May 18, 2005
POSSIBLE IMPLEMENTATION ISSUES FOR CONNECTICUT RELATING TO NEW FEDERAL REQUIREMENTS FOR STATE DRIVERS' LICENSES AND IDENTIFICATION CARDS
By: James J. Fazzalaro, Principal Analyst
You asked us to identify some possible implementation issues for Connecticut regarding complying with recently passed federal legislation that establishes requirements and standards for states when issuing drivers' licenses and identification cards. This report should be read in conjunction with OLR Report 2005-R-0482 which summarizes the provisions of the new law (Title II of P.L. 109-13). This law cleared the Congress on May 10, 2005 and was signed by President Bush the next day.
The new law directly affects all federal agencies and indirectly affects the states. It prohibits any federal agency from accepting a state-issued driver's license or identification card unless it has been issued according to the bill's standards and requirements. A state does not have to comply, but if it does not its drivers' licenses and identification cards will not be accepted for things like accessing federal facilities, boarding federally regulated commercial aircraft, entering nuclear power plants, and any other official purposes the federal Secretary of Homeland Security identifies.
Although one or more states may challenge the new law in court, for purposes of this report we have assumed that Connecticut will attempt to comply with it.
Some possible implementation issues are noted below in bullet point format. They are presented without the benefit of knowing how the Secretary of Homeland Security may clarify, interpret, or limit the requirements of the law in his implementing regulations, and are based on the law as it currently exists.
● States Have Three Years To Comply With The New Requirements
The ban on federal agencies accepting non-complying drivers' licenses and ID cards begins three years after enactment of the law. Since it cleared Congress on May 10 and was signed by the President on May 11, it appears that the deadline for compliance will be around May 2008. While this means that statutory and administrative changes do not necessarily have to be made immediately, it would be prudent to address them as soon as possible after the Secretary of Homeland Security issues any implementing regulations to allow for sufficient time to address the requirements administratively.
● The Requirements Appear To Apply To More Than Just The Documents The Department Of Motor Vehicles (DMV) Issues
The new law applies to state-issued drivers' licenses and ID cards. The meaning of drivers' licenses is obvious, but the law uses a definition of identification card that includes “any identification document issued by a state or local government solely for the purpose of identification.” DMV issued drivers' licenses and non-driver photo ID cards are the most obvious documents that are affected by these requirements, but a number of other state agencies also issue identification documents. For example, the legislature issues photo ID badges to its employees and other state agencies also issue identification cards or badges for their employees. The Department of Social Services issues photo public assistance identification cards. Based on the definition of identification cards in the law, it would appear that these other documents also fall under the requirements. Although these ID cards do not necessarily have to comply with the procedural and documentary requirements of the law, they may still have to be reissued because the law requires any non-complying identification card or license to state on its face that it may not be accepted by any federal agency for federal identification or any other official purpose. It also must use a “unique design or color indicator” to alert federal agency and law enforcement personnel that it may not be accepted for federal purposes.
● Compliance With The Minimum Information And Features Requirements For Licenses And ID Cards Should Not Present Major Compliance Problems For Connecticut Provided Only DMV-Issued Documents Are Involved
Most of the required features such as birth date, gender, unique identification number, digital photograph, residence address, and signature are already included on Connecticut licenses and, for the most part on the ID cards. Licenses also have a number of security and anti-tampering features, although the ones that the homeland security secretary may identify are not known at this time. Licenses also have a readable bar code that may or may not comply with the requirement for a common machine-readable technology with defined minimum data elements, depending on what data elements are required. Putting the person's full legal name on the license should not present major implementation issues physically, but could be a problem from an administrative standpoint in that current licenses may not all be issued with the holders' full legal names. Non-driver ID cards are likely to need more adjustments than licenses.
ID cards issued by state agencies other than the DMV are likely to need more extensive changes to comply with the required information and features, especially with respect to security and anti-tampering features.
● Identity Documentation
The new law states that, before issuing a driver's license or ID card, a state must, at a minimum, require presentation and verification of (1) a photo identity document (or a non-photo identity document that includes full legal name and date of birth), (2) documentation showing date of birth, (3) proof of social security account number or verification of ineligibility for such a number, and (4) documentation showing name and primary residence address.
