suite 700,
Washington, DC.
(h) Signature. The card must include
the signature of the card holder. The
signature must meet the requirements of
the existing American Association of
Motor Vehicle Administrators
(AAMVA) standards for the 2005
AAMVA Driver’s License/Identification
Card Design Specifications, Annex A,
section A.7.7.2. This standard includes
requirements for size, scaling, cropping,

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color, borders, and resolution. The
Director of the Federal Register
approves this incorporation by reference
in accordance with 5 U.S.C. 552(a) and
1 CFR part 51. You may obtain a copy
of these standards from AAMVA on-line
at http://www.aamva.org, or by
contacting AAMVA at 4301 Wilson
Boulevard, Suite 400, Arlington, VA
22203, tel. (703) 522–4200. You may
inspect a copy at the Office of the
Federal Register, 800 N. Capitol Street,
NW., Suite 700, Washington, DC.
(i) Physical security features, pursuant
to § 37.15 of this subpart.
(j) Machine-readable technology,
pursuant to § 37.19 of this subpart.
(k) Issuance date.
(l) Expiration date.
§ 37.19 Machine readable technology on
the driver’s license or identification card.

For the machine readable portion of
the REAL ID driver’s license or
identification card, States must use
PDF417 2D bar code standard, with the
following defined minimum data
elements:
(a) Expiration date.
(b) Holder’s name. The machine
readable portion of the card must have
at least 125 characters to permit capture
of the full name history, including full
legal name and all name changes.
(c) Issue date.
(d) Date of birth.
(e) Gender.
(f) Address.
(g) Unique identification number.
(h) Revision date, indicating the most
recent change or modification to the
visible format of the driver’s license or
identification card.
(i) Inventory control number of the
physical document.
§ 37.21 Temporary driver’s licenses and
identification cards.

States may issue only a temporary
driver’s license or identification card to
an individual who has temporary lawful
status in the United States.
(a) States must require, before issuing
a temporary driver’s license or
identification card to a person, valid
documentary evidence that the person
has lawful status in the United States,
as determined by DHS, and verification
of that status through SAVE.
(b) States shall not issue a temporary
driver’s license or identification card
pursuant to this section:
(1) For a time period longer than the
expiration of the applicant’s authorized
stay in the United States, or, if there is
no expiration date, for a period longer
than one year.
(2) For longer than eight years or the
State’s maximum driver’s license or
identification card term.

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(c) States shall renew a temporary
driver’s license or identification card
pursuant to this section and
§ 37.23(b)(2), only if:
(1) The individual presents valid
documentary evidence that the status by
which the applicant qualified for the
temporary driver’s license or
identification card has been extended by
DHS, or
(2) The individual presents valid
documentary evidence that they have
qualified for another lawful status under
paragraph (a) of this section, and such
continued or new status is verified
through SAVE.
(d) States must verify the documents
an individual presents to establish his
or her temporary lawful status through
SAVE.
(e) Temporary driver’s licenses and
identification cards must clearly state
on the face of the driver’s license or
identification card in bold lettering, and
in the machine readable zone of the
driver’s license or identification card,
that it is temporary.
§ 37.23 Renewed and reissued driver’s
licenses and identification cards.

(a) General. Any driver’s license or
identification card that is renewed or
reissued between May 11, 2008, and
May 10, 2013 that is intended to be
acceptable by federal agencies for
official purposes must meet the
standards set forth in subparts A
through C of this part.
(b) State procedure. States must
establish an effective procedure to
confirm or verify an applicant’s identity
each time a REAL ID driver’s license or
identification card is renewed or
reissued, to ensure that the individual
receiving the renewed or reissued REAL
ID driver’s license or identification card
is the same individual to whom the
driver’s license or identification card
was issued originally.
(1) Remote/Non-in-person renewals
and reissuance. Except as provided in
paragraph (b)(2) of this section a State
may conduct a non-in-person (remote)
renewal or reissuance if the State
continues to retain the images or copies
of source documents presented by the
individual and used by the State to
issue the REAL ID driver’s license or
identification card, and no source
information has changed since prior
issuance.
(i) The State must re-verify
information from the images or copies of
the source documents used as the basis
for issuance of the original REAL ID
driver’s license or identification card at
each renewal and reissuance in
accordance with § 37.13 of this part.

