15-2400-12821-1

STATE OF MINNESOTA

OFFICE OF ADMINISTRATIAVE HEARINGS

FOR THE MINNESOTA DEPARTMENT OF PUBLIC SAFETY

In the Matter of the Proposed Amendments

to Rules Relating to Identification REPORT OF THE

Documents, Minnesota Rules ADMINISTRATIVE LAW JUDGE

Parts 7410.0400, 7410.0425, 7410.0450

and 7410.0500.

Administrative Law Judge Beverly Jones Heydinger conducted a hearing on these proposed rule amendments beginning at 9:00 a.m. on June 13, 2000, in Room 300 South, State Office Building, 100 Constitution Avenue, St. Paul, Minnesota. The hearing continued until everyone present had an opportunity to state their views on the proposed rules.

This Report is part of a rulemaking process governed by the Minnesota Administrative Procedure Act.[1] The legislature has designed the rulemaking process to ensure that state agencies have met all the requirements that Minnesota law specifies for adopting rules. Those requirements include assurances that the proposed rules are necessary and reasonable and that any modifications that the agency may have made after the proposed rules were initially published are not impermissible substantial changes. The rulemaking process also includes a hearing, when a sufficient number of persons request one. The hearing is intended to allow the agency and the administrative law judge reviewing the proposed rules to hear public comment regarding the impact of the proposed rules and what changes might be appropriate.

Michael Pahl, Assistant Attorney General, 525 Park St., Suite 200, St. Paul, Minnesota 55103-2106, appeared as the attorney for the Department of Public Safety (“Department”). Several Department employees were on a panel available to provide the public with information about the proposed rules and to answer any questions. The panel members were: Don Southwick, regional supervisor, examining and inspections; Jim Nuessle, regional supervisor, examining and inspections; Karen Allen, station supervisor, Midway, Driver and Vehicle Services; Jane Nelson, management analyst, Driver and Vehicle Services. In addition to the Department employees, Charles R. Midby, supervisory special agent, United States Department of Justice, Immigration and Naturalization Service (INS), also testified for the Department. Approximately fifty members of the public attended the hearing. Forty-eight members of the public signed the hearing register.

After the hearing ended, the record remained open for ten calendar days, until June 23, 2000, to allow interested persons and the Department an opportunity to submit written comments.[2] During this initial comment period the administrative law judge received 39 written comments. Following the initial comment period, the record remained open for an additional five business days to allow interested persons and the Department the opportunity to file a written response to the comments submitted. The deadline for response to the comments was June 30, 2000. Seven responsive comments were received. The hearing record closed for all purposes on June 30, 2000.

NOTICE

The Department must make this Report available for review for at least five working days before the Department takes any further action to adopt final rules or to modify or withdraw the proposed rules. During that time, this Report must be made available to interested persons upon request. If the Commissioner of Public Safety makes changes in the rules other than those recommended in this Report, he must submit the rules, along with the complete hearing record, to the Chief Administrative Law Judge for a review of those changes before he may adopt the rules in final form.

After adopting the final version of the rules, the Department must submit the rules to the Revisor of Statutes for a review of their form. After the Revisor of Statutes approves the form of the rules, the rules must be filed with the Secretary of State. On the day of that filing, the Department must give notice to everyone who requested notice of that filing.

Based upon all the testimony, exhibits, and written comments, the Administrative Law Judge makes the following:

FINDINGS OF FACT

Procedural Requirements

1. On November 29, 1999, the Department published a Request for Comments on Planned Amendments to Rules at 24 State Register 767-768.[3] The Department mailed the Request for Comments to those individuals on its rulemaking mailing list.[4] The Request for Comments was also posted on the Department‘s web page.[5]

2. A Memorandum dated November 22, 1999 was sent to all driver’s license agents, deputy registrars, and state examination stations requesting that the Request for Comment be posted in each location.[6]

3. On March 30, 2000, the Department requested that a hearing be scheduled and filed the following documents with the Chief Administrative Law Judge:[7]

a. A copy of the proposed rules certified as to form by the Revisor of Statutes;[8]

b. The Statement of Need and Reasonableness (SONAR);[9]

c. The Dual Notice proposed to be published;[10] and

d. The Department’s request for prior approval of its Notice Plan for giving Dual Notice.[11]

4. Administrative Law Judge Beverly Jones Heydinger approved the Department’s Notice Plan on April 5, 2000.[12]

5. The Department mailed the Dual Notice of Hearing to all persons and associations who had registered their names with the agency for the purpose of receiving such notice.[13]

