2.1 Preamble

Governors agree on the importance of strengthening state-issued driver’s licenses (DLs) and identification cards (IDs) to protect the security and integrity of these important documents. The federal Real ID Act, however, places unnecessary and costly burdens on states that will do little to achieve the law’s intended security goals. Governors continue to believe that Real ID and its current regulations should be revised and that the federal government should provide full funding to implement the required changes.

2.2 Background

2.2.1 Legislative and regulatory history. On May 11, 2005, Congress passed the Real ID Act (Real ID) as part of the Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and Tsunami Relief Act (P.L. 109-13), creating national standards for the issuance of state DL/IDs. The act establishes certain standards, procedures, and requirements that must be met by May 11, 2008, if state-issued DL/IDs are to be accepted as valid identification by the federal government. These standards will alter long-standing state laws, regulations, and practices governing the qualifications for and the production and issuance of DL/IDs in every state. They also will require substantial investments by states and the federal government to meet the objectives of the act.

While the act required compliance with its provisions by May 2008, the U.S. Department of Homeland Security (DHS) did not issue the final rule guiding implementation until January 11, 2008. The final rule incorporated many of the recommendations made by states, including the adoption of a 10-year compliance timeline that established milestones for states and provided some flexibility to manage the DL applicant pool, but maintained several requirements that pose significant challenges to states’ compliance.

The final rule required states to be in compliance with Real ID by May 11, 2008, unless the states received an extension from DHS. States were given until March 31, 2008 to request an extension. States were informed that if they did not negotiate an extension by the deadline, any DLs/IDs issued by that state would not be accepted for identification purposes to board commercial aircraft.

If states demonstrate they have achieved substantial compliance but have not reached full compliance by December 31, 2009, they may request a second extension until May 11, 2011. After the 2011 deadline, states are expected to issue fully compliant Real ID cards.

2.2.2 Cost estimates. To ensure Congress and the federal government understand the fiscal and operational impact of altering these complex and vital state systems, the American Association of Motor Vehicle Administrators (AAMVA), in conjunction with the National Governors Association (NGA) and the National Conference of State Legislatures (NCSL), conducted a nationwide survey of state motor vehicle agencies (DMVs). Based on the results of that survey, NGA, NCSL, and AAMVA issued a report in September 2006 that concluded that compliance with Real ID would cost more than $11 billion over five years, have a negative impact on services to the public, and impose unrealistic burdens on states to comply with the act.

After the final rule was issued in early 2008, the Office of Management and Budget estimated that the rule would cost states more than $3.9 billion over 11 years. This estimate is less than the report issued by NGA, NCSL, and AAMVA due to the adoption of the 10-year window for re-enrollment and performance-based rather than mandated security requirements. The OMB estimate also assumed that only 75 percent of all drivers would choose to receive a Real ID. This figure, however, may be substantially higher should states choose to offer only Real ID compliant DLs/IDs or if more than 75 percent of applicants choose a Real ID.

2.3 Recommendations

Governors are committed to improving the security and integrity of state DL/ID systems, but the timelines and requirements mandated by Real ID are unrealistic. In order to meet the objectives of the act, Congress and DHS should at a minimum incorporate the following recommendations into a revision of the law and its current regulations.

2.3.1 Provide funds necessary for states to comply with federal requirements. The projected costs of complying with the act far outweigh existing sources of funding. To the extent federal requirements result in increased costs for states, the federal government should fund the cost of complying with the law.

2.3.2 Allow for date-forward implementation. In order to comply with the act, states should only be required to issue compliant DL/IDs beginning on a certain date. All DL/IDs issued after that date would comply with the federal law, but individuals would not be required to obtain a new DL/ID until their existing DL/ID expires. This provision would not apply to non-federally compliant DL/IDs issued by a state.

2.3.3 Limit required electronic verification of documents. The final rule identifies five systems states will be required to use in order to be in compliance with the law: Social Security On-Line Verification (SSOLV); Electronic Verification of Vital Events Records (EVVER); Systematic Alien Verification for Entitlements (SAVE); an all-drivers system run by the states to ensure an applicant is not licensed in another state; and a system run by the U.S. Department of State to validate foreign passport information. Of these systems, only SSOLV and SAVE are nationally deployed and functioning. The final rule envisions these systems be linked by a hub system run by states. These federal verification systems must be updated and upgraded to ensure that states are able to receive timely and accurate responses before implementing this requirement.

Due to uncertainty regarding how and whether the five electronic systems will work, how they will be integrated, and how they will ensure the protection of data, their use should not be required by federal law or regulation. Rather, states should be permitted to use existing verification processes to comply with federal requirements.

2.3.4 Establish a unique symbol to indicate that a dl or id complies with federal requirements. States should retain the authority to issue DL/IDs that do not meet federal standards. In order to differentiate between DL/IDs that meet federal requirements and those that do not, DHS should work with states to designate a means to easily identify federally compliant DL/IDs.

2.3.5 Provide greater clarification and flexibility regarding physical security requirements. Not all departments of motor vehicles issue DL/IDs through the same process; some use central issuance (CI), others use over-the-counter issuance (OTC) and some use a hybrid CI/OTC process. Therefore, DHS should allow states to utilize a combination of security features designed to protect the physical integrity of DL/IDs. Many states have processes in place to issue, maintain, and protect DL/ID information. Federal law and accompanying regulations should provide flexibility in how states prevent tampering, counterfeiting, or unauthorized duplication of DL/IDs for fraudulent purposes.

2.3.6 Establish minimum guidelines for the further protection of personally identifiable information. DL/ID information is protected by federal and state Driver Privacy Protection Acts (collectively, DPPA). However, since DPPA was enacted well before Real ID, DHS should establish further minimum guidelines to address requirements to protect the security, confidentiality, and integrity of personally identifiable information that could not have been contemplated at the time of DPPA enactment.

2.3.7 Establish a process to allow states greater flexibility in validating an applicant’s identity under exceptional circumstances. States should be permitted to establish a process to validate an applicant’s identity in rare cases where the applicant is unable to present the documents specified in the act.

2.3.8 Compatibility with enhanced driver’s licenses. Enhanced driver’s licenses issued by states should be considered compliant with requirements for secure state DL/IDs.

2.3.9 Establish a demonstration program to evaluate electronic information sharing among states. The hub system envisioned by DHS in the final Real ID rule is a complex and potentially costly endeavor and participation in the system should not be federally required. Instead, federal government should facilitate a demonstration program among a few states to determine projected costs for such a system, the appropriate governance structure for administrative purposes, and the appropriate security and privacy measures to protect individuals’ personal information.

2.3.10 Provide access to federal electronic systems. Access to any federal electronic systems that states are required to use to comply with the act should be provided free of charge, just as the e-Verify system is made available to employers without cost.

Time limited (effective Winter Meeting 2009–Winter Meeting 2011).
Adopted Winter Meeting 2007; revised Winter Meeting 2009.