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National Conference of State Legislatures

Real ID Draft Regulations: Brief #3

Facility Security Requirements, Employee Background Checks

March 7, 2007

Facility Security Requirements, Employee Background Checks

This is the third brief in a series summarizing the draft regulations for implementation of the Real ID Act of 2005.  Brief 4 will focus on the physical security features of the Real ID card. A copy of the draft regulations and other NCSL resources on Real ID, including other briefs, are available at: http://www.ncsl.org/realid

Facility Security Requirements

Under the Real ID Act, a state must ensure “the physical security of locations where drivers’ licenses (DLs) and identification cards (IDs) are produced and the security of document materials and papers from which DLs and IDs are produced.”

NCSL, governors and motor vehicle administrators recommended  that facility-based risk assessments and mitigation plans be included as part of a state’s self-certification process (for additional information on state self-certification, see Brief #1).

The proposed regulations would require that a state’s comprehensive security plan address:

• the measures taken to ensure the physical security of facilities used in the manufacture and issuance of Real ID-compliant DLs and IDs;
• the policies and procedures for securing storage areas for materials used to manufacture DLs and IDs; and
• the policies and procedures for securing the databases used to store and access an individual’s personal information for the issuance of DLs and IDs;
• the policies and procedures in place to identify and minimize fraud; and
• an emergency/incident response plan if security procedures are violated.    

The Department of Homeland Security (DHS) seeks to encourage states to collectively develop best practices for the security of and access to DMV databases. State compliance will be evaluated based upon performance-based standards approved by DHS.

Employee Background Checks

Under the Real ID Act, a state must ensure that “all persons authorized to manufacture or produce drivers' licenses and identification cards [are subject] to appropriate security clearance requirements.”

NCSL, governors and motor vehicle administrators recommended that states be allowed to:

• identify those staff (employee/vendor/contractor) involved in the manufacture and production of DLs and IDs who require security clearance, as part of the state’s self-certification;
• subject employees to a minimum of a state and federal background checks;
• grant new hires provisional clearance pending results of a background check ;
• enumerate disqualifying criteria in the state self-certification, as well as procedures for interim hiring pending results of background checks; and
• have a means to deal with the realities of operative personnel laws, regulations and labor relations agreements applying to pre-existing employees.

Under the draft regulations, states, as part of their comprehensive security plan, must conduct background checks for all applicants, employees and contractors who have the ability to:

• affect the recording of information that must be verified for a Real ID compliant DL and ID;
• have the ability to affect identity information that is included on a Real ID compliant DL and ID; or
• are otherwise involved in the manufacture or production of a Real ID compliant DL and ID.

Each state will determine which applicants, employees or contractors will be subject to the background check. States will also be required to provide notice to the applicant, employee and contractor that a background check will be conducted.

The background check must include:

• a validation of references from prior employment;
• a name-based and fingerprint-based criminal history records check through the state and two FBI’s databases—National Crime Information Center(NCIC) and Integrated Automated Fingerprint Identification System (IAFIS) (at the cost of the state);
• a financial history check; and
• a lawful status check (as verified through the Systematic Alien Verification for Entitlements system (SAVE)).

Any “covered” applicant, existing employee or contractor is disqualified from employment if the employee or applicant is convicted of certain felonies (for more details contact NCSL).  A “covered” applicant, employee or contractor may be disqualified if the person is:  

• convicted of a disqualifying offense within 7 years of the application;
• released from incarceration within 5 years of the application; and
• under a felony warrant.

The state may waive the “interim disqualifying criminal offense” through a state documented waiver process. In addition, each “covered” applicant, employee or contractor is subject to a financial history check. However, each state will have the discretion on how to use the financial history check and the financial history check does not disqualify a “covered” applicant or employee from employment.

For more information contact NCSL staff Molly Ramsdell (Molly.Ramsdell@ncsl.org, 202-624-3584), Jeremy Meadows (Jeremy.Meadows@ncsl.org, 202-624-8664) or Garner Girthoffer (Garner.Girthoffer@ncsl.org, 202-624-7753).