2006 Spring Forum
Session: REAL ID Update and Roundtable Discussion
April 2006
Molly Ramsdell, NCSL
The REAL ID Act was part of larger supplemental funding bill. It established standards for the issuance of driver’s licenses and identification cards. States must implement the standards contained in the REAL ID Act by May 2008. If a state does not comply, the federal government will not accept a driver’s license or identification card for federal purposes. This includes but is not limited to accessing federal buildings, boarding commercial aircraft and entering nuclear power plans.
Rules to implement the law are currently being written by the Department of Homeland Security (DHS). NCSL, the National Governors Association (NGA) and the American Association of Motor Vehicle Administrators (AAMVA) submitted recommendations to DHS. It is hard to know for sure if any of the recommendations were taken since the rules are still being written. NGA, NCSL, AAMVA recommendations are reasonable and flexible.
“Federal purpose” as defined in the REAL ID is access to federal buildings, boarding federally regulated aircraft, and entering nuclear power plants and any other purposes that the Secretary shall determine. NGA/NCSL/AAMVA are concerned that the definition could be interpreted too broadly. NGA/NCSL/AAMVA want DHS to clarify the definition and keep it limited. NGA/NCSL/AAMVA feel that there needs to be some sort of procedure that includes state involvement and consultation if the Secretary considers expanding its application.
The May 11, 2008 deadline is an unreasonable timeframe and the act is too costly to implement. NCSL/NGA/AAMVA recommended that states have 8 years to get all drivers through the process and that states should be allowed to grandfather certain citizens. For example, if a person has a driver’s license or identification card for 10 years with one state they wouldn’t have to go through the REAL ID process. DHS realizes the deadline is unreasonable. Hopefully the rules will allow some period of time for states to come into compliance. DMV administrators expect complaints to start coming in on service delays at DMV offices due to implementation of REAL ID. In order for a person to receive a driver’s license that is compliant with the act, they will have to appear in person.
Verification of eligibility documents – each state will have to start verifying the documents with issuing agency. Federal funds are not being made available to improve technology or databases needed to verify this information. Some Congressional staff have suggested that the way to pay for this is to increase driver’s license fees The expense will be passed down to the consumer. DHS can’t require states to electronically verify documents if the necessary systems are not operational by deadline. NGA/NCSL/AAMVA hope that DHS will grant a waiver for all states instead of on a state-by-state basis.
Physical security aspects of DL – this is the biggest area of concern for the 3 groups. NGA/NCSL/AAMVA feel the security requirements are too stringent and that it will mandate a central issuance process. DHS says they won’t dictate DMV operation, however, they most likely will because of what they are considering. Another consideration is that higher standards could increase counterfeiting. If counterfeiters figure out how to counterfeit one state they’ll know how to counterfeit all 50. Also, if costs are too high, this could limit state flexibility.
Basically NCSL/NGA/AAMVA recommend an AAMVA standard which provides flexibility but meets the law.
Executive Directors of the three groups meet with an Assistant Secretary at DHS. The conversation was promising and they were reassured that the physical security aspects are not set in stone. NCSL/NGA/AAMVA have plans to go back to DHS to show examples of what some states are doing right now as it relates to the physical security aspects of the DL.
Minimum access between states——this would allow one states to query another states driver’s license system to see if a driver’s license was valid. In addition, if someone gets pulled over in one state, the officer could check with the licensing state to verify its validity. This is another system/process which must be fully federally funded. A big issue for NCSL is privacy and the potential privacy issues we could face 3-4 years down the road. Right now this information is limited to DMV's and police, but once all the states are connected, how will this information be used in the future? The groups wants to make sure that there won’t be wholesale access to the information.
NCSL/NGA/AAMVA want to make sure the states are not being set up for failure. It is going to be a difficult and possibly an impossible task to get the requirements implemented.
Encryption – the required encryption is common machine readable technology with defined data elements. NCSL/NGA/AAMVA do not oppose encryption but we don’t want it imposed on the states. This is an area where a state legislature might want to limit the access to this information.
Where are we in the process? We've had a couple of meetings and phone calls with DHS. DHS has not submitted a draft rule yet. It will go to OMB and then OMB has 90 days to review (we believe they will take the full 90 days). If DHS submits the draft rule in May, they won’t hear back from OMB until August. Next, the rules will be published and DHS will wait for comments. Early 2007 is the soonest we will see a rule. This makes it difficult for states that have to pass new laws (and for states not meeting in 07). NGA/NCSL/AAMVA sent a survey to DMV administrators to see what the true costs are going to be. Appropriation bill for DHS is moving faster than other departments. No funds are available right now and it's hard to get money without a good estimate on costs.
Kentucky and New Hampshire have received funds for pilot projects. An interim report is due soon in Kentucky. If legislation opposing REAL ID passes in New Hampshire the state will have to give their money back.
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