5272 Federal Register / Vol. 73, No. 19 / Tuesday, January 29, 2008 / Rules and Regulations 

DEPARTMENT OF HOMELAND 

SECURITY 

Office of the Secretary 

6 CFR Part 37 

[Docket No. DHS–2006–0030] 

RIN 1601–AA37 

Minimum Standards for Driver’s 

Licenses and Identification Cards 

Acceptable by Federal Agencies for 

Official Purposes 

AGENCY: Office of the Secretary, DHS. 

ACTION: Final rule. 

SUMMARY: The Department of Homeland 

Security is establishing minimum 

standards for State-issued driver’s 

licenses and identification cards that 

Federal agencies would accept for 

official purposes on or after May 11, 

2008, in accordance with the REAL ID 

Act of 2005. This rule establishes 

standards to meet the minimum 

requirements of the REAL ID Act of 

2005. These standards involve a number 

of aspects of the process used to issue 

identification documents, including: 

Information and security features that 

must be incorporated into each card; 

application information to establish the 

identity and immigration status of an 

applicant before a card can be issued; 

and physical security standards for 

facilities where driver’s licenses and 

applicable identification cards are 

produced. This final rule also provides 

a process for States to seek an additional 

extension of the compliance deadline to 

May 11, 2011, by demonstrating 

material compliance with the core 

requirements of the Act and this rule. 

Finally, taking into consideration the 

operational burdens on State 

Departments of Motor Vehicles, this rule 

extends the enrollment time period to 

allow States determined by DHS to be 

in compliance with the Act to replace 

all licenses intended for official purpose 

with REAL ID-compliant cards by 

December 1, 2014 for people born after 

December 1, 1964, and by December 1, 

2017 for those born on or before 

December 1, 1964. 

DATES: Effective Date: This rule is 

effective March 31, 2008. The 

incorporation by reference of certain 

publications listed in the rule is 

approved by the Director of the Federal 

Register as of March 31, 2008. 

Compliance Dates: Extensions: As of 

May 11, 2008, Federal agencies cannot 

accept driver’s licenses or identification 

cards for official purposes, as defined 

herein, from States that have not been 

determined by DHS to be in compliance 

with the REAL ID Act unless a State has 

requested and obtained an extension of 

the compliance date from DHS. States 

seeking extensions must submit a 

request for an extension to DHS no later 

than March 31, 2008. As of December 

31, 2009, any initial extension will 

terminate unless a State, no later than 

October 11, 2009, submits to DHS a 

request for an additional extension and 

certification that the State has achieved 

the benchmarks set forth in the Material 

Compliance Checklist. As of May 11, 

2011, driver’s licenses and 

identification cards will not be accepted 

from States that are not in full 

compliance with the provisions of REAL 

ID. 

Enrollment: As of December 1, 2014, 

Federal agencies cannot accept driver’s 

licenses or identification cards for 

official purposes, as defined herein, 

from any individual born after 

December 1, 1964, unless DHS has 

determined that the issuing State is in 

compliance with Subparts A through D 

of this rule and the card presented by 

the individuals meet the standards of 

this rule. As of December 1, 2017, 

Federal agencies will not accept any 

State-issued driver’s licenses and 

identification cards for official purposes 

unless such cards have been issued by 

States that have certified to DHS their 

compliance with Subparts A through D 

of this rule. 

FOR FURTHER INFORMATION CONTACT: 

Darrell Williams, REAL ID Program 

Office, Department of Homeland 

Security, Washington, DC 20528 (202) 

282–9829. 

SUPPLEMENTARY INFORMATION: 

Abbreviations and Terms Used in This 

Document 

AAMVA—American Association of Motor 

Vehicle Administrators 

ACLU—American Civil Liberties Union 

CAC—U.S. Department of Defense Common 

Access Card 

CDLIS—Commercial Drivers License 

Information System 

CHRC—Criminal History Records Check 

CRBA—Consular Report of Birth Abroad 

DHS—U.S. Department of Homeland 

Security 

DMV—Department of Motor Vehicles 

DOS—U.S. Department of State 

DOT—U.S. Department of Transportation 

EAD—Employment Authorization Document 

EDL—Enhanced driver’s license and 

identification card 

EVVE—Electronic Verification of Vital 

Events 

FOIA—Freedom of Information Act 

IAFIS—Integrated Automated Fingerprint 

Identification 

ICAO—International Civil Aviation 

Organization 

ID—Identification Card 

JPEG—Joint Photographic Experts Group 

LPR—Lawful Permanent Resident 

MRZ—Machine Readable Zone 

NAPHSIS—National Association of Public 

Health Statistics and Information 

Systems 

NASCIO—National Association of State Chief 

Information Officers 

NCSL—National Conference of State 

Legislatures 

NCIC—National Crime Information Center 

NGA—National Governors Association 

NPRM—Notice of Proposed Rulemaking 

PII—Personally Identifiable Information 

RFID—Radio Frequency Identification 

SAVE—Systematic Alien Verification for 

Entitlements 

SEVIS—Student and Exchange Visitor 

Information System 

SSA—Social Security Administration 

SSI—Sensitive Security Information 

SSN—Social Security Number 

SSOLV—Social Security On-Line 

Verification 

TIF—Tagged Image Format 

TSA—Transportation Security 

Administration 

TWIC—Transportation Worker Identification 

Credential 

USCIS—U.S. Citizenship and Immigration 

Services 

WHTI—Western Hemisphere Travel 

Initiative 

Table of Contents 

I. Background 

II. Discussion of the Final Rule 

A. Extension of Deadlines 

B. Implementation Dates 

C. Verification and Data Exchange Systems 

Architecture 

D. Marking of Compliant REAL ID 

Documents 

E. Prohibition on States Issuing Real ID 

Cards to Persons Who Hold a Driver’s 

License in Another State 

F. Western Hemisphere Travel Initiative 

III. Section-by-Section Analysis of the Final 

Rule 

IV. Discussion of Comments 

A. General Comments on the Proposed 

Regulation 

B. Scope, Applicability, and Definitions 

C. Compliance Period 

D. Privacy Considerations 

E. State to State Database Queries 

F. Document Standards for Issuing REAL 

ID Driver’s Licenses and Identification 

Cards 

G. Exceptions Processing for Extraordinary 

Circumstances 

H. Temporary or Limited-Term Driver’s 

Licenses and Identification Cards 

I. Minimum Driver’s License or 

Identification Card Data Element 

Requirements 

J. Validity Period and Renewals of REAL ID 

Driver’s Licenses and Identification 

Cards 

K. Source Document Retention 

L. Database Connectivity 

M. Security of DMV Facilities Where 

Driver’s Licenses and Identification 

Cards are Manufactured and Produced 

N. State Certification Process; Compliance 

Determinations 


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O. Driver’s Licenses and Identification 

Cards that Do Not Meet the Standards of 

the REAL ID Act. 

P. Section 7209 of the Intelligence Reform 

and Terrorism Prevention Act of 2004 

Q. Responses to Specific Solicitation of 

Comments 

V. Regulatory Analyses 

A. Paperwork Reduction Act 

B. Economic Impact Analyses 

C. Executive Order 13132, Federalism 

D. Environmental Impact Analysis 

E. Energy Impact Analysis 

F. Executive Order 13175, Tribal 

Consultation 

I. Background 

A. Statutory Authority and Regulatory 

History 

This final rule establishes minimum 

standards for State-issued driver’s 

licenses and identification cards that 

Federal agencies can accept for official 

purposes on or after May 11, 2008, as 

required under the REAL ID Act of 

2005. See, Public Law 109–13, 119 Stat. 

231, 302 (May 11, 2005) (codified at 49 

U.S.C. 30301 note) (the Act). 

During the terrorist attacks on the 

United States on September 11, 2001, all 

but one of the terrorist hijackers 

acquired some form of identification 

document, some by fraud, and used 

these forms of identification to assist 

them in boarding commercial flights, 

renting cars, and other necessary 

activities leading up to the attacks. See, 

The 9/11 Commission Report, Final 

Report of the National Commission on 

Terrorist Attacks upon the United States 

(July 2004) (9/11 Commission Report), 

p. 390. The 9/11 Commission 

recommended implementing more 

secure sources of identification for use 

in, among other activities, boarding 

aircraft and accessing vulnerable 

facilities. In its report, the Commission 

stated: 

Secure identification should begin in the 

United States. The federal government 

should set standards for the issuance of birth 

certificates and sources of identification, 

such as driver’s licenses. Fraud in 

identification documents is no longer just a 

problem of theft. At many entry points to 

vulnerable facilities, including gates for 

boarding aircraft, sources of identification are 

the last opportunity to ensure that people are 

who they say they are and to check whether 

they are terrorists. 

Id. at 390. 

Congress enacted the Act in May 

2005, in response to the 9/11 

Commission’s recommendations. 

Under the Act, Federal agencies are 

prohibited, effective May 11, 2008, from 

accepting a driver’s license or a Stateissued personal identification card for 

an official purpose unless the issuing 

State is meeting the requirements of the 

Act. ‘‘Official purpose’’ is defined under 

§ 201 of the Act to include access to 

Federal facilities, boarding Federallyregulated commercial aircraft, entry into 

nuclear power plants, and such other 

purposes as established by the Secretary 

of Homeland Security. Undoubtedly, the 

most significant impact on the public of 

this statutory mandate is that, effective 

May 11, 2008, citizens of States that 

have not been determined by DHS to be 

in compliance with the mandatory 

minimum requirements set forth in the 

REAL ID Act may not use their Stateissued driver’s licenses or identification 

cards to pass through security at 

airports. Citizens in this category will 

likely encounter significant travel 

delays. 

The Act authorizes the Secretary of 

Homeland Security, in consultation 

with the States and the Secretary of 

Transportation, to promulgate 

regulations to implement the 

requirements under this Act. Section 

205(b) of the Act further authorizes the 

Secretary of Homeland Security to grant 

extensions of time to meet the minimum 

standards of the Act when States 

provide adequate justification for 

noncompliance. The Act does not, 

however, give DHS the authority to 

waive any of the mandatory minimum 

standards set forth in the Act. Those 

mandatory provisions are set forth 

below. 

Section 202(b) of the Act directs that 

REAL ID-compliant licenses and 

identification cards must include the 

following information: 

(1) The person’s full legal name, date 

of birth, and gender; 

(2) The person’s driver’s license or 

identification card number; 

(3) A digital photograph of the person; 

(4) The person’s address of principal 

residence; 

(5) The person’s signature; 

(6) Physical security features designed 

to prevent tampering, counterfeiting, or 

duplication of the driver’s licenses and 

identification cards for fraudulent 

purposes; and 

(7) A common machine-readable 

technology, with defined minimum 

elements. 

Section 202(c) of the Act also 

mandates certain minimum standards 

that States must adopt when issuing 

driver’s licenses and identification cards 

intended for use for official purposes 

(referred to as REAL ID-compliant 

cards). Those standards include, but are 

not limited to, the following: 

• The State shall require, at a 

minimum, presentation and verification 

of (1) A photo identity document 

(except that a non-photo identity 

document is acceptable if it includes 

both the applicant’s full legal name and 

date of birth); (2) documentation 

showing the applicant’s date of birth; (3) 

proof of the person’s Social Security 

Number (SSN) or verification that the 

applicant is not eligible for a SSN; and 

(4) documentation showing the 

applicant’s name and address of 

principal residence. § 202(c). 

• The State shall require valid 

documentary evidence that the 

applicant is lawfully present in the 

United States. Such evidence shall 

include documentary evidence that the 

applicant: (1) Is a citizen or national of 

the United States; (2) is an alien 

lawfully admitted for permanent 

residence or temporary residence in the 

United States or pending application for 

same; (3) has conditional permanent 

resident status in the United States or 

pending application for such status; (4) 

has an approved application for asylum 

in the United States, a pending 

application for asylum, or has been 

admitted to the United States in refugee 

status; (5) was lawfully admitted to the 

United States using a valid, unexpired 

nonimmigrant visa; (6) has a pending or 

approved application for temporary 

protected status in the United States; or 

(7) has approved deferred action status. 

§ 202(c)(2)(B). 

• States must establish procedures to 

verify each document required to be 

presented by the applicant. The State 

also shall have entered into a 

memorandum of understanding (MOU) 

with DHS to use the Systematic Alien 

Verification for Entitlements (SAVE 

system) to verify the lawful status of an 

applicant, other than a U.S. citizen. 

§ 202(c)(3)(C). 

• States also must confirm with the 

Social Security Administration (SSA) 

that the SSN presented by an applicant 

(as required under § 202(c)(1)(C)) is 

registered to that person. § 202(d)(5). 

• States must ensure the physical 

security of facilities where driver’s 

licenses and identification cards are 

produced; and the security of document 

materials and papers from which 

driver’s licenses and identification cards 

are produced. § 202(d)(7). 

• All persons authorized to 

manufacture or produce cards to 

appropriate security clearance 

requirements. § 202(d)(8). 

• Physical security features on the 

driver’s licenses and identification cards 

designed to prevent tampering, 

counterfeiting, and duplication of the 

documents for a fraudulent purpose. 

§ 202(b)(8). 

The Act also permits a State otherwise 

in compliance with the Act to issue 

driver’s licenses and identification cards 

that do not conform to the Act’s 


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5274 Federal Register / Vol. 73, No. 19 / Tuesday, January 29, 2008 / Rules and Regulations 

requirements. See § 202(d)(11). Federal 

agencies, however, cannot accept such 

driver’s licenses and identification cards 

for an official purpose and States must 

ensure that such cards or licenses must 

state on their faces that a Federal agency 

may not accept it for an official purpose. 

See § 202(d)(11)(A). States also must use 

a unique design or color indicator so 

that it is readily apparent to Federal 

agency personnel that the card is not to 

be accepted for an official purpose. See 

§ 202(d)(11)(B). 

The Act requires DHS to determine 

whether a State is meeting the Act’s 

requirements based upon certifications 

submitted by each State in a manner 

prescribed by DHS. 

II. Discussion of Final Rule 

DHS published an NPRM on March 3, 

2007, proposing requirements to meet 

the minimum standards required under 

the Act. The proposed requirements 

included information and security 

features that must be incorporated into 

each card; application information to 

establish the identity and immigration 

status of an applicant before a card can 

be issued; and physical security 

standards for facilities where driver’s 

licenses and identification cards are 

produced. For additional information, 

please see the NPRM at 72 FR 10820. 

DHS received over 21,000 comments 

on the NPRM and supporting regulatory 

evaluation during the sixty-day public 

comment period for this rulemaking 

action. Responses to those comments 

are set forth in Section IV of this final 

rule. This final rule implements the 

requirements of the Act, but with 

significant changes from the NPRM as a 

result of public comment, as discussed 

below. 

As discussed above, effective May 11, 

2008, Federal agencies are prohibited 

from accepting for official purposes 

state-issued driver’s licenses or 

identification cards unless an issuing 

State certifies, and DHS determines, that 

it has met the mandatory minimum 

requirements of § 202 of the REAL ID 

Act. Several States have implemented—

or are working to implement—

legislation prohibiting their 

Departments of Motor Vehicles (DMVs) 

from complying with the requirements 

of the Act or any related implementing 

regulations issued by DHS. DHS wants 

to make clear that effective May 11, 

2008, individuals from States who have 

not obtained an extension of the 

compliance date from DHS, or who have 

not submitted a Compliance Package to 

DHS under the deadlines provided in 

this final rule, will not be able to use 

their State-issued license for federal 

official purposes, including for 

identification to board a commercial 

airplane. Residents of States that do 

choose to comply, however, through 

submission of their Compliance Plan or 

a timely-filed request for an extension, 

will be able to continue to use their 

current license to board commercial 

aircraft (and for other official purposes) 

through December 1, 2014. Effective 

December 1, 2014, Federal agencies will 

refuse to accept non-REAL ID-compliant 

driver’s licenses from all persons born 

before December 1, 1964 (i.e. under the 

age of fifty). Effective December 1, 2017, 

anyone seeking to use a State-issued 

driver’s license or identification card for 

official purpose, including boarding of 

commercial aircraft, must have a REAL 

ID-compliant card. 

A. Extension of Deadlines 

Under section 205(b) of the Act, the 

Secretary of Homeland Security is 

authorized to grant extensions of the 

May 11, 2008 compliance date to those 

States who provide adequate 

justification for their inability to comply 

by the statutory deadline. On March 1, 

2007, the Secretary of Homeland 

Security announced, in conjunction 

with the release of the NPRM, that the 

Department would grant extensions to 

all States requesting extensions, not to 

exceed December 31, 2009. In the 

NPRM, DHS proposed that States that 

would not be able to comply by May 11, 

2008, should request an extension of the 

compliance date no later than February 

10, 2008, and the proposal encouraged 

States to submit requests for extension 

as early as October 1, 2007. Under this 

final rule, States must file requests for 

an initial extension no later than March 

31, 2008. That initial extension would 

expire on December 31, 2009. Pursuant 

to § 37.55 of this rule, States must 

submit requests for extensions to the 

REAL ID Program Office. Contact 

information is provided in the ‘‘For 

Further Information’’ section of this 

rule. Requests for extension must be 

submitted from the highest level 

executive official in the State overseeing 

the DMV to the REAL ID Program 

Office. 

DHS received numerous comments 

from States arguing that the lack of a 

centralized verification system would 

make it impossible for most, if not all, 

States to comply with the minimum 

statutory requirements by December 31, 

2009. DHS recognizes the difficulty that 

many States may have in meeting the 

statutory requirements under the Act, 

but emphasizes that the Department has 

a critical responsibility to ensure that 

identification documents used to board 

commercial air carriers or access 

Federal buildings are secure documents 

and adequately prevent persons from 

circumventing Federal security and 

screening requirements by use of false 

or fraudulent identification. 

In balancing the operational needs of 

the States against the security 

responsibilities of DHS and the Federal 

Government, DHS has decided to allow 

States to obtain an extension beyond 

December 31, 2009. DHS, however, will 

only grant a second extension to States 

that demonstrate that they have 

achieved certain milestones towards 

compliance with the Act and the final 

rule. States unable to demonstrate this 

progress will not be able to receive an 

additional extension. DHS has 

identified eighteen milestones, captured 

in the ‘‘Material Compliance Checklist,’’

that States must certify they have met in 

order to obtain an extension of the 

compliance deadline beyond December 

31, 2009. The Material Compliance 

Checklist is available at DHS’ Web site 

at www.dhs.gov. The eighteen 

milestones are all mandatory 

requirements under the Act; one of the 

most important ones, however, is the 

State’s ability to verify that the 

applicant is lawfully present in the 

United States. Any second extension 

will terminate effective May 11, 2011, at 

which time, as discussed above, the 

State must begin issuing fully compliant 

REAL ID cards. 

B. Phased Enrollment Periods 

DHS initially proposed that States 

determined by DHS to be in compliance 

with the Act and the final rule would 

have until May 11, 2013 to replace all 

driver’s licenses and identification cards 

with REAL ID-compliant cards. Under 

the NPRM, licenses intended for Federal 

official purposes issued by States on or 

after May 11, 2008 and determined by 

DHS to be in compliance with the Act 

and this final rule would be REAL IDcompliant, and the State would have 

worked to replace existing licenses, 

through standard renewal or 

replacement processes no later than 

May 11, 2013. Until that phased-in 

enrollment period concluded on May 

11, 2013, Federal agencies would accept 

from residents of compliant States both 

REAL ID-compliant licenses dated on or 

after May 11, 2008 or standard licenses 

issued before May 11, 2013. The NPRM 

also proposed the same phase-in period 

for States requesting initial extensions 

of the compliance date until December 

31, 2009, i.e., States receiving an 

extension would still have until May 11, 

2013 to enroll their current drivers. 

During the public comment period, a 

number of States and State associations 

noted that States obtaining an initial 

extension of the compliance date until 


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Federal Register / Vol. 73, No. 19 / Tuesday, January 29, 2008 / Rules and Regulations 5275 

December 31, 2009, would still be 

required to enroll their existing driver 

population (estimated to be 

approximately 240 million) by May 11, 

2013. This would essentially halve the 

phase-in period and create an untenable 

burden and increased costs on States 

who were committed to complying with 

the REAL ID requirements. Several 

commenters suggested that DHS 

consider a risk-based approach that 

would permit States and DMVs to defer 

enrollment of a proportion of the 

population that statistically may present 

a lower risk of obtaining false or 

fraudulent identification to, among 

other potential purposes, circumvent 

Transportation Security Administration 

(TSA) passenger screening procedures 

and requirements or to access Federal 

buildings with a false identification. 

DHS recognizes the significant 

operational impact on State DMVs if all 

licenses issued by a State were required 

to be REAL ID-compliant by May 11, 

2008, or May 11, 2013; and believes that 

an age-based approach is the best way 

to balance operational concerns against 

security concerns. DHS has considered 

the best methodology to target 

preventive efforts against an individual 

attempting to fraudulently obtain an 

identification document to gain access 

to a Federal facility, nuclear facility, or 

commercial aircraft. In the absence of 

threat reporting about particular 

individuals, to which the DMVs will not 

have access, DHS has determined that 

the most appropriate substitute criteria 

to apply is age. 

DHS has determined that the most 

logical option to reduce the significant 

operational burden on States is to allow 

States to divide their license-bearing 

population and re-issue REAL IDcompliant licenses through a twophased enrollment. This approach 

would reduce the operational burdens 

on States, which otherwise would have 

to reissue licenses to the majority of 

their license-bearing populations within 

two years for States requiring and 

obtaining extensions until May 11, 

2011. DHS also has determined that a 

phased enrollment based on age is 

consistent with the intent of the REAL 

ID Act by focusing the first phase of 

enrollment on the population of persons 

that may have a higher propensity to 

obtain and use fraudulent identification. 

To determine a logical age to use as 

a cut-off point for a two-phased 

enrollment, DHS determined, based on 

comments received and statistical 

analysis of incident reports obtained 

from the TSA, that solely for purposes 

of establishing an age-based enrollment 

for compliance with the REAL ID Act, 

the logical point of division would be to 

allow States to defer enrollment for 

persons over the age of fifty. The 

statistical analysis supporting this 

determination was conducted by DHS 

utilizing TSA incident reports 

identifying persons arrested or detained 

for use of fraudulent identification at 

TSA screening areas during the period 

from October 1, 2004 through July 25, 

2007. This analysis roughly indicates 

that persons over the age of fifty were 

less likely to be involved in TSA-related 

law enforcement incidents involving 

false or fraudulent identification. More 

specific information on the 

methodology underlying this 

assessment is provided in Section IV.C. 

below. 

Accordingly, DHS, under this final 

rule, has developed a phased enrollment 

approach for States who have certified 

compliance with the requirements of the 

Act and this final rule, and have been 

determined by DHS to be in compliance 

with the Act and this rule. Under this 

final rule, once a State certifies 

compliance with the REAL ID Act and 

this final rule, the State may focus 

enrollment first on issuing REAL IDcompliant cards to individuals born 

after December 1, 1964 (those who will 

be less than fifty years of age as of 

December 1, 2014, the date of full 

compliance). States may delay the full 

enrollment of persons born on or before 

December 1, 1964, for three additional 

years, until December 1, 2017. 

DHS believes that this approach 

balances the security objective of 

improving the reliability of 

identification documents presented for 

official purposes, including the 

boarding of commercial aircraft, with 

the needs of the States to spread out 

their compliance costs over a greater 

period of time and to obtain the 

necessary legal and budgetary approval 

from within their States to comply with 

the regulations. DHS also notes that 

States will be able to reduce their 

overall compliance costs based on 

phased enrollment approach. The 

economic analysis is presented in 

section V. of this rule. 

C. Verification and Data Exchange 

Systems Architecture 

The REAL ID Act requires States to 

verify supporting documents with the 

issuing agency. Because our population 

moves freely among the States, each 

State will need the capability to verify 

documents from issuing agencies in all 

other States. Although the Act places 

this burden on the States, DHS has 

worked to consider several technical 

solutions that would provide States 

with this capability. DHS has initiated 

a verification systems design project to 

define the requirements for the optimal 

system for REAL ID. DHS is working 

with the American Association of Motor 

Vehicle Administrators (AAMVA), the 

Department of Transportation (DOT), 

the Social Security Administration, the 

Department of State (DOS), the National 

Association of Public Health Statistics 

and Information Systems (NAPHSIS), 

and State representatives to define 

requirements for a ‘‘hub’’ based network 

and messaging systems to support the 

requirements of REAL ID. DHS is 

assessing the extent to which the 

current AAMVA network, 

communications, and systems 

architecture can serve as a platform for 

deployment of REAL ID data 

verification and State-to-State data 

exchanges. 

The backbone of this hub would be 

AAMVAnet, the network system that 

AAMVA operates to facilitate data 

verification for State DMVs. DOT is 

currently funding an ongoing project to 

upgrade the capability of AAMVAnet by 

building in such security features as 

end-to-end data encryption and Federal 

Information Security Management Actbased security standards. The DOTfunded project will potentially expand 

AAMVAnet’s capability to provide the 

capacity to handle the increased 

transaction volume for the required 

State-to-State transactions. Finally, the 

AAMVAnet backbone resides on a 

private network with no connectivity to 

the Internet. It has been, and will 

continue to be, a highly secure 

transportation layer for all 

communications between States and 

agency databases. 

With respect to data verification, 

AAMVAnet already supports 

verification of both social security 

numbers (SSNs) and birth certificates. 

These application systems enable States 

to query the Social Security On-Line 

Verification (SSOLV) database managed 

by the Social Security Administration 

(SSA) and the Electronic Verification of 

Vital Events (EVVE) system owned and 

operated by NAPHSIS. While 47 States 

currently verify SSNs through 

AAMVAnet, verification of birth 

certificates is limited to those States 

whose vital events records are available 

online. In both cases only State DMVs 

can initiate queries; personal data are 

verified and not exchanged; and no 

personal information is created, 

modified, or stored as a result of the 

transaction. Working with both SSA and 

NAPHSIS, DHS is identifying 

requirements for enhancements to both 

application systems. 

U.S. Citizenship and Immigration 

Services (USCIS) is working to modify 

the SAVE system to allow States to 


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1Pub. L. 108–458, as amended, 118 Stat. 3638 

(Dec. 17, 2004). 

facilitate their ability to meet the 

verification requirements under the 

§ 202(c)(3) of REAL ID Act, a 

requirement that States routinely utilize 

the SAVE system to verify the lawful 

status of REAL ID card applicants. 

Currently, a majority of States have 

already entered into Memoranda of 

Understanding with USCIS to access 

and use SAVE, as required under 

section 202(c)(3) of the Act. USCIS is 

developing a standard user interface to 

meet all State DMV business process 

needs for immigration-related 

transactions and to draft requirements 

for a common messaging system that 

takes advantage of the same AAMVAnet 

standards and infrastructure that 

support State DMV queries against 

SSOLV, EVVE, and other Federal and 

State databases. 

DHS also is exploring the alternative 

of using the Commercial Drivers 

Licensing Information System (CDLIS) 

as the baseline platform for supporting 

the State-to-State data exchange 

requirements of the REAL ID Act and 

regulation. CDLIS currently supports 

queries to every State DMV every time 

an individual applies for a driver’s 

license in any State or the District of 

Columbia. CDLIS already meets the data 

exchange requirements of REAL ID for 

those drivers holding commercial 

driver’s licenses. Moreover, CDLIS is a 

secure, State-governed system that 

stores the minimum amount of personal 

information possible to facilitate the 

routing of queries and responses 

between States. DHS is considering an 

effort to define system requirements for 

REAL ID State-to-State data exchanges 

based upon the CDLIS model or 

platform. This project would define a 

systems architecture for REAL ID Stateto-State data exchanges that would 

leverage the ongoing CDLIS 

modernization project led by the DOT. 

DHS will work closely with DOT to 

build upon current and planned systems 

designs to meet the requirements of 

REAL ID. 

D. Marking of Compliant REAL ID 

Documents 

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

States to issue, in addition to REAL IDcompliant licenses, identification cards 

not intended to be accepted by Federal 

agencies for official purposes. Under the 

Act, however, any such card must 

clearly state on its face that it may not 

be accepted by any Federal agency for 

federal identification or any other 

official purpose; and States must use a 

unique design or color indicator to alert 

Federal agencies and other law 

enforcement that it may not be accepted 

for any such purpose. DHS will leave 

the types of marking and unique 

coloring to the discretion of the 

individual States, subject to DHS 

approval as part of the Compliance 

Package to ensure that DHS officials, 

such as TSA screeners, can adequately 

distinguish between REAL ID-compliant 

cards and those not intended for official 

purposes. 

Based on an analysis of feedback from 

several commenters, DHS, however, has 

determined it would be in the best 

interest of the nation’s security for 

States to place a security marking on 

licenses and identification cards to 

allow Federal agencies to more readily 

determine which States are issuing 

licenses or identification cards that are 

REAL ID-compliant or have been 

determined to be ‘‘materially 

compliant’’ (including verifying that 

REAL ID applicants are lawfully present 

in the United States). DHS will work 

with States concerning marking 

compliant licenses and identification 

cards that indicate whether the 

document was issued in material 

compliance of the Act’s requirements, or 

in full compliance of the Act’s 

requirements as set forth in Subpart E of 

this rule. 

E. Prohibition on States Issuing REAL ID 

Cards to Persons Who Hold a Driver’s 

License in Another State 

Section 202(d)(6) of the Act requires 

that States ‘‘refuse to issue a driver’s 

license or identification card to a person 

holding a driver’s license issued by 

another State without confirmation that 

the person is terminating or has 

terminated the driver’s license.’’ In the 

NPRM, DHS maintained that we are not 

regulating the issuance of driver’s 

licenses beyond that required under the 

REAL ID Act, but encourage the policy 

of ‘‘one driver, one license.’’ Following 

comments on the rule, however, DHS 

believes it is necessary to clarify that the 

REAL ID Act mandates that a State 

cannot issue a REAL ID license to a 

person who is holding a license issued 

by another State or to an individual who 

already holds a REAL ID card. (A person 

can, however, hold a REAL ID card and 

another non-REAL ID, non-driver’s 

license identification card). DHS, 

therefore, revised § 37.33, moving that 

provision to a separate section (§ 37.29), 

to clarify and emphasize that a State 

cannot issue a REAL ID card without 

verifying that an applicant does not 

hold another REAL ID card or a driver’s 

license from another State, or if the 

applicant holds another driver’s license, 

that he or she is taking steps to 

terminate that license. See § 202(d)(6) of 

the Act. 

F. Western Hemisphere Travel Initiative 

Section 7209 of the Intelligence 

Reform and Terrorism Prevention Act of 

2004, as amended,1 requires the 

Secretary of Homeland Security, in 

consultation with the Secretary of State, 

to develop and implement a plan to 

require travelers entering the United 

States to present a passport, other 

document, or combination of 

documents, that are ‘‘deemed by the 

Secretary of Homeland Security to be 

sufficient to denote identity and 

citizenship.’’ This DHS and Department 

of State (DOS) initiative is referred to as 

the Western Hemisphere Travel 

Initiative (WHTI). DHS and DOS have 

issued several regulations implementing 

WHTI travel document requirements at 

air ports of entry, and proposing 

documents acceptable for cross border 

travel at land and sea ports-of-entry. For 

additional information on the WHTI 

rulemaking actions, please see 71 FR 

68411 (Nov. 24, 2006) (final air rule) 

and 72 FR 35087 (proposed land and sea 

rule). 

As part of WHTI, the Secretary of 

Homeland Security has the authority to 

designate alternative documents that 

denote identity and citizenship that can 

be used for cross border purposes at 

land and sea ports-of-entry. In 

determining which documents should 

provide a convenient, low-cost 

alternative for U.S. citizens, particularly 

those residing in border states, DHS 

notes that State DMVs are well 

positioned to provide an enhanced 

driver’s license (EDL) to meet this need. 

DHS is coordinating efforts to ensure 

that an EDL, developed to meet the 

requirements of WHTI, will adopt 

standards that REAL ID requires, as they 

are defined through the REAL ID 

rulemaking process. For an EDL to be an 

acceptable WHTI document for land and 

sea cross-border travel, it can only be 

issued to U.S. citizens, denote such 

citizenship on the face of the card, and 

must include technologies that facilitate 

electronic verification and travel at 

ports-of-entry. DHS will continue to 

work closely with interested states to 

develop driver’s licenses that can meet 

both REAL ID and WHTI requirements. 

The requirements outlined above 

constitute substantive changes between 

the March 2007 proposed rule and this 

final rule. A more robust discussion of 

this final rule and DHS’s responses to 

comments are set forth below. 


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III. Section-By-Section Analysis of the 

Final Rule 

Section 37.1 Applicability 

DHS added a reference to § 202(d)(11) 

of the REAL ID Act to make it clear that 

the provisions of this rule apply to 

States who intend to issue driver’s 

licenses or identification cards that can 

be accepted by Federal agencies for 

official purposes and that intend to be 

determined by DHS to be in compliance 

with section 202 of the REAL ID Act. 

Section 37.3 Definitions 

DHS added a definition of ‘‘full 

compliance’’ to clarify the relationships 

between full compliance with the 

requirements of Subparts A through D, 

and ‘‘material compliance’’ with the 

procedures in Subpart E that allow a 

State to file for and receive an 

extension. 

DHS refined the definition of 

‘‘covered employees’’ in this final rule 

to clarify that employees refers to DMV 

employees. 

DHS added a definition of 

‘‘duplicate’’ for driver’s licenses and 

identification cards issued subsequent 

to the original license or card bearing 

the same information and expiration 

date as the original. 

DHS has modified the definition of 

‘‘full legal name’’ to bring it closer to 

existing name conventions used by the 

Social Security Administration, the 

Department of State, and other issuers of 

source documents. 

DHS has added the definition of 

‘‘material change’’ to provide clarity for 

States as to when an individual may be 

required to make an in-person visit to a 

DMV office to obtain an updated REAL 

ID driver’s license or identification card 

when certain information changes from 

the time they obtained their previous 

REAL ID document. For the purpose of 

this final rule, a change of address of 

principal residence does not constitute 

a material change. 

DHS has added a definition of 

‘‘material compliance’’ as a basis for 

establishing the benchmarks that DHS 

will use to evaluate State progress 

toward meeting the requirements of this 

rule. States in material compliance with 

Subparts A through D of this rule will 

be granted a second extension until no 

later than May 10, 2011 to meet all the 

requirements of this rule. 

DHS maintained the same definition 

of ‘‘official purpose’’ as that proposed in 

the NPRM and set forth in the REAL ID 

Act; to mean ‘‘accessing Federal 

facilities, boarding Federally-regulated 

commercial aircraft, and entering 

nuclear power plants.’’

DHS also added a definition for 

‘‘personally identifiable information’’ as 

it pertains to these rules and the REAL 

ID Act. 

DHS changed the definition of 

‘‘principal residence’’ from the location 

where a person has his or her true, 

fixed, and permanent home and intends 

to return, to the location where a person 

currently resides even if this location is 

temporary, in conformance with the 

residency requirements of the State 

issuing the driver’s license or 

identification card, if such requirements 

exist. DHS made this change in response 

to comments that the prior definition 

would unfairly prevent persons such as 

military personnel or students residing 

temporarily in a State from obtaining a 

driver’s license or identification card 

from that State. 

DHS revised the definition of ‘‘sexual 

assault and stalking’’ to incorporate the 

meaning of these terms given by State 

laws. 

DHS broadened the scope of the term 

‘‘State address confidentiality’’ to allow 

States to cover not only victims of 

violence or assault, but also ‘‘other 

categories of persons’’ that may need to 

have their addresses kept confidential. 

DHS added a comprehensive 

definition of the term ‘‘verify’’ to clarify 

the scope of application in the rule. The 

definition makes it clear that 

verification includes two interrelated 

procedures: (1) inspection to see if the 

document is genuine and has not been 

altered, and (2) checking to see that the 

identity data on the document is valid. 

Section 37.5 Validity Periods and 

Deadlines for REAL ID Driver’s Licenses 

and Identification Cards 

The proposed language in § 37.5 

required that all cards issued, reissued, 

or renewed after May 11, 2008 had to be 

REAL ID-compliant by May 11, 2013 in 

order to be acceptable by Federal 

agencies for official purposes. As 

discussed in Section II above and the 

responses to comments in Section IV 

below, DHS has determined that the 

following enrollment schedule will 

apply under this final rule: (1) Effective 

December 1, 2014, Federal agencies will 

be prohibited from accepting Stateissued driver’s licenses or identification 

cards for official purpose from 

individuals born after December 1, 

1964, unless the individual presents a 

REAL ID-compliant card from a State 

that has certified and that DHS has 

determined compliance with the REAL 

ID Act and this final rule; and (2) 

effective December 1, 2017, Federal 

agencies will be prohibited from 

accepting for official purposes from any 

individual (regardless of age) Stateissued driver’s licenses or identification 

cards that are not REAL ID-compliant. 

Section 37.11 Application and 

Documents the Applicant Must Provide 

DHS proposed, in the March NPRM, 

that States must maintain photographs 

of individuals who applied for, but 

ultimately were denied a REAL ID card 

by the State, for up to one year. 

However, DHS also proposed that States 

must maintain photographs of persons 

denied REAL ID cards based on 

suspected fraud for ten years and reflect 

in the State’s records that a driver’s 

license or identification card was not 

issued by the State because of 

suspicions of fraud. In response to 

comments, this final rule was amended 

to provide a uniform photograph 

retention provision of five years for 

persons who are denied a REAL ID card, 

regardless of the reason that the State 

denies issuance of a REAL ID card. DHS 

has also added a provision requiring 

States to retain the photo for two years 

after expiration of the card to allow 

individuals to renew licenses after they 

have expired. 

The NPRM also proposed to require, 

under § 37.11(b), that States retain with 

applicant source documents the 

required signed declaration that the 

information presented by the applicant 

is true and accurate. This final rule no 

longer requires States to retain the 

required declaration with the 

applicant’s source documents, the 

retention of which is mandated under 

§ 202(d)(2) of the Act. Instead, 

recognizing the operational burdens on 

the States, DHS is exercising its 

discretion on this matter to require only 

that the declaration must be retained by 

States consistent with applicable State 

document retention requirements or 

policies. 

Under § 37.11(c), DHS has added a 

provision that would allow DHS to 

change the list of documents acceptable 

to establish identity following 

publication of a notice in the Federal 

Register. 

DHS also has provided States a 

broader latitude to accept documents 

other than documents issued by a 

Federal or State-level Court or 

government agency to establish a name 

change. Moreover, where State law or 

regulation permits, the State may record 

a name other than that contained in the 

identity document on the face of the 

license or card as long as the State 

maintains copies of the documentation 

presented pursuant to § 37.31, and 

maintains a record of both the recorded 

name and the name on the source 

documents in a manner to be 

determined by the State. 


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The NPRM proposed, under 

§ 37.11(e), that an applicant for a REAL 

ID card must provide documentation 

establishing a Social Security Number 

(SSN) or the applicant’s ineligibility for 

an SSN. This final rule amends that 

proposed requirement to allow an 

applicant, if a Social Security 

Administration account card is not 

available, to present any of the 

following documents bearing the 

applicant’s SSN: (i) A W–2 form, (ii) a 

SSA–1099 form, (iii) a non-SSA–1099 

form, or (iv) a pay stub bearing the 

applicant’s name and SSN. A State, 

however, must verify the SSN pursuant 

to § 37.13(b)(2) of this final rule. 

DHS has amended proposed § 37.11(f) 

to give States more discretion in the 

acceptance of documents required to 

demonstrate the applicant’s principal 

address by removing specific 

requirements that documents used to 

demonstrate address of principal 

residence be issued ‘‘monthly’’ and 

‘‘annually.’’

In response to comments regarding 

demonstrating the applicant’s lawful 

status in the United States, DHS has 

amended § 37.11(g) with regard to 

which identity documents may serve as 

satisfactory evidence of the applicant’s 

lawful status. While all identity 

documents listed in § 37.11(c) must be 

verified by the State in the manner 

prescribed in § 37.13, State verification 

of some of the identity documents also 

provides satisfactory evidence of lawful 

status. Therefore, if the applicant 

presents one of the documents listed 

under § 37.11 (c)(1)(i)-(viii)(except for 

(v)), the issuing State’s verification of 

the applicant’s identity in the manner 

prescribed in § 37.13 will also provide 

satisfactory evidence of lawful status. 

State verification of the remaining 

identity documents listed in § 37.11(c), 

however, does not provide satisfactory 

evidence of lawful status and the 

applicant must provide additional 

documentation of lawful status as 

determined by USCIS. 

In response to comments on the 

exceptions process proposed in 

§ 37.11(h), DHS has amended this final 

rule to allow U.S. citizens to utilize the 

process to prove lawful status. In 

response to comments that it was 

unrealistic and too costly to require 

States to provide quarterly reports 

analyzing the use of their exceptions 

process, this proposed requirement has 

been replaced with a requirement that 

States must conduct a review of the 

DMV’s use of the exceptions process 

and submit the report to DHS as part of 

their certification package per § 37.55. 

Section 37.11(h) has also reduced the 

information required to be maintained 

by the State when the exceptions 

process is used. 

Section 37.13 Document Verification 

Requirements 

Based on numerous comments and 

ongoing State DMV programs, the rule 

now includes the provision that the 

State must make reasonable efforts to 

ensure that the person has not been 

issued identification documents in 

multiple or different names. Identified 

by several responders as the top priority 

for reducing the number of fraudulent 

licenses issued, this requirement has 

been reformulated and moved from 

§ 37.11 to 37.13. 

In response to concerns that a number 

of the verification systems contained in 

the proposal would not be operational 

by the verification deadlines, the final 

rule gives States more flexibility in 

verifying documents and identity data. 

DHS added language that provides 

that nothing in this section precludes a 

DMV from issuing an interim license or 

a license under § 202(d)(11) of the Act 

to permit an individual to resolve any 

non-match issue, but clarifies that such 

cards cannot be accepted for official 

purposes. 

Section 37.15 Physical Security 

Features for the Driver’s License or 

Identification Card 

DHS has deleted the proposed card 

design standards in response to 

comments which stated that the 

standards were an undue burden on the 

States. DHS has added language that 

States must conduct a review of their 

card design and submit a report to DHS 

as part of its certification package that 

indicates the ability of the designs to 

resist compromise and document fraud 

attempts. 

Section 37.17 Requirements for the 

Surface of the Driver’s License or 

Identification Card 

In response to comments that some 

States allow a name other than the full 

legal name on the identity document to 

be on the surface of the license, this 

section has been amended to require full 

legal name as demonstrated on the 

applicant’s identity document, but an 

individual may establish his or her 

name with other documentation where 

State law or regulation permits, as long 

as the State maintains copies of the 

documentation presented pursuant to 

§ 37.31 and maintains a record of both 

the recorded name and the full legal 

name on the identity document in a 

manner to be determined by the State. 

Under § 37.17(d), the unique license 

or card identification number must only 

be unique to each license or card holder 

within the State and not unique across 

all the States and other covered 

jurisdictions. 

With regard to full facial digital 

photographs pursuant to § 37.17(e), DHS 

has clarified the discussion to bring it 

into closer compliance with DHS, 

Federal and national standards. 

Language was added that allows 

photographs to be in black and white or 

color. 

To provide States with greater 

flexibility in protecting confidential 

addresses, § 37.17(f) contains new 

language that allows the display of an 

alternative address on the license or 

card, if a State permits this, and 

acceptance of an administrative order 

issued by a State or Federal court to 

show that an individual’s address is 

entitled to be suppressed. States may 

also use an address convention used by 

the U.S. Postal Service where a street 

number and street name have not been 

assigned. 

Further, § 37.17(g) now requires that 

States establish an alternative procedure 

for individuals unable to sign their 

names. The requirement to use the 

Roman alphabet has been replaced with 

use of the Latin alphabet which is more 

common. 

In response to several comments from 

States and AAMVA that REAL IDcompliant documents should be marked 

or ‘‘branded’’ as REAL ID-compliant, 

DHS has added 37.17(n) which requires 

that REAL ID-compliant licenses and 

identification cards bear a DHSapproved security marking in 

accordance with the level of compliance 

with the Act. 

Section 37.19 Machine Readable 

Technology on the Driver’s License or 

Identification Card 

This section contains technical 

conforming changes to reflect the 

changes made in § 37.11(c)(2) allowing 

a name other than the full legal name to 

appear on the license or card if a State 

law permits. State or territory of 

issuance has been added to the MRZ 

data fields to accommodate instances 

where a State may not have a residency 

requirement or may allow use of an outof-State address to receive a license. 

Section 37.21 Temporary or LimitedTerm Driver’s Licenses and 

Identification Cards 

In response to comments that the term 

‘‘temporary’’ may cause confusion 

under current terminology practices 

with some DMVs, this section adds new 

terminology and now refers to such 

licenses/cards as ‘‘limited-term or 

temporary.’’ DHS also added language 

that provides that the verification of 


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lawful status for such licenses/cards 

may be through SAVE, or ‘‘another 

method approved by DHS.’’

Section 37.23 Reissued REAL ID 

Driver’s Licenses and Identification 

Cards 

In response to comments, § 37.23 now 

provides that States may conduct a nonin-person (i.e., remote) reissuance of a 

driver’s license or card if State 

procedures permit the reissuance to be 

conducted remotely, except that a State 

may not remotely reissue a license or 

card where there has been any material 

change in information since prior 

issuance. 

Section 37.25 Renewal of REAL ID 

Driver’s Licenses and Identification 

Cards 

Section 37.25(a)(2) adds language that 

requires the States to reverify SSN 

information to ensure that the 

applicant’s information is still valid. 

DHS has also added explicit language 

requiring that the State must verify 

electronically information that it was 

not able to verify at a previous issuance 

or renewal, if the systems or processes 

exist to do so. 

Section 37.27 Driver’s Licenses and 

Identification Cards Issued During the 

Age-Based Enrollment Period 

This section has been added to affirm 

the acceptability of driver’s licenses and 

identification cards issued, reissued, or 

renewed prior to the end of the agebased enrollment period. For example, 

if an individual is 60 years of age and 

their license naturally expires in 2009, 

the State may issue that individual a 

license under that State’s current 

practices, and that license will be 

accepted for official purposes until 

2017, after which time that individual 

must present a license that complies 

with this rule for that card to be 

accepted for official purposes. As of 

December 1, 2014, individuals born 

after December 1, 1964 (that is, under 

fifty years old on that date) must present 

a REAL ID card when they present a 

State-issued driver’s license or 

identification for official purposes. As of 

December 1, 2017, all individuals 

presenting a State-issued driver’s 

license or identification card for official 

purposes must present a REAL ID card. 

The new section reemphasizes that an 

individual’s driver’s license will 

continue to be accepted for official 

purposes until the expiration of the 

individual’s applicable enrollment 

period. 

Section 37.29 Prohibition Against 

Holding More Than One REAL ID Card 

or More Than One Driver’s License 

In response to numerous comments to 

clarify the ‘‘one driver one license’’

concept in the REAL ID rules, DHS has 

created a stand-alone section, § 37.29, 

that specifically states that an 

individual may hold only one REAL ID 

card, whether it is a REAL ID 

identification card or a REAL ID driver’s 

license. In addition, prior to issuing a 

REAL ID driver’s license, a State that is 

complying with REAL ID must check 

with all other States to determine if the 

applicant currently holds a driver’s 

license or REAL ID identification card 

in another State, and if so, the receiving 

State must take measures to confirm that 

the person has terminated or is 

terminating the driver’s license or REAL 

ID identification card issued by the 

prior State pursuant to State law, 

regulation or procedure. 

Section 37.31 Source Document 

Retention 

DHS has added language to § 37.31 to 

reiterate the requirement that States 

must protect any personally identifiable 

information collected pursuant to the 

REAL ID Act as described in the 

Security Plan (§ 37.41). 

In response to comments, DHS 

deleted the following requirements from 

this section: 

• That States must replace black and 

white imagers with color imagers by 

December 31, 2011; 

• That States using digital imaging to 

retain source documents must use the 

AAMVA Digital Exchange Program or a 

standard that has interoperability with 

the AAMVA standard; 

• That all images must be linked to 

the applicant through the applicant’s 

unique identifier assigned by the DMV; 

the amended requirement now states 

that all images must be retrievable by 

the DMV if properly requested by law 

enforcement. 

