TO: U.S. Department of Homeland Security

FROM: Maryland Motor Vehicle Administration

RE: Public Comments on NPRM

> Please find below the Maryland Motor Vehicle Administration's comments

regarding the U.S. Department of Homeland Security's proposed rules for
"Minimum Standards for Driver\'s Licenses and Identification Cards
Acceptable to Federal Agencies for Official Purposes."

The comments are divided into three sections. The first two sections
respond to specific requests DHS made for public comment. The last
section describes other comments not specifically requested by DHS.

Section A -- Solicitation of Comments (beginning pg 93)

**1. Whether the list of documents acceptable for establishing identity
should be expanded? If yes include reasons for the expansion and how
DMVs will be able to verify electronically with issuing agencies.**

[Maryland MVA Comment:]{.underline}

Maryland Department of Transportation (MDOT) suggests the "TWIC" card
should be an acceptable document for proof of identity.

Maryland Motor Vehicle Administration (MVA) currently utilizes the
Federal "SAVE" system, SSOLV, NDR and PDPS to verify documents
electronically. If the mandatory criterion for expanding the list is
that additional documents must be able to be electronically verifiable,
then Maryland is unable to offer specific suggestions on the acceptable
identity documents list. The Maryland MVA is not aware of any other
electronic verification systems that would be available to all States,
other than those discussed in the NPRM.

However, the Maryland MVA suggests that states be allowed to consider
alternative documents through an exception process. Just as the NPRM
chose to address the issue of the lack of existence of a nationwide
electronic database that could verify residence by adopting the two
documents approach, the states should be allowed to establish an
exception process to verify identification through the presentation of
two or more alternative documents.

Maryland currently establishes identity through the presentation of (1)
two "primary proofs" of identity, or (2) one primary and two secondary
proofs of identity. An U.S. birth certificate is required to be
presented as one of the primary proofs; however, in cases where the
applicant has no U.S. birth certificate (either a foreign born applicant
or one who was born at home and whose birth was never officially
recorded), Maryland allows the substitution of one other document from
the primary proofs list in lieu of the U.S. birth certificate. In every
case, one document must have the applicant's date of birth and another
document must show the applicant's signature. The following additional
documents have high levels of proof of reliability and verifiability,
and should be considered as acceptable in the context of an exception
process:

## Primary Proofs

-   Out-of State Driver's License

-   Government-issued Driver's License (includes military license)

-   Valid U.S. military identification card or discharge record (DD214)

## Secondary Proofs

-   Voter registration card

-   Selective Service registration card

-   Gun permit with photograph or fingerprint

-   Marriage certificate

-   Divorce decree

It should be noted that all of these suggested documents are issued
either by some type of local, state or federal agency, or by a court of
law.

The above-listed documents are suggestive of the types of documents that
should be considered in an exceptions process but is by no means an
exclusive list.

**2. Whether the data elements currently proposed for inclusion in the
machine readable zone of the DL or ID 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?**

[Maryland MVA Comment:]{.underline}

Currently, a Maryland license contains a PDF417 2D barcode. The barcode
contents are in according to "Draft Proposed American National Standard
Driver License cards -- Identification cards" ANSI dpANS NCITS 327 --
1999. All data is currently non-encrypted. The burden should fall on
State and Federal law enforcement agencies to best determine the
encryption level and business rules to be able to read encrypted data.

MVA requests clarification on page 144, where it states the bar code
should include full legal name and all name changes. Does "name changes"
include all name changes on record, or just the most recent? What is the
maximum number of names the bar code must carry?

The MVA does not know the cost of building and managing 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 exemption process.**

[Maryland MVA Comment:]{.underline}

The Maryland MVA recommends that individuals born before 1935 should be
wholly exempt, rather that allowing each state to develop its own
practices. This would alleviate any potential inconsistencies or
confusion between states.

If a state establishes an exemption process for the documentation
requirement, each such exemption should be fully detailed in the
applicant's motor vehicle record. In addition, the driver record must
indicate when an alternate document is accepted, how the applicable
information from the document was verified, and also must retain the
alternate documents accepted in the same manner as other source
documents.

Having these cases handled under each state's exemption process may lead
to a breakdown in uniformity. If, instead, all individuals born before
1935 with "established histories" in a state are permitted to be wholly
exempt from the birth certificate verification requirements of the Real
ID regulations, this serves as a bright-line rule that is less likely to
lead to confusion.

Currently, the exemption only applies to a subset of citizens born
before 1935: those who have "established histories" with a state. It is
unclear if this phrase means individuals who already have a DL or ID
card in the state where the customer is seeking a product and whether it
will cover all individuals born before 1935. So, while the number of
cases in which a citizen has difficulty obtaining sufficient
documentation may decrease, the exemption will not completely eradicate
problems with this subset of citizens.

**4. If a State chooses to produce DL and ID cards that are
WHTI-compliant, whether citizenship could be denoted either on the face
or machine readable portion of the DL/ID card, and more generally on the
procedures and business processes a State DMV could adopt in order to
issue a Real ID DL or ID card that also included citizenship info 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.**

[Maryland MVA Comment:]{.underline}

MVA could implement the inclusion of a WHTI compliant citizenship
indicator in the application record. Inclusion of this data in the
barcode would minimally impact the MVA.

However, at this time, the Maryland MVA has significant concerns about
the use of RFID technology. It is expensive to implement and is not
highly secure. The Maryland MVA prefers to reserve comment on this issue
until the security vulnerabilities of RFID technology have been
adequately addressed.

