10820 Federal Register / Vol. 72, No. 46 / Friday, March 9, 2007 / Proposed Rules 

1‘‘Sensitive Security Information’’ or ‘‘SSI’’ is 

information obtained or developed in the conduct 

of security activities, the disclosure of which would 

constitute an unwarranted invasion of privacy, 

reveal trade secrets or privileged or confidential 

information, or be detrimental to the security of 

transportation. The protection of SSI is governed by 

49 CFR part 1520. 

DEPARTMENT OF HOMELAND 

SECURITY 

Office of the Secretary 

6 CFR Part 37 

[Docket No. DHS–2006–0030] 

RIN 1601–AA37 

Minimum Standards for Driver’s 

Licenses and Identification Cards 

Acceptable by Federal Agencies for 

Official Purposes 

AGENCY: Office of the Secretary, DHS. 

ACTION: Notice of proposed rulemaking. 

SUMMARY: The Department of Homeland 

Security is proposing to establish 

minimum standards for State-issued 

driver’s licenses and identification cards 

that Federal agencies would accept for 

official purposes after May 11, 2008, in 

accordance with the REAL ID Act of 

2005. This rule proposes standards to 

meet the minimum requirements of the 

REAL ID Act of 2005, including: 

information and security features that 

must be incorporated into each card; 

application information to establish the 

identity and immigration status of an 

applicant before a card can be issued; 

and physical security standards for 

locations where driver’s licenses and 

applicable identification cards are 

issued. 

DATES: Submit comments by May 8, 

2007. 

ADDRESSES: You may submit comments, 

identified by the DHS docket number 

DHS–2006–0030 that corresponds to 

this rulemaking, using any one of the 

following methods: 

• Federal Rulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

• Fax: 866–466–5370. 

• Mail: Paper, disk or CD–ROM 

submissions can be mailed to the 

Department of Homeland Security, Attn: 

NAC 1–12037, Washington, DC 20528. 

FOR FURTHER INFORMATION CONTACT: 

Darrell Williams, REAL ID Program 

Office, Department of Homeland 

Security, Washington, DC 20528 (202) 

282–9829. 

SUPPLEMENTARY INFORMATION: 

Public Participation 

The Department of Homeland 

Security (DHS) invites interested 

persons to participate in this rulemaking 

by submitting written comments or data, 

and has requested comments on specific 

portions of this rulemaking as described 

in section VI below. We also invite 

comments relating to the economic, 

environmental, energy, or federalism 

impacts that might result from this 

rulemaking action. See ADDRESSES

above for information on where to 

submit comments. 

With each comment, please include 

your name and address, identify the 

docket number at the beginning of your 

comments, and give the reason for each 

comment. The most helpful comments 

reference a specific portion of the 

rulemaking, explain the reason for any 

recommended change, and include 

supporting data. You may submit 

comments and material electronically, 

by fax, or by mail as provided under 

ADDRESSES, but please submit your 

comments and material by only one 

means. If you submit comments by mail, 

submit them in two copies, in an 

unbound format, no larger than 8.5 by 

11 inches, suitable for copying and 

electronic filing. 

If you want DHS to acknowledge 

receipt of comments submitted by mail, 

include with your comments a selfaddressed, stamped postcard on which 

the docket number appears. We will 

stamp the date on the postcard and mail 

it back to you. 

DHS will file in the public docket all 

comments received by DHS, except for 

comments containing confidential 

information and sensitive security 

information (SSI).1 DHS will consider 

all comments received on or before the 

closing date for comments. The docket 

is available for public inspection. 

Handling of Confidential or Proprietary 

Information and Sensitive Security 

Information (SSI) Submitted in Public 

Comments 

Do not submit comments that include 

trade secrets, confidential commercial 

or financial information, or SSI to the 

public regulatory docket. Please submit 

such comments separately from other 

comments on the rulemaking. 

Comments containing this type of 

information should be appropriately 

marked as containing such information 

and submitted by mail to the address 

listed in the FOR FURTHER INFORMATION

CONTACT section. 

Upon receipt of such comments, DHS 

will not place the comments in the 

public docket and will handle them in 

accordance with applicable safeguards 

and restrictions on access. DHS will 

hold them in a separate file to which the 

public does not have access, and place 

a note in the public docket that DHS has 

received such materials from the 

commenter. If DHS receives a request to 

examine or copy this information, DHS 

will treat it as any other request under 

the Freedom of Information Act (FOIA) 

(5 U.S.C. 552) and the Department of 

Homeland Security’s (DHS’) FOIA 

regulations found in 6 CFR part 5. 

Reviewing Comments in the Docket 

Please be aware that anyone is able to 

search the electronic form of all 

comments received into any of our 

dockets by the name of the individual 

submitting the comment (or signing the 

comment, if submitted on behalf of an 

association, business, labor union, etc.). 

You may review the applicable Privacy 

Act Statement published at 

www.regulations.gov. You may also 

review the comments in the public 

docket on the Internet at http:// 

www.regulations.gov. 

Availability of Rulemaking Document 

You can get an electronic copy using 

the Internet by— 

(1) Searching on www.regulations.gov 

by docket number or title, or 

(2) Accessing the Government 

Printing Office’s Web page at http:// 

www.gpoaccess.gov/fr/index.html. 

In addition, copies are available by 

writing or calling the individual in the 

FOR FURTHER INFORMATION CONTACT

section. Make sure to identify the docket 

number of this rulemaking. 

Abbreviations and Terms Used in This 

Document 

AAMVA—American Association of 

Motor Vehicle Administrators 

CAC—Department of Defense Common 

Access Card 

CBP—Customs and Border Protection 

CDLIS—Commercial Driver’s License 

Information System 

CHRC—Criminal History Records Check 

CRBA—Consular Report of Birth Abroad 

DHS—Department of Homeland 

Security 

DMV—Department of Motor Vehicles 

DOS—Department of State 

DOT—Department of Transportation 

EAD—Employment Authorization 

Document 

EVVE—Electronic Verification of Vital 

Events 

HHS—Department of Health and 

Human Services 

IAFIS—Integrated Automated 

Fingerprint Identification 

ICAO—International Civil Aviation 

Organization 

ID—Identification Card 

LPR—Lawful Permanent Resident 

MRT—Machine Readable Technology 


jlentini on PROD1PC65 with PROPOSAL2
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2 Division B—REAL ID Act of 2005, the 

Emergency Supplemental Appropriations Act for 

Defense, the Global War on Terror, and Tsunami 

Relief, 2005, Pub. L. 109–13, 119 Stat. 231, 302 

(2005) (codified at 49 U.S.C. 30301 note). 

MRZ—Machine Readable Zone 

NCSL—National Conference of State 

Legislatures 

NCIC—National Crime Information 

Center 

NGA—National Governors Association 

NPRM—Notice of Proposed Rulemaking 

PDPS—Problem Driver Pointer System 

SAVE—Systematic Alien Verification 

for Entitlements 

SEVIS—Student and Exchange Visitor 

Information System 

SSA—Social Security Administration 

SSI—Sensitive Security Information 

SSN—Social Security Number 

SSOLV—Social Security On-Line 

Verification 

TIF—Tagged Image Format 

TSA—Transportation Security 

Administration 

TWIC—Transportation Worker 

Identification Credential 

USCIS—U.S. Citizenship and 

Immigration Services 

VWP—Visa Waiver Program 

WHTI—Western Hemisphere Travel 

Initiative 

Table of Contents 

I. Background 

A. Statutory Authority 

B. Consultation With States, NonGovernmental Organizations, and the 

Department of Transportation 

C. Summary of the Proposed Rule 

II. Analysis of this Proposed Rule 

A. Scope and Applicability 

1. Definition of ‘‘Official Purpose’’

2. Definition of ‘‘REAL ID driver’s license 

or identification card’’

3. Definition of ‘‘Identification Card’’

B. Compliance Period 

C. Privacy Considerations 

D. Document Standards for Issuing a REAL 

ID Driver’s License or Identification Card 

1. Documents Required for Proving Identity 

2. Additional Documents Considered and 

Rejected for Proof of Identity 

3. Other Documentation Requirements 

E. Verification of Information Presented 

1. Verification of ‘‘Address of Principal 

Residence’’

2. Verification of Identity Information 

3. Verification of Lawful Status 

4. Verification of Date of Birth 

5. Verification of Social Security Account 

Number or Ineligibility 

6. Connectivity to Systems and Databases 

Required for Verification 

F. Exceptions Processing for Extraordinary 

Circumstances 

G. Temporary Driver’s Licenses and 

Identification Cards 

H. Minimum Driver’s License or 

Identification Card Data Element 

Requirements 

1. Full Legal Name 

2. Driver’s License or Identification Card 

Number 

3. Digital Photograph 

4. Address of Principal Residence 

5. Signature 

6. Physical Security Features 

7. Privacy of the Information Stored on the 

Driver’s License or Identification Card 

8. Machine-Readable Technology (MRT) 

9. Encryption 

I. Validity Period and Renewals of Driver’s 

Licenses and Identification Cards 

1. Remote/Non-In-Person Renewals 

2. In-Person Renewals 

J. Source Document Retention 

K. Security of DMV Facilities Where 

Driver’s Licenses and Identification 

Cards are Manufactured and Produced; 

Facility Security Plans 

1. Background Checks for Certain 

Employees 

2. Physical/Logical Security 

3. Document Security Features on Driver’s 

Licenses and Identification Cards 

4. Security of Information Stored in the 

DMV Database 

5. Security of Personal Data and 

Documents Collected and Managed 

Under the Act 

III. State Certification Process 

IV. Driver’s Licenses and Identification Cards 

That Do Not Meet the Standards of 

Subparts A and B of These Regulations 

V. Section 7209 of the Intelligence Reform 

and Terrorism Prevention Act of 2004 

VI. Solicitation of Comments 

VII. Regulatory Analyses 

I. Background 

A. Statutory Authority 

The REAL ID Act of 2005 2 (the Act) 

prohibits Federal agencies, effective 

May 11, 2008, from accepting a driver’s 

license or DMV-issued personal 

identification card issued by a State for 

an official purpose unless the issuing 

State is meeting the requirements of the 

Act. The Act requires DHS to determine 

whether a State is meeting the Act’s 

requirements based upon certifications 

submitted by each State in a manner 

prescribed by DHS. The Secretary of 

Homeland Security is authorized under 

section 203 of the Act to issue 

regulations as necessary to set the 

standards required under the Act. This 

rule proposes implementation standards 

for States to meet the Act’s requirements 

for issuance of driver’s licenses and 

identification cards intended for 

acceptance by Federal agencies for 

official purposes. 

The Act sets forth minimum 

document requirements, minimum 

driver’s license and identification card 

issuance standards, and other 

requirements, including the following—

• Information and features that must 

appear on the face of the driver’s license 

or identification card, and inclusion of 

a common machine-readable portion of 

a driver’s license or identification card; 

• Presentation and verification of 

information an applicant must provide 

before a driver’s license or identification 

card may be issued, including evidence 

that the applicant is a U.S. citizen or has 

lawful status in the United States; 

• Physical security of locations where 

driver’s licenses and identification cards 

are produced, the security of document 

materials and papers from which 

driver’s licenses and identification cards 

are produced, and the background check 

of certain employees involved in the 

manufacture and production of licenses, 

and; 

• Physical security of the driver’s 

licenses and identification cards to 

prevent tampering, counterfeiting, and 

duplication of the documents for a 

fraudulent purpose. 

The Act also permits a State otherwise 

in compliance with the Act to issue 

driver’s licenses and identification cards 

that do not conform to the Act’s 

requirements. Such driver’s licenses and 

identification cards, however, cannot be 

used for an official purpose and must 

clearly state on the face of the card that 

a Federal agency may not use it for an 

official purpose. The State also must use 

a unique design or color indicator so 

that it is readily apparent to Federal 

agency personnel that the card is not to 

be accepted for an official purpose. 

Section 203 of the Act amends 18 

U.S.C. 1028(a) to establish a Federal 

criminal penalty for persons who 

knowingly traffic in actual 

authentication features for use in 

fraudulent identification cards. 

B. Consultation With the States, NonGovernmental Organizations, and the 

Department of Transportation 

Section 205(a) of the Act requires that 

any regulations, standards, or grants 

under the Act be carried out in 

consultation with the Secretary of 

Transportation and the States. DHS has 

met and consulted with the Department 

of Transportation (DOT), and formed an 

interagency work group to develop these 

proposed regulations. DOT and other 

Federal agencies with an interest in this 

rulemaking participated actively in the 

work group. 

DHS has also consulted with State 

officials and State representative 

associations in the development of this 

proposed rule through meetings and 

conference calls in 2005 and 2006. 

Many States and State representative 

associations participated in these events 

and submitted written comments for 

consideration in the development of this 

proposed rule. These are available for 

inspection in the public docket. 

In particular, DHS received comments 

from the National Governors 


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Association (NGA), the National 

Conference of State Legislatures (NCSL), 

and the American Association of Motor 

Vehicle Administrators (AAMVA), 

which aggregated responses from 48 

jurisdictions impacted by REAL ID, 

including 46 States, American Samoa, 

and the District of Columbia. DHS also 

met with various non-governmental 

organizations (NGOs), particularly civil 

rights, privacy and religious groups. The 

States and NGOs raised a series of 

concerns about the requirements 

mandated under the Act. A summary of 

these concerns is outlined below. DHS 

addresses each of these concerns in the 

discussion of the proposed requirements 

under this rule in section II. 

One of the first issues of concern to 

the States was the brief period for 

compliance. There was concern that 

DHS would interpret the Act in such a 

way as to require that all driver’s 

licenses and identification cards 

nationally be brought into compliance 

with the Act by May 2008, an 

impossible task according to the States. 

The States instead suggested a ‘‘date 

forward’’ approach, which we have 

proposed to adopt as a phase-in period 

through May 2013. 

The detailed requirements of the Act, 

particularly requirements for original 

documents and proof of principal 

residence, also raised State concerns 

that individuals, through no fault of 

their own, might not be able to meet 

certain requirements of the Act. The 

States advocated for an exceptions 

process to accommodate certain 

circumstances (victims of natural 

disasters such as Hurricanes Katrina and 

Rita who no longer have certain 

documents, or elderly individuals with 

no birth certificate, for example). We 

understand these concerns and therefore 

propose that the States adopt an 

exceptions process in their Departments 

of Motor Vehicles (DMVs) that will be 

monitored by the State and included as 

part of the State’s certification process 

to DHS. This exception process would 

include any difficulties arising from 

attempts to verify birth information for 

individuals born before 1935, who, due 

to various considerations, may not have 

been issued birth certificates. 

The Act requires States to subject 

certain individuals involved in the 

manufacture and production of driver’s 

licenses and identification cards to 

appropriate background checks. The 

States have suggested to DHS that, due 

to the unique structure of each State’s 

DMV system, the identification of 

positions that should be subject to this 

requirement be left up to the States. 

DHS agrees with this proposal. The 

States have also proposed that new hires 

be allowed to begin work at the DMVs 

while their background check is 

pending. DHS understands that the 

States must have flexibility in their 

hiring, and therefore proposes that 

States place new employees in positions 

that are not subject to the background 

check until the check is complete and 

satisfaction of employment conditions 

for the covered position is determined. 

The States have indicated to DHS that 

the Act will lead to an increase in the 

number of required in-person visits to 

DMVs. Generally speaking, the States 

have sought to utilize alternate service 

channels (particularly the internet and 

services by mail) to reduce the required 

number of in-person visits to DMVs, as 

a means of reducing State costs and 

improving service to customers. The 

States have, therefore, expressed 

particular concerns with the renewal 

process under REAL ID. DHS 

understands these concerns and is 

therefore proposing that States continue 

their remote renewal procedures, as 

long as they establish a procedure to 

verify the identity of individuals 

applying for renewal remotely, maintain 

images of the source documents the 

individual used to obtain a REAL ID 

driver’s license or identification card, 

and establish a procedure to re-verify 

the information on the source 

documents retained by the State. DHS 

proposes, however, that individuals 

with temporary REAL ID driver’s 

licenses or temporary identification 

cards renew their documents in person, 

in order to present evidence of 

continued lawful status. 

C. Summary of the Proposed Rule 

DHS proposes to issue REAL ID 

regulations that create minimum 

standards for State driver’s licenses and 

identification cards that Federal 

agencies can accept for official purposes 

on or after May 11, 2008. Under this 

proposal, States must certify that they 

are in compliance with these 

requirements, and DHS must concur, 

before the driver’s licenses and 

identification cards that the States issue 

may be accepted by Federal agencies for 

official purposes on or after May 11, 

2008. Because DHS recognizes that not 

all driver’s licenses and identification 

cards can be reissued by May 11, 2008, 

the proposal provides a five-year phasein period for driver’s license or 

identification card renewals. All driver’s 

licenses and identification cards that are 

intended to be accepted for official 

purposes as defined in these regulations 

must be REAL ID licenses and 

identification cards by May 11, 2013 

Key features of the proposal include: 

• Applicant documentation. States 

would require individuals obtaining 

driver’s licenses or personal 

identification cards to present 

documentation to establish identity; 

U.S. citizenship or lawful immigration 

status as defined by the Act; date of 

birth; social security number (SSN) or 

ineligibility for SSN; and principal 

residence. States may establish an 

exceptions process for the 

documentation requirement, provided 

that each such exception is fully 

detailed in the applicant’s motor vehicle 

record. 

• Verification requirements. States 

would verify the issuance, validity, and 

completeness of a document presented. 

This proposal specifies electronic 

verification methods depending on the 

category of the documents. 

• Information on driver’s licenses and 

identification cards. The following 

information would be required to 

appear on State-issued driver’s licenses 

and identification cards: full legal name, 

date of birth, gender, a unique driver’s 

license or identification card number 

(not the SSN), a full facial digital 

photograph, address of principal 

residence (with certain exceptions), 

issue and expiration dates, signature, 

physical security features and a 

common machine-readable technology 

(MRT). 

• Security features on the card. The 

proposal contains standards for physical 

security features on the card designed to 

prevent tampering, counterfeiting or 

duplication for a fraudulent purpose, 

and a common MRT with defined data 

elements. 

• Physical security/security plans. 

Each State must prepare a 

comprehensive security plan for all 

State DMV offices and driver’s license/ 

identification card storage and 

production facilities, databases and 

systems and submit these plans to DHS 

as part of its certification package. 

• Employee background checks. 

States would conduct name-based and 

fingerprint-based criminal history 

records checks against State criminal 

records and the FBI’s NCIC and IAFIS, 

respectively, on certain employees 

working in State DMVs who have the 

ability to affect the identity information 

that appears on the driver’s license or 

identification card, who have access to 

the production process, or who are 

involved in the manufacture of the 

driver’s licenses and identification 

cards. States would pay a fee to FBI to 

cover the cost of this check. States 

would also conduct a financial history 

check on these employees. 

• State certification process. Similar 

to DOT regulations governing State 


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administration of commercial driver’s 

licenses (49 CFR part 383), States will 

be required to submit a certification and 

specified documents to DHS to 

demonstrate compliance with these 

regulations and demonstrate continued 

compliance annually. 

• Database connectivity. States would 

be required to provide electronic access 

to specific information contained in the 

motor vehicle database of the State to all 

other States. 

II. Analysis of This Proposed Rule 

A. Scope and Applicability 

The Act does not require any State to 

issue REAL ID driver’s licenses and 

identification cards. States may choose 

to issue driver’s licenses and 

identification cards that cannot be 

accepted by Federal agencies for official 

purposes (referred to in this document 

as ‘‘non-REAL ID driver’s licenses and 

identification cards’’). This proposed 

rule would apply to States and 

territories that choose to issue driver’s 

licenses and identification cards that 

Federal agencies can accept for official 

purposes. Consistent with section 

202(d)(11) of the Act, this rule also 

proposes requirements for issuance of 

non-REAL ID driver’s licenses (as well 

as non-REAL ID identification cards) by 

States in compliance with the Act. 

Under this proposed rule, individuals 

can hold only one valid REAL ID 

driver’s license or identification card at 

a time. 

DHS understands that at present an 

individual may hold active driver’s 

licenses in multiple jurisdictions. 

Although DHS is not regulating issuance 

of non-REAL ID driver’s licenses beyond 

what is required in the REAL ID Act, 

DHS wishes to further the concept of 

‘‘one driver, one record, one record of 

jurisdiction’’ and seeks comment on 

how the REAL ID Act may be 

implemented to discourage the issuance 

of multiple non-REAL ID driver’s 

licenses to an individual, or what steps 

States can take to ensure individuals are 

not holding multiple driver’s licenses 

from multiple States. 

1. Definition of ‘‘Official Purpose’’

Section 201(3) of the Act provides 

that the term ‘‘official purpose’’

‘‘includes but is not limited to accessing 

Federal facilities, boarding Federallyregulated commercial aircraft, entering 

nuclear power plants, and any other 

purposes that the Secretary shall 

determine.’’ DHS proposes to limit the 

regulatory definition of ‘‘official 

purpose’’ at this time, to those purposes 

expressly stated in the Act—accessing 

Federal facilities, boarding commercial 

aircraft, and entering nuclear power 

plants. DHS, under the discretionary 

authority granted to the Secretary of 

Homeland Security under the Act, may 

expand this definition in the future. 

DHS seeks comment on the proposed 

scope of ‘‘official purpose,’’ and how 

DHS could expand this definition to 

other federal activities. 

DHS considered including the 

acquisition of Federally-issued 

identification documents, such as a 

Transportation Worker Identification 

Card (TWIC), military Common Access 

Card (CAC), passport, or PASSport card 

within the proposed definition of 

‘‘official purpose.’’ To do so would be 

consistent with the concept of 

strengthening the reliability of identity 

documents, one of the primary 

objectives of the Act. However, since no 

State would be required to have all of 

its citizens possess Real ID driver’s 

licenses and identification cards until 

May 2013, DHS concluded that it would 

be premature to require Federal agencies 

to accept only Real ID driver’s licenses 

and identification cards during the 

phase-in period and that the imposition 

of such a requirement could inhibit 

individuals from obtaining these 

necessary forms of Federal 

identification. 

Federal agencies themselves do not 

currently examine identification from 

all individuals seeking to board 

regulated commercial aircraft or to enter 

nuclear power plants. In the case of 

aircraft, often it is aircraft operators that 

examine driver’s licenses or other 

identification credentials of individuals 

seeking entry to the sterile area of an 

airport. However, they do so in 

compliance with requirements in 

security programs issued pursuant to 

TSA regulations. DHS interprets the 

language of the REAL ID statute to mean 

that when nongovernmental entities 

require identification for the scope of 

activities considered ‘‘official purposes’’

in compliance with Federal 

requirements, and an individual 

presents a driver’s license or DMVissued identification card, the REAL ID 

Act’s federal acceptance requirements 

would also apply to these 

nongovernmental entities. 

These regulations are not intended to 

change current admittance practices at 

Federal facilities. If a Federal facility 

does not currently require presentation 

of photo identification prior to entry, 

the Act and these proposed regulations 

would not require that process to 

change. Similarly, if a Federal facility 

currently accepts identification other 

than a State-issued driver’s license or 

identification card, the Act and these 

proposed regulations do not require that 

the agency refuse to accept such other 

forms of identification. If the individual 

intends to use a State-issued driver’s 

license or identification card, however, 

it must be one that is issued by a State 

that is complying with the REAL ID Act. 

2. Definition of ‘‘REAL ID Driver’s 

License or Identification Card’’

Throughout this proposed rule, 

driver’s licenses and identification cards 

issued under these regulations that 

Federal agencies may accept for official 

purposes are referred to as ‘‘REAL ID 

driver’s licenses and identification 

cards.’’ The term ‘‘REAL ID driver’s 

licenses and identification cards’’

includes driver’s licenses and 

identification cards issued by State 

DMVs (or other State agencies with 

comparable responsibility for issuing 

driver’s licenses and identification 

cards) to U.S. citizens and Lawful 

Permanent Residents (LPRs) of the 

United States for a maximum renewable 

period of eight years. The term ‘‘REAL 

ID driver’s licenses and identification 

cards’’ also includes driver’s licenses 

and identification cards acceptable for 

official purposes that are issued to 

aliens legally present in the United 

States for a finite period of time, upon 

verification of their current lawful status 

for the period of their authorized length 

of stay, or for one year, if no length of 

stay is specified. In instances where the 

proposed regulation discusses these 

temporary driver’s licenses and 

identification cards independently, 

these types of REAL ID licenses and 

identification cards are referred to as 

‘‘temporary REAL ID driver’s licenses 

and identification cards.’’

3. Definition of ‘‘Identification Card’’

Section 201(2) of the Act defines 

‘‘identification card’’ to mean ‘‘a 

personal identification card, as defined 

in section 1028(d) of title 18 United 

States Code, issued by a State.’’ In turn, 

18 U.S.C. 1028(d) defines this term, in 

pertinent part, to mean ‘‘a document 

made or issued by or under the 

authority of * * * a State [or] a political 

subdivision of a State * * * which, 

when completed with information 

concerning a particular individual, is of 

a type intended or commonly accepted 

for the purpose of identification of 

individuals[.]’’ Section 201(2), by its 

express terms, could cover any 

identification card issued by or under 

the authority of a State, including 

identification cards for State-chartered 

universities and colleges, and cards 

issued by State agencies to obtain public 

benefits. At this time, DHS is limiting 

the scope of this definition to 

identification cards issued by State 


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DMVs or other State offices with 

comparable responsibility for issuing 

driver’s licenses. 

DHS believes that these additional 

documents mentioned above are not 

currently accepted as identification 

documents to the same degree as Stateissued driver’s licenses and 

identification cards issued by a State 

DMV. In addition, it would be unduly 

burdensome at this time for DHS to 

require that the issuers of these 

additional documents comply with 

these proposed standards, since DMVs 

have been considering the Act’s 

requirements for some time, and it is 

likely that universities and other State 

entities have not. 

B. Compliance Period 

Section 202(a)(3) of the Act provides 

that, ‘‘[b]eginning 3 years after the date 

of enactment of this division, a Federal 

agency may not accept, for any official 

purpose, a driver’s license or 

identification card issued by a State to 

any person unless the State is meeting 

the requirements of this section.’’ The 

Act further states that DHS ‘‘shall 

determine whether a State is meeting 

the requirements of [the Act] based on 

certifications made by the State to the 

Secretary.’’ Id., (a)(2). DHS, the 

Department charged with implementing 

and enforcing the REAL ID Act 

requirements for identification 

standards, interprets the compliance 

provision to mean that effective on May 

11, 2008, Federal officials will be 

prohibited from accepting State-issued 

driver’s licenses and identification cards 

for official purpose unless the State has 

submitted the required certification or 

extension application to DHS and DHS 

has determined that the State is meeting 

the requirements of the Act. DHS is 

proposing under this rule to find that a 

State certification is sufficient for 

compliance under the Act if the State 

has established a program that ensures 

the State’s DMVs will begin issuing 

driver’s licenses and identification cards 

that meet the requirements of the Act 

and standards proposed under this 

regulation beginning May 11, 2008. DHS 

does not interpret the Act as requiring 

the States to recall and reissue all 

driver’s licenses and identification cards 

by May 11, 2008. Rather, States will be 

able to replace all driver’s licenses and 

identification cards with REAL ID 

driver’s licenses and identification cards 

intended to be accepted for official 

purposes by May 11, 2013. 

Accordingly, DHS proposes the 

following compliance requirements: 

(1) Each State must submit its 

certification package to DHS on its 

REAL ID driver’s license and 

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. 

C. Privacy Considerations 

The public has long been accustomed 

to providing personal information for 

the purpose of obtaining driver’s 

licenses and identification cards and to 

having this information printed on 

driver’s licenses. Most States already 

include this information in a machine 

readable technology (MRT). With the 

enactment of the REAL ID Act, however, 

there has been increased attention to the 

privacy ramifications involving the 

information that will appear on the 

licenses and identification cards and the 

exchange of information. Some have 

raised concerns that the Act could 

create an increased risk of identity theft 

and erode privacy, or be a steppingstone to a national identity card. 

