1. • Federal Rulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.
2. • Fax: 866-466-5370.
3. • Mail: Paper, disk or CD-ROM submissions can be mailed to the Department of Homeland Security, Attn: NAC 1-12037, Washington, D.C. 20528.

The Department of Homeland Security (DHS) invites interested persons to participate in this rulemaking by submitting written comments or data, and has requested comments on specific portions of this rulemaking as described in section VI below. We also invite comments relating to the economic, environmental, energy, or federalism impacts that might result from this rulemaking action. See ADDRESSES above for information on where to submit comments.

With each comment, please include your name and address, identify the docket number at the beginning of your comments, and give the reason for each comment. The most helpful comments reference a specific portion of the rulemaking, explain the reason for any recommended change, and include supporting data. You may submit comments and material electronically, by fax, or by mail as provided under ADDRESSES, but please submit your comments and material by only one means. If you submit comments by mail, submit them in two copies, in an unbound format, no larger than 8.5 by 11 inches, suitable for copying and electronic filing.

If you want DHS to acknowledge receipt of comments submitted by mail, include with your comments a self-addressed, stamped postcard on which the docket number appears. We will stamp the date on the postcard and mail it back to you.

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 FOR FURTHER INFORMATION CONTACT section.

Upon receipt of such comments, DHS will not place the comments in the public docket and will handle them in accordance with applicable safeguards and restrictions on access. DHS will hold them in a separate file to which the public does not have access, and place a note in the public docket that DHS has received such materials from the commenter. If DHS receives a request to examine or copy this information, DHS will treat it as any other request under the Freedom of Information Act (FOIA) (5 U.S.C. 552)

and the Department of Homeland Security’s (DHS’) FOIA regulations found in 6 CFR Part 5.

Reviewing Comments in the Docket

Please be aware that anyone is able to search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review the applicable Privacy Act Statement published at www.regulations.gov. You may also review the comments in the public docket on the Internet at www.regulations.gov.

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.

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

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

I. Background

A. Statutory Authority

B. Consultation with States, Non-Governmental Organizations, and the

Department of Transportation

C. Summary of the Proposed Rule

II. Analysis of this Proposed Rule

A. Scope and Applicability

1. Definition of "Official Purpose"

2. Definition of "REAL ID driver’s license or identification card"

3. Definition of "Identification Card"

B. Compliance Period

C. Privacy Considerations

D. Document Standards for Issuing a REAL ID Driver’s License or Identification Card

1. Documents Required for Proving Identity

2. Additional Documents Considered and Rejected for Proof of Identity

3. Other Documentation Requirements

E. Verification of Information Presented

1. Verification of "Address of Principal Residence"

2. Verification of Identity Information

3. Verification of Lawful Status

4. Verification of Date of Birth

5. Verification of Social Security Account Number or Ineligibility

6. Connectivity to Systems and Databases Required for Verification

F. Exceptions Processing for Extraordinary Circumstances

G. Temporary Driver’s Licenses and Identification Cards

H. Minimum Driver’s License or Identification Card Data Element Requirements

1. Full Legal Name

2. Driver’s License or Identification Number

3. Digital Photograph

4. Address of Principal Residence

5. Signature

6. Physical Security Features

7. Privacy of the Information Stored on the Driver’s License or Identification Card

8. Machine-Readable Technology

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 Analysis

The Act sets forth minimum document requirements, minimum driver’s license and identification card issuance standards, and other requirements, including the following--

1. • 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. • 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;

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.

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 Association (NGA), the National Conference of State Legislatures (NCSL), and the American Association of Motor Vehicle Administrators (AAMVA), which aggregated responses from 48 jurisdictions impacted by REAL ID, including 46 States, American Samoa, and the District of Columbia. DHS also met with various non-governmental organizations (NGOs), particularly civil rights, privacy and religious groups. The States and NGOs raised a series of concerns about the requirements mandated under the Act. A summary of these concerns is outlined below. DHS addresses each of these concerns in the discussion of the proposed requirements under this rule in section II.

One of the first issues of concern to the States was the brief period for compliance. There was concern that DHS would interpret the Act in such a way as to require that all driver’s licenses and identification cards nationally be brought into compliance with the Act by May 2008, an impossible task according to the States. The States instead suggested a "date forward" approach, which we have proposed to adopt as a phase-in period through May 2013.

The detailed requirements of the Act, particularly requirements for original documents and proof of principal residence, also raised State concerns that individuals, through no fault of their own, might not be able to meet certain requirements of the Act. The States advocated for an exceptions process to accommodate certain circumstances (victims of natural disasters such as Hurricanes Katrina and Rita who no longer have certain documents, or elderly individuals with no birth certificate, for example). We understand these concerns and therefore propose that the States adopt an exceptions process in their Departments of Motor Vehicles (DMVs) that will be monitored by the State and included as part of the State’s certification process to DHS. This exception process would include any difficulties arising from attempts to verify birth information for individuals born before 1935, who, due to various considerations, may not have been issued birth certificates.

The Act requires States to subject certain individuals involved in the manufacture and production of driver’s licenses and identification cards to appropriate background checks. The States have suggested to DHS that, due to the unique structure of each State’s DMV system, the identification of positions that should be subject to this requirement be left up to the States. DHS agrees with this proposal. The States have also proposed that new hires be allowed to begin work at the DMVs while their background check is pending. DHS understands that the States must have flexibility in their hiring, and therefore proposes that States place new employees in positions that are not subject to the background check until the check is complete and satisfaction of employment conditions for the covered position is determined.