**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.**

[Maryland MVA Comment:]{.underline}

MVA recommends that DHS include an exception to the principal residence
requirement for both sitting and former judges, upon the request of the
judge. Due in part to Maryland's proximity to Washington D.C., another
exception should be made for federal officials in limited circumstances
(i.e. U.S. Cabinet level secretaries). In addition, the Maryland MVA
suggests that DHS should consider making an exception for covert law
enforcement officers, as long as the officer provides a letter of
authorization.

**6. What benchmarks are appropriate for measuring progress toward
implementing the requirement of this rule and what schedule and resource
constraints will impact meeting these benchmarks.**

[Maryland MVA Comment:]{.underline}

The Maryland MVA recommends that the current schedule as proposed in the
NPRM is still too aggressive and unattainable considering the 2-year
delay of issuing the NPRM. The continued delay of a Final Rule compounds
the infeasibility of achieving compliance with meeting the proposed due
dates set forth in the NPRM. MVA recommends that (1) DHS soften the
schedule constraints to provide a 5-year period to implement the
policies and technology to issue Real ID compliant DL/ID cards (e.g.,
May 11, 2008 May 11, 2013), and (2) another 5-year period to complete
re-issuance of all DL/ID cards (e.g., May 11, 2013 May 11, 2018). This
timeframe would fit within the Real ID Act's mandatory maximum 5-year
DL/ID card renewal timeframe.

While all States must reach the same finish line with regard to
implementation of REAL ID regulatory requirements, the dilemma facing
implementation lies with the fact that every State is in a different
stage as to how it is to meeting REAL ID requirements; some states might
be closer than others with respect to one requirement, but further
behind in another aspect.

Therefore, a set of standardized benchmarks applicable to every state is
neither a realistic nor an equitable approach. The Maryland MVA strongly
recommends phasing-in the requirements. It will be more palatable for
States if DHS measures compliance by evaluating steps each state,
individually, needs to comply. For example, many of the electronic
verification systems are not currently available and may not be
available prior to the required implementation date. Lack of system
availability needs to be considered in developing benchmarks for
compliance.

In customizing benchmarks for each State, MVA recommends the following
factors be considered:

-   [Legislative]{.underline}

> Regarding legislative benchmarks, both the extent of legislative
> changes that need to be made and how often the State's legislature is
> in session should be considered. Many states, such as Maryland, have
> part-time legislatures. Some state legislatures only meet every other
> year; others meet yearly but only for a limited session. The Maryland
> legislature only meets for 90 days between January and April each
> year.
>
> Meeting the legislative benchmarks will be a key factor in the state's
> ability to meet the REAL ID Act's requirements. States will need to
> obtain statutory authority for many of these requirements before the
> technology changes and procedural changes can be put in place.

-   [Regulatory]{.underline}

While regulatory changes are generally easier for States to implement,
it does not necessarily follow that this can be accomplished any more
quickly. For example, in Maryland the normal timeline to enact
regulatory changes require a minimum of 5-6 months, but can take longer.
As with legislative changes, the time needed to obtain regulatory
changes in order to comply with the REAL ID Act requirements will have a
significant impact on a State's timetable to be able to implement
technical and administrative changes.

-   [Procurement]{.underline}

Compliance with the State's procurement requirements will also impact a
State's timeline. Every state's procurement laws are different but can
generally be categorized by two commonalities: (1) established steps,
approvals and timeframes that must be followed in putting out the RFP
(request for proposal) and in evaluating and making the award to the
successful bidder; and (2) the larger the RFP, the more time will be
needed in creating the RFP, in evaluating, in making the award, and
passing the additional levels of approval that must be obtained. For
example, Maryland law requires that any contract costing \$200,000 or
more goes through several levels of approval.

-   [Dependence on Approval of Compliance Plan]{.underline}

States are very limited as to what aspects of their compliance plans can
be implemented until the plans are approved by DHS. The approach
contemplated in the Notice of Proposed Rulemaking requires all exception
processes to be approved by DHS. Those states seeking a waiver of the
May 11, 2008 compliance deadline must submit proposed compliance action
plans to DHS within 6 months of the date DHS grants the waiver request.
The Maryland MVA anticipates that DHS may require modifications of a
State's initial compliance plan, requiring extra time for negotiation to
resolve these issues.

-   [Financial]{.underline}

The Maryland MVA will experience difficulty implementing REAL ID without
financial assistance. The Maryland MVA will be able to more easily meet
scheduled implementation benchmarks with such assistance.

The \$40 million in federal funding committed to date represents only
0.17% of the \$23 billion that DHS has estimated the States will need to
comply with REAL ID's requirements. While the NPRM does allow 20% of a
State's homeland security grant funds to be used for REAL ID
implementation, it is not enough to compensate for the financial impact
and will come at the expense of other state homeland security projects.

By comparison, the \$1 billion currently being requested from Congress
by the National Governor's Association represents 4.3% of the
anticipated cost of REAL ID implementation. This is a much more
reasonable amount to allow the States to begin work on REAL ID
implementation, although further financial support to the States will
very likely be needed later.

-   [Technology]{.underline}

The substantial technology changes required by Real ID will be resource
intensive and will have an enormous operational impact.