DHS has also added a provision that 

allows States to record information from 

birth certificates in lieu of retaining an 

image or copy if State law permits and 

if requested by the applicant. This will 

protect medical and other personal 

information not relevant to REAL ID. 

Section 37.33 DMV Databases 

DHS changed the title of this section 

from ‘‘Database connectivity with other 

States’’ to ‘‘DMV Databases.’’ This 

section has also been amended to 

require that the DMV database allow 

capture of the full legal name and any 

other name recorded under § 37.11(c)(2) 

without truncation. 

Section 37.41 Security Plan 

DHS amended this section to clarify 

that each State submit a single security 

plan to address DMV facilities involved 

in the enrollment, issuance, 

manufacturing and production of 

driver’s licenses and identification 

cards, rather than all State DMV driver’s 

license/identification facilities as stated 

in the NPRM. This change is in response 

to comments that it does not enhance 

overall security to require every DMV 

office (which could be interpreted to 

include administrative offices) to submit 

a security plan and individual risk 

assessments. 

Furthermore, in response to 

comments asking for clarification, 

§ 37.41(b)(iii) now provides that the 

release and use of personal information 

must, at a minimum, be consistent with 

the Driver’s Privacy Protection Act, 18 

U.S.C. 2721 et seq. 

This section of the final rule now 

indicates that the fraudulent document 

training requirement would be satisfied 

by a fraudulent document training 

program approved by AAMVA. DHS has 

also deleted the requirements that the 

security plan contain procedures to 

revoke and confiscate driver’s licenses 

or identification cards fraudulently 

issued in another State, in response to 

comments that States have no authority 

to carry out such a requirement. 

A new section has been added to 

§ 37.41 to state that the Security Plans 

contain Sensitive Security Information 

and must be handled and protected in 

accordance with 49 CFR Part 1520. 

Section 37.43 Physical Security of 

DMV Production Facilities 

This section is unchanged. 

Section 37.45 Background Checks for 

Covered Employees 

Section 37.45(d) has been amended to 

recognize background checks that are 

similar to those required under § 37.45 

and that were conducted on or after May 

11, 2006, and that the DMV does not 

have to check references from prior 

employers for individuals that have 

been working with the DMV for at least 

two consecutive years prior to the Act 

taking effect. (The Act becomes effective 

on May 11, 2008). Therefore DMVs 

would not have to seek references from 

prior employers of employees who have 

been with the DMV consecutively from 

May 11, 2006 to May 11, 2008. The final 

rule clarifies that the waiver provision 

in § 37.45(b)(1)(v) allows a waiver of 

requirements for the determination of 

arrest status and includes circumstances 

where the individual has been arrested, 

but no final disposition on the matter 

has been reached. 


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In response to comments, DHS 

deleted the requirement that States must 

conduct a financial history check as part 

of the background check of covered 

employees. 

Section 37.45 now requires that the 

State confirm the employment eligibility 

of the covered employee, rather than 

lawful status through SAVE, and 

recommends that the State participate in 

the USCIS E-Verify program (or any 

successor program) for employment 

eligibility verification. 

Section 37.51 Compliance—General 

Requirements 

DHS has modified this section in 

response to many comments. DHS 

recognizes that States will be unable to 

meet all the requirements of this rule 

beginning on January 1, 2010, the day 

after the termination of the extension 

period proposed by DHS in the NPRM. 

For example, requirements for State 

verification of source documents 

depend upon the deployment of 

electronic systems that have not yet 

been developed. Therefore, DHS 

proposes that States meeting key 

benchmarks for progress toward 

compliance with the REAL ID Act be 

granted an additional extension until no 

later than May 10, 2011 to meet all the 

requirements of Subparts A through D. 

States seeking a second extension would 

submit a Material Compliance Checklist 

to DHS no later than October 11, 2009, 

documenting their progress in meeting 

the benchmark requirements. States 

meeting these benchmarks would also 

be able to issue driver’s licenses and 

identification cards bearing security 

markings indicating that the license was 

issued in conformity with REAL ID 

standards. 

Section 37.55 State Certification 

Documentation 

The title of the section was amended 

to reflect the changes to the certification 

process discussed above. The required 

contents of the State certification have 

been amended in the final rule to delete 

the requirement for a copy of all 

statutes, regulations, and administrative 

procedures and practices related to the 

State’s implementation program. DHS 

has amended the requirement that a 

State’s governor certify compliance to 

read that a State’s highest level official 

with oversight responsibility over the 

DMVs certify compliance. In addition, 

the frequency of certification reporting 

has been modified to be similar to the 

three-year intervals required by several 

Department of Transportation programs. 

Thus, in accordance, § 37.57 ‘‘Annual 

State Certifications’’ has been removed. 

Section 37.59 DHS Reviews of State 

Compliance 

DHS has rephrased the information 

requirement in the section to require 

any reasonable information pertinent to 

determining compliance with this part 

as requested by DHS. Also, DHS must 

now provide written notice to the State 

in advance of an inspection visit. The 

final rule provides that, in the event of 

a DHS preliminary determination that 

the State has not submitted a complete 

certification or that the State does not 

meet one or more of the minimum 

standards for compliance under this 

part, DHS will inform the State of the 

preliminary determination within fortyfive days. Finally, this section now 

includes DHS procedures for reviewing 

a Material Compliance Checklist as part 

of the procedure for granting States an 

additional extension until no later than 

May 10, 2011. 

Section 37.61 Results of Compliance 

Determination 

The final rule now states that DHS 

will determine that a State is not in 

compliance when it fails to submit the 

certification as prescribed or to request 

an extension as prescribed in the 

subpart. 

Section 37.63 Extension of Deadline 

The NPRM was not clear on the 

timing of submissions for requests for 

extension. Although proposed 

regulatory text stated that requests for 

extension must be submitted no later 

than October 1, 2007; the preamble 

requested submission of compliance 

plans and strongly encouraged ‘‘States 

to communicate their intent to certify 

compliance or request an extension by 

October 1, 2007.’’ We clarify the 

deadline for submission of requests for 

extension in the final rule, providing 

that requests for extension must be 

submitted to DHS ‘‘no later than March 

31, 2008.’’ DHS will notify a State of its 

acceptance of the extension within 

forty-five days of receipt. 

This section now includes the 

procedure for requesting an additional 

extension until no later than May 10, 

2011. States seeking an additional 

extension shall submit a Material 

Compliance Checklist to DHS no later 

than October 11, 2009, documenting the 

State’s progress in meeting certain 

benchmarks. States meeting the 

benchmarks included in this checklist 

will be granted a second extension until 

no later than May 10, 2011. 

Section 37.65 Effect of Failure To 

Comply With This Part 

DHS amended this section to provide 

that REAL ID driver’s licenses and 

identification cards issued by the State 

during the term of any extension will 

continue to be acceptable for official 

purposes until the card expires. 

Section 37.67 Non-REAL ID Driver’s 

Licenses and Identification Cards 

This section was renumbered to 

§ 37.71, consistent with the structure of 

the Part. The section was also renamed 

to ‘‘Driver’s licenses and identification 

cards issued under § 202(d)(11) of the 

REAL ID Act’’ to further clarify that 

DHS interprets this section of the Act to 

apply only to States that certify and 

DHS determines are compliant with the 

REAL ID Act, as defined by these 

regulations, and that choose to also 

issue driver’s licenses and identification 

cards under the Act that are otherwise 

not acceptable by Federal agencies for 

official purposes. 

IV. Discussion of Comments 

During the sixty-day comment period, 

DHS received over 21,000 comments on 

the NPRM. DHS received numerous 

requests to extend the comment period 

past the sixty days provided in the 

NPRM. DHS has carefully considered 

the comments and determined not to 

extend the comment period for the 

NPRM. As discussed above, under the 

REAL ID Act, Federal agencies will be 

prohibited from accepting driver’s 

licenses or other State-issued 

identification cards from States that are 

not in compliance with the 

requirements of the Act by May 11, 

2008, less than one year away. Given the 

complexity of the Act’s requirements 

and these implementing regulations, 

extending the comment period beyond 

sixty days would serve only to delay 

issuance of this final rule and deprive 

States of the information necessary for 

their DMVs to begin preparations and 

adjust their operations consistent with 

the requirements of this final rule and 

the Act. Further, in addition to the 60- 

day comment period, DHS provided 

several opportunities for additional 

public participation through such 

events as the May 1, 2007, public 

meeting in Davis, California (with 

participation also available via webcast); 

and meetings with stakeholders. We 

determined that the 60-day comment 

period and additional DHS outreach 

during the comment period provided 

adequate time for the public to consider 

and provide meaningful comment on 

the NPRM. 

We also received several comments 

that were filed well past May 8, 2007, 

the close of the comment period. As 

discussed above, given the upcoming 

May 11, 2008, compliance deadline and 

the adequacy of the sixty-day comment 


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period and public outreach, DHS has 

not accepted or considered comments 

that were filed after the May 8, 2007 

close of the comment period. Because 

DHS did not extend the comment 

period, allowing some commenters to 

file late—or to provide late filed 

supplements to their comments—would 

disadvantage those commenters who 

did not file late and would also have 

preferred additional time to file 

comments or amend the comments that 

were filed within the deadline. 

Comments that were timely filed, but 

not processed immediately by DHS due 

to technical errors by the submitter or 

DHS, are not considered to have been 

filed late and were considered in the 

development of this final rule. 

A. General Comments on the Proposed 

Regulation 

1. General Comments in Support of the 

Proposed Regulation 

Comments: Several commenters 

expressed general support for the 

proposed rule. Commenters wrote that 

the REAL ID program will provide a 

measurable and positive impact on a 

wide range of security matters, and that 

the cost estimates, methods of 

implementation, and the projected time 

frames were reasonable. One commenter 

wrote that REAL ID correctly specified 

a set of performance standards rather 

than listing static prescriptive 

standards, and that enhanced document 

security is essential to combat terrorists, 

can help improve transportation safety, 

and can combat identity theft or other 

criminal acts. 

Response: DHS agrees with these 

commenters, and believes that States 

that fully implement these rules will 

improve national security by improving 

the security and reliability of a key 

document carried by many Americans. 

Both the REAL ID Act and the REAL ID 

regulations focus on improving the 

reliability of State-issued driver’s 

licenses and identification cards and 

decreasing the likelihood that an 

individual can fraudulently obtain an 

identity document or alter a legitimate 

identity document to create a false 

identity. The availability of better and 

more reliable security documents means 

that government and law enforcement 

officials have a greater opportunity to 

prevent terrorists and other 

unauthorized persons from gaining 

access to commercial airplanes and 

Federal facilities. 

2. General Comments in Opposition to 

the Proposed Regulation 

Comment: Many commenters 

expressed general opposition to the 

REAL ID program. General comments 

included the following: DHS 

misinterpreted the REAL ID Act, the 

proposed rule is incomplete and 

problematic, adequate studies have not 

been conducted to determine that the 

program will work, the rule’s 

requirements will lead to degradation in 

the level of State DMV customer service, 

the rule would harm citizens’ privacy, 

and the rule requires additional Federal 

funding. Many commenters wrote that 

the rule fails to provide appropriate 

security, utility, or privacy and one 

commenter said the rule ‘‘is inadequate 

to meet the intent of the REAL ID Act 

and the needs of the states and citizens 

of the U.S.’’ Another commenter wrote 

that DHS ‘‘could have done a better job 

of creating a regulatory framework that 

does not increase the risk of identity 

theft nor enable widespread 

governmental and commercial tracking 

of U.S. residents.’’ Several commenters 

requested that DHS provide a revised 

NPRM reflecting comments and that 

DHS accept at least a second round of 

comments before issuing a final rule. 

Other commenters asked that public 

advocacy groups and other stakeholders 

be consulted to ensure the final rule 

properly considers citizen rights and 

interests. Several commenters, 

including States, wrote that a secure 

identity credential could increase fraud, 

identity theft, and other forms of 

misuse, including the ability to access 

confidential information, and that many 

security leaks would occur. Two 

commenters said the Federal 

government has an existing program, the 

passport program, that does everything 

the REAL ID is supposed to accomplish, 

and that it makes sense to expand the 

passport program rather than revamping 

State driver’s license requirements. 

Other commenters wrote that an 

improved system of Social Security 

number verification is a more efficient, 

less intrusive system for work status 

verification and driver’s license 

eligibility. 

Response: DHS appreciates the many 

comments received; however, DHS 

respectfully disagrees with the 

comments generally opposing the REAL 

ID program. DHS believes that both 

DMVs and the American public will 

welcome having a more secure and 

reliable form of identification, and that 

DMVs will take the necessary steps to 

ensure that their customer service 

efforts are not degraded as a result of the 

regulations. DHS strongly disagrees with 

the proposition that the rules will lead 

to an increase in identity theft, harm 

privacy, or enable the government to 

track individuals in their daily lives. To 

the contrary, the rules create an 

environment where it is far less likely 

that an individual can fraudulently 

obtain a State-issued identity document 

using another person’s identity and 

identity documents and minimizes the 

possibility that one individual can 

obtain identification documents in 

multiple names and identities. The 

privacy interests of driver’s license and 

identification card applicants are 

strengthened, rather than weakened, 

since this rule requires all States to 

protect the personally identifiable 

information that DMVs collect from 

applicants. Establishing minimum 

standards for States to issue more secure 

licenses does not confer any ability on 

the government to monitor or track 

anyone, although it does improve the 

ability of the government and private 

sector parties to rely on the identity 

document an individual presents. 

DHS does not believe that additional 

rounds of comments on the 

requirements proposed in the NPRM are 

necessary before issuing this rule. Some 

21,000 comments were filed in the 

docket covering the full range of issues. 

In addition, DHS hosted a town hall 

meeting in California to hear directly 

from the public and reconstituted the 

groups that participated in the 2005 

Department of Transportation-led 

negotiated rulemaking committee in 

order to gather input and comments 

directly from those groups. 

DHS does not agree that a passport 

issued by the Department of State 

fulfills the same function as a Stateissued driver’s license. Individuals who 

have no intention of leaving the United 

States do not need to obtain a passport 

in order to enter another country or 

reenter the United States. Any of these 

same individuals who desire to drive 

would need to obtain a driver’s license. 

DHS also disagrees with the comment 

that a Social Security number (SSN) is 

an adequate substitute for the statutory 

requirement that an individual have 

lawful status in the United States. Mere 

possession of a SSN cannot replace the 

statutory requirement that States verify 

an individual’s lawful status in the 

United States. There are individuals 

who are no longer lawfully present in 

the United States who have SSNs. 

3. Cost Considerations 

Comment: Numerous commenters 

questioned the anticipated costs of the 

REAL ID requirements. Specifically, 

commenters wrote that the costs of the 

REAL ID program would be ‘‘huge,’’

‘‘exorbitant,’’ ‘‘significant,’’ or 

‘‘excessive.’’ Some States wrote that 

estimated costs for implementing REAL 

ID were equal to or substantially 


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exceeded their current operating 

budgets for motor vehicle licensing. One 

State estimated its costs for verification 

and re-verification will be over $100 

million in the first year; another State 

estimated its costs would be $19.5 

million for initial expenses and $9 

million a year for ongoing expenses. 

Another commenter suggested that the 

burden would be particularly heavy on 

small States, which would be 

overwhelmed by the volume of queries 

they would receive each day from States 

with large populations and which 

would not have funds to improve their 

systems to handle the query volume. 

Commenters identified several features 

of REAL ID implementation that they 

believed would be the most costly, 

including verification requirements; the 

requirements for issuing driver’s license 

and identification card renewals; 

background checks for State personnel 

issuing cards; the need to upgrade 

computer systems; hiring additional 

staff; and renegotiation of existing 

contracts. 

Response: DHS has examined both the 

budgetary impacts and economic 

impacts of the proposed rule and 

understands the significance of these 

costs for States. DHS has also reviewed 

various options that would reduce the 

disproportionate burden upon small 

states but have not found a feasible 

alternative that would provide the same 

benefits but at a lower cost. 

DHS has also reviewed many of the 

high-cost options of the proposed rule 

and has significantly reduced both the 

infrastructure costs and the costs of 

reenrollment for States. As stated in 

other parts of this document, DHS 

agrees with an age-based approach and 

concludes that there is a higher risk of 

individuals under age fifty obtaining 

fraudulent identification than there is 

for those over this age limit. 

Comment: Commenters wrote that 

DHS had overestimated the benefits of 

REAL ID and that the potential benefits 

did not justify the high cost of 

implementation. One commenter stated 

that cost estimates are low given that 

DHS has ‘‘no clear idea of how to 

implement the REAL ID Act’s dictates 

and has made some unrealistic 

calculations.’’

Response: DHS understands that the 

benefits of the proposed rule on REAL 

ID are difficult to quantify and that there 

are some imperfections in the 

methodology. Commenters stated that 

DHS has overestimated the benefits 

when in fact it developed a ‘‘break-even 

analysis.’’ DHS estimated that if the 

requirements of the proposed rule 

lowered by 0.061% per year the annual 

probability of a terrorist attack that 

caused both immediate and longer run 

impacts then the quantified benefits of 

the REAL ID regulation would be 

positive. 

This ‘‘break-even’’ analysis was based 

on the rule having an impact on the 

annual probability of the U.S. 

experiencing 9/11 type attacks in the ten 

years following the issuance of the rule. 

DHS believes that the probability and 

consequences of a successful terrorist 

attack cannot be determined for the 

purposes of this analysis. However, it 

was not necessary to assume that there 

was (or is) a probability of being 

attacked in any particular year. Instead, 

the analysis examined the reduction in 

the probability of an attack so that the 

expected cost of REAL ID equaled the 

expected value of the benefits. Since it 

is extremely difficult to predict the 

probability and consequences of a 

hypothetical terrorist attack, DHS asked 

what impact would the proposed and 

final rule have to have on the annual 

probability of experiencing a 9/11 type 

of attack in order for the final rule to 

have positive quantified net benefits. 

The analysis does not assume that the 

United States will necessarily 

experience this type of attack, but rather 

is attempting to provide the best 

available information to the public on 

the impacts of this rule. 

Comment: Many commenters wrote 

that the cost of REAL ID would be borne 

initially by the States, and then passed 

on to those States’ citizens in the form 

of higher fees for driver’s licenses, 

higher taxes, or reduced services. 

Commenters wrote that higher fees 

would be paid by persons who need 

driver’s licenses but who do not fly, 

enter Federal buildings, or go into 

nuclear facilities. Another commenter 

wrote that citizens would incur large 

costs to acquire the source documents 

needed to obtain REAL ID cards. One 

commenter wrote that the costs of REAL 

ID would drain resources from other 

vital public services. One commenter 

wrote lost income would be borne by 

commercial drivers and motor carriers 

domiciled in non-compliant States, and 

that the costs to commercial drivers to 

obtain new REAL ID commercial drivers 

licenses may result in reduced trucking 

services to Federal facilities. One 

commenter wrote that the DHS cost 

estimate of $7.88 billion over ten years 

would amount to a cost of $96.25 per 

REAL ID holder. 

Response: DHS acknowledges the 

concerns of the individuals who 

commented that this rule will impose 

significant costs and believes that a 

large portion of the costs will be passed 

on from the States to the States’ REAL 

ID applicants in the form of higher fees 

for driver’s licenses. But each citizen in 

the United States, whether he or she has 

a driver’s license or not will be 

receiving security benefits as a result of 

this rulemaking. For example, the 9/11 

Commission believes that acceptable 

forms of identification will help ensure 

that people are properly identified. The 

Commission’s report, which informed 

the basis for the REAL ID Act of 2005 

said that: ‘‘At many entry points to 

vulnerable facilities, including gates for 

boarding aircraft, sources of 

identification are the last opportunity to 

ensure that people are who they say 

they are and to check whether they are 

terrorists.’’

DHS agrees that some applicants 

might incur added costs to acquire the 

source documents needed to obtain 

REAL ID cards but, overall, DHS has 

attempted to minimize the potential 

added costs while remaining true to the 

intent of the Act. People are being 

provided ample time to acquire any 

source documents that they might not 

have so the potential added costs will be 

lessened should they take advantage of 

this flexibility. Consequently, the added 

costs are expected to be small. 

With regards to commercial drivers 

and motor carriers domiciled in noncompliant States, the commenter did 

not provide any useful cost data that 

could be included in the regulatory 

analysis. This was probably due to the 

fact that it is impossible to estimate at 

this time how many states would choose 

to not participate. 

Comment: Several States wrote that 

the costs of REAL ID would divert 

money from other homeland security 

projects whether or not the States 

diverted a portion of the Homeland 

Security Grant Program funding, as DHS 

would allow them to do. States that 

raised the possibility of diverting twenty 

percent of their Homeland Security 

Grant funds wrote that a diversion 

would be impossible immediately as 

funds were already committed to other 

uses. One commenter called the use of 

DHS grants for REAL ID ‘‘at best, 

window dressing,’’ and another 

commenter called it ‘‘an empty hole.’’

An additional commenter identified 

training and equipment for rescue and 

first responder personnel as areas likely 

to suffer reduced funding. One 

commenter wrote that if REAL ID 

security measures ultimately have no 

effect, those spent dollars would have 

been spent more effectively in 

maintaining and strengthening proven 

security measures. 

Response: DHS believes that some 

commenters may have misunderstood 

DHS’s announcement about the use of 

State Homeland Security Grant Program 


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(SHSGP) funds for REAL ID purposes. 

DHS did not suggest that SHSGP funds 

would replace appropriated monies 

from Congress to help the States 

implement the rules and comply with 

the REAL ID Act. DHS and the 

Administration are continuing to work 

with Congress on the availability of 

additional funding to the States for 

these purposes. 

All homeland security funding 

decisions require trade-offs among 

various competing priorities given the 

available funding. The 9/11 Commission 

Report noted that fraudulently-obtained 

identification is equivalent to a weapon 

in the hands of a terrorist. 

4. Unfunded Mandate Reform Act 

Comment: Numerous commenters 

wrote that REAL ID is an unfunded 

mandate. The American Association of 

Motor Vehicle Administrators 

(AAMVA) wrote that past and proposed 

Federal budget submissions had fallen 

far short of securing necessary funding 

for both the Federal government and the 

States to implement REAL ID. More 

than twenty-seven States called for 

Federal funding of the REAL ID 

program. Two States suggested that 

Federal funding for REAL ID not be in 

the form of grants for which a State 

would have to submit applications, but 

rather be either a block grant or set-aside 

match for State funds. AAMVA wrote 

that because eighty percent of a SHSGP 

funding must be passed along to local 

governments, in fact a much smaller 

percentage of available DHS funding 

will be available to each State for REAL 

ID implementation. 

Response: As discussed elsewhere in 

this preamble, DHS is adopting a more 

flexible approach for States to 

implement the requirements of REAL 

ID, including a second extension period 

and age-based enrollment. This 

approach will permit States to spread 

out implementation costs over a greater 

period of time. Congress has 

appropriated $40,000,000 in grant 

funding to the States. These grants will 

be made available to the States through 

both categorical and competitive grants. 

In addition, States may utilize up to 

20% of their SHSGP funding. This 

combination of funding, flexibility and 

phasing provides the relief that States 

and other commenters are seeking. 

5. Privacy Concerns 

Comments: Several States and many 

other commenters expressed concerns 

about threats to the privacy of State 

residents who apply for REAL ID cards 

once the requirements are implemented. 

Commenters also expressed concern for 

the privacy of DMV employees who 

would be subject to background 

screening. Some commenters wrote that 

any privacy requirements must adhere 

to those of the Driver Privacy Protection 

Act and applicable State laws. Other 

commenters urged DHS to encourage 

States to meet agreed-upon privacy and 

security requirements. Another 

commenter asked that privacy and 

acceptable use policies address State 

DMV information systems, equipment, 

employees, and contractors. One 

commenter wrote that the regulations 

omit crucial privacy and security 

protections to the point that the 

proposed rule conflicts with Federal 

privacy and security principles. Several 

commenters were concerned about 

privacy protection for immigrants, 

ethnic minorities, and others who might 

be discriminated against based on use of 

the REAL ID. 

Response: DHS understands that 

commenters have many concerns that 

implementation of the REAL ID Act may 

impact the privacy of driver’s license 

and identification card holders and their 

personally identifiable information. 

DHS recognizes, however, the 

importance of privacy protection and 

has sought to address privacy in a 

comprehensive manner. First, the final 

rule requires a minimum of information 

to be collected by the States to verify 

identity for issuance of a license or 

identification card and a minimum of 

information to be printed on the card 

and in the machine readable zone. 

Second, the final rule requires the 

States to file, as part of the certification 

process, a security plan that explains 

how the State will protect the 

personally identifiable information 

collected, stored, and maintained in 

DMV records or information systems 

including a privacy policy. 

In addition to this rulemaking, DHS 

intends to issue a set of Privacy and 

Security Best Practices that are built on 

the Fair Information Principles and 

Federal Information Security 

Management Act (FISMA) standards to 

help guide the States in protecting the 

information collected, stored, and 

maintained pursuant to the REAL ID 

Act. 

DHS plans to include the following 

elements in its Privacy and Security 

Best Practices: Issuing a clear and 

understandable privacy policy to each 

card holder; providing individual access 

and correction rights for card holders; 

specifying the purpose for collecting 

personally identifiable information in 

the privacy policy and limitation of the 

use to those purposes; limiting the 

information collected for those 

purposes; limiting disclosure of the 

information except to a governmental 

agency engaged in the performance of 

official responsibilities pertaining to law 

enforcement, the verification of personal 

identity, or highway and motor vehicle 

safety, or a third party as authorized 

under the Driver’s Privacy Protection 

Act; requiring data quality standards 

and security safeguards to protect 

against loss or unauthorized access, 

destruction, misuse, modification, or 

disclosure; performing a Privacy Impact 

Assessment (PIA) to identify and 

analyze how personally identifiable 

information related to implementation 

of the REAL ID Act is collected, used, 

maintained, and protected; and 

establishing accountability for 

compliance with the State’s privacy and 

security policies to ensure that these 

best practices are fully implemented. 

Finally, DHS recognizes that States 

will also be guided by their own privacy 

laws, which may provide greater 

protections and are not preempted by 

the REAL ID Act. 

6. Concerns With the REAL ID Act Itself 

Comments: Many commenters wrote 

that the REAL ID Act has deficiencies 

that the regulatory process cannot cure. 

One State asked DHS to work with 

States to identify problematic statutory 

components and to seek Congressional 

amendments to facilitate a ‘‘rational and 

funded approach for implementation.’’

Some commenters wrote that the rule 

sets no clear minimum standards for 

States to follow. A commenter wrote 

that there were no hearings or Senate 

floor debate on the REAL ID Act; 

another commenter wrote that DHS held 

only one town hall meeting before the 

comment period ended. One commenter 

asserted that the development process 

did not recognize its tribal entitlement 

to meaningful consultation regarding 

the REAL ID regulations. 

Response: DHS was charged to issue 

regulations to implement the law that 

Congress enacted. DHS held extensive 

consultations with the States during the 

development of the NPRM and during 

the public comment period, and the 

Town Hall meeting held in California 

during the comment period was 

published in the Federal Register and 

available via the Web to a national 

audience. Over 21,000 comments were 

filed in the docket. While additional 

individuals may have preferred to 

express their comments orally at town 

hall meetings, DHS believes that the 

scope and breadth of the comments filed 

adequately informed DHS on the issues 

of concern to the commenters. DHS does 

not believe that the tribal consultation 

obligations required by Executive Order 

13175 were triggered in this rulemaking, 

as this final rule will not have a 


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substantial direct effect on one or more 

Indian tribes and will not impose 

substantial direct compliance costs on 

Indian tribal governments. Further, 

tribal governments will not be 

substantially affected as tribal members 

are licensed through State agencies. 

7. DHS Acting Outside the Scope of Its 

Authority 

Comment: Several commenters wrote 

that DHS is acting outside the scope of 

its authority, and cited several 

examples, including requiring States to 

conduct various document verifications, 

requiring States to implement motor 

vehicle facility security plans, and 

requiring States to revoke licenses 

collected by other States. Two States 

commented that requiring background 

checks for employees other than those 

engaged in manufacturing REAL ID 

cards was outside the scope of authority 

and interferes with employee 

collectively bargained rights. Several 

commenters wrote that the REAL ID Act 

constitutes a delegation of licensing 

authority to DHS. Another commenter 

wrote that Congress only intended to 

exclude illegal aliens from eligibility to 

obtain a REAL ID. 

Response: The REAL ID Act provides 

the Secretary of Homeland Security 

with authority to issue regulations 

necessary to implement the 

requirements of the Act. DHS 

understands that there is a balance 

between Executive discretion in 

interpreting the REAL ID Act through 

regulation, while also respecting the 

State’s autonomy to govern an 

inherently State function—the driver’s 

license issuance process. DHS has 

attempted to preserve State autonomy 

wherever possible, while remaining 

consistent with the Act, and believes 

these regulations represent a logical 

interpretation of the Act and 

Congressional intent. 

8. Constitutional Concerns 

Comment: Several commenters wrote 

that requiring a REAL ID for access to 

Federal courts may raise Constitutional 

issues for litigants, jurors, attorneys, 

witnesses, media, and the public. 

Another commenter wrote that requiring 

REAL ID for accessing Federal ports will 

have consequences for intrastate 

licensees attempting to conduct 

business. 

Response: DHS does not believe that 

the REAL ID Act or the implementing 

regulations will impede the public’s 

Constitutional rights. Once REAL ID is 

in effect, an individual presenting a 

driver’s license to access a Federal 

courthouse must use a REAL ID driver’s 

license to do so. However, that 

individual may present other 

documents, or may not be required to 

present identification at all, depending 

on the courthouse’s pre-existing 

identification policies. 

Comment: Several commenters wrote 

that the REAL ID rules would 

impermissibly commandeer and coerce 

State governments in service of a 

Federal objective and would prohibit 

Congress from exercising its Commerce 

Clause powers. One commenter wrote 

that courts have long recognized that 

licensing of drivers is a traditional State 

police, health, and safety function, and 

under the Tenth Amendment, such 

State authority generally is not subject 

to encroachment by the Federal 

government. 

Response: DHS recognizes both the 

important national interest in secure 

identity documents and the Federalism 

implications of the policies which 

underpin this rule. Accordingly, DHS 

has welcomed and encouraged State 

participation in this process and, where 

possible, drafted these rules in such a 

way as to maximize State discretion. 

Where the exigencies of national 

security and the need to prevent 

identity fraud have militated in favor of 

a uniform national standard (e.g., 

baseline security features on identity 

cards and background check 

requirements), DHS has, as reflected 

above, consulted with States in order to 

ensure that the uniform standards 

prescribed could be attained by the 

States and would reflect the 

accumulated security experience of 

State motor vehicles administrations. 

Comment: Some commenters wrote 

that the REAL ID Act and regulations 

violate the Constitutional right to travel 

freely from one State to another by 

denying citizens in non-compliant 

States the right to board any plane, 

interstate bus, or Amtrak train. Other 

commenters wrote that government 

initiatives conditioning the ability to 

travel upon the ‘‘surrender of privacy 

rights’’ require particular scrutiny. One 

commenter wrote that the situation is 

acute for residents of Hawaii or Alaska 

who often have no choice but to travel 

via Federally-regulated modes of travel. 

Response: DHS does not agree that the 

REAL ID Act will hinder individuals’

rights to interstate travel. The REAL ID 

Act states that a Federal agency may not 

accept State driver’s licenses or 

identification cards for official purposes 

unless a State is meeting the 

requirements of the Act. At this time, 

the definition of ‘‘official purposes’’

includes boarding Federally-regulated 

commercial aircraft; no other form of 

transportation is included. Moreover, 

travelers will be able to use 

identification other than a REAL ID 

driver’s license to board an aircraft. 

While Federally-regulated commercial 

aircraft are a mode of transportation, the 

Act only prohibit Federal agencies from 

accepting a non-REAL ID license or card 

where a State-issued driver’s license is 

presented by the individual. Where 

individuals are allowed to board aircraft 

or enter Federal facilities with 

documents other than a State-issued 

driver’s license or identification (such 

as a passport or military identification 

card), neither the Act nor these rules 

change those processes and procedures. 

Further, an individual with a Stateissued non-compliant driver’s license or 

identification card may travel interstate 

or intrastate in a commercial motor 

carrier, Amtrak train, ship, individual 

automobile, or any other mode of 

transport aside from Federally-regulated 

commercial aircraft. These 

transportation options illustrate that 

individuals’ rights to travel are not 

substantially impeded. 

Comment: Several commenters and 

States expressed concern with a State’s 

lack of authority to request or demand 

that other jurisdictions correct 

erroneous records about individuals and 

that there is no easily available process 

for resolving errors. A number of 

commenters wrote that the lack of a 

process for correcting errors in the 

REAL ID Act violates both procedural 

and substantive due process under the 

Fifth and Fourteenth Amendments. One 

commenter expressed concern with the 

requirements that licensing authorities 

maintain for ten years the name and 

photograph of individuals denied 

licenses because of suspicion of 

attempting to obtain a fraudulent 

license. 

Response: DHS recognizes that the 

provision of redress is an important 

element of any credentialing program. 

Applicants need a process by which 

they can access their records, correct 

errors, and obtain due process if denied 

a card. States already provide such a 

redress process for driver’s license 

applicants. Generally, State DMVs direct 

applicants to the appropriate Federal 

agency, SSA, to resolve SSN verification 

issues or to USCIS to resolve 

immigration status verification issues. 

SSA and USCIS have redress programs 

in place to assist individuals whose 

records are incomplete or inaccurate. 

State-to-State record checks are also 

done routinely, and when an applicant 

needs to access his or her out-of-State 

DMV record, the applicant must make 

the request directly to the State DMV. 

DHS will work with the States to inform 

the public of their ability to access and 

correct DMV records as well as records 


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held in the various Federal data 

verification systems used to implement 

this rule. 

The ten-year retention period 

proposed in the NPRM for the 

photograph and identity of individuals 

denied a license has been reduced in the 

final rule to five years. This limited 

retention is necessary to enable State 

DMVs to reduce the incidence of 

individuals who shop among DMVs 

until one issues a license. 

Comment: Three commenters wrote 

that there is no due process in 

instructing DMVs to refer an applicant 

to the local USCIS office when there is 

a non-match through SAVE. There may 

be no local USCIS office, and a noncitizen has no straightforward route to 

review and correct their records and 

USCIS lacks jurisdiction to correct 

errors made by different immigration 

agencies. One commenter wrote that 

only through the FOIA process can an 

immigrant gain access to his or her 

immigration records, and that tens of 

thousands of FOIA requests are 

currently pending. 

Response: DHS disagrees that there is 

a lack of effective due process or redress 

when there is a non-match through 

SAVE. An individual who believes that 

information about him or her in SAVE 

is inaccurate, can schedule an 

appointment online with USCIS at 

www.uscis.gov and be assigned an 

appointment at the appropriate USCIS 

office based on the individual’s 

residential zip code. These 

appointments afford an opportunity to 

meet with an Immigration Officer faceto-face to resolve any non-asylum 

related issues relating to a current or 

pending immigration case. Minimal 

information, including an Alien 

Registration Number or Receipt Number 

is required to schedule an appointment. 

Comment: Several commenters wrote 

that REAL ID has the potential for 

fostering discrimination, particularly 

against non-citizens. One commenter 

urged DHS to ensure REAL IDcompliant cards are all accepted 

equally, without ‘‘geographic 

discrimination.’’ One commenter wrote 

that REAL ID will cause discrimination 

against U.S. citizens who ‘‘look’’ or 

‘‘sound’’ foreign. This commenter wrote 

that DMV employees must make subtle 

judgments about who is a citizen. 

Another commenter wrote that noncitizens and foreign nationals who are 

in the United States for work or study 

will be singled out and that renewing a 

document will be difficult because DMV 

employees will not understand the 

complexities of immigration law. One 

commenter urged DHS to promulgate 

rules prohibiting discriminatory 

behavior and creating penalties for DMV 

staff who discriminate against 

individuals. 

Response: DHS believes that the 

States will take adequate measures to 

prevent discrimination and is unable to 

create private rights of action for the 

behavior of DMV employees. DHS 

disagrees that citizens will be treated 

differently based on their ‘‘looks’’ or 

‘‘sounds’’ since all persons seeking to 

obtain a REAL ID-compliant driver’s 

license or identification card have to 

establish their identity, date of birth, 

and lawful status in the United States. 

Furthermore, State DMVs already work 

with immigration documents and 

questions of citizenship and 

immigration status under their 

applicable State laws and have 

developed increasing familiarity with 

this subject already, without evidence of 

discriminatory practices in so doing. 

9. REAL ID Will Not Make the Nation 

Safer 

Comment: Commenters wrote that 

terrorist intentions cannot be predicted 

based on identification and that REAL 

ID will not prevent determined bad 

actors from using a compliant REAL ID 

to gain access to Federal buildings, 

nuclear facilities, and aircraft. A number 

of commenters wrote that it is not clear 

whether REAL ID will enhance the 

nation’s security or create new 

opportunities for those seeking to 

exploit the nation’s security. 

Commenters also wrote that 

centralization of personal data would 

create a greater security risk and may 

raise demand and value of a counterfeit 

document. Some commenters wrote that 

the proposed regulations would not 

have prevented the 9/11 terror attacks 

since all but one of the hijackers could 

still have obtained a State driver’s 

license. One commenter said that REAL 

ID is predicated on a flawed belief that 

only ‘‘outsiders’’ intend to harm the 

United States, yet U.S. citizen 

‘‘insiders’’ have committed terrorist 

acts. 

Response: The commenters are correct 

that the REAL ID rules cannot 

completely eliminate the possibility that 

an individual will commit an act of 

terrorism inside the United States. 

However, by improving the security and 

reliability of State-issued identification 

documents, the rules substantially 

increase the ability of the government 

and law enforcement to identify with 

greater accuracy an individual at a 

check point or screening opportunity. 

Furthermore, the rules minimize the 

possibility of an individual possessing 

multiple documents, as some of the 9/ 

11 terrorists did. The 9/11 Commission 

and Congress have concluded that this 

ability may prevent or deter future acts 

of terrorism. 

It is incorrect to assume that the REAL 

ID rules could have had no impact on 

the 9/11 terror attack. As described in 

great detail in the 9/11 Commission 

Report, the ability of the terrorists to 

easily obtain multiple, legitimate 

identity documents facilitated their 

ability to move about the country and to 

board the ill-fated aircraft with minimal 

scrutiny. Under this final rule, it will be 

significantly more difficult for an 

individual to use a false name or 

provide fraudulent documents to obtain 

an identification that can be used for 

purposes of boarding a commercial 

airplane. Therefore, the final rule makes 

it less likely that a terrorist could 

circumvent watch-list screening 

processes and security procedures (as 

upgraded or developed post-9/11) and 

board a commercial airplane. 

Further, several of the terrorists no 

longer had lawful status in the United 

States. Under the REAL ID Act and this 

final rule, those individuals would now 

be unable to obtain REAL ID driver’s 

licenses or would only obtain a 

temporary driver’s license that clearly 

indicates on its face an expiration date 

tied to the expiration of the holder’s 

status. 

10. REAL ID Will Result in Persons 

Driving Without Licenses and Auto 

Insurance 

Comment: Several commenters wrote 

that REAL ID, and the weeks it can take 

to collect documents needed to replace 

lost or stolen licenses, would result in 

illegal immigrants driving without a 

license and auto insurance, and this 

would present health and safety risks on 

the roadways. 

Response: DHS does not believe that 

the implementation of the REAL ID 

requirements will result in persons, 

particularly illegal aliens, driving 

without a license and auto insurance 

any more than may already be 

occurring. Most States already require 

the collection and submission of 

particular documents in order to replace 

lost and stolen licenses. 

11. REAL ID Will Place a Heavy Burden 

on State DMVs 

Comment: Many States and AAMVA 

wrote that if States are to maintain their 

present levels of service while 

incorporating REAL ID, they will need 

to hire additional employees, increase 

service hours, expand or increase 

facilities to accommodate customer 

volume, purchase additional equipment 

to support personnel, create and 

implement public education campaigns 


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to inform customers, and anticipate and 

handle increases in customer inquiries. 

The commenters recommended several 

DHS actions, including coordinating 

between DHS and DOT’s Federal Motor 

Carrier Safety Administration (FMCSA) 

to reassess their approach to funding 

REAL ID requirements; prohibiting 

Federal agencies from charging 

transaction fees for verification; 

coordinating among DMVs, the National 

Association for Public Health Statistics 

and Information Systems (NAPHSIS), 

and State vital record agencies to 

provide reliable data and acceptable 

fees; requiring States to employ 

electronic verification systems only as 

they become available; and 

consolidating and synchronizing system 

development schedules. Other 

commenters recommended changes to 

the enrollment and renewal processes, 

including allowing for waivers of 

verification requirements for certain 

categories of persons whose 

identification had already been vetted 

by the Federal government, allowing 

transfers of authorization from State to 

State of persons with valid REAL ID 

identification cards, and exempting 

certain segments of the population from 

REAL ID requirements. 

Response: Based on these comments, 

DHS is taking several measures to 

reduce the impact of the rule. First, 

States meeting specific DHS 

benchmarks for progress toward REAL 

ID compliance will qualify for 

additional extensions until no later than 

May 10, 2011. Second, DHS is adopting 

an age-based approach to REAL ID 

implementation. The rule requires 

individuals born after December 1, 1964 

to enroll and receive REAL ID cards 

prior to December 1, 2014, in order for 

those cards to be accepted for official 

purposes. Individuals aged fifty or older 

on December 1, 2014 will not be 

required to enroll until December 1, 

2017. After December 1, 2017, all 

individuals will have to possess REAL 

ID cards in order for those cards to be 

accepted for official purposes. This 

timeline will substantially reduce the 

impact of REAL ID on DMV operations 

and budgets. 

Comment: Many States and 

commenters wrote that REAL ID will 

significantly increase service times at 

DMVs, resulting in a degradation of 

service. AAMVA estimated that DMV 

workloads will increase by 132 percent 

and that transaction times for license 

renewals will double. One commenter 

wrote that central issuance would 

impose considerable burdens on 

citizens of rural, low-density states. 

Several States wrote that the inability to 

use the Internet would impose a 

significant burden on DMV operations; 

one State wrote that the elimination of 

telephone and mail-in address changes 

would force approximately 400,000 

additional persons into its DMV offices. 

Commenters also wrote that State DMVs 

will be required to add new staffing and 

infrastructure and, at the same time, 

replace or reconfigure their existing 

offices. States commented that hundreds 

of new employees will need to be hired 

and new costs incurred to obtain 

fingerprinting and background and 

financial checks of DMV staff. A few 

States noted that they will have to 

renegotiate contracts for services such as 

card printing or purchase new printers. 

Response: DHS understands the 

commenters’ concerns and agrees that 

forcing the entire driver’s license and 

identification card holder population 

into a compressed timeframe would 

likely result in increased DMV service 

times and a general degradation of 

services. The final rule permits, for 

example, additional time for enrollment, 

remote license transaction processing, 

and eliminates the necessity of inperson DMV visits for address changes. 

Further, there is no requirement for 

financial background checks or central 

issuance of licenses, although a number 

of States have adopted central issuance 

as a best practice. 

Comment: Several commenters wrote 

that State DMV officials will require 

extensive training in recognizing the 

many types of immigration documents 

and statuses that applicants may 

present. One commenter wrote that 

REAL ID would change State DMVs 

‘‘into a wide-ranging enforcement agent 

of the Federal government in areas from 

immigration rules to Social Security 

fraud.’’ Commenters also wrote that 

State DMVs will be required to add new 

staffing and infrastructure and, at the 

same time, replace or reconfigure their 

existing offices. A few States noted that 

they will have to renegotiate contracts 

for services such as card printing or 

purchase new printers. 

Response: DHS disagrees that the 

REAL ID Act or its implementing rules 

would result in DMV employees acting 

as enforcement agents. The rules require 

that the DMV issue compliant licenses 

only to individuals lawfully present in 

the United States and whose Social 

Security Number can be verified with 

the Social Security Administration. DHS 

also believes that the rules simplify the 

handling of immigration-related issues, 

which DHS concedes is a very 

complicated area. DMV officials are 

required to verify a non-citizen’s lawful 

status with DHS. The SAVE system 

administered by USCIS permits DMVs 

‘‘one stop shopping’’ to verify an 

individual’s lawful status in the United 

States. Furthermore, many States 

provide extensive document training to 

their personnel to assist in identification 

and authentication of valid documents. 

Furthermore, State DMVs already work 

with immigration documents and 

questions of immigration status under 

their applicable State laws and have 

developed increasing familiarity with 

this subject. 

Comment: Commenters wrote that 

State DMVs will be required to 

undertake other activities that they do 

not currently perform. One State wrote 

that by some State laws, driver’s 

licenses and State ID cards are issued by 

two separate government agencies. 

Several States said they would need to 

acquire new or enhanced records 

management systems. Other States 

wrote that they will have to physically 

rearrange their facilities to comply with 

the REAL ID requirement to maintain a 

photo of everyone who applied for a 

license. 

Response: While there may be 

activities DMVs may now need to 

perform in order to issue more secure 

driver’s licenses and identification cards 

under REAL ID, Congress determined 

that these activities are necessary in 

order to ensure more secure and reliable 

forms of identification. Understanding 

that these new functions may cause 

strain on some DMV facilities, the final 

rule provides flexibility and additional 

time for states to implement these 

activities. 

12. Those Without Access to Required 

Documents 

Comment: Several commenters wrote 

that REAL ID would impose significant 

burdens on low-income individuals in 

the form of significantly higher fees for 

licenses and ID cards, higher additional 

costs to obtain necessary underlying 

documents, and extra time from work, 

potentially involving lost wages, to 

apply for REAL ID cards. One 

commenter wrote that a consequence of 

these burdens could be a likely increase 

in counterfeited ID cards and large 

numbers of individuals who lack 

Federally-compliant identification. 

Several commenters stated that certain 

groups would be unfairly affected by the 

requirement to produce certain 

documents, including foreign nationals, 

Native Americans, domestic violence 

victims, the homeless, the elderly, and 

military personnel. In addition, 

commenters described circumstances 

that could impede individuals’ access to 

required documents, such as natural 

disasters. 

Response: DHS believes that the 

REAL ID Act does not have a 


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disproportionate impact on certain 

groups. There is no evidence that many 

of these groups lack the documents 

required to establish an individual’s 

name, date of birth, SSN, and lawful 

status. Should States determine that the 

economically disadvantaged individuals 

are experiencing a hardship in obtaining 

the necessary documents or cannot 

afford the license fee established by the 

State, nothing in the rule precludes a 

State from offering the driver’s license 

or identification card or copy of a birth 

certificate at a reduced cost or waiving 

the fee altogether. In addition, the final 

rule enables States to establish an 

exceptions process for a variety of 

situations and circumstances, including 

circumstances where a particular suite 

of documents are unavailable following 

a natural disaster. 

13. REAL ID Will Be a Burden to EndUsers 

Comment: Two commenters wrote 

that the responsibility for validating 

REAL ID cards is a government function 

and should not be delegated to air 

carriers. Instead, DHS should provide 

‘‘readers,’’ similar to those used by 

Immigration and Customs Enforcement, 

for use at airports. Two commenters 

requested the rule make clear that the 

current option regarding individuals 

submitting to a more extensive physical 

search rather than showing ID before 

passing through airport security will not 

be affected by the REAL ID Act. 

Response: Neither the NPRM nor this 

final rule govern what documents 

should be accepted or procedures 

followed at airports and Federal 

facilities when an individual is unable 

to present a REAL ID-compliant 

document as his or her form of 

identification. DHS does not agree with 

the comment that validating a REAL ID 

is exclusively a government function, 

and believes that a wide variety of 

entities would want to validate a REAL 

ID document before accepting it as a 

valid form of identification. 

Comment: Another commenter asked 

how end-users could continue routine 

functions if, after 2013, State-issued 

driver’s licenses do not meet REAL ID 

standards, since REAL ID would be 

required for access to nuclear facilities. 

If a State is not in compliance or elects 

not to participate in the REAL ID 

program, access by persons with 

licenses from those States would be 

prohibited, and the ability of the plants 

to function could be seriously impaired. 

A commenter mentioned that an access 

authorization program supervised by the 

Nuclear Regulatory Commission is 

already in place. One commenter wrote 

that while commercial nuclear power 

plants are licensed by the NRC, they are 

privately owned and operated and 

security is the responsibility of the 

owner/operator, not the Federal 

government; therefore, they should be 

exempted from the final rule 

requirements. 