The States have indicated to DHS that the Act will lead to an increase in the number of required in-person visits to DMVs. Generally speaking, the States have sought to utilize alternate service channels (particularly the internet and services by mail) to reduce the required number of in-person visits to DMVs, as a means of reducing State costs and improving service to customers. The States have, therefore, expressed particular concerns with the renewal process under REAL ID. DHS understands these concerns and is therefore proposing that States continue their remote renewal procedures, as long as they establish a procedure to verify the identity of individuals applying for renewal remotely, maintain images of the source documents the individual used to obtain a REAL ID driver’s license or identification card, and establish a procedure to re-verify the information on the source documents retained by the State. DHS proposes, however, that individuals with temporary REAL ID driver’s licenses or temporary identification cards renew their documents in person, in order to present evidence of continued lawful status.

DHS proposes to issue REAL ID regulations that create minimum standards for State driver’s licenses and identification cards that Federal agencies can accept for official purposes on or after May 11, 2008. Under this proposal, States must certify that they are in compliance with these requirements, and DHS must concur, before the driver’s licenses and identification cards that the States issue may be accepted by Federal agencies for official purposes on or after May 11, 2008. Because DHS recognizes that not all driver’s licenses and identification cards can be reissued by May 11, 2008, the proposal provides a five-year phase-in period for driver’s license or identification card

renewals. All driver’s licenses and identification cards that are intended to be accepted for official purposes as defined in these regulations must be REAL ID licenses and identification cards by May 11, 2013

Key features of the proposal include:

1. • 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.
2. • 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.
3. • 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).
4. • Security features on the card. The proposal contains standards for physical security features on the card designed to prevent tampering, counterfeiting or

DHS understands that at present an individual may hold active driver’s licenses in multiple jurisdictions. Although DHS is not regulating issuance of non-REAL ID driver’s licenses beyond what is required in the REAL ID Act, DHS wishes to further the concept of "one driver, one record, one record of jurisdiction" and seeks comment on how the REAL ID Act may be implemented to discourage the issuance of multiple non-REAL ID driver’s licenses to an individual, or what steps States can take to ensure individuals are not holding multiple driver’s licenses from multiple States.

1. Definition of "official purpose"

Section 201(3) of the Act provides that the term "official purpose" "includes but is not limited to accessing Federal facilities, boarding Federally-regulated commercial aircraft, entering nuclear power plants, and any other purposes that the Secretary shall

determine." DHS proposes to limit the regulatory definition of "official purpose," at this time, to those purposes expressly stated in the Act – accessing Federal facilities, boarding commercial aircraft, and entering nuclear power plants. DHS, under the discretionary authority granted to the Secretary of Homeland Security under the Act, may expand this definition in the future. DHS seeks comment on the proposed scope of "official purpose," and how DHS could expand this definition to other federal activities.

DHS considered including the acquisition of Federally-issued identification documents, such as a Transportation Worker Identification Card (TWIC), military Common Access Card (CAC), passport, or PASSport card within the proposed definition of "official purpose." To do so would be consistent with the concept of strengthening the reliability of identity documents, one of the primary objectives of the Act. However, since no State would be required to have all of its citizens possess Real ID driver’s licenses and identification cards until May 2013, DHS concluded that it would be premature to require Federal agencies to accept only Real ID driver’s licenses and identification cards during the phase-in period and that the imposition of such a requirement could inhibit individuals from obtaining these necessary forms of Federal identification.

Federal agencies themselves do not currently examine identification from all individuals seeking to board regulated commercial aircraft or to enter nuclear power plants. In the case of aircraft, often it is aircraft operators that examine driver’s licenses or other identification credentials of individuals seeking entry to the sterile area of an airport. However, they do so in compliance with requirements in security programs issued pursuant to TSA regulations. DHS interprets the language of the REAL ID statute

to mean that when nongovernmental entities require identification for the scope of activities considered "official purposes" in compliance with Federal requirements, and an individual presents a driver’s license or DMV-issued identification card, the REAL ID Act’s federal acceptance requirements would also apply to these nongovernmental entities.

These regulations are not intended to change current admittance practices at Federal facilities. If a Federal facility does not currently require presentation of photo identification prior to entry, the Act and these proposed regulations would not require that process to change. Similarly, if a Federal facility currently accepts identification other than a State-issued driver’s license or identification card, the Act and these proposed regulations do not require that the agency refuse to accept such other forms of identification. If the individual intends to use a State-issued driver’s license or identification card, however, it must be one that is issued by a State that is complying with the REAL ID Act.

2. Definition of "REAL ID driver’s license or identification card"

Throughout this proposed rule, driver’s licenses and identification cards issued under these regulations that Federal agencies may accept for official purposes are referred to as "REAL ID driver’s licenses and identification cards." The term "REAL ID driver’s licenses and identification cards" includes driver’s licenses and identification cards issued by State DMVs (or other State agencies with comparable responsibility for issuing driver’s licenses and identification cards) to U.S. citizens and Lawful Permanent Residents (LPRs) of the United States for a maximum renewable period of eight years. The term "REAL ID driver’s licenses and identification cards" also includes driver’s

licenses and identification cards acceptable for official purposes that are issued to aliens legally present in the United States for a finite period of time, upon verification of their current lawful status for the period of their authorized length of stay, or for one year, if no length of stay is specified. In instances where the proposed regulation discusses these temporary driver’s licenses and identification cards independently, these types of REAL ID licenses and identification cards are referred to as "temporary REAL ID driver’s licenses and identification cards."