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(ii) Any information that has changed
since prior issuance (such as name or
address) must be established through
presentation of an original source
document as provided in Subpart B, and
must be verified, or, in the case of
address, validated.
(iii) The process described in
paragraph (b) of this section applies any
time a driver’s license or identification
card is renewed or reissued for any
purpose.
(2) In-person renewals. States must
require holders of REAL ID driver’s
licenses and identification cards to
renew their driver’s licenses and
identification cards with the State DMV
in person, every other renewal cycle, or
at least once every 16 years.
(i) The State shall take an updated
photograph of the applicant, at least at
every other renewal.
(ii) The States must re-verify
information and source documents used
as the basis for issuance of the original
REAL ID driver’s license or
identification card, or must require the
individual to resubmit documents and
verify those documents.
(iii) Holders of temporary REAL ID
driver’s licenses and identification cards
must renew their driver’s license or
identification card in person each time,
and present evidence of continued
lawful status.
Subpart C—Other Requirements

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§ 37.31

Source document retention.

States must retain copies of the
application, declaration and source
documents presented under § 37.11 of
this part.
(a) States that choose to keep paper
copies of source documents must retain
the copies for a minimum of seven
years.
(b) States that choose to transfer
information from paper copies to
microfiche must retain the microfiche
for a minimum of seven years.
(c) States that choose to keep digital
images of source documents must retain
the images for a minimum of ten years.
(1) States currently using black and
white imagers must replace them with
color imagers by December 31, 2011.
(2) States using digital imaging to
retain source documents, must use the
AAMVA Digital Image Exchange
Program, or a standard other than
AAMVA that has interoperability with
the AAMVA standard, so that the digital
images are retained in electronic storage
in a transferable format.
(i) Photo images must be stored in the
Joint Photographic Experts Group (JPEG)
2000 standard for image compression, or
a standard that is interoperable with the
JPEG standard.

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(ii) Document and signature images
must be stored in a compressed Tagged
Image Format (TIF), or a standard that
is interoperable with the TIF standard.
(iii) All images must be linked to the
applicant through the applicant’s
unique identifier assigned by the DMV.
§ 37.33 Database connectivity with other
States.

(a) States must maintain a State motor
vehicle database that contains, at a
minimum—
(1) All data fields printed on driver’s
licenses and identification cards issued
by the State, individual serial numbers
of the card, and Social Security Number;
and
(2) Motor vehicle driver’s histories,
including motor vehicle violations,
suspensions, and points on driver’s
licenses.
(b) States must provide to all other
States electronic access to information
contained in the motor vehicle database
of the State, in a manner approved by
DHS pursuant to this regulation. This
section does not intend to supersede
DOT requirements codified at 49 CFR
parts 383 and 384.
(c) Prior to issuing a REAL ID driver’s
license or identification card, States
must check with all other States to
determine if any State has already
issued a REAL ID driver’s license or
identification card to the applicant.
(1) If the State receives confirmation
that the individual currently holds a
REAL ID driver’s license or
identification card issued by another
State, the receiving State must:
(i) Take measures to confirm that the
person has taken steps to terminate, or
has terminated, the REAL ID driver’s
license or identification card issued by
the prior State.
(ii) Require the person to surrender
the REAL ID driver’s license or
identification card issued by another
State, unless the person signs a
declaration under penalty of perjury
pursuant to 28 U.S.C. 1746 stating that
the driver’s license or identification
card was lost or stolen.
(iii) If the person signs a declaration
stating that the driver’s license or
identification card was lost or stolen in
another State, the State receiving the
declaration must inform the State that
issued the driver’s license or
identification card that it has been
reported as lost or stolen.
(iv) The State that issued the driver’s
license or identification card reported as
lost or stolen must record that
information on its database and
terminate that driver’s license or
identification card upon notice from
another State.

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Subpart D—Security at DMVs and
Driver’s License and Identification
Card Production Facilities
§ 37.41

Comprehensive security plan.

(a) States must prepare a
comprehensive security plan for all
State DMV offices and driver’s license/
identification card storage and
production facilities, and submit it as
part of its application for certification.
(b) At a minimum, the security plan
must address—
(1) Physical security for the following:
(i) Buildings used to manufacture or
issue driver’s licenses and identification
cards.
(ii) Storage areas for card stock and
other materials used in card production.
(iii) Reasonable administrative,
technical, and physical safeguards to
protect the security, confidentiality, and
integrity of the physical location and the
personal information stored and
maintained in DMV records and
information systems.
(2) Document and physical security
features for the face of the card,
consistent with the requirements of
§ 37.15, including a description of the
State’s use of biometrics, and the
technical standard utilized, if any;
(3) Access control, including the
following:
(i) Employee identification and
credentialing, including access badges.
(ii) Employee background checks, in
accordance with § 37.45.
(iii) Controlled access systems.
(4) Periodic training requirements
in—
(i) Fraudulent document recognition,
approved by DHS, for appropriate
employees engaged in the issuance of
driver’s licenses and identification
cards.
(ii) Domain awareness training
including threat identification;
(5) Privacy policy regarding personal
information collected and maintained
by the DMV;
(6) Emergency/incident response
plan;
(7) Internal audit controls;
(8) The State’s standards and
procedures for safeguarding information
collected, stored, or disseminated for
purposes of complying with the REAL
ID Act, including procedures to prevent
unauthorized access, use, or
dissemination of applicant information
and images of source documents
retained pursuant to the Act and
standards and procedures for document
retention and destruction;
(9) Procedures to revoke and
confiscate driver’s licenses or
identification cards fraudulently issued
in another State;