Response: Since the REAL ID Act 

specifically included access to a nuclear 

facility as an example of an ‘‘official 

purpose,’’ DHS cannot simply exempt 

nuclear power plants from the scope of 

the rules. DHS agrees with the 

commenter that access authorization 

programs supervised by the Nuclear 

Regulatory Commission may provide 

sufficient safeguards concerning access 

to nuclear facilities. The NRCsupervised programs may set forth 

alternative procedures or acceptable 

forms of identification for persons 

seeking access to a nuclear facility; 

however, if an individual is presenting 

a driver’s license or State-issued 

identification card, it must be REAL IDcompliant pursuant to the REAL ID Act. 

Comment: One commenter expressed 

concern about the impact of REAL ID on 

commercial truck drivers, and suggested 

that drivers without REAL ID 

identification cards would be far less 

valuable to carriers. One commenter 

wrote that motor carriers domiciled in 

non-compliant States would be at a 

severe disadvantage in finding drivers, 

and commercial drivers themselves will 

have to absorb the additional costs of 

REAL ID, including increased fees to 

obtain licenses and lost income. 

Response: Any additional fees that 

DMVs may charge to obtain a REAL ID 

document will not fall 

disproportionately on commercial 

drivers. Nothing in the rules precludes 

companies employing commercial 

drivers from subsidizing the costs 

incurred by the drivers they employ. 

Furthermore, a REAL ID driver’s license 

is not the sole document a commercial 

driver could use to access a Federal 

facility. Since a Federal facility may 

accept other forms of identification or 

establish alternative procedures to 

admit individuals with non-compliant 

licenses to Federal facilities, DHS does 

not believe that commercial driver’s 

license holders will be disadvantaged by 

living in a State that chooses not to 

comply with the REAL ID requirements. 

B. Scope, Applicability, and Definitions 

Comment: Two State commenters and 

the AAMVA requested clarification of 

the terms verification, authentication, 

and validation. Two commenters asked 

for a clear definition of the term 

‘‘Federal facility.’’ One commenter 

wrote that it is a statutory requirement 

to consult with the U.S. Department of 

Transportation in developing new 

definitions for driver licensing terms. 

Commenters also requested clarification 

regarding what age individuals will be 

required to obtain a REAL ID. It was 

suggested that the age requirement 

should be consistent with the age 

airlines require passengers to have their 

own identification documents. One 

commenter expressed the need to 

inform the public, in detail, how 

individuals will be impacted by not 

obtaining a REAL ID. 

Response: DHS agrees that the term 

‘‘verification’’ should be clarified. The 

final rule defines ‘‘verify’’ to include 

two processes: Ensuring that the source 

document is genuine and has not been 

altered and that the identity data 

contained on the document are valid. 

DHS does not believe that the term 

Federal facility needs further definition 

and cannot predict how individuals 

without a REAL ID-compliant driver’s 

license or identification card (either 

through their own choice or because a 

State does not issue compliant 

documents) will be impacted. DHS 

notes that individuals without a REAL 

ID-compliant document will still be able 

to enter Federal facilities and board 

commercial aircraft, and these rules 

cannot determine what alternative 

documents are acceptable for those 

purposes. DHS believes that each State 

can determine the appropriate 

minimum age to issue a REAL IDcompliant driver’s license or 

identification card to its residents and 

does not believe that a single Federal 

standard is necessary in this area. 

1. Definition of ‘‘Official Purpose’’

Comment: Two States wrote that since 

many Federal areas require 

identification, all ‘‘official purposes’’

must be clearly stated in the rule so that 

States can make informed decisions on 

whether to be REAL ID-compliant based 

upon the impact on the State budget 

versus the negative convenience impact 

on its citizens. Numerous commenters 

wrote that the definition of ‘‘official 

purpose’’ captures the requirements of 

the REAL ID Act and they are opposed 

to expanding the definition. 

Commenters stated that, should DHS 

decide on expanding the definition of 

‘‘official purpose,’’ it should not be done 

without an open comment period. One 

commenter wrote that DHS has 

arbitrarily chosen to restrict the required 

presentment of REAL ID-compliant 

documents to a much smaller set of 

official uses than was contemplated by 

Congress, and this contradicts and 

undermines DHS’s statutory mandate to 

enforce Federal immigration law. One 

State suggested that DHS create a list of 


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applicable Federal facilities. One 

commenter voiced concern over 

possible expansion of the definition to 

include Federally licensed firearms 

dealers and that residents of noncompliant States could be blocked from 

purchasing firearms. One commenter 

encouraged DHS to consider all the 

ways in which REAL ID could be used 

and not limit it to boarding of Federallyregulated commercial aircrafts, entering 

of Federal facilities, and nuclear power 

plants. 

Response: DHS agrees with those 

commenters who noted that the 

proposed definition of ‘‘official 

purpose’’ is consistent with 

Congressional intent. DHS is neither 

expanding nor limiting the definition 

further in this rule. DHS will continue 

to consider additional ways in which a 

REAL ID license can or should be used 

and will implement any changes to the 

definition of ‘‘official purpose’’ or 

determinations regarding additional 

uses for REAL ID consistent with 

applicable laws and regulatory 

requirements. DHS does not agree that 

it must seek the approval of Congress as 

a prerequisite to changing the definition 

in the future (except of course to remove 

one of the three statutorily-mandated 

official purposes) as § 201(3) of the Act 

gives discretion to the Secretary of 

Homeland Security to determine other 

purposes. 

DHS does not intend that a REAL ID 

document become a de facto national ID 

based on the actions of others outside of 

DHS to limit the99ir acceptance of an 

identity document to a REAL IDcompliant driver’s license or 

identification card. 

Comment: Commenters proposed 

other acceptable documents, including 

over-the-counter interim identification 

cards and tribal identification 

documents that should be accepted for 

official purposes. Another State noted 

that Canadian citizens drive to the 

United States and fly out of local 

airports and that it would benefit them 

economically to accept Canadian 

passports as identification cards for 

Federal purposes. AAMVA wrote that 

for States choosing not to comply with 

REAL ID, an alternate form of 

identification is essential to ensure that 

commercial carriers and drivers who 

deliver to Federal facilities continue to 

have unimpeded access to these 

facilities and that interstate commerce is 

not impeded. One commenter wrote that 

tribal ID issues must be incorporated 

into the regulation at the outset. One 

commenter wrote that DHS’s 

disallowing of Transportation Worker 

Identification Credential (TWIC) as an 

alternative to a REAL ID document 

because of ‘‘slow progress’’ in 

implementing the TWIC program will be 

invalid if DHS extends REAL ID 

implementation. The commenter 

suggests permitting use of TWIC 

because like REAL ID, TWIC also is a 

Federally-vetted identification card. 

Response: As noted in other 

responses, the REAL ID rule does not 

control what other, if any, alternative 

documents can be accepted by Federal 

agencies where an individual seeks to 

present an identification document 

other than a State-issued driver’s license 

or identification card (which, under the 

Act and this final rule, must be REAL 

ID-compliant). 

2. Other Definitions 

Comment: One State asked for several 

amendments to the rule definitions. 

Specifically, the State asked that 

‘‘ability to affect’’ be clarified to mean 

‘‘direct ability to affect’’; that digital 

photograph should read as ‘‘a digitally 

printed color reproduction of the face of 

the holder of the license or ID card’’; 

that a definition be added for foreign 

passports; clarification that providing a 

foreign passport with a valid visa is an 

acceptable document for validating a 

REAL ID; clarification that ‘‘principal 

residence’’ is not a residency 

requirement, but merely defines 

principal address; and clarification that 

Secretary means ‘‘Secretary of the U.S. 

Department of Homeland Security.’’

AAMVA suggested that the term 

‘‘reissued’’ be amended to include ‘‘only 

when material changes are required 

such as name changes.’’

Response: DHS agrees that the term 

‘‘principal residence’’ needs additional 

clarification and has defined the term in 

the rule to mean the location where a 

person is currently domiciled (i.e., 

presently resides even if at a temporary 

address) in conformance with the 

residency requirements of the State of 

domicile, if such requirements exist. 

DHS agrees with the comment regarding 

material changes and the rule now states 

that a State may conduct a remote 

reissuance if State procedures permit as 

long as there has been no material 

change in the applicant’s information 

since prior issuance. DHS believes that 

the definitions of ‘‘ability to affect’’ and 

‘‘foreign passport’’ do not need further 

clarification. DHS decided against the 

proposed definition of ‘‘digital 

photograph’’ since certain high-security 

features work best with a black and 

white photograph and DHS does not 

want to preclude States from using such 

technology to secure their licenses. 

C. Compliance Period 

Comment: Many commenters, 

including at least twenty States and 

AAMVA, wrote that the compliance 

period is too short and is impossible to 

meet. Specific reasons cited for why the 

compliance period is too short included 

the following: The compliance deadline 

fails to take into account the States’

cycles for valid driver’s licenses and 

identifications; systems that DMVs must 

use to verify documents under REAL ID 

either do not exist or are not 

operational; the compliance deadline 

compels States to take on the unfunded 

expenses of hiring and training more 

staff and making significant 

infrastructure changes, waiting times for 

customers at DMVs will increase, the 

compliance deadline reflects a failure to 

understand how State legislatures work 

and how complex the process is for 

issuing State driver’s licenses and 

identification cards, and compliance 

deadline leaves insufficient time for 

States to appropriate funds for the cost 

of implementing REAL ID. Commenters 

also wrote that States have no incentive 

for requesting such extensions, and 

several State legislatures have declined 

to even attempt compliance with the 

Act or the rule. 

Response: DHS agrees with the 

commenters that States would be unable 

to fulfill the entire range of REAL ID 

regulatory requirements by May 11, 

2008. Therefore, DHS is taking several 

measures to reduce the impact of the 

rule. First, States meeting specific DHS 

benchmarks for progress toward REAL 

ID compliance will be granted 

additional extensions until no later than 

May 10, 2011. Second, DHS is adopting 

an age-based approach to REAL ID 

enrollment and will only require 

individuals born after December 1, 1964 

to enroll by December 1, 2014, in order 

to receive cards acceptable for official 

purposes on December 1, 2014. Thus, 

individuals aged fifty or older on 

December 1, 2014, will not be required 

to be enrolled until December 1, 2017. 

These measures will substantially 

reduce the impact of REAL ID 

enrollment on DMV operations and 

budgets. 

DHS has chosen this approach as the 

most effective and expeditious way to 

achieve the purposes of the Act. DHS 

believes that this approach balances the 

strong national security objective of 

improving the reliability of 

identification documents presented for 

official purposes, including the 

boarding of commercial aircraft, with 

the needs of the States to spread out 

their compliance costs over a greater 

period of time and to obtain the 


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necessary legal and budgetary approval 

from within their State to comply with 

the regulations. 

Comment: Many commenters and 

States did not agree on the proposed 

compliance period and suggested 

additional ideas, from basing the 

compliance period on the natural 

license expiration date to extending 

compliance through 2018. Two 

commenters wrote that a six-month 

planning deadline after possible 

publication of a final rule is unrealistic, 

and once there are operational systems 

available to all jurisdictions for 

implementing REAL ID, States should 

have at least one year to connect to 

those systems before issuing compliant 

cards. Other commenters suggested 

delaying the full implementation date 

by some other term of years 

commensurate with State driver’s 

license renewal periods. Another 

commenter wrote that State legislatures 

need two years after issuance of a final 

rule to enact enabling legislation. One 

State suggested a four-year compliance 

delay, as the State has a lack of funding; 

other States proposed a delay of five 

years following final rule publication 

because those States will not complete 

legislation and budget actions before 

that time. One commenter wrote that the 

compliance date would result in every 

State requesting a waiver and 

compressing the enrollment process 

from five years to something less. 

AAMVA suggested a ten-year 

compliance period, to 2018, and also 

recommended that DHS avoid setting 

the implementation period until there 

are systems for verification accessible in 

all jurisdictions. 

Response: As noted above, DHS 

agrees that the compliance date should 

be extended and therefore has extended 

the enrollment deadline to December 1, 

2014, for drivers after December 1, 1964 

(that is, under age fifty), and to 

December 1, 2017 for all other drivers as 

described above. 

Comment: Commenters wrote that 

DHS should permit States to grandfather 

into REAL ID compliance those 

individuals who have held a driver’s 

license for ten years. Another 

commenter wrote that DHS should give 

States the flexibility to delay reverifying certain populations so that 

States maximize their resources and 

avoid severe service disruptions. Where 

a State can verify customer data before 

issuing a license or identification 

document, DHS should permit States to 

use ‘‘alternative renewal processes’’

during the REAL ID enrollment period. 

Another commenter wrote that a State 

should be able to waive verification 

requirements for members of the 

military, Federal employees, and 

passport holders who already have been 

through a Federal vetting process. 

Another commenter proposed 

grandfathering in any State that can 

demonstrate that its process for issuing 

driver’s licenses or identification 

documents is similar to REAL ID. 

Response: The REAL ID Act does not 

authorize Federal agencies to accept 

non-compliant cards from specific age 

groups or other populations through a 

grandfather clause. DHS, as discussed 

above, recognizes the operational 

burden on States if they were required 

to reenroll all licensed drivers by the 

initial proposed enrollment date of May 

2013. DHS has determined, based on 

comments received requesting 

deferments or exemptions for 

populations based on age and a 

statistical analysis of TSA incident 

report data, that an age-based 

enrollment would provide States with 

the most reasonable implementation 

options. 

DHS has determined that, based on 

TSA incident report data it has 

reviewed, that a logical dividing point 

for age-based enrollment would be fifty 

years of age. As a result, the rule 

requires the States to focus first on 

individuals born after December 1, 

1964, when issuing REAL ID cards. 

These individuals will be under fifty 

years of age on December 1, 2014. DHS 

has determined that deferring the REAL 

ID enrollment requirements until 

December 1, 2017, for those individuals 

born on or before December 1, 1964, 

will relieve the States of some 

operational burden associated with relicensing their license holders. This 

provision will enable States to extend 

the enrollment of this lower-risk 

population until December 1, 2017. 

This approach is based on a review of 

several data sets that correlated age and 

the propensity to commit a terrorist act 

and age and the likelihood to commit a 

criminal act. 

Depending on the specific data set 

examined, different age cutoffs starting 

at the age of thirty-five would be 

appropriate for the REAL ID final rule. 

Of the several data sets that were 

examined, the best data set is one from 

TSA, because it is the only one that 

shows a correlation between activities 

occurring within TSA’s purviews, an 

incident resulting in a arrest, the age of 

the individual and the use of a 

fraudulent identification. 

For this final rule, data was collected 

and analyzed on the total number of 

TSA incidents involving the use of 

fraudulent identification representing 

the time period from October 1, 2004 

through July 25, 2007. The data was 

then sorted and those potential 

incidents involving the use of a 

fraudulent identification (using the key 

words fraud, false, fake, and ID) were 

extracted. Each incident report was read 

and those incidents that were not 

germane to the REAL ID rulemaking 

were purged. Finally, DHS, using both 

the raw data as well as the calculated 

rates (based on the number of 

individuals flying), grouped the 

incidents into different age groups. The 

results were a data set that correlated 

one of the primary requirements of this 

rulemaking (the need to present an 

appropriate identification prior to 

boarding an airplane) to the use of a 

fraudulent identification by the age of 

an individual. 

A total of 98 incidents of where an 

individual was arrested that involved 

the use of a fraudulent identification 

was included in this group. The age of 

the individuals arrested was available 

for 86 of the arrests. The weighted mean 

age of an individual arrested was 32 

years of age with a standard deviation 

of 8.95 years. This means that about 

two-thirds of those individuals who 

were involved in an incident where an 

arrest occurred were between the ages of 

23 and 41. About ninety-five percent 

were between the ages of 14 and 50. 

Using this data, DHS estimated the 

percentage of individuals who would be 

prevented from using a fraudulent 

identification (as a result of the REAL ID 

rule) for the age cutoffs 41, 45.5, and 50. 

Based upon a normal distribution, 

66.7% of all individuals using a 

fraudulent identification would be 

between the ages of 23 and 41 (1 

standard deviation) and 95% of all 

individuals would be between the ages 

of 41 and 50. These statistics were then 

used to estimate the risks associated 

with the age cutoffs of 41, 45.5, and 50. 

An age cutoff of 41 would allow DHS to 

potentially prevent the likelihood of 

83% of all individuals from using a 

fraudulent identification. But as a 

means of providing additional national 

security, the final REAL ID rule would 

not have prevented 17% of the 

individuals from using a fraudulent 

identification. 

With a cutoff of age 50, DHS would 

potentially prevent the likelihood of 

97% of all individuals from using 

fraudulent identification. But as a 

means of providing additional national 

security, the final REAL ID rule would 

not have prevented 3% of the 

individuals from using a fraudulent 

identification. Since the age cutoff 45.5 

is the midpoint of the ages 50 and 41, 

DHS estimated the likelihood that REAL 

ID would prevent the use of a fraudulent 

identification, by using the averages for 


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the age cutoffs 50 and 41 and found that 

an age cutoff of 45.5 would prevent the 

likelihood of 90% of all individuals 

from using a fraudulent identification. 

But as a means of providing additional 

national security, the final REAL ID rule 

would not have potentially prevented 

10% of the individuals from using a 

fraudulent identification (See Table 

Below). 

TABLE 1.—RISKS ASSOCIATED WITH

DIFFERENT AGE CUTOFFS

Risks associated with different age cutoffs 

Age cutoff 

Potential 

percentage 

number of 

incidents 

prevented 

(%) 

Potential 

percentage 

number of 

incidents 

not 

prevented 

(%) 

41 ...................... 83 17 

45.5 ................... 90 10 

50 ...................... 97 3 

The TSA data was analyzed even 

further by stratifying the universe of 

these 86 arrests into three categories. 

The categories are (1) Arrests where a 

fraudulent identification was 

discovered, but the fraudulent 

identification was not the reason that 

the individual became a suspect; (2) 

arrests where the individual was a TSA 

Selectee and during the process, a 

fraudulent identification was 

discovered; and (3) arrests where the 

individual became a suspect because of 

his/her use of that identification and the 

use of a fraudulent identification was 

the cause for the arrest. Because DHS 

was not able to determine a priori the 

characteristics of the population as a 

whole as to who uses a fake 

identification and who does not (in 

order to determine an appropriate age 

cutoff), the best that can be done is to 

examine the ages of those who were 

arrested when the use of a fraudulent 

identification was the cause of the arrest 

and compare that population to those 

who were arrested where a fraudulent 

identification was discovered at the 

time of the arrest but the fraudulent 

identification was not the reason to 

suspect the individual. The results show 

that the means of each population are 

not statistically different from each 

other. In other words, we cannot say 

that the samples are from different 

populations and we accept the null 

hypothesis. 

Comment: One commenter wrote that 

the waiver process by which a State may 

request an extension of the compliance 

deadline to December 31, 2009 is 

acceptable, as it gives States the time 

they need to plan, budget, and 

implement the regulations. Another 

commenter wrote that compliance 

related to the verification of lawful 

status of aliens could be implemented 

by all 56 states and territories by the 

May 11, 2008 deadline, and that there 

is no rational basis to extend the 

specific deadline for SAVE compliance. 

One commenter wrote that DHS should 

institute a formal safe harbor so that a 

State may be deemed compliant if it is 

making reasonable progress toward 

implementing REAL ID. One commenter 

wrote that when there is a legitimate 

reason to grant an extension for one 

State, it should apply to all states. 

Another commenter wrote that a State’s 

request for an extension should be 

deemed justified in the absence of 

extraordinary circumstances. One 

commenter wrote that DHS has 

demonstrated flexibility by allowing 

States to delay implementation and 

creating a petition process for States 

needing more time, and the commenter 

encouraged DHS to continue 

collaborating so that States have the 

necessary flexibility to comply with the 

law. 

Response: Although the above 

comments indicated that certain aspects 

of the proposed rule do not require an 

extended compliance period, all the 

commenters observed that States would 

be unable to meet the overall 

compliance deadline proposed in the 

NPRM. As noted earlier in this 

preamble, in addition to the extension 

proposed in the NPRM through 

December 31, 2009, DHS is allowing a 

second extension request valid until no 

later than May 10, 2011. 

Also as noted earlier in this preamble, 

DHS has chosen this approach as the 

most effective and expeditious way to 

achieve the purposes of the Act. DHS 

believes that this approach balances the 

strong national security objective of 

improving the reliability of 

identification documents presented for 

official purposes, including the 

boarding of commercial aircraft, with 

the needs of the States to spread out 

their compliance costs over a greater 

period of time and to obtain the 

necessary legal and budgetary approval 

from within their State to comply with 

the regulations. Furthermore, because 

some States are uniquely situated and 

have taken different steps to come 

potentially closer to compliance with 

the REAL ID Act than other States, DHS 

does not believe that ‘‘one size fits all’’

when it comes to the use of the 

Secretary’s extension authority. 

D. Privacy Considerations 

Comment: DHS received numerous 

comments regarding the need to protect 

the privacy of REAL ID cardholders. The 

comments raised a wide range of 

concerns including the creation of a 

national ID; establishment of a Federal 

database on all ID holders; the uses of 

the ID; the need to set specific standards 

to protect privacy, including addressing 

data storage, access rules, safeguarding 

the data, and retention period for the 

data; the need to provide a redress 

process; limiting Federal access to the 

data; who should operate or govern the 

query system; and best practices for 

privacy protection of the data. AAMVA 

also commented that the States are 

committed to protecting privacy and 

that they are prepared to address 

privacy in their security plans and many 

already have such plans in place. 

At least one State and several other 

commenters, including NASCIO, 

expressed concerns about the 

development, governance, and 

protection of privacy in Federal 

reference databases. NASCIO 

recommended collective State 

governance. Many commenters wrote 

that State information security requires 

extreme caution, given that exposing 

personal information in untested 

databases would result in great harm if 

a security breach occurred. 

Response: DHS recognizes that 

protecting the privacy of REAL ID 

cardholders is a prerequisite to 

obtaining the public’s trust in the REAL 

ID card. DHS has addressed those 

concerns in the final rule to the full 

extent of its authority by mandating 

protections for the personally 

identifiable information DMVs collect, 

store, and use pursuant to the REAL ID 

Act and its implementing regulations. 

1. Privacy Concerns Regarding a 

National ID and a Federal Database 

With regard to concerns that REAL ID 

will create a national ID, DHS does not 

intend that REAL ID documents become 

a de facto national ID and does not 

support creation of a national ID. The 

REAL ID Act, however, does not provide 

authority for DHS to issue restrictions 

on who may or may not use REAL ID 

cards. DHS can only define those 

‘‘official purposes’’ for which a REAL ID 

credential must be used in lieu of other 

State-issued driver’s licenses. The final 

rule has limited ‘‘official purposes’’ to 

those set forth in the Act—accessing 

Federal facilities, boarding Federallyregulated commercial aircraft, and 

entering nuclear power plants. In 

addition, the final rule does not require 

that the REAL ID driver’s license or 

identification card number or design be 

unique nationally, thus possibly 

limiting the functionality of the REAL 

ID card or identification number as a 


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national ID card. It is unclear at this 

early stage whether REAL ID cards in 

fact will be used differently from 

current State driver’s licenses and 

identification cards; but if cardholders 

experience specific abuses regarding 

third-party misuse of these cards, 

Congress and the States can determine 

whether and how to address such 

abuses. 

With regard to concerns that REAL ID 

will create a Federal database on all 

REAL ID card holders, DHS does not 

intend to own or operate a database on 

all driver’s license and identification 

card holders. REAL ID implementation, 

however, will require a messaging 

system (generally known as a ‘‘hub’’) to 

serve as the backbone to support the 

verification checks REAL ID requires. In 

addition, the State-to-State data 

exchange will likely require a software 

application (likely an index or pointer 

system) to enable the States to exchange 

limited information to identify whether 

an applicant for a card holds a card in 

another jurisdiction. 

DHS is mindful that the States expect 

to continue to have control over their 

systems, their information, and the 

processes that govern any use or access. 

DHS agrees that issues relating to the 

governance of any State-to-State 

exchange of information are critically 

important, and that the States will need 

to play an important role in determining 

the governance structure of any 

system(s) that may interface with State 

licensing systems and the Federal 

verification systems required to 

implement REAL ID. Many of the 

individual State comments emphasized 

that they are committed to protecting 

privacy and that they are prepared to 

address privacy in their security plans 

and already have such plans in place. 

The governance of the system(s) 

necessary to conduct the data checks 

will be established in consultation with 

DOT and the States during the first 

phase of the REAL ID implementation. 

The Privacy Impact Assessment issued 

in conjunction with the final rule 

discusses the governance issue in more 

detail. 

As described above, DHS is currently 

working with AAMVA, DOT, the Social 

Security Administration, the 

Department of State, National 

Association of Public Health Statistics 

and Information Systems (NAPHSIS), 

and State representatives to define 

requirements for a messaging system to 

support the multiple data verification 

checks REAL ID requires. The backbone 

of the messaging system could be 

AAMVAnet, the network system 

AAMVA already operates to facilitate 

data verification for the State DMVs. It 

is important to note for purposes of 

privacy and security that the 

AAMVAnet backbone resides on a 

private network with no connectivity to 

the Internet, making it much less 

vulnerable to attacks. It has been, and 

will continue to be, a highly secure 

transportation layer for all 

communications between the States and 

agency databases. DHS will work with 

DOT and AAMVA to build upon the 

security, privacy, and governance 

principles that have guided AAMVA 

and the States for decades in conducting 

licensing checks by reinforcing the 

security and privacy features of the 

AAMVA communications and systems 

architecture. 

In addition to potentially using 

AAMVAnet as the backbone, DHS, DOT, 

and the States are exploring the 

alternative of using the Commercial 

Drivers Licensing Information System 

(CDLIS) as the platform for supporting 

the State-to-State data exchange 

requirements of the REAL ID Act and 

regulation. CDLIS already supports 

queries to every State DMV every time 

an individual applies for a driver’s 

license in any State or the District of 

Columbia. Although privacy groups 

urged DHS not to build upon CDLIS 

since it is a centralized database, it is 

more technically and economically 

difficult to design a State-to-State data 

exchange system that avoids using a 

central repository (an index or pointer 

system) to direct the checks to the 

appropriate State. DHS understands that 

State systems would not be able to 

handle the volume of messages received 

if all jurisdictions were sending and 

receiving messages from all jurisdictions 

at the same time. The central repository 

would facilitate the check by identifying 

which jurisdiction(s) has a match and 

obtaining the relevant record 

information. The repository would only 

be used to facilitate the State-to-State 

data exchange or for authorized law 

enforcement personnel who are 

checking a specific license or 

identification card against the system. 

Moreover, CDLIS is a secure, Stategoverned system that stores only the 

minimum amount of personal 

information necessary to minimize false 

positives and to facilitate the routing of 

queries and responses between States. 

With regard to limiting access, 

(Federal, State, and private-sector) to the 

State DMV data stored in the data 

verification system, DHS, DOT, and the 

States will define the access rules. The 

REAL ID Act does not create Federal 

access rights to State DMV databases. 

Moreover, DHS supports limiting access 

to the data verification system to 

authorized State DMV personnel and to 

Federal government agencies engaged in 

official responsibilities pertaining to law 

enforcement, the verification of personal 

identity, or highway and motor vehicle 

safety. For example, DHS personnel do 

not currently access CDLIS or 

AAMVAnet. Its law enforcement agents 

obtain access to State driver’s license 

information using National Law 

Enforcement Telecommunications 

System (NLETs) and commercial data 

sources. 

2. Protection of State DMV Databases 

To help protect the privacy and 

security of the personally identifiable 

information (PII) held in State DMV 

databases, § 37.41 of the final rule 

requires States to prepare a security 

plan for all State DMV facilities and 

systems involved in the issuance, 

enrollment, production, or manufacture 

of driver’s licenses and identification 

cards, and to submit the plan to DHS as 

part of the State’s application for 

certification. The final rule requirement 

for the security plan to include 

reasonable administrative, technical, 

and physical safeguards to protect the 

security, confidentiality, and integrity of 

the personally identifiable information 

collected, stored, and maintained in 

DMV records and information systems 

is consistent with key information 

safeguards outlined in the Privacy Act 

of 1974 (5 U.S.C. 552a) and the Federal 

Information Security Management Act 

of 2002 (44 U.S.C. 36). 

The security plan requires a number 

of important privacy and security 

safeguards including, but not limited to: 

(1) Procedures to prevent unauthorized 

access, use, or dissemination of 

applicant information and images of 

source documents retained pursuant to 

the Act; (2) standards and procedures 

for document retention and destruction; 

(3) a privacy policy; (4) a prohibition on 

release and use of personal information 

that, at a minimum, is consistent with 

the Driver’s Privacy Protection Act, 18 

U.S.C. 2721 et seq.; (5) access controls, 

including employee access badges, 

background checks and systems 

controls; (6) emergency incident 

response plans; (7) internal audit 

controls; (8) physical security of 

facilities where driver’s licenses and 

identification cards are produced; (9) 

security of the document materials and 

papers from which driver’s licenses and 

identification cards are produced 

(§§ 37.41 and 37.43). 

The requirement that the security 

plan include a privacy policy regarding 

the personally identifiable information 

collected and maintained by the DMV 

provides a key privacy protection. 

Although the final rule does not define 


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2 ‘‘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. 

the specific content of the privacy 

policy, DHS expects that the policy will 

reflect the fair information principles 

noted in the NPRM, 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. 

In addition to reflecting these 

principles, DHS recognizes that the 

privacy policies will need to be 

consistent with State privacy laws 

governing DMVs information practices, 

and the final rule in no way reduces the 

protections States already afford PII 

held by DMVs. 

With regard to concerns regarding 

disclosure of PII from DMV databases, 

the final rule requires that the security 

plan include a prohibition on release 

and use of personal information that, at 

a minimum, is consistent with the 

DPPA. Although the DPPA provides for 

a large number of permissible uses, it is 

the only Federal law that currently 

applies to State DMV records and will 

provide a floor that States can build 

upon to further limit the disclosure of 

DMV record information. 

3. Privacy Concerns Regarding the 

Machine Readable Technology 

Employed by REAL ID 

Section.IV.I.8 of the comments 

discussion discusses the comments and 

responses regarding the machine 

readable zone (MRZ) on REAL ID cards. 

In brief, commenters were split between 

the privacy groups that were concerned 

about third party ‘‘skimming’’ of 

information from the MRZ if it is not 

encrypted, and the State and law 

enforcement groups that opposed 

encryption because it could interfere 

with speedy law enforcement access to 

the information and it would be difficult 

and costly to manage encryption keys 

across so many jurisdictions. 

Given law enforcement’s need for 

easy access to the information, and the 

complexities and costs of implementing 

an encryption infrastructure, DHS is not 

requiring encryption of the MRZ at this 

time. If, in the future, the States 

collectively determine that it is feasible 

to introduce encryption, DHS may 

consider such an effort so long as the 

encryption program enables law 

enforcement easy access to the 

information in the MRZ. Moreover, in 

the future, DHS, in consultation with 

the States and DOT, and may consider 

technology alternatives to the PDF417 

2D bar code that provide greater privacy 

protections after providing for public 

comment. 

As discussed in the Privacy 

Considerations section of the NPRM (72 

FR at 10824–25), 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, 

AAMVA has drafted a Model Act 2 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. 

In addition to concerns about thirdparty skimming, privacy groups 

commented that access to the MRZ 

should be restricted to law enforcement, 

while other commenters also supported 

access without information collection 

for bars and liquor stores to help 

prevent underage drinking. In response 

to commenters urging that the rule limit 

Federal agency access to the MRZ, DHS 

is not aware of any current plans by 

Federal agencies to collect and maintain 

any of the information stored in the 

MRZ. If a Federal agency should want 

to use the MRZ to collect and maintain 

personally identifiable information in 

the future, any such information 

collected from the MRZ would be 

subject to the protections of the Privacy 

Act of 1974 (5 U.S.C. 552a), and other 

Federal laws and policies regulating the 

use and handling of personally 

identifiable information, including 

requiring appropriate time for public 

notice. 

A number of commenters also urged 

DHS to limit the data elements in the 

MRZ to the minimum necessary, 

particularly if the MRZ is not encrypted. 

DHS has reviewed the elements 

identified in the NPRM and eliminated 

the requirement to include the name 

history in the MRZ. All other data 

elements are necessary for DMV and law 

enforcement purposes. 

4. Additional Privacy Concerns 

The privacy groups and individuals 

also filed comments on a number of 

other privacy issues such as redress, the 

confidentiality of the address for certain 

at-risk individuals, and the Western 

Hemisphere Travel Initiative (WHTI)- 

compliant card and its use of Radio 

Frequency Identification (RFID) 

technology. The comments and 

responses to these additional privacy 

concerns are discussed in other sections 

of this final rule. 

Comment: Two States wrote that the 

proposed rule did not provide adequate 

safeguards for data storage, thereby 

significantly increasing the risk of 

identity theft. One commenter wrote 

that even the most rigorous security 

measures could be foiled by personnel 

with legitimate access intentionally or 

inadvertently exposing information. 

Several commenters wrote that the 

rule’s broad expansion of data collection 

and storage creates a significant threat to 

privacy and that guidance on access to 

data and accountability should be 

issued. Commenters also wrote that 

stored data should be secured to protect 

the identities of victims from abusers in 

State government who have database 

access. 

Response: Section 37.41 of the final 

rule helps address concerns about 

adequate protections for the DMV 

databases and information systems. It 

calls for States to prepare a security 

plan, including providing reasonable 

administrative, technical, and physical 

safeguards to protect the security, 

confidentiality, and integrity of the 

personally identifiable information 

stored and maintained in DMV records 

and information systems. The rule 

specifically points out the need to 

include access control measures to 

prevent unauthorized access to the 

information. States are already sensitive 

to the importance of protecting their 

data and systems. Section 37.33(b) will 

help ensure that DMVs provide 

comprehensive, layered security 

protection to reduce the incidence of 

unauthorized access and use. In 

addition, this final rule does not 

preempt States from implementing 

privacy protections that are even more 

protective. 

Comment: One State wrote that DHS 

should set standards for accessing the 

required information from the Federal 

government and other States so that the 

verification process is performed 


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similarly by all States. Multiple 

commenters stated that they want data 

systems to be one-way and used solely 

for the purpose of verification; Federal 

system owners would not be able to 

query State databases. Similarly, other 

commenters wrote that the rule should 

limit how States can access Federal 

databases for purposes of verifying 

source documents and should only 

allow authorized DMV employees 

access to Federal databases. One 

commenter requested that the final rule 

make clear that no State may 

electronically access source documents 

contained in DMV databases in other 

States. Several States opposed Federal 

government access to the extensive data 

collected by States and suggested a 

network interface that only allowed 

State queries of the databases. One 

commenter wrote that it is unclear from 

the proposed rule how the federated 

query service will operate and manage 

the data between databases and DMVs, 

and while strict access controls to REAL 

ID data and documents will help 

minimize security and privacy risks, 

such controls will not be possible 

without DHS answering these questions 

prior to implementing REAL ID. 

Response: DHS is working with DOT, 

AAMVA, and the States to enhance 

existing querying systems to meet the 

requirements of the REAL ID Act and 

rule. This ‘‘federated querying system’’

builds upon existing systems that 

include verification of DMV applicant 

birth certificates and social security 

numbers. These existing systems enable 

States to query the SSOLV database 

managed by SSA and the EVVE database 

managed by NAPHSIS. In both cases, 

only State DMVs can initiate queries. 

Moreover, SAVE, the USCIS system for 

verifying the lawful status of 

individuals in the United States, is 

designed on a similar basis, with only 

States able to initiate queries. 

Enhancements to existing systems to 

verify information held by the 

Department of State will be designed 

and built on the same principles. 

In addition, State-to-State data 

exchanges required by REAL ID may 

consider leveraging the Commercial 

Drivers Licensing Information System 

(CDLIS) as the baseline platform for 

systems design, development and 

deployment. CDLIS is a secure, Stategoverned system that stores the 

minimum amount of personal 

information possible to facilitate the 

routing of queries and responses 

between States. Enhancements to CDLIS 

to support the requirements of REAL ID 

will not change the fundamental 

architectural, security, and privacy 

principles upon which CDLIS has been 

built and operated by the States for 

nearly two decades. 

As noted above, § 37.41 of the final 

rule addresses these concerns. It calls 

for States to prepare a security plan, 

including providing reasonable 

administrative, technical, and physical 

safeguards to protect the security, 

confidentiality, and integrity of the 

personally identifiable information 

stored and maintained in DMV records 

and information systems. The rule 

specifically points out the need to 

include access control measures to 

prevent unauthorized access to the 

information. 

Comment: One State recommended 

that paper document retention should 

not be required once electronic formats 

were secured. Another commenter 

wrote that REAL ID should collect only 

the data that is absolutely necessary and 

keep it for only as long as necessary, 

and requirements should be in place to 

periodically review and purge 

information. 

Response: Section 202(d)(2) of the Act 

mandates that States ‘‘retain paper 

copies of source documents for a 

minimum of 7 years or images of source 

documents presented for a minimum of 

10 years.’’ DHS does not have discretion 

to change that requirement. 

Accordingly, under this final rule, 

States may choose to keep paper copies, 

microfiche, or digital images of source 

documents. Depending on the method 

of document retention adopted by the 

State, the State must maintain paper 

copies for a minimum of seven years, or 

microfiche or digital images of source 

documents for a minimum of 10 years 

pursuant to the Act. We note that the 

NPRM proposed to allow retention of 

microfiche for 7 years; however, as 

discussed above the statute mandates 

retention of ‘‘images’’ of source 

documents for 10 years. A microfiche is 

a film image, rather than a paper copy, 

of a document; therefore, we have 

corrected the error in the proposed rule 

to more accurately reflect the statutory 

mandate. 

Comment: Many commenters wrote 

that obtaining a REAL ID could become 

a requirement for participation in 

American life, and that a REAL ID could 

be used for purposes beyond what is 

contemplated today, such as controlling 

gun ownership or smoking. Another 

commenter wrote that implementing 

REAL ID would undoubtedly result in a 

system that political and agency heads 

would not restrain themselves from 

using and expanding in the future, and 

that REAL ID would become a practical 

necessity for anyone wishing to travel 

on an airplane, open a bank account, 

collect Social Security benefits, or take 

advantage of other government benefit 

programs. Other commenters wrote that 

the result would be a dividing of the 

citizenry into those who have REAL 

identification cards and those who do 

not, with the later group subject to 

suspicion. One commenter urged DHS 

to make clear in the final regulations 

that driver’s license numbers and ID 

card numbers must be unique within a 

State and that the REAL ID cards should 

not have a nationally standard format. 

Response: DHS agrees with the 

comment that a driver’s license or 

identification card number needs to be 

unique only within a State and need not 

be a unique nationally identifying 

number. DHS also understands the 

concerns raised in the comments about 

how a REAL ID might be used outside 

of the defined ‘‘official purposes’’

identified in the Act and this final rule. 

DHS does not intend that a REAL ID 

document become a de facto national 

identification card. Whether States 

choose to require presentation of a 

REAL ID for State purposes is not 

within the purview of DHS’s authority 

under the Act—which applies to 

documents that Federal agencies can 

accept for official purposes—and thus is 

outside of the scope of this rulemaking. 

E. State to State Database Queries 

Comment: Several commenters 

suggested the following requirements 

for State databases: using a single 

agreed-upon naming record keeping, 

clarifying ‘‘transferable’’ functionalities, 

implementation of point-to-point 

interfaces for data verification, a 

decentralized query system, and a 

system to check for duplicate 

registrations in multiple States. One 

commenter suggested that every State 

have a data governance committee. 

Several States offered best practice 

suggestions to support State database 

security, including encryption, annual 

employee confidentiality agreements, 

secured data centers, testing programs to 

determine tampering, security audits, 

and multi-factor authentication. 

Response: DHS agrees that issues 

relating to the governance of any Stateto-State exchange of information is 

critically important, and that the States 

will need to play an important role in 

determining the governance structure of 

any system(s) that may interface with 

State licensing systems and the Federal 

verification systems. DHS is mindful 

that the States expect to continue to 

have control over their systems, their 

information, and the processes that 

govern any use or access. 

During the initial period of REAL ID 

implementation, States will conduct 

data verification using their current 


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methods of connection to SSOLV, 

SAVE, and the other State DMVs. States 

will continue to use AAMVAnet to 

connect to these data sources. 

AAMVAnet is governed by the Board of 

AAMVA and is subject to the security 

and privacy requirements established by 

the association of DMVs. As DHS, DOT, 

AAMVA, and the States complete the 

upgrade of existing systems to meet the 

requirements of REAL ID, these systems 

will be deployed and operated on the 

same basis as the current network of 

AAMVAnet-based systems for DMV 

verification of applicant data and Stateto-State exchanges of driver 

information. The architecture of these 

systems will determine the scope and 

extent of the privacy concerns they 

pose. 

F. Document Standards for Issuing 

REAL ID Driver’s Licenses and 

Identification Cards 

1. Identity 

Comment: One State agency asked 

whether the term ‘‘source document’’ in 

the proposed rule is synonymous with 

‘‘identity document’’ used in the Act. 

One State wrote that it was concerned 

about individuals having to surrender 

their REAL ID card from one State when 

moving to a new State and applying for 

a new card. Many commenters wrote 

that certain applicants would have 

difficulties obtaining proper source 

documents, including refugees, lowerincome individuals, persons who live in 

rural areas, the elderly, minorities, and 

abuse victims. Another State suggested 

that the rule should only specify criteria 

and procedures rather than a list of 

specific documents. 

Response: DHS disagrees with the 

comment that the rule should specify 

criteria rather than a list of specific 

documents acceptable to establish a 

person’s identity. Limiting the number 

of documents means that only the 

documents which DHS has found to be 

the most secure may be used to 

demonstrate identity. Second, 

identifying specific documents 

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. 

DHS does not agree that certain 

categories of individuals cannot 

reasonably obtain the identity 

documents specified in the rule, but the 

rule provides a reasonable level of 

discretionary flexibility to address these 

types of cases. 

Comment: Commenters wrote that the 

list should be expanded to include a 

variety of documents, including 

adoption papers, refugee status 

paperwork, expired foreign passports if 

USCIS documentation is current, 

passports with expired visas, derivative 

visas, Immigration Court documents, 

foreign birth records, foreign national 

identification cards, the I–94 (ArrivalDeparture Record), and the I–797 

(Notice of Action). Refugees and asylees 

are more likely to have these documents 

before they receive an Employment 

Authorization Document (EAD). Two 

States suggested that documents that 

can be electronically verified through 

SAVE should be acceptable. 

Commenters wrote also that foreign 

applicants may have documents that are 

not on the list but may have been issued 

by DHS or the courts to prove 

immigration status. 

Response: The document list 

provided in the proposed regulation and 

adopted under this final rule is only for 

demonstrating identity, not lawful 

status in the United States. DHS agrees 

with the commenters who suggest that 

any document verifiable by SAVE is 

acceptable for proving lawful status, and 

that is what this final regulation 

provides. These can include Forms I–

797 and I–94 as they provide sufficient 

information for a State DMV to check 

SAVE, which will be the method by 

which aliens lawfully present in the 

United States establish lawful status. 

But because many of these documents 

(including the ones listed above) cannot, 

and are not intended to, prove a 

person’s identity, an additional 

document must be provided for that 

purpose. In the case of refugees and 

asylees, they will be able to obtain a 

Form I–766, Employment Authorization 

Document. 

DHS cannot accept the comment that 

foreign documents be included on the 

list of acceptable documents to prove 

identity. First, section 202(c)(3)(B) of the 

Act specifically prohibits any States 

from accepting any foreign document 

other than a passport. Second, the Act 

requires that documents presented for 

proof of identity be verified by the 

issuing agency. State DMVs cannot be 

expected to verify with foreign 

governments the validity of documents. 

DHS has, instead, decided to use the 

U.S. visa within the foreign passport as 

the identity document that a 

nonimmigrant alien can present. 

Comment: One commenter wrote that 

a delayed birth certificate should be 

considered an acceptable document. 

One State wrote that many births in 

rural areas are not recorded, and States 

should be able to use other documents. 

One commenter wrote that a 

requirement for a certified copy of a 

birth certification would place a 

hardship on poor persons. One 

commenter supported the concept of reverification of birth certificates for 

renewals of REAL identification cards, 

except that the rule should allow the 

option for the applicant to use 

documents with the current legal name 

instead of the name at birth. 

Response: While confirming identities 

with delayed birth certificates can be 

problematic, this final rule does not 

preclude a State from accepting a 

validly-issued delayed birth certificate. 

DHS agrees that some, mostly elderly, 

individuals may not have a birth 

certificate at all. As a result, the final 

rule permits a State to use its exceptions 

process to determine what alternative 

documents an individual may present in 

this limited circumstance to establish 

his or her date of birth. DHS does not 

agree that lower-income individuals 

will have a hardship obtaining certified 

copies of their birth certificates and 

believes that States may be able to assist 

those individuals for whom the cost of 

obtaining a birth certificate is 

prohibitive. Further, DHS believes that 

there is value in re-verifying applicant 

information upon renewal of driver’s 

licenses and identification cards and 

has amended the renewal sections to 

require re-verification of SSN prior to 

issuance. 

Comment: Commenters requested a 

variety of additional documents be 

considered as acceptable source 

documents, including Federally-issued 

identification documents such as 

military identification cards, the 

Common Access Card, retired military 

ID cards, dependent military ID cards, 

Veteran Affairs Universal Access Photo 

ID cards, and Transportation Workers 

Identification Credentials (TWIC). Some 

commenters also requested that Native 

American Tribal Documents be deemed 

acceptable source documents. One State 

asked whether a tribal photo 

identification card accompanied with a 

Canadian birth certificate (which is 

currently acceptable to the commenting 

State) will be acceptable to DHS. If not, 

these populations may encounter 

particular difficulty obtaining a REAL 

ID. 

Response: DHS does not agree with 

comments suggesting addition of Native 

American Tribal Documents, TWIC 

cards, or Common Access Cards (CAC) 

or military identification issued by the 

U.S. Department of Defense as identity 

documents for REAL ID purposes at this 


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time. DHS continues to understand from 

the Department of the Interior and 

Bureau of Indian Affairs that Tribal 

members are similarly situated to the 

general population, and have access to 

the identification documents set forth in 

the rule. Where a Tribal member does 

not have the necessary document to 

establish identity, date of birth, or 

lawful status, a State’s exception 

process can take this into account based 

on the State’s knowledge and 

experience with Tribal documents in its 

area of jurisdiction. 

In regard to the use of a TWIC as proof 

of identity, at this time, DHS does not 

believe that it would be feasible for 

States to accept TWIC cards as initial 

proof of identity by persons applying for 

a REAL ID card. First, section 202(c)(3) 

of the REAL ID Act requires States to 

verify all documents presented by 

applicants as proof of identity. The 

capability for States to verify a TWIC 

card currently does not exist at this 

time. 

Second, although a TWIC holder must 

have been determined to be lawfully 

present in the United States to obtain 

the TWIC, the TWIC does not 

necessarily expire when the holder’s 

lawful status expires. Therefore, a DMV 

could not use the TWIC card alone as 

evidence of lawful status and the 

applicant would have to present both a 

TWIC (for identity) and a separate 

document (for status). 

Accordingly, there is little benefit to 

the individual or the DMV at this time 

to include a TWIC as an acceptable 

identity document. As such, the final 

rule does not include TWIC as an 

acceptable form of identification. 

However, DHS will revisit this issue in 

the future should such a capability 

become available and will consider the 

ability for States to verify TWICs with 

the federal government as the standards 

for the ‘‘hub’’ are developed. 

2. Social Security Documentation 

Comment: Several commenters, 

including States, wrote that obtaining a 

Social Security card can be a lengthy 

process. They argued that some 

individuals may have lost their original 

card, a Social Security number (SSN) 

does not enhance the identification 

process, and ineligibility for a SSN is 

difficult to determine and verify. One 

commenter wrote that individuals might 

not have a SSN because of religious 

beliefs. One State wrote that States 

should have the option of requiring a 

Social Security card. 

Response: The REAL ID Act requires 

that individuals provide proof of their 

Social Security account number or 

verification that they are not eligible for 

a Social Security account number. 

