CR 23-042 Rule Text

STATE OF WISCONSIN

DEPARTMENT OF TRANSPORTATION

OFFICE OF THE SECRETARY

PROPOSED ORDER ADOPTING PERMANENT RULE

The Wisconsin Department of Transportation proposes an order to: Repeal Trans 102.02 (4), 102.025 (2) (Note), 102.09 (4), (6), 102.10, 102.11 (2) (Note), 102.17, 102.18, and 102.20 (2) (i) (Note); Renumber and amend Trans 102.02 (6n) and (8), 102.025 (2), and 102.09 (title), (1), (2), and (3), (5); Amend Trans 102.02 (4p), (Note), (6r) (a), (7) (a), (b), and (7m), 102.025 (title), (3) (a) (intro.), 102.07 (title), 102.11 (title), (1) (intro.), 102.20 (2) (g), (10) (a) (Note), (13) (a), 102.21 (2) (b) and (4), and 104.06 (3) (a) (intro.), 1., and 2. and (Note); Repeal and recreate Trans 102.02 (6), (9), and (10), 102.03, 102.04, 102.07 (2), (3), 102.11 (2), 102.14, 102.15, 102.16, 102.19, and 102.20 (2) (i); Create Trans 102.02 (4s), (7p), (7r), (7v), and (11), 102.025 (1e), (1m), (1s), (2) (a), (b), (c), (3) (a) 6., 102.11 (3), (Note), (4), (5), (6), (Note), 102.145, 102.21 (1) (am), (2am), and 102.24, relating to operator’s licenses and identification cards.

The Statement of Scope for this Permanent Rule, SS-034-22, was approved by the Governor on April 14, 2022, published in Register No. 794B on April 22, 2022, and approved by the Secretary of the State of Wisconsin Department of Transportation (department) Craig Thompson, as required by s. 227.135 (2), Stats., on March 22, 2022. The analysis below was prepared by the department.

ANALYSIS

Statutes Interpreted: Chapters 340 and 343, Stats.

Statutory Authority: Sections 85.16 (1); 343.02; 343.055 (1) (a) and (5); 343.06 (1) (c), (cm), (e), (g), and (3); 343.065 (1) and (3) (b); 343.07 (4) (b) and (c), 343.085 (1) (b), (2m) (b) 1. a., (3), and (5); 343.12 (2) (dm), (4) (b), (7) (a), (c), (d), (8) (a), (b), and (c); 343.14 (2) (i) 1. and 2.; 343.15 (1) (a), (4) (a), 343.16 (1) (a), (2) (a), (c), and (d); 343.165 (5); 343.17 (6); 343.20 (1) (c) and (d) 2.; 343.21 (3); 343.247 (2) (a); 343.305 (11); 343.315 (2) (d); 343.32 (2) (a), (4), and (5); 343.43 (1) (f); 343.51 (2) (a) and (2m) (b); and 343.61 (4) (b) and (5m), Stats.

Explanation of Agency Authority: Section 343.02 (1), Stats., requires the department to administer and enforce ch. 343, Stats., and provides authority for the department to promulgate such rules as the secretary considers necessary to effectuate that end. The department has broad authority to adopt rules to implement and enforce the various provisions of ch. 343, Stats., relating to driver licensing and issuance of identification documents. The department is required to adopt rules consistent with federal REAL ID and commercial driver licensing requirements.

Related Statute or Rule: Chapters 340-349 and 351, Stats.

Plain Language Analysis: This rulemaking will bring Wisconsin into compliance with federal REAL ID and commercial driver statutes and regulations. Congress passed the REAL ID Act in 2005 which implemented the 9/11 Commission’s recommendation to “set standards for the issuance of sources of identification, such as driver's licenses.” http://www.dhs.gov/real-id-public-faqs. On or after May 2025, it is expected that federal agencies will only accept REAL IDs for official federal purposes, which includes boarding federally regulated commercial aircraft, accessing federal facilities that require identification to enter, and entering nuclear power plants.