6. The Dual Notice of Hearing was published on April 24, 2000, at 24 State Register 1527-1532.[14] It was also posted on the Department’s web page.[15] A memorandum dated April 19, 2000, was sent to all deputy registrars, licensing agents and inspection stations requesting that the notice and rules be posted, with a copy of the notice, rules and Statement of Need and Reasonableness.[16]

7. The Department received many comments and over twenty-five requests for a hearing on this matter.[17]

8. On May 24, 2000, the Department mailed a notice to all persons who requested a hearing, and to all persons on additional mailing lists of interested persons, notifying them that a hearing would be held.[18]

9. On the day of the hearing, the Department placed the following additional documents into the record:[19]

a. Certificate of Agency Rulemaking Mailing List, current as of November 8, 1999, with a copy of the list attached.[20]

b. Additional mailing list, dated October, 1999, of entities interested in the identity rule.[21]

c. Certificate of Agency Rulemaking List, current as of April 19, 2000, with a copy of the list and the notice and proposed rules as mailed attached.[22]

d. Additional mailing list of interested persons as of April, 2000, to whom notice, rules and Statement of Need and Reasonableness were mailed.[23]

e. Press Release dated April 24, 2000, announcing proposal of rule amendments, with a list of all electronic and printed media to whom the release was faxed, and a copy of the release as published on April 25, 2000, in the Minneapolis Star Tribune.[24]

f. Letter dated April 5, 2000, mailing copy of Statement of Need and Reasonableness to Legislative Reference Library, and certificate of mailing.[25]

g. Letter dated April 19, 2000, to chairs of various legislative committees and authors of legislation.[26]

10. The Department has met all of the procedural requirements under the applicable statutes and rules.

Background and Nature of the Proposed Rules

11. This rulemaking proceeding involves amendments to existing rules of the Minnesota Department of Public Safety governing identity documents that must be presented when applying for a Minnesota driver’s license, instruction permit, Minnesota state identification card or motor vehicle title. Before a driver’s license, state identification card or instruction permit is issued, the Driver and Vehicle Services Division (DVS) must have reasonable assurance that the individual is the person named on the application. State law requires a full name, residence address, date of birth, signature identifying information and photo on the driver’s license and state identification card.[27] For vehicle titles, the full name and address are required.[28]

12. These rules were last revised to address problems with the presentation of fraudulent documents. Because of improved technology some of the proposed amendments ease standards and will improve customer service. Others are proposed to address continued problems with fraud and presentation of credible identity documents.[29]

Statutory Authority

13. Minnesota Statutes, section 168A.04, subd. 1, requires the applicant for a certificate of title to make application on a form that contains the applicant’s first, middle and last name, date of birth and address. Minnesota Statutes, section 16A.24, provides general authority to “adopt and enforce such rules as may be necessary to carry out the provisions of sections 168A.01 to 168A.31.”

14. Minnesota Statutes, section 171.02, subd. 3, addresses permits to be issued for motorized bikes and authorizes the commissioner to promulgate rules prescribing the “information to be contained on the permits.”

15. Minnesota Statutes, section 171.06, subd. 3, addresses the contents of an application for a driver’s license or instruction permit. Section 171.061, subd. 6(5) requires the commissioner to adopt rules with respect to licensing agents that prescribe:

Standards for submitting applications including valid forms of identification, depositing funds, maintaining records, and holding proper bonds.

16. Minnesota Statutes, section 171.07, subd. 3, addresses the information required for issuance of a state identification card.

17. Minnesota Statutes, section 299A.01, subd. 7, provides additional authority for Minn. Rules Chapter 7410, and was retroactively reinstated to July 1, 1997 by the Legislature in 2000.[30]

18. The Administrative Law Judge finds that the Department has the statutory authority to adopt the proposed rules.

Rulemaking Legal Standards

19. Under Minnesota law,[31] one of the determinations that must be made in a rulemaking proceeding is whether the agency has established the need for and reasonableness of the proposed rules by an affirmative presentation of facts. In support of a rule, an agency may rely on legislative facts, namely general facts concerning questions of law, policy and discretion, or it may simply rely on interpretation of a statute, or stated policy preferences.[32] The Department prepared a SONAR in support of its proposed rules. At the hearing, the Department relied upon the SONAR as its affirmative presentation of need and reasonableness for the proposed amendments. The SONAR was supplemented by comments made by Department staff and panel members at the public hearing, and by the Department’s written post-hearing comments.