A frequently-heard concern relates to 

the amount of additional information 

the Federal Government will have about 

driver’s license holders and what the 

Federal Government will do with that 

data. In fact, however, neither the Real 

ID Act nor these proposed regulations 

gives the Federal Government any 

greater access to information than it had 

before. Moreover, there is no 

information about a licensee that the 

Federal Government will store that it is 

not already required to store. 

As described below, DHS has sought 

to address these privacy concerns 

within the limits of its authority under 


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3The Act does not include statutory language 

authorizing DHS to prescribe privacy requirements 

for the state-controlled databases or data exchange 

necessary to implement the Act. This is in sharp 

contrast with the express authorization provided in 

section 7212 of IRTPA, which was the prior state 

licensing provision repealed by the Real ID Act. 

Section 7212(b)(3)(E) of IRTPA stated that the 

Federal regulations ‘‘shall include procedures and 

requirements to protect the privacy rights of 

individuals who apply for and hold driver’s 

licenses and personal identification cards.’’

4Pub. L. 103–322 as amended by Pub. L. 106–69, 

18 U.S.C. 2721 et seq. 

5The database connectivity mandated by the 

REAL ID Act is in addition to the database 

connectivity/functionality required to implement 

the Department of Transportation’s existing control 

over commercial driver’s licensing. In addition, law 

enforcement already have access directly to a 

State’s driver history via the National Law 

Enforcement Telecommunication System (NLETS), 

which is the International Justice & Public Safety 

Information Sharing Network, a message switching 

system serving the criminal justice community. 

NLETS is a not-for-profit organization owned and 

governed by the States. 

6The information available in each jurisdiction’s 

database varies, but generally they already store 

what is required by the Act. 

the Act.3 At the Federal level, only the 

Driver’s Privacy Protection Act of 1994 

(DPPA) 4 addresses the privacy of motor 

vehicle records, but its protections are 

limited. Although it addresses the use 

and disclosure of personal information 

stored in State motor vehicle records, 

the DPPA does not provides privacy 

protections for the personal information 

stored on the licenses themselves or set 

any security requirements for the motor 

vehicle databases. DHS has sought in 

the NPRM to provide for appropriate 

privacy and security protections to the 

extent of its authority. 

This section of the NPRM will 

summarize the requirements of the Act 

that potentially have the greatest impact 

on privacy, the extent to which those 

requirements change current State 

driver’s licensing practices, and how 

DHS intends to address privacy 

concerns regarding the Act. This 

analysis will address the three key 

privacy issues posed by the Act: (1) The 

connectivity of the databases; (2) the 

protection of the personal information 

stored in the State databases; and (3) the 

protection of the personal information 

stored on machine readable technology 

on the DL/IDs. We invite comments on 

whether the steps outlined below and 

otherwise discussed within the NPRM 

are appropriate and adequate. 

1. Connectivity of Databases Mandated 

by the Act 

One voiced privacy concern regarding 

the Act is that it will create a national 

identity card and centralized database 

on all drivers. This concern stems from 

the provisions in the Act requiring that 

the individual States electronically 

verify application information against 

Federal databases and provide State-toState access to verify that each applicant 

only holds a valid license in one 

jurisdiction. DHS envisions that the 

operation of both the State data query of 

Federal reference databases and the 

State-to-State data exchanges will be left 

to the States, as is currently the practice 

in driver’s licensing. 

As discussed below and in section 

II.E.6 of the NPRM, the recommended 

architecture for implementing these data 

exchanges does not create a national 

database, because it leaves the decision 

of how to conduct the exchanges in the 

hands of the States. Moreover, no 

Federal agency will operate the data 

exchanges affecting non-commercial 

driver’s licensing.5

a. The State Data Query of Federal 

Reference Databases. Section 

202(c)(3)(A) of the REAL ID Act requires 

that, before issuing a license or ID, a 

State verify with the issuing agency, the 

‘‘issuance, validity, and completeness of 

each document required to be 

presented.’’ Given that it is very difficult 

to validate that the source documents 

provided by applicants are genuine and 

have not been altered, certain 

identifying data contained in the source 

documents will be checked against 

authoritative Federal databases as 

described in more detail in section II.E. 

of the NPRM. 

As described in section II.E., many 

State DMVs already access one or more 

of these databases as part of their 

current licensing processes. The fact, 

however, that this data verification may 

now be done by all 56 jurisdictions 

heightens privacy concerns. The 

proposed rule seeks to address many of 

these issues by leaving the operation of 

this data query, including the 

development of the business rules, to 

the States. The rule proposes to require 

individual States to document their 

business rules for reconciling data 

quality and formatting issues and urges 

States to develop best practices and 

common business rules by means of a 

collective governance structure. 

A very important example of how 

administration of this data query will be 

left to the States is the commitment by 

DHS to support the development of a 

‘‘federated querying service’’ to enable 

the States to access the Federal 

reference databases in a timely, secure, 

and cost-effective manner. (See section 

II.E.6.) Most States already query some 

of these reference databases either 

directly or indirectly through a portal 

provided by AAMVA. DHS is 

committed to the expedited 

development and deployment of a 

common querying service to facilitate 

the State DMV queries for REAL ID data 

verification. 

To address the privacy concerns 

posed by such a service, the NPRM 

makes clear that this service will only 

enable State DMVs to query Federal 

systems. The purpose of this federated 

querying service will be to minimize the 

impact of data verification on State 

DMV business processes and reduce the 

costs of data access. So while DHS will 

support the development of a querying 

service, it will not operate this service. 

Moreover, use of this federated 

querying service will be voluntary, and 

States may choose to maintain or 

establish direct access to the reference 

databases; combine direct access with 

partial use of a common service; or 

verify applicant data against the 

reference databases in some other 

manner. The proposal by DHS to leave 

the operation of licensing verification 

with the States should resolve concerns 

about a centralized database operated by 

the Federal Government. 

In addition, as part of the State 

certification mandated by section 

202(a)(2) of the Act, each State will be 

required to prepare a comprehensive 

security plan for its DMV offices and 

driver’s license storage and production 

facilities, databases, and systems 

utilized for collecting, disseminating or 

storing information used in the issuance 

of REAL ID licenses. As part of this 

requirement, DHS will require that each 

State include in its annual certification 

information as to how the State will 

protect the privacy of the data collected, 

used, and maintained in connection 

with REAL ID, including all the source 

documents. 

b. The State-to-State Data Exchange. 

Section 202(d)(12) of the Act mandates 

that States provide electronic access to 

information contained in the motor 

vehicle database of the State to all other 

States; and section 202(d)(13) requires 

that the State motor vehicle database 

contains, at a minimum, all data fields 

printed on driver’s licenses and 

identification cards, and motor vehicle 

driver’s histories, including motor 

vehicle violations, suspensions, and 

points on licenses.6 These two 

provisions mandate the State-to-State 

data exchange, however, the NPRM 

contemplates that the States will work 

out the business process and data access 

rules necessary to implement these 

provisions prior to May 11, 2008 by 

means of a collective governance 

structure. 


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7CDLIS was developed to enable record checks 

of the nation’s professional truck and bus drivers. 

It is an enhanced pointer system that requires States 

to update records and exchange data. 

8The Privacy Act of 1974, 5 U.S.C. 552a. 

As described in section II.E., below, 

although the REAL ID Act creates a 

requirement for this State-to-State data 

exchange, such an exchange already 

exists under the Department of 

Transportation’s (DOT) rules and 

regulations governing commercial 

driver’s licenses (CDLs) and State 

connections to the National Driver 

Register (NDR)/Problem Driver Pointer 

System (PDPS) and the Commercial 

Driver’s License Information System 

(CDLIS).7 These systems exchange 

information about commercial motor 

vehicle drivers, traffic convictions, and 

disqualifications. 

A State uses both the NDR/PDPS and 

CDLIS to check a driver’s record, and 

CDLIS to make certain that the applicant 

does not already have a CDL. Under 

these programs, as well as the REAL ID 

Act, the primary purpose of the State-toState data exchange is to determine if 

the applicant is unqualified and the 

application fraudulent; the purpose is 

not specifically to verify the applicant’s 

identity. 

The existing State-to-State data 

exchange among DMVs, while focused 

on commercial driver’s licensing, also 

impacts non-commercial license 

applicants, as States are currently 

required to run all license applicants 

against the PDPS and CDLIS, which are 

both pointer systems that collect limited 

information from each State in order to 

match against the incoming inquiries. 

Both systems offer some mandatory 

privacy protections. The PDPS is subject 

to Federal regulations 23 CFR 1327.1 et 

seq., which adopts the Privacy Act of 

1974 8 principles of individual 

participation and collection, use, and 

disclosure limitation. 

DHS intends to work closely with the 

DOT, AAMVA, and the States to fulfill 

the requirements for State-to-State data 

exchange under the REAL ID Act, while 

also supporting privacy protections for 

this exchange. It has not been 

determined whether CDLIS or some 

other service will be the platform for the 

State-to-State exchange, but regardless 

of the platform, it will be necessary for 

the States, working with DHS and DOT, 

to define the privacy protections for any 

State-to-State data exchange. DHS and 

DOT will collaborate with states on the 

privacy protections and access 

provisions for any State-to-State data 

exchange. 

For example, with support from the 

DHS Privacy Office, representatives of 

the DMVs of California, Iowa, 

Massachusetts, and New York formed a 

Federation in July 2006 to identify a 

collective governance structure for the 

State-to-State data exchange and to 

begin to develop business rules, 

including privacy protections. This 

Federation has recently joined with the 

AAMVA REAL ID Steering Committee 

to develop an independent governance 

structure for the State-to-State data 

exchange. The development of privacy 

protective business rules, standards, and 

governance mechanisms will be central 

to ensuring that the privacy of license 

holders is protected. 

2. Protection of the Personal Information 

Stored in State Databases 

As discussed at the outset of this 

section, the DPPA only addresses 

disclosure of motor vehicle record 

information but does not address the 

security of the motor vehicle record 

information or databases. The REAL ID 

Act, however, calls for DHS to issue 

regulations that ‘‘ensure the physical 

security of locations where licenses and 

identification cards are produced and 

the security of document materials and 

papers from which driver’s licenses and 

identification cards are produced.’’

DHS believes that this language 

provides authority for it to define basic 

security program requirements to ensure 

the integrity of the licenses and 

identification cards. The NPRM, 

therefore, proposes that each State 

submit as part of the REAL ID Act 

certification process a written, 

comprehensive, security plan. This 

requirement provides an important 

safeguard for the personal information 

collected, maintained, and used by State 

motor vehicles offices, and it will help 

assure the public that their information 

is being handled appropriately. (See 

NPRM section II.K., below.) 

As part of its security plan, each State 

is also required to outline how the State 

will protect the privacy of personal 

information collected, disseminated or 

stored in connection with the issuance 

of REAL ID licenses from unauthorized 

access, misuse, fraud, and identity theft. 

Each State must prepare these plans to 

cover all State DMV offices and driver’s 

license storage and production facilities, 

databases and systems and submit them 

as part of its comprehensive security 

plan. 

The State’s certification should 

demonstrate that it has implemented 

best practices to protect the privacy of 

the license holder as guided by the fair 

information principles, which call for 

openness, individual participation 

(access, correction, and redress), 

purpose specification, data 

minimization, use and disclosure 

limitation, data quality and integrity, 

security safeguards, and accountability 

and auditing. These principles are 

widely recognized and embodied in 

numerous Federal, State, and 

international law and codes of practice. 

DHS requests comments on 

recommended best practices for 

protecting the privacy of the personal 

information stored in the various State 

motor vehicle databases pertaining to 

the requirements under this Act. 

3. Protection of the Personal Information 

Stored in the Machine Readable 

Technology 

The REAL ID Act standardizes the 

minimum personal information on 

REAL ID driver’s licenses and 

identification cards, and mandates a 

machine readable technology. DHS is 

sensitive to the privacy concerns raised 

by the potential for non-governmental 

third parties to collect and use the 

personal information on REAL ID 

driver’s licenses and identification 

cards. As discussed in sections II.H.7–

9, DHS is recommending that States use 

the PDF–417 2D bar code and DHS leans 

toward recommending that States 

protect the personally identifiable 

information stored in this 2D bar code 

by requiring encryption, if the 

operational complexity of deploying a 

nationwide encryption infrastructure to 

process access by law enforcement can 

be addressed. 

4. Conclusion 

In summary, DHS has proposed the 

following privacy protections in its 

implementing regulations for the REAL 

ID Act: (1) The State-to-State data 

exchanges and the State data query of 

Federal reference databases will be State 

operated and governed; (2) as part of the 

State certification process, States will be 

required to submit a comprehensive 

security plan, including information as 

to how the State implements fair 

information principles; and (3) while 

acknowledging the benefits of 

employing encryption of the personal 

information stored on the identification 

cards, we invite comment on its 

feasibility and costs and benefits to 

ensure that its costs do not outweigh the 

benefits to privacy. 

These protections are intended to 

serve as a floor and do not prevent the 

States from using their own statutory or 

executive authority to provide 

additional privacy protections, 

consistent with Federal law, for the 

personal information stored on the 

REAL ID licenses and in their databases. 

DHS intends to work closely with the 

States as they develop the information 


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9A passport also includes the passport card that 

the Department of State announced in its Notice of 

Proposed Rulemaking published October 17, 2006 

concerning the Western Hemisphere Travel 

Initiative (WHTI) (71 FR 60928). 

system(s) necessary for querying 

appropriate Federal and State databases 

to verify the information contained in 

the source documents and to determine 

lawful status of applicants. DHS expects 

that any system developed for purposes 

of the REAL ID Act will build in 

appropriate privacy and security 

mechanisms to reduce the risk of 

unauthorized access, misuse, fraud, and 

identity theft. 

DHS believes that protecting the 

privacy of the personal information 

associated with implementation of the 

REAL ID Act is critical to maintaining 

the public trust that Government can 

provide basic services to its citizens 

while preserving their privacy. DHS 

recognizes the significant privacy issues 

that are associated with the Act. The 

public is encouraged to comment on the 

privacy and security issues associated 

with implementation of the Act in order 

to ensure that the final rule 

implementing this statute reflects 

sufficient public input on these 

important issues, which could include 

the requirements of State 

comprehensive security plans; access to 

information collected by States pursuant 

to the REAL ID Act and the protection 

of such information stored in State 

databases; and the operation and 

governance of electronic verification by 

States of driver’s license application 

information. 

D. Document Standards for Issuing a 

REAL ID Driver’s License or 

Identification Card 

Section 202(c)(1) and (2) of the Act 

requires that States issuing REAL ID 

driver’s licenses and identification cards 

obtain and verify from applicants 

documentation establishing—

(1) The applicant’s identity, through a 

photo identity document, or a nonphoto identity document that includes 

full legal name and date of birth if a 

photo identity document is not 

available; 

(2) Date of birth; 

(3) Proof of SSN or ineligibility for an 

SSN; 

(4) The applicant’s address of 

principal residence; and 

(5) Lawful status in the United States. 

Currently, every State has a different 

list of the kind and number of 

acceptable identification documents. 

Many are voluminous, encompassing 40 

or 50 different types of documents. 

Many States utilize a ‘‘points’’ system 

where a combination of documents 

accumulating a sufficient number of 

‘‘points’’ is deemed sufficient. Others 

use a tier system of ‘‘primary’’ and 

‘‘secondary’’ documents, where, for 

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 valid unexpired U.S. passport.9

• A certified copy of a birth 

certificate. 

• A consular report of birth abroad. 

• An unexpired permanent resident 

card. 

• An unexpired employment 

authorization document (EAD). 

• An unexpired foreign passport with 

valid U.S. visa affixed. 

• A U.S. certificate of citizenship. 

• A U.S. certificate of naturalization; 

or 

• A REAL ID driver’s license or 

identification card issued subsequent to 

the standards established by this 

regulation. 

a. A Valid Unexpired United States 

Passport. A U.S. passport is issued only 

by the U.S. Department of State (DOS). 

It may be issued only to United States 

citizens or nationals. If issued for the 

full validity period (ten years for adults; 

five years for minors under 16 and for 

diplomatic and official bearers) it is 

statutory proof of U.S. citizenship 

during its period of validity. Before a 

U.S. passport is issued, the written 

application is carefully adjudicated to 

establish the citizenship and identity of 

the bearer. First-time applicants must 

appear in person. A U.S. passport has 

security features that include special 

paper, inks and photo printing that 

make it difficult to counterfeit or alter. 

Beginning in 2006, U.S. passports also 

contain the additional security feature 

of an integrated circuit chip containing 

the bearer’s bio-data, a biometric, and 

unique chip identification information. 

b. Certified Copy of a Birth Certificate 

Issued by a U.S. State or Local Office of 

Public Health, Vital Records, Vital 

Statistics or Equivalent. DHS recognizes 

that a birth certificate is not an identity 

document in the true sense of the term. 

Instead, a birth certificate is a record 

that a birth took place at a particular 

time and place, and nothing (such as a 

photograph or other biometric) ties a 

particular person to a particular birth 


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certificate. However, section 

202(c)(1)(A) of the Act states that a nonphoto identity document is acceptable, 

if it includes the person’s full legal 

name and date of birth. DHS believes 

that this strongly suggests that Congress 

intended to maintain the use of the birth 

certificate for this purpose, recognizing 

the longstanding practice that birth 

certificates are used to obtain driver’s 

licenses and identification cards. DHS 

also understands that the vast majority 

of driver’s license and identification 

card applicants may only have a birth 

certificate available for this purpose; 

while U.S. citizens could use a U.S. 

passport, passports are currently held 

only by an estimated 25 percent of 

Americans. 

To achieve security objectives, DHS is 

proposing that only certified copies of 

birth certificates that include the 

individual’s full name and can be 

verified by a State vital statistics, public 

health, or similar office would be 

acceptable. Interpreting this more 

broadly could result in a myriad of nonsecure, non-verifiable documentation 

being used to obtain a driver’s license or 

identification card. Given the fact that 

Congress specified that the requirements 

enumerated in section 202(c)(11) were a 

‘‘minimum,’’ and given also the serious 

security implications associated with 

other implementation considerations 

included in Title II of the Act, DHS 

believes that it has the necessary 

authority to interpret this clause 

narrowly. Accordingly, this regulation 

interprets section 202(c)(1)(A) to mean 

only a certified copy of a birth 

certificate, and only one issued 

pursuant to the other requirements 

discussed in this section. These 

regulations do not preclude a State that 

accepts a birth certificate as the 

applicant’s identity document from 

requiring the individual to also present 

one or more forms of photo 

identification to substantiate his or her 

claimed identity. 

A corollary issue considered by DHS 

is whether to recognize delayed birth 

certificates issued more than one year 

after the birth itself. While these cases 

are relatively few, States have 

established procedures in place for 

adjudicating these claims and require 

evidence to prove the actual occurrence 

of the birth prior to issuing the birth 

certificate. Therefore, delayed birth 

certificates lawfully issued by the States 

will also be acceptable as an identity 

document. 

c. DOS Consular Report of Birth 

Abroad of a Citizen of the United States, 

FS–240; and DS–1350 and FS–545. The 

Consular Report of Birth Abroad 

(CRBA), FS–240, is a document issued 

by a United States consular officer to a 

person born abroad who acquired 

United States citizenship at birth. It is 

statutory proof of U.S. citizenship. The 

parent of a child acquiring U.S. 

citizenship at birth abroad must apply 

for the CRBA before the child’s 18th 

birthday, and must document the 

child’s acquisition of U.S. citizenship. 

The CRBA is printed on secure paper in 

a format that resembles a state birth 

certificate. There are two other DOS 

documents issued for U.S. citizens born 

abroad and acquiring U.S. citizenship at 

birth. Certifications of Report of Birth 

Abroad (DS 1350), issued only by 

Passport Services Vital Records Office, 

may be accepted as the equivalent of the 

CRBA. Certifications of Birth (FS–545) 

issued at U.S. Foreign Service posts 

prior to November 1990 but no longer 

issued are still valid and list only the 

child’s name, date of birth, place of 

birth, and recording date. 

d. Certificate of Naturalization, Form 

N–550 or N–570, or Certificate of 

Citizenship, Form N–560 or N–561. The 

Certificate of Naturalization is issued by 

the United States government as proof 

of a person having obtained U.S. 

citizenship through naturalization (a 

legal process of obtaining a new 

nationality). The Certificate of 

Citizenship is proof of an individual 

having obtained U.S. citizenship 

through derivation or acquisition at 

birth. These documents are currently 

issued by DHS, printed on secure paper 

and have a photograph attached. 

e. Unexpired Permanent Resident 

Card, Form I–551. This document, also 

known as a ‘‘green card,’’ is issued by 

DHS to lawful permanent residents of 

the United States. The current version 

contains numerous security features, 

such as microline printing and a digital 

photograph. While most of these 

documents display an expiration date, 

the status itself does not expire. 

f. Unexpired EAD, Form I–766 or 

Form I–688B. This document is issued 

by DHS to numerous categories of aliens 

in the United States who are lawfully 

authorized to work. The Form I–766 

document is secure and difficult to 

counterfeit. The I–688B is expected to 

be phased out by 2008, but under this 

proposal would be acceptable until it is 

phased out. 

g. Unexpired Foreign Passport with 

valid U.S. visa affixed. Valid unexpired 

passports from around the world have 

traditionally been acceptable 

documentation to establish identity in 

most, if not all, States. Most passports 

meet certain international standards 

criteria for security as defined by the 

International Civil Aviation 

Organization (ICAO). Security features 

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 


jlentini on PROD1PC65 with PROPOSAL2
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10Testimony of James Huse, Jr. Inspector General, 

Social Security Administration, House Judiciary 

Committee’s Subcommittee on Crime, Terrorism, 

and Homeland Security; and Subcommittee on 

Immigration, Border Security, and Claims, 107th 

Cong., 2nd Sess., June 25, 2002. 

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. 

b. Evidence of a SSN or Proof of 

Ineligibility. The United States, on both 

Federal and State levels, has 

experienced significant amounts of 

fraud due to the misuse of SSNs. Much 

of this has been in the context of 

‘‘identity theft’’ or other financial 

crimes. However, the misuse of SSNs 

can have a national security impact as 

well. For example, many of the 

September 11, 2001 (9/11) hijackers 

used numbers that were either never 

issued by the Social Security 

Administration (SSA), were issued in 

the name of a child, or had been 

associated with multiple names. The 

hijackers used this information to obtain 

driver’s licenses, and some held 

multiple driver’s licenses from States 

including Virginia, Florida, California, 

Arizona, and Maryland.10 Accordingly, 

DHS believes that the congressional 

mandate to check all SSNs against SSA 

databases prior to the issuance of a 

REAL ID driver’s license or 

identification card will increase security 

and decrease the ability to obtain 

driver’s licenses fraudulently. This will 

not be a significant burden to the States 

as almost all jurisdictions currently 

verify SSNs against SSA databases, 46 

States using Social Security On-Line 

Verification (SSOLV). 

SSA has taken significant steps since 

2001 to strengthen the SSN issuance 

process. SSA has a plan for improving 

the security of the SSN card itself, in 

compliance with section 7213 of the 

Intelligence Reform and Terrorism 

Prevention Act of 2004. In recognition 

of improvements in the SSN issuance 

process and plans for improving the 

security of the SSN card, DHS 

considered requiring DMVs to require 

individuals to present a social security 

card with their full name and SSN as 

the only mechanism to demonstrate 

evidence of their SSN. 

DHS recognizes, however, that this 

approach would be costly and would 

create an undue hardship on SSA and 

the public, particularly on members of 

the public who had lost or misplaced 

their social security cards. Accordingly, 

DHS proposes to allow an applicant to 

establish his or her SSN by presenting 

his or her social security card, a W–2 

form, a SSA–1099 form, a non-SSA 

1099, or a pay stub with the applicant’s 

name and SSN on it. 

An alien in the United States without 

authorization to work is generally not 

eligible for an SSN. Thus, to prove 

ineligibility for an SSN, an alien must 

present evidence that he or she is 

currently in a non-work authorized nonimmigrant status. 

c. Documentation of Address of 

Principal Residence. There are a number 

of potential ways to define the term 

‘‘principal residence.’’ DHS reviewed 

State definitions of this term and did 

not find a consistent definition. The 

NGA observed that State laws vary 

widely on how to define residency/ 

domicile because a mobile society leads 

to frequent relocations, ownership of 

multiple properties, as well as lifestyles 

that include no fixed address. 

Accordingly, DHS proposes to use the 

Black’s Law Dictionary definition of 

‘‘domicile’’ which DHS believes 

captures the intent of the principal 

residence requirement of the Act: 

The place at which a person has been 

physically present and that the person 

regards as home; a person’s true, fixed, 

principal and permanent home, to which that 


jlentini on PROD1PC65 with PROPOSAL2
10830 Federal Register / Vol. 72, No. 46 / Friday, March 9, 2007 / Proposed Rules 

11Bryan A. Garner, editor, Black’s Law 

Dictionary, 8th ed., p. 523 (Thomson-West, 2004). 

12Testimony of Paul McNulty, United States 

Attorney, Eastern District of Virginia, House 

Judiciary Committee’s Subcommittee on Crime, 

Terrorism, and Homeland Security; and 

Subcommittee on Immigration, Border Security, 

and Claims, 107th Cong., 2nd Sess., June 25, 2002. 

13See discussion infra at II.J.2 on verification of 

birth certificates through the Electronic Verification 

of Vital Events system (EVVE). If this system is not 

operational by May 11, 2008, a State must verify the 

validity of the birth certificate at the first license 

renewal or re-issuance once EVVER is available. 

person intends to return and remain even 

though currently residing elsewhere.11

The need to determine an individual’s 

principal residence prior to issuance of 

a REAL ID driver’s license also has its 

origins in the 9/11 terrorist activity. 

Seven of the 9/11 hijackers fraudulently 

obtained driver’s licenses in the 

Commonwealth of Virginia, although 

none of them actually lived there, by 

providing false information as to their 

true place of residence. At the time 

Virginia allowed only a ‘‘signed 

affidavit’’ of a Virginia resident to 

suffice as proof of residency in the State, 

and two of the hijackers paid an illegal 

immigrant (who had himself obtained a 

driver’s license fraudulently) $100 to 

vouch for them.12 By September 21, 

2001, Virginia had eliminated this 

loophole. 

DHS recognizes that some individuals 

do not have a fixed address, as that term 

is commonly used. Individuals who do 

not have a fixed address, such as the 

homeless, may still obtain a REAL ID 

driver’s license or identification card if 

they otherwise can produce the 

documents a State must possess and 

verify prior to issuing a REAL ID 

driver’s license or identification card. 

For such individuals, a State may issue 

REAL ID driver’s licenses and 

identification cards by adhering to a 

written exceptions policy as described 

in section II.F. below. 

d. Evidence of Lawful Status in the 

United States. The REAL ID Act 

specifies the scope of lawful status in 

the United States for purposes of 

eligibility for a REAL ID driver’s license 

or identification card acceptable for 

official purposes. The applicant must be 

a person who: Is a citizen or national of 

the United States; is an alien lawfully 

admitted for permanent or temporary 

residence in the United States; has 

conditional permanent resident status in 

the United States; has an approved 

application for asylum in the United 

States or has entered into the United 

States in refugee status; has a valid, 

unexpired nonimmigrant visa or 

nonimmigrant visa status for entry into 

the United States; or has a pending 

application for asylum in the United 

States; has a pending or approved 

application for temporary protected 

status (TPS) in the United States; has 

approved deferred action status; or has 

a pending application for LPR or 

conditional permanent resident status. 