Many agencies have old Legacy-based systems that have been patched,
improved upon and interfaced with newer systems in lieu of a complete
migration to a new system. As a result, despite the best-made plans, it
is common to encounter unexpected consequences to another part of the
system if a change is made to one part of the system. These unexpected
consequences may require additional time and resources to fix, making
any technology implementation schedule reliable only to the extent of a
best guess estimate based on an ideal scenario. Accordingly, benchmarks
for the technology implementation aspect of REAL ID implementation
should be particularly flexible when being evaluated by DHS.

-   [Personnel]{.underline}

The MVA will need to hire a large amount of additional staff. It will be
challenged to obtain additional personnel resources to address the
anticipated increased workload needed for verification of customer
documents. Insufficient funding by the federal government and a State
structural deficit projected to exceed \$1.8 billion further compounds
this problem.

-   [Compliance Status]{.underline}

> An Earned Value Management (EVM) approach could be used to determine
> product oriented compliance status and projecting future performance
> based on trends to date. This effort can be further measured in terms
> of effectiveness through having routine Independent Verification and
> Validation (IV&V) conducted, which means a completely independent
> entity evaluates the work product and progress generated by the team
> that is conducting the work. The IV&V would provide an objective,
> professional opinion made by consultants with the business and
> technical knowledge to know if something is truly working.

**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.**

[Maryland MVA Comment:]{.underline}

The MVA is considering hardening all aspects of security, including
physical security of facilities. Considerations such as smart card
access, video cameras, double locks on doors, and onsite security
personnel are examples of security adjustments currently being studied
to determine how to best secure and protect MVA branch offices. Adoption
of some or all of the ANSI/NASPO Security Assurance Standards referenced
in the draft regulations would only strengthen those security aspects
already under consideration.

**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 State will face in satisfying the document security requirements
proposed in this rule.**

[Maryland MVA Comment:]{.underline}

Regarding physical security standards, MVA recommends DHS to require a
higher level of security standards. First, the standards proposed are
\"Minimum\" standards and given the technological capabilities of those
aiming to compromise authentic documents it would just be a matter of
time before a product is cloned.  Secondly, the incorporation of
biometric identifiers are encouraged as they are universally and
forensically accepted as individual identifying characteristics. As
such, they present a higher level of identity verification and overall
security.  It is fair to note even biometric features can be copied
or scanned, and may pass the untrained screener.

 

Additionally, most major federal, state and municipal law enforcement
agencies are advancing to stationary and or mobile enhanced computer
aided dispatch (CAD) systems, and information retrieval systems that
will scan a document in the field and determine its authenticity and
validity of identity.

Regarding contractual issues, MVA is not able to identify any specific
conflict with the current procurement regulations or with the State IT
regulations. However, there are sections of Maryland's regulations and
procurement policy that may present some challenges.

It is unclear if any existing contract will be able to be modified
within the original scope of that contract or if a new solicitation will
have to be developed to meet the new minimum standards. Maryland has
Minority Business Enterprise and Small Business Reserve programs that
will need to be considered during the solicitation and awards of
contracts. Compliance with procurement procedures will add several weeks
to the process.

**10. The federalism aspects of the rule, particularly those arising
from the background check requirements proposed herein**

[Maryland MVA Comment:]{.underline}

MVA recommends the regulations specify which comparable State offenses
are made disqualifiers. Felony theft should also be made a disqualifier.
If financial history checks are required under the final rule, DHS
should provide guidance regarding the proposed language "shall be
considered for informational purposes." It is too vague and needs
further definition. Additional guidance is also needed for the comment
"not trustworthy based on financial history check."

Validation of references of prior employment should include a timeframe
and the number of previous employers. For example, MVA must validate
last 3 employers but no less than 15 years of employment as applicable,
or all employment since high school if less than 15 years of employment
history. Validation should also include a requirement to account for
breaks of employment of more than 60 days. Regulations should define
what actions constitute "validation of references of prior employment."
Will making contact with the prior employer be sufficient? What is the
previous employer is out of business or otherwise unavailable to
validate prior employment?

Interim disqualification should be timed from "date of employment" not
date of "application." Timing from date of application will require this
to be checked in the recruitment process, i.e. thousands of persons as
opposed to checking from time of employment, which would just be in the
hundreds. This would lessen the impact on human resource divisions.

**11. How the federal government can better assist States in verifying
information against Federal databases**

[]{.mark}

[Maryland MVA Comment:]{.underline}

The federal government should consider the expansion of the current
Commercial Driver's License Information System (CDLIS) to include all
license types. This would provide a mechanism for all States to share
information through a common portal. This effort working in conjunction
with the American Association of Motor Vehicle Administrators (AAMVA)
would address the requirement to share data amongst States, which if
carried out could also address the need for standardization of data to
help facilitate information exchange.

In regards to verification of information, MVA makes the following
suggestions:

-   Improve verification of the SSOLV system by expanding it from a
    three-point match (name, SSN and date of birth) to a five-point
    match (name, SSN, date of birth, sex and whether or not reported as
    deceased). This will help cut down the fraudulent use of SSNs of the
    deceased.

-   Develop web-based interfaces with federal databases such as the
    Secretary of State's database (verify U.S. passports). Our
    experience with implementing SAVE has shown that this is the easier
    and most cost effective option. Web-based interfaces will save the
    States considerable time and IT costs compared a more traditional
    interface that would require system changes.