While the typical proof submitted to 

DMVs is a Social Security card, the rule 

allows for the submission of alternate 

documents, such as a W–2 form, SSA–

1099 form, or pay stub to establish the 

SSN. Use and verification of the SSN is 

widely seen by almost every State as an 

effective tool in enhancing the 

identification process. DHS has further 

amended the rule to clarify for the 

DMVs when an individual will have not 

have a SSN, which is largely tied to 

immigration status and identity 

documents used to apply for a driver’s 

license. Other instances may be 

addressed in exceptions processing. 

3. Principal Residence Documentation 

Comment: Many commenters 

suggested that the definition of 

‘‘principal residence’’ be amended. One 

State recommended that DHS define 

‘‘principal residence’’ as the jurisdiction 

in which an individual spends the most 

time. Another commenter requested 

‘‘principal residence’’ be defined as the 

primary or most important place of 

abode of an individual and at which he 

or she presently has an intention of 

living for an indeterminate period. 

Another State suggested that the 

definition be changed to require that a 

person’s principal residence be within 

the jurisdiction issuing the card and to 

allow the States to issue exemptions. 

One State suggested that DHS clarify the 

definition so that students, military, 

visitors, and others who are temporarily 

residing in another jurisdiction are not 

required to change their principal 

residences. 

Response: DHS agrees that the 

definition of ‘‘principal residence’’

needs to be clarified in the rule. The 

term is defined in the final rule as the 

location where a person is currently 

domiciled (i.e., presently resides even if 

at a temporary address) in conformance 

with the residency requirements of the 

State of domicile, if such requirements 

exist. 

Comment: Commenters wrote that 

requiring two documents proving 

residence is burdensome on certain 

individuals (i.e., recent movers, minors, 

homeless, and those not listed as 

primary payer on accounts) and 

suggested use of the United States Postal 

Service (USPS) National Change of 

Address system as a verification tool. 

One State recommended that the rule 

allow use of an on-line address 

verification system to replace the two 

forms of address documents, at least for 

remote renewals. 

Response: DHS does not agree that it 

is too burdensome to require an 

individual to produce two documents to 

establish his or her address of principal 

residence. Since the State has maximum 

flexibility in determining what 

documents are acceptable for this 

purpose, DHS believes that the States 

will be able to find a combination of 

documents for each person eligible to 

apply for a REAL ID driver’s license or 

identification card. DHS believes States 

may use the procedures established in 

their exceptions processes when seeking 

to document the address of principal 

residence of the homeless or other 

individuals who may not have a fixed 

street address. 

Comment: Commenters wrote that 

there are certain groups of people 

including students, long-haul truck 

drivers, the homeless, migrant workers, 

and others who do not have a single 

fixed address and who will not be able 

to meet this requirement. One 

commenter requested that the rule be 

strengthened by clarifying in the 

exceptions process that the requirement 

of a fixed address will be waived as long 

as a REAL ID applicant can make a 

showing that they have none and that 

they can comply with other 

documentation requirements. 

Response: As noted above, DHS 

believes that States will be able to 

resolve these issues through the use of 

their exceptions process. 

Comment: Several commenters noted 

the difficulty in providing a street 

address because many rural addresses 

use rural route numbers only, and 

recommended new regulatory text: ‘‘An 

acceptable street address includes rural 

delivery route and/or box number or 

other address convention used by the 

USPS in all areas of the U.S. where a 

number and street name has not been 

assigned for U.S. mail delivery.’’ One 

commenter wrote that in its jurisdiction, 

it is common to find streets with same 

names throughout different 

communities and that rural addresses 

are identified by kilometers and 

hectometers within a street address or 

neighborhood. Another commenter (a 

State) has islands that do not have home 

addresses; mail is delivered to post 

offices where the residents must go to 

retrieve their mail. One State noted that 

many Native American populations do 

not have physical addresses. 

Response: DHS agrees with these 

comments and has amended the rule to 

define ‘‘address’’ as an address 

convention used by the USPS in areas 

of the United States and Territories 

where a number and street name has not 

been assigned for U.S. mail delivery. 

Comment: One commenter wrote that 

address changes make up the largest 

number of driver record changes and 

many States do not require issuance of 


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a replacement card until the next 

renewal cycle. Several commenters, 

including States, wrote that when an 

address change occurs, no REAL ID card 

need be required and that it is cost 

prohibitive for States to issue new 

documents for address changes. 

Response: DHS agrees with these 

comments and is no longer requiring an 

in-person transaction for an individual 

to change his or her address. DHS also 

leaves it to State law and procedure 

when and under what circumstances a 

State requires issuance of a replacement 

driver’s license or identification card. 

4. Lawful Status Documentation 

Comment: Several commenters wrote 

that there are many examples of 

lawfully present immigrants who may 

not have the listed documents and that 

the list should be expanded. One 

commenter wrote that these omissions 

violate the Constitution by denying to 

individuals in these classes the rights 

and privileges accorded to others, and 

stated immigration documents do not 

always reflect actual status. A State 

wrote that Temporary Protected Status 

aliens should be required to provide 

documentation from DHS of an 

established identity. Some commenters 

objected to the need for an unexpired 

U.S. visa on a foreign passport. They 

pointed out that renewing a visa would 

involve foreign travel, and in any case 

a visa does not authorize a stay in the 

U.S. for any particular period of time. 

An alien with nonimmigrant status may 

lawfully extend or change his or her 

nonimmigrant status without 

maintaining a valid visa stamp. One 

State noted that in some cases a 

passport might expire before the visa. 

Response: DHS has included the list 

of documents as verifying identity of the 

person presenting them, not lawful 

status. Lawful status may be determined 

through verification against DHS’s 

SAVE system. Aliens who are granted 

Temporary Protected Status are already 

eligible for EADs, Form I–766, and thus 

have a document proving identity. DHS 

does not believe that this rule treats 

citizens and aliens differently—each is 

required to prove identity and lawful 

status to obtain a REAL ID driver’s 

license. Further, DHS does not believe 

that treating citizens and aliens 

differently is in violation of the 

Constitution, but an inherent right of a 

sovereign nation and one that reflects 

American constitutional law. Regarding 

the visa in a foreign passport, DHS is 

not treating the visa itself as a document 

establishing lawful status. Again, the 

check of DHS’s SAVE system will 

accomplish that purpose. The visa is 

used to verify identity and can be 

verified with the issuing agency—the 

U.S. State Department. DHS cannot 

verify, with the issuing agency as 

required by statute, foreign passports 

because there is no guarantee that 

issuing a foreign government would 

respond to a DMV request for a specific 

passport. Finally, like all documents 

that verify identity, the document itself 

must be unexpired to assure that a 

significant amount of time has not 

passed such that the person’s 

appearance has changed. This is a 

fundamental rule with issuance of all 

types of documents that are designed to 

prove a person’s identity. 

5. Verification of Documentation 

Presented 

Comment: One commenter wrote that 

DHS should partner with AAMVA in 

implementing document verification 

requirements. Several commenters 

wrote that States need ongoing training 

and guidance for verification and to be 

advised what to do if documents cannot 

be verified. A few commenters noted 

that the verification of documents is 

only a verification that paper contains 

legitimate data and not that the 

applicant is the owner of the paper or 

that the document is authentic. A State 

asked who makes the determination of 

whether a State’s verification procedure 

is ‘‘effective.’’ Several commenters 

wrote that Federal electronic 

verification systems do not exist yet or 

need significant enhancements; 

therefore, compliance requirements 

should be delayed. One commenter 

wrote that States must find their own 

ways to verify documents but that States 

lack the legal authority to force 

compliance. Commenters suggested 

States use third party databases or 

automated document authentication 

systems and share images to deter 

identity fraud. One State asked whether 

it would have to re-verify source 

documents if the applicant already had 

a REAL ID from another State. 

Response: DHS is working with 

AAMVA and State representatives to 

design and implement verification 

systems to support the requirements of 

the REAL ID Act and this rule. 

Representatives of numerous States and 

the Federal agencies responsible for 

verification of identity information for 

REAL ID and related Federal 

government programs are continuing to 

meet to develop recommendations on 

prioritization of data and document 

verification systems based on risk and 

value. Two verification systems are 

currently available for use by all 

States—the SSOLV system for 

verification of social security numbers 

with the SSA and the SAVE system 

managed by USCIS for verifying that an 

applicant is lawfully present in the 

United States and for how long. These 

systems have been in widespread use 

for many years and are highly effective. 

DHS is working to improve further the 

usability and accuracy of these systems 

and to meet REAL ID-specific 

requirements. DHS is also working with 

the appropriate Federal and 

nongovernmental agencies to verify 

other documents and applicant data 

mandated by this rule. As these systems 

are deployed and become widely 

available for use by States, DHS plans to 

publish notices of availability and 

timetables for required use in the 

Federal Register. 

DHS recognizes that verification 

consists of two separate elements: (1) 

Determining that the source document 

is genuine and has not been altered; and 

(2) determining that the identity data 

contained on the document is valid. 

Electronic verification systems can 

support these elements. However, DHS 

recognizes that other methods can be 

employed by States to confirm one or 

more elements of identity assurance. 

Electronic verification systems are only 

one component of a suite of measures to 

assure States that the applicants are who 

they say they are and that they are 

lawfully present in the United States. 

DHS recognizes that there are many 

different techniques for verifying the 

identity and qualification of applicants 

and will evaluate the effectiveness of 

such techniques. 

Comment: AAMVA and several States 

wrote that a system of passport 

verifications through the Department of 

State is not available and it will be 

difficult for States to determine name 

matches. One commenter wrote that 

States must find their own ways to 

verify documents but that States lack 

the legal authority to force compliance. 

Commenters suggested that States use 

third party databases or automated 

document authentication systems and 

share images to deter identity fraud. 

One State asked whether it would have 

to re-verify source documents if the 

applicant already had a REAL ID from 

another State. 

Response: DHS is working with the 

Department of State and AAMVA to 

provide a capability to verify passports, 

U.S. visas, and other information held 

by the Department of State. When this 

capability is widely available for State 

use, DHS will publish a Notice of 

Availability in the Federal Register and 

establish timelines for State use of this 

capability. DHS is also working with 

Federal, State, and nongovernmental 

organizations to identify and improve 


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name formats and matching algorithms 

used by identity verification systems. 

Comment: Commenters wrote that 

they supported the use of a SAVE 

system to verify lawful status because 

State DMV staff should not have to be 

immigration officials, but that many 

improvements needed to be made to the 

system. Commenters wrote that SAVE 

needs to indicate the type of pending 

nonimmigrant status the applicant has, 

as well as work authorization 

information. Another commenter wrote 

that for students and exchange visitors, 

information is provided in the Student 

and Exchange Visitor Information 

System (SEVIS) system, but SAVE and 

SEVIS are not yet linked. Several States 

wrote that they should not have to pay 

transactional costs for Federallymandated verification through a Federal 

system. 

Response: The SAVE system has 

proven to be a highly effective means of 

verifying immigration status 

information for many DMVs and other 

Federal and State agency users for 

twenty years. DHS is working with 

AAMVA and USCIS to improve the 

usability, accuracy, and reliability of the 

SAVE system even further, to include 

access to SEVIS and other data through 

SAVE. 

DHS is committed to expediting and 

subsidizing the improvement, design, 

development, deployment, and 

operation of verifications systems to 

support the requirements of the REAL 

ID Act and this rule; however, the States 

have typically borne the costs of 

verifying the identity and qualifications 

of applicants for driver’s licenses and 

identification cards. 

Comment: Several commenters 

supported the use of the EVVE system, 

but pointed out that it is not ready for 

implementation, and that an exception 

process would be needed. States 

opposed having to bear the costs for 

verification. 

Response: DHS recognizes that the 

EVVE system is not ready for full 

implementation. The final rule provides 

for additional time for States to 

implement EVVE or another system that 

provides for the verification of birth 

records. Verification of identity 

information is a valuable tool that many 

DMVs utilize. Birth data is currently 

collected and maintained by the States, 

and DHS is not seeking to Federalize 

these records. 

Comment: A few commenters 

supported the continued use of the 

SSOLV system, even though manual 

intervention is sometimes needed and 

the system is sometimes not available. 

One State wrote that it opposed having 

to re-verify SSNs that were previously 

verified through SSOLV. 

Response: DHS agrees that the SSOLV 

system is the best existing system to 

verify an individual’s SSN. DHS does 

not believe that the short amount of 

time it takes a State to enter an SSN and 

verify it through SSOLV is an 

unreasonable burden to impose, even 

for those persons whose SSN was 

previously verified through SSOLV. 

Forty-eight States and the District of 

Columbia currently have the capability 

to verify SSNs through SSOLV or other 

means. This requires electronic 

verification of SSNs with SSA but 

allows States to use other means than 

SSOLV. Verification of SSNs through 

SSOLV costs pennies and is typically 

completed in a few seconds. DHS, 

AAMVA, and the States are working 

with SSA to improve the accuracy and 

reliability of the SSOLV system. 

Comment: Several States and 

commenters expressed concern that 

States are required to verify an 

individual’s address of principal 

residence, yet DHS concedes in the rule 

that no such method exists. AAMVA 

wrote that in order for the States to 

support the verification process, DHS 

must clarify what the ‘‘system of 

document verification acceptable to 

DHS’’ really means. One State wrote 

that DHS should develop national 

standards for address requirements and 

verification; AAMVA wrote that this 

verification should be left to the States 

to determine and provide to DHS in 

their certification plans. Several States 

wrote that development or 

implementation of an electronic 

verification system for proof of principal 

residence is not feasible. 

Response: DHS agrees that States are 

best situated to verify an individual’s 

address of principal residence. The rule 

gives States maximum flexibility in 

determining an individual’s address of 

principal residence. 

Comment: Many commenters wrote 

that DHS should delay implementation 

of this final rule until all system 

components needed for verification are 

in place and tested. AAMVA and 

several States expressed concern about 

the cost for verification processes, 

particularly programming costs for 

States to adapt State systems for the new 

requirements and to establish 

connections with verification systems. 

States wrote that an all-driver 

verification system is needed for 

implementing the REAL ID program. 

Commenters suggested expanded use of 

the Commercial Driver License 

Information System to satisfy the onedriver, one-record goal. Some 

commenters objected to the concept of 

a national database. Some commenters 

wrote that electronic verification 

systems must be fast and reliable; 

provide real-time, accurate information; 

and be integrated into the REAL ID 

issuance process. One commenter 

favored a decentralized query system 

where one DMV uses an applicant’s 

basic identifying information to send 

requests to other jurisdictions. A few 

States asked how a compliant State 

would interface with a noncompliant 

State in verifying an out-of-State card. 

Other commenters wrote that the 

requirement to check with other States 

to see whether a REAL ID had been 

issued should apply to all driver’s 

licenses, not just REAL ID identification 

cards. 

Response: Two of the critical systems 

for verifying Social Security Numbers 

and lawful status are fully operational 

and currently used by many or most 

States. As stated above, DHS is working 

with other Federal agencies, 

nongovernmental agencies like AAMVA 

and NAPHSIS, and the States to design 

and deploy additional systems as 

quickly as possible. These systems will 

be integrated with the licensing 

issuance process in each State. States 

cannot and will not be required to use 

systems that are not fully operational 

and available for use. 

DHS is also working with the 

Department of Transportation, AAMVA, 

and the States to enhance the 

functionality of CDLIS to meet the 

requirements of the REAL ID Act and 

this regulation. Neither the Act nor this 

regulation requires the design or 

deployment of a new national database 

or any new system of exchanging of 

information between States beyond that 

already implemented through CDLIS 

and the National Driver Register. All 

States currently participate in the 

exchange of driver information 

mandated under these processes. The 

REAL ID final regulation simply 

requires States issuing REAL ID driver’s 

licenses or identification cards to verify 

that an individual does not possess a 

valid driver’s license or identification 

card in another State. This requirement 

is similar to the existing statutory and 

regulatory requirements for commercial 

driver’s licenses. When this 

functionality is available, DHS will 

publish a Notice in the Federal Register 

detailing the procedures and timeline 

for State-to-State exchange of data 

required under the Act. 

G. Exceptions Processing for 

Extraordinary Circumstances 

Comment: Three States and three 

other commenters said that DHS should 

set minimum standards for the 


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exceptions process so that there is 

consistency across the States. However, 

other States noted that the process 

should not be too rigidly defined, 

because the very nature of an exception 

will by necessity deviate from the 

current process, and that there are too 

many variables that need to be analyzed 

on a case-by-case basis to develop a 

rigid exceptions process. 

Response: DHS disagrees with the 

comments that DHS should establish a 

uniform exceptions process for each 

State. DHS recognizes that each 

jurisdiction may face its own unique 

and particular set of facts and 

circumstances to resolve and that DHS 

is unable to address all such 

circumstances. DHS believes that States 

must have the flexibility to craft an 

exceptions process adequate to the 

needs of their States and recognizes that 

no two State exceptions processes may 

be identical. 

Comment: AAMVA and multiple 

States opposed the requirement that 

States submit quarterly reports to DHS 

analyzing their exceptions processes. 

Four of these commenters suggested that 

the information could be included in a 

State’s annual certification report 

instead. Further, AAMVA and many 

States opposed the provision requiring 

State exceptions processes to be 

approved by DHS and said this 

requirement would reach too far into the 

day-to-day operations of State agencies. 

Response: DHS agrees that the 

proposed rule’s requirement for a 

quarterly report on the use of the 

exceptions process is too burdensome a 

requirement for the States. The final 

rule strikes the quarterly reporting and 

requires States to submit a report as part 

of the recertification package a State 

will submit to DHS in connection with 

REAL ID. As necessary and appropriate, 

a State can designate this report as 

Sensitive Security Information (SSI). 

Comment: One commenter said that 

DHS should allow States to employ 

exceptions processing on any list of 

documents that they deem 

circumstantially appropriate. Numerous 

commenters opposed prohibiting use of 

the exceptions process to demonstrate 

lawful status. In general, these 

commenters believed that many legal 

immigrants and other groups of people 

would not be able to meet the rule’s 

requirements for proving lawful status. 

One commenter said that the scope of 

the exceptions process described in the 

proposed regulatory text does not 

correspond to the scope of the 

exceptions process described in the 

rule’s preamble. The commenter urged 

DHS to revise the proposed regulation to 

explicitly include all data elements 

required under the REAL ID Act within 

the scope of the exceptions process. 

Response: DHS agrees in part with the 

comments submitted. Under this rule, 

the exceptions process can now also be 

used by a U.S. citizen to establish his or 

her lawful status in the United States. 

This will accommodate the needs of 

elderly or rural residents, for example, 

who have not obtained a birth certificate 

but were born in the United States. The 

exceptions process may not be used by 

non-citizens to establish lawful status in 

the United States. That status must be 

verified in all instances with DHS. 

Comment: Several commenters 

requested that State records not include 

a ‘‘full explanation’’ regarding why 

alternative documentation was 

accepted. These commenters expressed 

concern that victims of domestic 

violence would be forced to disclose 

their history of abuse and that 

information about their location and any 

name changes would be widely 

accessible in State databases of driver 

records. They recommended that a 

generic statement be added to records of 

victims of domestic abuse that would 

indicate that alternative documents 

were accepted ‘‘for reasons of public 

safety.’’ Three commenters said that it 

would not be feasible for States to mark 

exceptions in their data files until they 

complete computer system upgrades. 

Response: DHS agrees that States may 

use statements like ‘‘for reasons of 

public safety’’ or similar generic 

expressions when using the exceptions 

process for victims of domestic violence 

or others, where the State feels it is 

necessary to preserve the confidentiality 

of the reason the exceptions process was 

used. 

Comment: Some commenters 

suggested that the exceptions process be 

broadened to include specific 

populations of individuals who may 

have problems producing the required 

documents, who may not spend the 

majority of time at home (out-of-State 

students, active military personnel), or 

who may not be able to come to the 

DMV in person (individuals with 

disabilities). Other commenters, 

including AAMVA, suggested that the 

exceptions be related to risk and could 

factor in year of birth or duration of 

continuous relationship with the State 

of licensure. Similarly, one State 

suggested that the rule grandfather all 

current holders of driver’s licenses or 

identification cards that were previously 

verified as lawfully-present through 

SSOLV and/or SAVE. 

Response: As noted above, DHS does 

not believe it would be beneficial to 

establish a uniform exceptions process 

for all States. DHS recognizes that each 

jurisdiction may face its own unique 

and particular set of facts and 

circumstances to resolve and that DHS 

is unable to address all such 

circumstances. DHS believes that States 

must have the flexibility to craft an 

exceptions process adequate to the 

needs of their State and recognizes that 

no two State exceptions processes may 

be identical. 

DHS does not agree with the comment 

that individuals can be ‘‘grandfathered’’

for REAL ID purposes. The fact that an 

individual once had lawful status in the 

United States when checked through 

SAVE is not indicative of his or her 

present status. As noted elsewhere 

above, DHS does not believe it is 

burdensome to require an SSOLV check 

for all persons seeking a REAL ID 

driver’s license or identification card. 

H. Temporary or Limited-Term Driver’s 

Licenses and Identification Cards 

[§ 37.21] 

Comment: Two commenters said that 

use of the term could cause confusion 

with other license types and requested 

that another label such as ‘‘limitedterm’’ be substituted to avoid confusion. 

One commenter suggested that 

temporary cards indicate on the face 

whether the holder is a citizen or noncitizen because any immigration status 

can be lost or revoked or expire at any 

time during life of the card. 

Response: DHS agrees with these 

commenters. DHS has added the phrase 

‘‘limited-term’’ to avoid any confusion 

with existing State licensing schemes 

involving temporary driver’s licenses or 

identification cards. The section of the 

rule is now entitled ‘‘Temporary or 

Limited-Term Driver’s Licenses and 

Identification Cards.’’

Comment: Two States said that 

matching the expiration date of a 

temporary driver’s license or ID card to 

the end date of an applicant’s 

authorized stay would require major 

internal system and business process 

changes and may also require a 

legislative change in some States. 

Response: DHS notes that matching 

the expiration date of a temporary or 

limited-term driver’s license to the end 

date of an applicant’s authorized stay in 

the United States is a requirement of the 

statute that DHS lacks the authority to 

change. 

Comment: Several commenters 

opposed the provision limiting the 

duration of temporary licenses or ID 

cards to the duration of admission or to 

one year if the applicant’s authorized 

stay does not have a fixed expiration 

date. Numerous commenters cited 

concern with how the period of 

authorized stay is determined, in the 


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event, for example, that a person has a 

visa that expires in two years but the I–

94 expires in two months. One country 

urged DHS to accept the term of validity 

of the visa, which are generally valid for 

relatively long periods, as the ‘‘period of 

time of applicant’s authorized stay.’’

Response: These comments cannot be 

accepted. Section 202(c)(2)(C)(ii) of the 

Act requires that the duration of the 

driver’s license to be limited to the 

period of the person’s authorized stay or 

in the case of no specific period, a 

duration of one year. DHS does not have 

the authority to amend or change this 

direct statutory requirement. The period 

of admission will be determined not by 

documents themselves, but with the use 

of the SAVE system which can best 

identify a person’s lawful period of 

admission. Finally, a visa cannot be 

considered to be a person’s period of 

authorized stay as a visa only allows a 

person to apply for admission to the 

United States. It does not represent, in 

any sense, permission to stay within the 

United States for any particular period 

of time. 

Comment: Commenters said that this 

provision would be unduly burdensome 

for many individuals who have lawful 

status for extended periods of time, such 

as F and J visa holders, and specifically 

expressed concern that the rule is 

eliminating a long-standing provision 

for J–1 participants, who, under State 

Department regulations, are entitled to a 

thirty-day grace period after completion 

of their programs to travel within the 

United States One of these commenters 

suggested that States be allowed to use 

the end dates listed on the certificates 

of eligibility for each of these visa types 

as the ‘‘ending date’’ of status for the 

purpose of obtaining a driver’s license. 

Response: Again, the determination 

for lawful status in the United States 

will be made by the SAVE system, not 

particular documents. SAVE takes into 

account the grace periods to which 

those in certain F and J statuses are 

generally entitled. It should be noted, 

however, that since F and J nonimmigrants are admitted for ‘‘duration 

of status,’’ which is an indeterminate 

period, they would normally be issued 

licenses valid for one year. 

Comment: Two States said that 

annual, in-person enrollment for these 

individuals would provide little added 

homeland security value while 

overcrowding DMV offices. 

Response: DHS agrees in part with 

these comments. The final rule provides 

that individuals holding REAL ID cards 

that are not temporary or limited-term 

may renew remotely where there has 

been no material change in the 

individual’s information (i.e., name or 

lawful status) and the State re-verifies 

the individual’s lawful status and SSN 

where applicable. Because lawful status 

can change over time, DHS believes that 

it is necessary for a State to determine 

that these individuals remain in lawful 

status prior to extending the validity 

period of any REAL ID-compliant 

driver’s license or identification card. 

Comment: Three commenters asked 

DHS to clarify whether temporary 

driver’s licenses and ID cards need to 

have the security features of REAL IDcompliant documents. 

Response: Temporary or limited-term 

driver’s licenses and identification cards 

qualify as REAL ID-compliant 

documents so they must contain the 

same security features as any full-term 

REAL ID driver’s license or 

identification card. 

Comment: One commenter asserted 

that temporary driver’s license or 

identification cards should not be 

permitted because international and 

foreign licenses are valid for individuals 

who are in the United States for less 

than one year. 

Response: The REAL ID Act permits 

States to issue temporary or limitedterm driver’s licenses and identification 

cards. States will continue to determine 

how long an individual must be present 

or have residence in a State before the 

State requires that person to obtain a 

driver’s licenses or identification card. 

Nothing in these rules precludes States 

from permitting an individual to use an 

international or foreign license to 

operate a motor vehicle in a State. 

Comment: Commenters had specific 

comments about how this annual 

renewal provision would affect 

particular groups. Several domestic 

abuse advocacy organizations said that 

the annual requirement would give 

more power to abusers who have 

confiscated or destroyed the 

identification documents of their 

victims. One commenter said that DHS 

needs to amend the rule because the 

confidentiality requirements under the 

Violence Against Women Act (VAWA) 

preclude entry of certain immigrant 

victims into the SAVE system. The 

group suggested that if yearly renewal is 

required of immigrant victims, it should 

use the fax-back system developed by 

the INS to verify eligibility for Federal 

public benefits. A State expressed 

concern with DHS having defined 

‘‘sexual assault,’’ ‘‘stalking,’’

‘‘[d]omestic violence,’’ and ‘‘dating 

violence’’ in establishing exceptions for 

the REAL ID requirement to display an 

individual’s principal residence address 

on the license or identification card. 

The State argues that the proposed 

regulation would require that any State 

wishing to comply with the regulations 

must adopt the Federal definition of 

these crimes. This commenter argues 

that DHS can avoid this Federalism 

implication by allowing States to 

continue to decide who should be 

protected under address confidentiality 

programs. 

Response: DHS agrees, in part, with 

these comments. The final rule clarifies 

any misperception in the NPRM that a 

State would have to adopt the VAWA 

definition of certain terms, and makes it 

clear that States can continue to enroll 

and safeguard victims based on their 

own laws. DHS disagrees with the 

comments that the renewal requirement 

conflicts with any provisions of VAWA. 

If an individual’s identity documents 

have been destroyed by an abuser, a 

State can address this situation through 

its exceptions process. 

Comment: AAMVA, two other 

commenters, and four States expressed 

concern with the proposed requirement 

that a temporary document clearly state 

on its face that it is temporary. The 

commenters said that modifying cards 

to comply with the proposed rule would 

be costly and suggested that the rule 

instead allow States to use a restriction 

code on the front with clarifying 

language on the back. One State 

requested that DHS provide the exact 

wording that must be displayed on the 

face of a temporary card. One privacy 

group said that identifying the card as 

temporary on its face would amount to 

a ‘‘scarlet letter’’ for immigrants and 

would lead to discriminatory 

interactions with police and other 

individuals. One State commented that 

it does not support the ‘‘facial branding’’

of cards. 

Response: DHS does not agree with 

these comments and has clarified the 

rule to state that a temporary or limitedterm license must indicate on the 

license and in the machine-readable 

zone that it is temporary. States may use 

different methods to indicate the 

temporary nature of the license, such as 

using restriction codes on the front of 

the card and explanatory text on the 

back of the card. 

Comment: AAMVA and one State said 

that they support in-person renewals for 

temporary REAL ID driver’s licenses or 

identification cards because lawful 

status can change and the population of 

individuals with temporary lawful 

status is far smaller and easier to 

manage with in-person renewals than 

the larger population of U.S. citizens. In 

contrast, one State requested that DHS 

allow applicants to mail in copies of the 

appropriate documents proving lawful 

status as long as the State verifies the 

information via the SAVE system. One 


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commenter suggested that foreign 

students be allowed to renew online if 

they are required to do so annually. One 

State questioned how many one-year 

terms of extension would be permitted 

if length of stay is not specified on a 

submitted Federal immigration 

document. Two States wrote that after 

an applicant obtains a REAL ID card, the 

applicant should not have to re-supply 

source documents for renewals or 

conversions. Several States suggested 

that the rule state that notice of change 

of address may be made on-line or by 

mail as long as electronic verification 

can be accomplished. 

Response: DHS agrees with the 

AAMVA comment that individuals 

holding a temporary or limited-term 

license must renew in person in order 

to present evidence of continued lawful 

status. DHS believes that this is 

necessary because lawful status can 

change, and this policy is consistent 

with the language of the REAL ID Act. 

As such, the requirement remains 

unchanged from the NPRM. 

Changes of address may be made online, by mail, or as otherwise permitted 

by the DMV. There are no limits on how 

many years a State can issue a one-year 

license or identification card to an 

individual who is present for an 

undetermined ‘‘duration of status’’ as 

long as that individual remains in that 

lawful status or another. 

Comment: Numerous States expressed 

concern that the current processing time 

involved in USCIS review of 

applications for various immigration 

statuses impacted by REAL ID will 

result in a large number of applicants 

who wish to renew their licenses but 

their applications to extend their status 

has not been acted on by USCIS within 

the year. Two States suggested that 

States issue interim documents that 

would be valid for very short periods 

until an applicant receives his or her 

permanent document demonstrating 

lawful status. Another commenter 

suggested that such an interim card be 

based on the applicant’s visa until 

authorization is received and verified 

through SAVE, which should be 

programmed to contact the querying 

State when there is an updated 

applicant status. One commenter 

recommended that the rule allow States 

to use a license expiration date 90 days 

beyond the expiration date of the 

immigration document to allow for 

USCIS processing of applications to 

extend lawful status. Commenters said 

that individuals in certain statuses will 

not be able to comply with the 

requirement to present documentation 

showing extended lawful status upon 

renewal because in most cases, their 

statuses will not have been extended but 

merely continued. 

Response: Again, State DMVs will use 

the SAVE system, and not particular 

documentation, to determine that the 

license applicant is in lawful status. An 

application that is properly filed with 

USCIS entitles the person to remain in 

lawful status beyond the period listed 

on the person’s Form I–94 or other 

immigration document, that information 

is reflected in the SAVE system. Thus, 

aliens in these situations would be able 

to obtain REAL ID-compliant licenses 

and States would not have to add any 

additional processes with USCIS. 

I. Minimum Driver’s License or 

Identification Card Data Element 

Requirements 

1. Full Legal Name 

Comment: Many commenters raised 

issues about the concept of full legal 

name. One commenter stated that the 

provision infringes on powers reserved 

to the States in that it dictates to the 

States acceptable methods for name 

changes, and that it effectively nullifies 

the common law name change process 

that some States permit. Proposed 

§ 37.11(c)(2) would have required the 

applicant to present documents showing 

a legal name change, but several 

commenters pointed out that these 

documents may come from local or 

foreign government sources in addition 

to Federal and State governments. Two 

States opposed the proposed 

requirement to present these 

documents, and an individual opposed 

having name change information on the 

REAL ID. One State suggested that the 

rule also should provide instructions for 

individuals whose gender has been 

legally changed. 

Response: DHS agrees that where 

State law or regulation permits an 

individual to establish a name other 

than that contained on the identity 

document he or she presents for a REAL 

ID driver’s license or identification card, 

the State shall maintain copies of the 

documentation presented pursuant to 

§ 37.31 and maintain a record of both 

the recorded name and the name on the 

source documents in a manner to be 

determined by the State. The use of 

initials or nicknames shall not be 

permitted, except to the extent that an 

initial is necessary to truncate a name 

longer than 39 characters in length, in 

which case the name should be 

truncated pursuant to ICAO–9303 

standards. DHS also agrees that local or 

foreign government-issued documents 

can be used to establish a name history. 

The final rule reflects these changes. 

Comment: Numerous States and 

AAMVA stated that there is no standard 

naming convention for Federal agencies 

and as a result passports, immigration 

documents, and social security cards list 

disparate names, making identifying the 

full legal name difficult. Many States 

commented that the Federal government 

needs to adopt a single standard for full 

legal name and apply it to all Federal 

records, rather than depending on the 

State DMVs to resolve this in the face of 

multiple Federal approaches. Due to 

discrepancies among naming 

conventions, one commenter suggested 

that DHS provide a list of most 

acceptable to least acceptable 

documents used to establish full legal 

name. Several commenters wrote that 

documents evidencing a name change 

may come from local or foreign 

government sources in addition to 

Federal and State governments. 

Response: DHS agrees that there is no 

standard naming convention currently 

used by Federal agencies. It would be 

beyond the scope of DHS’s rulemaking 

authority to impose such a convention 

on all Federal agencies. Nevertheless, 

the lack of a common Federal standard 

does not mean that DHS should not 

establish minimum standards for the 

States to follow as required by the REAL 

ID Act. However, based on comments 

received, DHS is slightly modifying the 

definition of the definition of ‘‘full legal 

name’’ to bring it closer to existing name 

conventions used by the Social Security 

Administration, the Department of 

State, and other issuers of source 

documents. 

Comment: AAMVA and numerous 

States commented that the States need 

flexibility and DHS should drop the 

prohibition against using initials and 

nicknames. One State wrote that the 

name on the driver’s license should be 

the one the person chooses to use, with 

the full legal name stored in the 

database and in the MRZ, and that 

without common naming conventions, 

it is imprudent to assume that a 

regulatory requirement forcing the 

public to adopt a single name will 

achieve any desired end. One State 

commented that it should be able to use 

an alternative name if the applicant’s 

source documents clearly show a link 

between that name and the name 

presented on other source documents. 

Response: As noted above, DHS 

agrees that where State law permits an 

individual to establish a name other 

than that contained on the identity 

document presented for a REAL ID 

driver’s license or identification card, 

the State must maintain a record of how 

the name was established in a manner 

to be prescribed by the State. The use 


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of initials or nicknames shall not be 

permitted, except to the extent that an 

initial is necessary to truncate a name 

longer than 39 characters in length, in 

which case the name should be 

truncated pursuant to ICAO–9303 

standards. Where the individual has 

only one name, that name should be 

entered in the last name or family name 

field, and the first and middle name 

fields should be left blank. Place holders 

such as NFN and NMN should not be 

used. 

Comment: Both States and victim 

advocacy groups objected to the full 

legal name requirement because the rule 

would not provide exceptions for 

victims of domestic violence. The rule 

would require that past names be 

included in DMV records, which would 

expose victims to danger. In addition, 

the SSA requires victims to change their 

names before changing SSNs and 

prohibits them from revealing previous 

names and SSNs. Commenters wrote 

that the proposed rule conflicts with 

this prohibition by requiring that the 

previous names be revealed as well as 

with the court orders under which many 

victims are granted new identities. 

Response: The REAL ID Act does not 

include any exceptions for victims of 

domestic violence not to provide their 

full legal names. DMVs may want to 

take appropriate measures to protect the 

confidentiality of those records so that 

a stalker or victimizer could not use the 

DMV database to locate the individual. 

Comment: Many commenters noted 

concern with the name requirement for 

the MRZ, particularly inclusion of the 

name history on the MRZ. States 

questioned whether some name 

histories would fit on the MRZ. Others 

questioned the need for the requirement 

if the history is available in the State 

DMV database and cited the potential 

for abuse. Many also commented that 

the requirement would result in a 

complete rewrite of States’ systems and 

is one of the most costly parts of the 

rule. For example, one State commented 

that the 125-character field would delay 

its implementation for 3 to 5 years until 

it can obtain a new mainframe. 

Response: DHS agrees with the 

comments and is no longer requiring 

that the name history be stored on the 

MRZ. 

Comment: One State asked for 

guidelines for translating names from 

other alphabets: a name in the Cyrillic 

alphabet can be changed to the Latin 

alphabet a variety of ways. Another 

commenter recommended referencing 

the AAMVA name specifications 

generically rather than a particular 

edition. The commenter also suggested 

changing ‘‘Roman alphabet’’ to ‘‘Latin 

alphabet.’’ Commenters noted other 

problems with the full legal name 

requirement, such as naming 

conventions in other countries and 

cultures, conversion of these names 

onto various immigration documents, 

and the ‘‘Americanization’’ of foreign 

names when living in the United States. 

Response: DHS has changed ‘‘Roman’’

alphabet to ‘‘Latin’’ alphabet in the final 

rule. DHS is not requiring any particular 

transliteration method, but notes that 

both AAMVA and ICAO have published 

standards that address the issues raised 

in these comments. 

2. Gender 

Comment: Two States raised issues 

about how gender is determined for 

transgender individuals and whether 

gender will be included as a verifiable 

identifier through EVVE. 

Response: DHS will leave the 

determination of gender up to the States 

since different States have different 

requirements concerning when, and 

under what circumstances, a 

transgendered individual should be 

identified as another gender. Data fields 

in EVVE are outside the scope of this 

rulemaking. 

3. Digital Photograph 

Comment: A number of States 

objected to the requirement to take the 

applicant’s photograph at the beginning 

of the licensing process because doing 

so would require extensive changes to 

State processes, facilities, and vendor 

contracts. According to one commenter, 

only seven States currently take an 

applicant’s photo at the beginning of the 

process. One State requested a costbenefit analysis for taking the 

photograph at the start of the process. 

One commenter suggested using an 

inexpensive image capture at first, then 

replacing the image with the final 

digital photo on issuance. 

Response: Under § 202(d)(3) of the 

REAL ID Act, States must subject each 

person applying for a driver’s license or 

identification card to a mandatory facial 

image capture. Submission of an 

application for a driver’s license occurs 

at the beginning of the licensing 

process, and as such, requires that the 

photo be taken at the beginning of the 

process. Additionally, from a law 

enforcement and operational 

perspective, an up-front image capture 

process serves as a deterrent to 

individuals attempting to present 

fraudulent documents or to ‘‘office 

shop’’ within a jurisdiction when their 

application may have been already 

denied in another office. 

Comment: A number of commenters 

objected to the requirement for a color 

photograph because it would bar the use 

of laser engraving. One commenter 

stated that photographs are better for 

checking identities. However, AAMVA 

and other States recommended that the 

required image be in color. 

Response: DHS agrees with those 

commenters that a black and white 

photograph should also be acceptable in 

order to facilitate the use of laser 

engraving technology by States choosing 

to employ this technology to deter 

counterfeiters, and the altering and 

tampering of their driver’s licenses and 

identification cards. The final rule has 

been changed accordingly. 

Comment: One commenter suggested 

that DHS replace the ICAO 9303 

standard’s aspect ratio with the 

AAMVA’s aspect ratio, which is the 

Universal Camera Aspect Ratio. 

Response: DHS believes the proposed 

ICAO aspect ratio, with an Image Width: 

Image Height aspect ratio range of 1:1.25 

and 1:1.34, will accommodate the 

AAMVA Universal Camera Aspect Ratio 

of 1:1.33. 

Comment: Several commenters wrote 

that requiring photographs could 

burden the free exercise of religion for 

some groups, such as Amish Christians 

and Muslim women. One commenter 

noted that banning the wearing of veils 

and scarves would require new State 

legislation. Another commenter asked 

DHS to clarify that a person may not 

wear any garment that affects the 

reliability of facial recognition 

technologies. Another State said the 

regulation should require States to 

refuse a license or ID to anyone who 

appears in disguise or distorts the face 

when photographed. 

Response: As DHS stated in the 

preamble to the NPRM, the REAL ID Act 

requires a facial photograph, which 

serves important security purposes. 

Given these security 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-compliant 

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 noncompliant driver’s licenses and 

identification cards at § 37.71. 

While the final rule does not 

specifically address individuals who 

appear in disguise or who distort their 

face when photographed, DHS expects 

that States will implement their own 


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procedures to ensure that the 

photographs are accurate 

representations of the individuals. 

Comment: Some States objected to the 

requirement for a profile photograph for 

people under 21 years of age because it 

will defeat biometric facial recognition 

systems. One commenter suggested 

printing the cards with a different 

orientation to differentiate under-21 

licensees while allowing for facial 

recognition technologies. 

Response: A typographical error in 

the NPRM left the misimpression that 

DHS was requiring a profile photograph 

for individuals under age 21. The final 

rule does not require a profile 

photograph for people under 21, and 

instead requires a full facial digital 

photograph. 

Comment: One commenter 

recommended that States be required to 

share their images. Another State 

commented that the requirement to 

retain images of people suspected of 

fraud would mean that they had to keep 

all images because the suspicion of 

fraud may occur long after the license is 

issued, and data storage costs would be 

significant. 

Response: DHS agrees that there 

would be substantial value in 

preventing the acquisition of multiple 

identity documents if States were able 

to exchange images of their license 

holders with one another. DHS believes 

that the States have the same interest 

and therefore States must ensure that 

the same individual does not have 

multiple driver’s licenses or 

identification cards from the same State. 

DHS also encourages States to 

participate in AAMVA Fraud Early 

Warning System (FEWS) or similar 

system for exchanging information on 

fraud or attempted fraud in the issuance 

of driver’s licenses or identification 

cards. DHS believes that the volume of 

images of individuals who start, but do 

not complete the application process, 

will not be so great as to impose 

substantial data storage costs on the 

States. 

4. Address of Principal Residence 

Comment: One State noted that it has 

a ‘‘homeless exception’’ to its proof of 

residency requirement where proof of 

residency documents are waived if the 

applicant provides a letter, on 

letterhead, signed by the director of a 

homeless shelter, certifying that the 

individual is homeless and stays at that 

shelter. It suggested that this be an 

acceptable action under an ‘‘exceptions 

process’’ for the homeless. Other States 

voiced concern that the rule does not 

address the ‘‘truly homeless,’’ those not 

living in a shelter. 

Response: DHS agrees that a letter, on 

letterhead, signed by the director of the 

homeless shelter, certifying that an 

individual is homeless and stays at that 

shelter, should be sufficient to establish 

an individual’s address of principal 

residence under a State’s exceptions 

process. As noted above, States have 

wide latitude to address issues 

concerning an individual’s address of 

principal residence within their Statespecific exceptions process. 

Comment: AAMVA, other 

commenters, and many States 

commented that DHS allow States the 

authority to provide for the 

confidentiality of individual’s address 

of principal residence, including the 

categories of individuals who would be 

subject to the address exception. One 

commenter suggested that DHS devise 

standard rules governing address 

confidentiality rather than allowing 

each State to devise separate and unique 

requirements. One State claimed that a 

confidential address program is 

unnecessary. 

Response: DHS agrees that States 

should have broad authority to protect 

the confidentiality of the address of 

principal residence for certain classes of 

individuals. DHS has added additional 

clarifying language in the final rule that 

should help to alleviate any 

uncertainties. 

Comment: Numerous commenters 

claimed that the confidential address 

provision in the rule did not address all 

individuals who may have legitimate 

reasons for protecting their addresses 

from public disclosure. Commenters 

noted that § 37.17(f)(1) was too narrow 

and would not qualify individuals who 

would otherwise be protected under 

State law. Several States recommended 

additional address exceptions for the 

following categories: sitting and former 

judges, Federal officials in limited 

circumstances, covert law enforcement 

officers as long as the officer provides a 

letter of authorization, State 

administrative personnel engaged in law 

enforcement, participants in the witness 

protection program, and victims of 

domestic violence. One commenter 

stated that the exemption should 

include family members when laws or 

court orders suppress the addresses of 

those individuals. 

One commenter claimed that the 

partial exemption to the principal 

address requirement is inadequate by 

removing the option of not listing an 

address and relying solely on State laws 

that cover a limited number of 

individuals. The commenter noted that 

only 24 States have confidentiality 

programs in place, which is a 

requirement for the exemption to apply. 

Victims in the remaining jurisdictions 

will not be protected unless they can 

obtain a court order suppressing their 

addresses. Another commenter wrote 

that States have created formal address 

confidentiality programs and have also 

provided general measures of residential 

address privacy and this rule overrides 

these substantial protections. 

Response: As noted above, DHS 

agrees that States should have broad 

authority to protect the confidentiality 

of addresses. DHS has clarified language 

in the final rule so that it is clear that 

a DMV may apply an alternate address 

on a driver’s license or identification 

card if the individual’s address is 

entitled to be suppressed under State or 

Federal law or suppressed by a court 

order including an administrative order 

issued by a State or Federal court. 

Comment: A few States claimed that 

use of alternative addresses is justified 

on the REAL ID cards, but that the 

principal residence must be captured 

and stored in a secure database. They 

requested clarification from DHS on 

how States would meet the 

requirements related to the protection of 

the principal residence addresses. 

Another State noted that it has no 

confidential address program, but it 

permits a post office box to be displayed 

on the identification document if 

requested, but again it retains the 

permanent address in a database. One 

commenter stated that the better level of 

protection would be to note in the MRZ 

that the individual’s address is 

protected and provide a pointer to 

whatever relevant authority handles 

those addresses for that jurisdiction. 

This process would also serve a 

secondary purpose in that anyone 

seeking the address would make a 

request that could be logged and 

validated. 

Response: DHS agrees that an 

individual’s true address must be 

captured and stored in a secure manner 

in the DMV database even if an alternate 

address appears on the face and MRZ 

portions of the driver’s license or 

identification card. 

Comment: One commenter 

recommended that the final rule allow 

courts to issue administrative orders 

suppressing the collection of REAL ID 

information or its display on 

identification documents in any 

jurisdiction where the legislature has 

not acted to protect privacy. 

Response: DHS agrees with this 

comment and has changed the final rule 

to reflect that an address may be 

suppressed by a court order including 

an administrative order issued by a 

State or Federal court. 


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5. Signature 

Comment: Two States and another 

commenter stated that the rule needs to 

allow for people who cannot sign the 

card, such as minors, and older or 

disabled persons. If States use a 

signature match, an alternative process 

must be available. 

Response: DHS agrees with these 

comments. Section 37.17(g) now 

provides that a State ‘‘shall establish 

alternative procedures for individuals 

unable to sign their names.’’ This 

language gives the States wide latitude 

in how to address situations where an 

individual is unable to sign his or her 

driver’s license or identification card. 

6. Physical Security Features 

Comment: Numerous States and other 

commenters stated that DHS should 

provide security objectives or 

performance standards, and not specify 

particular technologies, materials, or 

methods. AAMVA wrote that States are 

using the AAMVA Driver Licensing/ 

Identification Card Design Specification 

as the minimum standard and to change 

direction now would be costly for 

States. AAMVA further commented that 

restricting all State-issued driver’s 

licenses and identification cards to a 

single security configuration could 

introduce new security vulnerabilities 

rather than protect the driver’s licenses 

and identification cards against fraud. 

AAMVA wrote that it is not aware of 

any jurisdiction that uses all the listed 

security features with the proposed card 

stock in its card design or production. 

Numerous commenters stated that the 

proposed requirements would eliminate 

over-the-counter issuance systems and 

place an unnecessary financial burden 

on States. 

Response: DHS understands that there 

are challenges States may face in 

producing secure driver’s licenses and 

identification cards. The final rule 

removes requirements to use specific 

technologies, and provides the 

flexibility for States to implement 

solutions using a combined set of 

security features that provide maximum 

resistance to counterfeiting, alteration, 

substitution, and the creation of 

fraudulent documents from legitimate 

documents. DHS will work with 

stakeholders to develop performance 

standards and a methodology for 

adversarial testing. 

Comment: Commenters were 

concerned that DHS was not targeting 

its security enhancement properly, and 

that increased security features would 

not accomplish the goal of reducing 

fraud. AAMVA and another State 

commented that major DMV fraud and 

abuse issues are not associated with the 

cards, but with source documents that 

cannot be verified, system breakdowns, 

and people who breach integrity. 