3. Definition of "identification card"

Section 201(2) of the Act defines "identification card" to mean "a personal identification card, as defined in section 1028(d) of title 18 United States Code, issued by a State." In turn, 18 U.S.C. 1028(d) defines this term, in pertinent part, to mean "a document made or issued by or under the authority of … a State [or] a political subdivision of a State … which, when completed with information concerning a particular individual, is of a type intended or commonly accepted for the purpose of identification of individuals[.]" Section 201(2), by its express terms, could cover any identification card issued by or under the authority of a State, including identification cards for State-chartered universities and colleges, and cards issued by State agencies to obtain public benefits. At this time, DHS is limiting the scope of this definition to identification cards issued by State DMVs or other State offices with comparable responsibility for issuing driver’s licenses.

DHS believes that these additional documents mentioned above are not currently accepted as identification documents to the same degree as State-issued driver’s licenses and identification cards issued by a State DMV. In addition, it would be unduly

burdensome at this time for DHS to require that the issuers of these additional documents comply with these proposed standards, since DMVs have been considering the Act’s requirements for some time, and it is likely that universities and other State entities have not.

Section 202(a)(3) of the Act provides that, "[b]eginning 3 years after the date of enactment of this division, a Federal agency may not accept, for any official purpose, a driver’s license or identification card issued by a State to any person unless the State is meeting the requirements of this section." The Act further states that DHS "shall determine whether a State is meeting the requirements of [the Act] based on certifications made by the State to the Secretary." Id., (a)(2). DHS, the Department charged with implementing and enforcing the REAL ID Act requirements for identification standards, interprets the compliance provision to mean that effective on May 11, 2008, Federal officials will be prohibited from accepting State-issued driver’s licenses and identification cards for official purpose unless the State has submitted the required certification or extension application to DHS and DHS has determined that the State is meeting the requirements of the Act. DHS is proposing under this rule to find that a State certification is sufficient for compliance under the Act if the State has established a program that ensures the State’s DMVs will begin issuing driver’s licenses and identification cards that meet the requirements of the Act and standards proposed under this regulation beginning May 11, 2008. DHS does not interpret the Act as requiring the States to recall and reissue all driver’s licenses and identification cards by May 11, 2008. Rather, States will be able to replace all driver’s licenses and identification cards with

REAL ID driver’s licenses and identification cards intended to be accepted for official purposes by May 11, 2013.

Accordingly, DHS proposes the following compliance requirements:

(1) Each State must submit its certification package to DHS on its REAL ID driver’s license and identification card programs no later than February 10, 2008, 90 days before the May 11, 2008 compliance date required under the Act. DHS strongly encourages States to communicate their intent to certify compliance or request an extension by October 1, 2007;

(2) DHS will not find that a State is meeting the requirements of the Act if the State’s certification does not demonstrate that the all REAL ID driver’s licenses and identification cards issued by the State on or after May 11, 2008, will meet the standards required under the Act and proposed under these regulations, unless the State has sought and received an extension;

(3) For unexpired driver’s licenses and identification cards issued prior to May 11, 2008, DHS proposes a five-year phase-in period to allow individuals to apply for and receive new driver’s licenses and identification cards that comply with these rules. These driver’s licenses and identification cards would be acceptable for official purposes until they expire, or until the phase-in period ends, on May 10, 2013—whichever is earlier. Driver’s licenses and identification cards issued before May 11, 2008 that do not expire until after the phase-in period ends would have to be exchanged for driver’s licenses and identification cards issued under the new rules in order to be accepted by Federal agencies for official purposes after May 10, 2013.

If a driver’s license or identification card that would not otherwise expire until after May 11, 2008 needs to be reissued by a State prior to its expiration date, DHS is proposing that the driver’s license or identification card must meet the new standards at the time it is reissued. This reissuance would occur, for example, if a driver’s license or identification card has been lost or stolen and needs to be replaced, or if changes in information occur which would cause the DMV to issue a new driver’s license or identification card.

Under section 205(b) of the Act, DHS may grant an extension of time to meet the requirements of the Act if the State provides adequate justification. DHS recognizes that many States need a final rule in order to guide their implementation efforts. Many States have informed DHS that, absent sufficient time to consider and act upon the final rule, the States will not be in a position to comply with the Act and the final rule. In recognition of this fact, DHS is establishing a mechanism where States can request an expedited extension of the compliance deadline. States may request an extension based on the lack of a final REAL ID rule by filing such a request no later than October 1, 2007. Based on information already received by DHS, and absent extraordinary circumstances, an extension request will be deemed justified for a period lasting until, but not beyond, December 31, 2009.

Under this provision of the Act, DHS also intends to issue compliance guidance to the States. This guidance will set forth benchmarks or best practices against which progress toward full compliance will be measured and to assist States in drafting the certification packages. As proposed in this rule, DHS would require submission of certifications no later than February 10, 2008, but the Department strongly encourages

States to submit certification packages by October 1, 2007. State certification packages should include milestones, schedules, and estimated resources needed to meet all the requirements of the final rule no later than May 11, 2008. States will resubmit and DHS will re-evaluate State plans on an annual basis until all requirements of this rule are met. DHS welcomes comments from the States on appropriate benchmarks for measuring progress toward meeting the requirements of this rule and on specific resource and schedule constraints in meeting these benchmarks.

