National Conference of State Legislatures

Real ID Draft Regulations: Brief #1

Deadlines, Reenrollment, Funds and Definition of Official Purpose

March 2, 2007

Deadlines, Reenrollment, Funds and Definition of Official Purpose

On March 1, the Department of Homeland Security (DHS) issued the long awaited draft regulations on Real ID Act implementation. The regulations are not expected to be printed in the Federal Register until early next week at which time a 60-day comment period will commence. The draft regulations incorporate a number of recommendations made to DHS by NCSL, governors and motor vehicle administrators. However, recommendations to provide a 10-year reenrollment period and exempt certain populations from the Real ID process, which would have reduced costs, were not included. DHS estimated the cost of implementation at $23.1 billion over 10 years, of which $10 billion to $14 billion are costs to states.

Over the next week, NCSL will publish a series of documents summarizing different sections of the regulations. In addition, this will include a comparison of the requirements to the recommendations included in the September 2006 report— The Real ID: National Impact Analysis—issued by NCSL, governors and motor vehicle administrators. Brief 2 will be published on Monday, March 5 and focus on verification of identification documents and the use of national databases, privacy protections, and the issuance of temporary cards and non-compliant cards.

A copy of the draft regulations, the September 2006 report, and other resources on Real ID are available at: http://www.ncsl.org/realid/

Select Provisions /Requirements

NCSL Recommendation

States must begin issuing Real ID-compliant driver’s licenses (DLs) and identification cards (IDs) by May 11, 2008 in order for them to be recognized for federal purposes. The Secretary has the authority to grant an extension up to December 31, 2009. Extension requests must be made by October 2007. States receiving an extension must submit, no later than 6 months from the date on which the extension was received, a plan detailing milestones, schedules and budgets allowing the state to meet the requirements of the final regulation.

While NCSL recommended an extension of the compliance deadline, this was to include a similar extension of the start “clock” for reenrollment.

In addition, NCSL recommended that extension authority be granted consistently—once a legitimate reason for extension exists, it should apply equally to all states.

All states, including those granted extensions will have until May 11, 2013 to reenroll all existing DL/ID holders.

NCSL recommended a 10 year reenrollment period.

DHS proposes to limit the regulatory definition of “official purpose” to those expressly stated in the act—accessing federal facilities, boarding commercial aircraft and entering nuclear power plants.

NCSL recommended the definition be limited to those expressly stated in the act— accessing federal facilities, boarding commercial aircraft and entering nuclear power plants.

DSH will enable states to use up to 20 percent of their State Homeland Security Grant Program (SHGP) Funds for implementation of the Real ID. (Under current law states are required to pass 80 percent of these funds to local governments, leaving 20 percent for states). This program received $525 million in federal funds in FY 2007. The President’s budget request reduces funds for this program to $187 million for FY 2008.

NCSL recommended full funding.

State Certification and Reporting

The draft regulations create a number of administrative requirements for states. This includes the development of implementation plans and exceptions processes (see below). All of these play a role in determining a state’s compliance. NCSL, governors and motor vehicle administrators recommended that DHS allow states to address a number of the requirements through a self certification process. States will have to submit, by Feb. 10, 2008, the following documents for an initial certification:

A detailed narrative of the state’s program for issuing Real ID compliant cards, including a description of the state’s exception process and the state’s waiver process;
A comprehensive security plan for all DMV offices and storage and production facilities, databases and facilities. This includes demonstrating best practices to protect privacy.
A letter from the state Attorney General confirming the state has the legal authority to impose requirements necessary to meet the standards established;
A copy of all statutes, regulations, administrative procedures and practices and other documents that demonstrate the state’s implementation program; and
A certification by the Governor that reads as follows: “I Governor of the State (Commonwealth) of ____, do hereby certify that the State (Commonwealth), has implemented a program for issuing driver’s licenses and identification cards in compliance with the requirements of the Real ID Act of 2005, as further defined in 6 CFR Part 37, and intends to remain in compliance with these regulations through [the last date of the current year].”

States will have to re-certify prior to January 1 each year. States are required to provide DHS any changes in information requiring certification, at least 30 days prior to the changes going into effect. In addition, states are required to provide the comprehensive security plan and a quarterly accounting of the state’s use of the exceptions process as part of the annual certification.

Exceptions Process and Waivers

NCSL, governors and motor vehicle administrators advocated for an exceptions process to address certain circumstances. Under the draft regulations, states may use the exceptions process for:

Difficulties arising from attempts to verify the birth information for individuals born before 1935, who, due to various considerations, may not have been issued a birth certificate;
Individuals who have difficulties producing some of the required identification documents, such as address of principal residence; and
Individuals who have lost their information because of natural disasters such as Hurricanes Katrina and Rita.

The regulations also establish requirements for the exceptions process. This includes, at a minimum, that:

The driver record maintained by the DMV must indicate when an alternate document is accepted;
Any driver’s license or identification card issued using exceptions processing requires a complete record of the transaction, including a full explanation of the reason for the exception, alternative documents accepted and how applicable information from the document was verified; and
The jurisdiction retains the alternate documents accepted or copies thereof in the same manner as for other source documents as described in the regulations and provides these upon request to DHS for audit review.

The draft regulations also allow states to grant waivers to certain motor vehicle employees to remain in their positions following a background check with certain results. A future brief will provide additional information regarding requirements for employees of the states’ motor vehicle administration.

For more information contact NCSL staff Molly Ramsdell (Molly.Ramsdell@ncsl.org, 202-624-3584) or Jeremy Meadows (Jeremy.Meadows@ncsl.org, 202-624-8664).