Another State commented that unless 

airports, Federal facilities, and nuclear 

plants have document authentication 

systems, implementation of REAL ID is 

without purpose. One State also stated 

that unless inspectors are trained in 

fraud detection or equipment is 

available for detection, fraud will 

continue. One commenter 

recommended that the AAMVA 

fraudulent document recognition 

training be used. 

Response: DHS agrees, generally, that 

no single solution eliminates all fraud 

relating to an identity document. That is 

why the NPRM proposed, and the final 

rule requires, steps to improve internal 

procedures at DMVs as well as the 

physical driver’s license or 

identification card issued by the States. 

DHS agrees that fraud detection training 

is an important element in an anti-fraud 

regime and endorses the use of 

AAMVA’s fraudulent document 

recognition training or equivalent by the 

States. 

Comment: AAMVA stated that States 

cannot consider making any changes 

until existing contracts with card 

integrators expire or they will face high 

penalties for breaking existing contracts; 

any change would require States to 

proceed though the competitive bidding 

processes, evaluate proposals, award 

new contracts, and implement the 

complex and expensive process of reengineering their issuance processes. 

Any wholesale change in card design 

will be costly, complex, and time 

consuming. Several States also noted 

that contractual processes will slow 

implementation. 

Response: DHS understands that 

existing vendor contracts make it 

difficult for some States to make 

changes during the term of their card 

contracts. The final rule provides 

flexibility in card solutions. DHS will 

require States to take appropriate 

measures to issue driver’s licenses and 

identification cards that are resistant to 

tampering, alteration or counterfeiting. 

Comment: Commenters, particularly 

States that issue driver’s licenses and 

identification cards ‘‘over the counter,’’

objected to check digit specification, 

unique serial number, application of 

variable data, and laser printing. One 

commenter supported associating card 

stock serial number with a customer. 

One State agreed with incorporation 

into the card of taggant (a radio 

frequency identification chip) and 

marker, but said that only State 

employees need to know if the State is 

using such embedded technology. One 

State noted that it uses seventeen overt, 

covert, and forensic security features to 

make counterfeiting difficult; it 

recommended that States use different 

designs and combinations of security 

features to deter counterfeiters. One 

commenter wrote that the proposed rule 

includes a requirement for an optically 

variable feature and suggests that a 

‘‘diffractive optically variable feature’’

be included to enhance protection. The 

commenter said it is unclear how this 

feature enhances protection over 

existing State-issued driver’s licenses 

and identification cards as many already 

use such technology. The commenter 

recommended optically variable ink as 

a security feature. This ink technology, 

currently used in U.S. passports and 

outlined in the FIPS 201 security 

standards, is not reproducible using 

commonly used or available 

technologies, and requires much less 

training to authenticate quickly. No 

readers or special equipment are 

required to observe the color shifting 

effect, meeting the requirements in the 

proposed rule for a Level 1 security 

feature. Additional forensic security, 

such as micro-flakes with etched on 

numbers, logos or words that are visible 

under low-power magnification can be 

included in the micro-flakes of the overt 

optically variable color shift technology, 

meeting the requirements in the 

proposed rule for Level 2 and Level 3 

security features. 

Response: The final rule provides for 

a performance-based, not prescriptive, 

approach to card solutions. Specific 

security requirements are not mandated 

in the rule. However, the final rule 

includes requirements for three levels of 

document security designed to provide 

maximum resistance to counterfeiting, 

alteration, substitution, and the creation 

of fraudulent documents from legitimate 

documents that are not reproducible 

using common or available 

technologies. DHS encourages States to 

explore the range of existing and stillto-be developed technologies in this 

area. The final rule requires States to 

use card stock and printing materials 

that are not widely available 

commercially in order to significantly 

decrease the likelihood that a driver’s 

license or identification card could be 

easily counterfeited or altered. 

Comment: One commenter 

recommended inclusion of a digital 

signature as a Level 3 security feature. 

Response: The final rule provides for 

performance-based, not prescriptive 

requirements for implementation. While 

digital signatures offer a higher level of 

security, States may choose to invest in 

other, similarly secure technologies. 


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DHS encourages States to consider the 

use of this and other security features. 

Comment: States asked for 

clarification as to the meanings of 

‘‘inspector,’’ ‘‘microline text,’’ ‘‘micro 

print,’’ ‘‘external surfaces,’’ ‘‘taggant,’’

and ‘‘marker.’’

Response: DHS has removed the 

requirements involving these terms, so 

does not need to clarify these terms. 

Comment: Two commenters stated 

that security features should not make it 

impossible to copy or create a digital 

image of a license, and that the rule 

should make it clear that any print on 

the image must not obscure the features. 

One State asked that DHS remove 

language forbidding reproducible 

security features and retain § 37.15(f)(2). 

Response: DHS agrees that the 

security features employed should not 

make it impossible to copy or create a 

digital image of a license. Many private 

sector industries, including the banking 

sector, often need to reproduce and 

retain a copy of an individual account 

holder’s driver’s license or 

identification card. DHS also agrees that 

print on the image should not obscure 

the individual’s features. 

Comment: One commenter 

recommended incorporating some 

security features in the substrate. 

Response: The final rule requires level 

1, 2 and 3 security features that provide 

multiple layers of security, and States 

may adopt security features that meet 

their needs, including incorporating 

security features into the substrate. 

Comment: One commenter stated that 

requiring a color photo and laser 

printing means that two printers will be 

needed. 

Response: The final rule allows for 

either a color or black and white 

photograph. Laser engraving, while a 

very effective security measure, is not a 

requirement of this rule. 

Comment: One State commented that 

it currently uses adversarial testing for 

its cards and provided detailed 

information on its process. AAMVA and 

several States said that there are no 

adversarial testing standards and that 

DHS should develop them and either 

take responsibility for testing the cards 

or certify the testing organizations. 

Another commenter recommended that 

there should be a single center for 

adversarial testing using a single set of 

criteria to avoid the undue influence of 

vendors and disparate standards. Some 

States suggested alternatives to 

adversarial testing, such as card design 

security programs or security audits. 

One commenter suggested that 

adversarial testing occur only if the 

State card has changed rather than 

annually. Another commenter 

recommended testing every five years or 

at contract changes. 

Response: The development of 

standards and adversarial analysis and 

testing of driver’s licenses and 

identification cards is an effective 

approach to ensuring that these 

documents provide maximum resistance 

to counterfeiting, simulation, alteration 

and creation of fraudulent driver’s 

licenses and identification cards. DHS 

will work to develop performance 

standards and adversarial analysis and 

testing. 

Independent adversarial testing is an 

important tool in limiting the ability of 

someone to tamper, alter, or counterfeit 

a driver’s license or identification card. 

DHS agrees with the comments that 

there are no recognized testing 

standards to date and a lack of available 

and accredited testing facilities. 

Therefore, DHS has removed the 

requirement for States to obtain an 

independent adversarial test of their 

card security. 

Comment: Numerous commenters 

objected to the card stock requirement, 

stating that the NPRM design 

specification essentially calls for 

polycarbonate material and AAMVA 

and its members do not support 

polycarbonate as the only option for the 

cards. This material is not used 

anywhere in the United States today, is 

the highest cost card material in 

production today, and is only available 

from a limited number of vendors, 

which negates State requirements for 

competitive bidding. Another 

commenter noted an inconsistency 

between polycarbonate card stock and 

the requirement to meet ICAO 9303. The 

ICAO standard requires a color photo, 

but polycarbonate card stock allows 

only black and white photos. 

Privacy groups supported use of 

polycarbonate cardstock in conjunction 

with laser engraving because laser 

engraving on other card stocks may be 

removable. One commenter indicated 

that other stocks would function as 

well. Another commenter stated that 

requirements for card stock durability 

should be based on the renewal period 

used by the State. One State asked to 

whom missing card stock should be 

reported. 

Response: The final rule reflects a 

less-prescriptive approach to card 

security, and does not mandate the use 

of a specific card stock and prescriptive 

security features. The final rule requires 

States to use card stock and printing 

methods that are not widely available 

commercially in order to significantly 

decrease the likelihood that a driver’s 

license or identification card can easily 

be counterfeited or altered. States 

should develop and utilize a system of 

reporting missing card stock and other 

secure supplies and equipment related 

to the production of driver’s licenses 

and identification cards to other State 

DMVs and law enforcement. 

7. Machine Readable Technology 

Comment: Privacy groups and several 

States recommended laws limiting the 

collection and storage of Machine 

Readable Zone (MRZ) data by third 

parties. Several other States commented 

on the importance of accessibility for 

law enforcement and noted that the 

same information is available on the 

front of the identification cards in 

human-readable form. Some 

commenters wanted MRZ access 

restricted to law enforcement, while 

others supported also providing access 

for bars and liquor stores to help 

prevent underage drinking but limiting 

their collection and storage of the 

personal information. One commenter 

stated that nothing in the REAL ID Act 

authorizes Federal agencies to read and 

collect information contained in the 

MRZ and cited to the Conference Report 

statement that the MRZ must only be 

able to be read by law enforcement 

officials. One commenter opposed any 

indication in the MRZ that a person was 

an owner or buyer of firearms or was 

licensed to carry a firearm; the 

commenter also asked that DHS forbid 

the inclusion of this information unless 

required by State law. 

Response: The REAL ID Act does not 

provide DHS with authority to prohibit 

third party private-sector uses of the 

information stored on the REAL ID card. 

As noted in the proposed rule and the 

PIA issued in conjunction with the 

rulemaking, at least four States 

(California, Nebraska, New Hampshire, 

and Texas) currently limit third-party 

use of the MRZ, and AAMVA has issued 

a model Act limiting such use. DHS 

encourages other States to take similar 

steps to protect the information stored 

in the MRZ from unauthorized access 

and collection. In response to 

commenters urging that the rule limit 

Federal agency access to the MRZ, DHS 

is not aware of any current plans by 

Federal agencies to collect and maintain 

any of the information stored in the 

MRZ. If a Federal agency should decide 

to use the MRZ to collect and maintain 

personally identifiable information in 

the future, any such information 

collected from the MRZ will, of course, 

be subject to the protections of the 

Privacy Act and other Federal laws and 

policies regulating the use and handling 

of personally identifiable information. 

This final rule does not require (and the 

NPRM did not propose) that the MRZ 


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contain any information about firearm 

ownership. 

Comment: Many commenters 

suggested data elements that should or 

should not be in the MRZ. AAMVA 

stated that the final rule should limit the 

MRZ elements to those set out in its 

driver license card design standard. 

Another commenter wrote that DHS 

should set the minimum data elements 

in the MRZ at zero and the maximum 

at full legal name, date of birth, and 

license number. Other commenters 

stated that data on the MRZ should be 

limited to what is on the face of the 

document. One State recommended 

inclusion of the issuing State in the 

MRZ to facilitate the routing of NCIC 

inquiries by law enforcement agencies 

using in-car bar code reading 

equipment. Another commenter 

suggested limiting the MRZ data to a 

pointer that does not correspond to the 

ID number that would link to a database 

limited to law enforcement. One 

commenter recommended including the 

digital image in the MRZ using the ISO/ 

IEC 18013–2 standard. Two States 

opposed including an inventory control 

number (ICN). One commenter objected 

to the PDF standard because the NPRM 

preamble had referenced adopting most 

of the data elements in the 2005 

AAMVA Driver’s License/Identification 

Card Design, which includes coding for 

race. 

Response: The final rule mandates 

that the States use the PDF417 2D bar 

code standard with the following 

defined minimum data elements: 

Expiration date; holder’s legal name; 

issue or transaction date; date of birth; 

gender; address; unique identification 

number; revision date (indicating the 

most recent change or modification to 

the visible format of the license or 

identification card); inventory control 

number of the physical document; and 

State or territory of issuance. The 

proposal in the NPRM to include the 

full name history, including all name 

changes, has been dropped. Race is not 

a data element contemplated in this 

rulemaking and the reference in the 

NPRM to the AAMVA standard was not 

intended to include race as a data 

element in the MRZ for REAL ID. 

The majority of commenters on the 

issue of data elements recommended 

limiting the data elements to those 

needed by law enforcement and the 

DMVs to carry out their duties. The final 

rule sets the minimum elements to 

include, but recognizes the authority of 

the individual States to add other 

elements such as biometrics, which 

some currently include in their cards. 

Changes in technology in the future 

may enable the States to reduce the 

elements to a pointer that would 

electronically link to a database and 

provide only authorized parties access 

to information that today is stored in the 

MRZ. The current technology available 

to State DMVs and most law 

enforcement officers, however, does not 

provide that capability. 

Comment: Several commenters said 

the 2D barcode is easily copied and 

reproduced. One commenter supported 

the 2D barcode, but noted that it is not 

meant to be a security feature; the 2D 

barcode does not allow an upgrade of an 

encryption scheme, does not employ 

dynamic forms of authentication, does 

not store audit trails, and does not use 

other security features. One commenter 

stated that the rule for the barcode was 

insufficient, particularly that there was 

no barcode standard specified which 

would facilitate the common machine 

readable technology requirement 

mandated by the REAL ID Act. Two 

existing standards could provide the 

basis for what is needed: One is the 

AAMVA format and the other is the 

format in the draft of part 2 ISO 

standard 18012. However, the proposed 

rule required fields that are specified 

differently or are just not in either of 

these standards. One commenter 

objected to the standard because the 

selected version includes coding for 

race. One commenter stated that 

mandatory requirements make it 

difficult to keep up with technology. A 

security group and one State stated the 

bar code should include a revision date. 

Response: DHS recognizes that a 2D 

barcode may have security 

vulnerabilities and technology 

limitations compared to other available 

technologies. However, the PDF417 2D 

barcode is already used by 45 

jurisdictions and law enforcement 

officials across the country. A different 

technology choice could hamper law 

enforcement efforts and may pose an 

additional financial burden on the 

States. DHS supports efforts of States to 

explore additional possible technologies 

in addition to the PDF417 2D barcode. 

DHS disagrees with the notion that 

the standard selected should be rejected 

because it includes coding for race. DHS 

has never stated that race should be 

encoded on the license, and specifically 

stated in the proposed rule that it was 

not incorporating wholesale the card 

data elements currently required by 

AAMVA. 

Comment: One commenter supported 

the decision to omit an RFID device. It 

stated, however, that the NPRM does 

not discuss what information from a 

card should be made available digitally 

and what purpose it would serve. 

Response: DHS is not requiring that 

States employ RFID in REAL ID Act 

cards; rather the only technology 

required by the final rule is the use of 

the PDF417 bar code, which most States 

already use on their cards. The 

information stored on the MRZ enables 

law enforcement officers to compare the 

information on the MRZ with the 

information on the front of the card to 

determine whether any of the 

information on the front has been 

altered and to automatically populate 

law enforcement reports, increasing 

officer safety. The ability to run the 

MRZ through a scanner device also 

enables an officer to quickly retrieve the 

information on the card and request 

from their dispatch office additional 

information on the individual, while 

maintaining visual contact with a 

suspect, a safety consideration for the 

officer. 

8. Encryption of MRZ Information 

Comment: Commenters were divided 

on whether some or all data in the MRZ 

should be encrypted. In general, groups 

concerned with privacy issues 

supported encryption, although one 

commenter argued that encryption 

would provide a false sense of security. 

Three States supported encrypting MRZ 

data. Groups supporting encryption 

cited the following: 

—The capture of data by other users, 

such as financial, retail, or 

commercial institutions that could 

retain, use, and sell the personal data. 

—The possible inclusion of additional 

private information in MRZ, such as 

residential address, race, 

[trans]gender, or legal name history 

that could expose the holder to harm 

if captured and revealed. 

—Congressional intent to limit use of 

the data to law enforcement. 

Some commenters stated that if DHS 

does not mandate encryption, it should 

at least not prohibit it. Others supported 

encryption of only some data, 

specifically data not available on the 

front of the card. One supporter stated 

that DHS should have done a 

comprehensive analysis of encryption 

systems and their costs and presented 

that data. 

Numerous other commenters, 

including the States and AAMVA, 

opposed encrypting the data. Other 

commenters were divided among those 

who believed it is feasible to encrypt the 

data, those who considered it infeasible, 

and those who offered alternative 

technologies, particularly smart cards 

and public key infrastructure. 

Commenters opposing encryption cited 

the following reasons: 


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—The difficulty of managing encryption 

keys that could be used to decrypt any 

REAL ID. If a single key was used, 

once the key was compromised, every 

driver’s license issued with the key 

would be insecure. If multiple keys 

are used (e.g., different keys for each 

State), then every law enforcement 

agency would have to be able to 

access all of the keys. Multiple keys 

would limit the threat because key 

compromise would affect fewer 

driver’s licenses, but would increase 

the difficulty of using the MRZ data 

across the country. Once a key is 

compromised, any license issued 

using that key would have to be 

replaced to be secure. 

—The cost of systems for law 

enforcement. The costs cited included 

the cost to replace existing readers 

plus the cost of setting up an 

encryption system and the ongoing 

costs of managing keys. 

—The additional time required for law 

enforcement. Particularly if multiple 

keys are used, law enforcement and 

DMV officials may need more time to 

read the data. This added time 

requirement would limit the ability to 

check the validity of documents 

quickly, particularly those from other 

States. 

—The inability of non-law enforcement 

to use the data to verify the validity 

of the information on the face of the 

card. Businesses also use the MRZ 

data to determine if the document is 

genuine. Eliminating that ability 

would harm businesses that rely on 

the driver’s license and would affect 

the ability of restaurants and bars to 

confirm ages. These businesses can 

help identify criminal use of false 

documents using the MRZ. Some 

commenters argued that the 

government should set limits on the 

retention and use of the data rather 

than encrypt the MRZ. 

—The futility of encrypting data present 

on the front of the card. Commenters 

stated that if the data included in the 

MRZ are readable on the front of the 

card, encrypting the MRZ provides no 

protection because optical scanning 

readers are capable of translating the 

card data into a database. The 

information can also be copied or 

transcribed. 

Response: DHS considered the many 

comments on this issue and 

acknowledges that the skimming of the 

personally identifiable information from 

the MRZ raises important privacy 

concerns. Nevertheless, given law 

enforcement’s need for easy access to 

the information and the complexities 

and costs of implementing an 

encryption infrastructure, no encryption 

of the MRZ will be required at this time. 

If the States collectively determine that 

it is feasible to introduce encryption in 

the future, DHS will consider such an 

effort, as long as the encryption program 

enables law enforcement to have easy 

access to the information in the MRZ. 

Moreover, DHS, in consultation with the 

States, DOT, and after providing for 

public comment, is open to considering 

technology alternatives to the PDF417 

2D bar code in the future to provide 

greater privacy protections. 

J. Validity Period and Renewals of REAL 

ID Driver’s Licenses and Identification 

Cards 

1. Validity Period 

Comment: At least two commenters 

said that the proposed eight-year 

validity period is too long, because it 

would give counterfeiters and forgers 

too much time to learn how to simulate 

or alter cards in circulation. The groups 

recommended that DHS require States 

to adopt a validity period of no more 

than five years. AAMVA and one State 

said that State DMVs should be allowed 

to determine the duration of their 

licenses based on business processes 

and needs. A few States said that a 

validity period of no more than eight 

years would create difficulties for 

elderly and some disabled persons who 

are clearly not national security risks. 

These States asked for the flexibility to 

grandfather these populations or to 

issue cards with extended validity 

periods. 

Response: The REAL ID Act 

establishes a maximum license validity 

period of eight years. Nothing in the Act 

or the rules precludes a State from 

adopting a shorter validity period for 

business, security, or other needs. 

2. Reverification of Source Document 

Information 

Comment: AAMVA and several States 

expressed strong opposition to the 

requirement that States re-verify 

information and source documents for 

renewals and replacements of driver’s 

licenses and identification cards. They 

said that this requirement would be 

costly, burdensome, and unnecessary in 

part because of the processes that many 

States already have in place for 

renewals and replacements. In addition, 

some commenters claimed that the 

requirement to re-verify source 

documents such as address 

documentation is impossible to comply 

with because there is no electronic 

system to do so. One State DMV pointed 

out that because Federal and State 

databases are not updated in real time, 

it is likely that changes would not be 

immediately verifiable. 

One State supported requiring reverification of birth certificates because 

changes to the birth certificate, such as 

a name change, could be made after the 

original birth certificate verification 

occurred. This suggestion would also 

allow for matching against State death 

information to prevent fraud. Another 

State endorsed the re-verification of 

information for temporary REAL ID 

licenses and for driver and ID card 

holders who do not have Social Security 

numbers. 

Response: DHS agrees with the 

comments that it is not necessary to reverify all source documents at renewal. 

DHS proposed this requirement in the 

NPRM since it recognized that the 

quality of recordkeeping in both Federal 

and State databases would improve over 

time. Instead DHS has amended the rule 

to require reverification of SSN and 

lawful status prior to renewal and 

verification of information that the State 

was previously unable to verify 

electronically. 

Comment: Several State DMVs asked 

DHS to clarify exactly what they would 

need to do to ‘‘re-verify’’ information. 

For example, one State asked if States 

would be required to verify each source 

document and imaged piece of 

information if electronic verification 

systems were not available at the time 

of initial enrollment. One State asked if 

States could use original source 

documents to re-verify applicant 

information if the documents have 

expired since the date of original 

verification. Another State asked DHS to 

explain the difference between 

‘‘verified’’ and ‘‘validated’’ as referenced 

in § 37.23(b)(1)(ii) of the NPRM. 

Response: As noted above, DHS is not 

requiring States to re-verify source 

documents at renewal. However, States 

must reverify the SSN and lawful status 

upon renewal and electronically verify 

information that the State was 

previously unable to verify 

electronically. 

Comment: AAMVA said that DHS 

should allow States to determine if they 

want to re-verify information that has 

already been verified by another State. 

AAMVA said that the new State of 

residency should be able to determine 

whether to ‘‘re-vet’’ an applicant’s 

information. One State requested that 

DHS allow a license transferred from 

another State to be renewed or replaced 

remotely, even if the new State of 

residence does not have electronic 

copies of the applicant’s identity 

documentation. One State said that the 

renewal of a REAL ID-compliant card 

should only require the minimum 


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combination of a REAL ID document 

and some proof of address. Another 

State suggested that States be allowed to 

exempt from re-verification applicants 

who have been verified at initial 

enrollment as U.S. citizens and who 

have had no changes to name or Social 

Security information. A few 

commenters mentioned that a birth 

certificate should not be re-verified if 

there was a copy of it maintained at the 

DMV. 

Response: The NPRM did not propose 

any requirements for how a State should 

treat a REAL ID issued by another State 

except to propose that a REAL ID 

driver’s license or identification card be 

accepted as an identity document, to 

establish name and date of birth. When 

an individual moves from one State to 

another, the new State would still be 

required to verify the individual’s SSN 

and ensure that he or she is lawfully 

present in the United States 

3. Renewals 

Comment: AAMVA recommended 

that § 37.23 be entirely stricken except 

for paragraph (b)(2)(iii) of the NPRM, 

which would require holders of 

temporary REAL ID cards to renew them 

in person each time and to present 

evidence of continued lawful status. 

Response: DHS disagrees with the 

comment and believes that it is 

necessary to have standards governing 

the renewal of a REAL ID-compliant 

driver’s license or identification card. 

Comment: One commenter wrote that 

the rule would make it far more difficult 

and expensive for current holders of a 

commercial driver’s license (CDL) to 

renew or replace their licenses, that 

delays and the expense in having a 

license renewed or reissued are 

particularly important for this segment 

of the population, and that they might 

force drivers to seek other employment 

altogether. 

Response: DHS disagrees with this 

comment. DHS has not been presented 

with evidence that CDL holders will be 

affected disproportionately by the REAL 

ID requirements or that the REAL ID 

requirements will force commercial 

driver’s license holders to seek other 

employment. 

Comment: Commenters expressed 

strong opposition to the restriction that 

remote transactions would be allowed 

only if ‘‘no source information has 

changed since prior issuance’’

(§ 37.23(b)(1) of the NPRM). In 

particular, many States, AAMVA, and 

other commenters wrote that applicants 

should be able to make address changes 

without having to appear in a DMV 

office, and that only material changes 

(e.g., name change) should prompt the 

need for an in-person visit. In general, 

commenters wrote that they do not 

currently require an office visit for 

address changes, and some said they do 

not issue a new card when notified of 

an address change. They said that 

requiring in-person visits for address 

changes would dramatically increase 

the number of visitors to DMV offices, 

with huge cost increases for State 

agencies (which some DMVs said the 

Federal government should cover), 

without necessarily improving national 

security. Some States further 

commented that making address 

changes more difficult for customers 

will result in these individuals simply 

not notifying the motor vehicle 

department of new addresses, which 

creates greater problems for State and 

local government and law enforcement. 

Response: DHS agrees with these 

comments and has removed the 

requirement that an address change 

must be accomplished through an inperson visit to the DMV. Additionally, 

there is no requirement in the final rule 

for States to issue a new card when 

notified of an address change. 

Comment: DHS received several 

comments on some of the methods 

listed in the preamble for authenticating 

identity prior to issuing a renewed 

license. 

Response: Since DHS is only 

requiring that States establish a 

procedure to ensure that the proper 

individual is receiving a renewed 

document and is not requiring any 

specific method, these comments are 

not discussed as they are deemed 

outside the scope of the regulation. 

Comment: AAMVA commented that 

the requirement that every other 

renewal take place in-person to allow 

for an updated photo would penalize 

residents of States with shorter renewal 

cycles. One State suggested that 

§ 37.23(b)(2) of the NPRM should be 

changed to require in-person renewals 

and recapture of a digital image once 

every sixteen years, regardless of the 

period of validity of a State’s cards. Two 

commenters stated that allowing sixteen 

years between photo updates might be 

too long because a person’s appearance 

can change significantly during that 

time, and that the usefulness of the 

photos for facial recognition (manual or 

computerized) would greatly diminish 

over a sixteen-year time period. One 

State recommended that DHS adopt a 

ten-year in-person renewal cycle. Two 

States commented that exceptions to inperson renewals should be established 

for active military and the elderly. 

Response: DHS disagrees with the 

comments and is retaining the 

requirement that a new photo be taken 

at every other renewal of a REAL ID 

driver’s license or identification card. 

Enabling States to maintain their own 

renewal cycles permits States to plan for 

the flow of people through the DMVs. 

While DHS agrees that an individual’s 

appearance can change significantly 

over sixteen years, DHS has concluded 

that an every-other-cycle photo 

requirement will meet State needs to 

reduce in-person visits at the DMVs 

while not posing an unacceptable 

security risk. States are free to impose 

a more frequent photo requirement. 

4. Reissuance of Documents 

Comment: One State said that it 

would be overly burdensome to require 

all applicants for replacement driver’s 

licenses or ID cards resulting from lost, 

stolen, or mutilated documents to 

personally appear at a DMV office. 

Another State wrote that, in many 

instances, the affected customer will not 

have the supporting documents readily 

available, which may result in some 

individuals driving without a license. 

Response: DHS agrees with the 

comments. In the final rule, States may 

replace a lost, stolen, or mutilated 

document without requiring an inperson transaction. Current State 

practices will dictate what 

documentation needs to be presented 

for replacement driver’s licenses and 

identification cards. 

Comment: Some States, AAMVA, and 

several other commenters recommended 

against requiring a new card for address 

changes and asked that DHS allow 

States to propose interim methods of 

tracking address changes between 

renewal cycles without the requirement 

for issuance of a replacement card 

(unless State law requires it). 

Response: DHS agrees with the 

comments. The final rule does not 

mandate that a State reissue a driver’s 

license or identification card for an 

address change unless otherwise 

required by State law. 

Comment: A number of States 

suggested that the definition of 

‘‘reissued’’ be changed to indicate that 

the license contains material changes to 

the personal information on the 

document. An applicant for a 

‘‘reissued’’ document would be required 

to personally appear at a DMV office to 

provide proof of the change. 

Furthermore, the State suggested that 

DHS create a definition of ‘‘duplicate’’

as a card that was issued subsequent to 

the original document that bears the 

same information and expiration date as 

the original. 

Response: DHS agrees with the 

comments. The final rule does not 

mandate a personal appearance at a 


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DMV for a reissued driver’s license or 

identification card unless material 

information, such as name or lawful 

status, has changed. The final rule 

adopts the proposed definition for a 

duplicate card. 

K. Source Document Retention 

Comment: AAMVA expressed 

concern about the proposed 

requirements dealing with transferring 

document images and linking document 

images to the driver record, and opined 

that the requirement to color scan and 

exchange documents using AAMVA’s 

Digital Image Exchange program is 

misplaced. Another commenter stated 

that this program deals only with photos 

and that ‘‘it would be a giant leap to 

consider its use for documents.’’ Several 

commenters objected to the costs of 

purchasing scanners, using computer 

storage space, retaining color images, 

and integrating the image into the driver 

record. Some commenters believed the 

document retention period should be 

the same for paper copies and electronic 

storage, while others believed that the 

retention period for paper copies should 

be shorter than electronic. A few 

commenters pointed out that the Driver 

Privacy Protection Act and State laws 

had their own record retention 

requirements. Some commenters 

objected to the storage of documents 

containing sensitive personal 

information as such documents are 

attractive target for criminals and 

hackers, and thereby pose significant 

privacy and security risks. 

Response: The specific record 

retention period for imaged documents 

and paper documents is required by the 

REAL ID Act and the final rule applies 

those time periods. However, DHS 

agrees with the comments that some 

source documents may contain sensitive 

personal information and has modified 

the document retention requirements for 

birth certificates. Under the final rule, a 

State shall record and retain the 

applicant’s name, date of birth, 

certificate numbers, date filed, and 

issuing agency in lieu of an image or 

copy of the applicant’s birth certificate, 

where such procedures are required by 

State law and if requested by the 

applicant. 

L. Database Connectivity 

Comment: AAMVA stated that DHS 

has yet to provide specific information 

on how this ‘‘query’’ system will work 

and does not expect to provide that 

information until the comment period is 

over. AAMVA wrote that final 

rulemaking should not take place until 

there is opportunity for another round 

of comments and an extension of 

compliance dates. 

Privacy groups argued that the 

proposal does not define security 

standards or a governance structure for 

managing any of the shared databases 

and systems. In their view, this 

abdication places the States in an 

impossible position: they are being 

forced to make their own citizens’

personal information available to every 

other State with no guarantee of privacy 

or security. 

One commenter recommended that 

the PCI Data Security Standards that 

apply to the credit card industry should 

be applied to DMV databases. One 

group suggested a decentralized query 

system that allows States to check all 

other States to see if an applicant 

already holds a REAL ID and returns a 

yes or no answer, rather than providing 

detailed data. One commenter 

recommended audit logs and audits to 

ensure compliance with privacy 

policies. 

Response: DHS has provided a brief 

overview of the proposed architecture 

for data verification and State-to-State 

data exchange in the sections above. 

This architecture will likely build on 

the existing architecture of AAMVAnet 

and the systems design principles of its 

hosted applications. The proposed 

architecture will also build upon the 

security, privacy and governance 

principles that have guided AAMVA 

and the States for decades. 

In addition, DHS will work with DOT, 

AAMVA and the States to reinforce the 

security and privacy features of this 

communications and systems 

architecture. 

Comment: A commenter stated that 

DHS had exceeded its authority in the 

requirement that interstate access must 

be ‘‘in a manner approved by DHS.’’

This commenter stated that since the 

rule does not describe, even in general 

terms, what the approval is based upon, 

States are left to guess at the DHS 

criteria for approval. Since the database 

exchange and the connectivity thereto 

are of utmost importance to States, the 

conditions upon which approval will be 

based need to be specified in the rule. 

They should not be provided by some 

yet to be developed guideline issued by 

DHS after the rule has become final. 

Response: DHS will work with DOT, 

AAMVA, and the States to develop a 

path forward for both verification 

systems and State-to-State data 

exchange, including criteria DHS will 

employ to evaluate the adequacy, 

security, and reliability of such data 

exchanges. 

M. Security of DMV Facilities Where 

Driver’s Licenses and Identification 

Cards Are Manufactured and Produced 

1. Physical Security of DMV Facilities 

Comment: A few States said the 

security requirements would force 

closure of many DMV offices. At least 

one State said that the security 

requirements would lead to closure of 

remote offices, and that this could lead 

the State to opt out of complying with 

REAL ID requirements. 

Response: In general, DHS does not 

agree with comments that indicate a 

State would prefer to have a security 

vulnerability rather than take the 

necessary steps to close it. There have 

been a number of well-documented 

instances where DMV offices have been 

burglarized and the equipment and 

supplies to manufacture driver’s 

licenses and identification cards taken, 

highlighting the need to ensure that 

adequate procedures are in place to 

protect the equipment and supplies 

necessary for the production of REAL ID 

driver’s licenses and identification 

cards. Protecting these materials and 

equipment are critical to reducing the 

possibility of fraud and identity theft. 

Comment: While a few States 

supported the proposed ANSI/NASPO–

SA–v3.OP–2005, Level II standard, 

numerous States said that this standard 

was intended to apply to manufacturing 

facilities, not to the issuance of driver’s 

licenses. The commenters opposing use 

of the ANSI/NASPO standard stated that 

until a reasonable standard is 

developed, States should have the 

flexibility to determine what works for 

their issuance processes. Privacy groups 

are concerned that without a uniform 

standard, States could have 56 different 

security and privacy policies with 

different levels of protection. 

One State supported a narrow 

application of the ANSI/NASPO 

standard only to the DMV facility 

containing the database on license 

holders, while another State thought 

that the standards should apply only to 

the DMV production facilities. One 

commenter wrote that the NASPO 

standard needs to be reviewed every 

two years and that requirements should 

be added throughout the supply chain. 

Response: DHS agrees with the 

comments that the proposed NASPO 

standard may be more appropriate to 

manufacturing and production facilities, 

as opposed to issuance sites. DHS is not 

requiring the use of the ANSI/NASPO 

standard in the final rule, but 

commends to the States the proposed 

standards as a good practice for securing 

materials and printing supplies. 


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Comment: One commenter proposed 

additional requirements for alarm 

systems, disposals, and suppliers. 

Another commenter suggested allowing 

DMVs to secure part of a building, 

rather than the whole building. The 

commenter wrote that the standard did 

not address the security of work stations 

and recommended biometric passwords. 

One commenter noted that providing 

the license directly to the person, rather 

than mailing it, was more secure; one 

State noted that the Post Office does not 

guarantee delivery. 

Response: The final rule specifies 

what must be addressed in a security 

plan, including physical security of the 

buildings used to produce driver’s 

licenses and identification cards, storage 

areas for card stock and other materials 

used in card production, and security of 

Personally Identifiable Information (PII). 

If a DMV is located in a building 

shared by other offices or tenants, the 

area dedicated to the manufacture or 

issuance of driver’s licenses and 

identification cards, storage of card 

stock and related materials, and PII 

must be secured in such a fashion to 

prevent unauthorized access. This 

requirement covers any equipment 

utilized to produce driver’s licenses and 

identification cards as well as storage, 

access and retrieval of PII. States will 

determine how these items are protected 

in their security plans. 

The rule does not mandate central 

issuance versus over-the-counter 

issuance. 

2. Security Plan 

Comment: One State said that DHS 

had exceeded its authority under the 

Act in the requirement that a State’s 

security plan address ‘‘reasonable 

administrative, technical and physical 

safeguards to protect the security, 

confidentiality, and integrity of * * * 

personal information stored and 

maintained in DMV * * * information 

systems.’’ Another State wrote that the 

Act does not authorize DHS to compel 

States to establish or make available 

standards or procedures for 

safeguarding the information collected 

by motor vehicle agencies. AAMVA 

asserted that tools such as information 

security audits, individual employee 

access audits, employee confidentiality 

polices, and privacy and security plans 

are already used in many DMVs. 

Privacy groups commented that the 

rule must provide meaningful privacy 

and security protections and that the 

lack of clear privacy and security 

guidance in the Act does not preclude 

DHS from providing strong protections 

in the regulations. In fact, they urged 

DHS to include specific standards or 

minimum criteria against which the 

State plans could be evaluated. 

At least two States objected to the 

provision that DHS could require ‘‘other 

information as determined by DHS.’’

The States argued that any further 

requirements should be agreed upon 

and clearly identified in the regulations. 

One State said that unspecified 

requirements should not be left to DHS 

to develop outside of the regulatory 

process. Another State wrote that the 

access badge requirement is unrealistic. 

Response: DHS believes that it has the 

authority to require States to take 

reasonable measures to safeguard the 

confidentiality of PII maintained in 

DMV information systems pursuant to 

the REAL ID Act. DHS believes that 

inherent in the Act’s requirement that 

States must provide electronic access to 

the information contained in their 

databases is the principle that such 

information must be protected, and this 

concept is supported in the legislative 

history for section 202(d) (12) of the Act 

which states that ‘‘DHS will be expected 

to establish regulations which 

adequately protect the privacy of the 

holders of licenses and ID cards * * *.’’

H.R. Rep. No.109–72, at 184 (2005) 

(Conf. Rep). Failure to protect the PII 

held in DMV databases could result in 

identity theft and undermine the very 

purpose of the Act, which is to 

strengthen the validity of the cards. DHS 

also believes that it can require States to 

provide other, reasonable information 

that DHS determines is necessary in the 

future without requiring future 

rulemaking. 

Comment: AAMVA and several States 

requested guidance on what ‘‘written 

risk assessment of each facility’’ means 

and a template. Another State asked for 

guidance on which law enforcement 

officials should be notified. One State 

recommended that the rule limit the 

amount of data in any State’s database 

and create stronger protections for 

information to limit the danger of 

aggregating information on 240 million 

Americans. 

Response: DHS, DOT, AAMVA and 

the States will work together to develop 

best practices for risk and vulnerability 

assessments as well as for security plans 

for DMV facilities. 

Comment: A trade association 

objected to the lack of standards for the 

security plan and further stated that 

because the State databases must be 

interconnected, the lack of standards 

would mean that the weakest plan 

implemented by any State would put all 

States at risk. DHS should require clear, 

strong, and verifiable minimum security 

measures. An association said that DHS 

was ignoring the threat posed by 

insiders, employees and contractors. 

According to this association, the rule 

should recognize the threat and the 

importance of training to mitigate those 

risks. 

Response: The final rule specifies 

what must be addressed in a security 

plan, including: Physical security of the 

buildings used to produce driver’s 

licenses and identification cards, storage 

areas for card stock and other materials 

used in card production; security of 

personally identifiable information 

including reasonable administrative, 

technical, and physical safeguards, a 

privacy policy, and limits on disclosure; 

document and physical security features 

for the face of the driver’s license or ID 

card, including a description of the 

State’s use of biometrics and the 

technical standards utilized (if any); 

access control, including employee 

identification and credentialing, 

employee background checks, and 

controlled access systems; periodic 

training requirements in fraudulent 

document recognition for covered 

employees; emergency/incident 

response plan; internal audit controls; 

and 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 and identification cards issued 

in support of Federal, State or local 

criminal justice agencies or similar 

programs that require the safeguard of a 

person’s identity in the performance of 

their official duties. Such requirements 

shall also apply to contractors involved 

in the manufacture or issuance of REAL 

ID-compliant driver’s licenses and 

identification cards. 

3. Background Checks for Covered 

Employees 

Comment: Generally, States did not 

support the proposed background check 

provisions. A few States objected to 

these provisions as too broad and 

impractical. AAMVA stated that these 

requirements are a Federal intervention 

into State personnel rules and one 

commenter stated that these provisions 

are a particularly invasive intrusion on 

State autonomy to decide the 

qualifications and conditions of persons 

within its employ, which is a 

fundamental attribute of State 

sovereignty. States also objected to 

§ 37.45(c), the provision instructing the 

States to notify persons of unfavorable 

checks and provide them appeal rights, 

and claimed that this provision may 

grant rights nonexistent in State law. 

Numerous States said that background 

checks and the standards applied 

should be at the discretion of the State 

and not required. AAMVA and several 


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States suggested that existing employees 

should be grandfathered in to allow 

States to determine whether they want 

to do complete background checks on 

such employees. 

Response: DHS disagrees that it 

cannot require background checks of 

covered employees. Such checks are a 

necessary step to protect against insider 

fraud, one of many vulnerabilities to a 

secure licensing system. DHS also 

disagrees with the concept of 

‘‘grandfathering’’ existing personnel 

since there is no way to know in most 

States whether employees who have not 

been subject to a background check 

would satisfy this important 

requirement. Further, § 202(d)(8) 

expressly directs States to ‘‘[s]ubject all 

persons authorized to manufacture or 

produce driver’s licenses and 

identification cards to appropriate 

security clearance requirements.’’ The 

background checks required under this 

final rule are authorized by and 

consistent with that statutory mandate. 

The statute does not provide for an 

exemption for personnel employed by a 

State DMV before the effective date of 

the Act or this final rule and thus DHS 

cannot include a grandfather clause in 

this rule. 

Comment: Some States believed that 

DHS has exceeded the authority granted 

by the Act on background check 

provisions because of its expansive 

definition of ‘‘covered employees.’’

These States asserted that DHS is 

without authority to extend the 

background check requirements beyond 

employees who ‘‘manufacture or 

produce’’ cards. Similarly, one State 

asked that employees at branch offices 

who are not involved in the production 

and manufacture of driver’s licenses or 

identification cards be exempt from the 

background check requirements. One 

State noted that the rule attempts to 

subject ‘‘covered employees,’’

‘‘prospective employees,’’ and 

‘‘applicants’’ to the criminal history 

record check, yet only defines the term 

‘‘covered employee.’’

Response: DHS disagrees that its 

definition of a covered employee is too 

expansive. DHS, the agency charged 

with interpreting and enforcing the Act, 

interprets ‘‘persons authorized to 

manufacture or produce’’ REAL ID cards 

to include those individuals who collect 

and verify required source documents 

and information from applicants as such 

information is a necessary part of the 

production of a REAL ID card. It would 

be illogical to cover only those DMV 

employees and contractors who carry 

out only the physical act of cutting or 

printing a license while exempting 

those individuals who interact with the 

public and may be most able to 

introduce fraudulent information into 

the system and thus thwart the intent of 

the Act. 

Comment: Commenters wrote that 

States currently only undertake 

background investigations at the time of 

hiring, and that since existing 

employees are not applicants, it is 

entirely reasonable for labor 

organizations and permanent State 

employees not covered by collective 

bargaining agreements to argue that nonprobationary employees fall outside the 

scope of the background check 

provisions. Some commenters claimed 

that the requirement that all designated 

employees, including those who are 

already employed, undergo background 

investigations is contrary to many State 

labor contracts and personnel practices. 

Numerous employees were hired under 

terms and conditions not requiring a 

security clearance. Should these 

employees be disqualified under the 

new regulations, States may be obligated 

to provide them with alternative 

employment or severance. 

Response: As noted above, DHS 

believes that it would be a significant 

security vulnerability to exempt current 

DMV employees from a background 

check. 

Comment: One commenter claimed 

that the use of the phrases ‘‘applicant’’

and ‘‘application’’ in the rule governing 

interim disqualifying criminal offenses 

poses a practical problem, since the 

time periods are defined in terms of the 

date of the application. Existing 

employees would have been considered 

applicants on the date they filed the 

application for the position in which 

they are currently employed, which may 

be well outside the time period that 

applies to interim disqualifying offenses 

(five years from the date of application). 

Thus, commenters argued, the time 

period for interim disqualifications 

should start from the date of 

employment, not application. With 

regard to the proposed list of 

disqualifiers, AAMVA and some States 

wrote that States should determine their 

own disqualifying crimes and could 

outline those disqualifiers in the DHS 

certification package. Several States 

objected to the disqualification of 

people who have not been convicted on 

the grounds that such person should be 

considered innocent until found guilty. 

Response: DHS agrees that the time 

period for interim disqualifications for 

existing employees should start at the 

date of employment, not application. 

DHS agrees that States may supplement 

the list of disqualifying offenses with 

their own lists, but those lists cannot 

replace the Federal list. Finally, DHS 

agrees that States may make different 

decisions about whether to move an 

individual from a covered to a noncovered position even though the 

individual has not been convicted, and 

can exercise his or her waiver authority 

for this purpose under § 37.45(b)(1)(v). 

Comment: A few States argued that 

States should have the option to give 

employees provisional clearance 

pending background check results, and 

that States could outline the procedures 

for provisional clearance in their 

certification packages. 

Response: As discussed above, DHS 

believes that it would be a significant 

security vulnerability to exempt current 

DMV employees from a background 

check. DHS has included language that 

substantially similar background checks 

(i.e., those that use a fingerprint-based 

CHRC check and have applied the same 

disqualifiers as this rule; that include an 

employment eligibility determination; 

and that include a reference check) 

conducted on current employees on or 

after May 11, 2006, need not be reconducted. 

Comment: One commenter wrote that, 

of the twenty-nine States that currently 

carry out some level of employee 

background checks, only two conduct 

credit checks. AAMVA and many States 

objected to the credit check as costly 

and in conflict with State personnel 

rules. One State noted that the Equal 

Employment Opportunity Commission 

(EEOC) has determined that unless 

justified by business necessity, it is 

unlawful to reject candidates based on 

poor credit ratings. 

One State asserted that this 

requirement is a Federal encroachment 

into an area historically reserved to 

States. Some States questioned the link 

between an employee’s financial history 

and the propensity to commit a crime 

and posited that implementing this 

provision as written would cause many 

union-related issues affecting existing 

and future employees. Other States 

pointed out that many law enforcement 

personnel are not subject to this level of 

checking. Another commenter objected 

to the financial check as an invasion of 

privacy that would not provide useful 

information, and if DHS requires a 

financial history check, it should 

provide standards on how the results of 

that check should be used by the States. 

Response: DHS agrees that it would be 

difficult to make conclusive judgments 

about an employee or prospective 

employee’s vulnerability to bribery 

based on a financial history check alone. 

Since the financial history check would 

not be determinative, DHS is 

eliminating the requirement for a 


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financial history check from the final 

rule. 

Comment: AAMVA said that lawful 

status checks are unnecessary and 

excessive because States already 

conduct such checks as part of the 

hiring process. One State noted that the 

requirement differs from current Federal 

requirements for completion of the 

Form 1–9. Other States pointed out that 

SAVE only covers immigrants, not 

native born Americans. AAMVA and 

several States noted that lawful status 

checks are often addressed in union 

bargaining contracts, and are covered by 

State personnel laws. 

Response: In response to these 

comments and further consideration of 

this matter DHS has revised the final 

rule. Employment eligibility verification 

using Form I–9 procedures is required 

for all employees (whether U.S. citizens 

or aliens) hired for employment at 

DMVs (or any other U.S. employer) on 

or after November 7, 1986. REAL ID 

defines lawful status in a way that is not 

synonymous with employment 

eligibility under the INA. Thus, the final 

rule now cross-references current Form 

I–9 requirements under section 274A of 

the INA rather than requiring employees 

to be checked through SAVE. As part of 

its background check process, the State 

must ensure that it has fully complied 

with Form I–9 requirements with 

respect to covered employees (including 

reverification in the case of expired 

employment authorization), but 

additional status checks are not 

required. Nothing in this rule in any 

way modifies any Form I–9 

requirement; rather, the background 

check, if done at a later time than the 

initial hire, provides another 

opportunity for the State to check its 

previous compliance and correct any 

deficiencies. Form I–9 completion is, of 

course, required no later than three days 

subsequent to the first day of 

employment for all employees. 

USCIS operates, in partnership with 

the Social Security Administration 

(SSA), an electronic employment 

eligibility verification program called 

E-Verify (formerly known as the Basic 

Pilot program). Participants in E-Verify 

can query SSA and DHS databases to 

verify the documentation provided by 

new employees when completing the 

Form I–9. States are strongly encouraged 

to enroll in this program, but, consistent 

with the voluntary nature of the 

E-Verify program as provided by the 

statutory provisions authorizing the 

program, it is not required by the final 

rule. 

Comment: One commenter stated that 

background check processes are flawed, 

misidentifying people five percent of 

the time. According to this commenter, 

in half the States, forty percent of the 

arrest records have not been updated in 

five years to indicate disposition of the 

case. Another State wrote that it would 

be easier to run checks if they could 

interface with the FBI database. One 

State wrote that States should not have 

to repeat FBI checks if done within the 

past five years. One commenter asked 

that the FBI not charge States for 

accessing their systems. 

