Minimum Standards for Driver's Licenses and Identification Cards Acceptable by Federal Agencies for Official Purposes, 5272-5340 [08-140]

Agencies

• Office of the Secretary
• DEPARTMENT OF HOMELAND SECURITY

[Federal Register Volume 73, Number 19 (Tuesday, January 29, 2008)]
[Rules and Regulations]
[Pages 5272-5340]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 08-140]



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Part II





Department of Homeland Security





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6 CFR Part 37



Minimum Standards for Driver's Licenses and Identification Cards 
Acceptable by Federal Agencies for Official Purposes; Final Rule

Federal Register / Vol. 73, No. 19 / Tuesday, January 29, 2008 / 
Rules and Regulations

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DEPARTMENT OF HOMELAND SECURITY

Office of the Secretary

6 CFR Part 37

[Docket No. DHS-2006-0030]
RIN 1601-AA37


Minimum Standards for Driver's Licenses and Identification Cards 
Acceptable by Federal Agencies for Official Purposes

AGENCY: Office of the Secretary, DHS.

ACTION: Final rule.

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SUMMARY: The Department of Homeland Security is establishing minimum 
standards for State-issued driver's licenses and identification cards 
that Federal agencies would accept for official purposes on or after 
May 11, 2008, in accordance with the REAL ID Act of 2005. This rule 
establishes standards to meet the minimum requirements of the REAL ID 
Act of 2005. These standards involve a number of aspects of the process 
used to issue identification documents, including: Information and 
security features that must be incorporated into each card; application 
information to establish the identity and immigration status of an 
applicant before a card can be issued; and physical security standards 
for facilities where driver's licenses and applicable identification 
cards are produced. This final rule also provides a process for States 
to seek an additional extension of the compliance deadline to May 11, 
2011, by demonstrating material compliance with the core requirements 
of the Act and this rule. Finally, taking into consideration the 
operational burdens on State Departments of Motor Vehicles, this rule 
extends the enrollment time period to allow States determined by DHS to 
be in compliance with the Act to replace all licenses intended for 
official purpose with REAL ID-compliant cards by December 1, 2014 for 
people born after December 1, 1964, and by December 1, 2017 for those 
born on or before December 1, 1964.

DATES: Effective Date: This rule is effective March 31, 2008. The 
incorporation by reference of certain publications listed in the rule 
is approved by the Director of the Federal Register as of March 31, 
2008.
    Compliance Dates: Extensions: As of May 11, 2008, Federal agencies 
cannot accept driver's licenses or identification cards for official 
purposes, as defined herein, from States that have not been determined 
by DHS to be in compliance with the REAL ID Act unless a State has 
requested and obtained an extension of the compliance date from DHS. 
States seeking extensions must submit a request for an extension to DHS 
no later than March 31, 2008. As of December 31, 2009, any initial 
extension will terminate unless a State, no later than October 11, 
2009, submits to DHS a request for an additional extension and 
certification that the State has achieved the benchmarks set forth in 
the Material Compliance Checklist. As of May 11, 2011, driver's 
licenses and identification cards will not be accepted from States that 
are not in full compliance with the provisions of REAL ID.
    Enrollment: As of December 1, 2014, Federal agencies cannot accept 
driver's licenses or identification cards for official purposes, as 
defined herein, from any individual born after December 1, 1964, unless 
DHS has determined that the issuing State is in compliance with 
Subparts A through D of this rule and the card presented by the 
individuals meet the standards of this rule. As of December 1, 2017, 
Federal agencies will not accept any State-issued driver's licenses and 
identification cards for official purposes unless such cards have been 
issued by States that have certified to DHS their compliance with 
Subparts A through D of this rule.

FOR FURTHER INFORMATION CONTACT: Darrell Williams, REAL ID Program 
Office, Department of Homeland Security, Washington, DC 20528 (202) 
282-9829.

SUPPLEMENTARY INFORMATION:

Abbreviations and Terms Used in This Document

AAMVA--American Association of Motor Vehicle Administrators
ACLU--American Civil Liberties Union
CAC--U.S. Department of Defense Common Access Card
CDLIS--Commercial Drivers License Information System
CHRC--Criminal History Records Check
CRBA--Consular Report of Birth Abroad
DHS--U.S. Department of Homeland Security
DMV--Department of Motor Vehicles
DOS--U.S. Department of State
DOT--U.S. Department of Transportation
EAD--Employment Authorization Document
EDL--Enhanced driver's license and identification card
EVVE--Electronic Verification of Vital Events
FOIA--Freedom of Information Act
IAFIS--Integrated Automated Fingerprint Identification
ICAO--International Civil Aviation Organization
ID--Identification Card
JPEG--Joint Photographic Experts Group
LPR--Lawful Permanent Resident
MRZ--Machine Readable Zone
NAPHSIS--National Association of Public Health Statistics and 
Information Systems
NASCIO--National Association of State Chief Information Officers
NCSL--National Conference of State Legislatures
NCIC--National Crime Information Center
NGA--National Governors Association
NPRM--Notice of Proposed Rulemaking
PII--Personally Identifiable Information
RFID--Radio Frequency Identification
SAVE--Systematic Alien Verification for Entitlements
SEVIS--Student and Exchange Visitor Information System
SSA--Social Security Administration
SSI--Sensitive Security Information
SSN--Social Security Number
SSOLV--Social Security On-Line Verification
TIF--Tagged Image Format
TSA--Transportation Security Administration
TWIC--Transportation Worker Identification Credential
USCIS--U.S. Citizenship and Immigration Services
WHTI--Western Hemisphere Travel Initiative

Table of Contents

I. Background
II. Discussion of the Final Rule
    A. Extension of Deadlines
    B. Implementation Dates
    C. Verification and Data Exchange Systems Architecture
    D. Marking of Compliant REAL ID Documents
    E. Prohibition on States Issuing Real ID Cards to Persons Who 
Hold a Driver's License in Another State
    F. Western Hemisphere Travel Initiative
III. Section-by-Section Analysis of the Final Rule
IV. Discussion of Comments
    A. General Comments on the Proposed Regulation
    B. Scope, Applicability, and Definitions
    C. Compliance Period
    D. Privacy Considerations
    E. State to State Database Queries
    F. Document Standards for Issuing REAL ID Driver's Licenses and 
Identification Cards
    G. Exceptions Processing for Extraordinary Circumstances
    H. Temporary or Limited-Term Driver's Licenses and 
Identification Cards
    I. Minimum Driver's License or Identification Card Data Element 
Requirements
    J. Validity Period and Renewals of REAL ID Driver's Licenses and 
Identification Cards
    K. Source Document Retention
    L. Database Connectivity
    M. Security of DMV Facilities Where Driver's Licenses and 
Identification Cards are Manufactured and Produced
    N. State Certification Process; Compliance Determinations