This chapter pertains to any person applying for a Wisconsin original, reissue, reinstatement, renewal, or duplicate operator's license or identification card (ID), and vehicle title or registration. To ensure that Wisconsin driver license and ID holders can continue to use their licenses and IDs for federal official purposes, this rulemaking conforms to the Wisconsin statutes and federal laws related to the issuance of driver licenses and IDs, including the Federal Commercial Motor Vehicle Safety Act of 1986 and the Federal Real ID Act of 2005, as amended, and federal regulations implementing those laws. The federal REAL ID standards, however, do not permit the use of a number of mechanisms Wisconsin has long accepted as sufficient identification for purposes of driver licensing or obtaining a state ID. Accordingly, consistent with existing statutes, this rule proposes to permit use of documentation long accepted in this state for those purposes as sufficient for obtaining a product that does not meet federal REAL ID standards, but that meets Wisconsin standards. Those products will bear a notation indicating they are not valid for federal identification purposes and will not carry the REAL ID star logo. Inclusion of a photograph of the driver and social security number in the Wisconsin Division of Motor Vehicles (DMV) database of driver files advances this security goal, regardless of whether the license document issued to the individual is REAL ID compliant.

Notwithstanding the new documentation and verification requirements for issuance of a DMV product, s. 343.165 (7), Stats., grants DMV broad authority to ignore those new requirements if the product issued does not contain the “REAL ID star” that indicates compliance with federal REAL ID standards and if the product is issued “in compliance with applicable department practices and procedures that were in effect on December 31, 2012.” Section 343.165 (5) and (7), Stats., allows the department to continue to apply old practices and procedures during the conversion of Wisconsin to issuance of REAL ID compliant licenses. This rulemaking allows persons who were issued REAL ID non-compliant products prior to January 1, 2013, to renew those products without verifying legal status, identity, or documents provided in support of their application.

Section 1. Repeals the definition “centrally issued” because the term is not used in ch. Trans 102.

Section 2. Deletes mention of fees from s. Trans 102.02 (4p) because duplicate ID card products may be issued without charge under s. 343.50 (5) (a) 3., Stats. The note to that provision is also amended to direct readers to the statutory provisions related to duplicate product fees.

Section 3. Creates a definition for “extension card.” An extension card amends an existing product by extending its expiration date. A person who arrives at a DMV customer service center without documentation needed for the type of product they seek may have their existing product extended for 60 days to provide the person with an opportunity to gather the needed documentation.

Section 4. Repeals the definition “license examiner.” The term was only used in s. Trans 102.15 (5) (a), which is also repealed by this rulemaking. Instead, this rulemaking recreates s. Trans 102.02 (6) to define “material change.” This term is used only once in this chapter, in s. Trans 102.14 (8) (b), when discussing facts that will cause DMV to require an in-person appearance to renew a product. The definition is drawn from federal REAL ID regulations and is intended to be interpreted and applied consistent with those regulations. The drafting style mimics the federal regulation and includes the definition similar to 6 CFR 37.3 in the rule rather than incorporating the provisions directly in s. Trans 102.14 (8) (b). The rule’s intent is to parallel the federal style and follow the federal REAL ID requirements for product issuance. Though the Legislative Reference Bureau recommends only incorporating definitions when the definition is used more than once, (LRB Admin Rules Manual s. 1.07 (1)), “material change” is intentionally created to mirror federal regulations.

Section 5. Renumbers a section to conform with rule drafting style. “Motor vehicle service center” is replaced with the department’s preferred usage, “DMV customer service center.”

Section 6. Amends definition, “name” to parallel the requirements under 6 CFR 37.3, which defines “full legal name.” The rule requires the entire middle name rather than only a middle initial. Unlike the federal regulation, Wisconsin drafting standards do not use “(s)” to express the possibility of a term being used in the singular or plural form. Instead, that is a default rule of statutory interpretation under s. Trans 102.02 (intro.) and s. 990.001 (1), Stats. Persons with multiple first, middle, or last names must provide all their names under this regulation. No other information, aside from generational suffixes, are permitted as part of the name. This includes titles of respect, such as Mr., Ms., Mrs., or Dr.

This section also substitutes “license or identification card” for “product” (See Section 10) and deletes the requirement that a photo must be printed.