A U.S. passport, certified copy of a 

birth certificate, DOS consular report of 

birth abroad, certificate of citizenship, 

certificate of naturalization or a 

permanent resident card can be used to 

establish lawful status in the United 

States for purposes of this proposed 

regulation. If an applicant presents an 

employment authorization document 

(Form I–766) or a foreign passport with 

a valid U.S. visa and/or DHS 

nonimmigrant Form I–94 affixed for 

identification, these documents may be 

accepted as provisional evidence of 

lawful status, pending verification of 

status through the Systematic Alien 

Verification for Entitlements (SAVE) 

system (see section II.E.3 below). Note 

that while all documents presented 

must be verified through SAVE or 

otherwise, the difference is that since a 

visa or EAD are not necessarily linked 

to an authorized status, their acceptance 

is deemed provisional pending 

confirmation of exact status through 

further verification. DHS considered, 

but rejected, requiring additional 

documentary evidence of status that 

may be issued by DHS, but considered 

this requirement unworkable, 

particularly since many holders of EADs 

simply do not have any other consistent, 

reliable identification. 

The EAD is envisioned as the 

document to be presented by the 

following classes of REAL ID-authorized 

aliens: Temporary Protected Status 

(TPS) aliens; asylees and asylum 

applicants; refugees; adjustment 

applicants; and aliens granted deferred 

action. DHS understands that regulatory 

limitations on issuance of EADs to 

asylum and TPS applicants will result 

in a wait period before these aliens will 

have acceptable documentation, and 

invites comment on what alternative 

documentation regimen may serve for 

these groups, and whether those groups 

need a REAL ID driver’s license or 

identification card before their 

applicable wait period expires. 

The proposed rule also does not 

include immigration documentation 

showing any status under the 

immigration laws of American Samoa or 

the Commonwealth of the Northern 

Marianas for aliens within those 

jurisdictions. REAL ID specifies U.S. 

immigration statuses. DHS invites 

further comment about how these 

jurisdictions may better be integrated 

into the REAL ID framework. 

E. Verification of Information Presented 

Section 202(c)(3)(A) of the Act 

requires verification from the issuing 

agency for issuance, validity, and 

completeness of documentation to 

establish the following: 

• Identity. 

• Date of birth. 

• Proof of SSN, or that the person is 

not eligible for an SSN. 

• The person’s name and address of 

principal residence. 

• The person’s lawful status in the 

United States. 

The documents that individuals are 

required to present are described in 

section II.D.1 and are listed in § 37.11 of 

the proposed regulation. 

To verify with the issuing agency, the 

issuance, validity, and completeness of 

documentation means that the State 

must determine independently that the 

document itself has been legitimately 

issued by the issuing agency to the 

individual presenting the document, 

prior to issuing the driver’s license or 

identification card to the individual.13

This means that DMVs are required to 

perform a physical inspection of the 

source document to ensure that it 

appears authentic and has not been 

tampered with. However, document 

verification is not sufficient. DMVs must 

also verify the information contained in 

the document with an authoritative or 

reference database. Thus, States must 

verify both document and data under 

the Act, although this verification may 

be phased in over time. 

The use of the phrase ‘‘required to be 

presented by the person under 

paragraph (1) and (2)’’ in section 

202(c)(3)(A) of the Act means that only 

the specific documents required by this 

proposed regulation need to be verified. 

Thus, in the case of identity, only the 

documents listed in these regulations as 

required to be presented must be 

verified. If States wish to require 

additional documentation to prove 

identity—for example, if they wish to 

require photo identification in addition 

to a certified copy of a birth certificate—

then the State does not need to 

independently verify these additional 

items, only the birth certificate, as it is 

included on the Federal list. Ensuring 

that at least one document presented is 

independently verified will increase 

security by reducing the ability to 

fraudulently manufacture 

documentation typically used to obtain 

driver’s licenses and identification 

cards. 

Requiring additional documentation 

can help a State to confirm the identity 

(or address, or whatever fact is at issue) 


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14One exception might be American Samoa as 

this territory does not possess the same type of 

addresses commonly used in the 50 States. 

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. 

While States are free to determine the 

list of acceptable documents for 

themselves, whatever documents 

individuals submit must contain a street 

address for individuals where available. 

Post office boxes or rural route numbers 

are not acceptable addresses, since the 

statute requires a residence, not simply 

an address.14 Documents issued 

monthly (e.g., bank statements, utility 

bills) could not be more than three 

months old at the time of application. 

Documents issued annually (e.g., 

property tax records) would need to be 

for the most current year at the time of 

application. 

Applicants would also be required to 

sign a declaration (that could be 

included as part of the driver’s license 

or identification card application form) 

affirming that the information presented 

is true and correct, including 

information presented to establish 

address of principal residence. For 

minors and other dependents, parents or 

legal guardians would submit the 

documentation establishing a principal 

residence on behalf of the driver’s 

license or identification card applicant. 

The parent or legal guardian would 

need to present photo identification 

(that the DMV would need to verify) and 

would be required to submit two or 

more address documents, as if he or she 

were the primary applicant, and sign the 

affirmation. 

2. Verification of Identity Information 

a. Certified copy of a Birth Certificate 

Issued by a U.S. State or local office of 

Public Health, Vital Records, Vital 

Statistics or equivalent. DHS anticipates 

that the States will be able to verify 

electronically the issuance of a birth 

certificate through the Electronic 

Verification of Vital Events (EVVE) 

system. Once functional, this system 

will be able to verify that the 

information presented on a certified 

copy of a birth certificate is a match to 

a vital statistics birth record, in response 

to an electronic query from a State 

DMV. While the EVVE system has not 

been tested nationwide, the National 

Association of Public Health Statistics 

and Information Systems (NAPHSIS) 

has informed DHS that such a system 

could be in place and fully operational 

by May 2008. If such a system is either 

not available nationally by the effective 

date of the regulations, or a State is 

seeking to verify the validity of a birth 

certificate from a State that is not 

participating in the EVVE system, a 

State may establish written procedures 

for how it will attempt to verify such 

records, and document its use of those 

procedures. At a minimum, the 

applicant’s file and/or records should 

contain a notation that the birth 

certificate information was not verified 

electronically with the issuing agency, 

and such electronic verification will be 

necessary at the first driver’s license or 

identification card renewal or reissuance once the information is 

available for electronic verification. 

Confirmation of the birth certificate 

through EVVE will verify not only the 

person’s identity but also provide 

evidence that they are very likely to be 

a U.S. citizen and therefore have lawful 

status in the United States. 

As discussed above, individuals born 

before January 1, 1935, may be unable 

to produce birth certificates, or States 

may be unable to verify any birth 

certificates produced by such 


jlentini on PROD1PC65 with PROPOSAL2
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individuals. Individuals born before 

1935 may never have received a birth 

certificate, and it may not be possible 

for their birth States to reproduce the 

document for them. In addition, States 

may not have birth information 

available electronically for all births 

prior to 1935, and DHS believes that it 

would be too burdensome on States to 

verify this information in a nonelectronic method. Such cases should 

not preclude persons from obtaining a 

REAL ID driver’s license or 

identification card, but should be 

handled according to the State’s 

exceptions process. DHS intends to 

align this provision with the final rule 

on minimum standards for birth 

certificates promulgated by HHS, in 

accordance with its statutory obligation 

under section 7211 of the Intelligence 

Reform and Terrorism Prevention Act 

(Pub. L. 108–58). 

b. U.S. passports or Consular Report 

of Birth Abroad issued to U.S. citizens 

abroad by the Department of State. It is 

anticipated that a State will be able to 

electronically verify a U.S. passport, or 

a birth certificate issued to a U.S. citizen 

abroad. The automated system that is 

eventually developed will confirm that 

the passport was issued by DOS. In the 

case of a U.S. passport or a consular 

report of birth abroad issued by DOS, 

electronic verification will also confirm 

that the applicant has lawful status in 

the United States. 

c. Valid U.S. visas affixed in an 

unexpired foreign passport. DHS 

examined several options in 

determining how to independently 

verify a U.S. visa affixed to a foreign 

passport as required by the REAL ID 

statute. First, verifying the foreign 

passport itself with the Government that 

issued it is simply not feasible. There is 

no guarantee that a foreign Government 

would answer a State DMV’s request to 

authenticate a specific document, or any 

requirement in international law that 

they do so in a timely manner. 

Requiring this foreign independent 

verification would be an unfair burden 

to both the driver’s license or 

identification card applicant and the 

State DMV attempting to adjudicate the 

application. 

Recognizing that the U.S. visa affixed 

in the passport, and not the passport 

itself, would be the acceptable 

documentation to demonstrate identity, 

DHS turned to how that verification 

would occur. First, DHS examined 

whether the DMVs could use the State 

Department systems to verify the visa. 

While this was a feasible solution since 

access to DOS databases will ultimately 

be necessary for all DMVs anyway (to 

verify U.S. passports and certain birth 

certificates), authentication of a U.S. 

visa does not, by itself, establish lawful 

status in the United States. 

While a U.S. visa can be issued for as 

long as ten years (and often is), it is the 

Customs and Border Protection (CBP) 

Officer at U.S. ports of entry who 

determines the actual admission period 

for the person seeking to enter the 

United States. In most cases, this 

admission period is less than the 

validity period of the U.S. visa. 

Accordingly, foreign travelers often use 

the same visa for multiple trips to the 

United States—and the length of 

validity period for the visa is not 

dispositive as to whether someone has 

lawful status in the United States. 

Therefore, to adopt a policy in which a 

U.S. visa holder must use that visa to 

establish identity would require that 

aliens using a U.S. visa as evidence of 

identity have to undergo three separate 

checks—the DOS database (to confirm 

identity), SAVE (to confirm lawful 

status), and SSOLV (to confirm the 

Social Security Number). All other 

categories of driver’s license or 

identification card applicants, including 

U.S. citizens (whether born in the U.S. 

or abroad), LPRs, and others would 

require only two database checks. This 

approach was deemed to be unduly 

burdensome on both the applicant and 

the DMV. 

DHS then considered another 

solution—validating the U.S. visa 

through existing U.S. immigration and 

border processing procedures, including 

DHS’s U.S.VISIT and the Department of 

State’s BioVisa Program. Currently, 

when a person applies for a U.S. visa 

abroad, he or she is required to submit 

finger scans, which are biometrically 

verified when the person arrives in the 

United States—so that the United States 

can be sure that the person who 

received the visa is the same person 

seeking admission. 

DHS believes that, for purposes of 

obtaining a REAL ID driver’s license or 

identification card, the fact that the U.S. 

visa was used to enter the United States, 

and that person was checked against 

US-VISIT, is an acceptable verification 

that the document (the U.S. visa) is 

legitimate. The U.S. visa has been 

checked against a Government-held 

database via the biometric check upon 

arrival. State DMVs will not be required 

to check the US-VISIT system to 

confirm that the visa was used for 

admission. Thus, if the person holding 

a U.S. visa has lawful status in the 

United States, which can be verified 

through SAVE, then the person will 

have established both identity and 

lawful status. Under this proposal, 

aliens presenting a foreign passport with 

a valid U.S. visa would require only a 

SAVE and SSOLV check, placing them 

on par with other driver’s license or 

identification card applicants. 

3. Verification of Lawful Status 

If an applicant presents a permanent 

resident card (Form I–551), an EAD 

(Form I–766), or a foreign passport with 

a U.S. visa affixed, the applicant is not 

a U.S. citizen. In accordance with the 

Act, this proposal would require the 

States to verify the authenticity of the 

identity documentation and lawful 

status in the United States at the same 

time, using the SAVE system 

maintained by U.S. Citizenship and 

Immigration Services (USCIS). Under 

section 202(c)(3)(C) of the Act, States 

have already been required to enter into 

memoranda of understanding with DHS 

by September 11, 2005, to use the 

electronic and automated system to 

verify the legal status of a non-U.S. 

citizen applying for a REAL ID driver’s 

license or identification card. 

SAVE is an existing program within 

DHS that allows State DMVs (as well as 

many other Federal, State, and local 

benefit and license granting agencies) to 

verify electronically the immigration 

status of the person applying for a 

driver’s license or identification card. 

This system can verify that a person 

presenting a Permanent Resident Card 

(Form I–551) was issued lawful 

permanent resident status in the United 

States and, thus, is lawfully in the 

country. SAVE can also confirm that a 

person presenting an EAD (Form I–766 

or Form I–688B) is in a lawful 

nonimmigrant status and present in the 

United States for a fixed period of time. 

Moreover, SAVE can confirm that an 

applicant presenting a U.S.-issued visa 

affixed to a foreign-issued passport is 

lawfully in the country for a temporary 

period of time. If a person presents a 

U.S.-issued visa affixed to a foreignissued passport, then the applicant will 

also need to present additional 

documentation to allow for a SAVE 

search. This could be a passport stamp, 

an I–797 Notice of Action, or some other 

documentation issued by USCIS. The 

terms and conditions of access to SAVE 

by a State, including any costs to be 

borne by the State, shall be established 

by memorandum of agreement between 

DHS and the State pursuant to section 

202(c)(3)(C) of the Act. 

For student aliens admitted for 

duration of status (D/S), DMVs should 

use the Student and Exchange Visitor 

Information System (SEVIS) for 

verification. SEVIS is a system in which 

DHS and schools who enroll foreign 

students communicate to ensure that the 

aliens claiming student status (as well 


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as exchange visitors such as au pairs) 

are in fact currently enrolled. There will 

ultimately be a connection between 

SEVIS and SAVE, but until such time, 

DHS has decided on the following: 

• DHS will use the SAVE/SEVIS 

connection, if the systems are connected 

prior to May 2008. 

• If the SAVE/SEVIS connection is 

not available, DHS may require foreign 

students to present a certified statement 

from the registrar of the school in a 

sealed envelope demonstrating that he 

or she is still in school at the time of the 

alien’s application for a driver’s license 

or identification card (and thus still in 

lawful status). 

Individuals who are denied a 

temporary REAL ID driver’s license or 

identification card due to a SAVE check 

that they believe is in error should 

contact the local USCIS branch, or as 

USCIS may otherwise direct, to resolve 

concerns over verification of their 

lawful status. 

4. Verification of Date of Birth 

As stated earlier, all of the documents 

listed on the proposed list of acceptable 

identity documents display the date of 

birth on the face of the document. Thus, 

once the information on the document 

is verified, as it must be for identity 

purposes, there is no further need for 

the States to verify date of birth 

independently. 

5. Verification of Social Security 

Account Number or Ineligibility 

Because of the requirements for the 

issuance of commercial driver’s 

licenses, the majority of State DMVs 

already have access to the SSA database 

for verification of SSNs. Thus, when the 

DMV applicant presents evidence of an 

SSN, the DMV will be able to verify that 

number through existing systems. 

Verification that a person is not eligible 

for an SSN must also be provided. To 

satisfy this requirement, an alien must 

present evidence, verifiable through 

SAVE, that he or she is currently in a 

nonimmigrant status establishing that 

he or she does not have the right to 

work in the United States. A person is 

never permanently ineligible for an 

SSN, as he or she could obtain some 

type of immigration status that would 

entitle him or her to one. 

6. Connectivity to Systems and 

Databases Required for Verification 

For individual States to verify 

information and documentation 

provided by applicants, each State must 

have electronic access to multiple 

databases and systems as described 

above. DHS considers the deployment of 

the information systems needed to 

support the electronic verification of 

applicant data to be its highest priority. 

Secure and timely access to trusted data 

sources is a prerequisite for effective 

verification of applicant data. Electronic 

access to the Federally-sponsored 

databases described above will also 

significantly reduce the costs of REAL 

ID driver’s license and identification 

card issuance to States. Finally, DHS 

will work closely with the States to 

improve their capabilities for verifying 

the authenticity of source documents. 

Both data verification and document 

authentication are necessary to ensure 

the validity of REAL ID driver’s licenses 

and identification cards. 

a. Applicant Data Verification. 

Electronic data verification requires 

secure and timely communications 

among a number of both Federal and 

State-sponsored information systems. 

DHS can provide assistance to states in 

three key areas: Enhancement of 

Federally-sponsored reference 

databases; development of a cost 

effective service for querying these 

reference databases; and the exchange of 

data among states to reduce fraud. 

While DHS will provide assistance to 

states in all three areas, its role and 

responsibilities will differ in each. 

i. Reference databases. Confidence in 

the accuracy and reliability of the data 

provided by applicants and included on 

their driver’s licenses and identification 

cards depends in large part on the 

quality and completeness of data in the 

reference databases used for 

verification. These databases, however, 

are Federally-sponsored and Federallyfunded initiatives. Therefore, DHS 

recognizes that one of its primary 

responsibilities under the REAL ID Act 

is to expedite the improvement of the 

databases required for electronic 

verification of applicant data. DHS is 

working with the sponsoring agencies to 

ensure that the reference databases meet 

the standards for data quality, 

reliability, integrity, and completeness 

required to support REAL ID data 

verification by the states and other 

jurisdictions. While some of these 

reference databases are mature and fully 

operational, others are still under 

development and need investments of 

resources. 

First, almost all State DMVs currently 

access the SSOLV database to verify 

social security numbers through a portal 

provided by the American Association 

of Motor Vehicle Administrators 

(AAMVA). The quality and reliability of 

this reference data is good and 

improving. Second, all fifty states have 

signed MOUs for access to SAVE and 

twenty State DMVs are currently 

querying SAVE to verify lawful status. 

While secondary queries may be 

required in some instances to update 

applicant records in SAVE, more than a 

million initial queries from State DMV 

are already being processed each year. 

Moreover, DHS anticipates that the 

SEVIS–SAVE connection will be 

completed before May 2008. Third, DHS 

is working with NAPHSIS to enhance 

EVVE functionality and expedite 

implementation of EVVE in all vital 

records jurisdictions. Since EVVE is 

currently in pilot phase and will require 

states to bring their vital records online, 

assistance to both NAPHSIS and 

individual states will be needed. 

Finally, DHS is working with the 

Department of State to develop an 

automated system for verifying data 

from U.S. Passports, Consular Reports of 

Birth, and Certifications of Report of 

Birth. For all of these systems, DHS is 

committed to improving data quality 

and data consistency to support timely, 

cost-effective, and reliable data 

verification. 

ii. Federated querying service. States 

must be able to access the reference 

databases in a timely, secure and costeffective manner. As noted above, most 

states already query some of these 

reference databases either directly or 

indirectly through a portal provided by 

AAMVA. This access, however, needs to 

be enhanced as the Federally-sponsored 

systems are upgraded or deployed and 

all 56 jurisdictions seek access for 

purposes of applicant data verification. 

DHS is committed to expediting the 

development and deployment of a 

common querying service that will 

automatically distribute State DMV 

queries for REAL ID data verification to 

the appropriate reference databases and 

combine the multiple responses into a 

single reply. The purpose of this 

federated querying service will be to 

minimize the impact of data verification 

on State DMV business processes and 

reduce the costs of data access. DHS 

will support the development of 

querying service but will not operate or 

control this service. DHS is currently 

exploring alternative solutions. 

However, use of this federated querying 

service will be voluntary and States may 

choose to: Maintain or establish direct 

access to the reference databases; 

combine direct access with partial use 

of the common service; or verify 

applicant data against the reference 

databases in some other manner. 

Finally, DHS and DOT will assist the 

States in their efforts to develop 

improved business rules and data 

formats for data communications with 

reference databases. These business 


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rules will, in turn, become part of the 

security plans submitted to DHS. 

iii. Data exchange among states. The 

third area of applicant data verification 

involves access to other state databases 

to verify that the applicant is not 

disqualified from obtaining a REAL ID 

driver’s license or identification card 

due to possession of a REAL ID driver’s 

license or identification card in another 

state. Data exchange among states is 

mandated by section 202(d)(12) of the 

Act, wherein each State must provide to 

each other State(s) electronic access to 

the DMV database of that State. In 

particular, this rule requires the 

exchange of data among all jurisdictions 

to verify that the applicant does not 

hold a valid driver’s license or 

identification card in another 

jurisdiction and that other jurisdictions 

have terminated the applicant’s driver’s 

licenses and identification cards before 

a REAL ID can be issued. However, data 

exchange among State DMVs is also 

governed by the National Driver Register 

Act of 1982, as amended, and the 

Federal Commercial Motor Vehicle 

Safety Act of 1986. The Act and this 

rule pose an additional requirement for 

State-to-State data exchange, but it does 

not alter existing rules and regulations. 

Under all three statutes, the primary 

purpose of State-to-State data exchange 

is driver safety—to ensure that drivers 

are not holding multiple licenses in 

multiple jurisdictions to avoid points 

from dangerous driving and to 

determine if the applicant is unqualified 

or the application fraudulent—not 

specifically to verify the applicant’s 

identity. Thus, data exchange among 

states is substantially different from 

verification of applicant identity data 

with the Federally-sponsored databases 

discussed above. State-to-State data 

exchange among DMVs is governed by 

multiple statutes and multiple agency 

regulations and has been effectuated 

through multiple database systems. DHS 

will build upon the existing 

infrastructure of Federal statutes, 

regulations, and data systems in 

implementing REAL ID. 

Therefore, DHS will work closely 

with the Department of Transportation, 

AAMVA and the States to fulfill the 

requirements for State-to-State data 

exchange under the REAL ID Act. DHS 

will actively support the enhancement 

and expansion of existing DOTsponsored systems to meet the 

requirements of the REAL ID Act. For 

example, verification that the applicant 

does not hold a valid driver’s license or 

identification card in another 

jurisdiction can be accomplished by a 

variety of methods, including the 

exchange and comparison of digital 

image information based on applicant 

photos. DHS will support such State-toState exchange initiatives and will 

partner with DOT, the States and 

territories, and AAMVA to leverage the 

value of existing information systems, 

business rules, standards, and 

governance mechanisms to facilitate 

implementation of the Act. 

b. Source document authentication. In 

addition to verification of applicant 

identity data, the Act requires that the 

jurisdictions authenticate the source 

documents provided by the applicant. 

According to section 202(3)(A), ‘‘the 

State shall verify, with the issuing 

agency, the issuance, validity, and 

completeness of each document 

required to be presented.’’ This requires 

that jurisdictions inspect applicant 

source documents to ensure that they 

are genuine and have not been tampered 

with. DHS recognizes that source 

document authentication is the 

responsibility of State DMVs who 

employ a variety of procedures, both 

manual and automated, to verify both 

the overt and covert security features of 

identity documents. In addition, 

jurisdictions may institute the exchange 

of data on identity document security 

features in order to facilitate the manual 

or automated inspection and 

authentication of source documents. 

DHS will support these State initiatives 

and require that jurisdictions document 

their procedures and standards for 

document authentication as part of their 

security plans. However, DHS will not 

support the development of a federallycontrolled or operated repository for 

source documents or a national facility 

for document authentication under the 

Act. 

F. Exceptions Processing for 

Extraordinary Circumstances 

DHS recognizes that there may be 

extraordinary circumstances where the 

required documents verifying an 

applicant’s identity, date of birth, SSN, 

principal address or lawful status may 

be unavailable. This would include 

applicants such as a homeless person 

with no fixed address, as well as an 

individual who has lost all 

documentation to a natural disaster 

such as Hurricanes Katrina and Rita. In 

such circumstances, DHS believes that 

the States should have the flexibility to 

accept alternative documents to 

establish a particular data element, 

provided that the State follows defined, 

written, procedures that are approved 

by DHS as part of the State certification 

process for REAL ID. Therefore, DHS 

proposes that, where a State chooses to 

establish an exceptions process, that 

process must include, at a minimum, 

the following requirements: 

• The driver record maintained by the 

DMV must indicate when an alternate 

document is accepted. 

• Any driver’s license or 

identification card issued using 

exceptions processing requires a 

complete record of the transaction, 

including a full explanation of the 

reason for the exception, alternative 

documents accepted and how 

applicable information from the 

document was verified. 

• The jurisdiction retains the 

alternate documents accepted or copies 

thereof in the same manner as for other 

source documents as described in 

section II.J. and provides these upon 

request to DHS for audit review. 

G. Temporary Driver’s Licenses and 

Identification Cards 

Aliens who are in the following 

lawful statuses may receive REAL ID 

driver’s licenses and identification 

cards: Has a valid, unexpired 

nonimmigrant visa or nonimmigrant 

visa status for entry into the United 

States; has a pending application for 

asylum in the United States; has a 

pending or approved application for 

temporary protected status (TPS) in the 

United States; has approved deferred 

action status; or has a pending 

application for LPR or conditional 

permanent resident status. However, 

driver’s licenses and identification cards 

issued to these classes of aliens are only 

valid for the duration of the person’s 

lawful period of admission, but no more 

than eight years, or, if there is no fixed 

date, a period of one year. Further, these 

‘‘temporary’’ driver’s licenses and 

identification cards must clearly 

identify on the face of the document 

that they are temporary. 

Renewal of these temporary driver’s 

licenses and identification cards must 

be in person. The renewal applicant 

must present valid documentary 

evidence that the status by which the 

applicant qualified for the temporary 

driver’s license or temporary 

identification card has been extended by 

the Secretary of DHS, or that the 

individual has qualified for another 

lawful status category listed in the Act. 

The following statuses are 

indeterminate and will always require 

issuance of a driver’s license or 

identification card limited to one year: 

Asylum applicant, TPS applicant, and 

adjustment applicant. Other temporary 

categories will vary, and the end of the 

period of authorized stay, if any, must 

be verified through the SAVE or other 

designated verification system. 

Expiration dates on an EAD are not 


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15H.R. Rep. No. 109–72 (2005) (Conf. Rep.). 

16Section 7214 of the Intelligence Reform and 

Terrorism Prevention Act of 2004 (Pub. L. 108–458, 

118 Stat. 3638, Dec. 17, 2004) amended section 

205(c)(2)(c)(vi) of the Social Security Act (42 U.S.C. 

405(c)(2)(C)(VI)). 

17The relevant ICAO standard is ICAO 9303 part 

1 vol 2, specifically ISO/IEC 19794–5—Information 

technology—Biometric data interchange formats—

Part 5: Face image data, which is incorporated into 

ICAO 9303. 

necessarily the same as the end date of 

the status. Visa expiration dates have no 

relevance to the period of authorized 

stay. Aliens with immigration statuses 

other than those designated by REAL ID 

for temporary driver’s licenses and 

identification cards are not subject to 

this limitation on the length of their 

driver’s licenses and identification 

cards, regardless of any expiration date 

that may appear on their 

documentation. 

H. Minimum Driver’s License or 

Identification Card Data Element 

Requirements 

To meet the requirements of section 

202(b) of the Act, a State is required to 

include, at a minimum, the following 

information and features on each 

driver’s license and identification card: 

(1) Full legal name; 

(2) Date of birth; 

(3) Gender; 

(4) Driver’s license or identification 

card number; 

(5) A digital color photograph; 

(6) Address of principal residence; 

(7) Signature; 

(8) Physical security features designed 

to prevent tampering, counterfeiting, or 

duplication of the document for any 

fraudulent purpose; 

(9) A common MRT, with defined 

minimum data elements. 

In addition, DHS has determined that 

States must also include issue date and 

expiration date on each driver’s license 

or identification card. 

Some of these elements are discussed 

below. 

1. Full Legal Name 

The intent of this requirement is to 

improve the ability of law enforcement 

officers, at all levels of Government, to 

confirm the identity of individuals 

presenting State-issued driver’s licenses 

or identification cards. Many States do 

not have a ‘‘full’’ legal name 

requirement, and using a name other 

than a full legal name results in ‘‘no 

matches’’ when checked against other 

public records that use the full legal 

name. This occurred with some of the 

driver’s licenses and identification cards 

obtained by the 9/11 terrorists, where 

the driver’s licenses ‘‘names’’ were 

variants on the actual name carried in 

some of the terrorists’ validly issued 

passports.15

This requirement raises several issues. 

First, the name on the REAL ID driver’s 

license or identification card should be 

identical to the name shown on the 

identity document used to obtain the 

driver’s license or identification card. 