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    O. Driver's Licenses and Identification Cards that Do Not Meet 
the Standards of the REAL ID Act.
    P. Section 7209 of the Intelligence Reform and Terrorism 
Prevention Act of 2004
    Q. Responses to Specific Solicitation of Comments
V. Regulatory Analyses
    A. Paperwork Reduction Act
    B. Economic Impact Analyses
    C. Executive Order 13132, Federalism
    D. Environmental Impact Analysis
    E. Energy Impact Analysis
    F. Executive Order 13175, Tribal Consultation

I. Background

A. Statutory Authority and Regulatory History

    This final rule establishes minimum standards for State-issued 
driver's licenses and identification cards that Federal agencies can 
accept for official purposes on or after May 11, 2008, as required 
under the REAL ID Act of 2005. See, Public Law 109-13, 119 Stat. 231, 
302 (May 11, 2005) (codified at 49 U.S.C. 30301 note) (the Act).
    During the terrorist attacks on the United States on September 11, 
2001, all but one of the terrorist hijackers acquired some form of 
identification document, some by fraud, and used these forms of 
identification to assist them in boarding commercial flights, renting 
cars, and other necessary activities leading up to the attacks. See, 
The 9/11 Commission Report, Final Report of the National Commission on 
Terrorist Attacks upon the United States (July 2004) (9/11 Commission 
Report), p. 390. The 9/11 Commission recommended implementing more 
secure sources of identification for use in, among other activities, 
boarding aircraft and accessing vulnerable facilities. In its report, 
the Commission stated:

    Secure identification should begin in the United States. The 
federal government should set standards for the issuance of birth 
certificates and sources of identification, such as driver's 
licenses. Fraud in identification documents is no longer just a 
problem of theft. At many entry points to vulnerable facilities, 
including gates for boarding aircraft, sources of identification are 
the last opportunity to ensure that people are who they say they are 
and to check whether they are terrorists.

Id. at 390.

    Congress enacted the Act in May 2005, in response to the 9/11 
Commission's recommendations.
    Under the Act, Federal agencies are prohibited, effective May 11, 
2008, from accepting a driver's license or a State-issued personal 
identification card for an official purpose unless the issuing State is 
meeting the requirements of the Act. ``Official purpose'' is defined 
under Sec.  201 of the Act to include access to Federal facilities, 
boarding Federally-regulated commercial aircraft, entry into nuclear 
power plants, and such other purposes as established by the Secretary 
of Homeland Security. Undoubtedly, the most significant impact on the 
public of this statutory mandate is that, effective May 11, 2008, 
citizens of States that have not been determined by DHS to be in 
compliance with the mandatory minimum requirements set forth in the 
REAL ID Act may not use their State-issued driver's licenses or 
identification cards to pass through security at airports. Citizens in 
this category will likely encounter significant travel delays.
    The Act authorizes the Secretary of Homeland Security, in 
consultation with the States and the Secretary of Transportation, to 
promulgate regulations to implement the requirements under this Act. 
Section 205(b) of the Act further authorizes the Secretary of Homeland 
Security to grant extensions of time to meet the minimum standards of 
the Act when States provide adequate justification for noncompliance. 
The Act does not, however, give DHS the authority to waive any of the 
mandatory minimum standards set forth in the Act. Those mandatory 
provisions are set forth below.
    Section 202(b) of the Act directs that REAL ID-compliant licenses 
and identification cards must include the following information:
    (1) The person's full legal name, date of birth, and gender;
    (2) The person's driver's license or identification card number;
    (3) A digital photograph of the person;
    (4) The person's address of principal residence;
    (5) The person's signature;
    (6) Physical security features designed to prevent tampering, 
counterfeiting, or duplication of the driver's licenses and 
identification cards for fraudulent purposes; and
    (7) A common machine-readable technology, with defined minimum 
elements.
    Section 202(c) of the Act also mandates certain minimum standards 
that States must adopt when issuing driver's licenses and 
identification cards intended for use for official purposes (referred 
to as REAL ID-compliant cards). Those standards include, but are not 
limited to, the following:
     The State shall require, at a minimum, presentation and 
verification of (1) A photo identity document (except that a non-photo 
identity document is acceptable if it includes both the applicant's 
full legal name and date of birth); (2) documentation showing the 
applicant's date of birth; (3) proof of the person's Social Security 
Number (SSN) or verification that the applicant is not eligible for a 
SSN; and (4) documentation showing the applicant's name and address of 
principal residence. Sec.  202(c).
     The State shall require valid documentary evidence that 
the applicant is lawfully present in the United States. Such evidence 
shall include documentary evidence that the applicant: (1) Is a citizen 
or national of the United States; (2) is an alien lawfully admitted for 
permanent residence or temporary residence in the United States or 
pending application for same; (3) has conditional permanent resident 
status in the United States or pending application for such status; (4) 
has an approved application for asylum in the United States, a pending 
application for asylum, or has been admitted to the United States in 
refugee status; (5) was lawfully admitted to the United States using a 
valid, unexpired nonimmigrant visa; (6) has a pending or approved 
application for temporary protected status in the United States; or (7) 
has approved deferred action status. Sec.  202(c)(2)(B).
     States must establish procedures to verify each document 
required to be presented by the applicant. The State also shall have 
entered into a memorandum of understanding (MOU) with DHS to use the 
Systematic Alien Verification for Entitlements (SAVE system) to verify 
the lawful status of an applicant, other than a U.S. citizen. Sec.  
202(c)(3)(C).
     States also must confirm with the Social Security 
Administration (SSA) that the SSN presented by an applicant (as 
required under Sec.  202(c)(1)(C)) is registered to that person. Sec.  
202(d)(5).
     States must ensure the physical security of facilities 
where driver's licenses and identification cards are produced; and the 
security of document materials and papers from which driver's licenses 
and identification cards are produced. Sec.  202(d)(7).
     All persons authorized to manufacture or produce cards to 
appropriate security clearance requirements. Sec.  202(d)(8).
     Physical security features on the driver's licenses and 
identification cards designed to prevent tampering, counterfeiting, and 
duplication of the documents for a fraudulent purpose. Sec.  202(b)(8).
    The Act also permits a State otherwise in compliance with the Act 
to issue driver's licenses and identification cards that do not conform 
to the Act's

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requirements. See Sec.  202(d)(11). Federal agencies, however, cannot 
accept such driver's licenses and identification cards for an official 
purpose and States must ensure that such cards or licenses must state 
on their faces that a Federal agency may not accept it for an official 
purpose. See Sec.  202(d)(11)(A). States also must use a unique design 
or color indicator so that it is readily apparent to Federal agency 
personnel that the card is not to be accepted for an official purpose. 
See Sec.  202(d)(11)(B).
    The Act requires DHS to determine whether a State is meeting the 
Act's requirements based upon certifications submitted by each State in 
a manner prescribed by DHS.