Response: DHS believes that a 

fingerprint-based background check is 

the most efficient way to determine if an 

individual is subject to a disqualifying 

offense. FBI checks conducted on or 

after May 11, 2006 would not need to 

be conducted again. 

Comment: One commenter said that 

workers subject to a background check 

deserve a clear and quick process to 

clear their names and win their jobs 

back with full restitution of any lost 

wages. Another commenter suggested 

that TSA should incorporate provisions 

from the HAZMAT rules which provide 

instructions for applicants on how to 

clear criminal records into the REAL ID 

rule. 

Response: DHS believes that an 

individual denied employment based on 

the results of a background check 

should have the ability to challenge the 

accuracy of those records. States should 

make instructions available on how best 

to contest any inaccurate records or 

results. 

N. State Certification Process; 

Compliance Determinations 

1. Certification Process 

Comment: Several commenters 

requested that DHS receive input and 

collaborate with States and other 

organizations on certification guidance 

and standards. One commenter 

requested that DHS provide certification 

packets outlining specific requirements 

as well as a clear definition of ‘‘until all 

requirements are met.’’ AAMVA and 

several States recommended that States 

work with DHS in the development of 

a streamlined self-certification process 

to meet the requirements of the Act. One 

commenter suggested that risk 

assessment and mitigation plans be 

included in States’ self-certification, and 

that States participating in the Driver’s 

License Agreement should be able to 

substitute their compliance review 

process for DHS audit requirements. 

One commenter recommended that DHS 

establish a committee composed of 

Federal and State officials and 

representatives of groups which face 

unique challenges with respect to the 

REAL ID Act to recommend proposed 

content for the guidance documents on 

certification. Some States asked DHS to 

clarify the requirement for States to 

provide DHS with any changes to the 

information requiring certification. 

Regarding guidance requests, a few 

States requested a template for the 

certification document and the security 

declaration as well as a quarterly 

reporting standardized format. 

Response: DHS has streamlined the 

certification process, and includes a 

compliance checklist with this rule. The 

Material Compliance Checklist will 

document State progress toward 

meeting DHS security benchmarks and 

will serve as the basis for DHS approval 

of additional extensions until no later 

than May 10, 2011. 

Comment: Several States argued that 

the certification requirements are too 

burdensome, citing staffing issues as 

well as the need for ample preparation 

time and flexibility to comply with 

regulations. Similarly, many States 

argued that the frequency of 

certification reporting is too 

burdensome and questioned the need 

for quarterly certification reporting. One 

State recommended a triennial review. 

Other States thought the requirement to 

track all exceptions and to notify DHS 

30 days before program changes were 

over-reaching and not authorized by 

statute. One State recommended that the 

DHS establish a system of measuring 

performance instead of recertification. 

Response: As documented above, 

DHS has simplified the certification 

process. 

Comment: Some States suggested 

allowing States whose DMVs fall under 

a jurisdiction other than the Governor 

the ability for the relevant public official 

to certify compliance. AAMVA and one 

State argued that the rule should 

provide that certification be signed by 

the highest-ranking State official 

overseeing the DMV, including the DMV 

Administrator, and not require 

additional certification from the 

Attorney General. 

Response: DHS agrees that requiring 

the Governor of each State to personally 

certify State compliance is too 

burdensome and has amended the 

requirement to allow either the 

Governor or the highest-ranking 

executive official with oversight 

responsibility over the operations of the 

DMV to certify State compliance. 

2. Compliance Determination 

Comment: One State argued that 

unless and until a State loses a judicial 

review, it should be considered in 

compliance. Another State 

recommended that DHS recognize States 

that have implemented a number of 


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requirements and plan to continue 

making substantial progress as 

compliant. A State asked DHS to allow 

for the Governor to indicate that the 

State will remain in compliance until it 

withdraws from the program. Some 

States argued that a phased approach 

was the only viable means to bring 

States into compliance. One State 

recommended that DHS convene a 

working group with AAMVA to develop 

a phasing plan for compliance. 

Response: As documented above, 

DHS has adopted a compliance process 

that significantly lessens the burden of 

REAL ID implementation on the States. 

Comment: Various State and nonState commenters addressed 

noncompliance issues. One State asked 

how licenses issued during a compliant 

period would be treated if a State later 

fell out of compliance. Another State 

requested that DHS provide written 

notification of preliminary noncompliance determination and notice of 

final determination of noncompliance 

which would not be effective for 30 

business days following receipt. A State 

indicated it would not agree with noncompliance issues until the standards 

are clearly identified and agreed upon. 

One commenter opposed DHS’s ability 

to withdraw a State’s certification to 

issue REAL ID driver’s licenses and 

identification cards on short notice, 

noting that decertification would 

negatively impact truck driver 

communities, government facilities, and 

the overall economy of the State. 

Response: REAL ID driver’s licenses 

and identification cards issued when a 

State was in compliance with REAL ID 

will remain acceptable for official 

purposes until they expire, even if the 

State subsequently becomes noncompliant. The REAL ID certification 

process will provide a standardized 

means of measuring and monitoring the 

DMVs’ compliance with REAL ID 

requirements. DHS will not withdraw a 

State’s compliance on short notice, as 

certification reporting dates will be 

established in advance. 

Comment: A commenter requested 

that DHS provide written statements of 

notice prior to inspections, interviews, 

or any noncompliance determinations. 

Some States asked for flexibility and 

reasonable prior notice when 

scheduling site visits and REAL ID 

compliance audits, in order to have 

appropriately trained staff available to 

answer questions and to prevent audit 

overlaps. Commenters believed that 

States should have ample opportunity 

for review and appeal of decisions 

regarding self-certification. 

Response: DHS agrees with these 

comments. Language has been added to 

§ 37.59(a) to indicate that DHS will 

provide written notice of inspections, 

interviews and audit visits. States will 

be provided with a sufficient 

opportunity for review and appeal of 

decisions regarding their selfcertification. 

Comment: Commenters addressed 

various training issues. One 

recommended that DHS allow the 

current AAMVA fraudulent document 

recognition training program to be used 

to meet the REAL ID Act’s requirements. 

This program has been used by States 

and ‘‘is widely recognized as 

comprehensive, directly related to and 

easily comprehended by DMV staff.’’

One commenter objected to the 

requirement for DHS approval of 

fraudulent document training. Another 

commenter emphasized the need for 

ongoing evaluator/authenticator 

training. Without specific requirements 

for the training, States lack notice as to 

whether or not the training will comply 

with the regulations and will be subject 

to the unfettered discretion of DHS. 

Response: DHS agrees that AAMVA’s 

training program on fraudulent 

document recognition will be acceptable 

to meet the requirement of the Act and 

the final rule. The majority of States 

currently utilize AAMVA’s program. 

Comment: One commenter requested 

a definition of ‘‘expedited 

consideration’’ of a request for an 

extension. Other States requested 

opportunity for input, justification, and 

consulting in the extension process and 

assistance with development of the 

quarterly and annual reports. One nonState commenter requested standards 

for the issue of redress, and another 

suggested that DHS develop standards 

and plans to audit States’ security plans. 

Response: The final rule spells out a 

simple and straightforward process for 

States to request an extension to the 

REAL ID implementation deadline. DHS 

will also allow States to receive an 

additional extension based on 

achievement of certain benchmarks 

established by DHS until no later than 

May 10, 2011. DHS will notify a State 

of its determination on a request for 

extension no later than 45 days of 

receipt of the request. DHS will work 

with States and territories throughout 

the implementation process to assist as 

required. 

The input DHS receives from its 

stakeholders has been of tremendous 

value in crafting a final rule that the 

States may implement and that achieves 

a greater level of security and 

confidence in the State-issued driver’s 

licenses and identification cards. DHS 

will continue engaging its valued 

stakeholders to shape the exceptions 

processes as well as other requirements 

of the rule. 

O. Driver’s License and Identification 

Cards That Do Not Meet the Standards 

of the REAL ID Act 

Comment: One commenter did not 

agree with DHS that foreign nationals 

denied REAL ID licenses, even though 

they are lawfully present but do not yet 

have the documentation required to 

demonstrate such status, can simply 

obtain a non-REAL ID alternative. The 

commenter wrote that a driver’s license 

increasingly has become a ticket to daily 

living, and a non-REAL ID license will 

unfairly and improperly tag the holder 

as ‘‘illegal’’ and result in discrimination. 

One commenter wrote that it is not a 

valid assumption that most States will 

issue some other kind of license for 

immigrants who cannot obtain a REAL 

ID license. Another commenter wrote 

that marking non-REAL ID cards would 

divide the country into two groups and 

that those with other cards would 

instantly be suspect and subject to 

delay, harassment, and discrimination. 

One commenter noted that many 

people such as the elderly or disabled 

will not need a REAL ID and asked that 

the State be able to issue a noncompliant identification card to them. 

By excluding them from the REAL ID 

process, it will be easier for the State to 

process those who do need a REAL ID 

within the time allowed. 

AAMVA stated that although DHS has 

argued that States do not have to 

comply with the Act, the Act and DHS 

still impose requirements on States for 

the issuance of noncompliant licenses. 

AAMVA wrote that this requirement 

forces States to be in compliance and 

that the rulemaking goes well beyond 

Congressional intent in prescriptively 

outlining State requirements for ‘‘noncompliant’’ REAL ID cards. One State 

and one individual commenter noted 

that requiring States to follow these 

standards imposes a cost on States that 

choose not to comply, a violation of the 

10th Amendment. Another State said 

that the Federal government cannot 

require a redesign of documents if the 

State is not complying. The Federal 

government should acknowledge the 

sovereignty of States’ rights and respect 

the traditional State function of 

licensing drivers. 

Response: DHS does not agree that an 

individual carrying a non-compliant 

driver’s license or identification card 

from a State issuing REAL ID-compliant 

driver’s licenses or identification cards 

would be subject to discrimination. 

States will make their own business and 

policy decisions about whether to issue 


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noncompliant cards under 202(d)11 of 

the Act. 

DHS has clarified in the rule that it 

interprets § 202(d)(11) of the REAL ID 

Act, which provides requirements for 

the issuance of driver’s licenses and 

identification cards that will not be 

accepted by Federal agencies for official 

purposes, as applying only to States 

participating in the Act that choose to 

also make these types of documents 

available. This might apply, for 

example, to individuals with a religious 

objection to having their photos taken. 

DHS does not interpret this section to 

apply to States that choose not to 

participate in the Act. 

P. Section 7209 of the Intelligence 

Reform and Terrorism Prevention Act of 

2004 

Comment: AAMVA, some States, and 

several additional commenters support 

the development of REAL ID cards that 

are WHTI-compliant. AAMVA stated 

that this is an important direction to 

ensure the free flow of commerce and 

travel between the United States and 

Canada. Some States said that they 

already collected citizenship data and 

adding this to REAL ID cards will have 

little to no additional cost impact. 

Several States argued against 

development of a WHTI-compliant/ 

REAL ID-compliant card. One State said 

that citizenship is the purview of the 

Federal government and not that of 

States, and making a State DMV 

responsible for verifying citizenship 

places State employees in a Federal role. 

This State also noted that citizens with 

no desire to cross the border will derive 

no additional benefit from obtaining a 

REAL ID card that also denotes 

citizenship. A few States made similar 

arguments that very few of their 

residents would find it useful to have a 

WHTI-compliant REAL ID card. These 

States also argued that the expense to 

implement a WHTI-compliant solution 

would be cost prohibitive. 

One commenter emphasized that 

REAL ID cards must not include 

citizenship information because of the 

potential of discrimination against those 

who choose not to carry a national 

identification card. Another commenter 

said that the creation of a dual-use 

driver’s license should be a decision 

that is made by individuals, after they 

are fully informed of the benefits, risk, 

costs, and other details of the programs 

consistent with the Fair Information 

Principles. 

A few commenters stated that they 

did not support States listing 

citizenship information on the REAL ID 

card or using a REAL ID card as an 

immigration/border document. These 

individuals believed that that WHTIcompliant REAL IDs would be 

significantly more useful to criminals 

and terrorists and therefore targeted for 

theft, counterfeiting, and fraud. One 

individual suggested that DHS could 

mitigate some concerns that the 

Department is trying to create a Federal 

ID by not requiring DMV to denote 

citizenship on REAL ID cards. 

All of the organizations that 

responded to the question on where 

citizenship should be listed on the card 

stated that it should be on the machinereadable zone (MRZ) portion of the card. 

There were no supporters for listing the 

citizenship information on the face of 

the card. These organizations all 

claimed that placing citizenship 

information on the face of the card 

could result in discrimination against 

the bearer of the card; placing it on the 

MRZ portion of the card could prevent 

this from happening. 

One commenter described in great 

detail the need to develop two 

encrypted MRZs on the card; one zone 

that can only be accessed and used by 

DMV and law enforcement officials, and 

another zone that can only be accessed 

and used by border and immigration 

officials. A few organizations 

commented that placing the WHTI 

information on a card may be 

challenging without increasing the size 

of the card itself. However, increasing 

the size of the card would be extremely 

costly. 

Response: DHS welcomes the various 

helpful comments submitted in 

response to DHS’s questions in the 

NPRM relating to WHTI. In June 2007, 

DHS published a NPRM to implement 

the land and sea phases of WHTI. While 

DHS acknowledges the desire of some, 

but not all, States and other commenters 

to use a REAL ID-compliant driver’s 

license or identification card as a WHTIcompliant border crossing document, 

DHS did not propose that a REAL IDcompliant driver’s license or 

identification card serve as a WHTIcompliant document in that NPRM and 

does not propose such in this 

rulemaking. While the proposed REAL 

ID requirements include proof of legal 

status in the U.S., the EDL will require 

that the cardholder be a U.S. citizen. In 

addition, EDLs will include 

technologies that facilitate electronic 

verification and legitimate movement of 

travelers through land and sea ports-ofentry. 

Comment: A few commenters 

provided suggestions on the types of 

business processes and procedures that 

a State DMV could adopt to create a 

REAL ID that is also WHTI-compliant. 

One group suggested that citizens who 

desire to have a REAL ID that allows for 

WHTI border entry should be vetted by 

the State Department in the same 

manner as a person applying for a 

passport. The State Department would 

verify that the individual is eligible to 

receive WHTI identification and inform 

the appropriate State DMV that the 

individual has been approved to obtain 

a WHTI-compliant REAL ID. The State 

DMV should create the license/ID card 

as it normally would and then send it 

to the State Department to add the 

WHTI MRZ. There should be two 

machine-readable zones; one zone 

would only be able to be used and 

accessed by law enforcement and 

DMVs, and another MRZ that would 

only be able to be accessed and used by 

immigration/border officials. 

One organization commented that 

State DMVs will need to be able to 

utilize the State Department’s 

citizenship adjudication process or 

create a similar process for adjudicating 

citizenship. 

One State opposed storing citizenship 

data on the MRZ, preferring to store this 

information centrally and access it via 

electronic means. 

Response: DHS welcomes the 

comments submitted concerning 

potential business practices a DMV 

could follow to issue both a REAL ID 

and WHTI-compliant driver’s license or 

identification card, including issues 

surrounding the adjudication of 

citizenship for WHTI purposes. As 

noted above, DHS published a NPRM to 

implement the land and sea phases of 

WHTI. At this time, DHS has decided 

not to incorporate requirements 

necessary for a WHTI-compliant 

document into the REAL ID rulemaking. 

Comment: Many commenters said 

that RFID technology, the proposed 

technology for WHTI documents, 

should not be used on REAL IDs. 

Because RFID can be read from up to 

thirty feet away there are significant 

privacy and security risks. A few 

commenters noted that the DHS Data 

Privacy and Integrity Advisory 

Committee and the Government 

Accountability Office both advised 

against using RFID technology. One 

organization felt strongly that the use of 

RFID technology without the use of 

Basic Access Control and other 

safeguards would contravene the basic 

security features that the Department of 

State has included in new U.S. 

passports. 

Another group believed that States 

can leverage the same infrastructure that 

they will need to purchase for REAL ID 

to incorporate MRZ, proximity chips, 

and vicinity chip technology onto a 

driver’s license. The only difference 


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would be the cardstock and the quality 

assurance processes to ensure that 

electronics within the card are 

functioning properly. Another 

organization suggested that its product 

can turn the wireless function on or off 

as needed. 

One State suggested that DHS not 

identify a specific technology to be 

used, but leave it up to the States to 

decide. 

Response: The use of RFID is essential 

to the WHTI program in order to ensure 

facilitation at crowded U.S. land and sea 

crossing points. Similar concerns are 

not implicated by REAL ID, which is 

one of the factors that led DHS to select 

the 2D bar code as the common machine 

readable technology on driver’s licenses 

and identification cards. DHS 

encourages States to explore alternative 

technologies on their driver’s licenses 

and identification cards in order to 

promote security and technology 

advances as well as e-government 

initiatives a State may wish to explore. 

Comment: There were several other 

comments related to the issue of 

creating WHTI-compliant REAL ID 

cards. One commenter requested 

clarification on why REAL IDs 

themselves would not be sufficient 

documentation to re-enter the United 

States. The commenter noted that REAL 

ID issuance standards require proof of 

lawful residence status within the 

United States, and the overall higher 

standards will make the cards more 

resistant to tampering and 

counterfeiting. Therefore, the 

commenters argued, it may be presumed 

that a holder of a REAL ID license has 

the right to re-enter the United States. 

Another commenter requested 

clarification on whether ‘‘enhanced’’

driver’s license (EDLs) and ID cards that 

are issued through pilot programs will 

also have to be REAL ID-compliant. The 

commenter also requested clarification 

on how DHS will respond to States, like 

Washington State, that have passed 

legislation refusing to comply with the 

REAL ID Act unless the Federal 

government fully funds the State’s 

implementation of the Act. 

One commenter requested that DHS 

consult with tribal governments on how 

to best implement the REAL ID Act and 

that DHS consult with tribal leaders on 

the development of an Indigenous 

Identification Card for international 

border crossing. 

One individual urged DHS to allow 

Canadians who are residents of the 

United States to be allowed to obtain 

REAL ID/WHTI-compliant driver’s 

licenses or ID cards, as these individuals 

make up a significant portion of 

individuals who cross the border 

frequently. 

Response: DHS acknowledges the 

desire of some, but not all, States and 

other commenters to use a REAL IDcompliant driver’s license or 

identification card as a WHTI-compliant 

border crossing document. In the WHTI 

NPRM, DHS included a specific 

discussion of its ongoing efforts with 

Washington State regarding the issuance 

and use of an EDL as a WHTI-compliant 

document. EDLs can only be issued to 

U.S. citizens since the EDL would serve 

as the functional equivalent of a 

passport or passport card at land and 

sea border crossings. In addition, EDLs 

must also incorporate the technology 

specified by DHS to facilitate the 

legitimate movement of travelers 

through land and sea ports of entry. 

With respect to other holders of REAL 

ID-compliant driver’s licenses or 

identification cards, any assumption 

that lawful status as defined for REAL 

ID purposes equates to a right to reenter 

the United States is incorrect. For 

example, applicants for adjustment of 

status typically must obtain advance 

parole in order to depart the United 

States and lawfully return. DHS has 

decided not to incorporate requirements 

necessary for a WHTI-compliant 

document into the REAL ID rulemaking 

at this time. 

Q. Responses to Specific Solicitation of 

Comments 

Question 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. 

Comment: Several commenters did 

not think the list of documents 

acceptable for establishing identity 

needed to be expanded, at least for U.S. 

citizens, and they were concerned that 

expanding the list would place a burden 

on State DMVs. One State did not know 

of any additional documents that would 

be electronically verifiable. Another 

State recommended that the list should 

not be included in the rule, so that 

future changes can be easily made. One 

commenter favored the use of the 

‘‘acceptable verifiable resource list’’ of 

identity documents approved by 

AAMVA. Another State suggested that 

the rule should only specify criteria and 

procedures rather than a list of specific 

documents for establishing identity. 

Response: As noted above, DHS has 

decided not to alter the list of acceptable 

documents proposed and discussed in 

the NPRM. 

Comment: One commenter thought 

that § 37.11 should require non-citizen 

applicants to provide their alien 

registration documents so that State 

officials can compare it to the name on 

other documents. Various commenters 

pointed out that foreign applicants 

would have documents that are not on 

the list but may have been issued by 

DHS or the courts to prove immigration 

status. Some commenters supported 

other immigration forms, such as Form 

I–94 (which may indicate lawful status 

in the United States) and I–797 (which 

may be evidence of a pending 

application). Refugees and asylees are 

more likely to have these documents 

before they receive a Form I–766 

Employment Authorization Document 

(EAD). Canadians present in the United 

States might have these forms rather 

than a visa. Two States suggested that 

any document that can be electronically 

verified through SAVE should be 

acceptable. Others argued for refugee 

status paperwork, expired foreign 

passports if USCIS documentation is 

current, as well as passports with 

expired visas and Immigration Court 

documents. One group recommended 

that DHS expand the list of acceptable 

documentation to include family 

members in the United States on 

derivative visas. Another group 

suggested that USCIS consider issuing a 

temporary refugee photo ID card that 

could be used to apply for a REAL ID. 

Response: State DMVs will use the 

SAVE system to verify whether an 

applicant for a driver’s license or 

identification card is lawfully present in 

the United States. Part of the 

information required in order to query 

SAVE is the name of the individual, 

which can be confirmed through one of 

the source documents for proving 

identity. Applicants are free to use any 

other documentation available, 

including an I–94 or an I–797, in order 

to demonstrate lawful status and assist 

the State in making a SAVE check. DHS 

also agrees with the commenters who 

suggested that any document that can be 

electronically verified through SAVE 

should be acceptable, since the purpose 

of providing that document is to prove 

lawful status, not identity. Neither the 

I–94 nor the I–797, for example, is 

sufficient to prove identity. DHS 

believes that refugees and asylees are 

issued EADs within a reasonable 

amount of time such that they are able 

to obtain REAL ID driver’s licenses and 

identification cards, and so there is no 

reason to include other refugee or asylee 

paperwork or documentation to the list 

of documents used to establish identity. 


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Applicants who need an immediate 

driver’s license can obtain a non-REAL 

ID document from States issuing such 

cards. 

Canadians, however, will need to use 

their Canadian passport or obtain a U.S.- 

issued document in order to establish 

identity for a REAL ID license, as 

neither DHS nor the States can verify in 

a timely way that the document has 

been issued by the issuing agency (a 

foreign government in this case) as the 

statute requires. Canadians, however, 

can typically drive using their Canadian 

driver’s license in the United States and 

can also obtain a non-REAL ID driver’s 

license from States issuing such cards. 

Comment: Some commenters had 

specific thoughts about the proposed 

provisions on birth certificates. A State 

agency suggested that a delayed birth 

certificate should be specifically named 

as an acceptable document. Other 

commenters argued for acceptance of 

hospital records or baptismal certificates 

within a year of birth and adoption 

papers. Another State noted that many 

births in rural areas are not recorded, 

and suggested that States should be able 

to use other documents. Many 

commenters wrote that the proposed 

requirement for a certified copy would 

place a hardship on poor persons and 

the homeless. 

Response: If State law permits the use 

of a delayed birth certificate, that 

document can be used by a State. 

Hospital and baptismal records are not 

acceptable documents to establish 

identity, though, in appropriate 

circumstances, can be used in a State’s 

exceptions process to establish date of 

birth or lawful status in the United 

States. 

Comment: Two commenters 

recommended that current State-issued 

non-compliant driver’s licenses and 

identification cards and bank-issued 

credit cards be included on the list of 

documents acceptable to prove identity 

because technology exists to verify and 

authenticate these documents. 

Commenters were divided on the 

acceptance of Native American Tribal 

Documents, with a few commenters, 

some Tribes, AAMVA, and two States 

supporting acceptance of the documents 

(particularly for birth records), and a 

few States opposing acceptance of these 

documents. 

Response: DHS does not believe that 

non-compliant driver’s licenses or credit 

cards are acceptable documents to 

establish identity. No identity 

verification has taken place with respect 

to these documents. Tribal documents 

are addressed elsewhere in the 

responses to comments. 

Question 2: Whether the data 

elements currently proposed for 

inclusion in the machine readable zone 

of the driver’s license 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? 

See full discussion of comments and 

responses to this question in section I. 

Question 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. 

Comment: Numerous commenters 

favored the premise that individuals 

born before 1935 with established 

histories should be exempt from the 

birth certificate verification 

requirements. Some States added that 

States should be allowed to establish 

alternative documents acceptable for ID 

verification in this circumstance. 

AAMVA and some States acknowledged 

that many in this age group may not be 

able to obtain a birth certificate or 

related documents. AAMVA also said 

that citizens born before 1951 with ten 

or more years of history with the State 

DMV and who have passed Stateapproved verifications should be 

exempt. Several States said that 

electronic verification would likely be 

incomplete and non-electronic 

verification would be too burdensome 

for persons born before 1935. Another 

commenter said jurisdictions should be 

allowed to segregate the population by 

risk assessment to enable a managed 

approach to enrollment in REAL ID. 

One commenter added that it explicitly 

proposes using the term ‘‘American 

citizens born before 1935’’ rather than 

the term ‘‘individuals.’’ A couple of 

States suggested granting an exemption 

based on the age of the applicant instead 

of an exemption based on a fixed date, 

with one suggesting 62 years of age, 

based on eligibility to receive social 

security benefits, for those persons with 

established histories with the State. 

Response: DHS has determined that it 

will not allow a broad birth certificate 

exemption for those persons born before 

1935, and allows States to accommodate 

such persons as necessary in their 

exceptions process. 

Comment: States requested 

clarification regarding ‘‘established 

histories with a State’’ i.e., whether this 

means individuals who already have a 

license or identification card in the 

State where they are seeking a product. 

One commenter suggested a history 

with the State for a minimum period of 

time, such as twenty to thirty years. 

This exemption should be part of each 

State’s security plan so risks can be 

further mitigated through the overall 

REAL ID plan at the jurisdictional level. 

A couple of States also said that 

individuals without established 

histories should be handled through the 

State exceptions process, enabling 

qualified drivers to obtain a compliant 

license or identification card. A number 

of organizations said that these cases 

should be handled under the State 

exceptions process. One commenter 

wrote that DHS should establish a 

standard to which all States should 

conform in issuance of birth certificates. 

Another wrote that the process should 

be thoroughly documented, reviewed, 

and updated on an on-going basis. One 

commenter wrote that the process 

should substitute some form of identity 

verification that precludes imposter 

fraud. Another commenter wrote that 

this elaborate process is itself another 

argument in favor of restricting the 

Federal role in licensing altogether. 

Response: DHS has taken a different 

approach to reducing the number of 

people that a State DMV must process. 

DHS consulted with intelligence 

analysts and experts about how best to 

target preventive efforts against an 

individual attempting to fraudulently 

obtain an identification document to 

gain access to a Federal facility, nuclear 

facility, or commercial aircraft. 

DHS has determined that, based on 

information it has reviewed, there is a 

higher risk that individuals under age 

50 will obtain fraudulent identification. 

As a result, the rule requires States to 

focus enrollment first on individuals 

born on or after May 11, 1965 when 

issuing REAL ID cards. DHS has further 

determined that there is an acceptable 

level of risk in deferring the REAL ID 

enrollment requirements until 

December 1, 2017 for those individuals 

who are older than age 50 as of 

December 1, 2014. 

Comment: Two States said that 

customers born before 1935 should 

make every attempt to comply with 

REAL ID rather than being granted a 

blanket exemption. If compliance is not 

possible, exceptions procedures (along 


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with other documents to reasonably 

prove identity) should be the next step. 

Response: DHS agrees with these 

comments and has decided not to adopt 

an exemption for individuals born 

before 1935, as discussed above. 

Comment: AAMVA and several States 

said that individuals born before 1935 

should not only be exempted from the 

birth certificate requirements, but also 

wholly exempt from the entire 

enrollment process since these 

individuals do not pose any potential 

threat. However, one State said it lacks 

the expertise to opine on the risk of 

terrorism this exemption would pose. 

Response: As noted above, DHS is not 

proposing to exempt any individuals 

from the REAL ID enrollment process. 

Comment: Other commenters 

suggested the following exemptions 

from reenrollment: individuals for 

whom proof of identity, residency, 

lawful status and SSN can be proven 

electronically, and citizens who are 

elderly, disabled, in nursing homes or 

mental institutions and who will not be 

getting on an airplane or entering a 

Federal facility. 

Response: As noted above, DHS is not 

proposing to exempt any individuals 

from the REAL ID enrollment process. 

DHS urges States to make appropriate 

accommodations for handling the 

elderly, disabled, and those in nursing 

homes or mental institutions. Section 

202(d)(11) of the Act gives States the 

opportunity to issue non-compliant 

licenses that are not accepted for official 

purposes and may not necessarily 

require an in-person enrollment, 

depending on the State’s issuance 

process. 

Question 4: If a State chooses to 

produce driver’s licenses and 

identification cards that are WHTIcompliant, whether citizenship could be 

denoted either on the face or machinereadable 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. 

See full discussion of comments and 

responses to this question in section P. 

Question 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. 

See full discussion of comments and 

responses to this question in section I. 

Question 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. 

Comment: AAMVA listed ten criteria 

for measuring a State’s progress towards 

implementation of the REAL ID 

requirements—procurement practices, 

process changes, contractual 

arrangements, funding, legislative 

authority, personnel, facilities, 

computer systems, new verification 

systems, and existing verification 

systems. Some States suggested 

variations on these themes, proposing 

that a set of standardized benchmarks 

was not realistic. Rather, each State 

should be able to determine appropriate 

benchmarks depending on what they 

had to do to implement REAL ID. 

Progress could be measured against 

implementation plans States submitted 

to DHS and should be based on a 

phased approach. One State suggested 

that DHS create a matrix that could be 

used to show progress for the major 

components of REAL ID. Another State 

argued that it is difficult to establish 

benchmarks before all regulatory 

requirements have been finalized. One 

State recommended a ‘‘strategic’’ rather 

than ‘‘prescriptive’’ implementation 

approach. 

One privacy group stated that the 

final rule must include robust security 

standards for national querying systems. 

A vendor association provided detailed 

recommendations on access control and 

authentication practices. One State 

made very detailed recommendations 

on privacy standards including a predefined audit requirement. A vendor 

association recommended strong 

sanctions for violations of procedures to 

deter the insider threat and notification 

of anyone whose information is 

breached. 

Response: The final rule specifies the 

elements necessary to be REAL IDcompliant, and DHS has proposed a 

checklist process for States to 

demonstrate completion of certain 

compliance benchmarks, and full 

compliance with the Act and these 

regulations. 

Question 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. 

See comments and responses to this 

question in section M. 

Question 8: How DHS can better 

integrate American Samoa and the 

Commonwealth of the Northern 

Marianas into the REAL ID framework. 

Comment: Several States indicated 

that individuals from American Samoa 

and the Commonwealth of the Northern 

Marianas should be issued a REAL ID if 

they provided acceptable documents 

like birth certificates, valid passports, 

unexpired driver’s license, or U.S. 

issued immigration documents. 

In addition, a few States supported an 

exception process for these territories. 

One State said that without Federal 

funds, it would be difficult if not 

impossible for both territories to comply 

due to complexity, cost and timing 

issues. Some States questioned whether 

American Samoa would be able to issue 

driver’s licenses and identification cards 

under the REAL ID Act and regulations. 

Other States claimed that without 

evidence of U.S. citizenship, Northern 

Marianas residents would not be able to 

obtain a license or card. One State 

recommended that DHS accept the 

Northern Mariana Card (I–873) to 

establish identity and residency. 

Customers without this card could be 

assisted under current State exceptions 

processes. Another State also suggested 

acceptance of the Re-entry Permit/ 

Refugee Travel Document (I–327, I–

571). 

AAMVA and some States requested 

clarification as to the specific issue 

caused by these groups of applicants. 

Response: DHS believes that 

American Samoa and the 

Commonwealth of the Northern 

Marianas will be capable of complying 

with the REAL ID requirements in the 

same time frame as other States and 

Territories. 

Question 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. 

Comment: See comments and 

responses to this question in section I. 

Also, AAMVA commented that States 

will face significant contractual 

conflicts if the document security 

standards in this NPRM remain in the 

final rule. States are using the AAMVA 

Driver Licensing and Identification Card 

Design Specification as the model to 

prepare bid packages for new contracts 

or renewals. Contract periods for card 

vendors vary by State and are driven by 

procurement rules. One State, for 

example, has a contract in place for the 

next seven years. Most States have at 

least five year contracts. AAMVA 


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recommended that DHS use the 

AAMVA Driver Licensing and 

Identification Card Design Specification 

as the minimum card security standard, 

allowing States to build on its 

provisions. States should not be 

expected to break or amend existing 

contracts and should not be expected to 

implement any changes to card security 

until their existing contracts expire. 

Response: See comments and 

responses to this question in Section I. 

Question 10: The Federalism aspects 

of the rule, particularly those arising 

from the background check 

requirements proposed herein. 

Comment: Several commenters said 

that REAL ID was beyond Congress’s 

enumerated powers because the States 

have a valid immunity claim. Another 

commenter wrote that REAL ID usurped 

States’ traditional authority. One 

commenter wrote that it is a violation of 

the tribal-Federal relationship to require 

a tribal government official to go to a 

State government official in order to 

obtain proof of identification in order to 

travel and conduct official tribal-Federal 

government business. One commenter 

said that State DMVs cannot revoke 

licenses or identification cards issued 

by another State. One State found no 

Federalism issues as States are able to 

control the design, and, potentially, the 

security features of its cards. However, 

other States voiced a number of 

Federalism concerns. 

One State presented a list of impacts 

flowing from the REAL ID program: 

Procurement practices, process changes, 

existing contractual arrangements that 

cannot be altered without significant 

penalty, fund appropriations, laws, 

facilities, computer systems, 

requirement of new verification 

systems. Similarly, some States argued 

that the REAL ID regulation could not 

survive a challenge brought under the 

10th Amendment of the Constitution. It 

continued, ‘‘Given an affidavit issued by 

the Governor of the Commonwealth, 

DHS would have universal, unfettered 

access to employees and systems that 

are dedicated to a traditionally State 

function.’’ Another State wrote that DHS 

should not intrude into the traditional 

State function of licensing drivers and 

issuing identification cards by 

attempting to prescribe the processes for 

creating, issuing, and administering 

REAL ID cards, and that DHS should 

specify the security, performance, and 

quality characteristics that REAL ID 

participating jurisdictions must achieve. 

Some commenters believed that the 

REAL ID Act violates both the spirit and 

the letter of Federalism law. The 

commenters wrote that the REAL ID Act 

aims to conscript the States into creating 

a national ID system, and that it is ‘‘this 

kind of scheme’’ that the Framers 

expected Federalism to guard against. 

Because of this, many States have 

passed anti-REAL-ID resolutions and 

legislation. 

Response: The REAL ID Act provides 

the Secretary of Homeland Security 

with authority to issue regulations. DHS 

understands that there is a balance 

between Executive discretion in 

interpreting the REAL ID Act through 

regulation, while also respecting the 

States’ autonomy to govern an 

inherently State function—the driver’s 

license and identification card issuance 

process. DHS has attempted to preserve 

State autonomy wherever possible, 

while remaining consistent with the 

Act, and believes these regulations 

represent a logical interpretation of the 

Act and Congressional intent. 

Comment: One commenter argued 

that States should have discretion to 

determine whether to conduct 

background checks on State employees. 

One State DMV said that because it 

conducts a fingerprint-based 

background check on its employeeapplicants, implementing the REAL ID 

requirement would have ‘‘minimal’’

impact. In contrast, one State said that 

in requiring a background check for 

State employees, DHS is 

‘‘overreaching.’’ Because the 

requirement includes several checks, 

only one of which a DMV could use to 

disqualify an employee from performing 

certain REAL-ID-related activities, a 

State argued that the rule impacts both 

the individuals a State may hire and 

retain in certain positions. It also 

requires a collection of information for 

no stated reason. Another State DMV 

wrote that DHS goes beyond the 

statutory language in requiring a 

background check, and suggested that 

DHS strike the provision. 

With regard to the financial history 

check, one State noted that this aspect 

of the draft regulation would intrude 

into the relationship that State 

governments have with their employees. 

It argued that DHS could avoid 

Federalism issues by having its 

regulations ‘‘express the security 

characteristics that a State would need 

to achieve rather than prescribe how 

State processes should operate.’’ The 

Federal government, it said, should not 

regulate hiring practices for State 

employees. One State wrote that it has 

discontinued credit checks because it 

was not an adequate indicator of a 

person’s behavior or ethics. 

Response: As noted above, DHS 

believes it has the authority to require 

background checks. Based on the 

comments received, DHS has decided to 

eliminate the financial history check of 

DMV covered employees and 

prospective employees. 

Comment: Although one State agreed 

that DHS has authority to review State 

compliance within the scope and 

criteria of the auditing granted by the 

statute, this State asserted that DHS 

exceeded the scope of its authority in 

promulgating § 37.59(a), which lacks a 

check on seemingly unlimited Federal 

authority to inspect State processes. 

Response: DHS does not believe the 

language of § 37.59(a) provides DHS 

with unfettered authority to oversee the 

actions of State government. Indeed, the 

section provides the opportunity for 

States to challenge a DHS determination 

of non-compliance, rather than a 

Federal authority with no right of 

appeal. DHS has also relaxed the 

reporting requirements in this final rule 

in response to comments that the 

reporting requirements in the NPRM 

were too burdensome. 

Comment: One State asserted that it is 

beyond DHS’s authority to compel nonparticipating States to maintain a motor 

vehicle database with the minimum 

required REAL ID information and to 

share access to any such database with 

other States. 

Response: DHS is not compelling nonparticipating States to meet any of the 

requirements of these rules. 

Comment: A State objected to the 

requirement that a REAL ID 

cardholder’s address change requires 

the person to report and document the 

change in person at a DMV office. The 

State says it is apprehensive that the 

proposed rules erode the important 

principles of Federalism, especially 

regarding managing elections. When a 

driver applies for voter registration, the 

State automatically checks to see 

whether the address given on that card 

is the same as the address on a Stateissued driver’s license or identification 

card. If there is a mismatch, State law 

requires automatically changing the 

license or identification card address to 

match that on the voter application 

form. This State requested that DHS give 

serious consideration to allowing this 

automatic updating practice to continue. 

Another commenter said DHS should 

ensure that the final regulations 

continue to provide States maximum 

flexibility to determine which 

employees are subject to the 

requirements of this section. 

Response: As noted elsewhere, the 

final rules do not require an individual 

to have an in-person transaction with 

the DMV to change their address. 

Comment: One commenter said that 

because direct regulation of the States 

would be unconstitutional, the REAL ID 


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Act inappropriately conditions Federal 

acceptance of State-issued identification 

cards and driver’s licenses on their 

meeting certain Federal standards. The 

commenter was also concerned that 

DHS was using State machinery to 

implement a Federal program. However, 

the commenter asserted that it is within 

Federal power for DHS to condition 

acceptance of identification cards and 

driver’s licenses on priorities closely 

related to national security, including 

meeting standards for privacy and data 

security. 

Response: Congress passed the REAL 

ID Act to implement a recommendation 

of the 9/11 Commission Report to 

increase the security, credibility and 

confidence in identification documents. 

Congress, in drafting the law, and 

understanding the Constitutional 

concern of directly regulating the States, 

made the law binding on Federal 

agencies in specifying that only REAL 

ID-compliant driver’s licenses would be 

accepted by Federal agencies for official 

purposes after the law is implemented. 

DHS agrees with the commenter that the 

Federal government has the authority to 

condition acceptance of driver’s licenses 

and identification cards on the meeting 

of certain standards and requirements as 

defined in the REAL ID Act and the 

implementing regulations. 

Comment: One commenter concluded 

that Congress and DHS could have 

supported meaningful Federalism by 

supporting States’ pre-REAL ID 

initiatives to produce an interstate 

compact to achieve interoperability of 

State databases. 

Response: This comment is outside 

the scope of the rulemaking. 

Question 11: How the Federal 

government can better assist States in 

verifying information against Federal 

databases. 

Comment: Several States and other 

commenters had a number of 

suggestions including the following: 

—Develop and test or enhance Federal 

databases to meet States’ needs. 

—Establish standards for system 

performance and connectivity. 

—Ensure that matches can be made with 

as little manual intervention as 

possible. 

—Establish standard naming 

conventions. 

—Put security standards in place. 

—Fund system development and assist 

States financially in performing 

verifications. 

Response: DHS is collaborating with 

its Federal partners, AAMVA and the 

States to design and implement 

verification systems to support the 

requirements of the REAL ID Act and 

regulations. DHS is working on 

improving the reliability, usability and 

accuracy of existing systems like SSOLV 

and SAVE to meet States’ needs to 

minimize the manual intervention 

necessary. 

In addition, DHS will work with DOT, 

AAMVA and the States to reinforce the 

security and privacy features of this 

communications and systems 

architecture to include practices 

consistent with fair information and 

Federal Information Security 

Management Act principles. In 

partnership with DOT, AAMVA, and 

the States, DHS will issue best practices 

to guide future systems design, 

development and operation. DHS is also 

working with Federal, State, and 

nongovernmental organizations to 

identify and improve name formats and 

matching algorithms used by identify 

verification. 

Question 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. 

Comment: Several commenters wrote 

that REAL ID will decrease identity 

theft. Several other commenters thought 

that a decrease in theft might not be 

attributed to REAL ID but be due to the 

fact that many States are implementing 

more stringent rules for obtaining a 

driver’s license. 

A few commenters claimed that REAL 

ID will have little to no impact on 

identity theft. One commenter noted 

that most instances of identify theft are 

a result of a stolen social security 

numbers or credit cards, and that REAL 

ID does not address these types of thefts. 

Another organization stated that 

‘‘loopholes’’ in the source 

documentation requirements for those 

without a permanent addresses or birth 

certificates take away any perceived 

REAL ID benefit. 

Most of the commenters thought that 

REAL ID would increase identity theft. 

Commenters wrote that the NPRM did 

not propose sufficient protection and 

security controls to ensure that the 

information being collected and stored 

will be immune to theft or misuse. 

Several commenters said that the 

databases storing digital images of social 

security numbers, bank statements, and 

birth certificates will be an identitythief’s dream target. These images, once 

in the hands of criminals, will be easy 

to counterfeit. If systems are linked, a 

single breach in security will potentially 

compromise 240 million individuals. 

Several commenters also highlighted 

that threat to this information may come 

from within DMVs. One organization 

quoted that over 100 million records of 

U.S. residents have been exposed due to 

security breaches. 

Response: DHS provided a detailed 

analysis on the ancillary benefits of the 

proposed rule on REAL ID. We noted, as 

the comments suggested, that the 

proposed rule may have only a small 

impact on reducing identity theft. REAL 

ID will only have the ability to impact 

those types of identity theft that require 

a drivers license for successful 

implementation and only to the extent 

that the rulemaking leads to incidental 

and required use of REAL ID documents 

in everyday transactions, which is an 

impact that also depends critically on 

decisions made by State and local 

governments and the private sector. 

With the current costs of identity theft 

being high, we believe that even if the 

ancillary benefits associated with 

identity theft are low, when these 

benefits are combined with other 

benefits of this rulemaking, that this 

rule is cost-beneficial. 

Many commenters believe that REAL 

ID would increase identity theft. We 

find, at the current time, that it would 

be difficult to draw any conclusions 

such as this since the effort or cost to 

individuals to obtain and use a passable 

fraudulent identification card is 

expected to be much higher than it is at 

present. Only those people who believe 

that they will reap substantial benefits 

would be willing to incur the cost of 

creating and using a fraudulent 

identification card. 

With regard to the general comment 

that REAL ID is expected to reduce 

instances of underage drinking through 

the use of false/fraudulent 

identification, DHS believes that REAL 

ID may reduce on the margin the rate at 

which underage drinking occurs. The 

rate at which it does so partly depends 

on State and local authority and/or 

private employer decisions as to what 

form of identification is acceptable for 

particular purposes, and the 

effectiveness with which identification 

checks are implemented. DHS is not 

willing to quantify, at this time, the 

expected benefits that would be 

achieved from a reduction in underage 

drinking. 

Comment: Regarding the ancillary 

benefits of REAL ID, some States 

supported DHS’s suggestion that REAL 

ID could reduce underage drinking and 

purchase of cigarettes by making it 

easier for vendors to identify fake 

identification cards. Other commenters 

wrote that REAL ID could also promote 


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highway safety by allowing law 

enforcement officers to process 

vehicular accidents and traffic citations 

faster and more accurately, and 

potentially aid other law enforcement 

efforts. 

Several commenters noted that one of 

the possible ancillary effects of a REAL 

ID is that commercial entities will be 

able to market to individuals without 

the individual’s permission. The MRZ 

and the 2–D barcode technology 

discussed in the NPRM makes it easier 

for third parties to obtain sensitive 

information about the holder of the 

cards. Several commenters gave 

examples of how commercial entities 

will make REAL ID the default 

document for everyday transactions and 

thus will be able to obtain, store, and 

track individual’s age, address, and 

purchases. 

Three organizations noted that State 

transactions, such as the issuance of 

professional/occupational licenses (for 

example, licensing for doctors, lawyers, 

nurses, real estate brokers) and hunting 

and fishing licenses, could be done with 

a higher level of assurance that the 

license is being given to the right 

person. Two other organizations also 

said that health-related and financial 

companies would also receive security 

benefits associated with more trust in 

the validity of the identification cards. 

One commenter stated that all 

employers would benefit because they 

would be better able to determine 

employment eligibility. 

Response: DHS believes that the 

potential ancillary benefits of this 

rulemaking would be in many areas. 

Should acceptance of REAL ID cards 

become widespread, such ancillary 

benefits may include reduction in 

fraudulent access to public subsidies 

and benefits programs, illegal 

immigration, unlawful employment, 

unlawful access to firearms, voter fraud, 

underage drinking, and underage 

smoking. DHS believes that REAL ID 

may reduce on the margin, the rate at 

which these fraudulent activities take 

place. The degree to which they do so 

will partly depend on State and local 

authority and/or private employer 

decisions as to what form of 

identification is acceptable for 

particular purposes, and the 

effectiveness with which identification 

checks are implemented. DHS cannot, at 

this time, measure these benefits 

quantitatively. 

With regards to organizations, 

businesses, etc., DHS is not preventing 

the use of REAL ID in State transactions 

and the individual who is having the 

document presented to him can place 

any level of trust he/she wants in the 

REAL ID document. 

Question 13: The potential 

environmental impacts of the physical 

security standards and other 

requirements proposed under this rule. 

Comment: A State recommended that 

DHS seek out U.S. EPA or a similar 

group to evaluate the potential 

environmental impacts. One State DMV 

wrote that the environmental impacts of 

the rule would be minimal. States may 

have to perform the required 

environmental impact analysis if 

changes to issuance facilities are 

necessary. AAMVA suggested that 

environmental impacts associated with 

retrofitting the facilities to meet 

physical security standards will result 

in some environmental risks such as 

asbestos removal. 

One State asserted that the increased 

visits by individuals to renew their 

licenses and corresponding activities 

associated with creating a license (for 

example, increased usage of electricity, 

scanners, copiers, printers, and paper) 

will impact air, ground, and water 

quality, and result in unnecessary waste 

disposal and consumption of natural 

resources, electricity, and other fuels 

and add to traffic congestion. This State 

recommended that DHS revise the rule 

to employ a phased approach which 

could allow States to certify and renew 

on schedules that will not adversely 

impact the normally occurring renewal 

cycle. 

One commenter suggested that the 

durability provided by longer life 

driver’s licenses and identification cards 

could result in less material going into 

the waste stream resulting in an 

environmental benefit. 

Response: DHS carefully evaluated 

those comments along with other 

potential environmental impacts of this 

rule. The comments show that, if the 

States choose to create a REAL ID 

process, any potential environmental 

impacts which might be significant, can 

be mitigated. DHS concludes that the 

rule’s potential impacts are minimal and 

notes that the rule does not force an 

immediate action but only lays the 

foundation for subsequent action. If 

States seek follow-on DHS grant 

funding, approval, or other activity for 

implementation of the rule, then the 

potential environmental impacts 

associated with the follow on activity 

must be reviewed. 

Question 14: Whether other Federal 

activities should be included in the 

scope of ‘‘official purpose.’’

See comment and response to this 

question in section B. 