However, formats for recording names 

on identity documents differ and a 

driver’s license or identification card 

holder’s name may change through 

marriage, divorce, adoption, or court 

order. State DMVs currently require 

appropriate proof in the form of 

documents indicating an official name 

change: A U.S. court-or Governmentissued marriage certificate, a U.S. courtissued divorce decree, or a U.S. courtissued name change decree. States must 

require an original or certified copy of 

one of these documents as proof of 

change of name, and the document must 

include either the date of birth or the 

age of the individual. States must also 

add the changed name in the motor 

vehicles record database and not delete 

any previously captured names so that 

a complete record of the individual’s 

full name history is present in the motor 

vehicles database. 

With regard to the name placed by the 

DMV on the face of the driver’s license 

or identification card, DHS is proposing 

to adopt the ICAO 9303 Standard. The 

ICAO 9303 standard requires Roman 

alphabet characters, allows a total of 39 

characters on the face of the driver’s 

license or identification card, and 

provides standards for truncation of 

longer names. 

For the machine readable portion of 

the card, the machine readable 

technology standard proposed is the 

PDF–417 2D bar code (see section II.H.8 

below). For the machine readable 

portion of the card, DHS would require 

States to capture and record up to 125 

characters in the bar code and State 

database to permit capture of the full 

name history. Allowing at least 125 

characters accommodates certain 

cultures in which multiple, lengthy 

names, are common and permits greater 

accuracy in identifying particular 

individuals. 

2. Driver’s License or Identification Card 

Number 

Section 202(b)(4) of the Act requires 

that each REAL ID license or 

identification card include the person’s 

unique ‘‘driver’s license or 

identification card number.’’ Federal 

law prohibits the display of an 

individual’s SSN on a driver’s license.16

3. Digital Photograph 

Section 202(b)(5) of the Act requires 

that the State-issued REAL ID license or 

identification card include a digital 

photograph of the person. In addition, 

section 202(d)(3) provides that the State 

shall require that each person applying 

for a driver’s license or identification 

card be subject to mandatory facial 

image capture. This requirement applies 

whether or not the person is granted a 

driver’s license or identification card. 

DHS believes that these provisions 

require each applicant to allow a DMV 

to take a photograph for the motor 

vehicle record, and to place the digital 

image on the face of the driver’s license 

or identification card, if one is issued. 

If a driver’s license or identification 

card is not issued, DHS is proposing 

that States dispose of the photograph 

after one year. The DMV’s photo of the 

individual should be updated with the 

most recent photograph in the event the 

applicant reapplies, and any photos 

taken of the individual prior to 

successful issuance of the document 

should be discarded in favor of the 

photo associated with the successful 

application. If the DMV does not issue 

the driver’s license or identification 

card because of suspected fraud, the 

record should be maintained for ten 

years and reflect that a driver’s license 

or identification card was not issued for 

that purpose. 

DHS recognizes that some individuals 

that may apply for a REAL ID driver’s 

license or identification card are 

opposed to having their photograph 

taken based on their religious beliefs. 

However, the Act requires a facial 

photograph, which serves important 

security purposes. Given these concerns 

and the clear statutory mandate, DHS 

believes that a driver’s license or 

identification card issued without a 

photograph could not be issued as a 

REAL ID driver’s license or 

identification card. Many States now 

issue non-photo driver’s licenses or 

identification cards based on the 

applicant’s religious beliefs. States may 

continue to issue these driver’s licenses 

or identification cards to such 

individuals and DHS recommends that 

these driver’s licenses and identification 

cards be issued in accordance with the 

rules for non-compliant driver’s licenses 

and identification cards. 

DHS is proposing that digital 

photographs comply with current ICAO 

standards.17 Such standards include 

diffused lighting over the full face to 

eliminate shadows and ‘‘hotspots,’’ a 

full face image from the crown to the 

base of the chin and from ear-to-ear 

(unless the State chooses to use profiles 

for licensees under 21), and images with 


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18Title VIII, subtitle C, Sec. 827 (Pub. L. 109–162, 

119 Stat. 2960, 3066, Jan. 5, 2006). 

19H.R. Rep. No. 109–72, at 179 (2005) (Conf 

Rep.). 

no veils, scarves or headdresses to 

obscure facial features, or eyewear that 

obscures the iris or pupil of the eyes. 

Photos should also be in color. 

4. Address of Principal Residence 

This regulation proposes that, in most 

cases, the individual’s principal address 

be included on the face of the REAL ID 

driver’s license or identification card. 

DHS proposes exceptions to this 

requirement, as described below. 

a. Confidential Address. Section 

202(b)(6) of the Act requires that the 

driver’s license or identification card 

include the person’s address of 

principal residence. Many States have 

laws that allow addresses to be kept 

confidential in certain circumstances; 

for example, where the disclosure of an 

address may jeopardize the personal 

safety of such an individual, such as 

victims of domestic violence, judges, 

protected witnesses, and law 

enforcement personnel. Some States 

provide the standards for address 

confidentiality through legislation or in 

their exceptions processing. Most States 

retain the ‘‘real’’ address in their 

database, but often protect it so that 

only authorized personnel have access 

to the ‘‘real’’ address. In addition, most 

States do not have the ‘‘real’’ address in 

the machine readable technology 

barcode. Rather, the machine readable 

zone contains only what is on the face 

of the driver’s license or identification 

card. 

Section 827 (Protection of domestic 

violence and crime victims from certain 

disclosures of information) of the 

Violence Against Women and 

Department of Justice Reauthorization 

Act of 2005,18 amended the REAL ID 

Act 2005 (49 U.S.C. 30301 note), to 

protect against disclosure addresses of 

individuals who have been subjected to 

battery, extreme cruelty, domestic 

violence, dating violence, sexual 

assault, stalking or trafficking. 

Consequently, DHS is proposing to 

exempt individuals who are entitled to 

enroll in State address confidentiality 

programs, whose addresses are entitled 

to be suppressed under State or Federal 

law or by a court order, or who are 

protected from disclosure of information 

pursuant to section 384 of the Illegal 

Immigration Reform and Immigrant 

Responsibility Act of 1996 from the 

requirement to have their address 

displayed on REAL ID driver’s licenses 

and identification cards. DHS 

understands that other categories of 

individuals, such as federal judges, may 

also require that their addresses remain 

confidential to protect their safety. DHS 

seeks comment on how these categories 

of individuals can be protected, while 

remaining consistent with requirements 

of the Act. 

b. No Fixed Address. DHS recognizes 

that some people do not have a fixed 

address and that States have exceptions 

processes in place to address this 

situation. DHS believes that each State 

should continue to address these 

situations through a written and 

documented exceptions process. For 

example, in some States homeless 

people may use addresses of accredited 

organizations on the local or State level. 

A State can address such circumstances 

through a written exceptions process, 

and States must document each use of 

such a process. Exceptions processing is 

discussed further at section II.F. 

5. Signature 

DHS proposes that the signature meet 

the requirements of the existing 

AAMVA standards for the 2005 

AAMVA Driver’s License/Identification 

Card Design Specifications, Annex A, 

section A.7.7.2. This standard includes 

requirements for size, scaling, cropping, 

color, borders, and resolution. 

6. Physical Security Features 

Section 202(b)(8) of the Act requires 

that States must include physical 

security features on driver’s licenses 

and identification cards to ensure they 

are resistant to tampering, 

counterfeiting, or duplication for 

fraudulent purposes. The legislative 

history of this requirement states: 

The importance of this requirement cannot 

be overstated. A majority of States maintain 

a high level of physical security in the 

manufacture of their cards. Unfortunately, a 

significant minority of States do not issue 

licenses or ID cards with secure physical 

characteristics. This results in criminals, 

identity thieves, and amateurs such as 

college students being able to ‘‘manufacture’’

fake driver’s licenses or ID card from these 

States. Federal law enforcement officials—

national forensic document laboratory—can 

validate that the driver’s license of these 

States are not secure from counterfeiting 

using easily available technology.19

To develop a regulation that meets 

these objectives, DHS consulted forensic 

document experts and evaluated 

information helpful in determining 

minimum standards that would achieve 

significant security benefits within the 

next few years, make it significantly 

harder for amateurs to counterfeit or 

duplicate driver’s licenses and 

identification cards, and enable States to 

continue to improve the security of their 

documents. 

One option DHS considered was to 

permit States to select from a ‘‘menu’’ of 

recognized security features contained 

in many existing driver’s licenses and 

identification cards. This option would 

essentially continue the status quo and 

provide States with the most flexibility 

since no two States would necessarily 

select the same security feature choices. 

DHS rejected this option since State 

choice in this area has not produced 

sufficiently secure forms of 

identification. There are a variety of 

websites offering counterfeit driver’s 

licenses and identification cards from 

each State, and even trained officers 

cannot always detect counterfeit 

identification from another jurisdiction. 

In addition, this option did not provide 

sufficient incentives for States to 

continue to improve the security of their 

driver’s licenses and identification 

cards. 

DHS also considered mandating all 

the required security features, including 

the document card stock, to the States. 

This option had the benefit of producing 

a set of standardized security features 

that law enforcement and other 

personnel could be trained to recognize, 

would achieve significant security 

benefits within the next few years, and 

would make it significantly harder for 

amateurs to counterfeit or duplicate. 

States were concerned that a fixed array 

of features would permit professional 

counterfeiters to focus on countering a 

static set of security features and might 

inhibit States from using new and 

evolving technology. States were also 

concerned that mandating the particular 

card stock a State could use would put 

States at a competitive disadvantage 

with potential card stock suppliers and 

lead to increased costs for the States. 

The approach DHS is adopting is to 

combine some mandatory security 

features with a performance standard, 

based on impartial adversarial testing of 

the card and security features. The 

mandatory security features DHS 

proposes, such as the use of offset 

lithography in place of dye sublimation 

printing, is designed to impair the 

ability of amateurs to manufacture 

counterfeit driver’s licenses and 

identification cards or alter genuine 

ones. It will also lead to a set of 

standardized security features that law 

enforcement and other personnel can be 

trained to recognize. The use of 

adversarial testing permits States to 

experiment with a variety of card stocks 

and new technologies while fulfilling 

the underlying security requirements of 

the Act. DHS understands that a number 

of different types of card stock, 


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20 ‘‘Model Act to Prohibit the Capture and Storage 

of Personal Information Obtained from a Driver’s 

License or ID Card,’’ AAMVA 26–8.2–03, 2003. 

including polycarbonate, would likely 

satisfy the proposed performance 

standard. 

DHS seeks comments on whether the 

proposed adversarial testing standards 

will lead to the development of a secure 

document solution that deters amateurs 

from producing deceptive counterfeits 

and/or alterations. DHS also seeks 

comments on other alternative 

approaches DHS could pursue on 

document security to achieve the same 

objective and how those approaches 

compare to a performance-based 

independent adversarial testing. DHS 

requests that States specifically 

comment on what contractual issues, if 

any, the States will face in satisfying the 

proposed document security 

requirements if the State’s existing 

license fails one or more of the proposed 

adversarial tests. 

DHS understands that technology is 

ever-advancing. Therefore, the proposed 

regulation would establish standards for 

achieving increased document security 

for driver’s licenses and identification 

cards. DHS encourages experimentation 

and development of advanced security 

technologies. 

7. Privacy of the Information Stored on 

the Driver’s License or Identification 

Card 

An important purpose of the Act is to 

improve law enforcement’s ability to 

confirm the identity of the individual 

bearing the driver’s license or 

identification card, in order to reduce 

identity theft and fraud. Authorized 

users of the information on the REAL ID 

driver’s licenses and identification cards 

including, but not limited to, law 

enforcement should be able to access 

the necessary personal information 

stored on the driver’s license or 

identification card in order to 

accomplish a legitimate law 

enforcement purpose. The ability of 

commercial entities and other non-law 

enforcement third parties to collect the 

personal information encoded on 

driver’s licenses or identification cards 

raises serious privacy concerns. 

However, while cognizant of this 

problem, DHS believes that it would be 

outside its authority to address this 

issue within this rulemaking. 

As discussed in the Privacy 

Considerations section of this Preamble, 

DHS strongly encourages the States to 

address concerns about the ability of 

non-law enforcement third parties to 

collect or skim personal information 

stored on the REAL ID driver’s licenses 

or identification cards. Some States, 

such as California, Nebraska, New 

Hampshire and Texas have passed laws 

that prohibit the collection of 

information on a driver’s license or 

identification card. In addition, as noted 

above, AAMVA has drafted a Model 

Act 20 that, if enacted by a State, would 

prohibit commercial users, except as 

provided by the State’s legislation, from 

using a scanning device to: (1) Obtain 

personal information printed or 

encoded on the card and; (2) buy, sell 

or otherwise obtain and transfer or 

disclose to any third party or download, 

use or maintain any data or database, 

knowing it to contain personal 

information obtained from a driver’s 

license or identification card. The 

Model Act authorizes verification of age 

for purchasing alcoholic beverages or 

tobacco products, but with strict 

limitations on the storage and use of 

such information. DHS supports the 

privacy and security benefits such State 

legislation affords and encourages the 

States to consider the benefits of 

promulgating the Model Act or similar 

legislation. 

DHS is attempting to achieve a 

balance between facilitating the ability 

of law enforcement and other 

authorized persons to have access to the 

information on the card and protecting 

the integrity of the information on the 

card by limiting the ability of nonauthorized persons to obtain that same 

information. Encryption discussed in 

section II.H.9 below is one option, but 

significant concerns exist about the 

feasibility of deploying encryption, 

given the need for Federal, State and 

local law enforcement access. 

DHS seeks comments on how best to 

secure the data, or whether or not to 

employ protections for the data encoded 

on the 2D bar code needs to be protected 

at all, while permitting law enforcement 

access and what technologies may be 

available to accomplish this balance. 

DHS is interested in comments that 

address whether a technology, such as 

the National Law Enforcement 

Telecommunications System (NLETS), 

or other system currently being used by 

law enforcement, could be used by the 

States to provide law enforcement ready 

access while maintaining the security of 

the information on the driver’s license 

or identification card. 

8. Machine-Readable Technology (MRT) 

Section 202(b)(9) of the Act requires 

the States to include a common MRT 

with defined minimum data elements 

for the driver’s licenses and 

identification cards to be accepted by a 

Federal agency for official purposes. 

DHS looked at several types of 

technology that could be used, 

including: 

• A 1D bar code, commonly used for 

tracking inventory, mostly used by 

supermarket scanners. This does not 

have the capability to store significant 

amounts of information. 

• A 2D bar code. This is currently 

used by 45 of 50 States, plus the District 

of Columbia. It stores a greater amount 

of information than the 1D bar code, 

although the ‘‘scanning’’ process is 

extremely similar to the 1D bar code. 

This is also the current AAMVA 

standard. 

• An optical stripe. This is currently 

used on DHS-issued permanent resident 

cards and border crossing cards, and 

stores information digitally, much like a 

compact disc. 

• A contact integrated circuit chip. A 

contact integrated circuit chip (ICC) in 

a document could be read by inserting 

the document in a contact ICC reader. 

• A contactless integrated circuit 

chip. A contactless integrated circuit 

chip in a document could be read by 

transmitting data via radio frequency to 

readers. 

Of these five options, DHS believes 

the following are inappropriate for the 

purposes of this proposal: 

• The 1D bar code does not have the 

storage capacity to hold the amount of 

data that the Act requires, and would 

inhibit States from storing additional 

State-specific information on the card, 

should they so choose. 

• The integrated contactless chip was 

not deemed an appropriate technology 

for this particular document, as there is 

not an identifiable need for driver’s 

licenses and identification cards to be 

routinely read at a distance. 

• The optical stripe has had 

durability difficulties over time. 

Of the two remaining options—the 2D 

bar code and the contact chip—DHS 

proposes the 2D bar code as the better 

option. The 2D bar code is the existing 

standard for AAMVA, and is also 

something with which the public is 

familiar. Forty-five of the fifty United 

States use this technology currently, 

making it relatively easy for virtually 

every State to meet this requirement by 

May 2008, at little additional cost for 

most States. The proposed selection of 

the 2D bar code ensures that the 

majority of States have available and 

usable technology that is interoperable 

among all the States. 

The proposed regulation would 

mandate the use of the PDF–417 2D bar 

code as the common MRT standard and 

DHS proposes to adopt most of the 

mandatory data elements described in 

the 2005 AAMVA Driver’s License/ 

Identification Card Design 


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21The AAMVA standard also includes eye color 

and height, but DHS is not proposing these as 

required elements in the machine readable zone. 

Specifications, Annex D, as its MRT 

data elements model. PDF417 is a two 

dimensional, open source (public 

domain) barcode that is used to store 

and transfer large amounts of data 

inexpensively. PDF stands for ‘‘portable 

data file’’ in that the barcode acts as an 

independent database that travels along 

with the item, document, or card on 

which it is affixed. The printed barcode 

symbol consists of several linear 

(minimum 3, maximum 90) rows, each 

of which is like a small linear barcode 

made up of code words that can carry 

up to 1.1 kilobytes of machine-readable 

data in a space no larger than a standard 

bar code. The American National 

Standards Institute has published a 

standard for PDF417, and AAMVA has 

approved the use of PDF417 for driver’s 

licenses and identification cards. The 

PDF417 barcode can be read by a 

standard 2D barcode scanner. 

The AAMVA list of data elements 

includes expiration date, bearer’s name, 

issue date, date of birth, gender, 

address, and a unique identification 

number.21 DHS proposes that States 

consider storing in the machinereadable zone (MRZ) only the minimum 

data elements necessary for the purpose 

for which the REAL IDs will be used. 

DHS requests comments on what data 

elements should be included in the 

machine readable zone and the privacy 

considerations regarding the selection of 

such data elements and this technology. 

9. Encryption 

Annex D of the AAMVA standard 

requires that all of the data on the 2D 

bar code be unencrypted. Although DHS 

leans toward requiring encryption for 

the data stored in the 2D bar code on 

REAL ID driver’s licenses and 

identification cards, DHS believes that 

access to this information by law 

enforcement is essential to the 

requirements of the Act and invites 

comment on how to provide this access 

and the protection of the information at 

the same time. 

Because 2D bar code readers are 

extremely common, there is a possibility 

that the data could be captured from the 

driver’s licenses and identification cards 

and accessed by third parties by reading 

the driver’s license or identification 

card’s 2D bar code. For example, a bar 

could scan the 2D barcode to verify that 

the individual presenting the driver’s 

license or identification card was 21 or 

over, and at the same time could 

conceivably obtain the person’s name 

and address off the barcode and compile 

a list of names and addresses of its 

patrons, which it could subsequently 

sell or use. Encryption would help 

mitigate this privacy risk by preventing 

the ‘‘skimming’’ of the information from 

the MRZ, while still allowing the bar to 

read the date of birth off the face of the 

license. Alternatively, the date of birth 

could be left unencrypted so that the bar 

could scan the date of birth only. 

Another alternative would be to 

eliminate the address from the 2D bar 

code, requiring ‘‘skimmers’’ to take the 

extra step of using information brokers 

to acquire and match an address to the 

name and date of birth previously 

collected off the MRZ. 

Because encryption of the data 

necessitates access to the cryptographic 

key in order to decrypt the data, 

employing encryption in the 2D bar 

code would require having a key 

infrastructure allowing permitted 

agencies access to the secured key 

information. For example, a least 16,000 

local, State, and Federal law 

enforcement agencies would need 

access to the key infrastructure to check 

the information on the MRZ. 

The need for a key infrastructure to 

support access to encrypted 2D bar code 

data could create two separate scenarios 

of concern. 

First, there could be a complex and 

comprehensive exchange of encryption 

keys through or among all 56 

jurisdictions. Although the encryption 

system would be most secure the larger 

the number of keys used to secure MRZ 

information, this large number of 

cryptographic keys would need to be 

accessible to law enforcement personnel 

wherever they would be reading the 

driver’s license. Building such an 

infrastructure would present certain 

complexities that, if not addressed 

appropriately, could reduce the utility 

of encryption. 

Second, there could be one single 

encryption key, which would avoid the 

complexities of needing a key 

infrastructure, but this greatly increases 

the risk that this single key could be 

compromised. Although employing a 

single key greatly simplifies the 

availability of the cryptographic key for 

law enforcement, the compromise of 

this single cryptographic key would 

compromise all data secured on all 

REAL ID driver’s licenses and 

identification cards. In this case, 

encryption could create a false sense of 

security if a license holder thought his 

or her information was truly secure and 

it was not. 

For all of the above reasons, we have 

not proposed that encryption of MRZ 

data be required. Nonetheless, DHS 

leans toward an encryption requirement 

if the practical concerns identified 

above can be overcome in a costeffective manner. We request comments 

on whether and how encryption could 

be employed to secure the information 

stored in the MRZ of the cards. 

DHS understands the privacy 

concerns associated with including 

personal information in an unencrypted 

machine readable zone of a driver’s 

license, particularly an individual’s 

address, and also recognizes a legitimate 

law enforcement need for access to 

certain data elements. Because of this, 

DHS seeks comments on whether a 

demonstrable law enforcement need 

exists to include address in the MRZ 

portion of the REAL ID driver’s license, 

as currently proposed in this rule. 

I. Validity Period and Renewals of 

Driver’s Licenses and Identification 

Cards 

Section 202(d) of the Act limits the 

period of validity of all driver’s licenses 

and identification cards that are not 

temporary to a period that does not 

exceed eight years. 

1. Remote/Non-In-Person Renewals 

Under the Act, REAL ID driver’s 

licenses and identification cards 

(excluding temporary REAL ID driver’s 

licenses and identification cards) may 

be valid for a period not to exceed eight 

years. Remote renewal will be allowed 

for REAL ID driver’s licenses and 

identification cards if the State has 

retained images or paper copies of the 

source documents used by the State to 

issue the original driver’s license or 

identification card through the time of 

renewal, and if no information has 

changed since prior issuance (name or 

address, for example). The State must 

re-verify information on the source 

documents that were used as the basis 

for issuing the original REAL ID driver’s 

license or identification card, to assure 

there is no match against death 

information recorded with either the 

State vital statistics offices or SSA, and 

in order to diminish the likelihood that 

an individual obtained his or her 

original REAL ID driver’s license or 

identification card under a false name or 

with a fraudulent document. 

Finally, under Section 202(d)(4) a 

State must take reasonable measures to 

ensure that the individual seeking the 

renewal is the same person to whom the 

REAL ID driver’s license or 

identification card was issued. DHS is 

considering how best to authenticate the 

identity of an individual requesting 

renewal of his or her driver’s license or 

identification card remotely, to 

guarantee that the REAL ID driver’s 

license or identification card is being 


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22H.R. Rep. No. 109–72, at 182 (2005) (Conf. 

Rep.). 

23Congress made it very clear in the legislative 

history of section 202(d)(2) of the Act that the intent 

is for all States to have an electronic system. ‘‘The 

goal is to move all the State’s records into electronic 

format.’’ H.R. Rep. 109–72, at 182 (2005) (Conf 

Rep.). 

24A background check is the investigation into 

someone’s past history to permit them to either gain 

a security clearance or pass a suitability screening. 

A security clearance is the end result of a 

background investigation whereby the government 

makes a determination that someone may be trusted 

with specified levels of information, such as 

‘‘classified’’ information. While section 202(d)(8) of 

the Act uses the term ‘‘security clearance,’’ DHS 

believes that the intent was to conduct background 

checks, as DMV employees do not need clearance 

to handle ‘‘classified’’ information. 

reissued to its proper holder. For 

example, DHS proposes that the State 

may choose to authenticate the identity 

of a renewal applicant through use of 

personal identifiers such as PIN 

numbers or questions whose answers 

only the proper holder would know, or 

through use of biometric information. 

DHS requests comments on these 

renewal procedures, including 

suggestions on any alternative 

approaches for remote renewals and 

authentication of remote renewals. 

2. In-Person Renewals 

A holder of a REAL ID driver’s license 

or identification card must renew his or 

her driver’s license or identification 

card in person with the State DMV at 

least once every sixteen years (or every 

other renewal period, if the State 

chooses a renewal period of less than 

the eight-year statutory maximum) for 

the State to take an updated photograph. 

The States must re-verify original 

information and source documents used 

as the basis for issuance of the original 

REAL ID driver’s license or 

identification card, but the individual 

need not resubmit documents for 

verification as long as the State has 

retained copies of source documents for 

the period of renewal. Documents 

supporting name changes or address 

changes since prior issuance must be 

presented to the DMV and verified. This 

process should apply any time a driver’s 

license or identification card is renewed 

or reissued for any purpose. 

Holders of temporary REAL ID 

driver’s licenses and identification cards 

must renew their driver’s licenses and 

identification cards in person at each 

renewal in order to present evidence of 

continued lawful status. States must 

verify continued lawful status and reverify source documents as outlined 

above. 

The renewal process for non-REAL ID 

driver’s licenses and identification cards 

is not subject to this regulation. 

J. Source Document Retention 

Section 202(d)(1) requires that States 

employ technology to capture digital 

images of identity source documents so 

that the images can be retained in 

electronic storage in a transferable 

format. The intent behind this provision 

is applicant convenience upon renewal, 

and availability of documentation to law 

enforcement.22 DHS is proposing that if 

a State employs digital imaging of 

source documents, it use the AAMVA 

Digital Image Exchange Program for this 

purpose and capture the image in color. 

If a State does not currently use color 

scanners, DHS is proposing that current 

black and white scanners be replaced 

with color scanners by December 31, 

2011. If a State uses a different standard, 

that standard must be interoperable 

with the AAMVA standard to ensure an 

efficient interstate exchange of data 

when DMVs need to do so. Photo 

images should be stored in the Joint 

Photographic Experts Group (JPEG) 

2000 standard for image compression, as 

modified in the future. Document and 

signature images should be stored in a 

compressed Tagged Image Format (TIF). 

This proposal would require that all 

images be linked to the applicant 

through the applicant’s unique 

identifier assigned by the DMV. 

As an alternative, a State may retain 

the paper copies of the source 

documents until it develops an 

electronic system.23 Capturing paper 

documents on microfiche also would be 

acceptable, but the State will likely find 

an electronic system to be more 

economically efficient over time. Under 

section 202(d)(2) of the Act, States must 

retain paper copies of source documents 

for a minimum of seven years, or images 

of source documents for a minimum of 

ten years. 

Retaining images of source documents 

allows for renewal of driver’s licenses 

and identification cards remotely, 

without requiring the driver’s license or 

identification card holder to present 

source documents at the renewal. Since 

REAL ID driver’s licenses and 

identification cards must be issued for 

a maximum period of eight years in 

accordance with the Act, States may 

wish to reconcile their source document 

retention periods accordingly. 

K. Security of DMV Facilities Where 

Driver’s Licenses and Identification 

Cards Are Manufactured and Produced; 

Facility Security Plans 

DHS is proposing that States that 

choose to produce REAL ID driver’s 

licenses and identification cards submit 

to DHS a security plan that outlines the 

State’s consolidated approach to 

security of DMV facilities and the 

driver’s license or identification card 

production process. Such security plans 

should also include the State’s approach 

to conducting background checks of 

certain DMV employees pursuant to 

section 202(d)(8) of the Act, physical 

security of the locations where driver’s 

licenses and identification cards are 

produced, and the security of document 

materials and papers from which 

driver’s licenses and identification cards 

are produced, pursuant to section 

202(d)(7) of the Act. Security plans 

should also describe the security 

features incorporated into the driver’s 

licenses and identification cards as 

required under section 202(b)(8) of the 

Act. Also, should the State decide to 

incorporate biometrics as an additional 

security feature (which is not mandated 

in the regulation), DHS is proposing that 

the State should describe this use in its 

security plan and present the 

technology standard the State intends to 

use to DHS for approval. This will 

enable DHS to ensure interoperability of 

technical standards amongst States 

seeking to incorporate biometrics in 

their licensing programs. 

This proposed regulation would 

require that the State submit the 

security plan to DHS in conjunction 

with the State’s request for certification 

to enable DHS to review the plan, along 

with the State’s request for certification. 