II. Discussion of Final Rule

    DHS published an NPRM on March 3, 2007, proposing requirements to 
meet the minimum standards required under the Act. The proposed 
requirements included information and security features that must be 
incorporated into each card; application information to establish the 
identity and immigration status of an applicant before a card can be 
issued; and physical security standards for facilities where driver's 
licenses and identification cards are produced. For additional 
information, please see the NPRM at 72 FR 10820.
    DHS received over 21,000 comments on the NPRM and supporting 
regulatory evaluation during the sixty-day public comment period for 
this rulemaking action. Responses to those comments are set forth in 
Section IV of this final rule. This final rule implements the 
requirements of the Act, but with significant changes from the NPRM as 
a result of public comment, as discussed below.
    As discussed above, effective May 11, 2008, Federal agencies are 
prohibited from accepting for official purposes state-issued driver's 
licenses or identification cards unless an issuing State certifies, and 
DHS determines, that it has met the mandatory minimum requirements of 
Sec.  202 of the REAL ID Act. Several States have implemented--or are 
working to implement--legislation prohibiting their Departments of 
Motor Vehicles (DMVs) from complying with the requirements of the Act 
or any related implementing regulations issued by DHS. DHS wants to 
make clear that effective May 11, 2008, individuals from States who 
have not obtained an extension of the compliance date from DHS, or who 
have not submitted a Compliance Package to DHS under the deadlines 
provided in this final rule, will not be able to use their State-issued 
license for federal official purposes, including for identification to 
board a commercial airplane. Residents of States that do choose to 
comply, however, through submission of their Compliance Plan or a 
timely-filed request for an extension, will be able to continue to use 
their current license to board commercial aircraft (and for other 
official purposes) through December 1, 2014. Effective December 1, 
2014, Federal agencies will refuse to accept non-REAL ID-compliant 
driver's licenses from all persons born before December 1, 1964 (i.e. 
under the age of fifty). Effective December 1, 2017, anyone seeking to 
use a State-issued driver's license or identification card for official 
purpose, including boarding of commercial aircraft, must have a REAL 
ID-compliant card.

A. Extension of Deadlines

    Under section 205(b) of the Act, the Secretary of Homeland Security 
is authorized to grant extensions of the May 11, 2008 compliance date 
to those States who provide adequate justification for their inability 
to comply by the statutory deadline. On March 1, 2007, the Secretary of 
Homeland Security announced, in conjunction with the release of the 
NPRM, that the Department would grant extensions to all States 
requesting extensions, not to exceed December 31, 2009. In the NPRM, 
DHS proposed that States that would not be able to comply by May 11, 
2008, should request an extension of the compliance date no later than 
February 10, 2008, and the proposal encouraged States to submit 
requests for extension as early as October 1, 2007. Under this final 
rule, States must file requests for an initial extension no later than 
March 31, 2008. That initial extension would expire on December 31, 
2009. Pursuant to Sec.  37.55 of this rule, States must submit requests 
for extensions to the REAL ID Program Office. Contact information is 
provided in the ``For Further Information'' section of this rule. 
Requests for extension must be submitted from the highest level 
executive official in the State overseeing the DMV to the REAL ID 
Program Office.
    DHS received numerous comments from States arguing that the lack of 
a centralized verification system would make it impossible for most, if 
not all, States to comply with the minimum statutory requirements by 
December 31, 2009. DHS recognizes the difficulty that many States may 
have in meeting the statutory requirements under the Act, but 
emphasizes that the Department has a critical responsibility to ensure 
that identification documents used to board commercial air carriers or 
access Federal buildings are secure documents and adequately prevent 
persons from circumventing Federal security and screening requirements 
by use of false or fraudulent identification.
    In balancing the operational needs of the States against the 
security responsibilities of DHS and the Federal Government, DHS has 
decided to allow States to obtain an extension beyond December 31, 
2009. DHS, however, will only grant a second extension to States that 
demonstrate that they have achieved certain milestones towards 
compliance with the Act and the final rule. States unable to 
demonstrate this progress will not be able to receive an additional 
extension. DHS has identified eighteen milestones, captured in the 
``Material Compliance Checklist,'' that States must certify they have 
met in order to obtain an extension of the compliance deadline beyond 
December 31, 2009. The Material Compliance Checklist is available at 
DHS' Web site at www.dhs.gov. The eighteen milestones are all mandatory 
requirements under the Act; one of the most important ones, however, is 
the State's ability to verify that the applicant is lawfully present in 
the United States. Any second extension will terminate effective May 
11, 2011, at which time, as discussed above, the State must begin 
issuing fully compliant REAL ID cards.

B. Phased Enrollment Periods

    DHS initially proposed that States determined by DHS to be in 
compliance with the Act and the final rule would have until May 11, 
2013 to replace all driver's licenses and identification cards with 
REAL ID-compliant cards. Under the NPRM, licenses intended for Federal 
official purposes issued by States on or after May 11, 2008 and 
determined by DHS to be in compliance with the Act and this final rule 
would be REAL ID-compliant, and the State would have worked to replace 
existing licenses, through standard renewal or replacement processes no 
later than May 11, 2013. Until that phased-in enrollment period 
concluded on May 11, 2013, Federal agencies would accept from residents 
of compliant States both REAL ID-compliant licenses dated on or after 
May 11, 2008 or standard licenses issued before May 11, 2013. The NPRM 
also proposed the same phase-in period for States requesting initial 
extensions of the compliance date until December 31, 2009, i.e., States 
receiving an extension would still have until May 11, 2013 to enroll 
their current drivers.
    During the public comment period, a number of States and State 
associations noted that States obtaining an initial extension of the 
compliance date until