Section 7. Creates the definition “product” as a shorthand for licenses, IDs, driver receipts, and other documents. This is consistent with DMV internal administrative practice and reduces the need to repeatedly describe licenses, identification cards, driver receipts, and other documents. The term “product” is substituted for “license,” “identification card,” and similar terms throughout the rule.

Similarly, created s. Trans 102.02 (7r) defines “REAL ID” to describe products issued in a manner that meet federal identification requirements for such purposes as air travel and entering federal courthouses. A REAL ID can be identified by a star on the face of the document. The primary federal regulations related to REAL ID requirements are found at 6 CFR part 37.

Section Trans 102.02 (7t) defines “REAL ID non-compliant product” to describe any product issued by the department that does not meet the federal REAL ID standards. These products do not bear the REAL ID star indicator and may bear a notation that the product is not valid for federal identification purposes.

Section 8. Amends a definition to improve readability. As amended, “reinstate” distinguishes actions that can be taken to terminate licenses from those taken to terminate ID cards. ID cards, for example, cannot be disqualified in the same way a commercial driver license may be disqualified if the driver holding the license is disqualified under state or federal law. ID cards may only be cancelled whereas licenses may be cancelled, suspended, revoked, or disqualified.

Section 9. Repeals and recreates two definitions. Under this chapter, “resident” includes persons who are living in the United States. Foreign visitors who hold a visa, such as a student visa, may qualify for a Wisconsin driver license as a Wisconsin resident, even though their federal resident status is temporary by virtue of their temporary visa. Products issued to such persons are labeled to identify the persons as temporary visitors or non-domiciled CDL holders as set forth in s. Trans 102.17.

This section also defines “social security number” (SSN) as the entire 9-digit number. For identification issuance purposes under this chapter, a partial number is not acceptable.

Section 10. Defines “verify” to mirror the U.S. Department of Homeland Security (DHS) requirements set forth at 6 CFR 37.13, which double-checks the authenticity of identity documents such as driver licenses, social security cards, visas, and passports. The verification process is designed to check whether any source document presented as part of an application is genuine and has not been altered, and whether the identity data contained on the document is valid. The definition parallels the federal REAL ID definition of “verify” found in 6 CFR 37.3.

Section 11. Amends a section title to include the verification process and for improved readability.

Section 12. Creates three subsections. Under created s. Trans 102.025 (1e), all documents presented in connection with an application for a product must be genuine and valid, except that ch. Trans 102 permits expired documents to be used as proof of identity in limited situations. These requirements are consistent with 6 CFR 37.11 (c), which require unexpired valid documentation to qualify for REAL ID issuance. Federal documents issued by the U.S. Customs and Immigration Service (USCIS) are not considered expired if they are extended by an I-797 Notice of Action or other official USCIS action extending the term of the document.

Section Trans 102.025 (1m) imposes the signature and date requirements set forth in 6 CFR 37.11 (b), which requires applicants be subject prosecution for perjury under 18 USC 1621 and 28 USC 1746 if they falsify an application for a REAL ID compliant product. This section also requires the affirmation, applicant signature, and date the applicant signed before the department may accept the application. The last sentence of the provision requires all three items be included in an application before acceptance. A product issued upon an application accepted in error may be cancelled. See s. 343.25 (4), Stats.

Section 343.165, Stats., and 6 CFR 37.13 require the department to verify the authenticity of SSNs and documents presented with an application for a driver license or ID. Created s. Trans 102.025 (1s) implements 6 CFR 37.13, which requires the department to verify SSNs and documents presented as part of driver license or ID application. This regulation requires DMV to verify at least the minimum number of documents, the data in those documents, and the applicant’s SSN in the manner required by federal law before issuing any license or ID card bearing the federal REAL ID compliant symbol. SSNs are verified, but original cards are not required for REAL ID issuance. Consolidated Appropriations Act of 2021, Public Law 116-260, s. 1001(c) 134 Stat. 2306. If the department determines that an applicant submitted an invalid SSN or document, the department will decline to issue the product and may retain possession of the allegedly false document.