1. Background Checks for Certain 

Employees 

Section 202(d)(8) of the Act requires 

that ‘‘all persons authorized to 

manufacture or produce driver’s 

licenses and identification cards’’ must 

be required to undergo ‘‘appropriate 

security clearance requirements.’’ The 

purpose of this requirement is to make 

sure that those individuals who are in 

a position to produce, manufacture or 

issue driver’s licenses and identification 

cards are trustworthy. In some 

jurisdictions in the past, certain DMV 

employees involved in this process have 

aided in the issuance of fraudulent 

driver’s licenses and identification 

cards. 

Section 37.45 of the proposed 

regulations addresses the requirements 

of section 202(d)(8) of the Act by 

identifying which categories of DMV 

employees must undergo background 

checks 24 and the nature of the 

background checks. With respect to 

scope, Congress made it clear that 

section 202(d)(8) was included in the 

Act because recent investigations into 

driver’s license/identification card 

insider corruption cases in various 


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25Conference Report at 183. 

states ‘‘revealed that a routine security 

investigation would have prevented key 

perpetrators from ever being employed 

to handle documents of high ‘street’

value that can be sold to illegal aliens, 

criminals, terrorists, and identity 

thieves.’’ 25

In light of Congress’s clearly 

expressed intention that background 

checks be used to prevent the fraudulent 

creation of identity documents, DHS 

concluded that background checks 

should be required for any DMV 

employee who has the ability to affect 

the identity information that appears on 

the driver’s license or identification 

card, who has access to the production 

process, or who is involved in the 

manufacture of driver’s licenses and 

identification cards (‘‘covered 

employees’’). Understanding that each 

State’s DMV has a unique organization 

and structure, it will be up to each State 

to determine which positions would fall 

under this definition (‘‘covered 

positions’’). DHS proposes to require 

that the State DMVs provide their 

employees and prospective employees 

that have been selected for placement in 

a covered position with notice that a 

background check is required for 

employment in a covered position and 

what that background check will 

include. 

With respect to the type of 

background check required, the 

regulations propose that States collect 

fingerprints for individuals who seek 

employment in a covered position, in 

order to conduct a criminal history 

record check (CHRC) on those 

individuals through the Federal Bureau 

of Investigation (FBI) and State 

repositories. Individuals who have been 

convicted or found not guilty by reason 

of insanity of certain permanent 

disqualifying offenses; or individuals 

who have been convicted or found not 

guilty by reason of insanity within the 

previous seven years or who have been 

released from prison within the past five 

years for certain interim disqualifying 

offenses, would not be allowed to hold 

covered positions within a State DMV. 

The list of disqualifying offenses, based 

on current Federal requirements, 

mirrors requirements for TSA’s 

Hazardous Materials Endorsement 

program (HAZMAT program) and 

Transportation Workers Identification 

Credential (TWIC) program. See 49 CFR 

1572.103 and the final rule on TWIC (72 

FR 3492, Jan. 25, 2007). 

DHS concluded that this list of crimes 

is sufficient as a Federal minimum. 

States may add additional disqualifying 

offenses to this list for their covered 

employees. States will be responsible 

for arranging reimbursement with the 

FBI for the cost of conducting the 

fingerprint CHRC check. DHS invites 

comment on whether the proposed list 

of disqualifying offenses is appropriate, 

too large, or insufficient as it concerns 

REAL ID. 

DHS is also proposing that the States 

perform a financial history check on 

individuals seeking employment in 

covered positions. Such checks are 

already being conducted by many 

employers, including many DMVs, as 

one indicator that an individual may 

warrant additional scrutiny or 

supervision before assuming 

responsibilities that raise security risks. 

While questionable financial history 

would not be considered a Federal 

disqualifier, the information should be 

used by the States in making their own 

determinations on how or whether 

particular individuals should be 

employed at the DMV. 

DHS recognizes that this requirement 

is not a feature of the TWIC or 

HAZMAT programs. Nevertheless, DHS 

believes that it is warranted in the 

instant case, due to the sensitivity of the 

personal information that will routinely 

be handled by employees at State motor 

vehicle administrations and the fact that 

a driver’s license or identification card 

serves as a key ‘‘breeder’’ document in 

securing other forms of State and 

Federal identification. If the DMV 

personnel issuing and authenticating 

the driver’s license or identification 

card are compromised and issue 

genuine REAL ID driver’s licenses and 

identification cards to individuals who 

are seeking to mask their true identity, 

those individuals can obtain additional 

identification using that false identity 

and thwart the Government’s and law 

enforcement’s ability to identify 

accurately individuals lawfully stopped 

and screened. Moreover, as set forth in 

the Conference Report on section 

202(d)(8) of the REAL ID Act, Congress 

was concerned at the extent of ‘‘driver’s 

license insider corruption.’’ H.R. Rep. 

No. 109–72, at 183 (2005) (Conf. Rep.). 

DHS believes that DMV employees with 

severe financial difficulties might be 

more susceptible to bribery, and that 

States should take this into 

consideration in determining whether 

an individual should be placed in a 

covered position. 

These proposed regulations do not 

preclude a DMV from hiring any 

individual based on the results of the 

financial history check and do not 

preclude the DMV from placing the 

individual in a covered position based 

on that check. The financial history 

check information is intended to 

provide the employer a fuller picture 

when deciding whether to place a 

potential employee in a covered 

position. 

DHS also proposes that States conduct 

a lawful status check through SAVE to 

verify that the individual has lawful 

status in the United States. 

DHS proposes that States may grant 

waivers allowing individuals to 

maintain their positions under 

particular circumstances as authorized 

by the States; for example, where an 

individual has made full disclosure of 

his or her criminal history to the State 

DMV. DHS proposes that States adopt 

written practices for waiver processes 

and provide them to DHS as part of the 

background check discussion of the 

State’s comprehensive security plan. 

Waiver practices will be reviewed by 

DHS during a State’s initial certification 

and thereafter as part of periodic DHS 

audits of the State’s REAL ID program. 

2. Physical/Logical Security 

The Act requires that States ‘‘ensure 

the physical security of locations where 

driver’s licenses and identification cards 

are produced and the security of 

document materials and papers from 

which driver’s licenses and 

identification cards are produced.’’ This 

means that the DMV buildings, storage 

areas, databases and systems, and other 

areas of perceived vulnerability must be 

protected from theft and fraud. The 

State’s comprehensive security plan 

should include a written risk 

assessment of each facility, physical 

security measures, access identification 

and control measures for employees and 

vendors, written policies and 

procedures, training and internal 

controls to identify and minimize fraud, 

and an emergency/incident response 

plan if procedures are breached. 

DHS is considering the American 

National Standards Institute/North 

American Security Products 

Organization’s ‘‘Security Assurance 

Standards for the Document and 

Product Security Industries,’’ ANSI/ 

NASPO–SA–v3.OP–2005, Level II, as 

the preferred performance-based 

standard for physical security of DMV 

facilities. DHS seeks comment on 

adoption of this standard, as well as 

recommendations on other appropriate 

performance-based standards to meet 

this statutory requirement. DHS also 

specifically seeks comment on the 

extent that the adoption of any 

performance-based standard would 

require modification of existing office 

space or construction of new space. 

DHS also seeks comments on the extent 

to which physical changes to existing 

office spaces required by the adoption of 


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26H.R. Rep. 109–72, at 183 (2005) (Conf. Rep.). 

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

020805schwartz.shtml. 

the ANSI standards or any other 

physical security performance-based 

standards would impact historical 

properties. 

3. Document Security Features on 

Driver’s Licenses and Identification 

Cards 

The security plan discussed above 

must detail the document security 

features that States are adopting for their 

driver’s licenses and identification cards 

to prevent tampering, counterfeiting, or 

duplication of the driver’s license or 

identification card for fraudulent 

purposes. These features are discussed 

in more detail in the preamble at 

Section II.H.6, infra, 

4. Security of Information Stored in the 

DMV Database 

Section 202(d)(7) of the Act requires 

States to ‘‘ensure the physical security 

of locations where driver’s licenses and 

identification cards are produced and 

the security of document materials and 

papers from which driver’s licenses and 

identification cards are produced.’’ DHS 

believes that the scope of this provision 

includes protecting the security of the 

personal information stored in DMV 

databases. The House Conference Report 

discussion of this section of the Act 

states that the requirement for improved 

physical security is to address ‘‘a 

growing problem of identity thieves and 

documents purveyors breaking into 

State facilities and stealing driver’s 

license or identification card stock 

blanks, printing machines, and 

sometimes actual computer hard drives 

in which current driver’s license or 

identification card holder data is 

stored.’’ 26 It is well documented that a 

number of DMVs have had incidents of 

theft of personal information from their 

databases,27 and security of personal 

information is a high priority for all 

Federal and State governmental 

agencies. Therefore, DHS believes it is 

reasonable to require that, as part of the 

security plan mandated for State 

certification under the Act, States 

address the security of the DMV 

databases storing personal information. 

5. Security of Personal Data and 

Documents Collected and Managed 

Under the Act 

As part of the Comprehensive 

Security Plan, States shall be required to 

describe standards and procedures for 

managing driver records and data 

collected, stored, modified, accessed 

and transmitted under the requirements 

of this rule. With respect to the identity 

documents required to be provided by 

applicants, States shall describe 

procedures to prevent unauthorized 

access to, or dissemination of, images of 

these documents stored pursuant to the 

Act. States shall also detail procedures 

for document retention and destruction 

for both physical and electronic records. 

With respect to applicant data required 

under the Act, States shall document 

access controls and related procedures 

governing the authorized use of such 

data. Finally, States shall document 

procedures for resolving data 

formatting, quality, and integrity issues. 

DHS encourages States to draft 

collective standards and best practices 

for the management of both documents 

and data required under the provisions 

of this rule. 

In the event of a terrorist event or 

natural disaster as extensive as 9/11 or 

Hurricane Katrina, the sharing of 

information collected and maintained 

by DMVs pursuant to the REAL ID Act 

may prove useful to the States for many 

purposes, such a recreating lost State 

data, providing individuals’ access to 

images of their source documents when 

originals are destroyed, or assisting in 

recovery efforts. DHS seeks comment on 

whether and to what extent States can 

or should include in their security plans 

access to data for information sharing 

purposes as necessary in the event of a 

catastrophic event. 

III. State Certification Process 

Section 202(a)(2) of the Act requires 

the Secretary to determine whether a 

State is meeting the requirements of the 

Act based on certifications made by the 

State to the Secretary of DHS. 

Certifications ‘‘shall be made at such 

times and in such manner as the 

Secretary, in consultation with the 

Department of Transportation, may 

prescribe by regulation.’’ Section 37.55 

of the regulations presents the 

requirements for certification. 

To ease the burden on the States, DHS 

determined that this certification 

process should be similar to the 

certification process included in DOT’s 

regulations governing State 

administration of commercial driver’s 

licenses, 49 CFR Part 384. The States are 

accustomed to these certification 

requirements, and the requirements 

appear useful in providing the 

information DHS will need to ensure 

that States are in compliance with 

applicable REAL ID standards. 

Accordingly, Subpart F of these 

regulations was based, to a large extent, 

on 49 CFR Part 384. States must 

demonstrate initial compliance with 

these regulations by submitting a 

certification and certain specified 

documents including a description of its 

REAL ID program, and demonstrate 

continued compliance by annually 

submitting such certification and 

documents. DHS will review such 

initial and annual certifications and 

notify the State of its preliminary 

determination as to the State’s 

compliance with the regulations. The 

State will have 30 calendar days to 

respond to the preliminary 

determination and explain how any 

identified deficiencies will be corrected 

or, alternatively, why the DHS 

preliminary determination is incorrect. 

DHS will then notify the State of its 

final determination for which the State 

may seek judicial review. 

IV. Driver’s Licenses and Identification 

Cards That Do Not Meet the Standards 

of Subparts A and B of These 

Regulations 

Section 202(d)(11) of the Act requires 

that any driver’s license or 

identification card that does not satisfy 

the requirements of this section must 

clearly state on its face that it may not 

be accepted by any Federal agency for 

Federal identification or any other 

official purpose. DHS is proposing that 

this statement be in bold lettering on the 

face of the driver’s license or 

identification card. States must also 

differentiate non-REAL ID driver’s 

licenses and identification cards from 

REAL ID driver’s licenses and 

identification cards by incorporating a 

unique design or color indicator to alert 

Federal agencies and other law 

enforcement personnel that it may not 

be accepted for Federal official purposes 

pursuant to this regulation. DHS seeks 

comment on whether a uniform design/ 

color should be implemented 

nationwide for non-REAL ID driver’s 

licenses and identification cards. 

V. Section 7209 of the Intelligence 

Reform and Terrorism Prevention Act 

of 2004 

Section 7209 of the Intelligence 

Reform and Terrorism Prevention Act of 

2004 (IRTPA) (Pub. L. 108–458, 118 

Stat. 3638, Dec 17, 2004) requires that 

the Secretary of Homeland Security, in 

consultation with the Secretary of State, 

develop and implement a plan, as 

expeditiously as possible, to require 

travelers entering the United States to 

present a passport, other document, or 

combination of documents, that are 

‘‘deemed by the Secretary of Homeland 

Security to be sufficient to denote 

identity and citizenship.’’ Section 7209 

of IRTPA is commonly known as the 

Western Hemisphere Travel Initiative 

(WHTI). 


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DHS and DOS issued a final rule on 

the plan for the air implementation of 

WHTI which took effect on January 23, 

2007. The WHTI requirements for the 

land and sea borders will be addressed 

in a separate rulemaking proceeding. In 

a related WHTI proceeding, DOS issued 

a Notice of Proposed Rulemaking 

concerning the Passport Card that 

would be an acceptable WHTI 

document at U.S. land and sea borders. 

See 71 FR 60928 (Oct. 17, 2006). The 

NPRM proposed that the Passport Card 

incorporate integrated circuit chip (ICC) 

technology that would transmit a 

unique identifier number that could be 

matched to the holder only in a 

Government database. The use of ICC 

technology would facilitate the border 

inspection of the Passport Card holder. 

DHS understands that numerous States 

are interested in exploring whether 

enhanced driver’s licenses and 

identification cards could be acceptable 

at the land border to satisfy the WHTI 

requirements. There are a number of 

significant differences, however, 

between a Federally-issued border 

crossing document and a State-issued 

driver’s license or identification card, 

including the different vetting criteria. 

In addition, for purposes of satisfying 

WHTI requirements, the State would 

have to ensure that the State-issued 

REAL ID driver’s license or 

identification card denoted citizenship 

for purposes of border crossing under 

WHTI. For REAL ID purposes, DHS is 

not proposing that States must present 

the individual’s citizenship on the face 

of the driver’s license or identification 

card or MRZ. 

Nevertheless, recognizing the strong 

interest in some border States to explore 

the possible interplay between an 

enhanced driver’s license/identification 

card and WHTI requirements, DHS 

seeks comments on several topics 

relating to this notion, including what 

procedures and business processes a 

State DMV could develop in order to 

offer individuals applying for a Stateissued REAL ID driver’s license or 

identification card the voluntary option 

to use the document as a WHTIcompliant border crossing document by 

meeting some additional requirements. 

DHS also invites comments on how a 

State would integrate the type of ICC 

technology necessary to provide a travel 

facilitation benefit at the land and sea 

border along with the common machine 

readable technology proposed in the 

REAL ID proceeding while also 

including an MRZ meeting ICAO 

standards. 

VI. Solicitation of Comments 

DHS solicits public comments on all 

aspects of this proposed regulation. DHS 

is particularly interested in comments 

on the following issues: 

(1) Whether the list of documents 

acceptable for establishing identity 

should be expanded. Commenters who 

believe the list should be expanded 

should include reasons for the 

expansion and how DMVs will be able 

to verify electronically with issuing 

agencies the authenticity and validity of 

these documents. 

(2) Whether the data elements 

currently proposed for inclusion in the 

machine readable zone of the driver’s 

license or identification card should be 

reduced or expanded; whether the data 

in the machine-readable portion of the 

card should be encrypted for privacy 

reasons to protect the data from being 

harvested by third parties, and whether 

encryption would have any effect on 

law enforcement’s ability to quickly 

read the data and identify the individual 

interdicted. What would it cost to build 

and manage the necessary information 

technology infrastructure for State and 

Federal law enforcement agencies to be 

able to access the information on the 

machine readable zone if the data were 

encrypted? 

(3) Whether individuals born before 

1935 who have established histories 

with a State should be wholly exempt 

from the birth certificate verification 

requirements of this regulation, or 

whether, as proposed, such cases should 

be handled under each State’s 

exceptions process. 

(4) If a State chooses to produce 

driver’s licenses and identification cards 

that are WHTI-compliant, whether 

citizenship could be denoted either on 

the face or machine-readable portion of 

the driver’s license or identification 

card, and more generally on the 

procedures and business processes a 

State DMV could adopt in order to issue 

a Real ID driver’s license or 

identification card that also included 

citizenship information for WHTI 

compliance. DHS also invites comments 

on how States would or could 

incorporate a separate WHTI-compliant 

technology, such as an RFID-enabled 

vicinity chip technology, in addition to 

the REAL ID PDF417 barcode 

requirement. 

(5) How DHS can tailor the address of 

principal residence requirement to 

provide for the security of classes of 

individuals such as federal judges and 

law enforcement officers. 

(6) What benchmarks are appropriate 

for measuring progress toward 

implementing the requirements of this 

rule and what schedule and resource 

constraints will impact meeting these 

benchmarks. 

(7) Adoption of a performance 

standard for the physical security of 

DMV facility, including whether DHS 

should adopt the ANSI/NASPO 

‘‘Security Assurance Standards for the 

Document and Product Security 

Industries,’’ ANSI/NASPO–SA–v3.OP–

2005, Level II as the preferred standard. 

(8) How DHS can better integrate 

American Samoa and the 

Commonwealth of the Northern 

Marianas into the REAL ID framework. 

(9) Whether the physical security 

standards proposed in this rule are the 

most appropriate approach for deterring 

the production of counterfeit or 

fraudulent documents, and what 

contractual issues, if any, the States will 

face in satisfying the document security 

requirements proposed in this rule. 

(10) The federalism aspects of the 

rule, particularly those arising from the 

background check requirements 

proposed herein. 

(11) How the Federal government can 

better assist States in verifying 

information against Federal databases. 

(12) In addition to security benefits, 

what other ancillary benefits could 

REAL ID reasonably be expected to 

produce? For example, could REAL ID 

be expected to reduce instances of 

underage drinking through use of false/ 

fraudulent identification. If so, please 

provide details about the expected 

benefit and how it would be achieved 

through REAL ID. 

(13) The potential environmental 

impacts of the physical security 

standards and other requirements 

proposed under this rule. 

(14) Whether other federal activities 

should be included in the scope of 

‘‘official purpose.’’

(15) How the REAL ID Act can be 

leveraged to promote the concept of 

‘‘one driver, one record, one record of 

jurisdiction’’ and prevent the issuance 

of multiple driver’s licenses. 

(16) Whether DHS should standardize 

the unique design or color required for 

non-REAL ID under the REAL ID Act for 

ease of nationwide recognition, and 

whether DHS should also implement a 

standardized design or color for REAL 

ID licenses. 

VII. Regulatory Analyses 

A. Paperwork Reduction Act 

The Paperwork Reduction Act of 1995 

(PRA) (44 U.S.C. 3501 et seq.) requires 

that DHS consider the impact of 

paperwork and other information 

collection burdens imposed on the 

public and, under the provisions of PRA 


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section 3507(d), obtain approval from 

the Office of Management and Budget 

(OMB) for each collection of 

information it conducts, sponsors, or 

requires through regulations. 

This proposed rule contains new and 

amended information collection 

activities subject to the PRA. 

Accordingly, DHS has submitted the 

following information requirements to 

OMB for its review. 

Title: Minimum Standards for Driver’s 

licenses and Identification Cards 

Acceptable by Federal Agencies for 

Official Purposes. 

Summary: This proposal would 

require States participating in the REAL 

ID program to meet certain standards in 

the issuance of driver’s licenses and 

identification cards, including security 

plans and background checks for certain 

persons who have the ability to affect 

the recording of any information 

required to be verified, or who are 

involved in the manufacture or 

production of drivers’ licenses and 

identification cards, or who have the 

ability to affect the identity information 

that appears on the license (covered 

employees). 

Use of: This proposal would support 

the information needs of: (a) The 

Department of Homeland Security, in its 

efforts to oversee security measures 

implemented by States issuing REAL ID 

driver’s licenses and identification 

cards; and (b) other Federal and State 

authorities conducting or assisting with 

necessary background and immigration 

checks for covered employees. 

Respondents (including number of): 

The likely respondents to this proposed 

information requirement are States 

(including the District of Columbia, 

Puerto Rico, the Virgin Islands, Guam, 

American Samoa, and the 

Commonwealth of the Northern Mariana 

Islands) and State agencies (such as 

Departments of Motor Vehicles) and 

driver’s license and identification card 

applicants. 

Frequency: DHS estimates that each 

State will submit an initial certification 

of compliance or request for extension, 

together with a comprehensive security 

plan. Subsequently, on an annual basis, 

each State will re-certify its compliance 

with the REAL ID Act. States will also 

submit quarterly reports analyzing their 

use of the exceptions process and 

monitoring security trends. Further, 

DHS anticipates that approximately 

17,781 covered employees will receive 

background checks (Criminal History 

Records Check or CHRC) on an annual 

basis. Thus, the annual frequency of 

information requirements is: 17,781 

background checks; 56 annual 

certifications; and 224 quarterly reports. 

Background check information will be 

submitted on an as-needed basis. 

Additionally, driver’s license and 

identification card applicants must 

provide proof of identity and lawful 

status in the U.S. when applying for a 

REAL ID drivers’ licenses or 

identification cards. Applicants would 

submit this information only for initial 

applications or when their lawful status 

or identifying information has changed. 

Annual Burden Estimate: This 

proposal would result in an annual 

recordkeeping and reporting burden as 

follows: States will be responsible for 

sending initial certifications (including 

security plans), annual certifications 

and background check information to 

the Federal Government. The 

compilation and transmission of the 

initial certifications will require an 

annualized 76,000 labor hours by DMV 

and/or State government staff. Using an 

average hourly total cost of 

compensation of $24.92, the annual 

burden for labor hours would be 

$1,895,000. 

In the first three years of license 

issuance, applicants for REAL ID would 

spend an average of 55.9 million more 

hours per year. This is equal to 

approximately 44 additional minutes 

per applicant on average. This time 

includes the increase in time to obtain 

source documents, travel to the DMV, 

wait in line, and receive service at a 

customer window. 

One-time initial certifications of 

compliance would require an estimated 

$1,106,000 for all jurisdictions. Using an 

average hourly total cost of 

compensation of $24.92 yields an 

estimate of 44,397 hours for the first 

year. This collection occurs only in the 

first year. However, over three years the 

annualized burden is 14,799 hours or 

$368,795. 

State annual re-certification would 

cost the states, on average, $295,035 per 

year. Using an average hourly total cost 

of compensation of $24.92 yields an 

estimate of 11,839 hours each year. 

Each quarterly report is likely to 

require effort similar to the annual recertifications. Accordingly, the hourly 

burden estimate is 11,839 hours per 

quarter or 47,356 hours annually. Using 

an average total cost of compensation of 

$24.92 yields a monetized estimate of 

$1,180,142 per year. 

Forwarding information to the Federal 

Government for the employee 

background checks would impose an 

annualized burden of 889 hours on 

DMVs and/or State governments. This 

assumes that each submission will take 

three minutes to forward information for 

the FBI CHRC. Multiplying the three 

minutes per transaction by the 17,781 

annualized employee background 

checks yields the annualized hour 

burden above. Using an average total 

cost of compensation of $24.92 yields an 

annual monetized estimate of $22,156. 

Driver’s license and identification 

card applicants would incur an annual 

$171 million in order to seek acceptable 

source documents as required by this 

rule. 

Running immigration checks on 

foreign-born applicants for driver’s 

licenses and identification cards will 

not impart a new hourly burden upon 

DMVs. DMVs already collect biographic 

information from applicants’ source 

documentation. At most, this 

requirement will change which pieces 

are collected, not the total amount of 

information collected. Further, the 

transmission of information to the SAVE 

system run by DHS will be automated 

and will therefore not require DMV 

labor hours to conduct each check. 

DHS is soliciting comments to—

(1) Evaluate whether the proposed 

information requirement is necessary for 

the proper performance of the functions 

of the agency, including whether the 

information will have practical utility; 

(2) Evaluate the accuracy of the 

agency’s estimate of the burden; 

(3) Enhance the quality, utility, and 

clarity of the information to be 

collected; and 

(4) Minimize the burden of the 

collection of information on those who 

are to respond, including using 

appropriate automated, electronic, 

mechanical, or other technological 

collection techniques or other forms of 

information technology. 

Individuals and organizations may 

submit comments on the information 

collection requirements by May 8, 2007. 

Direct the comments to the address 

listed in the ADDRESSES section of this 

document, and fax a copy of them to the 

Office of Information and Regulatory 

Affairs, Office of Management and 

Budget, Attention: DHS–TSA Desk 

Officer, at (202) 395–5806. A comment 

to OMB is most effective if OMB 

receives it within 30 days of 

publication. TSA will publish the OMB 

control number for this information 

collection in the Federal Register after 

OMB approves it. 

As protection provided by the 

Paperwork Reduction Act, as amended, 

an agency may not conduct or sponsor, 

and a person is not required to respond 

to, a collection of information unless it 

displays a currently valid OMB control 

number. 


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28See, e.g., section 204(b) authorizing ‘‘such sums 

as may be necessary to carry out this title.’’

29See, e.g., section 202(a)(1) (‘‘a Federal Agency 

may not accept’’ no-compliant State licenses) and 

Conference Report language on section 202(a)(1) 

(‘‘the law is binding on Federal agencies—not the 

states’’). 

30See 2 U.S.C. 1503(5), 1535. 

B. Economic Impact Analyses 

Regulatory Evaluation Summary 

Changes to Federal regulations must 

undergo several economic analyses. A 

summary of the required analyses 

follows. A detailed regulatory impact 

analysis has been prepared as a separate 

document and is available for review in 

the docket. 

First, Executive Order 12866, 

Regulatory Planning and Review (58 FR 

51735, October 4, 1993), directs each 

Federal agency to propose or adopt a 

regulation only upon a reasoned 

determination that the benefits of the 

intended regulation justify its costs. 

Second, the Regulatory Flexibility Act 

of 1980 (5 U.S.C. 601 et seq., as 

amended by the Small Business 

Regulatory Enforcement Fairness Act 

(SBREFA) of 1996) requires agencies to 

analyze the economic impact of 

regulatory changes on small entities. 

Third, the Trade Agreements Act (19 

U.S.C. 2531–2533) prohibits agencies 

from setting standards that create 

unnecessary obstacles to the foreign 

commerce of the United States. Fourth, 

the Unfunded Mandates Reform Act of 

1995 (UMRA, 2 U.S.C. 1531–1538) 

requires agencies to prepare a written 

assessment of the costs, benefits, and 

other effects of proposed or final rules 

that include a Federal mandate likely to 

result in the expenditure by State, local, 

or tribal governments, in the aggregate, 

or by the private sector, of $100 million 

or more annually (adjusted for 

inflation). 

Although Congress recognized that 

States will have to expend monies in 

order to comply with REAL ID,28 it 

explicitly stated that the REAL ID Act is 

binding on the Federal government, and 

not the States.29 Moreover, by its terms, 

UMRA does not apply to regulations 

‘‘necessary for the national security’’

and those which impose requirements 

‘‘specifically set forth in law.’’ 30 Thus, 

as a matter of law, the UMRA 

requirements do not apply to this 

proposed rulemaking even though 

States will be expending resources. 

However, the analyses that would 

otherwise be required are similar to 

those required under Executive Order 

12866, which have been completed and 

may be found in the full Regulatory 

Evaluation. 

Executive Order 12866 Assessment 

DHS has determined that this rule 

will have an impact of over $100 

million and that it raises novel or 

complex policy issues. Accordingly, this 

rule is significant under Section 3(f)(1) 

of Executive Order 12866 and therefore 

has been reviewed by the Office of 

Management and Budget. 