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December 31, 2009, would still be required to enroll their existing 
driver population (estimated to be approximately 240 million) by May 
11, 2013. This would essentially halve the phase-in period and create 
an untenable burden and increased costs on States who were committed to 
complying with the REAL ID requirements. Several commenters suggested 
that DHS consider a risk-based approach that would permit States and 
DMVs to defer enrollment of a proportion of the population that 
statistically may present a lower risk of obtaining false or fraudulent 
identification to, among other potential purposes, circumvent 
Transportation Security Administration (TSA) passenger screening 
procedures and requirements or to access Federal buildings with a false 
identification.
    DHS recognizes the significant operational impact on State DMVs if 
all licenses issued by a State were required to be REAL ID-compliant by 
May 11, 2008, or May 11, 2013; and believes that an age-based approach 
is the best way to balance operational concerns against security 
concerns. DHS has considered the best methodology to target preventive 
efforts against an individual attempting to fraudulently obtain an 
identification document to gain access to a Federal facility, nuclear 
facility, or commercial aircraft. In the absence of threat reporting 
about particular individuals, to which the DMVs will not have access, 
DHS has determined that the most appropriate substitute criteria to 
apply is age.
    DHS has determined that the most logical option to reduce the 
significant operational burden on States is to allow States to divide 
their license-bearing population and re-issue REAL ID-compliant 
licenses through a two-phased enrollment. This approach would reduce 
the operational burdens on States, which otherwise would have to 
reissue licenses to the majority of their license-bearing populations 
within two years for States requiring and obtaining extensions until 
May 11, 2011. DHS also has determined that a phased enrollment based on 
age is consistent with the intent of the REAL ID Act by focusing the 
first phase of enrollment on the population of persons that may have a 
higher propensity to obtain and use fraudulent identification.
    To determine a logical age to use as a cut-off point for a two-
phased enrollment, DHS determined, based on comments received and 
statistical analysis of incident reports obtained from the TSA, that 
solely for purposes of establishing an age-based enrollment for 
compliance with the REAL ID Act, the logical point of division would be 
to allow States to defer enrollment for persons over the age of fifty. 
The statistical analysis supporting this determination was conducted by 
DHS utilizing TSA incident reports identifying persons arrested or 
detained for use of fraudulent identification at TSA screening areas 
during the period from October 1, 2004 through July 25, 2007. This 
analysis roughly indicates that persons over the age of fifty were less 
likely to be involved in TSA-related law enforcement incidents 
involving false or fraudulent identification. More specific information 
on the methodology underlying this assessment is provided in Section 
IV.C. below.
    Accordingly, DHS, under this final rule, has developed a phased 
enrollment approach for States who have certified compliance with the 
requirements of the Act and this final rule, and have been determined 
by DHS to be in compliance with the Act and this rule. Under this final 
rule, once a State certifies compliance with the REAL ID Act and this 
final rule, the State may focus enrollment first on issuing REAL ID-
compliant cards to individuals born after December 1, 1964 (those who 
will be less than fifty years of age as of December 1, 2014, the date 
of full compliance). States may delay the full enrollment of persons 
born on or before December 1, 1964, for three additional years, until 
December 1, 2017.
    DHS believes that this approach balances the security objective of 
improving the reliability of identification documents presented for 
official purposes, including the boarding of commercial aircraft, with 
the needs of the States to spread out their compliance costs over a 
greater period of time and to obtain the necessary legal and budgetary 
approval from within their States to comply with the regulations. DHS 
also notes that States will be able to reduce their overall compliance 
costs based on phased enrollment approach. The economic analysis is 
presented in section V. of this rule.

C. Verification and Data Exchange Systems Architecture

    The REAL ID Act requires States to verify supporting documents with 
the issuing agency. Because our population moves freely among the 
States, each State will need the capability to verify documents from 
issuing agencies in all other States. Although the Act places this 
burden on the States, DHS has worked to consider several technical 
solutions that would provide States with this capability. DHS has 
initiated a verification systems design project to define the 
requirements for the optimal system for REAL ID. DHS is working with 
the American Association of Motor Vehicle Administrators (AAMVA), the 
Department of Transportation (DOT), the Social Security Administration, 
the Department of State (DOS), the National Association of Public 
Health Statistics and Information Systems (NAPHSIS), and State 
representatives to define requirements for a ``hub'' based network and 
messaging systems to support the requirements of REAL ID. DHS is 
assessing the extent to which the current AAMVA network, 
communications, and systems architecture can serve as a platform for 
deployment of REAL ID data verification and State-to-State data 
exchanges.
    The backbone of this hub would be AAMVAnet, the network system that 
AAMVA operates to facilitate data verification for State DMVs. DOT is 
currently funding an ongoing project to upgrade the capability of 
AAMVAnet by building in such security features as end-to-end data 
encryption and Federal Information Security Management Act-based 
security standards. The DOT-funded project will potentially expand 
AAMVAnet's capability to provide the capacity to handle the increased 
transaction volume for the required State-to-State transactions. 
Finally, the AAMVAnet backbone resides on a private network with no 
connectivity to the Internet. It has been, and will continue to be, a 
highly secure transportation layer for all communications between 
States and agency databases.
    With respect to data verification, AAMVAnet already supports 
verification of both social security numbers (SSNs) and birth 
certificates. These application systems enable States to query the 
Social Security On-Line Verification (SSOLV) database managed by the 
Social Security Administration (SSA) and the Electronic Verification of 
Vital Events (EVVE) system owned and operated by NAPHSIS. While 47 
States currently verify SSNs through AAMVAnet, verification of birth 
certificates is limited to those States whose vital events records are 
available online. In both cases only State DMVs can initiate queries; 
personal data are verified and not exchanged; and no personal 
information is created, modified, or stored as a result of the 
transaction. Working with both SSA and NAPHSIS, DHS is identifying 
requirements for enhancements to both application systems.
    U.S. Citizenship and Immigration Services (USCIS) is working to 
modify the SAVE system to allow States to

[[Page 5276]]

facilitate their ability to meet the verification requirements under 
the Sec.  202(c)(3) of REAL ID Act, a requirement that States routinely 
utilize the SAVE system to verify the lawful status of REAL ID card 
applicants. Currently, a majority of States have already entered into 
Memoranda of Understanding with USCIS to access and use SAVE, as 
required under section 202(c)(3) of the Act. USCIS is developing a 
standard user interface to meet all State DMV business process needs 
for immigration-related transactions and to draft requirements for a 
common messaging system that takes advantage of the same AAMVAnet 
standards and infrastructure that support State DMV queries against 
SSOLV, EVVE, and other Federal and State databases.
    DHS also is exploring the alternative of using the Commercial 
Drivers Licensing Information System (CDLIS) as the baseline platform 
for supporting the State-to-State data exchange requirements of the 
REAL ID Act and regulation. CDLIS currently supports queries to every 
State DMV every time an individual applies for a driver's license in 
any State or the District of Columbia. CDLIS already meets the data 
exchange requirements of REAL ID for those drivers holding commercial 
driver's licenses. Moreover, CDLIS is a secure, State-governed system 
that stores the minimum amount of personal information possible to 
facilitate the routing of queries and responses between States. DHS is 
considering an effort to define system requirements for REAL ID State-
to-State data exchanges based upon the CDLIS model or platform. This 
project would define a systems architecture for REAL ID State-to-State 
data exchanges that would leverage the ongoing CDLIS modernization 
project led by the DOT. DHS will work closely with DOT to build upon 
current and planned systems designs to meet the requirements of REAL 
ID.

