whosTheHelmsman tall

December 2012

Who’s the Helmsman?

No extensions have been made. January 15, 2013, is set as the definitive deadline for all 56 driver’s license and identification granting jurisdictions (referred to from now on simply as “states”) to comply with the standards set forth by the 2005 REAL ID Act and subsequent regulation. In response, federal agencies have compiled information on how states have been adjusting to the compliance standards promulgated under the law.

The findings from these agencies paint sundry illustrations of the status of states’ compliance aggregately. The Department of Homeland Security (DHS), which has the primary duties of establishing how states can comply with REAL ID standards and making final compliance rulings, issued a progress report in late August announcing that a large majority of states are complying with the benchmarks established. In spite of DHS’s sunny account, an audit by the Government Accountability Office (GAO), released in September, describes disparate findings that DHS has not provided timely and comprehensive guidance on how states should seek REAL ID compliance. In essence, DHS is forecasting a clear voyage ahead based on current data, yet the GAO claims that states are navigating murky waters without the direction of a steadfast captain.

Passed in 2005, the REAL ID Act strengthens rules on how states issue driver’s licenses and identification cards and sets minimum-security standards for them. In 2008, DHS published the subsequent REAL ID regulation. Some states have decided not to comply with the Act. In fact, 17 of them have passed legislation in opposition of Real ID compliance as of July 2012. Notwithstanding, they are required to issue driver’s licenses based on procedures instituted by the Act if those forms of identification are going to be accepted by federal agencies for “official purposes,” as defined by the Act. If states are affirmed to be compliant, individuals holding those IDs will be allowed to use them for official purposes.

Congress has appropriated a total of $295 million to date in REAL ID program funds to both the Federal Emergency Management Agency (FEMA) and the U.S. Customs and Immigration Services (USCIS) to aid states working to meet the requirements of REAL ID. FEMA awarded the first REAL ID grant awards in 2008. Of the total appropriated, FEMA has awarded more than $263 million in grants to states to conform to REAL ID standards.

Full Speed, Straight Ahead

Obligated by legislative authority, DHS released its latest progress report in August of this year detailing that a majority of states have complied with the standards set forth through the 2005 piece of legislation. According to the report, 83 percent of the material compliance benchmarks have been or will be met by the 56 states that issue identifications.

Eighteen compliance benchmarks were created surrounding the following areas: identity assurance procedures, license information and security features, secure business processes, employee training and background checks, and privacy protections. As of February 2012, 26 states have committed to meet all material compliance benchmarks; 21 states will meet next year’s deadline; and five will not. Thirty-seven states will meet the 15 benchmarks that constitute the certification packages submitted to DHS for approval. DHS relied heavily on grant reporting information to document the progress made by states in improving the security of their driver’s licenses and identification cards. Fifty states reported information based on grant requirements.

With each state reporting independently to DHS on grant performance measurement, rather than adherence to the Act or regulation, states may have underreported or over reported whether or not they have met true compliance. Ultimately, this leaves a profound burden on DHS to lead the states in understanding what federal expectations must be met in order for state-issued identity credentials to continue to qualify as legitimate documentation for federal purposes.

Navigating an Uncertain Future

While law required the creation of the DHS report, GAO investigators independently examined three areas involving identification fraud and verification, and communicated their recommendations per a request from congressional officials. Auditors interviewed administrators from 11 states and found that out-of-state documents are where states had the most difficulty verifying their authenticity, and, similarly, birth certificates also proved a quandary.

The GAO discovered through its interviews with state officials that the states desperately need further guidance on complying with the provisions of REAL ID, specifically those related to identity verification for the purposes of the audit. For instance, DHS did not issue formal, written guidance in this area for more than four years after issuing final regulations. Specific concerns arose from state officials on whether the pending rules they proposed for their states would be compliant with REAL ID. This makes sense because, should the states initiate the extensive and time-consuming work involved in perpetuating what eventually becomes a non-compliant rule, they would find themselves in the uncomfortable position of having to reevaluate the issue at great cost to the state coffers and administrative staff during a time when resources have been constrained more than ever.

DHS has indicated it does not intend to make plans to promote certain alternatives over others, the rationale being that states can use varying methods toward compliance with the Act’s identity verification requirements and their ability to combat cross-state and birth certificate fraud. Instead, DHS officials said they want to give states “opportunities to develop innovative solutions and flexibility to consider their own circumstances.” Officials in some states indicated they particularly needed direction from DHS in this area.

In response to the GAO’s recommendations, DHS disagreed with the counsel provided. Both of the GAO’s suggestions revolved around DHS working with state, federal and other partners to develop solutions to reduce cross-state license and birth certificate fraud. As an example of how DHS cited its allowing states to guide what is essentially their own destiny towards compliance, the agency noted the REAL ID grants given to the Driver’s License/Identification Verification System(s) consortium of 27 states, directed by Mississippi, for the purposes of cross-state identity verification. DHS says that states have the flexibility to design and implement their own solution guided by the states, not the agency.

Home Port in Sight

Over the last five years, some state officials have been prepping and grooming their civil servants for the impending REAL ID changes, while others have balked and challenged the changes derived from the federal government. With the deadline solidified, DHS reports a clear passageway to home port for a majority of states. Certain states report a sinking feeling, though. From the sample of states surveyed by the GAO, they identify that one of the main hindrances to state compliance with REAL ID has been a lack of direction. Eighty-three percent of material benchmarks being met by states is a stunning statistic, but only 21 states will meet all 18 standards by the deadline.

For more information, visit aamva.org