Question 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. 

Comment: Most commenters 

supported the ‘‘one driver, one record 

concept,’’ and most States said Federal 

funding for an ‘‘all drivers’’ system 

would promote the concept. A couple of 

States specifically endorsed DRIVerS 

(Driver Record Information Verification 

System). Many States joined AAMVA in 

endorsing a State’s initiative to enter 

into a Driver License Agreement to 

develop ‘‘a nationwide pointer system 

with the driver record and driver history 

transferred to a ‘change State record’

when the driver moves to a new State.’’

AAMVA and many States also endorsed 

basing any such pointer system on the 

Commercial Driver License Information 

System (CDLIS). 

One State said that any ‘‘all drivers’’

verification system must include 

‘‘reciprocity rules’’ so that an individual 

who is required to move frequently 

across States need not undergo a 

complete REAL ID check every time. 

However, one commenter said a CDLIStype system is a concern because it is a 

‘‘one person one license (or ID card) one 

record system’’ with no regulatory or 

statutory limitations on who can access 

information and for what purpose. To 

protect privacy and ensure driver safety 

across States, the commenter said the 

existing Problem Driver Pointer System/ 

National Driver Register is better. 

A few commenters also joined 

AAMVA in endorsing the AAMVA/ 

National Highway Traffic Safety 

Administration joint initiative to 

develop a digital image exchange project 

to identify multiple State license 

holders. Some States echoed a comment 

from AAMVA that because a driver’s 

license applicant must surrender his or 

her current license from another State as 

a condition of receiving a new license, 

the States already follow a policy of one 

driver, one license. Another State said 

that States should require a driver’s 

license applicant to self-declare the 

existence of a prior compliant or noncompliant license or card and require 

confiscation and notification to cancel 

before the new State issues a document. 

Several commenters endorsed using the 

Driver License Agreement compact as 

an extant system for promoting ‘‘one 

driver, one record.’’

Other process recommendations 

included the suggestion that a national 

business process standard be developed 

to let jurisdictions know of the theft or 

loss of a REAL ID card and forming an 

agreement similar to the DLA that both 

REAL ID and non-REAL ID States can 

use to ensure cross-checking before a 

jurisdiction issues any driver’s license. 


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Requiring ‘‘cleaning’’ of existing 

databases and comparing legacy 

databases used to issue a REAL–ID 

compliant card was also recommended. 

One commenter said that having only 

one license for multiple purposes would 

better promote the concept than having 

non-REAL ID and REAL ID driver’s 

licenses. It also said that the United 

States must accept standards 

nationwide to be used with confidence 

of driver’s license exchange to move 

across boundaries and should 

encourage/mandate reciprocity of like 

licenses. 

Some commenters noted problems 

with implementing the ‘‘one driver, one 

record’’ concept, stating that, without 

participation by all States, the system is 

fundamentally flawed in that a person 

could hold multiple non-REAL ID driver 

licenses and a REAL ID-compliant card. 

One State said that DHS lacked 

authority to compel a non-REAL ID 

State to participate in systems that 

promote the concept. It suggested that 

the ‘‘one driver, one record concept’’

should only apply to the REAL IDcompliant system. 

Other States said the rules should 

allow a person to hold both a REAL IDcompliant card and a non-REAL ID card 

in any combination ‘‘with the limitation 

that a driver has no more than one 

license and one card at a time.’’ One 

State suggested that a person not hold 

more than two REAL ID-compliant cards 

at a time: a driver’s license and an 

identification card. This commenter 

said a person might wish to carry a 

REAL ID-compliant card and keep 

another at home. One State said that it 

issues identification cards to 

individuals who may hold a license in 

another State. 

Some States said that DHS’s proposal 

and the REAL ID Act impede ‘‘one 

driver, one record.’’ That would happen, 

these commenters said, where these 

authorities require ‘‘a State DMV to take 

measures to confirm that an applicant 

has terminated or has taken steps to 

terminate a REAL ID driver’s license or 

identification card issued in another 

State.’’ One State proposed that DHS 

change § 37.33(c) to state that a person 

who applies for a REAL ID in his or her 

State of residence has ‘‘taken steps to 

terminate the prior card.’’ One State 

wanted to know how DHS would define 

‘‘terminate.’’

One State said that because there is no 

system through which a State could 

check whether a person already holds a 

REAL ID driver’s license or 

identification card in another 

jurisdiction, DHS should eliminate the 

requirement that States must make such 

a check. Another State asserts that such 

a capability should exist now across all 

fifty States. 

Several commenters remarked on the 

use of technology to promote the ‘‘one 

driver, one record’’ concept. One 

commenter endorsed smart cardenabled REAL ID documents requiring a 

one-to-one match. A consulting group 

described a biometric identifier as the 

only known manner to prevent one 

individual from procuring more than 

one license or identification document. 

This commenter said DHS should 

identify and standardize a suitable 

biometric property and create a privacysensitive solution for performing the 

necessary biometric comparisons. 

One commenter said that DHS should 

have presented and analyzed in detail 

different architecture models (other than 

CDLIS) for the system States can use to 

check whether a REAL ID applicant 

already holds a REAL ID card issued by 

another jurisdiction. Noting that a 

system promoting ‘‘one driver, one 

record’’ must promote privacy, security, 

and accuracy, another commenter said 

CDLIS is not a federated query system, 

but a national database. It commented 

that simply scaling up this system will 

not establish a federated query service, 

but will create a national ID. 

One commenter wrote that it is 

concerned about DHS’s failure to 

articulate what defines a person’s 

unique driver’s license or identification 

card number; the proposed rule is silent 

on the form this unique number will 

take and does not specify whether the 

number will be unique nationally or 

solely within a single State. 

Response: Section 202(d) of the REAL 

ID Act prohibits States from issuing 

REAL ID cards to a person who holds 

a driver’s license in another State 

without confirmation that the person 

has terminated, or is taking steps to 

terminate, the other license. We have 

amended this final rule to clarify this 

statutory requirement. See § 37.33. DHS 

supports the concept of one driver, one 

license. DHS is not, however, 

authorized under the REAL ID Act to 

use this final rule to prohibit States from 

issuing non-REAL ID driver’s licenses to 

persons who hold licenses in other 

States or to find that a State is not in 

compliance with the minimum 

standards of the REAL ID Act if such 

State issues driver’s licenses to persons 

holding licenses in other States. DHS is 

limited under its authority in the REAL 

ID Act to prohibiting States from issuing 

REAL ID cards to persons who hold 

licenses in other States or who hold 

another REAL ID card. 

Question 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. 

Comment: A few States said that 

although a REAL ID should be 

recognizable as such, a standardized 

appearance would facilitate 

counterfeiting. Another State suggested 

that States should only have to mark 

REAL ID-compliant cards, not mark 

non-compliant cards. Other commenters 

supported the use of an identifier for 

non-compliant licenses and cards, as 

DHS would need a mechanism to tell if 

a license issued before the Act was 

compliant. NGA recommended placing 

a restriction code on the front of the 

license with text on the back to denote 

whether the license was REAL IDcompliant. AAMVA, several States, and 

another commenter all argued against 

standardizing a unique design or color 

for the non-Real ID cards. Some 

commenters wrote that DHS had no 

authority to require States to adopt a 

standard design or color for the nonREAL ID cards, citing Federalism. One 

commenter wrote that mandating 

distinct designs or colors for both REAL 

ID and regular license and ID cards and 

requiring non-REAL ID driver’s licenses 

to have an ‘‘invalid for Federal 

purposes’’ designation turns the 

voluntary card into a mandatory 

national ID. Several also expressed 

concern that standardization would 

make counterfeiting of the cards easier, 

since counterfeiters would only have to 

focus on one document. The 

consequences of successful 

counterfeiting would be more severe, 

they said, since the whole system would 

be compromised and all States would 

then have to change their cards. Some 

commenters said that diversity in 

security features, as long as they met a 

common performance standard, would 

be best. Commenters said that a 

standardized design would increase the 

perception that a national identification 

system was being created. 

Response: While cards that do not 

satisfy the requirements of the Act must 

clearly state on their face that they are 

not acceptable for official purposes, 

DHS is not mandating a specific design 

or color for such cards. DHS agrees with 

States that recommended marking 

compliant cards and as such, requires 

compliant cards to be marked with a 

DHS-approved security marking. 

Comment: Many commenters opposed 

a REAL ID standard design. One 

commenter wrote that requiring a single 

standard configuration will limit the 

ability of jurisdictions to adapt to 

changing threats in their particular 

environment and could drive up costs 


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unnecessarily. Many States expressed 

concern about increasing the threat and 

consequences of counterfeiting. Several 

States said they should be allowed to 

continue to use unique designs for their 

driver’s licenses and ID cards (one 

noting it held great value for State 

identity), while others argued that States 

should be allowed to maintain control 

of the design of their licenses to the 

greatest extent possible. AAMVA noted 

that its current Card Design 

Specification does not require a similar 

color for all States, although it 

standardizes security features. AAMVA 

recommended that ‘‘branding’’ be 

applied to the REAL ID, but it also 

recognized that this would lead some 

individuals to believe this was a step 

toward a national ID card. State 

commenters wrote that a benefit of a 

standard color would be to ease training 

of screeners and help ensure that 

screeners could easily identify a 

compliant REAL ID-compliant card. 

One commenter wrote that REAL ID 

should mandate a standardized color or 

design. However, other commenters 

wrote that DHS should not mandate a 

standard design or color, that a standard 

design is not authorized by the REAL ID 

Act, that a standardized design is 

strictly prohibited by the Intelligence 

Reform and Terrorism Prevention Act of 

2004, Public Law 108–458, and that a 

uniform REAL ID design would be an 

‘‘enormous’’ security risk. 

Response: DHS is not mandating a 

single design or color for REAL IDcompliant driver’s licenses or 

identification cards, and recognizes a 

State’s right to have a unique design. 

However, in response to several 

commenters, DHS is requiring that cards 

issued in compliance with REAL ID be 

marked with a DHS-approved security 

marking. 

V. 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 

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 rule contains the following new 

information collection requirements. 

Accordingly, DHS submitted a copy of 

these sections to OMB for its review. 

OMB has not yet approved the 

collection of this information. 

This final rule will 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 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 license (covered 

employees). This rule will 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. 

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). 

DHS estimates that each State will 

submit a certification of compliance or 

request for extension, together with a 

security plan. Subsequently, each State 

will be required to re-certify its 

compliance with the REAL ID Act every 

three years on a rolling basis. As part of 

the certification package, States will be 

required to submit (1) A copy of their 

security plan; (2) their documented 

exceptions and waivers procedures; and 

(3) a written report on card security and 

integrity (which must be updated 

whenever a security feature is modified, 

added or deleted). DHS estimates that 

States will spend approximately 42,000 

burden hours in the first year to 

complete the certification requirements. 

DHS projects that the burden hours will 

rise to 56,000 hours annually in 

subsequent years. DHS estimates the 

cost to the States will be $1.11 million 

in the first year and $1.48 million every 

year thereafter, for an annualized cost 

estimate (over three years) of $1.35 

million. 

States must subject covered 

employees to a background check, 

which includes a name-based and 

fingerprint-based criminal history 

records check (CHRC). DHS estimates 

States will incur costs for employee 

background checks of $1.44 million in 

the first year, $0.61 million in the 

second year, and $0.37 million in the 

third year, for an annualized cost 

estimate of $0.80 million. 

Finally, States must maintain 

photographs of applicants and records 

of certain source documents. DHS 

estimates that States will incur 

2,275,000 hours for information 

technology (IT) in the first year, and 

348,000 hours in subsequent years, for 

an annualized hour burden estimate 

(over three years) of 990,333. DHS 

estimates that ten percent of all IT costs 

is related to the recordkeeping 

requirements. Thus, DHS estimates that 

out of a total one time cost of $601.9 

million for all State systems, ten 

percent, or $60.2 million, will be 

incurred in the first year, and $9.3 

million in the second and third years as 

a result of this collection of information, 

for an annualized cost of $26.26 million. 

DHS received no comments directed 

to the information collection burden. 

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. 

B. Economic Impact Analyses 

Regulatory Evaluation Summary 

Changes to Federal regulations must 

undergo several economic analyses. 

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, it 

explicitly stated that the REAL ID Act is 

binding on the Federal government, and 

not the States. Moreover, by its terms, 

UMRA does not apply to regulations 

‘‘necessary for the national security’’


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3Testimony of Maura Harty, Assistant Secretary 

of State for Consular Affairs, before the Senate 

Foreign Relations Committee, International 

Operations and Organizations Subcommittee, June 

19, 2007, at http://travel.state.gov/law/legal/ 

testimony/testimony_806.html. 

4Statistics reported in The Airline Handbook, 

issued by the Air Transport Association and located 

at http://members.airlines.org/about/ 

d.aspx?nid=7954 and by the Gallup Organization at 

http://www.gallup.com/poll/1579/Airlines.aspx. 

and those which impose requirements 

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

a matter of law, the UMRA requirements 

do not apply to this final 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 detailed Regulatory 

Evaluation placed in the public docket. 

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 economically 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 requirements 

finalized by this rule. A complete 

regulatory impact assessment, as 

required under Executive Order 12866 

and OMB Circular A–4, will be set forth 

in a separate document in the docket for 

this regulatory action at http:// 

www.regulations.gov at Docket Number 

DHS–2006–0030. The details of the 

estimated costs and benefits, including 

potential ancillary benefits realized by 

the requirements set forth in this rule, 

follow the A–4 Accounting Statement. 

The uncertainty analyses are being 

recomputed and will be published in 

the forthcoming final regulatory impact 

assessment. 

The Department of Homeland 

Security (DHS) is conducting a 

Regulatory Evaluation of the benefits 

and costs of the final minimum 

standards for State-issued driver’s 

licenses and non-driver identification 

cards pursuant to the REAL ID Act of 

2005. These standards will impact the 

lives of approximately 240 million 

people and the operations of all 56 State 

and territorial jurisdictions. 

Assumptions 

This Regulatory Evaluation covers the 

eleven-year costs of REAL ID Program 

deployment and operations. This 

includes: 

• Years One through Four—the three 

and one-half year period from January 

2008 to May 11, 2011 during which 

States will have time to make the 

business process changes and 

investments to meet the standards of 

REAL ID. In addition, States meeting the 

interim standards of Material 

Compliance with the rule must begin 

enrolling their populations in REAL ID 

beginning no later than January 1, 2010. 

• Years Four through Eleven—the 

seven year period during which States 

will continue and complete enrollment 

of their populations in REAL ID. States 

will begin issuing fully compliant REAL 

ID licenses no later than May 11, 2011. 

Moreover, DHS has adopted an agebased approach to REAL ID enrollment. 

By December 1, 2014 all individuals 

born on or after December 1, 1964 (that 

is, 50 years of age or under) will be 

required to present a REAL ID if they 

use a State-issued document for official 

purposes. Thus, individuals born on or 

after December 1, 1964 will have a 

minimum of four years to obtain a REAL 

ID. Individuals born before December 1, 

1964 will have an additional three years 

to enroll before the final enforcement 

deadline of December 1, 2017. 

The final rule incorporates significant 

changes to the Notice of Proposed 

Rulemaking. As a result, we have 

revised some of the assumptions upon 

which the original Regulatory 

Evaluation was based. The revised 

assumptions are detailed below: 

(1) That All States Will Comply in 

Accordance With the Revised Timeline 

DHS recognizes that most, if not all 

States will be unable to comply by May 

2008 and will file requests for 

extensions that will result in 

compliance implementation schedules 

that could mitigate some of the startup 

costs examined below. Hence, the costs 

allocated to the period prior to May 

2008 will be redistributed to subsequent 

years. 

(2) That 75 Percent of the Nation’s DL/ 

ID Holders Will Seek a REAL ID 

Credential 

The original NPRM assumed that 

100% of the candidate population 

would seek to obtain REAL IDs. This 

assumption was combined with two 

additional assumptions, namely that: 

1. States will not require all 

individuals to obtain a REAL ID; 

2. Some States will continue to issue 

non-compliant licenses along with 

REAL IDs. 

The Department has reviewed the 

100% assumption and concluded that it 

is unrealistic in light of the latter two 

assumptions. If States do not require all 

applicants to obtain REAL IDs, it is 

highly improbable that 100% of the 

population will apply. It is difficult to 

cite any example of a truly voluntary 

course of action that results in 100% 

compliance. If States offer a choice of 

either compliant or non-compliant 

licenses to applicants, some portion of 

the population will choose to receive a 

non-compliant license because: 

1. They do not need a REAL ID for 

Federal official purposes. 

2. They already possess a substitute 

document—for example, a U.S. 

passport—that will serve the same 

purpose as a REAL ID. 

Thus, the Department has 

reconsidered and eliminated the 

assumption that every individual 16 or 

older will seek to obtain a REAL ID 

within the timeframe of this analysis. 

The difficult question, therefore, is 

what level of participation in REAL ID 

can be realistically expected? What 

should be the primary estimate for 

participation by the American public in 

REAL ID? 

The Regulatory Evaluation utilizes a 

primary estimate of 75% based upon the 

following analysis: 

1. A significant number of States will 

not require that all residents seeking 

driver’s licenses or identification card 

obtain a REAL ID. Eight states currently 

issue licenses to individuals who cannot 

demonstrate lawful states and a 

significant number of States are likely to 

make REAL IDs an option. 

2. 25% of the population already 

holds a valid passport and the 

Department of State anticipates that this 

figure will increase to approximately 

33% in the next few years.3 Individuals 

with valid passports do not need to 

obtain a REAL ID as passports are likely 

to also be accepted for the same official 

purposes (i.e., boarding commercial 

aircraft) as a REAL ID. 

3. 20% of the population has never 

flown on a commercial airplane and 

47% flies ‘‘rarely or never.’’ 4 This 

second group is unlikely to need a 

REAL ID and members of this group are 

highly unlikely to belong to the group 

of valid passport holders. 

4. These two groups, combining to 

constitute a group of at least 40% of the 

population, should not need to obtain a 

REAL ID as acceptance of identification 

for official purposes. Assuming that a 

large proportion of this group will seek 

to obtain a REAL ID regardless of 

imminent need, we believe that 25% of 

the candidate population will not seek 

to obtain a REAL ID. 

(3) States Will Issue Both REAL IDs and 

Non-REAL IDs 

DHS anticipates that States will offer 

an alternative DL/ID (not acceptable for 

official purposes) to those who are 


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5Eight states currently issue licenses to 

undocumented immigrants and will—most likely—

continue to do so. These States are: Michigan, 

Maryland, Hawaii, New Mexico, Oregon, Utah, 

Washington, and Maine. 

6Based upon conversations between the REAL ID 

program office and U.S. license vendors, December, 

2007. 

unwilling or unable to obtain a 

compliant one. A number of States issue 

or plan to issue licenses to individuals 

that cannot document lawful status. 

Other States are expected to allow 

individuals to hold both a driver’s 

license and identification card. Finally, 

a number of States have evaluated or 

expressed interest in offering REAL IDs 

as an additional, voluntary license. 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.5

(4) That All IT Systems Will Be 

Functional by May 11, 2011 

The NPRM assumed that all IT 

systems would be functional by May 11, 

2008. DHS now recognizes that this 

assumption was overly optimistic. 

Therefore, DHS has extended the 

deadline for compliance with the rule 

until May 11, 2011 to give the States, 

Federal agencies, and non-governmental 

organizations like AAMVA the time to 

complete the communications and IT 

infrastructure needed to implement 

REAL ID. Therefore, DHS has 

recalculated the costs assuming that all 

required verification data systems be 

operational and fully populated by May 

11, 2011, the deadline for full 

compliance by States. DHS is working to 

bring these systems on-line and up to 

standards as soon as possible and will 

work with the States to develop 

alternative procedures. 

(5) That 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 will incur lower 

compliance costs than other States. 

(6) The Typical Validity Period of 

Driver’s Licenses in a Given State is the 

Validity Period for All DL/IDs in That 

State 

DHS is aware that within a State DL/ 

IDs often have varying validity periods 

but was unable to determine how many 

people held each of these varying types 

of credentials and when they were 

issued. (For more details, see the 

discussion of Validity Periods in the 

Status Quo section.) Also, the final 

regulation creates a one-year license for 

certain aliens. DHS was able to 

determine that some people already 

hold such licenses, but not how many 

people hold them. DHS was also unable 

to determine how many people will 

hold them under the REAL ID rule. 

While this methodology has limitations, 

using the typical validity period of DL/ 

IDs was the most reliable method 

available to estimate future issuances. 

(7) Those Drivers Who Would Be 

Required To Comply Later in the 

Issuance Cycle Will Take Advantage of 

This Delayed Compliance 

DHS has computed the costs for the 

over age 50 drivers by moving that 

segment of renewals towards the 2017 

deadline. DHS assumes the distribution 

over time for renewals is similar to the 

rest of the population. Therefore these 

license renewals are not bunched up but 

entered as the same distribution as other 

drivers but with the last of the pool 

completing in 2017. 

(8) The Cost of Lost/Stolen DLs/IDs and 

Central Issuance Is Included in the Cost 

of This Final Rule 

The regulatory evaluation for the 

proposed rule assigned the cost of 

having to replace a lost or stolen legacy 

ID with a REAL ID as being a regulatory 

compliance cost. This means that if an 

individual loses his/her legacy license, 

the burden of replacing it with a REAL 

ID requiring an in-person visit was 

attributed to this rulemaking. The 

regulatory evaluation for the final rule 

employs the assumption that 

individuals who replace their lost or 

stolen legacy license will choose to 

obtain a REAL ID and pay the additional 

opportunity costs of an in-person visit 

to the DMV with the required source 

documents. After careful consideration, 

we believe that this assumption may be 

conservative based upon the revised 

requirements of the final rule. The 

enrollment periods of REAL ID have 

been designed to enable DMVs to enroll 

individuals with REAL IDs on their 

normal renewal cycles to the maximum 

extent possible. Individuals simply 

replacing a lost or stolen license are 

likely to want a replacement license as 

quickly as possible and delay the 

process of obtaining a REAL ID until 

their scheduled renewals. However, we 

maintain the original assumption in this 

economic analysis because we cannot 

estimate the different rate at which lost 

or stolen licenses will be replaced with 

REAL IDs. Therefore, we assume the 

rate to be 75% or the same as that for 

renewals. 

The regulatory evaluation still 

assumes that States will move to central 

issuance because of the high cost of 

printing equipment for REAL ID cards. 

However, the final rule provides added 

flexibility and therefore States may not 

have to do this. We are not adjusting 

this regulatory evaluation to account for 

this due to uncertainties in States’

behavior under the revised provisions of 

this final rule, and because there are 

remaining requirements in this final 

rule that may still make central issuance 

the most efficient response. 

(9) The Cost of Security Markings on 

REAL ID Cards 

Based on discussions with State 

driver’s license card vendors, we have 

estimated the cost for a security marking 

for compliant cards to be $0.25 per card, 

and have included this cost estimate in 

the card production analysis later in this 

document. 

The final rule also requires that if a 

State issues a license that is not in 

compliance with REAL ID, the State 

must by statute and regulation indicate 

on the document that it is not valid for 

official Federal purposes. According to 

U.S. license vendors contacted by 

DHS, 6 there is typically an upfront one 

time set up fee for the State, which may 

include license redesign, system 

reconfiguration, and other related costs. 

Based on our analysis of information 

received from vendors and States, DHS 

estimates that the added cost would be 

about $10,000 per State, or $.01 per 

document. The actual cost will vary 

depending on the State, vendor and any 

existing contractual agreement they may 

have concerning design changes. DHS 

believes that the added cost of no more 

than $0.01 per document will be 

indirectly incurred by those individuals 

who will be acquiring REAL IDs. 

Summary of Major Differences Between 

the Final Rule and NPRM 

Based upon the many comments 

received, the Final Rule incorporates 

major changes from the NPRM. The 

major changes impacting the economic 

analysis include: 

(1) Extension of Deadlines 

In the NPRM, DHS proposed that 

States that would not be able to comply 

by May 11, 2008, should request an 

extension of the compliance date no 

later than February 10, 2008, and 

encouraged States to submit requests for 

extension as early as October 1, 2007. 

During the public comment period, DHS 


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5324 Federal Register / Vol. 73, No. 19 / Tuesday, January 29, 2008 / Rules and Regulations 

received numerous comments from 

States and Territories, State 

associations, and others, noting that 

almost all States would be unable to 

meet the May 2008 compliance 

deadline. Accordingly, to allow more 

time for States to implement the 

provisions of the rule in general and 

verification systems in particular, DHS 

is also providing in the final rule the 

opportunity for States to request 

extensions of the compliance date 

beyond the initial extension of 

December 31, 2009. To obtain a second 

extension, States must file a Material 

Compliance Checklist by October 11, 

2009. This checklist will document 

State progress in meeting certain 

benchmarks toward full compliance 

with the requirements of this rule. 

States meeting the benchmarks shall be 

granted a second extension until no 

later than May 10, 2011. This would 

give States making significant progress 

additional time to meet all of the 

requirements of this rule. 

(2) Extended Enrollment Periods and 

Risk-Based Enrollment 

The NPRM proposed that States 

determined by DHS to be in full 

compliance with the REAL ID Act and 

these implementing regulations by May 

11, 2008, would have a five-year phasein period—until May 11, 2013—to 

replace all licenses intended for use for 

official purposes with REAL ID cards. 

During the public comment period, a 

number of States and State associations 

commented that States obtaining an 

initial extension of the compliance date 

until December 31, 2009, would still be 

required to enroll their existing driver 

population (estimated to be 

approximately 240 million) by May 11, 

2013—essentially halving the phase-in 

period. Several commenters suggested 

that DHS employ a risk-based approach 

that would permit States and DMVs to 

focus first on perceived higher-risk 

individuals while deferring lower-risk 

individuals to a date beyond May 11, 

2013. 

DHS agrees with both these 

comments. Accordingly, in this final 

rule, DHS is extending the deadline for 

enforcing the provisions of the Act for 

all driver’s licenses and identification 

cards until no later than December 1, 

2017, but requiring REAL ID-compliant 

driver’s licenses and identification cards 

for individuals 50 years of age or under 

(that is, individuals born on or after 

December 1, 1964) when used for 

official purposes beginning on 

December 1, 2014. This will effectively 

give States an eight-year enrollment 

period beginning in January 1, 2010 

when Materially Compliant States can 

begin the enrollment process, thus 

avoiding an unnecessary operational 

burden on State DMVs from a crush of 

applicants on or before the original May 

11, 2013 compliance date. 

(3) Physical Card Security 

DHS has modified the proposed card 

security requirements in response to 

comments which stated that the 

requirements were too prescriptive and 

placed an undue burden on the States. 

Instead, DHS has proposed a 

performance-based approach that 

provides the flexibility for States to 

implement solutions using a welldesigned balanced set of security 

features for cards that, when effectively 

combined, provide maximum resistance 

to counterfeiting, alteration, 

substitution, and the creation of 

fraudulent documents from legitimate 

documents. 

(4) Marking of Compliant REAL ID 

Documents 

Based on an analysis of feedback from 

several commenters, DHS has 

determined that it would be in the best 

interest of the nation’s security for 

States to place a security marking on 

driver’s licenses and identification cards 

that are issued in compliance with the 

REAL ID Act. Such a marking would 

facilitate the verification of the 

authenticity of such documents by 

Federal agencies requiring identification 

for official purposes. 

(5) Certification and Security Plan 

Documentation 

Based on feedback from commenters, 

DHS has eased the reporting and 

documentation requirements placed 

upon States by circumscribing the scope 

of security plans and requiring 

submission of updated plans and 

certification packages on a rolling, 

triennial basis. 

(6) Address Change and Documentation 

Requirements 

Based on numerous responses, DHS 

has removed the requirement that an 

address change must be accomplished 

through an in-person visit to the DMV. 

Additionally, there is no requirement in 

the final rule for States to issue a new 

card when notified of an address 

change. Moreover, DHS now allows 

States fuller discretion over the 

acceptance of address documents by 

removing specific requirements that 

documents used to demonstrate address 

of principal residence be issued 

‘‘monthly’’ and ‘‘annually.’’

(7) Financial Check 

DHS agreed with comments that the 

financial history check would not be 

determinative. Therefore, DHS has 

eliminated the requirement for a 

financial history check from the final 

rule. 

Costs and Benefits 

This Regulatory Evaluation attempts 

to quantify or monetize the economic 

benefits of REAL ID. In spite of the 

difficulty, most everyone understands 

the benefits of secure and trusted 

identification. The final minimum 

standards seek to improve the security 

and trustworthiness of a key enabler of 

public and commercial life—Stateissued 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, have been weighed 

against the quantifiable and 

nonquantifiable but no less real benefits 

to both public and commercial activities 

achieved by secure and trustworthy 

identification. 

Economic Costs 

Implementing the REAL ID Act will 

impact all 56 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 final 

rule over an eleven year period. 

Figure 1: Estimated marginal 

economic cost of REAL ID final rule. 

Estimated costs 

(11 years) 

$ million $ million $ million 

(2006 dollars) 

Percent total 

7% 

discounted 

3% 

discounted Undiscounted Undiscounted 

Costs to States ........................................................................................ 2,879 3,413 3,965 39.9 

Customer Services ........................................................................... 636 804 970 9.8 

Card production ................................................................................ 690 822 953 9.6 

Data Systems & IT ........................................................................... 1,171 1,352 1,529 15.4 


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Federal Register / Vol. 73, No. 19 / Tuesday, January 29, 2008 / Rules and Regulations 5325 

Estimated costs 

(11 years) 

$ million $ million $ million 

(2006 dollars) 

Percent total 

7% 

discounted 

3% 

discounted Undiscounted Undiscounted 

Security & Information Awareness ................................................... 365 415 490 4.9 

Data Verification ............................................................................... 5 7 8 0.1 

Certification process ......................................................................... 11 13 16 0.2 

Costs to Individuals ................................................................................. 3,808 4,814 5,792 58.3 

Opportunity Costs .................................................................................... 3,429 4,327 5,215 52.5 

Application Preparation (125.8 million hours) .................................. 2,186 2,759 3,327 33.5 

Obtain Birth Certificate (20.1 million hours) ..................................... 348 440 530 5.3 

Obtain Social Security Card (1.6 million hours) ............................... 31 37 44 0.4 

DMV visits (49.8 million hours) ........................................................ 864 1,091 1,315 13.2 

Expenditures: Obtain Birth Certificate ..................................................... 379 479 577 5.8 

Cost to Private Sector ............................................................................. 8 9 9 0.1 

Costs to Federal Government ................................................................. 128 150 171 1.7 

Social Security card issuance .......................................................... 36 43 50 0.5 

Data Verification—SAVE .................................................................. 9 11 14 0.1 

Data Systems & IT ........................................................................... 65 74 82 0.8 

Certification & training ...................................................................... 17 21 25 0.3 

Total Costs ................................................................................ 6,853 8,406 9,939 100.0 

Figure 1 shows the primary estimates 

calculated in both undiscounted 2006 

dollars and discounted dollars at both 

the 3% and the 7% discounted rates. 

The total, undiscounted eleven-year cost 

of the final rule is $9.9 billion. Based on 

a total of 477.1 million issuances over 

the 11-years of the analysis, the average 

marginal cost per issuance for States is 

$8.30. Individuals will incur the largest 

share of the costs as shown in Figure 

ES–2. More than 58 percent of the costs 

(discounted or undiscounted) are 

associated with preparing applications, 

obtaining necessary documents, or 

visiting motor vehicle offices. 

The costs shown in Figure ES–2 show 

a substantial decrease in those reported 

in the NPRM. In particular, the costs for 

States are 27% of those estimated for the 

NPRM. This substantial decrease in 

costs can be attributed to a number of 

factors, including a revised assumption 

that only 75% of DL/ID holders will 

apply for a REAL ID as well as a less 

prescriptive, performance-based, and 

balanced approach to REAL ID 

implementation. As many commenters 

suggested, providing additional time for 

implementation and enrollment of DL/ 

ID holders will allow States to 

accommodate the enrollment process 

without disrupting their normal renewal 

cycles, resulting in a decrease in total 

REAL ID issuances from 813 million to 

477 million issuances. In addition, the 

undiscounted estimates for card 

production costs have decreased 

substantially from $5.8 billion in the 

NPRM to $953 million in the final rule 

based on the performance-based 

approach to card security standards 

recommended by numerous 

commenters. 

DHS recognizes that many States have 

made significant progress in improving 

the integrity of their licenses. DHS also 

recognizes that the prescriptive 

technology standards included in the 

NPRM, compared to the final rule, 

provided relatively few additional 

security benefits at great cost to States. 

Moreover, the estimated opportunity 

costs to individuals have been reduced 

from $7.1 to $5.8 billion in 

undiscounted dollars primarily as a 

result of the changed assumption that 

only 75% of DL/ID holders will seek 

REAL IDs. Individuals will still have to 

obtain source documents and visit their 

DMVs under this analysis. Finally, the 

undiscounted costs to States for data 

systems and IT have actually increased 

from $1.4 billion in the NPRM to $1.5 

billion in the final rule. This slight 

increase reflects the critical role of 

information technology and verification 

systems in reducing identity theft and 

identity fraud in the issuance of DL/IDs. 

The four largest cost areas, in 

descending order (in undiscounted 

dollars) are: 

• Opportunity costs to individuals 

($5.2 billion), 

• Maintaining the necessary data and 

interconnectivity systems ($1.5 billion), 

• Customer service ($970 million), 

and 

• Card production and issuance ($953 

million) 

The largest impact category is the cost 

to individuals of obtaining source 

documents, preparing applications, and 

visiting DMVs. The magnitude of this 

category is driven largely by the fact that 

all applicants for a REAL ID will need 

to complete an application process 

similar to those of a first-time driver or 

a driver moving from one State to 

another. 

The second largest impact category is 

the creation and maintenance of 

necessary data and interconnectivity 

systems. These systems will require 

substantial up-front effort to create but 

are likely to require smaller marginal 

increases in maintenance costs. 

The third largest impact is customer 

service. While the extension of the 

enrollment period in the final rule will 

minimize marginal increases in the 

number or flow of transactions, the rule 

accounts for costs that increased 

transaction and wait times will produce. 

REAL ID should not substantially 

accelerate the rate of transactions, but 

the per transaction costs to States will 

increase. 

The fourth largest impact is the 

production and issuance of the REAL 

IDs themselves. The final minimum 

standards are intended to make 

counterfeit production, tampering and 

other fraud more difficult. While some 

State cards may already meet the 

standards of the final rule, many States 

may have to upgrade their cards and 

production processes in response to the 

rule. These upgrades will also require a 

substantial up-front effort followed by 

smaller marginal costs for subsequent 

years. 

Estimated Benefits 

The final REAL ID regulation will 

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 REAL ID final rule seeks 

to improve the security and 

trustworthiness of a key enabler of 

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5326 Federal Register / Vol. 73, No. 19 / Tuesday, January 29, 2008 / Rules and Regulations 

7Regulatory Flexibility Act, Pub. L. 96–354, 94 

Stat. 1164 (codified at 5 U.S.C. § 601). 

8REAL ID Act of 2005. Pub. L. 13, 109th Cong., 

1st Sess. (May 11, 2005), 201, 202. 

issued 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 gives 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 final rule. 

DHS provides a ‘‘break-even’’ analysis 

based on the rule having an impact on 

the annual probability of the United 

States experiencing a 9/11 type attack in 

the 11 years following the issuance of 

the rule. It is exceedingly difficult to 

predict the probability and 

consequences of a hypothetical terrorist 

attack. DHS believes that those factors 

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. 

By making some generalized but 

conservative assumptions about the 

costs of attack consequences, DHS 

determined the reduction in probability 

of attack that REAL ID will need to bring 

about so that the expected cost of REAL 

ID equals its anticipated security 

benefits. DHS posed 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 United States 

will necessarily experience this type of 

attack, but rather is attempting to 

provide the best available information to 

the public on the impacts of the rule. 

DHS also developed an analysis based 

on the discounted cost of a single 

terrorist attack comparable to the 9/11 

attacks on New York City and 

Washington, DC taking place sometime 

over an eleven-year span. The agency 

determined at what point the final rule 

would be cost-beneficial given the 

likelihood of an attack and the 

effectiveness of preventing the attack. 

The final rule on REAL ID is likely to 

produce potential ancillary benefits as 

well. It will be more difficult to 

fraudulently obtain a legitimate license 

and more costly to create a false license, 

which could reduce 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 will bring about 

changes on the margin that will 

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 7 (RFA), as amended, 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 

rule will not have a significant 

economic impact on a substantial 

number of small entities. 

The Department is implementing the 

regulations in order to enact the 

requirements outlined in the REAL ID 

Act.8 This rule establishes minimum 

standards for the issuance of Stateissued driver’s licenses and non-driver 

identification cards (DL/IDs). These 

minimum standards will: 

• Enhance the security features of DL/ 

IDs, rendering them more difficult to 

counterfeit, tamper with, or cannibalize; 

• Ensure that holders of unexpired 

REAL IDs are lawfully present in the 

United States; 

• Enhance physical security of 

materials and production locations to 

reduce the likelihood of theft of 

materials and infiltration of DMVs by 

nefarious individuals; 

• Enhance identity source document 

requirements and verifications to reduce 

the number of DL/IDs issued by DMVs 

to persons committing identity fraud; 

and, 

• Ensure that a REAL ID driver’s 

license holder is licensed in only one 

State. 

In short, these standards are designed 

to ensure that holders of unexpired 

REAL IDs are who they say they are and 

that they are lawfully present in the 

United States. 

DHS did not receive any public 

comments on the Initial Regulatory 

Flexibility Analysis that was issued in 

support of the NPRM during the public 

comment period. All public comments 

are available for the public to view at 

the Federal Docket Management System: 

http://www.regulations.gov. 

As part of this rulemaking effort, DHS 

has summarized and responded to all 

public comments relating to the 

Regulatory Evaluation issued with the 

NPRM. Comment summaries and 

responses are located in the preamble to 

the final rule, which is also available at 

http://www.regulations.gov and in the 

Federal Register. 

The rule directly regulates States, 

which by definition are not small 

entities. The rule indirectly regulates 

entities that accept State-issued DL/IDs 

for official purposes. The rule defines 

those purposes as accessing Federal 

facilities, entering nuclear power plants 

and boarding federally regulated 

commercial aircraft. The entities that 

accept DL/IDs for those purposes 

include the Federal Government, 

operators of nuclear power plants and 

entities examining personal identity 

documents of people boarding federally 

regulated commercial aircraft. The rule 

does not require action from any of 

these three entities. However, these 

entities are likely to engage in some 

activity to ensure that they comply with 

the Act. The remainder of this section 

estimates the number of small entities 

that are affected in this indirect way. 

The Federal Government is not a 

small entity. Therefore, no small entities 

are affected by the prohibition on 

accepting State-issued DL/IDs that are 

not REAL IDs to access Federal 

facilities. 


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Federal Register / Vol. 73, No. 19 / Tuesday, January 29, 2008 / Rules and Regulations 5327 

9Small 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 July 14, 2006. 

10Calculations 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 July 

14, 2006. 

11Conclusion based on an Internet search 

conducted on July 14, 2006 of the three specific 

power plants and the companies that own and 

operate them. 

12 ‘‘Sterile area’’ is defined in 49 CFR 1540.5 and 

generally means an area with access limited to 

persons who have undergone security screening by 

TSA. Therefore, only TSA-regulated airports have 

sterile areas. 

13U.S. Small Business Administration. Small 

Business Size Standards Matched to North 

American Industrial Classification System. NAICS 

481111 and 481211. Available at http:// 

www.sba.gov/size/sizetable2002.html. Accessed 

July 14, 2006. 

14U.S. Small Business Administration. U.S. Data 

Classified by Employment Size of Firm: All 

industries, 2003–2004. Available at http:// 

www.sba.gov/advo/research/data.html. Accessed 4 

Oct 2006. 

Nuclear power plants, though not 

directly regulated, may experience 

indirect impacts from this regulation. A 

nuclear power plant qualifies as a small 

entity 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.’’ 9 With only three exceptions, 

every nuclear power plant in the United 

States produced more than 4 million 

megawatt hours in fiscal year 2005.10

However, companies producing more 

than 12 million megawatt hours own 

each of those three plants.11 None of the 

nuclear power plants qualifies as small 

businesses using the SBA definition. 

Therefore, no small entities are affected 

by the prohibition on accepting Stateissued DL/IDs that are not REAL IDs to 

enter nuclear power plants. 

Entities examining identity 

documents of people who are boarding 

federally regulated commercial aircraft 

will not be directly regulated by the 

rulemaking. However, they may 

experience indirect effects. Different 

types of entities examine personal 

identity documents of people boarding 

federally regulated commercial aircraft. 

Currently, this responsibility falls on the 

entity with whom passengers check 

their luggage, the entity examining 

boarding passes and IDs immediately in 

front of TSA screening checkpoints, 

and, when completed to fulfill federal 

requirements, the entities examining IDs 

directly before allowing passengers to 

board aircraft. The easiest group of 

entities to identify in this category is the 

airlines that enplane from and/or 

deplane into the sterile area of an 

airport.12 The Small Business 

Administration considers companies 

operating either scheduled or nonscheduled chartered passenger air 

transportation to be small entities if they 

have fewer than 1,500 employees.13

Using these criteria, DHS has identified 

24 specific small entities that offer 

scheduled or non-scheduled air 

passenger transportation and that 

enplane from or deplane into an airport 

sterile area. Other federally regulated 

commercial aircraft include charter 

flights, air taxis, scenic air tours and 

other similar operations where the 

transportation of passengers for 

compensation comprises the majority of 

their revenues. Many of these entities 

would qualify as small entities under 

the SBA definition. SBA data show that, 

overall, 2,719 of the 2,877 firms engaged 

in air transportation (NAICS 481) had 

fewer than 500 employees in 2004.14

Nearly all firms in the air transportation 

industry fall well below the 1,500- 

employee size standard to qualify as a 

small entity. (Note that the federal 

requirements may not require all of 

these firms to examine passenger 

identity documents prior to boarding.) 

DHS estimates that each employee 

accepting DL/IDs for official purposes 

will require two hours of training. This 

training will assist personnel in 

identifying the differences between 

REAL IDs and other State-issued DL/ 

IDs. The training will also inform 

personnel about which States are or are 

not compliant during the enrollment 

period. In order to assess the cost of this 

training, 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. The next step to determine 

if firms’ action will have a significant 

impact is to divide the summed 

products of wage rates and trained 

employees by firm revenue. Doing so 

yields the impact on the firm as a 

percent of their total receipts. However, 

data on how many employees firms will 

train do not exist on an industry level, 

much less at the firm level throughout 

the industry. Alternatively, a threshold 

analysis can determine at what point the 

revenue to trained employee ratio 

would constitute a one or three percent 

impact for a firm. 

The Department has determined 

threshold levels that will cause an 

indirect impact equal to or less than one 

percent and equal to or greater than 

three percent of an entity’s total 

revenue. If a firm’s ratio is higher than 

the one percent threshold, the economic 

impact for that firm is not significant. If 

the ratio is lower than the three percent 

threshold, the economic impact will be 

larger than three percent of the firm’s 

revenue. The threshold values are 

measured as the ratio of total revenue to 

the number of employees to be trained 

regarding REAL ID. If the amount of a 

firm’s revenue per trained counter agent 

is more than $4,590, then the effect is 

less than one percent of total revenue. 

If one percent requires revenue per 

agent of $4,590, then the three percent 

threshold revenue per agent lies at 

$1,530. If a firm’s revenue per counter 

agent is less than $1,530, then the effect 

will be greater than three percent. The 

same approach can be applied to airport 

checkpoint staff yielding $4,501 at one 

percent and $1,500 at three percent. 

(See Figure 2) 


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5328 Federal Register / Vol. 73, No. 19 / Tuesday, January 29, 2008 / Rules and Regulations 

15 Data from BTS (Form 41, Schedule P10); Duns 

and Bradstreet; Yahoo! Finance, and; Hoovers.com. 

16 Data from U.S. Small Business Administration. 

U.S. All Industries by Receipt Size: 2002. Available 

online at http://www.sba.gov/advo/research/ 

data.html. Accessed 4 Oct 2006. 

Applying the one percent threshold—

the most stringent—to the 24 scheduled 

service firms specifically identified as 

small entities suggests that training 

employees regarding REAL ID will not 

impose a significant economic impact 

on a substantial number of small 

entities. Dividing a firm’s total 2005 

revenue by $4,590 yields an estimate of 

how many employees would need to be 

trained before the indirect impact 

reaches the one percent of total revenue 

threshold. Comparing that estimate to 

the number of employees at each firm in 

2005 reveals that companies would 

need to train anywhere from 6 to 56 

times their total number of employees, 

including those who will not examine 

identification documents.15

The aggregated nature of industrywide data does not allow for a firm-by 

firm analysis of the more than 2,719 

small firms involved in air 

transportation. However, analysis of 

firms grouped by receipts in 2002 

provides insight into the likelihood that 

entities will experience a significant 

indirect impact. Dividing receipts by the 

one percent threshold of $4,590 for each 

group estimates the number of 

employees that would result in a one 

percent impact on each group. The ratio 

of actual reported employees to 

threshold employees reveals that every 

group for which data is available would 

need to train multiple times more 

employees regarding REAL ID than they 

actually employ. The smallest ratio 

(largest impact) is for scheduled 

passenger air transportation (NAICS 

48111) that earned less than $100,000, 

implying that they would need to train 

more than 11 times the number of 

people than they employed before the 

impact would reach one percent of their 

receipts.16 The largest ratio (smallest 

impact in terms of percent of revenues) 

would fall on nonscheduled chartered 

passenger firms (NAICS 481211) earning 

more than $100 million. These firms 

would need to train more than 85 times 

the size of their workforce to reach the 

one percent impact threshold. 

The combination of the firm specific 

analysis and the analysis of aggregated 

firms within receipt categories suggests 

that the indirect impact of training 

agents regarding REAL ID for the official 

purpose of boarding federally regulated 

commercial aircraft will not constitute a 

significant economic impact on a 

substantial number of small entities. 

The above analyses show that it is 

unlikely that the prohibition on 

accepting State-issued DL/IDs unless 

they are REAL IDs will have a 

significant economic impact on a 

substantial number of small entities. 

Further, the only directly regulated 

entities are States, which by definition 

are not small entities. Therefore, the 

Department concludes that this rule will 

not have a significant economic impact 

on a substantial number of 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 non-driver identification cards. DHS 

has determined that this rule will 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 set forth in section 202(a)(1) of the 

REAL ID Act, the law is binding on 

Federal agencies—not on the States. 


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17See 9/11 Commission Report, Chapter 12.4. 

Indeed, in the Conference Report, 

Congress specifically stated that the 

‘‘application of the law is indirect, and 

hence States need not comply with the 

listed standards.’’ Conf. Rep. at 177. 

Moreover, 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 voluntary nature 

of the REAL ID Act, DHS assumes that 

States will willingly comply with the 

regulation to maintain the conveniences 

enjoyed by their residents when using 

their State-issued driver’s licenses and 

non-driver identity cards for official 

purposes, particularly as it pertains to 

domestic air travel. While, for the 

reasons set forth above, DHS believes 

that the REAL ID Act does not constitute 

an unfunded mandate, DHS 

nevertheless believes that many States 

may find noncompliance an unattractive 

option. 

Based on that knowledge, DHS has 

taken steps to comply with the 

requirements of UMRA. Specifically, 

DHS has analyzed the estimated cost to 

States and considered appropriate 

alternatives to, and benefits derived 

from, the final regulation. Moreover, 

DHS has solicited input from State and 

local governments in the preparation of 

this final rule. 

C. Executive Order 13132, Federalism 

Executive Order 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 this final rule 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 

surprisingly, they are very frequently 

used by individuals 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.17

1. DHS has Considered the Federalism 

Implications of the REAL ID Rule 

Section 3 of the Executive Order 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 Executive Order 13132 § 3(a)–

(d) and submits the following: 

(a) Constitutional Principles and 

Maximizing the Policymaking 

Discretion of the States 

The rule is being promulgated in strict 

adherence to constitutional principles, 

and the limits of DHS’s constitutional 

and statutory authority have been 

carefully considered. Congress, through 

the REAL ID Act, has mandated that 

Federal agencies refuse to accept for 

official purpose, State-issued driver’s 

licenses or identification cards unless 

DHS has determined that the issuing 

State is in compliance with the 

statutorily-mandated minimum 

standards for such identification 

documents. Notwithstanding the clear 

statutory mandate directing this 

rulemaking action, DHS has taken steps, 

in consultation with the States, to 

maximize policymaking discretion at 

the State level wherever possible. For 

example, States may establish an 

exceptions process 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. 