The public has long been accustomed to providing personal information for the purpose of obtaining driver’s licenses and identification cards and to having this information printed on driver’s licenses. Most States already include this information in a machine readable technology (MRT). With the enactment of the REAL ID Act, however, there has been increased attention to the privacy ramifications involving the information that will appear on the licenses and identification cards and the exchange of information. Some have raised concerns that the Act could create an increased risk of identity theft and erode privacy, or be a stepping-stone to a national identity card.

A frequently-heard concern relates to the amount of additional information the Federal Government will have about driver’s license holders and what the Federal Government will do with that data. In fact, however, neither the Real ID Act nor these proposed regulations gives the Federal Government any greater access to information than it had before. Moreover, there is no information about a licensee that the Federal Government will store that it is not already required to store.

This section of the NPRM will summarize the requirements of the Act that potentially have the greatest impact on privacy, the extent to which those requirements change current State driver’s licensing practices, and how DHS intends to address privacy concerns regarding the Act. This analysis will address the three key privacy issues posed by the Act: (1) the connectivity of the databases; (2) the protection of the personal information stored in the State databases; and (3) the protection of the personal information stored on machine readable technology on the DL/IDs. We invite comments on whether the steps outlined below and otherwise discussed within the NPRM are appropriate and adequate.

1. Connectivity of Databases Mandated by the Act.

One voiced privacy concern regarding the Act is that it will create a national identity card and centralized database on all drivers. This concern stems from the

provisions in the Act requiring that the individual States electronically verify application information against Federal databases and provide State-to-State access to verify that each applicant only holds a valid license in one jurisdiction. DHS envisions that the operation of both the State data query of Federal reference databases and the State-to-State data exchanges will be left to the States, as is currently the practice in driver’s licensing.

a. The State Data Query of Federal Reference Databases

Section 202(c)(3)(A) of the REAL ID Act requires that, before issuing a license or ID, a State verify with the issuing agency, the "issuance, validity, and completeness of each document required to be presented." Given that it is very difficult to validate that the source documents provided by applicants are genuine and have not been altered, certain identifying data contained in the source documents will be checked against authoritative Federal databases as described in more detail in section II.E. of the NPRM.

As described in section II.E., many State DMVs already access one or more of these databases as part of their current licensing processes. The fact, however, that this

data verification may now be done by all 56 jurisdictions heightens privacy concerns. The proposed rule seeks to address many of these issues by leaving the operation of this data query, including the development of the business rules, to the States. The rule proposes to require individual States to document their business rules for reconciling data quality and formatting issues and urges States to develop best practices and common business rules by means of a collective governance structure.

A very important example of how administration of this data query will be left to the States is the commitment by DHS to support the development of a "federated querying service" to enable the States to access the Federal reference databases in a timely, secure, and cost-effective manner. (See section II.E.6.) Most States already query some of these reference databases either directly or indirectly through a portal provided by AAMVA. DHS is committed to the expedited development and deployment of a common querying service to facilitate the State DMV queries for REAL ID data verification.

To address the privacy concerns posed by such a service, the NPRM makes clear that this service will only enable State DMVs to query Federal systems.. The purpose of this federated querying service will be to minimize the impact of data verification on State DMV business processes and reduce the costs of data access. So while DHS will support the development of a querying service, it will not operate this service.

Moreover, use of this federated querying service will be voluntary, and States may choose to maintain or establish direct access to the reference databases; combine direct access with partial use of a common service; or verify applicant data against the reference databases in some other manner. The proposal by DHS to leave the operation

of the 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

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

A State uses both the NDR/PDPS and CDLIS to check a driver's record, and CDLIS to make certain that the applicant does not already have a CDL. Under these programs, as well as the REAL ID Act, the primary purpose of the State-to-State data exchange is to determine if the applicant is unqualified and the application fraudulent; the purpose is not specifically to verify the applicant’s identity.

DHS intends to work closely with the DOT, AAMVA, and the States to fulfill the requirements for State-to-State data exchange under the REAL ID Act, while also supporting privacy protections for this exchange. It has not been determined whether CDLIS or some other service will be the platform for the State-to-State exchange, but

regardless of the platform, it will be necessary for the States, working with DHS and DOT, to define the privacy protections for any State-to-State data exchange. DHS and DOT will collaborate with states on the privacy protections and access provisions for any State-to-State data exchange.

For example, with support from the DHS Privacy Office, representatives of the DMVs of California, Iowa, Massachusetts, and New York formed a Federation in July 2006 to identify a collective governance structure for the State-to-State data exchange and to begin to develop business rules, including privacy protections. This Federation has recently joined with the AAMVA REAL ID Steering Committee to develop an independent governance structure for the State-to-State data exchange. The development of privacy protective business rules, standards, and governance mechanisms will be central to ensuring that the privacy of license holders is protected.

1. 2. Protection of the Personal Information Stored in State Databases

As discussed at the outset of this section, the DPPA only addresses disclosure of motor vehicle record information but does not address the security of the motor vehicle record information or databases. The REAL ID Act, however, calls for DHS to issue regulations that "ensure the physical security of locations where licenses and identification cards are produced and the security of document materials and papers from which driver’s licenses and identification cards are produced."

DHS believes that this language provides authority for it to define basic security program requirements to ensure the integrity of the licenses and identification cards. The NPRM, therefore, proposes that each State submit as part of the REAL ID Act certification process a written, comprehensive, security plan. This requirement provides

an important safeguard for the personal information collected, maintained, and used by State motor vehicles offices, and it will help assure the public that their information is being handled appropriately. (See NPRM section II.K., below.)