-   Improve the speed in which case information is entered into the SAVE
    System. When Maryland entered into its MOU with DHS, Maryland was
    advised that the "hit rate" would be about 85% and the other 15% of
    the time would require a telephone call and possibly several days'
    turn around time to get the information. These estimates have turned
    out to be accurate in Maryland's case. MVA has been told that it can
    take up to 90 days to get new information into the SAVE system; the
    quicker DHS can get the information into the SAVE system, the more
    effective SAVE will become as an electronic verification tool.

-   Allow States to leverage existing processes by permitting States to
    do employee background checks through the existing TSA Security
    Threat Assessment process currently used for CDL holders with HAZMAT
    endorsements. Since all states have processes in place to do this
    screening for HAZMAT endorsement purposes, this would create
    significant time efficiencies and cost savings for the States. In
    addition, homeland security would be enhanced because it would
    ensure that no one on a terrorist watch list (who may have no
    criminal record) would be employed in connection with the
    manufacturer or production of a REAL ID compliant driver's licenses
    and identification cards

**14. Whether other federal activities should be included in the scope
of "official purpose."**

[Maryland MVA Comment:]{.underline}

MVA believes the scope of "official purpose" should remain as detailed
in the statute. Any further changes should be made only by statute. An
understanding the scope of "official purpose" as near permanent will
allow a state to better explain the meaning of a new Real ID to its
customers. Furthermore, this will aid the Maryland MVA in its decision
whether to pursue the option of a second tier of drivers licensing.

Section B - Miscellaneous Additional DHS Request for Comment

**1. "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." (pg 16)**

[]{.mark}

[Maryland MVA Comment:]{.underline}

The MVA already institutes a policy of one driver, one license and thus
does not issue more than one driver's license to an individual.
Applicants from other states seeking a Maryland driver's license must
surrender their current State's license before a Maryland license can be
issued.

**6. "DHS solicits comments on whether these or any other documents
\[Native American Tribal Documents\] 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." (pg 41)**

[Maryland MVA Comment:]{.underline}

MVA does not accept Native American Tribal Documents. However, Maryland
previously accepted for identity sources foreign baptismal certificates
and foreign school records. After careful consideration the MVA removed
the acceptance of these sources. This change was made due to the high
rate of fraudulent baptismal and school records presented during
document reviews and verification (authentication) issues, despite using
the Embassy and Consulate as resources.

**8. "DHS seeks comment on how these categories of individuals
\[domestic violence victims, judges, stalking victims, etc.\] can be
protected, while remaining consistent with requirements of the Act." (pg
69)**

Maryland MVA Comment:

Presumably the main requirement of the Act that is at issue is the
collection of a principal residence address.

It appears that as long as a state has in place a well-documented
process that adequately protects individuals' identities, strictly
defining the criteria for eligibility, DHS should allow each state the
authority to mask the address of the customer (whether it is a victim of
domestic violence or stalking, or a judge).

**10. "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, 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 info on the DL/ID card." (pg 74)**

[Maryland MVA Comment]{.underline}:

The Maryland MVA currently provides this data to law enforcement thru
MILES (Maryland Information Law Enforcement System). Maryland does not
use the NLETS system. MVA defers to Maryland law enforcement to comment
fully on the differences between the two systems.

**11. "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." (pg 77)**

[Maryland MVA Comment:]{.underline}

The Maryland MVA does not express opinion as to what additional data
elements should be included on the machine-readable zone. However,
additional information required by DHS could be easily encrypted on the
bar code.

**12. "DHS ... invites comment on how to provide this access
\[encryption\] and the protection of the information at the same time."
(pg 77)**

[Maryland MVA Comment:]{.underline}

A standardized encryption method is advised.

**13. "DHS requests comments on whether and how encryption could be
employed to secure the information stored in the MRZ of the cards....
DHS seeks comments on whether a demonstrable law enforcement need exists
to include address in the MRZ portion of the REAL ID DL as currently
proposed in this rule." (pg 79)**

[Maryland MVA Comment:]{.underline}

In order to combat fraud the Maryland MVA finds it necessary to carry
the address in the MRZ. The Maryland MVA currently carries all
demographics that our displayed on our drives license in the MRZ.

**14. "DHS requests comments on these renewal procedures, including
suggestions on any alternative approaches for remote renewals and
authentication of remote renewals." (pg 80)**

[Maryland MVA Comment:]{.underline}

Since every DL/ID card applicant cannot readily access the Internet, the
Maryland MVA would not recommend the use of PINs. It is likely that
security questions would be a more workable solution, considering the
diversity of our customer base. DHS indicates that states may continue
remote renewal procedures as long as states establish a procedure to
verify the identity of individuals applying for renewal remotely.
Additionally, the states must maintain images of the source documents
the individual used to obtain a Real ID compliant DL or ID card and
establish a procedure to re-verify the information on the source
documents retained by the State. See NPRM at 13, 79-80. Only those with
temporary Real ID products would be required to renew in person, in
order to present evidence of continued lawful status, and those who have
had no changes to the information previously provided (e.g., name or
address). See NPRM at 13, 63-64, 79-81.

The re-verification procedure must include ensuring that there is no
match against death record information either at the state vital
statistics level or at the federal level, through the Social Security
Administration. See NPRM at 80. DHS hopes that this recheck also will
diminish the likelihood of fraudulent activity. See NPRM at 80.

The remote renewal procedures suggested by DHS includes the use of
personal identifiers, such as PIN numbers or questions whose answers
only the proper holder would know, or through the use of biometric
information. See NPRM at 80. It appears that the only way to ensure that
the customer receives a PIN would be to give the customer the PIN at the
time the initial Real ID compliant product is issued. If it is mailed,
there is no way to ensure that the intended recipient will receive it.
Five or eight years later, when the customer is due to renew it is
unlikely that the PIN will be readily accessible. Perhaps, if all
customers had access to the Internet, this would be less problematic.