D. Marking of Compliant REAL ID Documents

    Section 202(d)(11) of the Act allows States to issue, in addition 
to REAL ID-compliant licenses, identification cards not intended to be 
accepted by Federal agencies for official purposes. Under the Act, 
however, any such card must clearly state on its face that it may not 
be accepted by any Federal agency for federal identification or any 
other official purpose; and States must use a unique design or color 
indicator to alert Federal agencies and other law enforcement that it 
may not be accepted for any such purpose. DHS will leave the types of 
marking and unique coloring to the discretion of the individual States, 
subject to DHS approval as part of the Compliance Package to ensure 
that DHS officials, such as TSA screeners, can adequately distinguish 
between REAL ID-compliant cards and those not intended for official 
purposes.
    Based on an analysis of feedback from several commenters, DHS, 
however, has determined it would be in the best interest of the 
nation's security for States to place a security marking on licenses 
and identification cards to allow Federal agencies to more readily 
determine which States are issuing licenses or identification cards 
that are REAL ID-compliant or have been determined to be ``materially 
compliant'' (including verifying that REAL ID applicants are lawfully 
present in the United States). DHS will work with States concerning 
marking compliant licenses and identification cards that indicate 
whether the document was issued in material compliance of the Act's 
requirements, or in full compliance of the Act's requirements as set 
forth in Subpart E of this rule.

E. Prohibition on States Issuing REAL ID Cards to Persons Who Hold a 
Driver's License in Another State

    Section 202(d)(6) of the Act requires that States ``refuse to issue 
a driver's license or identification card to a person holding a 
driver's license issued by another State without confirmation that the 
person is terminating or has terminated the driver's license.'' In the 
NPRM, DHS maintained that we are not regulating the issuance of 
driver's licenses beyond that required under the REAL ID Act, but 
encourage the policy of ``one driver, one license.'' Following comments 
on the rule, however, DHS believes it is necessary to clarify that the 
REAL ID Act mandates that a State cannot issue a REAL ID license to a 
person who is holding a license issued by another State or to an 
individual who already holds a REAL ID card. (A person can, however, 
hold a REAL ID card and another non-REAL ID, non-driver's license 
identification card). DHS, therefore, revised Sec.  37.33, moving that 
provision to a separate section (Sec.  37.29), to clarify and emphasize 
that a State cannot issue a REAL ID card without verifying that an 
applicant does not hold another REAL ID card or a driver's license from 
another State, or if the applicant holds another driver's license, that 
he or she is taking steps to terminate that license. See Sec.  
202(d)(6) of the Act.

F. Western Hemisphere Travel Initiative

    Section 7209 of the Intelligence Reform and Terrorism Prevention 
Act of 2004, as amended,\1\ requires the Secretary of Homeland 
Security, in consultation with the Secretary of State, to develop and 
implement a plan to require travelers entering the United States to 
present a passport, other document, or combination of documents, that 
are ``deemed by the Secretary of Homeland Security to be sufficient to 
denote identity and citizenship.'' This DHS and Department of State 
(DOS) initiative is referred to as the Western Hemisphere Travel 
Initiative (WHTI). DHS and DOS have issued several regulations 
implementing WHTI travel document requirements at air ports of entry, 
and proposing documents acceptable for cross border travel at land and 
sea ports-of-entry. For additional information on the WHTI rulemaking 
actions, please see 71 FR 68411 (Nov. 24, 2006) (final air rule) and 72 
FR 35087 (proposed land and sea rule).
---------------------------------------------------------------------------

    \1\ Pub. L. 108-458, as amended, 118 Stat. 3638 (Dec. 17, 2004).
---------------------------------------------------------------------------

    As part of WHTI, the Secretary of Homeland Security has the 
authority to designate alternative documents that denote identity and 
citizenship that can be used for cross border purposes at land and sea 
ports-of-entry. In determining which documents should provide a 
convenient, low-cost alternative for U.S. citizens, particularly those 
residing in border states, DHS notes that State DMVs are well 
positioned to provide an enhanced driver's license (EDL) to meet this 
need. DHS is coordinating efforts to ensure that an EDL, developed to 
meet the requirements of WHTI, will adopt standards that REAL ID 
requires, as they are defined through the REAL ID rulemaking process. 
For an EDL to be an acceptable WHTI document for land and sea cross-
border travel, it can only be issued to U.S. citizens, denote such 
citizenship on the face of the card, and must include technologies that 
facilitate electronic verification and travel at ports-of-entry. DHS 
will continue to work closely with interested states to develop 
driver's licenses that can meet both REAL ID and WHTI requirements.
    The requirements outlined above constitute substantive changes 
between the March 2007 proposed rule and this final rule. A more robust 
discussion of this final rule and DHS's responses to comments are set 
forth below.

[[Page 5277]]

III. Section-By-Section Analysis of the Final Rule

Section 37.1 Applicability

    DHS added a reference to Sec.  202(d)(11) of the REAL ID Act to 
make it clear that the provisions of this rule apply to States who 
intend to issue driver's licenses or identification cards that can be 
accepted by Federal agencies for official purposes and that intend to 
be determined by DHS to be in compliance with section 202 of the REAL 
ID Act.

Section 37.3 Definitions

    DHS added a definition of ``full compliance'' to clarify the 
relationships between full compliance with the requirements of Subparts 
A through D, and ``material compliance'' with the procedures in Subpart 
E that allow a State to file for and receive an extension.
    DHS refined the definition of ``covered employees'' in this final 
rule to clarify that employees refers to DMV employees.
    DHS added a definition of ``duplicate'' for driver's licenses and 
identification cards issued subsequent to the original license or card 
bearing the same information and expiration date as the original.
    DHS has modified the definition of ``full legal name'' to bring it 
closer to existing name conventions used by the Social Security 
Administration, the Department of State, and other issuers of source 
documents.
    DHS has added the definition of ``material change'' to provide 
clarity for States as to when an individual may be required to make an 
in-person visit to a DMV office to obtain an updated REAL ID driver's 
license or identification card when certain information changes from 
the time they obtained their previous REAL ID document. For the purpose 
of this final rule, a change of address of principal residence does not 
constitute a material change.
    DHS has added a definition of ``material compliance'' as a basis 
for establishing the benchmarks that DHS will use to evaluate State 
progress toward meeting the requirements of this rule. States in 
material compliance with Subparts A through D of this rule will be 
granted a second extension until no later than May 10, 2011 to meet all 
the requirements of this rule.
    DHS maintained the same definition of ``official purpose'' as that 
proposed in the NPRM and set forth in the REAL ID Act; to mean 
``accessing Federal facilities, boarding Federally-regulated commercial 
aircraft, and entering nuclear power plants.''
    DHS also added a definition for ``personally identifiable 
information'' as it pertains to these rules and the REAL ID Act.
    DHS changed the definition of ``principal residence'' from the 
location where a person has his or her true, fixed, and permanent home 
and intends to return, to the location where a person currently resides 
even if this location is temporary, in conformance with the residency 
requirements of the State issuing the driver's license or 
identification card, if such requirements exist. DHS made this change 
in response to comments that the prior definition would unfairly 
prevent persons such as military personnel or students residing 
temporarily in a State from obtaining a driver's license or 
identification card from that State.
    DHS revised the definition of ``sexual assault and stalking'' to 
incorporate the meaning of these terms given by State laws.
    DHS broadened the scope of the term ``State address 
confidentiality'' to allow States to cover not only victims of violence 
or assault, but also ``other categories of persons'' that may need to 
have their addresses kept confidential.
    DHS added a comprehensive definition of the term ``verify'' to 
clarify the scope of application in the rule. The definition makes it 
clear that verification includes two interrelated procedures: (1) 
inspection to see if the document is genuine and has not been altered, 
and (2) checking to see that the identity data on the document is 
valid.