DHS has assessed the costs, benefits 

and alternatives of the requirement 

proposed under this rule. A complete 

regulatory impact assessment, as 

required under Executive Order 12866 

and OMB Circular A–4, is set forth in a 

separate document in the docket for this 

regulatory action at http:// 

www.regulations.gov at Docket Number 

DHS–2006–0030. A summary of the 

estimated costs and benefits, including 

potential ancillary benefits realized by 

the requirements proposed in this rule, 

is set forth below. 

The Department of Homeland 

Security (DHS) has conducted a 

comprehensive, rigorous, and 

exhaustive Regulatory Evaluation of the 

benefits and costs of the proposed 

minimum standards for state-issued 

driver’s licenses and non-driver 

identification cards pursuant to the 

REAL ID Act of 2005. Since these 

standards will impact the lives of 

approximately 240 million people and 

the operations of all 56 state and 

territorial jurisdictions, DHS is 

committed to an ongoing dialogue with 

all stakeholders on the benefits and 

burdens of the proposed regulation. 

This Regulatory Evaluation is the initial 

step in joint State, Federal, and public 

effort to improve the security and 

trustworthiness of driver’s licenses and 

identification cards. 

Assumptions 

This Regulatory Evaluation covers the 

ten-year costs of REAL ID Program 

deployment and operations. This 

includes: 

• Year One—State and Federal 

government program startup efforts 

prior to the statutory deadline of May 

2008. 

• Years Two through Six—the fiveyear implementation period ending in 

May 2013, by which time States must be 

in full compliance with the statute and 

regulation 

• Years Seven through Ten—four 

years of program operation 

Moreover, this Regulatory Evaluation 

is based upon five key assumptions and 

to the extent that any of these five 

assumptions are relaxed, then it is likely 

that the compliance costs may be lower. 

(1) That all States will comply with 

the regulation by the statutory deadline. 

DHS recognizes that some States will be 

unable to comply by May 2008 and will 

file requests for extensions that may 

result in phased compliance 

implementation schedules that could 

mitigate some of the startup costs 

examined below. Hence, the costs 

allocated to the period prior to May 

2008—that is, program year one in this 

analysis—may be redistributed to 

subsequent years. 

(2) That all Driver’s License/ 

Identification (DL/ID) holders will seek 

a REAL ID credential. DHS anticipates 

some individuals may not need to 

access Federal facilities or fly on 

commercial airlines or may choose to 

use a passport or alternative form of 

photo identification for these purposes. 

To the extent that some people would 

not seek a REAL ID credential, then the 

compliance costs may be considered 

high. 

(3) That States will issue both REAL 

IDs and non-REAL IDs. DHS anticipates 

that States will offer an alternative DL/ 

ID (not acceptable for Federal official 

purposes) to those who are unwilling or 

unable to obtain a compliant one. Thus, 

this Regulatory Evaluation assumes that 

States will deploy a two-tier or multitier licensing system. States instead may 

choose to issue only REAL ID compliant 

driver’s licenses and identification 

cards, thereby reducing their 

operational and system costs. 

(4) That all IT systems will be 

functional by the statutory deadline. 

DHS has calculated the costs assuming 

that all required verification data 

systems be operational and fully 

populated by May 2008. DHS is working 

to bring these systems online and up to 

standards as soon as possible and will 

work with the States to develop 

alternative procedures. Again, to the 

extent that these systems are not 

operational, then the discounted costs 

and benefits of the proposed rule may 

be lower. 

(5) State impact is not uniform due to 

progress already made in some States. 

States that have already invested in 

improving the security of their licenses 

will have to invest far less per capita 

than states with less secure licenses and 

issuance processes. Those States that are 

more advanced would incur lower 

compliance costs than other States. 

Costs and Benefits 

It is impossible to quantify or 

monetize the benefits of REAL ID using 

standard economic accounting 

techniques. However, though difficult to 

quantify, everyone understands the 

benefits of secure and trusted 

identification. The proposed minimum 

standards seek to improve the security 


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and trustworthiness of a key enabler of 

public and commercial life—state-used 

driver’s licenses and identification 

cards. As detailed below, these 

standards will impose additional 

burdens on individuals, States, and 

even the Federal government. These 

costs, however, must be weighed against 

the intangible but no less real benefits 

to both public and commercial activities 

achieved by secure and trustworthy 

identification. 

Economic Costs 

The costs of the proposed rule are 

significant. Implementing the REAL ID 

Act will impact all 56 State and 

territorial jurisdictions, more than 240 

million applicants for and holders of 

State DL/IDs, private sector 

organizations, and Federal government 

agencies. Figure 1 summarizes the 

estimated marginal economic costs of 

the proposed rule over a ten-year 

period. 

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

Estimated costs (10 years) 

$ Million $ Million 

(2006 dollars) 

% Total % Total 

7% Discounted Undiscounted 7% Discounted Undiscounted 

Costs to States ........................................................................ 10,770 14,600 62.5 63.2 

Customer Services .................................................................. 5,253 6,901 30.5 29.9 

Card production ....................................................................... 3,979 5,760 23.1 24.9 

Data Systems & IT .................................................................. 1,127 1,436 6.5 6.2 

Security & Information Awareness .......................................... 388 471 2.3 2.0 

Data Verification ...................................................................... 12 18 0.1 0.1 

Certification process ................................................................ 10 14 0.1 0.1 

Costs to Individuals ................................................................. 5,991 7,875 34.8 34.1 

Opportunity Costs (268.8 million hours) .................................. 5,401 7,113 31.4 30.8 

Application Preparation (161.9 million hours) ......................... 3,243 4,283 18.8 18.5 

Obtain Birth Certificate (26.5 million hours) ............................ 542 700 3.1 3.0 

Obtain Social Security Card (15.8 million hours) .................... 302 418 1.8 1.8 

DMV visits (64.7 million hours) ................................................ 1,315 1,712 7.6 7.4 

Expenditures: Obtain Birth Certificate ..................................... 590 762 3.4 3.3 

Cost to Private Sector ............................................................. 7 9 0.0 0.0 

Costs to Federal Government ................................................. 451 617 2.6 2.7 

Social Security card issuance ................................................. 349 483 2.0 2.1 

Data Verification—SAVE ......................................................... 22 32 0.1 0.1 

Data Systems & IT .................................................................. 63 78 0.4 0.3 

Certification & training ............................................................. 17 24 0.1 0.1 

Total Costs ....................................................................... 17,219 23,101 100.0 100.0 

Figure 1 shows the primary estimates 

calculated in both undiscounted 2006 

dollars and discounted dollars at a 7% 

discounted rate. Excluding the cost to 

individuals, primarily associated with 

obtaining documents, DHS estimates 

that the discounted cost of the proposed 

rule is $11.2 billion ($13.81 per issuance 

for each of the 813 million issuances 

over ten years) over ten years. The total 

discounted cost of the proposed rule, 

including the cost to individuals is 

$17.2 billion ($21.18 per issuance). The 

undiscounted costs are estimated at 

$15.2 billion ($18.73 per issuance), 

excluding the direct cost to individuals 

or $23.1 billion total ($28.41 per 

issuance). DHS acknowledges that an 

individual may have more than one 

application experience over a ten year 

period due to the expiration period or 

relocation between states. 

States will incur the largest share of 

the costs as shown in Figure 1. More 

than 60 percent of the costs (discounted 

or undiscounted) are associated with 

providing customer services and card 

production. Over 30 percent of the costs 

(discounted or undiscounted) are 

categorized as costs to individuals and 

are associated with preparing 

applications and obtaining necessary 

documents. 

Several factors influence the high cost 

of this proposed rule. First, this rule is 

assumed to affect 56 jurisdictions and 

240 million license holders. This 

regulatory evaluation assumes that 

every license holder will acquire a 

REAL ID. Second, many individuals 

will not have their required documents 

when they need them. Again, the 

regulatory evaluation realistically 

assumes that many individuals will 

need to find the appropriate documents. 

Third, individuals will need to renew 

their licenses periodically. DHS does 

not foresee any way to significantly 

lessen the 813 million issuances over 

the next ten years. 

Estimated Benefits 

The proposed REAL ID regulation 

would strengthen the security of 

personal identification. Though difficult 

to quantify, nearly all people 

understand the benefits of secure and 

trusted identification and the economic, 

social, and personal costs of stolen or 

fictitious identities. The proposed REAL 

ID NPRM seeks to improve the security 

and trustworthiness of a key enabler of 

public and commercial life—stateissued driver’s licenses and 

identification cards. 

The primary benefit of REAL ID is to 

improve the security and lessen the 

vulnerability of federal buildings, 

nuclear facilities, and aircraft to terrorist 

attack. The rule would give states, local 

governments, or private sector entities 

an option to choose to require the use 

of REAL IDs for activities beyond the 

official purposes defined in this 

regulation. To the extent that states, 

local governments, and private sector 

entities make this choice, the rule may 

facilitate processes which depend on 

licenses and cards for identification and 

may benefit from the enhanced security 

procedures and characteristics put in 

place as a result of this proposed rule. 

DHS provides a rough ‘‘break-even’’

analysis based on the rule having an 

impact on the annual probability of the 

U.S. experiencing 9/11 type attacks in 

the 10 years following the issuance of 


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31This type of analysis is recommended by OMB 

Circular A–4 when it is difficult to quantify and 

monetize the benefits of rulemaking. 

32Small Business Administration. Small Business 

Size Standards Matched to North American 

Industrial Classification System, footnote 1. 

Available at http://www.sba.gov/size/ 

sizetable2002.html#fn1. Accessed Jul 14, 2006. 

33Calculations based on data from the Energy 

Information Administration. U.S. Department of 

Energy. Monthly Nuclear Utility Generation by State 

and Reactor, 2004 and Monthly Nuclear Utility 

Generation by State and Reactor, 2005. Available at 

http://www.eia.doe.gov/cneaf/nuclear/page/ 

nuc_generation/gensum.html. Accessed Jul 14, 

2006. 

34Conclusion based on an internet search 

conducted on July 14, 2006 of the three specific 

power plants and the companies that own and 

operate them. 

the rule.31 DHS believes that the 

probability and consequences of a 

successful terrorist attack cannot be 

determined for purposes of this benefit 

analysis. However, for the purposes of 

this analysis, it is not necessary to 

assume that there is a probability of 

being attacked in any particular year. 

Setting a probability for a successful 

attack is not necessary for this analysis, 

so long as we make some admittedly 

tenuous assumptions about the costs of 

attack consequences, to determine the 

reduction in probability of attack that 

REAL ID would need to bring about so 

that the expected cost of REAL ID equals 

its anticipated security benefits. Since it 

is exceedingly difficult to predict the 

probability and consequences of a 

hypothetical terrorist attack, DHS 

instead provides an answer to the 

following question: what impact would 

this rule have to have on the annual 

probability of experiencing a 9/11 type 

attack in order for the rule to have 

positive quantified net benefits. This 

analysis does not assume that the U.S. 

will necessarily experience this type of 

attack, but rather is attempting to 

provide the best available information to 

the public on the impacts of the rule. 

This analysis is preliminary, and DHS 

specifically requests comments on the 

methodology used in this discussion, 

and the types of additional security 

incidents this rulemaking may impact. 

DHS is also continuing to develop this 

analysis for the final rule. 

In summary, if these requirements 

lowered by 3.60% per year the annual 

probability of a terrorist attack that 

caused immediate impacts of $63.9 

billion (which is an estimate of the 

immediate impact incurred in the 9/11 

attack and might be considered a lower 

bound estimate), the quantified net 

benefits of the REAL ID regulation 

would be positive. If these requirements 

lowered by 0.61% per year the annual 

probability of a terrorist attack that 

caused both immediate and longer run 

impacts of $374.7 billion (which is an 

estimate of the immediate and longer 

run impacts incurred in the 9/11 attack 

and might be considered an upper 

bound estimate), the quantified net 

benefits of the REAL ID regulation 

would be positive. 

The potential ancillary benefits of 

REAL ID are numerous, as it would be 

more difficult to fraudulently obtain a 

legitimate license and would be 

substantially more costly to create a 

false license. These other benefits 

include reducing identity theft, 

unqualified driving, and fraudulent 

activities facilitated by less secure 

driver’s licenses such as fraudulent 

access to government subsidies and 

welfare programs, illegal immigration, 

unlawful employment, unlawful access 

to firearms, voter fraud, and possibly 

underage drinking and smoking. DHS 

assumes that REAL ID would bring 

about changes on the margin that would 

potentially increase security and reduce 

illegal behavior. Because the size of the 

economic costs that REAL ID serves to 

reduce on the margin are so large, 

however, a relatively small impact of 

REAL ID may lead to significant 

benefits. 

Regulatory Flexibility Act Assessment 

The Regulatory Flexibility Act of 

1980, as amended, (RFA) was enacted 

by Congress to ensure that small entities 

(small businesses, small not-for-profit 

organizations, and small governmental 

jurisdictions) are not unnecessarily or 

disproportionately burdened by Federal 

regulations. The RFA requires agencies 

to review rules to determine if they have 

‘‘a significant economic impact on a 

substantial number of small entities.’’

The following analysis suggests that the 

proposed rule would not have a 

significant economic impact on a 

substantial number of small entities. 

Under the RFA, the term ‘‘small 

entity’’ has the same meaning as the 

terms ‘‘small business,’’ ‘‘small 

organization’’ and ‘‘small governmental 

jurisdiction.’’ This action will affect 

States, and States are governmental 

jurisdictions. However, States are not 

considered ‘‘small governmental 

jurisdictions’’ under the RFA. As 

defined by the RFA, small governmental 

jurisdictions include governments of 

cities, counties, towns, townships, 

villages, school districts, or special 

districts with a population of less than 

50 thousand. The proposed rule would 

regulate driver’s licenses and non-driver 

identification cards at the state level. It 

would not directly regulate small 

government jurisdictions nor would it 

directly regulate small entities in the 

driver’s license and identification card 

industry. 

The rule would regulate the 

acceptance of a driver’s license or 

identification card by Federal agencies 

for official purposes. (If the rule is 

adopted, Federal agencies would not 

accept state-issued driver’s licenses or 

identification cards unless they were 

REAL IDs for the purposes of boarding 

federally regulated commercial aircraft, 

entering nuclear power plants and 

accessing Federal facilities. The rule 

does not require presentation of this, or 

any other document, nor does it prohibit 

the acceptance of any other document.) 

Consequently, employees and agents 

would be trained in the acceptance of 

REAL ID driver’s licenses and 

identification cards to ensure they are 

compliant with the Act. 

The acceptance of REAL ID driver’s 

licenses and identification cards for 

accessing Federal facilities does not 

directly regulate small entities as the 

Federal government is not itself a small 

entity. 

Nuclear power plants qualify as small 

entities if ‘‘including its affiliates, it is 

primarily engaged in the generation, 

transmission, and/or distribution of 

electric energy for sale and its total 

electric output for the preceding fiscal 

year did not exceed 4 million megawatt 

hours.’’ 32 With only three exceptions, 

every nuclear power plant in the United 

States produced more than 4 million 

megawatt hours in fiscal year 2005.33

However, each of those three plants are 

owned by companies producing more 

than 12 million megawatt hours.34 None 

of the nuclear power plants qualify as a 

small business using the SBA definition. 

DHS estimates that airlines and their 

representatives would need to train 

some of their personnel in the 

acceptance of REAL ID driver’s licenses 

and identification cards under the 

proposed rule. While data exist on the 

number of employees for some firms in 

the air carrier industry, data do not exist 

on how many of these employees accept 

identification from passengers before 

allowing them to board an aircraft. DHS 

has therefore established a threshold 

measure to determine if the proposed 

regulation would have a significant 

impact on a substantial number of small 

entities. 

DHS estimates that each employee 

accepting REAL ID driver’s licenses and 

identification cards for official purposes 

would require two hours of training. 

This training will assist personnel in 

identifying the differences between 

REAL IDs and non-compliant IDs. The 

training will also inform personnel 

about which States are or are not 

compliant during the phase-in period. 


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DHS calculated the fully loaded wage 

rate of $22.95 per hour for airline ticket 

counter agents and $22.50 per hour for 

airport checkpoint staff. Multiplying the 

wage rates by the estimated two hours 

to complete the training yields estimates 

of $45.90 and $45.01 per-employee for 

ticket counter agents and checkpoint 

staff, respectively. If a firm’s revenue 

divided by the number of ticket counter 

agents to be trained is more than 

$4,590:1 then the effect is less than one 

percent of their total revenue. To have 

an impact equal to or greater than three 

percent of total revenue, the revenue to 

trained agents would need to be equal 

to or less than $1,530:1. Firms 

employing airport checkpoint staff with 

a total revenue to trained employee ratio 

greater than $4,501:1 would experience 

impacts less than one percent of total 

revenue. DHS estimates that, to have an 

impact of three percent or more, the 

firm would need to have a revenue to 

trained employee ratio equal to, or less 

than, $1,500:1. DHS is unable to identify 

any firms for which the total revenue to 

trained employee ratio would be less 

than $4,500:1. 

This analysis suggests that the 

proposed rule would not have a 

significant impact on a substantial 

number of small entities. The 

Department welcomes comments and 

data on the impacts of the proposed 

regulation on small entities. 

International Trade Impact Assessment 

The Trade Agreement Act of 1979 

prohibits Federal agencies from 

engaging in any standards or related 

activities that create unnecessary 

obstacles to the foreign commerce of the 

United States. Legitimate domestic 

objectives, such as safety, are not 

considered unnecessary obstacles. The 

statute also requires consideration of 

international standards and, where 

appropriate, that they be the basis for 

U.S. standards. There is no international 

standard for state-issued driver licenses 

or identification cards. DHS has 

determined that the proposed regulation 

would not have an impact on trade. 

Unfunded Mandates Assessment 

Section 202 of the Unfunded 

Mandates Reform Act of 1995 (UMRA) 

requires Federal agencies to prepare a 

written assessment of the costs, benefits, 

and other effects of proposed or final 

rules that include a Federal mandate 

likely to result in the expenditure by 

State, local, or tribal governments, in the 

aggregate, or by the private sector, of 

more than $100 million in any one year 

(adjusted for inflation with base year of 

1995). Before promulgating a rule for 

which a written statement is needed, 

section 205 of the UMRA generally 

requires agencies to identify and 

consider a reasonable number of 

regulatory alternatives and adopt the 

least costly, most cost-effective, or least 

burdensome alternative that achieves 

the objective of the rule. Agencies are 

also required to seek input from the 

States in the preparation of such rules. 

The provisions of section 205 do not 

apply when they are inconsistent with 

applicable law. Moreover, section 205 

allows DHS to adopt an alternative other 

than the least costly, most cost-effective, 

or least burdensome alternative if the 

agency publishes with the final rule an 

explanation why that alternative was 

not adopted. 

As indicated above, UMRA excludes 

from its scope regulations which are 

required for national security reasons. 

National security was a primary 

motivator for the REAL ID Act; indeed, 

the Act itself is an effort to implement 

recommendations of the 9/11 

Commission, and Congress took pains to 

explain the connection between REAL 

ID and national security, with over a 

dozen references to ‘‘terrorists’’ or 

‘‘terrorism’’ in the Conference Report. 

See 9/11 Commission Public Report, 

Chapter 12.4; Conf. Rep., 179–183. 

Notwithstanding the national security 

nature of the REAL ID Act requirements, 

DHS has analyzed the estimated cost to 

states and considered appropriate 

alternatives to, and benefits derived 

from, the proposed regulation. 

Moreover, as detailed in the following 

section (Executive Order 13132, 

Federalism), DHS has solicited input 

from State and local governments in the 

preparation of this proposed rule. 

C. Executive Order 13132, Federalism 

Executive Order (E.O.) 13132 requires 

each Federal agency to develop a 

process to ensure ‘‘meaningful and 

timely input by State and local officials 

in the development of regulatory 

policies that have federalism 

implications.’’ The phrase ‘‘policies that 

have federalism implications’’ is 

defined in the Executive Order to 

include regulations that have 

‘‘substantial direct effects on the States, 

on the relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government.’’

Executive Order 13132 lists as a 

‘‘Fundamental Federalism Principle’’

that ‘‘[f]ederalism is rooted in the belief 

that issues that are not national in scope 

or significance are most appropriately 

addressed by the level of government 

closest to the people.’’ The issue 

covered by the instant regulation is, 

without question, national in scope and 

significance. It is also one in which the 

States have significant equities. 

While driver’s licenses and 

identification cards are issued by states, 

they are also the most widely used 

identification documents. Not 


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35See 9/11 Commission Report, Chapter 12.4. 

surprisingly, they are very frequently 

used by Americans to establish their 

identities in the course of their 

interactions with the Federal 

Government (e.g., when entering secure 

Federal facilities or passing through 

Federally-regulated security procedures 

at U.S. airports). The fact that the use of 

driver’s licenses as identity documents 

is an issue that is ‘‘national in scope’’ is 

illustrated by the events of September 

11, 2001. A number of the terrorists who 

hijacked U.S. aircraft on that day had, 

through unlawful means, obtained 

genuine driver’s licenses; these 

documents were used to facilitate the 

terrorists’ operations against the United 

States.35

1. DHS Has Considered the Federalism 

Implications of Proposed REAL ID 

Policies 

Section 3 of the E.O. sets forth certain 

‘‘Federalism Policymaking Criteria.’’ In 

formulating or implementing policies 

with ‘‘federalism implications,’’

agencies are required, to the extent 

permitted by law, to adhere to certain 

criteria. DHS has considered this action 

in light of the criteria set forth in E.O. 

13132 section 3(a)–(d) and submits the 

following: 

(a) Constitutional principles and 

maximizing the policymaking discretion 

of the States. The proposed rule is being 

promulgated in strict adherence to 

constitutional principles, and the limits 

of DHS’ constitutional and statutory 

authority have been carefully 

considered. DHS is proceeding with this 

action pursuant to direct Congressional 

authorization as set forth in the REAL ID 

Act. 

Notwithstanding this clear mandate, 

DHS has taken steps, in consultation 

with the States, to maximize 

policymaking discretion at the state 

level. In response to concerns expressed 

during the course of DHS’ discussions 

with stakeholders, DHS has proposed, 

as part of this rule, an exceptions 

process (see section II.F, supra, 

Exceptions Processing for Extraordinary 

Circumstances) that would allow each 

State participating in REAL ID to 

exercise maximum discretion in 

responding to exigencies arising in the 

course of verifying an individual’s 

identity. 

In section II.K.1 of this proposed rule 

(section 37.45 of the regulations 

Background checks for certain 

employees), DHS has recognized that 

each State’s unique situation mandates 

that the maximum possible latitude be 

allowed to States in fulfilling the 

statutory mandate that certain 

employees undergo background 

investigations. The proposed rule 

provides parameters for use by the 

States in determining which employees 

are subject to the statutory background 

check requirements but allows the 

individual States to make the 

determinations on a case-by-case basis. 

States are also given the discretion to 

find the best way to determine an 

individual driver’s license or 

identification card applicant’s address 

of principal residence (see sections II.D, 

II.E.1). 

In other aspects of the proposed 

regulation (see, e.g., section II.H.6, 

supra, Physical Security Features), DHS 

has prescribed baseline requirements 

while allowing States the discretion to 

impose more stringent standards. Any 

State that chooses to participate in 

REAL ID will retain the discretion to 

issue non-REAL ID driver’s licenses and 

identification cards in any manner it 

sees fit (provided such driver’s licenses 

and identification cards are clearly 

identified as non-REAL ID). Most 

significantly, as set forth above, each 

State retains the discretion to opt out of 

REAL ID in its entirety. 

(b) Action limiting the policymaking 

discretion of the States. As indicated 

above, the instant proposed rule strives 

to maximize State policymaking 

discretion on two levels: first, because a 

State’s participation in REAL ID is 

optional; and second, because of the 

policymaking discretion (e.g., the 

exceptions process) incorporated into 

the regulation for States which do 

choose to participate. DHS believes that 

it has incorporated into this action the 

maximum possible State discretion 

consistent with the purposes of the 

statute. 

(c) Avoiding intrusive Federal 

oversight. Consistent with Congress’

vision for REAL ID (see section 202(a)(2) 

of the Act), States which choose to 

participate in the program will be 

responsible for monitoring their own 

compliance. See section IV, State 

Certification Process, supra. As detailed 

in that section (and section 37.55 of the 

instant regulations), the Secretary of 

Homeland Security will determine 

whether a State is meeting the 

requirements of the Act based on 

certifications made by the State. 

Certifications ‘‘shall be made at such 

times and in such manner as the 

Secretary, in consultation with the 

Department of Transportation, may 

prescribe by regulation.’’

To facilitate compliance with REAL 

ID, DHS has adopted a certification 

process similar to that used by DOT in 

its regulations governing State 

administration of commercial driver’s 

licenses. Under the proposed rule, DHS 

will not directly oversee State 

compliance. Rather, States will 

demonstrate initial compliance with 

REAL ID by submitting a certification 

and certain specified documents 

including a description of their REAL ID 

programs. Continued compliance will 

be demonstrated through annual 

submission of such certification and 

documents. DHS will make compliance 

determinations based on submissions by 

the States (and will retain an audit 

function). States receiving adverse 

determinations will have the 

opportunity for an internal appeals 

process as well as judicial review. Thus, 

intrusive oversight is avoided by 

allowing the States themselves to serve 

as the primary compliance mechanism 

with this regulation. 

(d) Formulation of policies with 

federalism implications. DHS recognizes 

both the important national interest in 

secure identity documents and the 

federalism implications of the policies 

which underpin this proposed rule. 

Accordingly, DHS has welcomed and 

encouraged State participation in this 

process. Consistent with Congressional 

intent, DHS has sought, where possible, 

to draft this regulation in such a way as 

to maximize State discretion. The 

examples of exceptions processing and 

the State certification process are 

outlined above in this Federalism 

Statement, and detailed elsewhere in 

this proposed rule. 

Where the exigencies of national 

security and the need to prevent 

identity fraud have militated in favor of 

a uniform national standard (e.g., 

baseline security features on identity 

cards and background check 

requirements), DHS has, as reflected 

above, consulted with States in order to 

ensure that the uniform standards 

prescribed could be attained by the 

States and would reflect the 

accumulated security experience of state 

motor vehicles administrations. The 

Department recognizes that imposing 

qualifications for State employees 

through background check requirements 

may raise federalism concerns. DHS 

specifically requests comments on the 

federalism aspects of the background 

check requirements proposed under this 

rule. 

2. The REAL ID Proposed Rule 

Complies With the Regulatory 

Provisions of E.O. 13132 

Under section 6 of E.O. 13132, an 

agency may not issue a regulation that 

has federalism implications, that 

imposes substantial direct compliance 

costs, and that is not required by statute, 

unless the Federal Government provides 


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36New York v. U.S., 505 U.S. 144, 173 (1992). 

37See id. at 167. 

the funds necessary to pay the direct 

compliance costs incurred by State and 

local governments, or consults with 

state and local officials early in the 

process of developing the proposed 

regulation. Moreover, an agency may 

not issue a regulation that has 

federalism implications and that 

preempts State law, unless the Agency 

consults with State and local officials 

early in the process of developing the 

proposed regulation. 

(a) The proposed rule is required by 

statute. As stated above, the regulatory 

requirements of E.O. 13132 apply only 

to regulations that are not ‘‘required by 

statute.’’ See E.O. 13132, section 6(b). 

The REAL ID Act authorizes the 

Secretary of Homeland Security to 

define and implement the various 

requirements prescribed in the statute; 

the instant rule merely carries out that 

mandate. Thus, given the statutory 

mandate, E.O. 13132’s regulatory 

requirements arguably may not apply to 

this rulemaking. 