**17. "DHS seeks comment on whether and to what extent States can or
should include in their security plans access to data for info sharing
purposes as necessary in the event of a catastrophic event \[i.e. 9/11
or Katrina\]" (pg 90)**

[Maryland MVA Comment:]{.underline}

Current procedures are adequate to accommodate law enforcement's need to
gather certain information in the event of a catastrophic event.

**19. "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 State-issued REAL
ID DL/ID card the voluntary option to use the document as a
WHTI-compliant 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 tech proposed in the REAL ID proceeding while also including an
MRZ meeting ICAO standards." (pg 93)**

[Maryland MVA Comment:]{.underline}

Maryland defers to the border states for comment regarding procedures
and business processes related to border crossing.

**20. "DHS is soliciting comments to (1) Evaluate whether the proposed
info requirement is necessary for proper performance of the functions of
the agency, including whether the info 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." (pg 100)** []{.mark}

[]{.mark}

Comment:

Response-Subsection 1:

The Maryland MVA believes that the record keeping requirements proposed
in the Notice of Proposed Rulemaking are unduly burdensome to the States
without providing any corresponding increase in regulatory value. The
Maryland MVA recommends that DHS should evaluate regulatory compliance
processes established by more longstanding federal departments and
agencies, such as the Federal Motor Carrier Safety Administration, to
find appropriate benchmarks to use to develop an effective, but still
efficient, compliance review methodology and process.

The informational reporting requirement set forth in the Notice of
Proposed Rulemaking presents an extremely heavy burden to the states. In
addition to the initial certifications and/or action plans (estimated
average approximately 1,500 labor hours per jurisdiction) each State
will be required annually to provide: detailed annual certification
(estimated 1,357 hours per jurisdiction), quarterly
certifications-exceptions process and monitoring security trends
(estimated 846 hours per jurisdiction), and employee background check
information.

Without regard to the question of the accuracy of these numbers, it is
clear that Maryland, as well as other states, would not be able to
handle these requirements with existing resources and therefore be
compelled to hire additional personnel to handle these reporting
requirements.

By comparison, the Federal Motor Carrier Safety Administration, who has
a public

safety role of comparable importance, conducts comprehensive compliance
reviews of commercial driver's licensing requirements once every three
(3) years and requires on an annual basis only an annual certification
letter signed by the State's driver licensing administrator that the
State is in substantial compliance with requirements of federal law and
regulations relating to commercial driver's licenses. Current federal
regulations regarding commercial driver's licenses are more
comprehensive in scope than those proposed by DHS under the Notice Of
Proposed Rulemaking and yet both FMCSA and the States appear reasonably
satisfied that the triennial review provides a fair balance between
federal oversight and state compliance obligations without being unduly
burdensome.

The Maryland MVA believes that quarterly reports on the "exceptions
processes and security trends" is another unnecessary burden to place on
the states. Situations common to every jurisdiction where individuals
for reasons beyond their control are unable to present all necessary
documents and must rely on alternative documents that include, but are
not limited to, those in nursing homes, the homeless, children in foster
care, applicants who were home birthed and whose births were never
recorded. These situations should be addressed by requirements set forth
by regulation.

Response---Subsection 2:

The Maryland MVA has significant concerns about the accuracy of several
aspects of DHS's estimate of the burden that would be imposed.

a*.*

For the reasons further explained below, the Maryland MVA believes that
significant additional DMV labor hours will be involved in conducting
legal presence verification through SAVE unless DHS invests the
additional resources necessary to accomplish two tasks. One, raise
SAVE's "electronic hit rate" from 85% to 99% or better by establishing
and meeting a 24 hour turnaround for electronic input of new immigration
case status information into the SAVE system. Two, Significantly
increase the number of immigration staff available to handle manual
call-in requests. This will also likely require telephone system
upgrades to handle the significantly increased volume of call-in
verifications, especially for "pending renewal" cases.

Running immigration checks on foreign-born applicants for driver's
licenses and identification forms will not impart a new hourly burden on
DMVs . . . The transmission of information to the SAVE system run by DHS
will be automated and therefore will not require DMV labor hours to
conduct each check.

Maryland is currently one of the states already using the SAVE system.
When the Maryland MVA entered into its SAVE Memorandum of Understanding,
it was informed that the "electronic hit rate" was about 85%, and that
the remaining 15% of the time would require a manual phone call and
possibly up to a week to respond. Maryland's own experience is that
these predictions are accurate.

This 15% manual check rate for SAVE does translate into actual DMV labor
hours yet this piece does not appear to have been factored into DHS's
time assumption.

The explanation previously provided to the Maryland MVA to explain the
manual check rate is that it sometimes requires up to 90 days for an
immigration filing or action to be inputted into the SAVE system. Unless
DHS is committed to reducing this time to a 24-hour turn-around,
significant DMV labor hours must be factored into the estimated burden
to reflect the current manual check rate.

Furthermore, unless the number of immigration staff is increased several
fold to manage all 56 jurisdiction's manual calls in a timely manner,
the estimated wait time that DMV personnel will spend trying to get
through by telephone will also increase.

Another consideration is that since those issued "temporary licenses"
whose end date is tied to their end-date of permitted stay will need to
have their immigration state re-verified with SAVE before renewal of
their license or identification card.

