Home » 2008 Issues » June 18, 2008 » MTV-25-08-00012-E Authorizes the Fingerprinting of Certain Employees who are Involved in the Issuance of Enhanced Driver's Licenses
MTV-25-08-00012-E Authorizes the Fingerprinting of Certain Employees who are Involved in the Issuance of Enhanced Driver's Licenses
6/18/08 N.Y. St. Reg. MTV-25-08-00012-E
NEW YORK STATE REGISTER
VOLUME XXX, ISSUE 25
June 18, 2008
RULE MAKING ACTIVITIES
DEPARTMENT OF MOTOR VEHICLES
EMERGENCY RULE MAKING
I.D No. MTV-25-08-00012-E
Filing No. 538
Filing Date. Jun. 03, 2008
Effective Date. Jun. 03, 2008
Authorizes the Fingerprinting of Certain Employees who are Involved in the Issuance of Enhanced Driver's Licenses
PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:
Action taken:
Amendment of Part 3 of Title 15 NYCRR.
Statutory authority:
Vehicle and Traffic Law, sections 215(a), 508(1) and (4)
Finding of necessity for emergency rule:
Preservation of public health, public safety and general welfare.
Specific reasons underlying the finding of necessity:
It is necessary for the issuance of the enhanced driver's license, which shall increase the security of New York State's border crossing areas.
Subject:
Authorizes the fingerprinting of certain employees who are involved in the issuance of enhanced driver's licenses.
Purpose:
To authorize the fingerprinting of certain employees who are involved in the issuance of enhanced driver's licenses.
Text of emergency rule:
Section 3.3 is amended by adding a new subdivision (f) to read as follows:
No employee or agent of the Department of Motor Vehicles shall be involved in the issuance of an enhanced drivers license or non-driver identification card, pursuant to section 503(2)(f-1) or 491(2) of the Vehicle and Traffic Law, unless such employee or agent: 1) is a United States citizen, and 2) has undergone a State and FBI fingerprint based criminal history background check, as required under an agreement between the Department of Motor Vehicles and the federal Department of Homeland Security, entered into pursuant to 8 CFR 235.1 and section 7209 of the intelligence reform and terrorism prevention act of two thousand four, public law 108-458, and such search indicates that such employee or agent has not been convicted of, or charged with, a disqualifying offense as set forth in 49 CFR 1572.103.
This notice is intended
to serve only as a notice of emergency adoption. This agency intends to adopt this emergency rule as a permanent rule and will publish a notice of proposed rule making in the State Register at some future date. The emergency rule will expire August 31, 2008.
Text of emergency rule and any required statements and analyses may be obtained from:
Carrie L. Stone, Counsel's Office, Department of Motor Vehicles, Six Empire State Plaza, Rm. 526, Albany, NY 12228, (518) 474-0871, e-mail: carrie.stone@dmv.state.ny.us
Regulatory Impact Statement
1. Statutory authority: Vehicle and Traffic Law (VTL) section 215(a) provides that the Commissioner of Motor Vehicles may enact rules and regulations that regulate and control the exercise of the powers of the Department. VTL section 508(1) provides that the Commissioner shall appoint agents to act on his behalf to issue drivers licenses and authorizes him or her to prescribe internal procedures to be followed by such agents with respect to such matters. VTL section 508(4) authorizes the Commissioner to promulgate regulations with respect to the administration of the provisions of Article 19, Licensing of Drivers.
2. Legislative objectives: The Intelligence Reform and Terrorism Prevention Act of 2004, Public Law 108-458, established several measures to enhance the security of the United States. One proposal was the Western Hemisphere Travel Initiative (WHTI), as set forth by the Department of Homeland Security (DHS) in the June 26, 2007 and April 3, 2008 Federal Registers. A key component of WHTI is the issuance of an enhanced driver's license (EDL) that will enable US citizens to more easily enter the United States at land and sea crossings. DHS has issued a mandatory policy directive that employees may only issue EDLs if such employees are United States citizens and have been subject to a criminal history check. This proposed regulation, which subjects certain Department of Motor Vehicle and county employees to a criminal history check and requires verification of U.S. citizenship, is necessary to comply with the DHS policy directive.
3. Needs and benefits: As explained above, WHTI is a plan devised by the United States Department of Homeland Security pursuant to the Intelligence Reform and Terrorism Prevention Act of 2004. Under WHTI, all travelers must present a secure document, such as a passport or other document, which denotes citizenship and identity when entering or departing the United States from within the Western Hemisphere. An enhanced driver license and enhanced non-driver photo identification card are documents designated as secure and acceptable documents under WHTI for land and sea travel border crossings. These enhanced documents will contain a vicinity Radio Frequency Identification (RFID) chip, and a Machine Readable Zone (MRZ) that can be scanned, to facilitate border and port processing, as well as include physical security features that will guard against tampering. The RFID technology will allow a device to read information contained in a wireless device or “tag” from a distance without making any physical contact or requiring a line of sight between the two.