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(10) An affirmation that the State
possesses both the authority and the
means to produce, revise, expunge, and
protect the confidentiality of REAL ID
driver’s licenses or identification cards
issued in support of Federal, State, or
local criminal justice agencies or
programs that require special licensing
or identification to safeguard persons or
support their official duties. These
procedures must be designed in
coordination with the key requesting
authorities to ensure the procedures are
effective and to prevent conflicting or
inconsistent requests. In order to
safeguard the identities of individuals,
these procedures should not be
discussed in the plan and States should
make every effort to prevent disclosure
to those without a need to know about
either this confidential procedure or any
substantive information that may
compromise the confidentiality of these
operations. The appropriate law
enforcement official and United States
Attorney should be notified of any
action seeking information that could
compromise Federal law enforcement
interests; and
(11) Other information as determined
by DHS.
§ 37.43

Physical security of DMV facilities.

(a) States must ensure the physical
security of locations where driver’s
licenses and identification cards are
produced, and the security of document
materials and papers from which
driver’s licenses and identification cards
are produced. State compliance with a
performance-based standard approved
by DHS will satisfy this requirement.
(b) States must describe the security
of DMV facilities as part of their
comprehensive security plan, in
accordance with § 37.41.

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§ 37.45 Background checks for covered
employees.

(a) Scope. States are required to
subject persons who have the ability to
affect the recording of any information
required to be verified, or who are
involved in the manufacture or
production of REAL ID driver’s licenses
and identification cards, or who have
the ability to affect the identity
information that appears on the driver’s
license or identification card (covered
employees), to a background check. The
background check must include, at a
minimum, the validation of references
from prior employment, a name-based
and fingerprint-based criminal history
records check, a financial history check,
and a lawful status check. States shall
describe their background check process
as part of their comprehensive security
plan, in accordance with § 37.41. This

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section also applies to contractors
utilized in covered positions under this
paragraph.
(b) Background checks. States must
ensure that any covered employee or
prospective employee under paragraph
(a) of this section is provided notice that
he or she must undergo a background
check and the contents of that check,
before employment in a covered
position commences. For persons
employed in covered positions on the
effective date of this regulation, States
must complete the background check
described in this section prior to that
person’s participation in the issuance of
any REAL ID driver’s licenses or
identification cards that comply with
this part.
(1) Criminal history records check.
States must conduct a name-based and
fingerprint-based criminal history
records check (CHRC) using, at a
minimum, the FBI’s NCIC and IAFIS
database and State repository records on
each covered employee or prospective
employee identified in paragraph (a) of
this section, and determine if the
covered employee or prospective
employee has been convicted of any of
the following disqualifying crimes:
(i) Permanent disqualifying criminal
offenses. An applicant has a permanent
disqualifying offense if convicted, or
found not guilty by reason of insanity,
in a civilian or military jurisdiction, of
any of the felonies set forth in 49 CFR
1572.103(a).
(ii) Interim disqualifying criminal
offenses. The criminal offenses
referenced in 49 CFR 1572.103(b) are
disqualifying, if the applicant was either
convicted of those offenses in a civilian
or military jurisdiction, or admits
having committed acts which constitute
the essential elements of any of those
criminal offenses within the seven years
preceding the date of application; or the
applicant was released from
incarceration for the crime within the
five years preceding the date of
application.
(iii) Under want or warrant. An
applicant who is wanted or under
indictment in any civilian or military
jurisdiction for a felony referenced in
this section is disqualified until the
want or warrant is released.
(iv) Determination of arrest status.
When a fingerprint-based check
discloses an arrest for a disqualifying
crime referenced in this section without
indicating a disposition, the State must
determine the disposition of the arrest.
(v) Waiver. The State may establish
procedures to allow for a waiver of the
requirements of (b)(1)(ii) of this section
under circumstances determined by the
State.