DMV currently requires submission of a certified birth certificate or a valid U.S. passport from anyone applying for a new driver's license or non-driver photo ID card. It also requires new applicants to submit their social security number and verifies it with the Social Security Administration. An applicant must provide one other form of personal identification from a list of approved documents and verification of his residence address in the form of the DMV appointment confirmation letter (if never licensed before), a utility bill, mortgage, rental or lease agreement or postmarked mail. While DMV currently requires documentation that is similar to the new law's requirements, some of it may no longer be acceptable if the implementing regulations specify what types of documentation meet the requirements.
Identity documents issued by other state agencies may not currently require any of this documentation so more significant procedural changes with respect to document submission may be required for them to comply (if in fact it is determined that they should comply).
SB 1058, currently before the legislature, contains certain new procedures and requirements that could be affected by the new federal law. However, the changes proposed in the bill are aimed more at addressing several deficiencies in DMV's licensing and registration processes brought to light by recent arrests of a few DMV employees on criminal charges rather than the new federal law. The procedure envisioned under the new legislation would result in DMV issuing a temporary 60-day license to a new license applicant, most likely without a photo, while it checks the information that was submitted. DMV would subsequently mail the applicant his regular photo license if the information proves valid. The types of checks DMV would be doing would be to check the applicant's photo, name, and residence address against the other photos, names and addresses in its files to assure that a license has not already been issued to someone with the same photo, name, or address. This process may not work under the new federal requirements or may have to be modified once federal regulations make the process clearer.
● Document Verification
The new law's requirements for document verification may present some of the most difficult implementation issues for Connecticut. There are two significant requirements—document verification and maintenance of a storage database of source documents.
The law requires a state to “verify, with the issuing agency, the issuance, validity, and completeness of each document required to be presented…” (emphasis added). This could be a difficult process for DMV or any other state agency issuing complying licenses or ID cards. Even though DMV requires submission of a certified birth certificate as proof of birth date, it may still have to verify its validity with the authority that issued it, which might be in Connecticut or some other jurisdiction. Documents establishing the person's primary residence address would
also have to be verified with the authority that issued them. DMV's current method of verifying residence addresses through utility bills, lease or mortgage agreements, or postmarked mail may not work under the new requirements or could present verification problems.
Verification of social security account number does not in itself seem to present major implementation issues, since the mechanism for doing this is currently available. However, if the DMV finds that a social security account number is already registered to or associated with another person to whom any state has issued a driver's license or ID card, it must “resolve the discrepancy and take appropriate action.” It is not clear what a state may have to do to comply with this requirement, especially if it involves a document issued by another state, but it could prove time consuming or difficult.
The new law requires a state to employ technology to capture digital images of identity source documents so that they can be retained in electronic storage in a transferable format. More significantly, it requires the state agency to retain paper copies of source documents for at least seven years or images of source documents for a minimum of 10 years. Neither DMV nor any other state agency appears to do this now so it could raise significant logistic and cost issues to provide the capacity to do this for the millions of source documents that will have to be kept on file.
● Licenses and ID cards for Non-U.S. Citizens
The new law limits issuance of complying licenses and ID cards to specified categories of people who are not U.S. citizens or nationals. These include (1) aliens lawfully admitted for permanent or temporary residence or conditional permanent resident status; (2) someone with an approved application for asylum or who has entered the U.S. in refugee status; (3) someone with a valid, unexpired nonimmigrant visa or nonimmigrant visa status for U.S. entry; (4) someone with a pending application for asylum or a pending or approved application for temporary protected status; (5) someone with deferred action status; and (6) someone with a pending application for adjustment of status to that of an alien lawfully admitted for permanent residence or conditional permanent residence status.
Before issuing a driver's license or ID card, the new law requires a state to verify the applicant's lawful status. By September 11, 2005, the state must enter into a memorandum of understanding with the
Secretary of Homeland Security to routinely utilize the automated Systematic Alien Verification for Entitlements system to verify the legal presence status of anyone who applies for a driver's license or ID card who is not a U.S. citizen.