(b) The proposed rule does not 

preempt state law. As detailed 

elsewhere in this document, the REAL 

ID Act is binding on Federal agencies, 

rather than on States. The proposed rule 

would not formally compel any State to 

issue driver’s licenses or identification 

cards that will be acceptable for federal 

purposes. Importantly, under this 

scheme, ‘‘[a]ny burden caused by a 

State’s refusal to regulate will fall on 

those [citizens who need to acquire and 

utilize alternative documents for federal 

purposes], rather than on the State as a 

sovereign.’’ 36 In other words, the 

citizens of a given State—not 

Congress—ultimately will decide 

whether the State complies with this 

regulation and the underlying statute. 

DHS has concluded that the proposed 

rule is consistent with the Tenth 

Amendment to the U.S. Constitution 

and does not constitute an 

impermissible usurpation of state 

sovereignty. Rather, it is a permissible 

‘‘program of cooperative federalism’’ in 

which the federal and state governments 

have acted voluntarily in tandem to 

achieve a common policy objective.37

(c) DHS has engaged in extensive 

consultations with the States. The 

statutory mandate and the lack of 

preemption both satisfy the 

requirements of E.O. 13132. 

Nevertheless, in the spirit of federalism, 

and consistent with section 205(a) of the 

REAL ID Act, DHS has engaged in 

extensive consultations with the States 

prior to issuing this proposed rule. As 

set forth in section I.B of this proposed 

rule, DHS held meetings and solicited 

input from various States and such 

stakeholders as the National Governors 

Association and the National 

Conference of State Legislatures. 

In particular, DHS’ Office of State and 

Local Government Coordination hosted 

three face-to-face meetings (October 

2005, January 2006 and February 2006), 

as well as a conference call (March 

2006). DHS also participated in other 

conferences on REAL ID, hosted by 

various other stakeholders, including 

the American Association of Motor 

Vehicle Administrators. Details of 

conferences and the input received by 

DHS from participants are reflected in 

the docket for this proposed rule and are 

available for public review as set forth 

above. See Reviewing Comments in the 

Docket, supra. As detailed in that 

section, input from the States was 

instrumental in formulating the policies 

proposed herein. 

(d) DHS recognizes the burdens 

inherent in complying with the 

regulation. Notwithstanding both the 

statutory mandate and the Federal 

(rather than State) focus of the REAL ID 

Act, DHS recognizes that, as a practical 

matter, States may view noncompliance 

with the requirements of REAL ID as an 

unattractive alternative. DHS also 

recognizes that compliance with the 

rule carries with it significant costs and 

logistical burdens, for which federal 

funds are generally not available. The 

costs (to the States, the public and the 

Federal Government) of implementing 

this rule are by no means inconsiderable 

and have been detailed in the regulatory 

evaluation accompanying this proposed 

rule. 

As indicated above, E.O. 13132 

prohibits any agency from 

implementing a regulation with 

federalism implications which imposes 

substantial direct compliance costs on 

State and local governments unless the 

regulation is required by statute, the 

Federal Government will provide funds 

to pay for the direct costs, or the agency 

has consulted with State and local 

officials. In such a case, the agency must 

also incorporate a federalism statement 

into the preamble of the regulation and 

make available to the Office of 

Management and Budget any written 

communications from State and local 

officials. See E.O. 13132, section 6(b). 

This proposed rule is required by the 

REAL ID Act. DHS has (as detailed 

above) consulted extensively with State 

and local officials in the course of 

preparing this regulation. Finally, DHS 

has incorporated this Federalism 

Statement into the preamble to assess 

the federalism impact of its proposed 

REAL ID regulation. 

3. REAL ID and Federalism 

The issuance of driver’s licenses has 

traditionally been the province of State 

governments; DHS believes that, to the 

extent practicable, it should continue as 

such. However, given the threat to both 

national security and the economy 

presented by identity fraud, DHS 

believes that certain uniform standards 

should be adopted for the most basic 

identity document in use in this 

country. DHS has, in this proposed rule, 

attempted to balance State prerogatives 

with the national interests at stake. We 

look forward to receiving input from 

States, citizens and other stakeholders 

with regard to the federalism 

implications of this proposed rule. 

D. Environmental Analysis 

Under this proposed rule, DHS is 

seeking specific public comment and, in 

particular, information from State 

DMVs, on the potential environmental 

impact of the physical standards and 

other proposed requirements under this 

rule. DHS will be conducting the 

necessary analysis to determine the 

environmental impacts of this rule for 

purposes of complying with the 

National Environmental Policy Act of 

1969 (NEPA), 42 U.S.C. 4321 et seq., 

and Council on Environmental Quality 

(CEQ) regulations, 40 CFR parts 1501–

1508, and will be considering public 

comments received in this analysis. 

E. Energy Impact Analysis 

The energy impact of the proposed 

rule has been assessed in accordance 

with the Energy Policy and 

Conservation Act (EPCA), Pub. L. 94–

163, as amended (42 U.S.C. 6362). We 

have determined that this rulemaking is 

not a major regulatory action under the 

provisions of the EPCA. 

List of Subjects in 6 CFR Part 37 

Document security, Driver’s licenses, 

Identification cards, Incorporation by 

reference, Motor vehicle 

administrations, Physical security. 

The Proposed Amendments 

For the reasons set forth in the 

preamble, the Department of Homeland 

Security proposes to amend 6 CFR 

chapter I, by adding a new part 37 to 

read as follows: 


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Title 6—Homeland Security 

CHAPTER I—DEPARTMENT OF 

HOMELAND SECURITY, OFFICE OF THE 

SECRETARY 

PART 37—REAL ID DRIVER’S 

LICENSES AND IDENTIFICATION 

CARDS 

Subpart A—General 

Sec. 

37.1 Applicability. 

37.3 Definitions. 

37.5 Deadlines and validity periods for 

REAL ID driver’s licenses and 

identification cards. 

Subpart B—Minimum Documentation, 

Verification and Driver’s License and 

Identification Card Issuance Requirements 

37.11 Application and documents the 

applicant must provide. 

37.13 Document verification requirements. 

37.15 Physical security features for the 

driver’s license or identification card. 

37.17 Requirements for the face of the 

driver’s license or identification card. 

37.19 Machine readable technology on the 

driver’s license or identification card. 

37.21 Temporary driver’s licenses and 

identification cards. 

37.23 Renewed and reissued driver’s 

licenses and identification cards. 

Subpart C—Other Requirements 

37.31 Source document retention. 

37.33 Database connectivity with other 

States. 

Subpart D—Security at DMVs and Driver’s 

License and Identification Card Production 

Facilities 

37.41 Comprehensive security plan. 

37.43 Physical security of DMV facilities. 

37.45 Background checks for covered 

employees. 

Subpart E—Procedures for Determining 

State Compliance 

37.51 Compliance—general requirements. 

37.55 Initial State certification. 

37.57 Annual State certifications. 

37.59 DHS reviews of State compliance. 

37.61 Results of compliance determination. 

37.63 Extension of deadline. 

37.65 Effect of failure to comply with this 

part. 

Subpart F—Non-REAL ID Driver’s Licenses 

and Identification Cards 

37.67 Non-REAL ID driver’s licenses and 

identification cards. 

Authority: 49 U.S.C. 30301 note; 6 U.S.C. 

111, 112. 

Subpart A—General 

§ 37.1 Applicability. 

(a) Subparts A through F of this part 

apply to States and territories that 

choose to issue driver’s licenses and 

identification cards that can be accepted 

by Federal agencies for official 

purposes. 

(b) Subpart F of this part establishes 

certain standards for State-issued 

driver’s licenses and identification cards 

that do not meet the standards for 

acceptance for Federal official purposes. 

§ 37.3 Definitions. 

For purposes of this part: 

Birth certificate means the record 

related to a birth that is permanently 

stored either electronically or physically 

at the State Office of Vital Statistics or 

equivalent agency in a registrant’s State 

of birth. 

Card means either a driver’s license or 

identification card issued by the State 

DMV or equivalent State office. 

Certification means an assertion by 

the State that the State has met the 

requirements of this part. 

Certified copy of a birth certificate 

means a copy of the whole or part of a 

birth certificate registered with the State 

that the State considers to be the same 

as the original birth certificate on file 

with the State Office of Vital Statistics 

or equivalent agency. 

Covered employees means DMV 

employees or DMV contractors who 

have the ability to affect the recording 

of any information required to be 

verified, or who are involved in the 

manufacture or production of driver’s 

licenses and identification cards, or who 

have the ability to affect the identity 

information that appears on the driver’s 

license or identification card. 

Data verification means checking the 

data contained in source documents 

presented under this regulation against 

authoritative reference databases. 

Department of Motor Vehicles means 

any State Government entity that issues 

driver’s licenses and identification 

cards, or an office with equivalent 

function for issuing driver’s licenses 

and identification cards. 

Determination means a decision by 

the Department of Homeland Security 

that a State has or has not met the 

requirements of this part and that 

Federal agencies may or may not accept 

the driver’s licenses and identification 

cards issued by the State for official 

purposes. 

DHS means the U.S. Department of 

Homeland Security. When used in 

connection with the issuance of 

documents, the term also includes the 

former Immigration and Naturalization 

Service (INS) of the Department of 

Justice when INS issued documents that 

are still valid. 

Digital photograph means a digitally 

printed reproduction of the face of the 

holder of the license or identification 

card. 

Document authentication means 

verifying that the source document 

presented under these regulations is 

genuine and has not been altered. 

Domestic violence and dating 

violence have the meanings given the 

terms in section 3, Universal definitions 

and grant provisions, of the Violence 

Against Women and Department of 

Justice Reauthorization Act of 2005 

(Pub. L. 109–162, 119 Stat. 2960, 2964, 

Jan. 5, 2006); codified at section 40002, 

Definitions and grant provisions, 42 

U.S.C 13925. 

Driver’s license means a motor vehicle 

operator’s license, as defined in 49 

U.S.C. 30301. 

Federal agency means all executive 

agencies including Executive 

departments, a Government corporation, 

and an independent establishment as 

defined in 5 U.S.C. 105. 

Federally-regulated commercial 

aircraft means a commercial aircraft 

regulated by the Transportation Security 

Administration (TSA). 

Full legal name means an individual’s 

first name, middle names or family 

names, and last name, without use of 

initials or nicknames. 

IAFIS means the Integrated 

Automated Fingerprint Identification 

System, a national fingerprint and 

criminal history system maintained by 

the FBI that provides automated 

fingerprint search capabilities. 

Identification card means a document 

made or issued by or under the 

authority of a State Department of Motor 

Vehicles which, when completed with 

information concerning a particular 

individual, is of a type intended or 

commonly accepted for the purpose of 

identification of individuals. 

Lawful status: A person in lawful 

status: is a citizen or national of the 

United States; Is an alien lawfully 

admitted for permanent or temporary 

residence in the United States; has 

conditional permanent resident status in 

the United States; has an approved 

application for asylum in the United 

States or has entered into the United 

States in refugee status; has a valid 

nonimmigrant status in the United 

States; has a pending application for 

asylum in the United States; has a 

pending or approved application for 

temporary protected status (TPS) in the 

United States; has approved deferred 

action status; or has a pending 

application for LPR or conditional 

permanent resident status. 

NCIC means the National Crime 

Information Center, a computerized 

index of criminal justice information 

maintained by the FBI that is available 

to Federal, state, and local law 

enforcement and other criminal justice 

agencies. 


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Official purpose means accessing 

Federal facilities, boarding Federallyregulated commercial aircraft, and 

entering nuclear power plants. 

Passport means a passport booklet or 

card issued by the Department of State 

that can be used as a travel document 

to gain entry into the United States and 

that denotes identity and citizenship as 

determined by the Department of State. 

Principal residence means where a 

person has his or her true, fixed, and 

permanent home and to where he or she 

has the intention of returning whenever 

he or she is absent. 

REAL ID Driver’s License or 

Identification Card means a driver’s 

license or identification card that meets 

the standards of subparts A through D 

of this part, including temporary 

driver’s licenses or identification cards 

issued under § 37.21. 

Reissued means a card that a State 

DMV issues to replace a card that has 

been lost, stolen or damaged. 

SAVE means the DHS Systematic 

Alien Verification for Entitlements 

system, or such successor or alternate 

verification system at the Secretary’s 

discretion. 

Secretary means the Secretary of 

Homeland Security. 

Sexual assault and stalking have the 

meanings given the terms in section 3, 

Universal definitions and grant 

provisions, of the Violence Against 

Women and Department of Justice 

Reauthorization Act of 2005 (Pub. L. 

109–162, 119 Stat. 2960, 2964, Jan. 5, 

2006); codified at section 40002, 

Definitions and grant provisions, 42 

U.S.C 13925. 

Source document(s) means original or 

certified copies (where applicable) of 

documents presented by an applicant as 

required under these regulations to the 

Department of Motor Vehicles to apply 

for a driver’s license or identification 

card. 

Source information means the 

pertinent information present on source 

documents that are presented by an 

applicant to the Departments of Motor 

Vehicles to apply for a driver’s license 

or identification card. 

State means a State of the United 

States, the District of Columbia, Puerto 

Rico, the Virgin Islands, Guam, 

American Samoa, and the 

Commonwealth of the Northern Mariana 

Islands. 

State address confidentiality program 

means any State-authorized or Stateadministered program that—

(1) Allows victims of domestic 

violence, dating violence, sexual 

assault, stalking, or a severe form of 

trafficking to keep, obtain, and use 

alternative addresses; or 

(2) Provides confidential recordkeeping regarding the addresses of such 

victims. 

Temporary lawful status: A person in 

temporary lawful status is a person who: 

Has a valid nonimmigrant status in the 

United States; has a pending application 

for asylum in the United States; has a 

pending or approved application for 

temporary protected status (TPS) in the 

United States; has approved deferred 

action status; or has a pending 

application for LPR or conditional 

permanent resident status. 

§ 37.5 Deadlines and validity periods for 

REAL ID driver’s licenses and identification 

cards. 

(a) Cards issued on or after May 11, 

2008. A State-issued driver’s license or 

identification card issued on or after 

May 11, 2008 is acceptable by Federal 

agencies for official purposes only if the 

card meets the requirements of this part, 

and DHS has determined that the 

issuing State meets the requirements of 

the REAL ID Act of 2005 (Pub. L. 109–

13, 119 Stat. 231, 302, May 11, 2005). 

(b) Cards issued before May 11, 2008. 

If DHS determines that a State is in 

compliance with the REAL ID 

requirements in this part, all cards 

issued before May 11, 2008 are 

acceptable by Federal agencies for 

official purposes until and including 

May 10, 2013. All cards issued, 

reissued, or renewed after May 11, 2008 

must be REAL ID compliant by May 11, 

2013 or they shall not be acceptable by 

Federal agencies for official purposes. 

(c) REAL ID card validity period. 

Driver’s licenses and identification 

cards issued under this part that are not 

temporary driver’s licenses and 

identification cards are valid for a 

period not to exceed eight years. A card 

may be valid for a shorter time period 

based on other State or Federal 

requirements. 

Subpart B—Minimum Documentation, 

Verification, and Card Issuance 

Requirements 

§ 37.11 Application and documents the 

applicant must provide. 

States must require each individual 

applying for a REAL ID driver’s license 

or identification card to have their 

photograph taken by the DMV, and 

maintain that photograph as described 

in paragraph (a) of this section. States 

must further require each individual 

applying for a REAL ID driver’s license 

or identification card to submit the 

declaration in paragraph (b) and to 

present the documents described in 

paragraphs (c), (d), (e) and (f) of this 

section. Documents in paragraph (g) of 

this section are required as described in 

that paragraph. States are not required 

to comply with these requirements 

when issuing REAL ID driver’s licenses 

or identification cards in support of 

Federal, State, or local criminal justice 

agencies or programs that require 

special licensing or identification to 

safeguard persons or in support of their 

other official duties. As directed by 

appropriate officials of these Federal, 

State, or local agencies, States should 

take sufficient steps to safeguard the 

identities of such persons. Driver’s 

licenses and identification cards issued 

in support of Federal, State, or local 

criminal justice agencies or programs 

that require special licensing or 

identification to safeguard persons or in 

support of their other official duties 

shall not be distinguishable from other 

REAL ID licenses or identification cards 

issued by the State. 

(a) The State must subject each person 

applying for a REAL ID driver’s license 

or identification card to a mandatory 

facial image capture, whether or not 

such person is issued a REAL ID driver’s 

license or identification card. 

Photographs of individuals who were 

not issued a REAL ID driver’s license or 

identification card must be kept for 1 

year, unless the DMV did not issue the 

driver’s license or identification card 

because of suspected fraud, in which 

case the record should be maintained 

for ten years and reflect that a driver’s 

license or identification card was not 

issued for that reason. 

(b) Declaration. Each applicant must 

sign a declaration under penalty of 

perjury that the information presented is 

true and correct, and the State must 

retain this declaration with copies of the 

applicant’s source documents pursuant 

to § 37.31. An applicant must sign a new 

declaration when presenting new 

information to the DMV. 

(c) Identity. (1) To establish the 

individual’s identity, the individual 

must present at least one of the 

following documents containing a 

photograph or non-photo identity 

document including full name and date 

of birth: 

(i) A valid unexpired United States 

passport. 

(ii) Certified copy of a birth certificate 

issued by a U.S. State or local office of 

Public Health, Vital Records, Vital 

Statistics or equivalent office. 

(iii) Consular Report of Birth Abroad 

issued by DOS, Form FS–240, DS–1350 

or FS–545. 

(iv) An unexpired Permanent 

Resident Card issued by DHS, Form I–

551. 

(v) An unexpired employment 

authorization document (EAD) issued 

by DHS, Form I–766 or Form I–688B. 


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(vi) Unexpired foreign passport with a 

valid unexpired U.S. visa affixed. 

(vii) Certificate of Naturalization 

issued by DHS, Form N–550 or Form N–

570. 

(viii) Certificate of Citizenship, Form 

N–560 or Form N–561. 

(ix) REAL ID driver’s license or 

identification card issued in compliance 

with the standards established by this 

part. 

(2) If the individual’s name has 

changed through adoption, marriage, 

divorce, or court order, the individual 

must present an original or certified 

copy of the documents showing a legal 

name change, before the name is 

changed on the driver’s license or 

identification card. These documents 

must come from a U.S. or State-level 

Court or government agency. 

(d) Date of birth. To establish the 

person’s date of birth, the individual 

must present at least one document 

included in paragraph (c) of this section. 

(e) Social security number. The 

individual must provide documentation 

establishing an SSN, or the person’s 

ineligibility for an SSN. 

(1) To establish an SSN, an applicant 

must present his or her social security 

account number card, a W–2 form, a 

SSA–1099 form, a non-SSA 1099 form, 

or a pay stub with the applicant’s name 

and SSN on it; the SSN must be verified 

pursuant to § 37.13 of this subpart. 

(2) To establish ineligibility for an 

SSN, an alien must present evidence 

that he or she is currently in a non-work 

authorized nonimmigrant status. 

(f) Documents demonstrating address 

of principal residence. To document the 

address of principal residence, a person 

must present at least two documents of 

the State’s choice that include the 

individual’s name and principal 

residence. 

(1) Documents used to demonstrate 

address of principal residence that are 

issued monthly (such as bank 

statements or utility bills) must not be 

more than three months old at the time 

of application. 

(2) Documents used to demonstrate 

address of principal residence that are 

issued annually (such as property tax 

records) must be for the most current 

yearly period at the time of application. 

(3) Except as provided in § 37.17(f)(1), 

(f)(2) and (f)(3) of this part, a street 

address must be required. 

(g) Evidence of lawful status in the 

United States. A DMV may issue a 

REAL ID driver’s license or 

identification card only to a person who 

has presented satisfactory evidence of 

lawful status. The documentation listed 

under paragraph (c) of this section is 

also evidence of lawful status, except 

that if the applicant presents an identity 

document listed under paragraphs 

(c)(1)(v) or (c)(1)(vi) of this section, the 

documentation is to be considered 

provisional evidence pending 

verification of immigration status 

through SAVE. If the applicant presents 

an identity document listed under 

paragraph (c)(1)(ix) of this section, he or 

she must also present another document 

listed in paragraph (c) of this section as 

evidence of lawful presence in the 

United States. 

(h) State DMVs may choose to 

establish a written exceptions process in 

order to provide REAL ID driver’s 

licenses and identification cards to 

persons who, for reasons beyond their 

control, are unable to present all 

necessary documents and must rely on 

alternate documents to establish 

identity. An exceptions process may not 

be used to demonstrate lawful status. 

Each State establishing an exceptions 

process must have that process 

approved by DHS for the verification of 

documents in this section, and 

document each time the process is used, 

both on the applicant’s record in the 

DMV’s database and in the DMV’s files. 

(1) The applicant’s records must 

visibly indicate when an alternate 

document is accepted and how 

applicable information from the 

document was verified. 

(2) The record must include a full 

explanation of the reason for the 

exception and alternative documents 

accepted whenever a driver’s license or 

identification card is issued using 

exceptions processing. 

(3) The State shall retain copies of the 

alternate documents accepted pursuant 

to this section and provide these upon 

request to DHS for audit. 

(4) The State shall provide DHS with 

quarterly reports analyzing the use of 

the exceptions process and any trends 

that indicate potential vulnerabilities. 

§ 37.13 Document verification 

requirements. 

States must adopt procedures 

satisfying the requirements of paragraph 

(a) of this section to verify with the 

issuing agency the issuance, validity, 

and completeness of a document 

presented to demonstrate a person’s 

eligibility for a REAL ID driver’s license 

or identification card before issuance of 

the driver’s license or identification 

card. 

(a) States must use the following 

procedures to verify the documents 

required under this section: 

(1) A certified copy of a birth 

certificate must be verified through the 

Electronic Verification of Vital Events 

System, or an alternative approved by 

DHS. In the event of a non-match, the 

DMV may not issue a driver’s license or 

identification card to an applicant, and 

must refer the individual to their birth 

state’s vital statistics office for 

resolution. 

(2) A U.S. passport or Consular report 

of birth abroad must be verified through 

existing Department of State systems. 

(3) A lawful permanent resident card 

(Form I–551) or other DHS-issued 

document demonstrating permanent 

residency, an EAD (Form I–766 or Form 

I–688B), Certificate of Citizenship, 

Certificate of Naturalization, or other 

documentation issued by DHS 

demonstrating lawful status, must be 

verified through the Systematic Alien 

Verification for Entitlements (SAVE) 

system operated by DHS, or an alternate 

verification system approved by DHS. In 

the event of a non-match to SAVE, the 

DMV may not issue a driver’s license or 

identification card to an applicant, and 

must refer the individual to the local 

USCIS office for resolution. 

(4) REAL ID driver’s licenses and 

identification cards must be verified 

with the State of issuance. 

(5) Social security account numbers 

must be verified by the Social Security 

Administration’s (SSA) electronic 

database. In the event of a non-match 

with SSA, a DMV must not issue a 

driver’s license or identification card to 

an applicant until the information 

verifies with SSA’s database. 

(6) Documents demonstrating address 

of principal residence must be verified 

by the State in accordance with a system 

of document verification acceptable to 

DHS, to ensure that a document 

produced establishes an individual’s 

address of principal residence. 

§ 37.15 Physical security features for the 

driver’s license or identification card. 

(a) General. States must include 

document security features on REAL ID 

driver’s licenses and identification cards 

designed to deter forgery and 

counterfeiting and promote an adequate 

level of confidence in the authentication 

of genuine documents and the detection 

of fraudulent ones in accordance with 

this section. 

(1) These features must not be 

reproducible using commonly used or 

available technologies. 

(2) The proposed card solution must 

contain a well designed, balanced set of 

features that when effectively combined 

provide multiple layers of security. 

States must describe these document 

security features in their security plans 

pursuant to § 37.41. 

(b) Integrated security features. REAL 

ID driver’s licenses and identification 

cards must contain at least three levels 


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of integrated security features that 

provide the maximum resistance to 

persons’ efforts to—

(1) Counterfeiting, simulating, or 

reproducing a genuine document; 

(2) Altering, deleting, modifying, 

masking, or tampering with data 

concerning the original or lawful card 

holder; 

(3) Substituting or altering the original 

or lawful card holder’s photograph and/ 

or signature by any means; and 

(4) Creating a fraudulent document 

using components from legitimate 

driver’s licenses or identification cards. 

(c) Security features to detect false 

cards. States must employ security 

features to detect false cards for each of 

the following three levels: 

(1) Level 1. Cursory examination, 

without tools or aids involving easily 

identifiable visual or tactile features, for 

rapid inspection at point of usage. 

(2) Level 2. Examination by trained 

inspectors with simple equipment. 

(3) Level 3. Inspection by forensic 

specialists. 

(d) Minimum security features. States 

must employ, at a minimum, the 

following security features in each 

REAL ID driver’s license or 

identification card: 

(1) An intricate, fine-line, 

multicolored background design 

produced via offset lithography that 

includes microcline printing and an 

intentional error/field check. 

(2) An optically variable feature 

providing adequate protection against 

copying. The inclusion of a diffractive 

optically variable feature is 

recommended to achieve an enhanced 

level of protection. 

(3) An ultraviolet (UV) long wave 

responsive feature. 

(4) The proposed card solution must 

include cards constructed such that 

application of personal data provides for 

the highest quality of printed 

information including sufficient depth, 

clarity and resolution. The application 

of variable data shall be in a manner 

that is considered secure and difficult, 

if not virtually impossible, to erase, 

modify or otherwise successfully 

tamper. Some variable data must be 

applied via laser engraving to include 

tactile features (that protect the bearer 

portrait from substitution via thin film 

overlay) and variable microline text that 

is specific to the bearer. The laser must 

effectively penetrate the card layers 

ensuring that the data is engraved into 

the layers containing the security 

characteristics. 

(5) A series of check digit numbers or 

letters printed on the cards. 

(6) Incorporation of covert taggants 

and/or markers. 

(e) Document card stock. States must 

use a document card stock in the 

issuance of REAL ID driver’s licenses 

and identification cards that complies 

with the following performance 

standards: 

(1) The card stock must be UV dull or 

possess a controlled response to UV, 

such that when illuminated by UV light 

it exhibits fluorescence distinguishable 

in color from the blue used in 

commonly available fluorescent 

materials. The card stock must use 

suitable materials that provide for a 

highly durable card stock that can 

survive, at least, an eight-year card life. 

If the card stock is a multi-layered 

structure, there must be adequate 

adhesion and/or tamper evident 

properties to protect the personalized 

data and security features contained in 

the card. The card stock must provide 

for the highest clarity for information 

applied. 

(2) External surfaces of the cards must 

be printed using recognized security 

printing methods to resist duplication or 

facsimile reproduction by commercially 

available products. The card must bear 

a security background pattern designed 

to be resistant to counterfeiting by 

scanning, printing or copying. To 

achieve this, the background pattern 

shall not be composed of the primary 

colors Cyan, Magenta, Yellow and Key 

(Black) (CMYK). The pattern shall show 

no evidence of half-tone dots, or pixel 

structure typically found in digital 

printing technologies. 

(3) States must issue REAL ID driver’s 

licenses and identification cards 

produced on serialized card stock and 

implement controlled inventory 

measures that meet recognized industry 

standards. The State must maintain a 

record of any missing cards and report 

the loss to the DMV and to law 

enforcement. 

(4) Driver’s licenses and identification 

cards must contain a revision date that 

is printed or engraved on the card 

surface and which must be updated 

whenever the card design changes. 

(5) States must provide DHS with 

samples of REAL ID driver’s licenses 

and identification cards in a quantity 

that DHS will specify. The cards 

provided will be representative of 

issued driver’s licenses and 

identification cards, produced on 

equipment identical to that used by the 

State to issue REAL ID driver’s licenses 

and identification cards, and include all 

data fields and security features used by 

the State. 

(f) Document security and integrity. 

(1) States must conduct an annual 

review of their card design and submit 

a report to DHS that indicates the ability 

of the designs to resist compromise and 

document fraud activity attempts. The 

report must be submitted as part of the 

State’s annual certification. The report 

required by this paragraph is Sensitive 

Security Information (SSI) and will be 

handled in a manner consistent with 

DHS regulations concerning SSI 

published at 49 CFR part 1520. 