As part of its security plan, each State is also required to outline how the State will protect the privacy of personal information collected, disseminated or stored in connection with the issuance of REAL ID licenses from unauthorized access, misuse, fraud, and identity theft. Each State must prepare these plans to cover all State DMV offices and driver’s license storage and production facilities, databases and systems and submit them as part of its comprehensive security plan.

The State’s certification should demonstrate that it has implemented best practices to protect the privacy of the license holder as guided by the fair information principles, which call for openness, individual participation (access, correction, and redress), purpose specification, data minimization, use and disclosure limitation, data quality and integrity, security safeguards, and accountability and auditing. These principles are widely recognized and embodied in numerous Federal, State, and international law and codes of practice.

DHS requests comments on recommended best practices for protecting the privacy of the personal information stored in the various State motor vehicle databases pertaining to the requirements under this Act.

3. Protection of the Personal Information Stored in the Machine Readable Technology

The REAL ID Act standardizes the minimum personal information on REAL ID driver’s licenses and identification cards, and mandates a machine readable technology. DHS is sensitive to the privacy concerns raised by the potential for non-governmental

third parties to collect and use the personal information on REAL ID driver's licenses and identification cards. As discussed in sections II.H.7-9, DHS is recommending that States use the PDF-417 2D bar code and DHS leans toward recommending that States protect the personally identifiable information stored in this 2D bar code by requiring encryption, if the operational complexity of deploying a nationwide encryption infrastructure to process access by law enforcement can be addressed.

4. Conclusion

In summary, DHS has proposed the following privacy protections in its implementing regulations for the REAL ID Act: (1) the State-to-State data exchanges and the State data query of Federal reference databases will be State operated and governed; (2) as part of the State certification process, States will be required to submit a comprehensive security plan, including information as to how the State implements fair information principles; and (3) while acknowledging the benefits of employing encryption of the personal information stored on the identification cards, we invite comment on its feasibility and costs and benefits to ensure that its costs do not outweigh the benefits to privacy.

These protections are intended to serve as a floor and do not prevent the States from using their own statutory or executive authority to provide additional privacy protections, consistent with Federal law, for the personal information stored on the REAL ID licenses and in their databases. DHS intends to work closely with the States as they develop the information 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.

Section 202(c)(1) and (2) of the Act requires that States issuing REAL ID driver’s licenses and identification cards obtain and verify from applicants documentation establishing--

(1) The applicant’s identity, through a photo identity document, or a non-photo identity document that includes full legal name and date of birth if a photo identity document is not available;

(2) Date of birth;

(3) Proof of SSN or ineligibility for an SSN;

(4) The applicant’s address of principal residence; and

(5) Lawful status in the United States.

Currently, every State has a different list of the kind and number of acceptable identification documents. Many are voluminous, encompassing 40 or 50 different types of documents. Many States utilize a "points" system where a combination of documents accumulating a sufficient number of "points" is deemed sufficient. Others use a tier system of "primary" and "secondary" documents, where, for example, a primary (such as a passport) and a secondary (such as an electric bill confirming an address) are required.

Driver’s licenses are the documents used most frequently to establish identity and often serve as source documents to obtain other forms of identification. If an individual obtains a fraudulent driver’s license or identification card, he or she can potentially engage in identity-based fraud, or even obtain access to areas and facilities where he or she might cause harm or otherwise pose a severe risk to security.

Based on these considerations, DHS has determined that many of the documents currently accepted by DMVs and proposed by others are not sufficient to address Congress’ direction to enhance national security. Many of the documents on these lists can easily be counterfeited, or their authenticity cannot be easily verified by the States–especially outside of the State of issuance. Therefore, this rule proposes a short list of acceptable documents for REAL ID and temporary REAL ID driver’s licenses and identification cards.

This approach offers several advantages from a security perspective. First, restricting the number of documents means that only the documents which DHS has found to be the most secure are chosen to demonstrate identity. Second, limiting the

number improves the chances that DMV employees will be able to distinguish valid from fraudulent documents because there will be fewer categories of documents with which they will need to be familiar. Third, a smaller list of documents increases the ease of verifying the documents independently, a related statutory requirement and one that will be very effective in reducing document and identity fraud.

Under the NPRM, DHS proposes that States require that applicants provide at least one of these documents in order to obtain a REAL ID driver’s license or identification card. States could add additional documentation requirements to satisfy their own objectives, but at least one of the documents listed below would have to be presented for every application. State agencies would not be required to comply with these requirements when issuing driver’s licenses or identification cards in support of the Federal Witness Security Program, codified at 18 U.S.C. 3521 et seq., or operations by other Federal, State, or local criminal justice agencies. In addition, when requested by an authorized representative of the Federal Witness Security Program or the criminal justice agency, States should remove from public records appropriate material relating to the prior or other identities of people involved in the operation and should take sufficient other steps, as directed by appropriate officials, to safeguard the identities of such persons.

1. Documents Required for Proving Identity. The list of acceptable documents that DHS proposes to establish identity for purposes of this regulation is as follows:

a. 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 certificate. However, section 202(c)(1)(A) of the Act states that a non-photo identity document is acceptable, if it includes the person’s full legal name and date of birth. DHS believes that this strongly suggests that Congress intended to maintain the use of the birth certificate for this purpose, recognizing the longstanding practice that birth certificates are used to obtain driver’s licenses and identification cards. DHS also understands that the vast majority of driver’s license and identification card applicants may only have a birth certificate available for this purpose; while U.S. citizens could use a U.S. passport, passports are currently held only by an estimated 25 percent of Americans.

