STATE OF WASHINGTON
DEPARTMENT OF LICENSING
P.O. BOX 9020
Olympia, Washington 98507-9020

July 30, 1998

Docket Management
Room PL-401
National Highway Traffic Safety Administration
Nassif Building
400 Seventh Street, SW
Washington, D.C. 20590

Dear Sir or Madam: 

I am writing to comment on the National Highway Traffic Safety Administration's (NHTSA) proposed rules implementing section 656(b) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. The proposed rules raise some concerns that we would like you to consider in adopting the final rule. 

1. Washington State law provides for the issuance of driver's licenses clearly marked "not valid for identification purposes" where an applicant is unable to provide sufficient proof of identity. The Department requests that the federal rules include a section providing for the issuance of licenses so marked under these circumstances. 

The lack of a driver's license does not always prevent a person from driving. The lack of a license does, however, usually keep a driver from being insured. For purposes of traffic safety and financial responsibility, the Department believes it is essential that an option remain available to license those who cannot prove identity. Since the purpose of section 656(b) and these rules is to ensure that driver's licenses are acceptable as proof of identity, the issuance of a license clearly marked as being not valid for identification should not conflict with the intent of Congress. 

2. Section 1331.4(a)(1) provides that the application process must include presentation of one primary and one secondary document when application is being made for a duplicate license or identification card. Although this restriction makes sense given the current document processes used by Washington and other states, it would have a negative impact on some of the potential service deliveries we are anticipating should we proceed with our current proposal to adopt a digital driver licensing process. 

For example, one item under discussion in the development of our proposal for a digital driver's license involves the issuance of duplicate license documents. Under a digital system, it is expected that the Department would be able to display the stored digital image from the applicant's previously issued driver's license on a monitor at the service counter, and visually verify the applicant's identity by comparing the digital image with the person applying for the duplicate license. We'd suggest that this rule be amended to allow for issuance of a duplicate license if the identity of the applicant has been confirmed by on-line verification. 

3. Section 1331.4(a)(2) authorizes states to accept documents other than the primary and secondary documents listed in Appendix A and Appendix B in cases where an applicant cannot submit the required documents. However, this subsection also provides that such exceptions may only be made on an infrequent basis and "only in extreme circumstances, such as a fire or natural disaster." The way this proposal is currently worded, both circumstances must apply. The Department has sympathy for the requirement that this alternative procedure may be used on an infrequent basis, but we believe that the requirement for the existence of an "extreme circumstance" is unrealistic. 

Conceivably, there would be a number of reasons why a person wouldn't have access to any of the primary documents listed in the rule. However, as the rule is written, even if the person had every secondary document listed, the Department would not be able to issue a license to the person unless there was a natural disaster. We'd strongly request that the requirement for "extreme circumstances" be deleted from the final rule. 

4. Section 1331.4(b) requires that an applicant for a renewal license or identification card must present the current license or ID card. If the current license or ID card is not available, the applicant must present a primary and secondary identity document. As in comment number 2, above, this requirement doesn't seem to be necessary if the state has on-line verification. We would suggest that this rule be amended to provide for on-line verification. 

5. Section 1331.5 lists the form and security features required to be contained in the license or ID document, Included among the required features is the license classification, restriction(s), or endorsement(s) for a driver's license (1331.5(f)). The Department would respectfully submit that this provision is outside the scope of the rules authorized under section 656(b). License classifications, restrictions, and endorsements have no impact on the establishment of a person's identity or on the security of the license document. If NHTSA chooses to retain this provision, the Department would request an amendment clarifying that the required information may be included on the license document in coded format (such as the code "C" to indicate a restriction for corrective lenses). 

This section also requires that the document include a color photograph or image of the applicant (1331.5(g)). Although most of the licenses, and all of the ID cards issued by the State of Washington have photographs, the Department does issue licenses and instruction permits that are valid without photographs in some circumstances. For example, our License Service Representatives visit local schools to issue instruction permits to students enrolled in traffic safety education courses. Handling these students as a group is more cost effective than requiring each student to individually visit our field offices. Since we are unable to transport our cameras to the schools, the instruction permits issued in these situations do not have photographs. We request an amendment to this subsection indicating that states may issue documents that are valid without photograph in some circumstances. Such a provision could possibly be tied to the issuance of a document labeled "not valid for identification purposes," as suggested in comment number 1, above. 

6. Section 1331.6(a) requires that an applicant submit the Social Security Number (SSN) with an application for a license or ID card, and that the state verify the validity of the SSN electronically with the Social Security Administration. It is not clear from this that the state would be required to maintain the SSN on the driver's record. The authority of the Department to maintain the SSN on a driver's record has been a point of controversy within this state. The Department may have problems maintaining the SSN on its records unless this rule is amended to include a specific requirement that the state retain the SSN on record. 

7. Section 1331.6(d) requires that a person who claims not to have a SSN must sign a certifying statement to that effect. This provision would appear to severely weaken the requirement to submit a SSN, as anyone philosophically opposed to the concept of using a SSN, or anyone attempting to establish a fraudulent identity would be inclined to claim that they do not have one. 

Since the Department has had numerous contacts with "sovereign" citizens who believe that they have withdrawn from participation in the Social Security program, we anticipate that a number of such citizens would be willing to sign the certifying statement in the perhaps mistaken belief that they are not required to have a SSN. Perhaps this problem could be alleviated by amending the rule to include a requirement that persons signing a certifying statement must present a letter or other documentation from the Social Security Administration indicating that they are not required to have a SSN. 

8. Appendix A lists primary identity documents which must be submitted with an application for a license or ID card. This list includes birth certificates, which the Washington State Legislature has determined to be too unreliable to be used in establishing identity. 

Since a juvenile applicant probably doesn't have any of the other items listed as primary documents, Washington State law provides that identity can be verified by an affidavit from the applicant's parent or guardian. Under the proposed rule, such affidavit may only be used as a secondary document. The Department requests that the rule be amended to include the parental affidavit in the list of primary documents, provided that the parent or guardian can provide at least one piece of primary documentation establishing his or her own identity, along with additional documentation establishing the relationship between the parent or guardian and the applicant. 

Washington State law includes government employee ID cards, issued by the United States, a state, or an agency of either the United States or a state as primary documents, provided it includes a photograph and signature. This provision has been especially helpful for the State of Washington because of the civilians employed by the large military bases and other federal installations in this state. The Department requests that this rule be amended to include such governmenta11y issued employee ID cards. 

9. Appendix B, which lists secondary documents, indicates that Tribal identification cards are not acceptable as secondary documents. However, Appendix A recognizes state and Canadian issued photo identification cards as primary documents. Given the sovereign status of federally recognized Indian Tribes, the Department believes that not accepting Tribal identification cards as primary documents could potentially raise significant issues regarding Tribal sovereignty and differential treatment of Tribal members. 

If NHTSA chooses not to accept Tribal ID cards as primary documents, the structure of Appendix B on this issue is somewhat confusing. Subsection (2) prohibits the use of Tribal ID cards as secondary documents, but then notes, in a parenthetical comment, that local DMVs should make their own determination as to whether or not to accept a Tribal ID card. The Department recommends that NHTSA delete the prohibition on the use of Tribal ID cards as secondary documents, and merely include the comment that local DMVs must determine on their own whether a Tribal ID card will be acceptable. 

The Department appreciates the opportunity to comment on the proposed rules. If you should have any questions regarding our concerns, please contact Clark Holloway, Licensing Services Manager, at (360) 902-3846. 

Judith Giniger 

Assistant Director