20. The question of whether a rule has been shown to be reasonable focuses on whether it has been shown to have a rational basis, or whether it is arbitrary, based upon the rulemaking record. Minnesota case law has equated an unreasonable rule with an arbitrary rule.[33] Arbitrary or unreasonable agency action is action without consideration and in disregard of the facts and circumstances of the case.[34] A rule is generally found to be reasonable if it is rationally related to the end sought to be achieved by the governing statute.[35] The Minnesota Supreme Court has further defined an agency’s burden in adopting rules by requiring it to “explain on what evidence it is relying and how the evidence connects rationally with the agency’s choice of action to be taken.”[36]

21. Reasonable minds might be divided about the wisdom of a certain course of action. An agency is entitled to make choices between possible approaches so long as its choice is rational. Generally, it is not the proper role of the Administrative Law Judge to determine which policy alternative presents the “best” approach since this would invade the policy-making discretion of the agency. The question is, rather, whether the choice made by the agency is one that a rational person could have made.[37]

22. In addition to need and reasonableness, the Administrative Law Judge must also assess whether the rule adoption procedure was complied with, whether the rule grants undue discretion, whether an agency has statutory authority to adopt the rule, whether the rule is unconstitutional or illegal, whether the rule constitutes an undue delegation of authority to another entity, or whether the proposed language is not a rule.[38]

Impact of Farming Operations

23. Minnesota Statutes, section 14.111, imposes an additional notice requirement when rules are adopted that affect farming operations. In essence, the statute requires that an agency must provide a copy of any such proposed rule change to the Commissioner of Agriculture at least thirty days prior to publishing the proposed rule in the State Register.

24. The proposed rules do not impose restrictions or have a direct impact on fundamental aspects of farming operations. The Administrative Law Judge finds that the proposed rule change will not affect farming operations in Minnesota, and thus finds that no additional notice is required.

Statutory Requirements for the SONAR

Cost and Alternative Assessments in the SONAR:

25. Minnesota Statutes, Section 14.131 requires an agency adopting rules to include in its SONAR:

(1) a description of the classes of persons who probably will be affected by the proposed rule, including classes that will bear the costs of the proposed rule and classes that will benefit from the proposed rule;

(2) the probable costs to the agency and to any other agency of the implementation and enforcement of the proposed rule and any anticipated effect on state revenues;

(3) a determination of whether there are less costly methods or less intrusive methods for achieving the purpose of the proposed rule;

(4) a description of any alternative methods for achieving the purpose of the proposed rule that were seriously considered by the agency and the reasons why they were rejected in favor of the proposed rule;

(5) the probable costs of complying with the proposed rule; and

(6) an assessment of any differences between the proposed rule and existing federal regulations and a specific analysis of the need for an reasonableness of each difference.

26. The SONAR includes the analysis performed by the agency to meet the requirements of the statute.[39]

27. The proposed amendments will affect persons who apply for a driver’s license, state identification card or permit; renew their license; need a duplicate license or alternate state document; or apply to change his or her name on the state document.

28. Issuance of those documents also affects the general public. A license or permit is assurance that the holder is qualified to safely operate the motor vehicle or motorized vehicle covered by it. Because the driver’s license and state identification card are used as identity documents, the proposed amendments affect other government agencies, retail and hospitality industries, employers and law enforcement, among others.[40]

29. The proposed amendments will also affect those who own and register vehicles. Titling and registration are necessary to collect revenue and to identify a vehicle and its owner.[41]

30. The Department contends that individuals seeking to renew or obtain duplicate documents will benefit from the proposed rule amendments because the amendments extend the time to use expired state documents that have been electronically stored, thus eliminating the need to produce identity documents.[42]

31. The rules also affect the state and county employees and appointed licensing officials who take applications for license, permits and state identification cards. The amendments should enhance customer service, clarify policy and reduce the practice of “agent shopping” by persons trying to present suspect documents.[43]

32. The proposal to amend part 7410.0400, subp. 2G to delete the INS Arrival and Departure Form I-94 as a valid identity document will have a significant impact on refugees and may increase costs to them and to refugee resettlement agencies, as well as costs to provide public assistance if refugees cannot readily obtain a driver's license or state identification card. This will be fully addressed in the discussion of that proposed amendment. The Department was aware of the effect of this proposed amendment and met with representatives of refugee groups prior to publishing it. However, the significance of the change was emphasized in public comments prior to, during and after the public hearing, and was the most controversial amendment proposed.

33. The Department is responsible for implementing the rule changes. It anticipates no direct costs to implement the amendments and will absorb the minor costs of publicizing the changes and retraining staff and licensing agents. DVS routinely updates its forms and manuals and provides training to persons who take and process applications to ensure compliance with applicable laws and rules and statewide consistency and fair administration. Expansion of the list of approved translators should not increase costs.