This will not only increase the total number of SAVE transactions per
State, but the number of "call-in" verifications that will be required
on renewals can be expected to be high. The decision on extension of
stay will be very recent information and due to the overwhelming number
of extension of stay requests likely made, at the earliest, only a short
time before the original end-date of permitted stay and therefore less
likely to be updated in the SAVE database. Another source of increased
call-in verifications will be for those whose legal presence status is
"pending renewal" at the time of renewing their driver's license.

b\.

In the first 3 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. The Maryland
MVA believes this time estimate is unrealistically low and most likely
highly inaccurate for several reasons.

First, driver's license holders in Maryland have the option to renew by
mail; therefore, more individuals will now have to travel to an MVA
office to renew. While Maryland is a relatively small state,
geographically, it still has 23 MVA full-service offices spread
throughout the state to service its customers. Despite this extensive
coverage, the average travel time for a Maryland resident to visit an
MVA office one way is at least 20 minutes, resulting in a minimum
average travel time of 40 minutes.

Second, current average wait time for driver-licensing transactions is
39 minutes. The Maryland MVA anticipates the average wait time will
significantly increase with REAL ID implementation.

Third, the Maryland MVA has used its current out-of-country processing
(for foreign-born applicants) as a model for REAL ID time estimation
purposes since source documents are reviewed for authenticity by trained
document examiners, where applicable validated through SAVE the sources
of proof scanned and saved. In short it is the only current process that
comes even close to the amount of work that will be anticipated in
processing applications for REAL ID documents. Average processing time
for an out-of-country transaction is 28 minutes and the Maryland MVA
views that this is a minimum estimate of the average amount of time that
a REAL ID transaction would require, and this assumes that the
individual would have all his or her documents in order.

Fourth, the Maryland MVA estimates that one in 10 Marylanders change
residences every year. Currently the Maryland MVA has alternative
processes where individuals may change their addresses on line or by
mail and the MVA issues "attachment cards" which are to be carried with
the current license until it is renewed. There is no charge for the
attachment card. The overwhelming majority of Marylanders change the
address on their license this way as opposed to coming into the MVA
offices to get a corrected license. Under REAL ID, however, these
individuals will have to come to the MVA and submit proof of the new
address. This means one or more additional visits to the MVA during the
term of their REAL ID compliant driver's license or identification card.

Fifth, while it is difficult to estimate how many individuals will need
to obtain source documents, as opposed to those already having all the
documents the Maryland MVA suspects many residents may need to obtain a
duplicate social security card or another certified copy of their birth
certificate. Hence the following factors must be considered:

-   **Obtaining a duplicate social security card requires an in-person
    visit to a local Social Security office.** There is no mail option.
    Given the likelihood that the Social Security Administration is
    unlikely to be able to increase its customer service staff
    sufficiently to match the likely increase in the volume of requests
    for duplicate social security cards that REAL ID will generate,
    delays and longer waits at the local SSA offices should be
    anticipated and do not appear to be adequately reflected in this
    time estimate.

-   While obtaining a certified copy of one's birth certificate by mail
    or a third party service is still possible in many states, those
    individuals currently lacking a driver's license or State-issued
    identification card will still have to make an in-person visit to
    the local Vital Records Office for a certified copy. Similarly,
    state Vital Records will not likely have the ability to increase
    resources to adequately correspond to the increased number of
    requests for certified copies of birth certificates so customers at
    these offices will likely also experience delays and longer wait
    times to get their certified copies of birth certificate records.

> **Furthermore, new regulations promulgated under the Intelligence
> Reform Act of 2004 raising standards for the issuance and security of
> birth certificates are expected to be proposed later in 2007.** It
> would not be unreasonable to anticipate that these new standards may
> increase the number of individuals who will have to make an on-site
> visit as opposed to being able to obtain a certified copy of the birth
> certificate through mail or third party service.

c\.

Forwarding information to the Federal Government for the employee
background checks would impose a significant burden on DMV's and State
Governments. This assumes that each submission will take three minutes
to forward information for the FBI Criminal History Records Center
(CHRC). Multiplying the three minutes per transaction by the 1,700
annualized employee background checks yields a large annualized hour
burden.

Also, Federal law restricts who may request and receive the results of
federal criminal background checks to recognized law enforcement
agencies. Many driver's licensing agencies will not meet the
requirements to be considered as recognized law enforcement agencies. In
most cases, driver's licensing agencies will not be able to submit their
background checks directly to the FBI CHRC. They will need to partner
with a state law enforcement agency; thus involving the labor time of
two state agencies instead of one.

The other limitation in time analysis is the failure to include the time
required to do the state background check as stated in the Notice of
Proposed Rulemaking. State and federal background checks may not be done
concurrently, the FBI requires the state background check to be done
before the request for the federal background check may be submitted to
the FBI.

Another factor not considered is that the FBI has adopted the exclusive
practice of only dealing with one designated recognized law enforcement
agency in each state to be the clearinghouse for requesting and
receiving federal criminal background checks. In Maryland, that entity
is the Department of Public Safety and Correctional Services' NCIC
(National Criminal Information Center) unit, which is actually operated
by the Maryland State Police.

[Conclusion]{.underline}

Maryland believes that the Notice of Proposed Rulemaking does not
provide an accurate estimate of the full impact of information
collection burdens imposed with regard to employee criminal background
checks. By failing to consider a realistic assessment of the actual time
likely to be involved in a process, many of these information collection
burdens will fall on not one, but at least two separate agencies per
state.