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(2) Financial history check. The State
must conduct a financial history check
on all covered employees and
prospective employees identified under
paragraph (a) of this section in a manner
consistent with the Fair Credit
Reporting Act. An employee’s financial
history shall be considered for
informational purposes by the States
only and shall not be considered a
Federal disqualifier.
(3) Lawful status check. The State
shall subject each covered employee to
a lawful status check through SAVE.
(4) Disqualification. If results of the
State’s CHRC reveal a permanent
disqualifying crime under paragraph
(b)(1)(i) or an interim disqualifying
offense under paragraph (b)(1)(ii); or the
results of the lawful status check are
unsatisfactory; the covered employee or
prospective employee may not be
employed in a position described in
paragraph (a) of this section.
(c) Appeal. An individual who has
been informed by the State that he or
she may not be employed in a covered
position as identified in paragraph (a) of
this section as a result of the
background check must be so informed
and provided the opportunity to appeal.
If a State determines that the individual
does not meet the standards for the
CHRC, is not trustworthy based on the
financial history check, or does not have
lawful status in the United States based
on the lawful status check, the State
must so inform the employee of the
determination to allow the individual
an opportunity to appeal to the State.
Appeals based on the lawful status
check should be appealed to DHS.
Subpart E—Procedures for
Determining State Compliance
§ 37.51 Compliance—general
requirements.

(a) To be in compliance with the
REAL ID Act of 2005, 49 U.S.C. 30301
note, States must be meeting each and
every standard of subparts A through D
of this part, or have a REAL ID program
that DHS has determined to be
comparable to the standards of subparts
A through D. DHS will find that a State
is in compliance with REAL ID only if
the State’s certification submitted
pursuant §§ 37.55 and 37.57 of this part
establishes that all REAL ID driver’s
licenses and identification cards issued
by the State on or after May 11, 2008
will meet the standards required under
the REAL ID Act and this part.
(b) States must meet the requirements
of subparts A through D of this part no
later than May 11, 2008. In order to
satisfy this requirement, a State must
demonstrate compliance with this part

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by submitting a certification and the
documents specified in § 37.41 no later
than February 10, 2008.
(c) States must demonstrate continued
compliance by submitting a certification
and documents specified at § 37.57 of
this part as required by DHS.

(c) States shall supply the
comprehensive security plan under
§ 37.41 of this part and a quarterly
accounting of the State’s use of its
exceptions process, and the report
required by § 37.15(f)(1) to DHS as part
of the annual certification.

§ 37.55

§ 37.59

Initial State certification.

States seeking DHS’s determination
that its program for issuing REAL ID
driver’s licenses and identification cards
is meeting the requirements of this part,
must provide DHS with the following
documents and information no later
than February 10, 2008:
(a) A detailed narrative description of
the State’s program for issuing REAL ID
driver’s licenses and identification
cards, including a description of the
State’s exceptions processing under
§ 37.11(h), the State’s waiver processes
under § 37.45(b)(1)(v).
(b) The State’s Comprehensive
Security Plan under § 37.41.
(c) A letter from the Attorney General
of the State confirming that the State has
the legal authority to impose
requirements necessary to meet the
standards established by this part.
(d) A copy of all statutes, regulations,
administrative procedures and
practices, and other documents that
demonstrate the State’s implementation
program for this part.
(e) A certification by the Governor of
the State reading as follows:
I, Governor of the State (Commonwealth) of
__, do hereby certify that the State
(Commonwealth) has implemented a
program for issuing driver’s licenses and
identification cards in compliance with the
requirements of the REAL ID Act of 2005, as
further defined in 6 CFR part 37, and intends
to remain in compliance with these
regulations through [the last date of the
current year].
§ 37.57

Annual State certifications.

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Prior to January 1 of each year, each
State must review its compliance with
this part and certify to the Department
of Homeland Security as prescribed in
paragraph (a) of this section.
(a) The certification must consist of a
Statement signed by the Governor of the
State, reading as follows:
I (name of certifying official), (position
title), of the State (Commonwealth) of __, do
hereby certify that the State (Commonwealth)
has continuously been in compliance with all
requirements of the REAL ID Act of 2005 as
further defined in 6 CFR part 37, since [the
first day of the current Federal fiscal year],
and intends to remain in compliance through
[the last date of the current year].

(b) States shall provide DHS any
changes to the information requiring
certification, at least 30-days prior to the
changes going into effect in the State.

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DHS reviews of State compliance.