To achieve security objectives, DHS is proposing that only certified copies of birth certificates that include the individual’s full name and can be verified by a State vital statistics, public health, or similar office would be acceptable. Interpreting this more broadly could result in a myriad of non-secure, non-verifiable documentation being used to obtain a driver’s license or identification card. Given the fact that Congress specified that the requirements enumerated in section 202(c)(11) were a "minimum," and given also the serious security implications associated with other implementation considerations included in Title II of the Act, DHS believes that it has the necessary authority to interpret this clause narrowly. Accordingly, this regulation interprets section 202(c)(1)(A) to mean only a certified copy of a birth certificate, and only one issued pursuant to the other requirements discussed in this section. These regulations do not preclude a State that accepts a birth certificate as the applicant’s identity document from requiring the individual to also present one or more forms of photo identification to substantiate his or her claimed identity.

A corollary issue considered by DHS is whether to recognize delayed birth certificates issued more than one year after the birth itself. While these cases are relatively few, States have established procedures in place for adjudicating these claims and require evidence to prove the actual occurrence of the birth prior to issuing the birth certificate. Therefore, delayed birth certificates lawfully issued by the States will also be acceptable as an identity document.

. d. Certificate of Naturalization, Form N-550 or N-570, or Certificate of Citizenship, Form N-560 or N-561. The Certificate of Naturalization is issued by the United States government as proof of a person having obtained U.S. citizenship through naturalization (a legal process of obtaining a new nationality). The Certificate of

Citizenship is proof of an individual having obtained U.S. citizenship through derivation or acquisition at birth. These documents are currently issued by DHS, printed on secure paper and have a photograph attached.

e. Unexpired Permanent Resident Card, Form I-551. This document, also known as a "green card," is issued by DHS to lawful permanent residents of the United States. The current version contains numerous security features, such as microline printing and a digital photograph. While most of these documents display an expiration date, the status itself does not expire.

f. Unexpired EAD, Form I-766 or Form I-688B. This document is issued by DHS to numerous categories of aliens in the United States who are lawfully authorized to work. The Form I-766 document is secure and difficult to counterfeit. The I-688B is expected to be phased out by 2008, but under this proposal would be acceptable until it is phased out.

g. Unexpired Foreign Passport with valid U.S. visa affixed. Valid unexpired passports from around the world have traditionally been acceptable documentation to establish identity in most, if not all, States. Most passports meet certain international standards criteria for security as defined by the International Civil Aviation Organization (ICAO). Security features for these documents include digital photographs, information stored on a machine-readable zone, and other forensic features. Some passports issued by foreign countries, however, do not have these features, and can even be hand-written. DHS was concerned about requiring the States to maintain knowledge of passport types from all around the world in order to be able to combat fraud. Further, DHS believes that DMVs, once they verify the visa, should be permitted to rely on the fact that, in issuing

the visa and admitting the alien to the United States, the Departments of State and Homeland Security have verified the passport to the extent required by the REAL ID Act (see section 202(c)(3)(A) of the Act, and subsection II.E. of this preamble, below)

Accordingly, States may accept a U.S. visa contained in a foreign passport as an acceptable means of authenticating identity. Not only are the U.S. visas secure and contain a photograph, issued U.S. visas can be verified against DOS systems electronically using the same connectivity required to verify U.S. passports.

DHS is aware that inclusion of a visa alone will leave a large group of aliens who have lawful status in the United States unable to obtain a document that is on this list. First, this includes those nonimmigrants admitted under section 217 of the Immigration and Nationality Act (the Visa Waiver Program, or VWP), as well as the Guam visa waiver program. However, these aliens are admitted solely for short periods of time, are prohibited from working in the United States, and are unlikely to qualify for a U.S. driver’s license under typical State residency requirements. Further, these aliens can typically use either the driver’s license from their home country or an international driver’s license to be able to drive a car while lawfully in the United States. Also, they will still be able to obtain a non-REAL ID license (if the State permits it) that could be used for driving purposes, but not for official Federal purposes pursuant to this regulation. Overall, DHS does not believe that this policy would significantly impact VWP aliens.

Another classification of persons that would be unable to present a visa are Canadians who enter the United States without having to obtain a visa and who stay in the United States for extended periods (i.e., more than 90 days) at a time. While the

majority of these are short-term visitors who would not need a U.S. driver’s license, and indeed are not issued any U.S. documentation or recorded in U.S. nonimmigrant data systems, some are longer-term visitors who may be students, authorized workers or others who may have reason to need a U.S. license. DHS requests comments specifically on how this group could be affected if they are unable to obtain a U.S. REAL ID driver’s license that could be used for Federal purposes.

h. Driver’s License/Identification Card Issued After the Standards Established by the Regulation. Any REAL ID driver’s license or identification card issued after the establishment of these new standards, except non-REAL ID driver’s licenses and identification cards issued under section 202(d)(11) of the Act, should be acceptable to establish identity, when an individual moves from State to State or when a driver’s license or identification card is being renewed.

2. Additional Documents Considered and Rejected for Proof of Identity.

a. Transportation Worker Identification Credential. One document considered by DHS as acceptable to demonstrate identity is the Transportation Worker Identification Credential (TWIC). This identification document will be very secure and those who obtain it will be subjected to rigorous background checks. However, DHS believes that any identification document acceptable in this regulation must be capable of being verified electronically by a State in a timely fashion. Including a TWIC on the list of acceptable identity documents, at this time, would require DHS to develop, and the DMVs to access, information electronically using a system that has yet to be created. All TWIC holders would also have one of the other documents prescribed by the regulation.

