DHS has issued final regulations for REAL ID implementation.
In January, the Department of Homeland Security (DHS) issued the long-awaited final regulations on implementation of the REAL ID Act of 2005, a mere four months before the May 11, 2008, statutory implementation date. Under the act, states are required to adopt federal standards for driver’s licenses and identification cards or the federal government will not accept the licenses or identification cards for federal purposes such as boarding commercial aircraft, entering a federal building or nuclear power plant, or other purposes as determined by the secretary of Homeland Security. DHS re-estimated the cost to states of implementation at just under $4 billion over 10 years.
The regulations require states to reissue 245 million existing driver’s licenses and identification cards by Dec. 1, 2017, without using the Internet or alternative renewal processes. License and card holders must appear at their department of motor vehicles office with specific original identity documents in hand. At full implementation, states will need to verify the validity of the required identification documents, using at least five national databases. States also will need to use and pay for access to certain Federal Bureau of Investigation databases to conduct background checks on certain department of motor vehicle employees and contractors, provide additional security for department of motor vehicle facilities, and adapt their business practices to other requirements.
For the card itself, DHS will require states to use three levels of physical security features. States must review the driver’s license and identification card design and submit a report to DHS that indicates the card design is resistant to compromise and document fraud. The card also must have a machine-readable zone on the back that stores the data presented on the front.
States were required to certify compliance to DHS by May 11, 2008, or request an extension until Dec. 31, 2009. All 56 U.S. jurisdictions have received an initial extension. To merit a second extension through May 11, 2011, states must demonstrate material compliance with REAL ID—meeting many or all of 18 benchmarks—and by Dec. 1, 2014, must begin issuing REAL IDs to applicants born after Dec. 1, 1964. The reissuance process for all driver’s license and identification card holders is to be completed by Dec. 1, 2017. During any extension, the state’s non-REAL ID-compliant driver’s license and identification card will be recognized for federal purposes.
States that choose not to comply or seek the second extension need not take action. After Dec. 31, 2009, however, their driver’s licenses and identification cards will not be recognized for federal purposes.
State efforts to secure driver’s licenses and identification cards began well before the Sept. 11, 2001, terrorist attacks and have continued in the wake of REAL ID. Many state lawmakers, however, now are focusing on responses to the REAL ID Act itself.
Since the act was passed in 2005, legislators in 48 states and the District of Columbia have proposed approximately 207 related bills or resolutions. Despite DHS efforts to appeal to states, most state REAL ID measures have contested the act. Since 2005, legislators in 42 states have considered legislation that either asserted the state’s opposition to REAL ID or urged Congress to amend or repeal the act. As of April 17, 2008, anti-REAL ID measures had passed in 21 states. Idaho, Maine, Montana, New Hampshire, Oklahoma, South Carolina and Washington passed bills that expressly forbid state agencies from complying with REAL ID. Several state legislatures still were considering similar proposals as of April 2008.
Not all responses have been negative. Since 2005, legislators in 19 states have proposed measures that would bring their states closer to compliance with REAL ID. Indiana, Michigan, Nevada, Ohio and Wisconsin have passed REAL ID compliance-related laws.
Legislation has been introduced in both the House and Senate (H.R. 1117 and S. 717, respectively) that would repeal REAL ID. The legislation would reestablish a negotiated rulemaking process—that was under way but repealed when REAL ID was enacted—by which the federal government would develop minimum standards for state-issued driver's licenses and identification cards. Standards would be developed through negotiations with stakeholders, including state legislators and privacy and immigration experts.
To date, Congress has appropriated only $90 million for state implementation, most of which is being distributed via competitive grants. At least 45 of the 56 U.S. licensing jurisdictions have submitted grant applications. The president’s fiscal year 2009 budget made REAL ID an eligible expense under a new $110 million National Security and Terrorism Prevention Grant program. DHS will continue to allow states to use 20 percent of State Homeland Security Grant funds for REAL ID.
Molly Ramsdell NCSL—Washington, D.C.
NCSL's REAL ID website