34. The SONAR listed some alternatives it considered, including use of biometric identifiers such as finger or thumbprints or iris scans. The Department rejected those alternatives because they are not widely accepted, are quite controversial with the public, and, arguably, more intrusive. Any such changes would require statutory authorization and an appropriation to cover equipment costs. Electronic service delivery, rather than face-to-face interaction, was also considered for initial application or renewal, but would require further study.

35. Prior to publication, the Department also considered a proposal by the Isaiah Group, a group of some Twin Cities-based congregations, to add the individual taxpayer identification number, in conjunction with a foreign identity document and INS 551 entry stamp or INS Form I-94, to the acceptable primary and secondary identification documents. The Department discussed the option with other state motor vehicle and driver’s license agencies and federal officials from the INS, Internal Revenue Service and Social Security Administration. The SONAR explains the Department’s rationale for rejecting this alternative.[44]

36. Several amendments will reduce costs and increase efficiency. In particular, individuals seeking to renew or obtain duplicate documents will benefit from the changes lengthening the time expired state documents can be relied upon without submitting additional identity documents.

Differences between the proposed rules and federal regulation.

37. There are no federal regulations that directly govern these rule amendments. However, there are guidelines provided by the American Association of Motor Vehicle Administrators (AAMVA). Minnesota is a member and generally follows its guidelines. The Department has also considered how its proposals will affect cooperation with a variety of federal programs.[45]

Performance-Based Regulation:

38. Minnesota Statutes, section 14.131, requires that an agency include in its SONAR a description of how it “considered and implemented the legislative policy supporting performance-based regulatory systems set forth in section 14.002.” Section 14.002 states, in relevant part, that “whenever feasible, state agencies must develop rules and regulatory programs that emphasize superior achievement in meeting the agency’s regulatory objectives and maximum flexibility for the regulated party and the agency in meeting those goals.” In this case, the Department performed the above analysis on a rule-by-rule basis.

39. These rules are administered through state and county offices and independent licensing agents. They are designed to assure uniform, consistent and fair administration of DVS policies statewide. This ensures the credibility of its documents and record system and facilitates reciprocity with other states, provinces and territories.[46] Rule part 7410.0600 provides flexibility in specific instances where an applicant cannot provide or obtain the required identity documents.[47]

40. The Administrative Law Judge concludes that the Department has met the requirements set forth in Minn. Stat. § 14.131 for assessing the impact of the proposed rules, including consideration and implementation of the legislative policy supporting performance-based regulatory systems.

41. This Report is limited to the discussion of the portions of the proposed rules that received critical comment or otherwise need to be examined, and it will not discuss each comment or rule part. Persons or groups who do not find their particular comments referenced in this Report should know that each and every suggestion including those made prior to the hearing, has been carefully read and considered. Moreover, because some sections of the proposed rules were not opposed and were adequately supported by the SONAR, a detailed discussion of each section of the proposed rules is unnecessary. The Administrative Law Judge specifically finds that the Department has demonstrated the need for and reasonableness of all rule provisions not specifically discussed in this Report by an affirmative presentation of facts. The Administrative Law Judge also finds that all provisions not specifically discussed are authorized by statute and there are no other problems that would prevent the adoption of the rules.[48]

7410.0400, Subpart 2G – Documentation of Proof of Full Name, Date of Birth and Identity.

42. The Department requires proof of identity with an application for a driver’s license, permit or identification card. Subpart 1 of this rule explains when a previously issued Minnesota license, identification card or permit will suffice as proof of identity. Subpart 2 sets forth the alternatives for establishing identity when Subpart 1 cannot be met. It lists several different types of documents, and requires an applicant to produce at least one from the approved list.

43. Virtually all of the controversy surrounding this proceeding is focused on the Department’s proposal to delete one of the documents issued by the United States Department of Justice, Immigration and Naturalization Service (INS) as an identity document. Subpart 2G currently lists nine acceptable INS documents. The Department proposes deleting one of the nine: “unexpired record of Arrival and Departure Form I-94 without a valid passport but stamped “Refugee” with a photo affixed.”[49]

44. Dozens of comments have addressed this proposal. The Department, the INS and one public comment support the change. All of the other comments prior to the hearing, at the hearing and after the hearing, oppose the change.

Background on Form I-94

45. Some background is necessary to explain the significance of the Department’s proposal and the opposition to it.

46. A person who arrives in the United States is classified as a “refugee” by the INS.

47. Many have little documentation of their identity; some have none. Upon arrival in the United States, they are checked by the INS, and, in many instances, the documentation they do have is taken from them and forwarded to an INS office to create a file. Refugees are issued Form I-94 and no other document by the INS. Some refugees may have other identification, such as a passport, but others do not.