**Response---Subsection 3**

DHS is soliciting comments to enhance the quality, utility and clarity
of the information to be collected. The Maryland MVA believes the key to
this objective is for DHS to scrupulously and objectively identify the
specific purpose(s) for which each piece of information is to be
collected and to critically analyze whether the information is necessary
and whether the proposed regulations allow the States to provide that
information in the most efficient manner.

While the REAL ID Act has important homeland security ramifications, DHS
must be careful not to attempt to regulate the State driver licensing
agencies as an extension of DHS. The roles and responsibilities of State
driver licensing agencies are not identical to the roles and
responsibilities of the Department of Homeland Security. While security
is also an important goal for driver licensing agencies, these State
agencies must balance this goal with its other, equally important,
responsibilities as transportation safety officials and as critical
providers of customer service to the respective residents of their
States.

**Response---Subsection 4**

Collection of information from customers is not a new requirement so to
the extent that the list of acceptable documentation remains largely the
same, customers should not be unduly burdened. It will be difficult,
however, to minimize the inconvenience caused by the fact that most of
the information to be verified cannot be verified using automated,
electronic, mechanical, or other technological collection techniques. A
majority of the reference databases, such as EVVE, are not yet
available, while SSOLV and SAVE are accessible. The status of EVVE is
critical because it will be necessary to verify birth certificates and
the numbers of these documents will be overwhelming.

Section 3 -- Additional MVA comments

1\. Exception Process:

-   Maryland MVA utilizes an approach of handling exceptions to
    regulations by private letter ruling, or no-action letters, as a
    practical alternative when issuing a CDL. Because of its very
    limited scope, this process is used only when there is no way to
    make the situation work equitably through literal compliance with
    the regulations. Because no-action letters are not always made
    public, they are less likely to provide an incentive for other
    states to look at this approach as a short cut around regulatory
    compliance.

-   While usually restricted to unusual situations and addressed on a
    case by case

> basis, requests for no-action letters often alert the federal agency
> as to a need to revise a regulation; federal agencies have been known
> to make such no-action letters public as a stop gap measure pending
> promulgation of the necessary regulatory revisions to address the
> issue on a permanent basis. This approach is more flexible and
> significantly less burdensome than the "exception approach"
> contemplated in the Notice of Proposed Rulemaking.

2\. Full Legal Name

-   The birth certificate does not necessarily reflect the full legal
    name. The NPRM suggests that if a name has been changed, then a
    certified copy the court order showing the name change must be
    presented. However, under Maryland law, as well as under the law of
    some other states, the law allows for a common law name change by
    the exclusive, continuous and non-fraudulent use of the new name.

    -   Will these individuals be precluded from applying for a REAL ID
        card unless they obtain court orders or amended birth
        certificates?

    -   Will the States be allowed to establish exception processes for
        these individuals? For example, Maryland law allows an
        individual to document a common law name change for purposes of
        applying for a driver's license if the individual is able to
        provide a Social Security card with the common law name together
        with documents from two of the following categories: tax
        records, Selective Service records, voter registration card,
        passport, government-issued photo ID, baptismal certificate, or
        banking records. Would this be an adequate exception process
        under REAL ID?

    -   Will the use of AKA (also know as) be permitted? For example, if
        an individual commonly uses his middle name instead of his first
        name, may his REAL ID document be issued "John Quincy Jones" be
        issued as "John Quincy Jones aka Quincy Jones" or as John Quincy
        Jones aka J. Quincy Jones?

    -   Will designations such as "Sr.", "Jr." or "III" be mandated to
        be a part of the full legal name on the REAL ID card? If so, is
        that also an element of the name that must be verified? How is
        this to be accomplished? (the suffix "Sr.", for example, never
        appears on an individual's birth certificate)

    -   If an applicant has a hyphenated or two-part first name or
        middle name, the hyphen or space is removed and the name
        recorded as a single word to comply with the data processing
        restrictions of the Problem Driver Point System under the
        National Driver Register, 49 USC §§30301-30308. It is advised
        that DHS continue to follow this naming protocol in the revised
        regulations so that the States may still be able to gain the
        benefits of using PDPS.

    -   What naming protocol will DHS require if an individual has more
        than one last name (frequently seen among Hispanics---e.g.,
        Felipe Esteban Gonzales Padilla)?

## 3. Gender Issues

-   Since the REAL ID Act uses the term "gender" instead of "sex", may a
    State offer the option of designating gender as "transsexual"
    instead of "male" or "female"?

-   Currently, Maryland requires a transsexual to successfully live in
    the sex the individual wants to become before the actual sex change
    surgery will be done. However, in order to do so, that individual
    realistically needs to have a driver's license or identification
    card that accurately reflects the gender they are living even if the
    surgery has not been done yet.

-   Law enforcement, on the hand, has a need to know the current
    anatomical gender of the licensee, in order to protect the
    individual's rights (in the event of body search) and public safety
    (female and male offenders are incarcerated separately).

-   The NPRM does not address change of gender. After the sex change
    surgery is complete, is a certified doctor's statement sufficient
    documentation or must the individual obtain a court order?