Section 37.5 Validity Periods and Deadlines for REAL ID Driver's 
Licenses and Identification Cards

    The proposed language in Sec.  37.5 required that all cards issued, 
reissued, or renewed after May 11, 2008 had to be REAL ID-compliant by 
May 11, 2013 in order to be acceptable by Federal agencies for official 
purposes. As discussed in Section II above and the responses to 
comments in Section IV below, DHS has determined that the following 
enrollment schedule will apply under this final rule: (1) Effective 
December 1, 2014, Federal agencies will be prohibited from accepting 
State-issued driver's licenses or identification cards for official 
purpose from individuals born after December 1, 1964, unless the 
individual presents a REAL ID-compliant card from a State that has 
certified and that DHS has determined compliance with the REAL ID Act 
and this final rule; and (2) effective December 1, 2017, Federal 
agencies will be prohibited from accepting for official purposes from 
any individual (regardless of age) State-issued driver's licenses or 
identification cards that are not REAL ID-compliant.

Section 37.11 Application and Documents the Applicant Must Provide

    DHS proposed, in the March NPRM, that States must maintain 
photographs of individuals who applied for, but ultimately were denied 
a REAL ID card by the State, for up to one year. However, DHS also 
proposed that States must maintain photographs of persons denied REAL 
ID cards based on suspected fraud for ten years and reflect in the 
State's records that a driver's license or identification card was not 
issued by the State because of suspicions of fraud. In response to 
comments, this final rule was amended to provide a uniform photograph 
retention provision of five years for persons who are denied a REAL ID 
card, regardless of the reason that the State denies issuance of a REAL 
ID card. DHS has also added a provision requiring States to retain the 
photo for two years after expiration of the card to allow individuals 
to renew licenses after they have expired.
    The NPRM also proposed to require, under Sec.  37.11(b), that 
States retain with applicant source documents the required signed 
declaration that the information presented by the applicant is true and 
accurate. This final rule no longer requires States to retain the 
required declaration with the applicant's source documents, the 
retention of which is mandated under Sec.  202(d)(2) of the Act. 
Instead, recognizing the operational burdens on the States, DHS is 
exercising its discretion on this matter to require only that the 
declaration must be retained by States consistent with applicable State 
document retention requirements or policies.
    Under Sec.  37.11(c), DHS has added a provision that would allow 
DHS to change the list of documents acceptable to establish identity 
following publication of a notice in the Federal Register.
    DHS also has provided States a broader latitude to accept documents 
other than documents issued by a Federal or State-level Court or 
government agency to establish a name change. Moreover, where State law 
or regulation permits, the State may record a name other than that 
contained in the identity document on the face of the license or card 
as long as the State maintains copies of the documentation presented 
pursuant to Sec.  37.31, and maintains a record of both the recorded 
name and the name on the source documents in a manner to be determined 
by the State.

[[Page 5278]]

    The NPRM proposed, under Sec.  37.11(e), that an applicant for a 
REAL ID card must provide documentation establishing a Social Security 
Number (SSN) or the applicant's ineligibility for an SSN. This final 
rule amends that proposed requirement to allow an applicant, if a 
Social Security Administration account card is not available, to 
present any of the following documents bearing the applicant's SSN: (i) 
A W-2 form, (ii) a SSA-1099 form, (iii) a non-SSA-1099 form, or (iv) a 
pay stub bearing the applicant's name and SSN. A State, however, must 
verify the SSN pursuant to Sec.  37.13(b)(2) of this final rule.
    DHS has amended proposed Sec.  37.11(f) to give States more 
discretion in the acceptance of documents required to demonstrate the 
applicant's principal address by removing specific requirements that 
documents used to demonstrate address of principal residence be issued 
``monthly'' and ``annually.''
    In response to comments regarding demonstrating the applicant's 
lawful status in the United States, DHS has amended Sec.  37.11(g) with 
regard to which identity documents may serve as satisfactory evidence 
of the applicant's lawful status. While all identity documents listed 
in Sec.  37.11(c) must be verified by the State in the manner 
prescribed in Sec.  37.13, State verification of some of the identity 
documents also provides satisfactory evidence of lawful status. 
Therefore, if the applicant presents one of the documents listed under 
Sec.  37.11 (c)(1)(i)-(viii)(except for (v)), the issuing State's 
verification of the applicant's identity in the manner prescribed in 
Sec.  37.13 will also provide satisfactory evidence of lawful status. 
State verification of the remaining identity documents listed in Sec.  
37.11(c), however, does not provide satisfactory evidence of lawful 
status and the applicant must provide additional documentation of 
lawful status as determined by USCIS.
    In response to comments on the exceptions process proposed in Sec.  
37.11(h), DHS has amended this final rule to allow U.S. citizens to 
utilize the process to prove lawful status. In response to comments 
that it was unrealistic and too costly to require States to provide 
quarterly reports analyzing the use of their exceptions process, this 
proposed requirement has been replaced with a requirement that States 
must conduct a review of the DMV's use of the exceptions process and 
submit the report to DHS as part of their certification package per 
Sec.  37.55. Section 37.11(h) has also reduced the information required 
to be maintained by the State when the exceptions process is used.

Section 37.13 Document Verification Requirements

    Based on numerous comments and ongoing State DMV programs, the rule 
now includes the provision that the State must make reasonable efforts 
to ensure that the person has not been issued identification documents 
in multiple or different names. Identified by several responders as the 
top priority for reducing the number of fraudulent licenses issued, 
this requirement has been reformulated and moved from Sec.  37.11 to 
37.13.
    In response to concerns that a number of the verification systems 
contained in the proposal would not be operational by the verification 
deadlines, the final rule gives States more flexibility in verifying 
documents and identity data.
    DHS added language that provides that nothing in this section 
precludes a DMV from issuing an interim license or a license under 
Sec.  202(d)(11) of the Act to permit an individual to resolve any non-
match issue, but clarifies that such cards cannot be accepted for 
official purposes.