48. Exhibit 102 is a blank Form I-94. It is filled out upon arrival in the United States by all persons except U.S. citizens, resident aliens, aliens with immigrant visas, and Canadian citizens. The bottom portion is retained by the entrant until departure from the United States. If the entrant is a refugee, refugee status is stamped on the form. Mr. Midby testified about the form at the hearing. Post-hearing comments were submitted by Curtis J. Aljets, District Director of the INS. Both offered strong support for the Department’s proposed amendment. The INS position can be summarized as follows:

· Form I-94 is not an identity document. It is a record of immigration status only. If presented to an immigration officer, identity must be established in another way.

· The INS does not expect or encourage other government agencies to rely upon the Form I-94 as an identity document.

· The Form I-94 can be purchased in blank by anyone. It has no security features, so it is easily produced and easily altered. It contains no identifying information about the birthdate, age, sex, physical characteristics or signature of the person whose name appears on it. Thus any person could present one as his or her own. There is no way to prove or check if the person in possession is the person to whom it was issued. Because the Form I-94 is readily available and lacks security features, it is prone to fraudulent use.

· The Department’s current list of acceptable documents includes the Form I-94 “with a photo affixed”, but the INS does not routinely affix a photo, nor is there an approved method for affixing one. Thus, accepting the Form I-94 when a photo is affixed encourages alteration and inconsistency.

· For a variety of reasons, some percent of refugees assume a false identity. The Form I-94 is of no assistance in verifying identity.

· Although a refugee may subsequently secure proper identity documents, the I-94 can be retained and is valid indefinitely as evidence of immigration status. There is no expiration or renewal date.

· The other INS forms that the Department accepts have many, in some cases, hundreds, of security features.

· If the Department accepts the Form I-94, it will corrupt the integrity of its database. Driver’s licenses and state identification cards are widely accepted as identification because of the high level of integrity of that data base. As an example, the INS directs employers to accept a state-issued driver’s license or identification card as verification of employability based on its experience that the state requires verifiable identification prior to issuing the driver’s license or identification card.[50]

The Department’s Position

49. The Department has relied on the information from the INS and the experience of its employees who review identity documents at its local offices. The employees see great variation in the Form I-94, including variation in the submission of a photo, and have no way to match the name on the form with the person presenting it.[51]

50. Mr. Southwick testified that the Form I-94 can be used to establish multiple identities, and there is a motive for persons to do so who have a suspended license. Such persons may not be refugees, but they have obtained a Form I-94 and presented it to obtain a new license. In other instances, the bearer uses it to take a portion of the driver’s exam for another person.

51. The Department is well aware that its driver’s license and state identification card are commonly accepted for identification. Banks, retailers, landlords, employers, health care providers, bars and restaurants, social service providers, law enforcement and libraries, among others, routinely accept the license or card as evidence of identity. They rely on the Department’s efforts to establish identity.

52. The Department must continually balance the individual’s need for generally accepted identification with its responsibility to those who accept that identification. The driver’s license and identification card are valued because they are commonly recognized and accepted, and because of the Department’s efforts to check identity.

Objections to Deletion of the Form I-94

53. Refugees and those who assist their transition into the United States vehemently oppose the deletion of Form I-94.[52]

· Many refugees have no documentation of identity whatsoever. The only form the INS issues to them upon arrival is the Form I-94.[53]

· There is a delay of weeks, and sometimes months, in obtaining an identity document from the INS.[54] Resettlement agencies receive funds to assist refugees during their first 90 days of resettlement. The agencies help refugees find employment, housing and health coverage, and often arrange transportation, school, and a bank account. Although the law may not technically require a driver’s license or state identification card to access these services, the organizations or individuals who provide them routinely do require it. It is the widespread acceptance of the Department’s driver’s license and state identification card that make them essential to beginning successful resettlement.

· Refugees are legally in the United States and entitled to the same access to employment, services and public accommodation as all other legal residents. Denying them a driver’s license or state identification card effectively denies their right to fully participate in American society.[55]

· Many refugees are escaping from war and/or famine and have suffered enormous personal loss and hardship. Denying or delaying their successful resettlement is insensitive and demonstrates intolerance and ignorance of the refugees’ plight.[56]

· The INS cannot reasonably oppose use of the Form I-94 when it does not routinely provide an identity document to refugees who have none.