States’ REAL ID programs will be
subject to DHS review to determine
whether or not the State meets the
requirements for compliance with this
part.
(a) General inspection authority.
States must cooperate with DHS’s
review of the State’s compliance during
initial reviews, annual reviews, and at
any other time. The State must provide
any information requested by DHS,
must permit DHS to conduct
inspections of any and all sites
associated with the application and
verification process, manufacture, and
production of driver’s licenses or
identification cards, and must allow
DHS to conduct interviews of the State’s
employees or contractors who are
involved in the application and
verification process, manufacture and
production of driver’s licenses or
identification cards.
(b) Preliminary DHS determination.
After DHS reviews a State’s certification
and related documents, DHS will make
a preliminary determination on whether
the State has satisfied the requirements
of this part. If, after review, DHS makes
a preliminary determination, either that
the State has not submitted a complete
certification, or that the State does not
meet one or more of the minimum
standards for compliance under this
part, DHS will inform the State of this
preliminary determination.
(c) State reply. The State will have up
to 30 calendar days to respond to the
preliminary determination. The State’s
reply must explain what corrective
action it either has implemented, or
intends to implement, to correct the
deficiencies cited in the preliminary
determination or, alternatively, detail
why the DHS preliminary determination
is incorrect.
(1) The State must provide
documentation of corrective action.
Corrective action must be adequate to
correct the deficiencies noted in the
program review and be implemented on
a schedule mutually agreed upon by
DHS and the State.
(2) Upon request by the State, an
informal conference will be provided
during this time.
(d) Final DHS determination. If, after
reviewing a timely response by the State
to the preliminary determination, DHS
makes a final determination that the

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State is not in compliance with this
part, DHS will notify the State of the
final determination. In making its final
determination, DHS will take into
consideration the corrective action
either implemented, or planned to be
implemented, in accordance with the
mutually agreed upon schedule.
(e) State’s right to judicial review. Any
State aggrieved by an adverse decision
under this section may seek judicial
review under 5 U.S.C. chapter 7.
§ 37.61 Results of compliance
determination.

(a) DHS will determine that a State is
not in compliance with this part when
it—
(1) Fails to submit the certification as
prescribed in this subpart; or
(2) Does not meet one or more of the
standards of this part, as established in
a final determination by DHS under this
section.
(b) A State shall be deemed in
compliance with this part when DHS
issues a determination that the State
meets the requirements of this part.
§ 37.63

Extension of deadline.

A State may request a deadline
extension based on the lack of a final
REAL ID regulation to guide its
implementation by filing a request with
the Secretary no later than October 1,
2007.
(a) The request for consideration shall
state that the State needs sufficient time
to consider the final rule and will not
otherwise be in a position to comply
with the final rule.
(b) The Secretary has determined that,
in the absence of extraordinary
circumstances, such an extension
request will be deemed justified for a
period lasting until, but not beyond,
December 31, 2009, providing that the
requesting State complies with the
requirements of this section.
(c) Any State receiving an extension
for expedited consideration shall submit
to the Secretary no later than six months
from the date on which the extension is
granted a Compliance Plan detailing
milestones, schedules, and budgets
allowing it to meet the requirements of
the final regulation.
(d) After the Compliance Plan is
submitted, the Secretary may require
such progress reports or other
information as the Secretary determines
to be necessary to evaluate the State’s
progress toward compliance by
December 31, 2009.
§ 37.65
part.

Effect of failure to comply with this

(a) After May 11, 2013, any driver’s
license or identification card issued by

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any State that DHS determines was not
in compliance with this part when the
driver’s license or identification card
was issued, is not acceptable as
identification by Federal agencies for
official purposes.
(b) If a driver’s license or
identification card issued when a State
was in compliance with these
regulations is renewed, the renewed
driver’s license or identification card is
acceptable by Federal agencies for
official purposes, only if the State is in

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compliance with these regulations at the
time of renewal.
Subpart F—Non-REAL ID Driver’s
Licenses and Identification Cards
§ 37.67 Non-REAL ID driver’s licenses and
identification cards.

States that issue driver’s licenses and
identification cards that do not satisfy
the standards of this part after May 11,
2008, must ensure that such driver’s
licenses and identification cards—
(a) Clearly state, on their face in bold
lettering, as well as in the machine

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readable zone if the card contains one,
that they may not be accepted by any
Federal agency for Federal identification
or other official purpose; and
(b) Have a unique design or color
indicator that clearly distinguishes them
from driver’s licenses and identification
cards that meet the standards of this
part.
Michael Chertoff,
Secretary.
[FR Doc. 07–1009 Filed 3–8–07; 8:45 am]
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