(i) States must provide DHS with 

examination results from a recognized 

independent laboratory experienced 

with adversarial analysis of 

identification documents as part of the 

State’s initial certification under § 37.55, 

and annual certification under § 37.57. 

(ii) As part of the State’s initial and 

annual certifications, the State must 

submit to DHS results from a facility 

described in paragraph (g)(2)(i) of this 

section, in the following areas: 

(A) Photo substitution. 

(B) Delamination and deconstruction. 

(C) Reverse engineering. 

(D) Modification of any data element. 

(E) Erasure of information. 

(F) Duplication, reproduction, or 

facsimile creation. 

(G) Effectiveness of security features 

(three levels). 

(H) Confidence and ease of second 

level authentication. 

(iii) The specifics of the lab analysis 

requirements and the analysis results 

are Sensitive Security Information (SSI) 

and will be handled in a manner 

consistent with DHS regulations 

concerning SSI at 49 CFR part 1520. 

(iv) DHS may change lab analysis 

requirements under this section upon 

notice to the State and opportunity for 

comment or immediately if DHS 

determines that there is a need for 

immediate application of the new 

requirements. 

§ 37.17 Requirements for the face of the 

driver’s license or identification card. 

To be acceptable by a Federal agency 

for official purposes, REAL ID driver’s 

licenses and identification cards must 

include on the face of the card the 

following information: 

(a) Full legal name. The name on the 

face of the card must be the same as the 

name on the document presented by the 

applicant to establish identity. This 

includes the individual’s first name, 

middle names or family names, and last 

name without use of initials or 

nicknames. 

(b) Date of birth. 

(c) Gender. 

(d) Unique Driver’s license or 

identification card number. This cannot 

be the individual’s Social Security 

Number (SSN). 

(e) Full facial digital photograph. A 

full facial photograph must be taken 

pursuant the standards set forth below: 


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(1) Lighting shall be equally 

distributed on the face. 

(2) The face from crown to the base 

of the chin, and from ear-to-ear, shall be 

clearly visible and free of shadows. 

States use photographs in profile rather 

than ear-to-ear to differentiate licensees 

that are under the age of 21. 

(3) Veils, scarves or headdresses must 

not obscure any facial features and not 

generate shadow. The person may not 

wear eyewear that obstructs the iris or 

pupil of the eyes. 

(4) There must be no dark shadows in 

the eye-sockets due to the brow. The iris 

and pupil of the eyes shall be clearly 

visible. 

(5) Care shall be taken to avoid ‘‘hot 

spots’’ (bright areas of light shining on 

the face). 

(f) Address of principal residence, 

except individuals who satisfy one of 

the following: 

(1) If the individual is enrolled in a 

State address confidentiality program; 

(2) If the individual’s address is 

entitled to be suppressed under State or 

Federal law or suppressed by a court 

order; or 

(3) If the individual is protected from 

disclosure of information pursuant to 

section 384 of the Illegal Immigration 

Reform and Immigrant Responsibility 

Act of 1996. 

(g) Printed information. The name, 

date of birth, gender, card number, issue 

date, expiration date, and address on the 

face of the card must be in Roman 

alphabet characters. The name must 

contain a field of no less than a total of 

39 characters for the full legal name, 

and longer names may be truncated 

following the standard established by 

International Civil Aviation 

Organization (ICAO) 9303, ‘‘Machine 

Readable Travel Documents,’’ Part IV, 

Sixth Edition, 2005. The Director of the 

Federal Register approves this 

incorporation by reference in 

accordance with 5 U.S.C. 552(a) and 1 

CFR part 51. You may obtain a copy of 

ICAO 9303 from the ICAO, Document 

Sales Unit, 999 University Street, 

Montre ́al, Quebec, Canada H3C 5H7, tel: 

1–(514) 954–8022; E-mail: 

sales@icao.int. You may inspect a copy 

at the Office of the Federal Register, 800 

N. Capitol Street, NW., Suite 700, 

Washington, DC. 

(h) Signature. The card must include 

the signature of the card holder. The 

signature must meet the requirements of 

the existing American Association of 

Motor Vehicle Administrators 

(AAMVA) standards for the 2005 

AAMVA Driver’s License/Identification 

Card Design Specifications, Annex A, 

section A.7.7.2. This standard includes 

requirements for size, scaling, cropping, 

color, borders, and resolution. The 

Director of the Federal Register 

approves this incorporation by reference 

in accordance with 5 U.S.C. 552(a) and 

1 CFR part 51. You may obtain a copy 

of these standards from AAMVA on-line 

at http://www.aamva.org, or by 

contacting AAMVA at 4301 Wilson 

Boulevard, Suite 400, Arlington, VA 

22203, tel. (703) 522–4200. You may 

inspect a copy at the Office of the 

Federal Register, 800 N. Capitol Street, 

NW., Suite 700, Washington, DC. 

(i) Physical security features, pursuant 

to § 37.15 of this subpart. 

(j) Machine-readable technology, 

pursuant to § 37.19 of this subpart. 

(k) Issuance date. 

(l) Expiration date. 

§ 37.19 Machine readable technology on 

the driver’s license or identification card. 

For the machine readable portion of 

the REAL ID driver’s license or 

identification card, States must use 

PDF417 2D bar code standard, with the 

following defined minimum data 

elements: 

(a) Expiration date. 

(b) Holder’s name. The machine 

readable portion of the card must have 

at least 125 characters to permit capture 

of the full name history, including full 

legal name and all name changes. 

(c) Issue date. 

(d) Date of birth. 

(e) Gender. 

(f) Address. 

(g) Unique identification number. 

(h) Revision date, indicating the most 

recent change or modification to the 

visible format of the driver’s license or 

identification card. 

(i) Inventory control number of the 

physical document. 

§ 37.21 Temporary driver’s licenses and 

identification cards. 

States may issue only a temporary 

driver’s license or identification card to 

an individual who has temporary lawful 

status in the United States. 

(a) States must require, before issuing 

a temporary driver’s license or 

identification card to a person, valid 

documentary evidence that the person 

has lawful status in the United States, 

as determined by DHS, and verification 

of that status through SAVE. 

(b) States shall not issue a temporary 

driver’s license or identification card 

pursuant to this section: 

(1) For a time period longer than the 

expiration of the applicant’s authorized 

stay in the United States, or, if there is 

no expiration date, for a period longer 

than one year. 

(2) For longer than eight years or the 

State’s maximum driver’s license or 

identification card term. 

(c) States shall renew a temporary 

driver’s license or identification card 

pursuant to this section and 

§ 37.23(b)(2), only if: 

(1) The individual presents valid 

documentary evidence that the status by 

which the applicant qualified for the 

temporary driver’s license or 

identification card has been extended by 

DHS, or 

(2) The individual presents valid 

documentary evidence that they have 

qualified for another lawful status under 

paragraph (a) of this section, and such 

continued or new status is verified 

through SAVE. 

(d) States must verify the documents 

an individual presents to establish his 

or her temporary lawful status through 

SAVE. 

(e) Temporary driver’s licenses and 

identification cards must clearly state 

on the face of the driver’s license or 

identification card in bold lettering, and 

in the machine readable zone of the 

driver’s license or identification card, 

that it is temporary. 

§ 37.23 Renewed and reissued driver’s 

licenses and identification cards. 

(a) General. Any driver’s license or 

identification card that is renewed or 

reissued between May 11, 2008, and 

May 10, 2013 that is intended to be 

acceptable by federal agencies for 

official purposes must meet the 

standards set forth in subparts A 

through C of this part. 

(b) State procedure. States must 

establish an effective procedure to 

confirm or verify an applicant’s identity 

each time a REAL ID driver’s license or 

identification card is renewed or 

reissued, to ensure that the individual 

receiving the renewed or reissued REAL 

ID driver’s license or identification card 

is the same individual to whom the 

driver’s license or identification card 

was issued originally. 

(1) Remote/Non-in-person renewals 

and reissuance. Except as provided in 

paragraph (b)(2) of this section a State 

may conduct a non-in-person (remote) 

renewal or reissuance if the State 

continues to retain the images or copies 

of source documents presented by the 

individual and used by the State to 

issue the REAL ID driver’s license or 

identification card, and no source 

information has changed since prior 

issuance. 

(i) The State must re-verify 

information from the images or copies of 

the source documents used as the basis 

for issuance of the original REAL ID 

driver’s license or identification card at 

each renewal and reissuance in 

accordance with § 37.13 of this part. 


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(ii) Any information that has changed 

since prior issuance (such as name or 

address) must be established through 

presentation of an original source 

document as provided in Subpart B, and 

must be verified, or, in the case of 

address, validated. 

(iii) The process described in 

paragraph (b) of this section applies any 

time a driver’s license or identification 

card is renewed or reissued for any 

purpose. 

(2) In-person renewals. States must 

require holders of REAL ID driver’s 

licenses and identification cards to 

renew their driver’s licenses and 

identification cards with the State DMV 

in person, every other renewal cycle, or 

at least once every 16 years. 

(i) The State shall take an updated 

photograph of the applicant, at least at 

every other renewal. 

(ii) The States must re-verify 

information and source documents used 

as the basis for issuance of the original 

REAL ID driver’s license or 

identification card, or must require the 

individual to resubmit documents and 

verify those documents. 

(iii) Holders of temporary REAL ID 

driver’s licenses and identification cards 

must renew their driver’s license or 

identification card in person each time, 

and present evidence of continued 

lawful status. 

Subpart C—Other Requirements 

§ 37.31 Source document retention. 

States must retain copies of the 

application, declaration and source 

documents presented under § 37.11 of 

this part. 

(a) States that choose to keep paper 

copies of source documents must retain 

the copies for a minimum of seven 

years. 

(b) States that choose to transfer 

information from paper copies to 

microfiche must retain the microfiche 

for a minimum of seven years. 

(c) States that choose to keep digital 

images of source documents must retain 

the images for a minimum of ten years. 

(1) States currently using black and 

white imagers must replace them with 

color imagers by December 31, 2011. 

(2) States using digital imaging to 

retain source documents, must use the 

AAMVA Digital Image Exchange 

Program, or a standard other than 

AAMVA that has interoperability with 

the AAMVA standard, so that the digital 

images are retained in electronic storage 

in a transferable format. 

(i) Photo images must be stored in the 

Joint Photographic Experts Group (JPEG) 

2000 standard for image compression, or 

a standard that is interoperable with the 

JPEG standard. 

(ii) Document and signature images 

must be stored in a compressed Tagged 

Image Format (TIF), or a standard that 

is interoperable with the TIF standard. 

(iii) All images must be linked to the 

applicant through the applicant’s 

unique identifier assigned by the DMV. 

§ 37.33 Database connectivity with other 

States. 

(a) States must maintain a State motor 

vehicle database that contains, at a 

minimum—

(1) All data fields printed on driver’s 

licenses and identification cards issued 

by the State, individual serial numbers 

of the card, and Social Security Number; 

and 

(2) Motor vehicle driver’s histories, 

including motor vehicle violations, 

suspensions, and points on driver’s 

licenses. 

(b) States must provide to all other 

States electronic access to information 

contained in the motor vehicle database 

of the State, in a manner approved by 

DHS pursuant to this regulation. This 

section does not intend to supersede 

DOT requirements codified at 49 CFR 

parts 383 and 384. 

(c) Prior to issuing a REAL ID driver’s 

license or identification card, States 

must check with all other States to 

determine if any State has already 

issued a REAL ID driver’s license or 

identification card to the applicant. 

(1) If the State receives confirmation 

that the individual currently holds a 

REAL ID driver’s license or 

identification card issued by another 

State, the receiving State must: 

(i) Take measures to confirm that the 

person has taken steps to terminate, or 

has terminated, the REAL ID driver’s 

license or identification card issued by 

the prior State. 

(ii) Require the person to surrender 

the REAL ID driver’s license or 

identification card issued by another 

State, unless the person signs a 

declaration under penalty of perjury 

pursuant to 28 U.S.C. 1746 stating that 

the driver’s license or identification 

card was lost or stolen. 

(iii) If the person signs a declaration 

stating that the driver’s license or 

identification card was lost or stolen in 

another State, the State receiving the 

declaration must inform the State that 

issued the driver’s license or 

identification card that it has been 

reported as lost or stolen. 

(iv) The State that issued the driver’s 

license or identification card reported as 

lost or stolen must record that 

information on its database and 

terminate that driver’s license or 

identification card upon notice from 

another State. 

Subpart D—Security at DMVs and 

Driver’s License and Identification 

Card Production Facilities 

§ 37.41 Comprehensive security plan. 

(a) States must prepare a 

comprehensive security plan for all 

State DMV offices and driver’s license/ 

identification card storage and 

production facilities, and submit it as 

part of its application for certification. 

(b) At a minimum, the security plan 

must address—

(1) Physical security for the following: 

(i) Buildings used to manufacture or 

issue driver’s licenses and identification 

cards. 

(ii) Storage areas for card stock and 

other materials used in card production. 

(iii) Reasonable administrative, 

technical, and physical safeguards to 

protect the security, confidentiality, and 

integrity of the physical location and the 

personal information stored and 

maintained in DMV records and 

information systems. 

(2) Document and physical security 

features for the face of the card, 

consistent with the requirements of 

§ 37.15, including a description of the 

State’s use of biometrics, and the 

technical standard utilized, if any; 

(3) Access control, including the 

following: 

(i) Employee identification and 

credentialing, including access badges. 

(ii) Employee background checks, in 

accordance with § 37.45. 

(iii) Controlled access systems. 

(4) Periodic training requirements 

in—

(i) Fraudulent document recognition, 

approved by DHS, for appropriate 

employees engaged in the issuance of 

driver’s licenses and identification 

cards. 

(ii) Domain awareness training 

including threat identification; 

(5) Privacy policy regarding personal 

information collected and maintained 

by the DMV; 

(6) Emergency/incident response 

plan; 

(7) Internal audit controls; 

(8) The State’s standards and 

procedures for safeguarding information 

collected, stored, or disseminated for 

purposes of complying with the REAL 

ID Act, including procedures to prevent 

unauthorized access, use, or 

dissemination of applicant information 

and images of source documents 

retained pursuant to the Act and 

standards and procedures for document 

retention and destruction; 

(9) Procedures to revoke and 

confiscate driver’s licenses or 

identification cards fraudulently issued 

in another State; 


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(10) An affirmation that the State 

possesses both the authority and the 

means to produce, revise, expunge, and 

protect the confidentiality of REAL ID 

driver’s licenses or identification cards 

issued in support of Federal, State, or 

local criminal justice agencies or 

programs that require special licensing 

or identification to safeguard persons or 

support their official duties. These 

procedures must be designed in 

coordination with the key requesting 

authorities to ensure the procedures are 

effective and to prevent conflicting or 

inconsistent requests. In order to 

safeguard the identities of individuals, 

these procedures should not be 

discussed in the plan and States should 

make every effort to prevent disclosure 

to those without a need to know about 

either this confidential procedure or any 

substantive information that may 

compromise the confidentiality of these 

operations. The appropriate law 

enforcement official and United States 

Attorney should be notified of any 

action seeking information that could 

compromise Federal law enforcement 

interests; and 

(11) Other information as determined 

by DHS. 

§ 37.43 Physical security of DMV facilities. 

(a) States must ensure the physical 

security of locations where driver’s 

licenses and identification cards are 

produced, and the security of document 

materials and papers from which 

driver’s licenses and identification cards 

are produced. State compliance with a 

performance-based standard approved 

by DHS will satisfy this requirement. 

(b) States must describe the security 

of DMV facilities as part of their 

comprehensive security plan, in 

accordance with § 37.41. 

§ 37.45 Background checks for covered 

employees. 

(a) Scope. States are required to 

subject persons who have the ability to 

affect the recording of any information 

required to be verified, or who are 

involved in the manufacture or 

production of REAL ID driver’s licenses 

and identification cards, or who have 

the ability to affect the identity 

information that appears on the driver’s 

license or identification card (covered 

employees), to a background check. The 

background check must include, at a 

minimum, the validation of references 

from prior employment, a name-based 

and fingerprint-based criminal history 

records check, a financial history check, 

and a lawful status check. States shall 

describe their background check process 

as part of their comprehensive security 

plan, in accordance with § 37.41. This 

section also applies to contractors 

utilized in covered positions under this 

paragraph. 

(b) Background checks. States must 

ensure that any covered employee or 

prospective employee under paragraph 

(a) of this section is provided notice that 

he or she must undergo a background 

check and the contents of that check, 

before employment in a covered 

position commences. For persons 

employed in covered positions on the 

effective date of this regulation, States 

must complete the background check 

described in this section prior to that 

person’s participation in the issuance of 

any REAL ID driver’s licenses or 

identification cards that comply with 

this part. 

(1) Criminal history records check. 

States must conduct a name-based and 

fingerprint-based criminal history 

records check (CHRC) using, at a 

minimum, the FBI’s NCIC and IAFIS 

database and State repository records on 

each covered employee or prospective 

employee identified in paragraph (a) of 

this section, and determine if the 

covered employee or prospective 

employee has been convicted of any of 

the following disqualifying crimes: 

(i) Permanent disqualifying criminal 

offenses. An applicant has a permanent 

disqualifying offense if convicted, or 

found not guilty by reason of insanity, 

in a civilian or military jurisdiction, of 

any of the felonies set forth in 49 CFR 

1572.103(a). 

(ii) Interim disqualifying criminal 

offenses. The criminal offenses 

referenced in 49 CFR 1572.103(b) are 

disqualifying, if the applicant was either 

convicted of those offenses in a civilian 

or military jurisdiction, or admits 

having committed acts which constitute 

the essential elements of any of those 

criminal offenses within the seven years 

preceding the date of application; or the 

applicant was released from 

incarceration for the crime within the 

five years preceding the date of 

application. 

(iii) Under want or warrant. An 

applicant who is wanted or under 

indictment in any civilian or military 

jurisdiction for a felony referenced in 

this section is disqualified until the 

want or warrant is released. 

(iv) Determination of arrest status. 

When a fingerprint-based check 

discloses an arrest for a disqualifying 

crime referenced in this section without 

indicating a disposition, the State must 

determine the disposition of the arrest. 

(v) Waiver. The State may establish 

procedures to allow for a waiver of the 

requirements of (b)(1)(ii) of this section 

under circumstances determined by the 

State. 

(2) Financial history check. The State 

must conduct a financial history check 

on all covered employees and 

prospective employees identified under 

paragraph (a) of this section in a manner 

consistent with the Fair Credit 

Reporting Act. An employee’s financial 

history shall be considered for 

informational purposes by the States 

only and shall not be considered a 

Federal disqualifier. 

(3) Lawful status check. The State 

shall subject each covered employee to 

a lawful status check through SAVE. 

(4) Disqualification. If results of the 

State’s CHRC reveal a permanent 

disqualifying crime under paragraph 

(b)(1)(i) or an interim disqualifying 

offense under paragraph (b)(1)(ii); or the 

results of the lawful status check are 

unsatisfactory; the covered employee or 

prospective employee may not be 

employed in a position described in 

paragraph (a) of this section. 

(c) Appeal. An individual who has 

been informed by the State that he or 

she may not be employed in a covered 

position as identified in paragraph (a) of 

this section as a result of the 

background check must be so informed 

and provided the opportunity to appeal. 

If a State determines that the individual 

does not meet the standards for the 

CHRC, is not trustworthy based on the 

financial history check, or does not have 

lawful status in the United States based 

on the lawful status check, the State 

must so inform the employee of the 

determination to allow the individual 

an opportunity to appeal to the State. 

Appeals based on the lawful status 

check should be appealed to DHS. 

Subpart E—Procedures for 

Determining State Compliance 

§ 37.51 Compliance—general 

requirements. 

(a) To be in compliance with the 

REAL ID Act of 2005, 49 U.S.C. 30301 

note, States must be meeting each and 

every standard of subparts A through D 

of this part, or have a REAL ID program 

that DHS has determined to be 

comparable to the standards of subparts 

A through D. DHS will find that a State 

is in compliance with REAL ID only if 

the State’s certification submitted 

pursuant §§ 37.55 and 37.57 of this part 

establishes that all REAL ID driver’s 

licenses and identification cards issued 

by the State on or after May 11, 2008 

will meet the standards required under 

the REAL ID Act and this part. 

(b) States must meet the requirements 

of subparts A through D of this part no 

later than May 11, 2008. In order to 

satisfy this requirement, a State must 

demonstrate compliance with this part 


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by submitting a certification and the 

documents specified in § 37.41 no later 

than February 10, 2008. 

(c) States must demonstrate continued 

compliance by submitting a certification 

and documents specified at § 37.57 of 

this part as required by DHS. 

§ 37.55 Initial State certification. 

States seeking DHS’s determination 

that its program for issuing REAL ID 

driver’s licenses and identification cards 

is meeting the requirements of this part, 

must provide DHS with the following 

documents and information no later 

than February 10, 2008: 

(a) A detailed narrative description of 

the State’s program for issuing REAL ID 

driver’s licenses and identification 

cards, including a description of the 

State’s exceptions processing under 

§ 37.11(h), the State’s waiver processes 

under § 37.45(b)(1)(v). 

(b) The State’s Comprehensive 

Security Plan under § 37.41. 

(c) A letter from the Attorney General 

of the State confirming that the State has 

the legal authority to impose 

requirements necessary to meet the 

standards established by this part. 

(d) A copy of all statutes, regulations, 

administrative procedures and 

practices, and other documents that 

demonstrate the State’s implementation 

program for this part. 

(e) A certification by the Governor of 

the State reading as follows: 

I, Governor of the State (Commonwealth) of 

__, do hereby certify that the State 

(Commonwealth) has implemented a 

program for issuing driver’s licenses and 

identification cards in compliance with the 

requirements of the REAL ID Act of 2005, as 

further defined in 6 CFR part 37, and intends 

to remain in compliance with these 

regulations through [the last date of the 

current year]. 

§ 37.57 Annual State certifications. 

Prior to January 1 of each year, each 

State must review its compliance with 

this part and certify to the Department 

of Homeland Security as prescribed in 

paragraph (a) of this section. 

(a) The certification must consist of a 

Statement signed by the Governor of the 

State, reading as follows: 

I (name of certifying official), (position 

title), of the State (Commonwealth) of __, do 

hereby certify that the State (Commonwealth) 

has continuously been in compliance with all 

requirements of the REAL ID Act of 2005 as 

further defined in 6 CFR part 37, since [the 

first day of the current Federal fiscal year], 

and intends to remain in compliance through 

[the last date of the current year]. 

(b) States shall provide DHS any 

changes to the information requiring 

certification, at least 30-days prior to the 

changes going into effect in the State. 

(c) States shall supply the 

comprehensive security plan under 

§ 37.41 of this part and a quarterly 

accounting of the State’s use of its 

exceptions process, and the report 

required by § 37.15(f)(1) to DHS as part 

of the annual certification. 

§ 37.59 DHS reviews of State compliance. 

States’ REAL ID programs will be 

subject to DHS review to determine 

whether or not the State meets the 

requirements for compliance with this 

part. 

(a) General inspection authority. 

States must cooperate with DHS’s 

review of the State’s compliance during 

initial reviews, annual reviews, and at 

any other time. The State must provide 

any information requested by DHS, 

must permit DHS to conduct 

inspections of any and all sites 

associated with the application and 

verification process, manufacture, and 

production of driver’s licenses or 

identification cards, and must allow 

DHS to conduct interviews of the State’s 

employees or contractors who are 

involved in the application and 

verification process, manufacture and 

production of driver’s licenses or 

identification cards. 

(b) Preliminary DHS determination. 

After DHS reviews a State’s certification 

and related documents, DHS will make 

a preliminary determination on whether 

the State has satisfied the requirements 

of this part. If, after review, DHS makes 

a preliminary determination, either that 

the State has not submitted a complete 

certification, or that the State does not 

meet one or more of the minimum 

standards for compliance under this 

part, DHS will inform the State of this 

preliminary determination. 

(c) State reply. The State will have up 

to 30 calendar days to respond to the 

preliminary determination. The State’s 

reply must explain what corrective 

action it either has implemented, or 

intends to implement, to correct the 

deficiencies cited in the preliminary 

determination or, alternatively, detail 

why the DHS preliminary determination 

is incorrect. 

(1) The State must provide 

documentation of corrective action. 

Corrective action must be adequate to 

correct the deficiencies noted in the 

program review and be implemented on 

a schedule mutually agreed upon by 

DHS and the State. 

(2) Upon request by the State, an 

informal conference will be provided 

during this time. 

(d) Final DHS determination. If, after 

reviewing a timely response by the State 

to the preliminary determination, DHS 

makes a final determination that the 

State is not in compliance with this 

part, DHS will notify the State of the 

final determination. In making its final 

determination, DHS will take into 

consideration the corrective action 

either implemented, or planned to be 

implemented, in accordance with the 

mutually agreed upon schedule. 

(e) State’s right to judicial review. Any 

State aggrieved by an adverse decision 

under this section may seek judicial 

review under 5 U.S.C. chapter 7. 

§ 37.61 Results of compliance 

determination. 

(a) DHS will determine that a State is 

not in compliance with this part when 

it—

(1) Fails to submit the certification as 

prescribed in this subpart; or 

(2) Does not meet one or more of the 

standards of this part, as established in 

a final determination by DHS under this 

section. 

(b) A State shall be deemed in 

compliance with this part when DHS 

issues a determination that the State 

meets the requirements of this part. 

§ 37.63 Extension of deadline. 

A State may request a deadline 

extension based on the lack of a final 

REAL ID regulation to guide its 

implementation by filing a request with 

the Secretary no later than October 1, 

2007. 

(a) The request for consideration shall 

state that the State needs sufficient time 

to consider the final rule and will not 

otherwise be in a position to comply 

with the final rule. 

(b) The Secretary has determined that, 

in the absence of extraordinary 

circumstances, such an extension 

request will be deemed justified for a 

period lasting until, but not beyond, 

December 31, 2009, providing that the 

requesting State complies with the 

requirements of this section. 

(c) Any State receiving an extension 

for expedited consideration shall submit 

to the Secretary no later than six months 

from the date on which the extension is 

granted a Compliance Plan detailing 

milestones, schedules, and budgets 

allowing it to meet the requirements of 

the final regulation. 

(d) After the Compliance Plan is 

submitted, the Secretary may require 

such progress reports or other 

information as the Secretary determines 

to be necessary to evaluate the State’s 

progress toward compliance by 

December 31, 2009. 

§ 37.65 Effect of failure to comply with this 

part. 

(a) After May 11, 2013, any driver’s 

license or identification card issued by 


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any State that DHS determines was not 

in compliance with this part when the 

driver’s license or identification card 

was issued, is not acceptable as 

identification by Federal agencies for 

official purposes. 

(b) If a driver’s license or 

identification card issued when a State 

was in compliance with these 

regulations is renewed, the renewed 

driver’s license or identification card is 

acceptable by Federal agencies for 

official purposes, only if the State is in 

compliance with these regulations at the 

time of renewal. 

Subpart F—Non-REAL ID Driver’s 

Licenses and Identification Cards 

§ 37.67 Non-REAL ID driver’s licenses and 

identification cards. 

States that issue driver’s licenses and 

identification cards that do not satisfy 

the standards of this part after May 11, 

2008, must ensure that such driver’s 

licenses and identification cards—

(a) Clearly state, on their face in bold 

lettering, as well as in the machine 

readable zone if the card contains one, 

that they may not be accepted by any 

Federal agency for Federal identification 

or other official purpose; and 

(b) Have a unique design or color 

indicator that clearly distinguishes them 

from driver’s licenses and identification 

cards that meet the standards of this 

part. 

Michael Chertoff, 

Secretary. 

[FR Doc. 07–1009 Filed 3–8–07; 8:45 am] 

BILLING CODE 4410–10–P 


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