· The federal government requires an agency that receives federal refugee resettlement funds to obtain a photo identification card before it delivers services to a refugee. It is cruel and unreasonable to deny refugees access to the services they need, especially when there is a 90-day limit on the services.[57]

· The I-766 or I-688 forms are only available to those who want to work in the United States. In addition, although the INS is attempting to speed up the issuance of these forms, it may take weeks or months to obtain them. Although the initial issuance of these two forms is free, there is an annual renewal charge of $100. One can apply for an I-551 or I-151 only after living in the United States for a year. Similarly, an I-571, issued to refugees who want to leave the United States and then return, takes 30-45 days to get and costs $95. Thus, there is no quick, inexpensive alternative available to all.[58]

· Although the INS has told employers that they can accept an I-94 to verify employability, many employers are not familiar with the form and insist on a state-issued driver’s license or identification card.[59]

· Strong objections to deletion of the form I-94 were expressed by John D. Trasviña, Special Counsel for Immigration Related Unfair Employment Practices, Civil Rights Division, United States Department of Justice. Like other commentators, Mr. Trasviña fears that deletion of the Form I-94 will effectively deny employment to refugees for at least 90 days, even though refugees are living in the U.S. legally and entitled to work immediately.

· Mr. Trasviña and many others object to the Department’s deletion of the Form I-94 until the INS either develops an identity document to issue at entry to the United States or dramatically speeds up issuance of identity documents after entry.

· Law-abiding refugees should not be punished for trying to access services needed to resettle because there is some fraudulent use of the Form I-94.

· Several commenters believe that the Department has not fully considered the costs associated with its change. In particular, they believe delay in obtaining a driver’s license will increase resettlement agency costs and, by delaying employment, increase public assistance costs.[60]

· Senator Ellen R. Anderson, District 66, believes that by refusing an INS document, the Department is compromising the federal government’s international policy, usurping federal authority and commitment to refugee resettlement. Her views are generally shared by Thomas Kosel, Program Manager, Catholic Charities, St. Paul and John D. Trasviña.

54. Many of the persons objecting to deletion of the Form I-94 urged the Department to work with the Refugee Resettlement Agencies to find a better solution, and, in particular, they offered to devise a certification of identity, based on the information available to them. Matthew Smith, Refugee Resettlement Case Manager, Lutheran social Services, offered an example of a certification of identity form issued by resettlement agencies in New York.[61]

55. Many post-hearing comments supported Mr. Smith’s proposal and urged the Department to work with the agencies.[62] Experienced resettlement agencies have offered to work with the Department to seek an acceptable solution.[63]

56. Another option, suggested by Eric Browne, International Institute, was that the Department use the documents provided to the resettlement agencies as evidence of identity.

Department’s Response

57. The Department is not unsympathetic to the problems the amendment will cause refugees. However, it points out that the INS accepts the responsibility for causing those problems and is committed to addressing them. It cites the comments of the INS as strong support for its proposal.

58. In addition, none of the public comments effectively address the Department’s concern about relying upon the Form I-94 as an identity document.[64] In fact, most of the comments reinforce the Department’s view that the Form I-94 is not a reliable or accepted identity document, and that if it issues a driver’s license or state identification card without some other proof of identity, it is offering unsupported proof of identity. Although others may rely upon a driver’s license or state identification card in such cases, the reliance would not be justified.

59. In its post-hearing comments dated June 23, 2000, the Department addressed its reluctance to accept certification from the refugee resettlement agencies, or to evaluate the documentation provided to those agencies. Many persons employed by the resettlement agencies and DVS are not trained to evaluate foreign documents.

60. The Department’s June 23, 2000 post-hearing comments included a memo from William R. Yates, Deputy Executive Associate Commissioner, Immigration Services Division, INS, dated May 15, 2000. It clarifies that a refugee whose prospective employer rejects an I-94 may apply for an Employment Authorization Card without paying a fee. The Department is also relying on the evidence submitted by the INS that it is speeding up its processing of identity documents. Also, the Department believes that INS delay caused by the need to verify identity is evidence that the I-94 alone is not sufficient proof of identity.

61. The Department acknowledges the complaints of the refugee resettlement agencies that deletion of Form I-94 as an identity document may hamper their efforts, but believes it has a duty to protect the integrity of its data base despite these possible problems. Although some comments suggest that public assistance costs will rise, the Department has responded that such increases are speculative.[65]

62. The Department recognizes that its current policy of allowing the Form I-94 has caused confusion for its employees and licensing agents because a photo is not routinely attached. Osman Sahandee testified that some applicants are harassed and discriminated against if the DVS does not like the look of the Form I-94 presented. Like many commenters, he believes refugees are being punished for the failings of the INS. The Department responds that it wants to keep the pressure on the INS to issue an acceptable identity document less subject to variable treatment by its employees and agents.