DHS also recognizes 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 final 

rule provides parameters for use by the 

States in determining which employees 

are ‘‘covered employees’’ and thus 

subject to the statutory background 

check requirements, but allows the 

individual States to determine which 

employees fall into categories deemed to 

be covered as defined under this final 

rule (e.g. DMV ‘‘employees or 

contractors 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.’’). 

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, and provides 

greater latitude in accepting alternatives 

or making exceptions based on State 

practices. 

In other aspects of the regulation DHS 

has prescribed baseline requirements 

while allowing States the discretion to 

impose more stringent standards, the 

greatest example of which is in the area 

of protecting personally identifiable 

information collected for REAL ID 

purposes. Most significantly, 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 final 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 incorporated 

into the regulation for States that do 

choose to participate. DHS believes that 

it has incorporated the maximum 

possible State discretion consistent with 

the purposes of the statute into this 

action. 

(c) Avoiding Intrusive Federal Oversight 

Consistent with Congress’ vision for 

REAL ID (see § 202(a)(2) of the Act), 

States that choose to participate in the 

program will be responsible for 

monitoring their own compliance. 

Under the Act and the final 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 and 


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18New York v. U.S., 505 U.S. 144, 173 (1992). 

19See id. at 167. 

DHS has adopted a certification process 

similar to that used by DOT in its 

regulations governing State 

administration of commercial driver’s 

licenses. States receiving adverse 

determinations will have the 

opportunity for an internal appeals 

process as well as judicial review. 

(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 rule. Accordingly, DHS 

has welcomed and encouraged State 

participation in this process and has 

sought, where possible, to draft this 

regulation in such a way as to maximize 

State discretion. 

Where the exigencies of national 

security and the need to prevent 

identity fraud have militated in favor of 

a uniform national standard (e.g., 

baseline security features on identity 

cards and background check 

requirements), DHS has, as reflected 

above, consulted with States in order to 

ensure that the uniform standards 

prescribed could be attained by the 

States and would reflect the 

accumulated security experience of 

State motor vehicles administrations. 

2. The REAL ID Final Rule Complies 

With the Regulatory Provisions of 

Executive Order 13132 

Under § 6 of Executive Order 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 

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 

regulation. 

(a) The Final 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 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.’’ 18 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 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.19

(b) DHS Has Engaged in Extensive 

Consultations With the States 

The statutory mandate and the lack of 

preemption both satisfy the 

requirements of Executive Order 13132. 

Nevertheless, in the spirit of Federalism, 

and consistent with § 205(a) of the 

REAL ID Act, DHS has engaged in 

extensive consultations with the States 

prior to issuing this final rule. As set 

forth earlier in this preamble of this 

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, during the comment 

period, DHS hosted sessions that were 

available via webcast across the country 

to engage State Governors’ chiefs of 

staff, homeland security directors in the 

States, and motor vehicles 

administrators, as well as a separate 

session with State legislators. DHS also 

convened the various stakeholder 

representatives that were identified as 

participants in the negotiated 

rulemaking group established under 

section 7212 of the Intelligence Reform 

and Terrorism Prevention Act. Further, 

DHS held a public meeting in 

Sacramento, California that was 

available nationwide via webcast and 

received comments from the public on 

a variety of topics, including consumer 

and personal impacts, privacy/security, 

electronic verification systems, funding/ 

implementation, and law enforcement. 

(c) DHS Recognizes the Burdens 

Inherent in Complying With the 

Regulations 

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 rule. 

As indicated above, Executive Order 

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 Executive Order 13132, 

section 6(b). 

This 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 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 final rule, 

attempted to balance State prerogatives 

with the national interests at stake. 

D. Environmental Impact Analysis 

At the time of the proposed rule, DHS 

sought and received comment on the 

potential environmental impact of the 

physical standards and other proposed 

requirements under this rule. DHS 

carefully considered those comments in 

its evaluation of the potential 

environmental impacts of the rule. DHS 

concludes that the rule’s potential 

impacts are minimal and this rule is a 

part of a category of actions that do not 

individually or cumulatively have a 

significant impact on the human 

environment and do not require a more 


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extensive evaluation under the 

requirements of 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. DHS Categorical Exclusion A3 

(Table 1 Management Directive 5100.1). 

Categorical Exclusion A3 applies to the 

promulgation of this rule, since it is of 

an administrative and procedural nature 

that does not force an immediate action 

but only lays the foundation for 

subsequent action. The categorical 

exclusion applies only to the 

promulgation of the REAL ID rule. 

Environmental impacts that may be 

associated with any follow-on DHS 

activity, such as approval of grant 

funding, must be reviewed if and when 

the subsequent program actions create 

the potential for environmental impact. 

E. Energy Impact Analysis 

The energy impact of this rule has 

been assessed in accordance with the 

Energy Policy and Conservation Act 

(EPCA), Public Law 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. 

F. Executive Order 13175 (Tribal 

Consultation) 

DHS has analyzed this final rule 

under Executive Order 13175 (entitled 

‘‘Consultation and Coordination with 

Indian Tribal Governments’’, issued 

November 6, 2000). Executive Order 

13175 states that no agency shall 

promulgate regulations that have tribal 

implications, that impose substantial 

direct compliance costs on Indian tribal 

governments, or that are not required by 

statute unless the agency first consults 

with tribal officials and prepares a tribal 

summary impact statement. 

DHS has determined that this final 

rule will not have a substantial direct 

effect on one or more Indian tribes and 

will not impose substantial direct 

compliance costs on Indian tribal 

governments. This rule also does not 

seek to preempt any tribal laws. This 

final rule does not satisfy the tribal 

implications requirement in that it is a 

rule of general applicability that 

establishes minimum standards for 

State-issued driver’s licenses and 

identification cards that Federal 

agencies will accept for official 

purposes on or after May 11, 2008, a 

statutory mandate under the REAL ID 

Act of 2005. Therefore, tribal 

consultation and a tribal summary 

impact statement are not required. 

List of Subjects in 6 CFR Part 37 

Document security, driver’s licenses, 

identification cards, incorporation by 

reference, motor vehicle 

administrations, physical security. 

The Amendments 

■ For the reasons set forth above, the 

Department of Homeland Security 

amends 6 CFR Chapter I by adding a 

new Part 37 as follows: 

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 Validity periods and deadlines for 

REAL ID driver’s licenses and 

identification cards. 

Subpart B—Minimum Documentation, 

Verification, and 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 surface of the 

driver’s license or identification card. 

37.19 Machine readable technology on the 

driver’s license or identification card. 

37.21 Temporary or limited-term driver’s 

licenses and identification cards. 

37.23 Reissued REAL ID driver’s licenses 

and identification cards. 

37.25 Renewal of REAL ID driver’s licenses 

and identification cards. 

37.27 Driver’s licenses and identification 

cards issued during the age-based 

enrollment period. 

37.29 Prohibition against holding more than 

one REAL ID card or more than one 

driver’s license. 

Subpart C—Other Requirements 

37.31 Source document retention. 

37.33 DMV databases. 

Subpart D—Security at DMVs and Driver’s 

License and Identification Card Production 

Facilities 

37.41 Security plan. 

37.43 Physical security of DMV production 

facilities. 

37.45 Background checks for covered 

employees. 

Subpart E—Procedures for Determining 

State Compliance 

37.51 Compliance—general requirements. 

37.55 State certification documentation. 

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—Driver’s Licenses and 

Identification Cards Issued Under Section 

202(d)(11) of the REAL ID Act 

37.71 Driver’s licenses and identification 

cards issued under section 202(d)(11) of 

the REAL ID Act. 

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

111, 112. 

PART 37—REAL ID DRIVER’S 

LICENSES AND IDENTIFICATION 

CARDS 

Subpart A—General 

§ 37.1 Applicability. 

(a) Subparts A through E of this part 

apply to States and U.S. territories that 

choose to issue driver’s licenses and 

identification cards that can be accepted 

by Federal agencies for official 

purposes. 

(b) Subpart F establishes certain 

standards for State-issued driver’s 

licenses and identification cards issued 

by States that participate in REAL ID, 

but that are not intended to be accepted 

by Federal agencies for official purpose 

under section 202(d)(11) of the REAL ID 

Act. 

§ 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 

Department of Motor Vehicles (DMV) or 

equivalent State office. 

Certification means an assertion by 

the State to the Department of 

Homeland Security 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 in a registrant’s 

State of birth. 

Covered employees means 

Department of Motor Vehicles 

employees or contractors 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. 


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Data verification means checking the 

validity of data contained in source 

documents presented under this 

regulation. 

DHS means the U.S. Department of 

Homeland Security. 

DMV means the Department of Motor 

Vehicles or 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. 

Digital photograph means a digital 

image of the face of the holder of the 

driver’s license or identification card. 

Document authentication means 

determining 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, or State laws addressing 

domestic and dating violence. 

Driver’s license means a motor vehicle 

operator’s license, as defined in 49 

U.S.C. 30301. 

Duplicate means a driver’s license or 

identification card issued subsequent to 

the original document that bears the 

same information and expiration date as 

the original document and that is 

reissued at the request of the holder 

when the original is lost, stolen, or 

damaged and there has been no material 

change in information since prior 

issuance. 

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 compliance means that the 

Secretary or his designate(s) has 

determined that a State has met all the 

requirements of Subparts A through E. 

Full legal name means an individual’s 

first name, middle name(s), and last 

name or surname, without use of initials 

or nicknames. 

IAFIS means the Integrated 

Automated Fingerprint Identification 

System, a national fingerprint and 

criminal history system maintained by 

the Federal Bureau of Investigation (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 or State office with equivalent 

function which, when completed with 

information concerning a particular 

individual, is of a type intended or 

commonly accepted for the purpose of 

identification of individuals. 

INS means the former-Immigration 

and Naturalization Service of the U.S. 

Department of Justice. 

Lawful status: A person in lawful 

status is a citizen or national of the 

United States; or an alien: lawfully 

admitted for permanent or temporary 

residence in the United States; with 

conditional permanent resident status in 

the United States; who has an approved 

application for asylum in the United 

States or has entered into the United 

States in refugee status; who has a valid 

nonimmigrant status in the United 

States; who has a pending application 

for asylum in the United States; who has 

a pending or approved application for 

temporary protected status (TPS) in the 

United States; who has approved 

deferred action status; or who has a 

pending application for lawful 

permanent residence (LPR) or 

conditional permanent resident status. 

This definition does not affect other 

definitions or requirements that may be 

contained in the Immigration and 

Nationality Act or other laws. 

Material change means any change to 

the personally identifiable information 

of an individual as defined under this 

part. Notwithstanding the definition of 

personally identifiable information 

below, a change of address of principal 

residence does not constitute a material 

change. 

Material compliance means a 

determination by DHS that a State has 

met the benchmarks contained in the 

Material Compliance Checklist. 

NCIC means the National Crime 

Information Center, a computerized 

index of criminal justice information 

maintained by the Federal Bureau of 

Investigation (FBI) that is available to 

Federal, State, and local law 

enforcement and other criminal justice 

agencies. 

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 U.S. 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 U.S. 

Department of State. 

Personally identifiable information 

means any information which can be 

used to distinguish or trace an 

individual’s identity, such as their 

name; driver’s license or identification 

card number; social security number; 

biometric record, including a digital 

photograph or signature; alone, or when 

combined with other personal or 

identifying information, which is linked 

or linkable to a specific individual, such 

as a date and place of birth or address, 

whether it is stored in a database, on a 

driver’s license or identification card, or 

in the machine readable technology on 

a license or identification card. 

Principal residence means the 

location where a person currently 

resides (i.e., presently resides even if at 

a temporary address) in conformance 

with the residency requirements of the 

State issuing the driver’s license or 

identification card, if such requirements 

exist. 

REAL ID Driver’s License or 

Identification Card means a driver’s 

license or identification card that has 

been issued by a State that has been 

certified by DHS to be in compliance 

with the requirements of the REAL ID 

Act and which meets the standards of 

subparts A through D of this part, 

including temporary or limited-term 

driver’s licenses or identification cards 

issued under § 37.21. 

Reissued card means a card that a 

State DMV issues to replace a card that 

has been lost, stolen or damaged, or to 

replace a card that includes outdated 

information. A card may not be reissued 

remotely when there is a material 

change to the personally identifiable 

information as defined by the Rule. 

Renewed card means a driver’s 

license or identification card that a State 

DMV issues to replace a renewable 

driver’s license or identification card. 

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 


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U.S.C. 13925, or State laws addressing 

sexual assault and stalking. 

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. 

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 or other categories of persons. 

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. 

Verify means procedures to ensure 

that: 

(1) The source document is genuine 

and has not been altered (i.e., 

‘‘document authentication’’); and 

(2) The identity data contained on the 

document is valid (‘‘data verification’’). 

§ 37.5 Validity periods and deadlines for 

REAL ID driver’s licenses and identification 

cards. 

(a) Driver’s licenses and identification 

cards issued under this part, that are not 

temporary or limited-term driver’s 

licenses and identification cards, are 

valid for a period not to exceed eight 

years. A card may be valid for a shorter 

period based on other State or Federal 

requirements. 

(b) On or after December 1, 2014, 

Federal agencies shall not accept a 

driver’s license or identification card for 

official purposes from individuals born 

after December 1, 1964, unless such 

license or card is a REAL ID-compliant 

driver’s license or identification card 

issued by a State that has been 

determined by DHS to be in full 

compliance as defined under this 

subpart. 

(c) On or after December 1, 2017, 

Federal agencies shall not accept a 

driver’s license or identification card for 

official purposes from any individual 

unless such license or card is a REAL 

ID-compliant driver’s license or 

identification card issued by a State that 

has been determined by DHS to be in 

full compliance as defined under this 

subpart. 

(d) Federal agencies cannot accept for 

official purpose driver’s licenses and 

identification cards issued under § 37.71 

of this rule. 

Subpart B—Minimum Documentation, 

Verification, and Card Issuance 

Requirements 

§ 37.11 Application and documents the 

applicant must provide. 

(a) The State must subject each person 

applying for a REAL ID driver’s license 

or identification card to a mandatory 

facial image capture, and shall maintain 

photographs of individuals even if no 

card is issued. The photographs must be 

stored in a format in accordance with 

§ 37.31 as follows: 

(1) If no card is issued, for a minimum 

period of five years. 

(2) If a card is issued, for a period of 

at least two years beyond the expiration 

date of the card. 

(b) Declaration. Each applicant must 

sign a declaration under penalty of 

perjury that the information presented 

on the application is true and correct, 

and the State must retain this 

declaration. An applicant must sign a 

new declaration when presenting new 

source documents to the DMV on 

subsequent visits. 

(c) Identity. (1) To establish identity, 

the applicant must present at least one 

of the following source documents: 

(i) Valid, unexpired U.S. passport. 

(ii) Certified copy of a birth certificate 

filed with a State Office of Vital 

Statistics or equivalent agency in the 

individual’s State of birth. 

(iii) Consular Report of Birth Abroad 

(CRBA) issued by the U.S. Department 

of State, Form FS–240, DS–1350 or FS–

545. 

(iv) Valid, unexpired Permanent 

Resident Card (Form I–551) issued by 

DHS or INS. 

(v) Unexpired employment 

authorization document (EAD) issued 

by DHS, Form I–766 or Form I–688B. 

(vi) Unexpired foreign passport with a 

valid, unexpired U.S. visa affixed 

accompanied by the approved I–94 form 

documenting the applicant’s most 

recent admittance into the United 

States. 

(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, issued by DHS. 

(ix) REAL ID driver’s license or 

identification card issued in compliance 

with the standards established by this 

part. 

(x) Such other documents as DHS may 

designate by notice published in the 

Federal Register. 

(2) Where a State permits an applicant 

to establish a name other than the name 

that appears on a source document (for 

example, through marriage, adoption, 

court order, or other mechanism 

permitted by State law or regulation), 

the State shall require evidence of the 

name change through the presentation 

of documents issued by a court, 

governmental body or other entity as 

determined by the State. The State shall 

maintain copies of the documentation 

presented pursuant to § 37.31, and 

maintain a record of both the recorded 

name and the name on the source 

documents in a manner to be 

determined by the State and in 

conformity with § 37.31. 

(d) Date of birth. To establish date of 

birth, an individual must present at 

least one document included in 

paragraph (c) of this section. 

(e) Social security number (SSN). (1) 

Except as provided in paragraph (e)(3) 

of this section, individuals presenting 

the identity documents listed in 

§ 37.11(c)(1) and (2) must present his or 

her Social Security Administration 

account number card; or, if a Social 

Security Administration account card is 

not available, the person may present 

any of the following documents bearing 

the applicant’s SSN: 

(i) A W–2 form, 

(ii) A SSA–1099 form, 

(iii) A non-SSA–1099 form, or 

(iv) A pay stub with the applicant’s 

name and SSN on it. 

(2) The State DMV must verify the 

SSN pursuant to § 37.13(b)(2) of this 

subpart. 

(3) Individuals presenting the identity 

document listed in § 37.11(c)(1)(vi) must 

present an SSN or demonstrate nonwork authorized 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. A street address is required 

except as provided in § 37.17(f) of this 

part. 

(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. 

(1) If the applicant presents one of the 

documents listed under paragraphs 


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(c)(1)(i), (c)(1)(ii), (c)(1)(iii), (c)(1)(iv), 

(c)(1)(vii) or (c)(1)(viii) of this section, 

the issuing State’s verification of the 

applicant’s identity in the manner 

prescribed in § 37.13 will also provide 

satisfactory evidence of lawful status. 

(2) If the applicant presents one of the 

identity documents listed under 

paragraphs (c)(1)(v) or (c)(1)(vi), or 

(c)(1)(ix) of this section, the issuing 

State’s verification of the identity 

document(s) does not provide 

satisfactory evidence of lawful status. 

The applicant must also present a 

second document from § 37.11(g)(1) or 

documentation issued by DHS or other 

Federal agencies demonstrating lawful 

status as determined by USCIS. All 

documents shall be verified in the 

manner prescribed in § 37.13. 

(h) Exceptions Process. A State DMV 

may choose to establish a written, 

defined exceptions process for persons 

who, for reasons beyond their control, 

are unable to present all necessary 

documents and must rely on alternate 

documents to establish identity or date 

of birth. Alternative documents to 

demonstrate lawful status will only be 

allowed to demonstrate U.S. citizenship. 

(1) Each State establishing an 

exceptions process must make 

reasonable efforts to establish the 

authenticity of alternate documents 

each time they are presented and 

indicate that an exceptions process was 

used in the applicant’s record. 

(2) The State shall retain copies or 

images of the alternate documents 

accepted pursuant to § 37.31 of this part. 

(3) The State shall conduct a review 

of the use of the exceptions process, and 

pursuant to subpart E of this part, 

prepare and submit a report with a copy 

of the exceptions process as part of the 

certification documentation detailed in 

§ 37.55. 

(i) 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 other 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. 

§ 37.13 Document verification 

requirements. 

(a) States shall make reasonable 

efforts to ensure that the applicant does 

not have more than one driver’s license 

or identification card already issued by 

that State under a different identity. In 

States where an individual is permitted 

to hold both a driver’s license and 

identification card, the State shall 

ensure that the individual has not been 

issued identification documents in 

multiple or different names. States shall 

also comply with the provisions of 

§ 37.29 before issuing a driver’s license 

or identification card. 

(b) States must verify the documents 

and information required under § 37.11 

with the issuer of the document. States 

shall use systems for electronic 

validation of document and identity 

data as they become available or use 

alternative methods approved by DHS. 

(1) States shall verify any document 

described in § 37.11(c) or (g) and issued 

by DHS (including, but not limited to, 

the I–94 form described in § 37.11(c)(vi)) 

through the Systematic Alien 

Verification for Entitlements (SAVE) 

system or alternate methods approved 

by DHS, except that if two DHS-issued 

documents are presented, a SAVE 

verification of one document that 

confirms lawful status does not need to 

be repeated for the second document. In 

the event of a non-match, the DMV must 

not issue a REAL ID driver’s license or 

identification card to an applicant, and 

must refer the individual to U.S. 

Citizenship and Immigration Services 

for resolution. 

(2) States must verify SSNs with the 

Social Security Administration (SSA) or 

through another method approved by 

DHS. In the event of a non-match with 

SSA, a State may use existing 

procedures to resolve non-matches. If 

the State is unable to resolve the nonmatch, and the use of an exceptions 

process is not warranted in the 

situation, the DMV must not issue a 

REAL ID driver’s license or 

identification card to an applicant until 

the information verifies with SSA. 

(3) States must verify birth certificates 

presented by applicants. States should 

use the Electronic Verification of Vital 

Events (EVVE) system or other 

electronic systems whenever the records 

are available. If the document does not 

appear authentic upon inspection or the 

data does not match and the use of an 

exceptions process is not warranted in 

the situation, the State must not issue a 

REAL ID driver’s license or 

identification card to the applicant until 

the information verifies, and should 

refer the individual to the issuing office 

for resolution. 

(4) States shall verify documents 

issued by the Department of State with 

the Department of State or through 

methods approved by DHS. 

(5) States must verify REAL ID 

driver’s licenses and identification cards 

with the State of issuance. 

(6) Nothing in this section precludes 

a State from issuing an interim license 

or a license issued under § 37.71 that 

will not be accepted for official 

purposes to allow the individual to 

resolve any non-match. 

§ 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, promote an adequate 

level of confidence in the authenticity of 

cards, and facilitate detection of 

fraudulent cards in accordance with this 

section. 

(1) These features must not be capable 

of being reproduced using technologies 

that are commonly used and made 

available to the general public. 

(2) The proposed card solution must 

contain a well-designed, balanced set of 

features that are effectively combined 

and 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 

of integrated security features that 

provide the maximum resistance to 

persons’ efforts to—

(1) Counterfeit, alter, simulate, or 

reproduce a genuine document; 

(2) Alter, delete, modify, mask, or 

tamper with data concerning the 

original or lawful card holder; 

(3) Substitute or alter the original or 

lawful card holder’s photograph and/or 

signature by any means; and 

(4) Create 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) Document security and integrity. 

States must conduct a review of their 

card design and submit a report to DHS 

with their certification that indicates the 


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ability of the design to resist 

compromise and document fraud 

attempts. The report required by this 

paragraph is SSI and must be handled 

and protected in accordance with 49 

CFR part 1520. Reports must be updated 

and submitted to DHS whenever a 

security feature is modified, added, or 

deleted. After reviewing the report, DHS 

may require a State to provide DHS with 

examination results from a recognized 

independent laboratory experienced 

with adversarial analysis of 

identification documents concerning 

one or more areas relating to the card’s 

security. 

§ 37.17 Requirements for the surface of 

the driver’s license or identification card. 

To be accepted by a Federal agency 

for official purposes, REAL ID driver’s 

licenses and identification cards must 

include on the front of the card (unless 

otherwise specified below) the 

following information: 

(a) Full legal name. Except as 

permitted in § 37.11(c)(2), the name on 

the face of the license or card must be 

the same as the name on the source 

document presented by the applicant to 

establish identity. Where the individual 

has only one name, that name should be 

entered in the last name or family name 

field, and the first and middle name 

fields should be left blank. Place holders 

such as NFN, NMN, and NA should not 

be used. 

(b) Date of birth. 

(c) Gender, as determined by the 

State. 

(d) Unique Driver’s license or 

identification card number. This cannot 

be the individual’s SSN, and must be 

unique across driver’s license or 

identification cards within the State. 

(e) Full facial digital photograph. A 

full facial photograph must be taken 

pursuant to the standards set forth 

below: 

(1) States shall follow specifically 

ISO/IEC 19794–5:2005(E) Information 

technology—Biometric Data Interchange 

Formats—Part 5: Face Image Data. 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 incorporated standards from 

http://www.ansi.org, or by contacting 

ANSI at ANSI, 25 West 43rd Street, 4th 

Floor, New York, New York 10036. You 

may inspect a copy of the incorporated 

standard at the Department of 

Homeland Security, 1621 Kent Street, 

9th Floor, Rosslyn, VA (please call 703–

235–0709 to make an appointment) or at 

the National Archives and Records 

Administration (NARA). For 

information on the availability of 

material at NARA, call 202–741–6030, 

or go to www.archives.gov/ 

federal_register/ 

code_of_federal_regulations/ 

ibr_locations.html. 

These standards include: 

(i) Lighting shall be equally 

distributed on the face. 

(ii) The face from crown to the base 

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

clearly visible and free of shadows. 

(iii) 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 and must not take 

any action to obstruct a photograph of 

their facial features. 

(iv) Where possible, 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. 

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

spots’’ (bright areas of light shining on 

the face). 

(2) Photographs may be in black and 

white or color. 

(f) Address of principal residence, 

except an alternative address may be 

displayed for: 

(1) Individuals for whom a State law, 

regulation, or DMV procedure permits 

display of an alternative address, or 

(2) Individuals who satisfy any of the 

following: 

(i) If the individual is enrolled in a 

State address confidentiality program 

which allows victims of domestic 

violence, dating violence, sexual 

assault, stalking, or a severe form of 

trafficking, to keep, obtain, and use 

alternative addresses; and provides that 

the addresses of such persons must be 

kept confidential, or other similar 

program; 

(ii) If the individual’s address is 

entitled to be suppressed under State or 

Federal law or suppressed by a court 

order including an administrative order 

issued by a State or Federal court; or 

(iii) If the individual is protected from 

disclosure of information pursuant to 

section 384 of the Illegal Immigration 

Reform and Immigrant Responsibility 

Act of 1996. 

(3) In areas where a number and street 

name has not been assigned for U.S. 

mail delivery, an address convention 

used by the U.S. Postal Service is 

acceptable. 

(g) Signature. (1) The card must 

include the signature of the card holder. 

The signature must meet the 

requirements of the March 2005 

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. You may inspect a copy of these 

incorporated standards at the 

Department of Homeland Security, 1621 

Kent Street, 9th Floor, Rosslyn, VA 

(please call 703–235–0709 to make an 

appointment) or at the National 

Archives and Records Administration 

(NARA). For information on the 

availability of material at NARA, call 

202–741–6030, or go to http:// 

www.archives.gov/federal_register/ 

code_of_federal_regulations/ 

ibr_locations.html. 

(2) The State shall establish 

alternative procedures for individuals 

unable to sign their name. 

(h) Physical security features, 

pursuant to § 37.15 of this subpart. 

(i) Machine-readable technology on 

the back of the card, pursuant to § 37.19 

of this subpart. 

(j) Date of transaction. 

(k) Expiration date. 

(l) State or territory of issuance. 

(m) 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 Latin alphanumeric characters. The name must 

contain a field of no less than a total of 

39 characters, and longer names shall be 

truncated following the standard 

established by International Civil 

Aviation Organization (ICAO) 9303, 

‘‘Machine Readable Travel Documents,’’

Volume 1, Part 1, Sixth Edition, 2006. 

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, 

Montreal, Quebec, Canada H3C 5H7, email: sales@icao.int. You may inspect a 

copy of the incorporated standard at the 

Department of Homeland Security, 1621 

Kent Street, 9th Floor, Rosslyn, VA 

(please call 703–235–0709 to make an 

appointment) or at the National 

Archives and Records Administration 

(NARA). For information on the 

availability of material at NARA, call 

202–741–6030, or go to http:// 

www.archives.gov/federal_register/ 

code_of_federal_regulations/ 

ibr_locations.html. 

(n) The card shall bear a DHSapproved security marking on each 


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driver’s license or identification card 

that is issued reflecting the card’s level 

of compliance as set forth in § 37.51 of 

this Rule. 

§ 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 the 

ISO/IEC 15438:2006(E) Information 

Technology—Automatic identification 

and data capture techniques—PDF417 

symbology specification. 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 incorporated standards at http:// 

www.ansi.org, or by contacting ANSI at 

ANSI, 25 West 43rd Street, 4th Floor, 

New York, New York 10036. You may 

inspect a copy of the incorporated 

standard at the Department of 

Homeland Security, 1621 Kent Street, 

9th Floor, Rosslyn, VA (please call 703–

235–0709 to make an appointment) or at 

the National Archives and Records 

Administration (NARA). For 

information on the availability of 

material at NARA, call 202–741–6030, 

or go to http://www.archives.gov/ 

federal_register/ 

code_of_federal_regulations/ 

ibr_locations.html. The PDF417 bar 

code standard must have the following 

defined minimum data elements: 

(a) Expiration date. 

(b) Full legal name, unless the State 

permits an applicant to establish a name 

other than the name that appears on a 

source document, pursuant to 

§ 37.11(c)(2). 

(c) Date of transaction. 

(d) Date of birth. 

(e) Gender. 

(f) Address as listed on the card 

pursuant to § 37.17(f). 

(g) Unique driver’s license or 

identification card number. 

(h) Card design 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. 

(j) State or territory of issuance. 

§ 37.21 Temporary or limited-term driver’s 

licenses and identification cards. 

States may only issue a temporary or 

limited-term REAL ID 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 or limited-term driver’s 

license or identification card to a 

person, valid documentary evidence, 

verifiable through SAVE or other DHSapproved means, that the person has 

lawful status in the United States. 

(b) States shall not issue a temporary 

or limited-term 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; and 

(2) For longer than the State’s 

maximum driver’s license or 

identification card term. 

(c) States shall renew a temporary or 

limited-term driver’s license or 

identification card pursuant to this 

section and § 37.25(b)(2), only if: 

(1) the individual presents valid 

documentary evidence that the status by 

which the applicant qualified for the 

temporary or limited-term driver’s 

license or identification card is still in 

effect, or 

(2) the individual presents valid 

documentary evidence that he or she 

continues to qualify for lawful status 

under paragraph (a) of this section. 

(d) States must verify the information 

presented to establish lawful status 

through SAVE, or another method 

approved by DHS. 

(e) Temporary or limited-term driver’s 

licenses and identification cards must 

clearly indicate on the face of the 

license and in the machine readable 

zone that the license or card is a 

temporary or limited-term driver’s 

license or identification card. 

§ 37.23 Reissued REAL ID driver’s 

licenses and identification cards. 

(a) 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 reissued, to ensure 

that the individual receiving the 

reissued REAL ID driver’s license or 

identification card is the same 

individual to whom the driver’s license 

or identification card was originally 

issued. 

(b) Remote/Non-in-person reissuance. 

Except as provided in paragraph (c) of 

this section a State may conduct a nonin-person (remote) reissuance if State 

procedures permit the reissuance to be 

conducted remotely. Except for the 

reissuance of duplicate driver’s licenses 

and identification cards as defined in 

this rule, the State must reverify 

pursuant to § 37.13, the applicant’s SSN 

and lawful status prior to reissuing the 

driver’s license or identification card. 

(c) In-person reissuance. The State 

may not remotely reissue a driver’s 

license or identification card where 

there has been a material change in any 

personally identifiable information 

since prior issuance. All material 

changes must be established through an 

applicant’s presentation of an original 

source document as provided in this 

subpart, and must be verified as 

specified in § 37.13. 

§ 37.25 Renewal of REAL ID driver’s 

licenses and identification cards. 

(a) 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, no less frequently than every 

sixteen years. 

(1) The State DMV shall take an 

updated photograph of the applicant, no 

less frequently than every sixteen years. 

(2) The State must reverify the 

renewal applicant’s SSN and lawful 

status through SSOLV and SAVE, 

respectively (or other DHS-approved 

means) as applicable prior to renewing 

the driver’s license or identification 

card. The State must also verify 

electronically information that it was 

not able to verify at a previous issuance 

or renewal if the systems or processes 

exist to do so. 

(3) Holders of temporary or limitedterm REAL ID driver’s licenses and 

identification cards must present 

evidence of continued lawful status via 

SAVE or other method approved by 

DHS when renewing their driver’s 

license or identification card. 

(b) Remote/Non-in-person renewal. 

Except as provided in (b)(2) a State may 

conduct a non-in-person (remote) 

renewal if State procedures permit the 

renewal to be conducted remotely. 

(1) The State must reverify the 

applicant’s SSN and lawful status 

pursuant to § 37.13 prior to renewing 

the driver’s license or identification 

card. 

(2) The State may not remotely renew 

a REAL ID driver’s license or 

identification card where there has been 

a material change in any personally 

identifiable information since prior 

issuance. All material changes must be 

established through the applicant’s 

presentation of an original source 

document as provided in Subpart B, and 

must be verified as specified in § 37.13. 

§ 37.27 Driver’s licenses and identification 

cards issued during the age-based 

enrollment period. 

Driver’s licenses and identification 

cards issued to individuals prior to a 

DHS determination that the State is 

materially compliant may be renewed or 

reissued pursuant to current State 

practices, and will be accepted for 


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official purposes until the validity dates 

described in § 37.5. Effective December 

1, 2014, Federal agencies will only 

accept REAL ID cards for official 

purpose from individuals under 50 as of 

December 1, 2014. Individuals age 50 or 

older on December 1, 2014, must obtain 

and present REAL ID cards for official 

purposes by December 1, 2017. 

§ 37.29 Prohibition against holding more 

than one REAL ID card or more than one 

driver’s license. 

(a) An individual may hold only one 

REAL ID card. An individual cannot 

hold a REAL ID driver’s license and a 

REAL ID identification card 

simultaneously. Nothing shall preclude 

an individual from holding a REAL ID 

card and a non-REAL ID card unless 

prohibited by his or her State. 

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

license, 

(1) A State must check with all other 

States to determine if the applicant 

currently holds a driver’s license or 

REAL ID identification card in another 

State. 

(2) If the State receives confirmation 

that the individual holds a driver’s 

license in another State, or possesses a 

REAL ID identification card in another 

State, the receiving State must take 

measures to confirm that the person has 

terminated or is terminating the driver’s 

license or REAL ID identification card 

issued by the prior State pursuant to 

State law, regulation or procedure. 

(c) Prior to issuing a REAL ID 

identification card, 

(1) A State must check with all other 

States to determine if the applicant 

currently holds a REAL ID driver’s 

license or identification card in another 

State. 

(2) If the State receives confirmation 

that the individual holds a REAL ID 

card in another State the receiving State 

must take measures to confirm that the 

person has terminated or is terminating 

the REAL ID driver’s license or 

identification card issued by the prior 

State pursuant to State law, regulation 

or procedure. 

Subpart C—Other Requirements 

§ 37.31 Source document retention. 

(a) States must retain copies of the 

application, declaration and source 

documents presented under § 37.11 of 

this Part, including documents used to 

establish all names recorded by the 

DMV under § 37.11(c)(2). States shall 

take measures to protect any personally 

identifiable information collected 

pursuant to the REAL ID Act as 

described in their security plan under 

§ 37.41(b)(2). 

(1) States that choose to keep paper 

copies of source documents must retain 

the copies for a minimum of seven 

years. 

(2) States that choose to transfer 

information from paper copies to 

microfiche must retain the microfiche 

for a minimum of ten years. 

(3) States that choose to keep digital 

images of source documents must retain 

the images for a minimum of ten years. 

(4) States are not required to retain the 

declaration with application and source 

documents, but must retain the 

declaration consistent with applicable 

State document retention requirements 

and retention periods. 

(b) States using digital imaging to 

retain source documents must store the 

images as follows: 

(1) 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. Images must be stored in 

an open (consensus) format, without 

proprietary wrappers, to ensure States 

can effectively use the image captures of 

other States as needed. 

(2) Document and signature images 

must be stored in a compressed Tagged 

Image Format (TIF), or a standard that 

is interoperable with the TIF standard. 

(3) All images must be retrievable by 

the DMV if properly requested by law 

enforcement. 

(c) Upon request by an applicant, a 

State shall record and retain the 

applicant’s name, date of birth, 

certificate numbers, date filed, and 

issuing agency in lieu of an image or 

copy of the applicant’s birth certificate, 

where such procedures are required by 

State law. 

§ 37.33 DMV databases. 

(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 SSN; 

(2) A record of the full legal name and 

recorded name established under 

§ 37.11(c)(2) as applicable, without 

truncation; 

(3) All additional data fields included 

in the MRZ but not printed on the 

driver’s license or identification card; 

and 

(4) Motor vehicle driver’s histories, 

including motor vehicle violations, 

suspensions, and points on driver’s 

licenses. 

(b) States must protect the security of 

personally identifiable information, 

collected pursuant to the REAL ID Act, 

in accordance with § 37.41(b)(2) of this 

part. 

Subpart D—Security at DMVs and 

Driver’s License and Identification 

Card Production Facilities 

§ 37.41 Security plan. 

(a) In General. States must have a 

security plan that addresses the 

provisions in paragraph (b) of this 

section and must submit the security 

plan as part of its REAL ID certification 

under § 37.55. 

(b) Security plan contents. At a 

minimum, the security plan must 

address—

(1) Physical security for the following: 

(i) Facilities used to produce driver’s 

licenses and identification cards. 

(ii) Storage areas for card stock and 

other materials used in card production. 

(2) Security of personally identifiable 

information maintained at DMV 

locations involved in the enrollment, 

issuance, manufacture and/or 

production of cards issued under the 

REAL ID Act, including, but not limited 

to, providing the following protections: 

(i) Reasonable administrative, 

technical, and physical safeguards to 

protect the security, confidentiality, and 

integrity of the personally identifiable 

information collected, stored, and 

maintained in DMV records and 

information systems for purposes of 

complying with the REAL ID Act. These 

safeguards must include 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. 

(ii) A privacy policy regarding the 

personally identifiable information 

collected and maintained by the DMV 

pursuant to the REAL ID Act. 

(iii) Any release or use of personal 

information collected and maintained 

by the DMV pursuant to the REAL ID 

Act must comply with the requirements 

of the Driver’s Privacy Protection Act, 

18 U.S.C. 2721 et seq. State plans may 

go beyond these minimum privacy 

requirements to provide greater 

protection, and such protections are not 

subject to review by DHS for purposes 

of determining compliance with this 

Part. 

(3) Document and physical security 

features for 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; 

(4) Access control, including the 

following: 

(i) Employee identification and 

credentialing, including access badges. 

(ii) Employee background checks, in 

accordance with § 37.45 of this part. 


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(iii) Controlled access systems. 

(5) Periodic training requirements 

in—

(i) Fraudulent document recognition 

training for all covered employees 

handling source documents or engaged 

in the issuance of driver’s licenses and 

identification cards. The fraudulent 

document training program approved by 

AAMVA or other DHS approved method 

satisfies the requirement of this 

subsection. 

(ii) Security awareness training, 

including threat identification and 

handling of SSI as necessary. 

(6) Emergency/incident response 

plan; 

(7) Internal audit controls; 

(8) 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 similar 

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 that 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. 

(c) Handling of Security Plan. The 

Security Plan required by this section 

contains Sensitive Security Information 

(SSI) and must be handled and 

protected in accordance with 49 CFR 

Part 1520. 

§ 37.43 Physical security of DMV 

production facilities. 

(a) States must ensure the physical 

security of facilities where driver’s 

licenses and identification cards are 

produced, and the security of document 

materials and papers from which 

driver’s licenses and identification cards 

are produced or manufactured. 

(b) States must describe the security 

of DMV facilities as part of their security 

plan, in accordance with § 37.41. 

§ 37.45 Background checks for covered 

employees. 

(a) Scope. States are required to 

subject persons 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, or current employees who will be 

assigned to such positions (‘‘covered 

employees’’ or ‘‘covered positions’’), 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, and employment 

eligibility verification otherwise 

required by law. States shall describe 

their background check process as part 

of their security plan, in accordance 

with § 37.41(b)(4)(ii). This section also 

applies to contractors utilized in 

covered positions. 

(b) Background checks. States must 

ensure that any covered 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. 

(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 National Crime 

Information Center (NCIC) and the 

Integrated Automated Fingerprint 

Identification (IAFIS) database and State 

repository records on each covered 

employee identified in paragraph (a) of 

this section, and determine if the 

covered employee has been convicted of 

any of the following disqualifying 

crimes: 

(i) Permanent disqualifying criminal 

offenses. A covered employee 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 covered employee 

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 

employment in the covered position; or 

the covered employee was released from 

incarceration for the crime within the 

five years preceding the date of 

employment in the covered position. 

(iii) Under want or warrant. A covered 

employee 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 paragraphs (b)(1)(ii) or 

(b)(1)(iv) of this section under 

circumstances determined by the State. 

These procedures can cover 

circumstances where the covered 

employee has been arrested, but no final 

disposition of the matter has been 

reached. 

(2) Employment eligibility status 

verification. The State shall ensure it is 

fully in compliance with the 

requirements of section 274A of the 

Immigration and Nationality Act (8 

U.S.C. 1324a) and its implementing 

regulations (8 CFR part 274A) with 

respect to each covered employee. The 

State is encouraged to participate in the 

USCIS E-Verify program (or any 

successor program) for employment 

eligibility verification. 

(3) Reference check. Reference checks 

from prior employers are not required if 

the individual has been employed by 

the DMV for at least two consecutive 

years since May 11, 2006. 

(4) Disqualification. If results of the 

State’s CHRC reveal a permanent 

disqualifying criminal offense under 

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

disqualifying criminal offense under 

paragraph (b)(1)(ii), the covered 

employee may not be employed in a 

position described in paragraph (a) of 

this section. An employee whose 

employment eligibility has not been 

verified as required by section 274A of 

the Immigration and Nationality Act (8 

U.S.C. 1324a) and its implementing 

regulations (8 CFR part 274A) may not 

be employed in any position. 

(c) Appeal. If a State determines that 

the results from the CHRC do not meet 

the standards of such check the State 

must so inform the employee of the 

determination to allow the individual 

an opportunity to appeal to the State or 

Federal government, as applicable. 

(d) Background checks substantially 

similar to the requirements of this 

section that were conducted on existing 

employees on or after May 11, 2006 

need not be re-conducted. 


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Federal Register / Vol. 73, No. 19 / Tuesday, January 29, 2008 / Rules and Regulations 5339 

Subpart E—Procedures for 

Determining State Compliance 

§ 37.51 Compliance—general 

requirements. 

(a) Full compliance. To be in full 

compliance with the REAL ID Act of 

2005, 49 U.S.C. 30301 note, States must 

meet the standards of subparts A 

through D or have a REAL ID program 

that DHS has determined to be 

comparable to the standards of subparts 

A through D. States certifying 

compliance with the REAL ID Act must 

follow the certification requirements 

described in § 37.55. States must be 

fully compliant with Subparts A 

through D on or before May 11, 2011. 

States must file the documentation 

required under § 37.55 at least 90 days 

prior to the effective date of full 

compliance. 

(b) Material compliance. States must 

be in material compliance by January 1, 

2010 to receive an additional extension 

until no later than May 10, 2011 as 

described in § 37.63. Benchmarks for 

material compliance are detailed in the 

Material Compliance Checklist found in 

DHS’ Web site at http://www.dhs.gov. 

§ 37.55 State certification documentation. 

(a) 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 (full 

compliance), must provide DHS with 

the following documents: 

(1) A certification by the highest level 

Executive official in the State overseeing 

the DMV reading as follows: 

‘‘I, [name and title (name of certifying 

official), (position title) of the State 

(Commonwealth))] of llll, 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.’’

(2) 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. 

(3) A description of the State’s 

exceptions process under § 37.11(h), 

and the State’s waiver processes under 

§ 37.45(b)(1)(v). 

(4) The State’s Security Plan under 

§ 37.41. 

(b) After DHS’s final compliance 

determination, States shall recertify 

compliance with this Part every three 

years on a rolling basis as determined by 

DHS. 

§ 37.59 DHS reviews of State compliance. 

State REAL ID programs will be 

subject to DHS review to determine 

whether 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 at any 

time. In addition, the State must: 

(1) Provide any reasonable 

information pertinent to determining 

compliance with this part as requested 

by DHS; 

(2) Permit DHS to conduct inspections 

of any and all sites associated with the 

enrollment of applicants and the 

production, manufacture, 

personalization and issuance of driver’s 

licenses or identification cards; and 

(3) Allow DHS to conduct interviews 

of the State’s employees and contractors 

who are involved in the application and 

verification process, or the manufacture 

and production of driver’s licenses or 

identification cards. DHS shall provide 

written notice to the State in advance of 

an inspection visit. 

(b) Preliminary DHS determination. 

DHS shall review forms, conduct audits 

of States as necessary, and make a 

preliminary determination on whether 

the State has satisfied the requirements 

of this part within 45 days of receipt of 

the Material Compliance Checklist or 

State certification documentation of full 

compliance pursuant to § 37.55. 

(1) If DHS determines that the State 

meets the benchmarks of the Material 

Compliance Checklist, DHS may grant 

the State an additional extension until 

no later than May 10, 2011. 

(2) If DHS determines that the State 

meets the full requirements of subparts 

A through E, the Secretary shall make a 

final determination that the State is in 

compliance with the REAL ID Act. 

(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 any 

deficiencies cited in the preliminary 

determination or, alternatively, detail 

why the DHS preliminary determination 

is incorrect. Upon request by the State, 

an informal conference will be 

scheduled during this time. 

(d) Final DHS determination. DHS 

will notify States of its final 

determination of State compliance with 

this Part, within 45 days of receipt of a 

State reply. 

(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) A State shall be deemed in 

compliance with this part when DHS 

issues a determination that the State 

meets the requirements of this part. 

(b) The Secretary will determine that 

a State is not in compliance with this 

part when it—

(1) Fails to submit a timely 

certification or request an extension as 

prescribed in this subpart; or 

(2) Does not meet one or more of the 

standards of this part, as established in 

a determination by DHS under § 37.59. 

§ 37.63 Extension of deadline. 

(a) A State may request an initial 

extension by filing a request with the 

Secretary no later than March 31, 2008. 

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. DHS shall notify a 

State of its acceptance of the State’s 

request for initial extension within 45 

days of receipt. 

(b) States granted an initial extension 

may file a request for an additional 

extension until no later than May 10, 

2011, by submitting a Material 

Compliance Checklist demonstrating 

material compliance, per § 37.51(b) with 

certain elements of subparts A through 

E as defined by DHS. Such additional 

extension request must be filed by 

October 11, 2009. DHS shall notify a 

State whether an additional extension 

has been granted within 45 days of 

receipt of the request and documents 

described above. 

(c) Subsequent extensions, if any, will 

be at the discretion of the Secretary. 

§ 37.65 Effect of failure to comply with this 

Part. 

(a) Any driver’s license or 

identification card issued by a State that 

DHS determines is not in compliance 

with this part is not acceptable as 

identification by Federal agencies for 

official purposes. 

(b) Driver’s licenses and identification 

cards issued by a State that has obtained 

an extension of the compliance date 

from DHS per § 37.51 are acceptable for 

official purposes until the end of the 

applicable enrollment period under 

§ 37.5; or the State subsequently is 

found by DHS under this Subpart to not 

be in compliance. 

(c) Driver’s licenses and identification 

cards issued by a State that has been 

determined by DHS to be in material 

compliance and that are marked to 

identify that the licenses and cards are 

materially compliant will continue to be 

accepted by Federal agencies after the 


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5340 Federal Register / Vol. 73, No. 19 / Tuesday, January 29, 2008 / Rules and Regulations 

expiration of the enrollment period 

under § 37.5, until the expiration date 

on the face of the document. 

Subpart F—Driver’s Licenses and 

Identification Cards Issued Under 

Section 202(d)(11) of the REAL ID Act 

§ 37.71 Driver’s licenses and identification 

cards issued under section 202(d)(11) of the 

REAL ID Act. 

(a) Except as authorized in § 37.27, 

States that DHS determines are 

compliant with the REAL ID Act that 

choose to also issue driver’s licenses 

and identification cards that are not 

acceptable by Federal agencies for 

official purposes must ensure that such 

driver’s licenses and identification 

cards—

(1) Clearly state on their face and in 

the machine readable zone that the card 

is not acceptable for official purposes; 

and 

(2) 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. 

(b) DHS reserves the right to approve 

such designations, as necessary, during 

certification of compliance. 

* * * * * 

Issued in Washington, DC, on January 10, 

2008. 

Michael Chertoff, 

Secretary. 

[FR Doc. 08–140 Filed 1–28–08; 8:45 am] 

BILLING CODE 4410–10–P 


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