Section 37.15 Physical Security Features for the Driver's License or 
Identification Card

    DHS has deleted the proposed card design standards in response to 
comments which stated that the standards were an undue burden on the 
States. DHS has added language that States must conduct a review of 
their card design and submit a report to DHS as part of its 
certification package that indicates the ability of the designs to 
resist compromise and document fraud attempts.

Section 37.17 Requirements for the Surface of the Driver's License or 
Identification Card

    In response to comments that some States allow a name other than 
the full legal name on the identity document to be on the surface of 
the license, this section has been amended to require full legal name 
as demonstrated on the applicant's identity document, but an individual 
may establish his or her name with other documentation where State law 
or regulation permits, as long as the State maintains copies of the 
documentation presented pursuant to Sec.  37.31 and maintains a record 
of both the recorded name and the full legal name on the identity 
document in a manner to be determined by the State.
    Under Sec.  37.17(d), the unique license or card identification 
number must only be unique to each license or card holder within the 
State and not unique across all the States and other covered 
jurisdictions.
    With regard to full facial digital photographs pursuant to Sec.  
37.17(e), DHS has clarified the discussion to bring it into closer 
compliance with DHS, Federal and national standards. Language was added 
that allows photographs to be in black and white or color.
    To provide States with greater flexibility in protecting 
confidential addresses, Sec.  37.17(f) contains new language that 
allows the display of an alternative address on the license or card, if 
a State permits this, and acceptance of an administrative order issued 
by a State or Federal court to show that an individual's address is 
entitled to be suppressed. States may also use an address convention 
used by the U.S. Postal Service where a street number and street name 
have not been assigned.
    Further, Sec.  37.17(g) now requires that States establish an 
alternative procedure for individuals unable to sign their names. The 
requirement to use the Roman alphabet has been replaced with use of the 
Latin alphabet which is more common.
    In response to several comments from States and AAMVA that REAL ID-
compliant documents should be marked or ``branded'' as REAL ID-
compliant, DHS has added 37.17(n) which requires that REAL ID-compliant 
licenses and identification cards bear a DHS-approved security marking 
in accordance with the level of compliance with the Act.

Section 37.19 Machine Readable Technology on the Driver's License or 
Identification Card

    This section contains technical conforming changes to reflect the 
changes made in Sec.  37.11(c)(2) allowing a name other than the full 
legal name to appear on the license or card if a State law permits. 
State or territory of issuance has been added to the MRZ data fields to 
accommodate instances where a State may not have a residency 
requirement or may allow use of an out-of-State address to receive a 
license.

Section 37.21 Temporary or Limited-Term Driver's Licenses and 
Identification Cards

    In response to comments that the term ``temporary'' may cause 
confusion under current terminology practices with some DMVs, this 
section adds new terminology and now refers to such licenses/cards as 
``limited-term or temporary.'' DHS also added language that provides 
that the verification of

[[Page 5279]]

lawful status for such licenses/cards may be through SAVE, or ``another 
method approved by DHS.''

Section 37.23 Reissued REAL ID Driver's Licenses and Identification 
Cards

    In response to comments, Sec.  37.23 now provides that States may 
conduct a non-in-person (i.e., remote) reissuance of a driver's license 
or card if State procedures permit the reissuance to be conducted 
remotely, except that a State may not remotely reissue a license or 
card where there has been any material change in information since 
prior issuance.

Section 37.25 Renewal of REAL ID Driver's Licenses and Identification 
Cards

    Section 37.25(a)(2) adds language that requires the States to 
reverify SSN information to ensure that the applicant's information is 
still valid. DHS has also added explicit language requiring that the 
State must verify electronically information that it was not able to 
verify at a previous issuance or renewal, if the systems or processes 
exist to do so.

Section 37.27 Driver's Licenses and Identification Cards Issued During 
the Age-Based Enrollment Period

    This section has been added to affirm the acceptability of driver's 
licenses and identification cards issued, reissued, or renewed prior to 
the end of the age-based enrollment period. For example, if an 
individual is 60 years of age and their license naturally expires in 
2009, the State may issue that individual a license under that State's 
current practices, and that license will be accepted for official 
purposes until 2017, after which time that individual must present a 
license that complies with this rule for that card to be accepted for 
official purposes. As of December 1, 2014, individuals born after 
December 1, 1964 (that is, under fifty years old on that date) must 
present a REAL ID card when they present a State-issued driver's 
license or identification for official purposes. As of December 1, 
2017, all individuals presenting a State-issued driver's license or 
identification card for official purposes must present a REAL ID card. 
The new section reemphasizes that an individual's driver's license will 
continue to be accepted for official purposes until the expiration of 
the individual's applicable enrollment period.

Section 37.29 Prohibition Against Holding More Than One REAL ID Card or 
More Than One Driver's License

    In response to numerous comments to clarify the ``one driver one 
license'' concept in the REAL ID rules, DHS has created a stand-alone 
section, Sec.  37.29, that specifically states that an individual may 
hold only one REAL ID card, whether it is a REAL ID identification card 
or a REAL ID driver's license. In addition, prior to issuing a REAL ID 
driver's license, a State that is complying with REAL ID must check 
with all other States to determine if the applicant currently holds a 
driver's license or REAL ID identification card in another State, and 
if so, the receiving State must take measures to confirm that the 
person has terminated or is terminating the driver's license or REAL ID 
identification card issued by the prior State pursuant to State law, 
regulation or procedure.

Section 37.31 Source Document Retention

    DHS has added language to Sec.  37.31 to reiterate the requirement 
that States must protect any personally identifiable information 
collected pursuant to the REAL ID Act as described in the Security Plan 
(Sec.  37.41).
    In response to comments, DHS deleted the following requirements 
from this section:
     That States must replace black and white imagers with 
color imagers by December 31, 2011;
     That States using digital imaging to retain source 
documents must use the AAMVA Digital Exchange Program or a standard 
that has interoperability with the AAMVA standard;
     That all images must be linked to the applicant through 
the applicant's unique identifier assigned by the DMV; the amended 
requirement now states that all images must be retrievable by the DMV 
if properly requested by law enforcement.
    DHS has also added a provision that allows States to record 
information from birth certificates in lieu of retaining an image or 
copy if State law permits and if requested by the applicant. This will 
protect medical and other personal information not relevant to REAL ID.