63. The Administrative Law Judge concludes that the Department has adequately explained its rationale for the amendment to Minn. Rule part 7410.0400, subp. 2G, by deleting (7). It has presented evidence to support its position and made a policy choice. It has not been arbitrary. Of course, the Department is still obligated to review the comments in this record in order to arrive at the best policy choice. It is clear that adoption of the amendment will have a substantial negative impact on hundreds, perhaps thousands of refugees. Although the INS, not the Department, has caused the problems the refugees will face, the Department may be able to work with the refugees and resettlement agencies to develop an interim, short-term alternative, while at the same time keeping the pressure on the INS, where it appropriately belongs. For many refugees, obtaining the driver’s license or state identification immediately is essential to their resettlement.

64. The objections raised by the refugees and their experiences with the current INS procedures are serious and heart-felt. Compassion for the refugees’ plight should be a factor in the Department’s course of action. It is understandable that the Department does not want to continue indefinitely to take responsibility that properly belongs with the INS, but some further accommodation may be warranted. The outpouring of concern by those who are most familiar with the refugees’ efforts to resettle should be given serious consideration. The purpose of conducting the formal rulemaking process is to assure that just such concerns are voiced and fully considered.

65. Although the Department has shown the need for and reasonableness of its amendment, it is not precluded from modifying the proposed rule, based upon the public comments.

7410.0500 – Change of Name

66. The Department requires verification before it will allow a change of name on a driver’s license or state identification card. Subpart 2 of the rule specifies the acceptable verification for a name change. There were no objections to the Department’s proposal to amend subpart 2C(3), to require that a certified copy of a divorce decree or dissolution of marriage granted the applicant and specifying a name change must be from a court of competent jurisdiction. The Department has demonstrated the need for and reasonableness of this change.

67. The Department proposed to delete subpart 2C(4) which now permits the following as proof of a name change:

A certified copy of a United States Department of Justice, Immigration and Naturalization Service, Certificate of Naturalization (form N-550, N-570) issued to the applicant.

68. The SONAR and Department’s comments introduced at hearing explain this deletion. Although a Certificate of Naturalization may reflect a name change, a separate court order is issued if there is a change of name. The court order will include a previous name, date of birth and the INS registration number.[66]

69. The Department will continue to accept a Certificate of Naturalization from an applicant for an initial license, but the court order must be provided to verify a name change on an existing license or state identification document.[67] This is the same proof required of other U.S. Citizens who seek a name change.[68]

70. There were a few objections to the proposed amendment. Steven C. Thal, Attorney at Law, objected prior to hearing.[69] He asserted that this change was inconsistent with the Department’s plan to delete the Form I-94 as an identity documents because the Certificate of Naturalization contains identifying characteristics of the applicant. Mr. Thal’s point is consistent with the Department permitting the Certificate of Naturalization from new applicants, but does not address the need for evidence of a legal change of name where a Department file has been previously created under a different name.[70]

Based on the foregoing Findings of Fact, the Administrative Law Judge makes the following:

CONCLUSIONS

1. The Minnesota Department of Public Safety gave proper notice in this matter.

2. The Department has fulfilled the procedural requirements of Minn. Stat. § 14.14, and all other procedural requirements of law or rule.

3. The Department has demonstrated its statutory authority to adopt the proposed rules, and has fulfilled all other substantive requirements of law or rule within the meaning of Minn. Stat. §§ 14.05, subd. 1; and 14.50 (i) and (ii).

4. The Department has demonstrated the need for and reasonableness of the proposed rules by an affirmative presentation of facts in the record within the meaning of Minn. Stat. §§ 14.131, 14.14, subd. 2; and 14.50 (iii).

5. Any Findings that might properly be termed Conclusions and any Conclusions that might properly be termed Findings are hereby adopted as such.

6. A Finding or Conclusion of need and reasonableness with regard to any particular rule subsection does not preclude and should not discourage the Department from further modification of the proposed rules based upon this Report and an examination of the public comments, provided that the rule finally adopted is based upon facts as appearing in this rule hearing record.

Based upon the foregoing Conclusions, the Administrative Law Judge makes the following:

RECOMMENDATION

IT IS HEREBY RECOMMENDED that the proposed rule amendments be adopted.

Dated this

25^th

day of

July

2000.

s/ Beverly Jones Heydinger

BEVERLY JONES HEYDINGER

Administrative Law Judge

[1] Minn. Stat. §§ 14.131 through 14.20 (1998). (Unless otherwise stated, all further references to Minnesota Statutes are to the 1998 version.)

[7] Minn. Stat. § 14.225; Minn. Rules pt. 1400.2080, subp. 5.