For several of the above categories of foreign applicants, the new law requires the state agency to issue only a temporary license or ID card and requires that it be valid only during the applicant's authorized stay in the U.S., or if there is no definite end to the period of authorized stay, for a maximum period of one year. The temporary license or card may be renewed only if the person shows valid documentary evidence that homeland security secretary has extended the status by which he initially qualified for the license or card. States must clearly indicate on the license or ID card that it is temporary and show its expiration date.
Connecticut law does not presently require DMV to check for a non-citizen's lawful status in the United States, although DMV requires this as a matter of policy. Depending on their particular situation or status, applicants must provide DMV with a specific federal form or document. The current administrative requirements do not duplicate the requirements of the new federal law.
Connecticut law also does not provide for either the temporary licenses and ID cards the federal law establishes for certain categories of aliens or for the length of stay limitation on the document. Legislative proposals for a length of stay limitation have been introduced in the last three legislative sessions, but not enacted. In the 2005 session, the Transportation Committee favorably reported SB 189. The Senate referred the bill to the Government Administration and Elections Committee, which did not report the bill back to the floor.
● Application of New Requirements to License Renewals
The new law does not specify whether its references to states issuing drivers' licenses and ID cards under the new standards and procedures applies only to newly issued licenses or cards or to both new issue and renewals of existing licenses and cards. However, one provision of the law directly addresses renewals. In order to comply with the new law, a state must “establish an effective procedure to confirm or verify a renewing applicant's information.” It is not clear whether this is supposed to be the same process of information verification through
issuing agencies the law requires for new applicants or some other process the state devises just for renewal applicants. If renewal applicants are to be subjected to the same rigorous identity verification process as new applicants, the agency's workload will be considerably more.
● Miscellaneous Issues
There are several other requirements of the new law that may have potential cost and administrative implications. A state agency must take a digital picture of every person who applies for a driver's license or ID card, not just those to whom it actually issues a license or card. The agency must retain the photo even if someone is denied a license or ID card because of insufficient documentation or documentation that is recognized as fraudulent. Apparently, this provision was intended as a deterrent to those who might try to fraudulently acquire a license and as an aid to federal law enforcement investigating suspected terrorism and identity theft. Complying state agencies will have to develop a way of storing this data.
State agencies must “ensure the physical security” of locations where drivers' licenses and ID cards are produced and the security of document materials and papers from which they are produced. States must also subject everyone who is authorized to manufacture or produce drivers' licenses and ID cards to “appropriate security clearance requirements.” The latter requirement apparently is intended to include both state personnel and any contractors the state employs. The law does not detail what the physical security and security clearance requirements may actually involve and this may not be known until the regulations are published. The Conference Report on H.R. 1268 suggests that the physical security requirements may extend beyond just license stock blanks to things like printing machines and computer drives on which license holder data is stored.
The new law requires states to establish fraudulent document recognition training programs for appropriate employees engaged in issuing licenses and ID cards. It also prohibits a state from issuing a driver's license or ID card to someone who has a license issued by another state until it has made certain that the other state's license has been terminated. This will require either confiscation of the other state's license or notifying the other state of the new license issue. Apparently, this provision is because several of the 9/11 terrorists told the states issuing them drivers' licenses that they had lost their licenses issued from other states and then used the new license to get another license in another state.
The new law requires each state's motor vehicle database to be electronically accessible to all the other states. This database must include all the information fields the state prints on its licenses and ID cards. It also appears that driver histories including motor vehicle violations, license suspensions, and license points must be part of this accessible database.
● Implications for Continued Use of AAA Offices for License Renewals
Connecticut drivers' licenses may be renewed through AAA Offices as well as DMV branches. Many of the new law's requirements may affect the viability of this arrangement. In particular, if the identity verification requirements have to be applied to license renewals as well as new issues, it could prove too burdensome for them to comply. Other requirements that may negatively affect use of AAA offices include the applicant photographing, physical security, employee security clearance, and fraudulent document training program requirements noted above.