Section 37.33 DMV Databases

    DHS changed the title of this section from ``Database connectivity 
with other States'' to ``DMV Databases.'' This section has also been 
amended to require that the DMV database allow capture of the full 
legal name and any other name recorded under Sec.  37.11(c)(2) without 
truncation.

Section 37.41 Security Plan

    DHS amended this section to clarify that each State submit a single 
security plan to address DMV facilities involved in the enrollment, 
issuance, manufacturing and production of driver's licenses and 
identification cards, rather than all State DMV driver's license/
identification facilities as stated in the NPRM. This change is in 
response to comments that it does not enhance overall security to 
require every DMV office (which could be interpreted to include 
administrative offices) to submit a security plan and individual risk 
assessments.
    Furthermore, in response to comments asking for clarification, 
Sec.  37.41(b)(iii) now provides that the release and use of personal 
information must, at a minimum, be consistent with the Driver's Privacy 
Protection Act, 18 U.S.C. 2721 et seq.
    This section of the final rule now indicates that the fraudulent 
document training requirement would be satisfied by a fraudulent 
document training program approved by AAMVA. DHS has also deleted the 
requirements that the security plan contain procedures to revoke and 
confiscate driver's licenses or identification cards fraudulently 
issued in another State, in response to comments that States have no 
authority to carry out such a requirement.
    A new section has been added to Sec.  37.41 to state that the 
Security Plans contain Sensitive Security Information and must be 
handled and protected in accordance with 49 CFR Part 1520.

Section 37.43 Physical Security of DMV Production Facilities

    This section is unchanged.

Section 37.45 Background Checks for Covered Employees

    Section 37.45(d) has been amended to recognize background checks 
that are similar to those required under Sec.  37.45 and that were 
conducted on or after May 11, 2006, and that the DMV does not have to 
check references from prior employers for individuals that have been 
working with the DMV for at least two consecutive years prior to the 
Act taking effect. (The Act becomes effective on May 11, 2008). 
Therefore DMVs would not have to seek references from prior employers 
of employees who have been with the DMV consecutively from May 11, 2006 
to May 11, 2008. The final rule clarifies that the waiver provision in 
Sec.  37.45(b)(1)(v) allows a waiver of requirements for the 
determination of arrest status and includes circumstances where the 
individual has been arrested, but no final disposition on the matter 
has been reached.

[[Page 5280]]

    In response to comments, DHS deleted the requirement that States 
must conduct a financial history check as part of the background check 
of covered employees.
    Section 37.45 now requires that the State confirm the employment 
eligibility of the covered employee, rather than lawful status through 
SAVE, and recommends that the State participate in the USCIS E-Verify 
program (or any successor program) for employment eligibility 
verification.

Section 37.51 Compliance--General Requirements

    DHS has modified this section in response to many comments. DHS 
recognizes that States will be unable to meet all the requirements of 
this rule beginning on January 1, 2010, the day after the termination 
of the extension period proposed by DHS in the NPRM. For example, 
requirements for State verification of source documents depend upon the 
deployment of electronic systems that have not yet been developed. 
Therefore, DHS proposes that States meeting key benchmarks for progress 
toward compliance with the REAL ID Act be granted an additional 
extension until no later than May 10, 2011 to meet all the requirements 
of Subparts A through D. States seeking a second extension would submit 
a Material Compliance Checklist to DHS no later than October 11, 2009, 
documenting their progress in meeting the benchmark requirements. 
States meeting these benchmarks would also be able to issue driver's 
licenses and identification cards bearing security markings indicating 
that the license was issued in conformity with REAL ID standards.

Section 37.55 State Certification Documentation

    The title of the section was amended to reflect the changes to the 
certification process discussed above. The required contents of the 
State certification have been amended in the final rule to delete the 
requirement for a copy of all statutes, regulations, and administrative 
procedures and practices related to the State's implementation program. 
DHS has amended the requirement that a State's governor certify 
compliance to read that a State's highest level official with oversight 
responsibility over the DMVs certify compliance. In addition, the 
frequency of certification reporting has been modified to be similar to 
the three-year intervals required by several Department of 
Transportation programs. Thus, in accordance, Sec.  37.57 ``Annual 
State Certifications'' has been removed.

Section 37.59 DHS Reviews of State Compliance

    DHS has rephrased the information requirement in the section to 
require any reasonable information pertinent to determining compliance 
with this part as requested by DHS. Also, DHS must now provide written 
notice to the State in advance of an inspection visit. The final rule 
provides that, in the event of a DHS preliminary determination that the 
State has not submitted a complete certification or that the State does 
not meet one or more of the minimum standards for compliance under this 
part, DHS will inform the State of the preliminary determination within 
forty-five days. Finally, this section now includes DHS procedures for 
reviewing a Material Compliance Checklist as part of the procedure for 
granting States an additional extension until no later than May 10, 
2011.

Section 37.61 Results of Compliance Determination

    The final rule now states that DHS will determine that a State is 
not in compliance when it fails to submit the certification as 
prescribed or to request an extension as prescribed in the subpart.

Section 37.63 Extension of Deadline

    The NPRM was not clear on the timing of submissions for requests 
for extension. Although proposed regulatory text stated that requests 
for extension must be submitted no later than October 1, 2007; the 
preamble requested submission of compliance plans and strongly 
encouraged ``States to communicate their intent to certify compliance 
or request an extension by October 1, 2007.'' We clarify the deadline 
for submission of requests for extension in the final rule, providing 
that requests for extension must be submitted to DHS ``no later than 
March 31, 2008.'' DHS will notify a State of its acceptance of the 
extension within forty-five days of receipt.
    This section now includes the procedure for requesting an 
additional extension until no later than May 10, 2011. States seeking 
an additional extension shall submit a Material Compliance Checklist to 
DHS no later than October 11, 2009, documenting the State's progress in 
meeting certain benchmarks. States meeting the benchmarks included in 
this checklist will be granted a second extension until no later than 
May 10, 2011.

Section 37.65 Effect of Failure To Comply With This Part

    DHS amended this section to provide that REAL ID driver's licenses 
and identification cards issued by the State during the term of any 
extension will continue to be acceptable for official purposes until 
the card expires.

Section 37.67 Non-REAL ID Driver's Licenses and Identification Cards

    This section was renumbered to Sec.  37.71, consistent with the 
structure of the Part. The section was also renamed to ``Driver's 
licenses and identification cards issued under Sec.  202(d)(11) of the 
REAL ID Act'' to further clarify that DHS interprets this section of 
the Act to apply only to States that certify and DHS determines are 
compliant with the REAL ID Act, as defined by these regulations, and 
that choose to also issue driver's licenses and identification cards 
under the Act that are otherwise not acceptable by Federal agencies for 
official purposes.

IV. Discus