The EDL, available only to US citizens, will enable its holders to more easily cross land and sea borders. It is critical to maintaining New York State's significant commercial and tourism relationship with Canada, with which we share a 445 mile border. It will also enhance our security be allowing Custom's officials to more readily screen those passing through our borders.
DHS policy mandates that employees who are involved in the issuance of EDLs must be U.S. citizens and be subject to criminal history checks. There are approximately 900 DMV employees and 900 county employees, who act as agents of the DMV Commissioner pursuant to Vehicle and Traffic Law section 205, who will be involved in the issuance of EDLs. These employees must be screened for citizenship and fingerprinted in accordance with DHS directive. The employees' prints will be transmitted to the Division of Criminal Justice Services for a State and federal criminal history check. Thus, this rulemaking is necessary to require such employees to be screened for citizenship and be fingerprinted prior to issuing EDLs.
4. Cost: To the State: DMV expects to purchase three Livescan units that perform electronic fingerprinting at a cost of about $152,000. The Livescan machines will be used to fingerprint DMV employees. The counties will choose the method appropriate to them, but for many, it will be the ink and roll method. In addition to assuming the cost of fingerprinting all DMV employees, the Department will assume the cost of fingerprinting county employees who are employed prior to the implementation date of EDL issuance, which is targeted for late summer 2008. An ink and roll fingerprint costs $61.00 per employee. A Livescan fingerprint costs $38.00 per employee. Thus, fingerprinting all DMV employees using Livescan would cost about $34,200.00. We cannot estimate the cost of fingerprinting county employees because we do not know how many will use Livescan and how many will use ink and roll.
5. Local government mandates:
Cost to local governments: DMV will assume the cost of fingerprinting county employees who are hired prior to the implementation of EDL issuance, which is targeted for late summer 2008. This will minimize the adverse impact on local governments.
6. Paperwork: DMV will develop a system to track employees who have been fingerprinted and the results of the fingerprint check. Each county will be responsible for keeping track of its employees. DMV and each county will develop processes to validate citizenship, such as reviewing an employee's birth certificate or passport.
7. Duplication: This proposed regulation does not duplicate or conflict with any State or Federal rule.
8. Alternatives: No other alternatives were considered. A “no action alternative” is not viable, because DHS requires that certain employees must be U.S. citizens and be fingerprinted in order for them to issue EDLs.
9. Federal standards: This rule does not exceed or conflict with any federal law or regulation.
10. Compliance: Upon adoption of the regulation.
Regulatory Flexibility Analysis
1. Effect of rule: This proposal does not affect small businesses. Fifty-one counties will need to validate their employees' citizenship status and fingerprint those employees who will be involved in the issuance of Enhanced Drivers Licenses (EDLs). DMV estimates 900 county employees will be subject to the fingerprint requirement. In addition, approximately 900 DMV employees will be fingerprinted.
2. Compliance requirements: All county employees who are involved in the issuance of EDLs shall be subject to the criminal history check and citizenship verification.
3. Professional services: None are mandated. For example, the county may choose to use the local sheriff's department as a fingerprinting resource. The county, however, may contract with a vendor to purchase Livescan equipment for electronic fingerprinting.
4. Compliance costs: DMV will pay the costs to fingerprint county employees who are employed by the county prior to the implementation of the EDL program, which is targeted for the summer 2008. The county would assume the cost of purchasing a Livescan machine, which costs about $50,000 per unit.
5. Economic and technological feasibility: The county may utilize the ink and roll fingerprinting technique or may purchase Livescan machines that electronically fingerprint individuals.
6. Minimizing adverse impact: The Department will minimize the impact by paying the cost of fingerprinting county employees who are employed by the county prior to EDL issuance, which is targeted for late summer 2008. DMV has had numerous meetings and contacts with the 51 county clerks who will be impacted by the program. DMV will continue to assist them with developing procedures to implement the EDL program.
7. Small business and local government participation: The Department has met with the 51 county clerks on several occasions to assist them with implementing the EDL program. DMV has a County Clerk liaison who works with the clerks on a daily basis to address their concerns.
Rural Area Flexibility Analysis
A Rural Area Flexibility Analysis is not attached because this rule will not impose any adverse economic impact or reporting, recordkeeping or other compliance requirements on public or private entities in rural areas.
Job Impact Statement
A Job Impact Statement is not submitted with this rule because it will not have an adverse impact on job creation or development. DMV and county employees who are not U.S. citizens and/or who are found to have been convicted of a disqualifying offense pursuant to a criminal history check will not be terminated. Such employees will perform other motor vehicle related services that do not involve the issuance of the Enhanced Drivers License (EDL), such as issuing registrations or non-EDLs.