### 4. Verification of Social Security Number or Ineligibility for a Social Security number

-   The Maryland MVA is pleased to see that DHS is following a more
    flexible approach in allowing documents other than just the Social
    Security Card to be used to prove the Social Security number.
    However, the other permissible documents, such as a W-2 form or pay
    stub will also contain what might be considered personal financial
    data (salary, earnings, etc.) not relevant to proof of the social
    security number. Would it be acceptable for the State, after being
    satisfied with the validity and genuineness of the document, to
    redact out the personal financial data before making an image of the
    document to retain for REAL ID purposes?

-   The Social Security System has no way to verify electronically that
    a person is "ineligible" for a SSN. According to the Social Security
    Administration, the only individuals who are not eligible for a SSN
    are those aliens who do not have permission to work. This can be
    verified through their immigration status listed in SAVE. Maryland
    would suggest that a simpler and easier approach to implement would
    be to provide that a person may certify his or her ineligibility to
    work only if SAVE verified that that applicant had one of the
    following immigration statuses (then just list in the regulations
    the immigration statuses where the alien does not have authorization
    to work).

#### 5. Proof of Residency Issues

-   The Maryland MVA is satisfied with the "2 document approach" to
    verification of principal residence, since this reflects Maryland's
    current State practice. However, MVA recognizes the need to develop
    certain exceptions to meet the customers' needs, such as:

    -   [Minor's Exception]{.underline}---It is often very difficult for
        a minor (under 21) or under legal guardianship to be able to
        provide any reliable documents that contain both their address
        and their name, as minors do not have utility bills, leases,
        etc. Maryland currently allows the parent or legal guardian to
        certify the resident address in lieu of providing two residency
        proofs as long as the parent has a Maryland license or
        identification card and can prove the relationship through the
        birth certificate or court order. Would DHS allow a State to
        create such an exception process for minors?

    -   [Homeless Exception]{.underline} --Maryland also has an
        exception to its proof of residency requirement for those
        individuals who are homeless. These individuals need at least an
        identification card in order to apply for any kind of social
        service assistance. Currently, the Maryland MVA waives the two
        proofs of residency if the applicant provides a letter, on
        letterhead, signed by the director of the Homeless Shelter,
        certifying that the individual is homeless and is staying at
        that shelter. Would DHS allow a State to create such an
        exception process for homeless persons?

    -   [Nursing Home Exception]{.underline}---If an applicant is in a
        nursing home, the Maryland MVA will waive the 2 proofs of
        residency for an identification card if the applicant presents a
        letter from the director of the nursing home, on letterhead,
        indicating that the individual is a patient in the nursing home.
        Would DHS allow a State to create such an exception process for
        homeless persons?

    -   [Sex Offender Program]{.underline}---Under Maryland law, sex
        offenders are required to register and keep current their
        addresses with the registering authority once released from
        incarceration. Compliance on this has been difficult because not
        all offenders have driver's licenses or identification cards,
        making it difficult to track them. To address this important
        public safety issue, Maryland has implemented a program to
        provide identification cards to sex offenders prior to being
        released who do not have a driver's license or ID card. They
        still have to meet the same standards as other applicants for
        proof of age and identity; however, to address the proof of
        residency issue, Maryland has adopted through regulation an
        exception that allows the Department of Public Safety and
        Correctional Services to certify, after due investigation, the
        residence address where the sex offender will be living after
        release. Would DHS allow a State to create such an exception
        process for sex offenders to support the intended public safety
        goal?

### 5. Signature Requirement

-   Maryland law sets no minimum age limit to obtain an ID card; in fact
    the number of ID cards for individuals under the age of under 16 is
    growing due to the rising popularity of ID cards for proof of date
    of birth for little league activities, as well as other general
    identification issues. However, since some families may need to
    obtain REAL ID cards for [all]{.underline} family members in order
    to board an airplane, how would the signature requirement be
    fulfilled if the child for whom the ID card is applied is too young
    to sign his or her name? May the parent or legal guardian sign on
    the child's behalf?

-   The Maryland MVA has also seen a rise in the number of ID cards
    requested by senior citizens who need the cards to be able to access
    social services benefits (Medicaid, Medicare, for example). May the
    spouse, offspring, or legal guardian sign on behalf of the applicant
    if the applicant is too infirm to be able to make his or her
    signature but is able to verbally acknowledge the signature?

##### 6. Verification of Documents

-   [Birth Certificates.]{.underline} The proposed regulations require
    that all birth certificates will have to be verified electronically
    through the Electronic Verification of Vital Events System. DHS also
    indicates that NAPHSIS is expected to have EVVE ready by the REAL ID
    deadline. Even if the EVVE system is ready, that does not
    necessarily mean that all states will be up and running on the EVVE
    system. Even before REAL ID, it was expected that at least 10 years
    would be needed for full EVVE implementation nationwide. Not all
    states have centralized vital record systems, a condition precedent
    to being able to become part of the EVVE system. To date only 3
    jurisdictions are on EVVE.

    -   Realizing that it is highly unlikely that EVVE will become
        completely functional in the neither future, the Maryland MVA
        believes it will be more efficient and lead to greater
        uniformity if the REAL ID regulations provide specific criteria
        of acceptable alternatives to verify birth certificates, at
        least until the EVVE System is fully operational nationwide. We
        recommend a verification process by having the applicant provide
        one or more acceptable documents to verify the birth certificate
        information until electronic verification becomes available,
        similar to the approach DHS has proposed with respect to
        verification of residence address.

    -   This approach would also address the concern of having an
        acceptable alternative verification method even once EVVE is
        thoroughly up and operational. Some states may refuse to
        participate in EVVE and so an alternative verification method
        for birth certificates from other states will be needed.