Thus, DHS is not at this time proposing to include the TWIC as an acceptable identity document for REAL ID driver’s licenses and identification cards.

b. Department of Defense’s Common Access Card. DHS also considered the Department of Defense’s Common Access Card (CAC). The CAC card may prove convenient for members of the military who move frequently and need to get new driver’s licenses and identification cards. For the same reasons as the TWIC, DHS is not proposing to include this document on the list at this time. DHS does not dispute the quality or utility of the CAC; however, DHS believes that any CAC holder would also have one of the other documents on the DHS proposed list, and including the CAC card would require States to connect to additional Federal databases for verification purposes, without sufficient justification.

c. Native American Tribal Documents. DHS discussed these documents with the Bureau of Indian Affairs of the Department of the Interior and concluded that since all tribes obtain State-issued documentation to verify birth, all tribal members will have, or can obtain, an eligible identification document, rather than using tribal documents.

DHS solicits comments on whether these or any other documents should be included as acceptable documentation for showing identity. Commenters should address instances in which classifications of individuals could not obtain any of the documents already on the proposed list, issues of reliability of the document proposed, and ability of the States to verify the proposed document. If DHS concludes that other documents, including those listed above and others submitted by commenters are reliable and can be verified electronically by the States, they may be included as acceptable identity documents in the final REAL ID rule.

3. Other Documentation Requirements. In addition to presenting evidence of identity, the Act requires that a driver’s license or identification card applicant present the following:

a. Documentation Showing Date of Birth. Individuals may use all documents included on the list of identity documents to demonstrate date of birth. Thus, while this is a statutory requirement, it is fulfilled by presenting one of the documents already required under the proposed list of identity documents.

SSA has taken significant steps since 2001 to strengthen the SSN issuance process. SSA has a plan for improving the security of the SSN card itself, in compliance with section 7213 of the Intelligence Reform and Terrorism Prevention Act of 2004. In recognition of improvements in the SSN issuance process and plans for improving the security of the SSN card, DHS considered requiring DMVs to require individuals to present a social security card with their full name and SSN as the only mechanism to demonstrate evidence of their SSN.

DHS recognizes, however, that this approach would be costly and would create an undue hardship on SSA and the public, particularly on members of the public who had lost or misplaced their social security cards. Accordingly, DHS proposes to allow an applicant to establish his or her SSN by presenting his or her social security card, a W-2 form, a SSA-1099 form, a non-SSA 1099, or a pay stub with the applicant’s name and SSN on it.

An alien in the United States without authorization to work is generally not eligible for an SSN. Thus, to prove ineligibility for an SSN, an alien must present evidence that he or she is currently in a non-work authorized non-immigrant status.

c. Documentation of Address of Principal Residence. There are a number of potential ways to define the term "principal residence." DHS reviewed State definitions of this term and did not find a consistent definition. The NGA observed that State laws vary widely on how to define residency/domicile because a mobile society leads to frequent relocations, ownership of multiple properties, as well as lifestyles that include no fixed address. Accordingly, DHS proposes to use the Black’s Law Dictionary definition

of "domicile" which DHS believes captures the intent of the principal residence requirement of the Act:

DHS recognizes that some individuals do not have a fixed address, as that term is commonly used. Individuals who do not have a fixed address, such as the homeless, may still obtain a REAL ID driver’s license or identification card if they otherwise can produce the documents a State must possess and verify prior to issuing a REAL ID driver’s license or identification card. For such individuals, a State may issue REAL ID driver’s licenses and identification cards by adhering to a written exceptions policy as described in section II.F. below.

d. Evidence of Lawful Status in the United States. The REAL ID Act specifies the scope of lawful status in the United States for purposes of eligibility for a REAL ID

driver’s license or identification card acceptable for official purposes. The applicant must be a person who: is a citizen or national of the United States; is an alien lawfully admitted for permanent or temporary residence in the United States; has conditional permanent resident status in the United States; has an approved application for asylum in the United States or has entered into the United States in refugee status; has a valid, unexpired nonimmigrant visa or nonimmigrant visa status for entry into the United States; or has a pending application for asylum in the United States; has a pending or approved application for temporary protected status (TPS) in the United States; has approved deferred action status; or has a pending application for LPR or conditional permanent resident status.

A U.S. passport, certified copy of a birth certificate, DOS consular report of birth abroad, certificate of citizenship, certificate of naturalization or a permanent resident card can be used to establish lawful status in the United States for purposes of this proposed regulation. If an applicant presents an employment authorization document (Form I-766) or a foreign passport with a valid U.S. visa and/or DHS nonimmigrant Form I-94 affixed for identification, these documents may be accepted as provisional evidence of lawful status, pending verification of status through the Systematic Alien Verification for Entitlements (SAVE) system (see section II.E.3 below). Note that while all documents presented must be verified through SAVE or otherwise, the difference is that since a visa or EAD are not necessarily linked to an authorized status, their acceptance is deemed provisional pending confirmation of exact status through further verification. DHS considered, but rejected, requiring additional documentary evidence of status that may be

issued by DHS, but considered this requirement unworkable, particularly since many holders of EADs simply do not have any other consistent, reliable identification.

The EAD is envisioned as the document to be presented by the following classes of REAL ID-authorized aliens: Temporary Protected Status (TPS) aliens; asylees and asylum applicants; refugees; adjustment applicants; and aliens granted deferred action. DHS understands that regulatory limitations on issuance of EADs to asylum and TPS applicants will result in a wait period before these aliens will have acceptable documentation, and invites comment on what alternative documentation regimen may serve for these groups, and whether those groups need a REAL ID driver’s license or identification card before their applicable wait period expires.