[15] Ex. 14; www.dps.state.mn.us/dvs/index.html.

[17] Exs. 25-100; Minn. Stat. § 14.25, subd. 1.

[27] Minn. Stat. § § 171.06, subd. 3 and 171.07, subd. 3.

[31] Minn. Stat. § 14.14, subd. 2; Minn. R. part 1400.2100.

[32] Mammenga v. Department of Human Services, 442 N.W.2d 786 (Minn. 1989); Manufactured Hous. Inst. v. Pettersen, 347 N.W.2d 238, 244 (Minn. 1984).

[33] In re Hanson, 275 N.W.2d 790 (Minn. 1978); Hurley v. Chaffee, 231 Minn. 362, 43 N.W.2d 281, 284 (1950).

[34] Greenhill v. Bailey, 519 F.2d 5, 19 (8^th Cir. 1975).

[35] Mammenga, 442 N.W.2d at 789-90; Broen Mem’l Home v. Minnesota Dep’t of Human Services, 364 N.W.2d 436, 444 (Minn. Ct. App. 1985).

[36] Manufactured Hous. Inst. v. Pettersen, 347 N.W.2d at 244.

[37] Federal Sec. Adm’r v. Quaker Oats Co., 318 U.S. 218, 233 (1943).

[48] On July 20, 2000, twenty days after the record closed, the administrative law judge received letters from Timothy Lynch, Commander, Saint Paul Police Department and Lieutenant Dana M. Sniper, Minneapolis Police Department. Each letter raised strong objections to extending the time period when expired identification could be used to obtain new identification. Because the objections were filed well beyond the close of the record, they have not been considered. See Minn. Stat. § 14.15, subd. 1 (1998). They will be forwarded to the Department with this record.

[50] Testimony of C. Midby; letter from Curtis J. Aljets.

[51] See Exs 103, 104, 106-111; See also Ex. 11 for additional discussion of Department’s position.

[52] All of the points in opposition to the change were echoed by several commenters. The specific comments cited below are illustrative only.

[53] Michael Yang, Director, Immigration Task Force of Minnesota, May 18, 2000 and June 23, 2000, Jennifer Prestholdt, Refugee and Immigrant Program Director, Minnesota Advocates for Human Rights, May 18, 2000.

[55] See, e.g. letters from Lynn Brincks, Judy Mannella, Ibrahim Mohamed, Catholic Charities, St. Paul.

[56] See e.g. Ex. 38, letter from The Rev. Joan M. Dehzad, Institute for Education and Advocacy; David McGraw Schuchman, Mental Health Supv’r., Community-University Health Care Center.

[58] Michael Yang, Immigration Task Force of Minnesota.

[59] S. Marilyn Orchard, Catholic Charities, Diocese of Winona; Joel Leudtke, Dir. of Refugee Services, Minnesota Council of Churches; James L. Jelinek, Bishop of the Episcopal Diocese of Minnesota; John D. Trasviña, Senior Counsel for Immigration Related Unfair Employment Practices, Civil Rights Div., U.S. Dept. of Justice.

[60] Michael Wynne, Pillsbury Neighborhood Services, June 21, 2000; Joel Luedtke, Dir. of Refugee Services, Minnesota Council of Churches, June 23, 2000 and June 30, 2000.

[62] See, e.g. Sr. Sharon M. Howell, C.S.J., Archdiocese of Saint Paul and Minneapolis; Mary-Clare Bates; Mark S. Hanson, Bishop, Saint Paul Area Synod, Evangelical Lutheran Church of America, Malkamee Negeri, Oromo Evangelical Lutheran Church, Minneapolis; Liz Johnson, PRISM; Pauline Redmond, Community Advocate, Refugee Resettlement Diversity Network of Steele County; Thomas Kosel, Program Manager, Catholic Charities, St. Paul.

[63] Thomas Kosel, supra; Carl H. Nelson, World Relief.

[64] See, e.g. Joel Luedtke, Dir. of Refugee Services, Minnesota Council of Churches, June 30, 2000, “No responsible advocate for refugees would seriously argue that the I-94 is an acceptable identity document…. However, the Department’s proposed changes respond to this disservice to refugees by imposing yet another hardship.”; John S. Borden, Casework Supv’s, International Institute of Minnesota, April 24, 2000.

[65] Comments of the Department, June 23, 2000.

[70] See also, post-hearing comments from The Rev. Joan M. Dehzad, Institute for Education and Advocacy; and Scott W. Wright, Chair, Minnesota-Dakotas Chapter, American Immigration Lawyers Association and the Department’s Post-Hearing comments, dated June 23, 2000.