The proposed rule also does not include immigration documentation showing any status under the immigration laws of American Samoa or the Commonwealth of the Northern Marianas for aliens within those jurisdictions. REAL ID specifies U.S. immigration statuses. DHS invites further comment about how these jurisdictions may better be integrated into the REAL ID framework.

Section 202(c)(3)(A) of the Act requires verification from the issuing agency for issuance, validity, and completeness of documentation to establish the following:

1. • Identity.
2. • Date of birth.
3. • Proof of SSN, or that the person is not eligible for an SSN.
4. • The person’s name and address of principal residence.
5. • 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.

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) 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 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.

Applicants would also be required to sign a declaration (that could be included as part of the driver’s license or identification card application form) affirming that the information presented is true and correct, including information presented to establish address of principal residence. For minors and other dependents, parents or legal guardians would submit the documentation establishing a principal residence on behalf of the driver’s license or identification card applicant. The parent or legal guardian would

need to present photo identification (that the DMV would need to verify) and would be required to submit two or more address documents, as if he or she were the primary applicant, and sign the affirmation.

2. Verification of Identity Information.

a. Certified copy of a Birth Certificate Issued by a U.S. State or local office of Public Health, Vital Records, Vital Statistics or equivalent. DHS anticipates that the States will be able to verify electronically the issuance of a birth certificate through the Electronic Verification of Vital Events (EVVE) system. Once functional, this system will be able to verify that the information presented on a certified copy of a birth certificate is a match to a vital statistics birth record, in response to an electronic query from a State DMV. While the EVVE system has not been tested nationwide, the National Association of Public Health Statistics and Information Systems (NAPHSIS) has informed DHS that such a system could be in place and fully operational by May 2008. If such a system is either not available nationally by the effective date of the regulations, or a State is seeking to verify the validity of a birth certificate from a State that is not participating in the EVVE system, a State may establish written procedures for how it will attempt to verify such records, and document its use of those procedures. At a minimum, the applicant’s file and/or records should contain a notation that the birth certificate information was not verified electronically with the issuing agency, and such electronic verification will be necessary at the first driver’s license or identification card renewal or re-issuance once the information is available for electronic verification. Confirmation of the birth certificate through EVVE will verify not only the person’s

identity but also provide evidence that they are very likely to be a U.S. citizen and therefore have lawful status in the United States.

As discussed above, individuals born before January 1, 1935, may be unable to produce birth certificates, or States may be unable to verify any birth certificates produced by such individuals. Individuals born before 1935 may never have received a birth certificate, and it may not be possible for their birth States to reproduce the document for them. In addition, States may not have birth information available electronically for all births prior to 1935, and DHS believes that it would be too burdensome on States to verify this information in a non-electronic method. Such cases should not preclude persons from obtaining a REAL ID driver’s license or identification card, but should be handled according to the State’s exceptions process. DHS intends to align this provision with the final rule on minimum standards for birth certificates promulgated by HHS, in accordance with its statutory obligation under section 7211 of the Intelligence Reform and Terrorism Prevention Act (Pub. L. No. 108-58).

b. U.S. passports or Consular Report of Birth Abroad issued to U.S. citizens abroad by the Department of State. It is anticipated that a State will be able to electronically verify a U.S. passport, or a birth certificate issued to a U.S. citizen abroad. The automated system that is eventually developed will confirm that the passport was issued by DOS. In the case of a U.S. passport or a consular report of birth abroad issued by DOS, electronic verification will also confirm that the applicant has lawful status in the United States.

c. Valid U.S. visas affixed in an unexpired foreign passport. DHS examined several options in determining how to independently verify a U.S. visa affixed to a

foreign passport as required by the REAL ID statute. First, verifying the foreign passport itself with the Government that issued it is simply not feasible. There is no guarantee that a foreign Government would answer a State DMV’s request to authenticate a specific document, or any requirement in international law that they do so in a timely manner. Requiring this foreign independent verification would be an unfair burden to both the driver’s license or identification card applicant and the State DMV attempting to adjudicate the application.

Recognizing that the U.S. visa affixed in the passport, and not the passport itself, would be the acceptable documentation to demonstrate identity, DHS turned to how that verification would occur. First, DHS examined whether the DMVs could use the State Department systems to verify the visa. While this was a feasible solution since access to DOS databases will ultimately be necessary for all DMVs anyway (to verify U.S. passports and certain birth certificates), authentication of a U.S. visa does not, by itself, establish lawful status in the United States.

While a U.S. visa can be issued for as long as ten years (and often is), it is the Customs and Border Protection (CBP) Officer at U.S. ports of entry who determines the actual admission period for the person seeking to enter the United States. In most cases, this admission period is less than the validity period of the U.S. visa. Accordingly, foreign travelers often use the same visa for multiple trips to the United States—and the length of validity period for the visa is not dispositive as to whether someone has lawful status in the United States. Therefore, to adopt a policy in which a U.S. visa holder must use that visa to establish identity would require that aliens using a U.S. visa as evidence of identity have to undergo three separate checks—the DOS database (to confirm

identity), SAVE (to confirm lawful status), and SSOLV (to confirm the Social Security Number). All other categories of driver’s license or identification card applicants, including U.S. citizens (whether born in the U.S. or abroad), LPRs, and others would require only two database checks. This approach was deemed to be unduly burdensome on both the applicant and the DMV.

DHS then considered another solution—validating the U.S. visa through existing U.S. immigration and border processing procedures,