Collection of Biometric Data From Aliens Upon Entry to and Departure From the United States, 74162-74193 [2020-24707]

Download as PDF 74162 Federal Register / Vol. 85, No. 224 / Thursday, November 19, 2020 / Proposed Rules DEPARTMENT OF HOMELAND SECURITY 8 CFR Parts 215 and 235 [Docket No. USCBP–2020–0062] RIN 1651–AB12 Collection of Biometric Data From Aliens Upon Entry to and Departure From the United States U.S. Customs and Border Protection, Department of Homeland Security. ACTION: Notice of proposed rulemaking. AGENCY: The Department of Homeland Security (DHS) is required by statute to develop and implement an integrated, automated entry and exit data system to match records, including biographic data and biometrics, of aliens entering and departing the United States. Although the current regulations provide that DHS may require certain aliens to provide biometrics when entering and departing the United States, they only authorize DHS to require certain aliens to provide biometrics upon departure under pilot programs at land ports and at up to 15 airports and seaports. To advance the legal framework for DHS to begin a comprehensive biometric entry-exit system, DHS is proposing to amend the regulations to remove the references to pilot programs and the port limitation to permit collection of biometrics from aliens departing from airports, land ports, seaports, or any other authorized point of departure. In addition, to enable U.S. Customs and Border Protection (CBP) to make the process for verifying the identity of aliens more efficient, accurate, and secure by using facial recognition technology, DHS is proposing to amend the regulations to provide that all aliens may be required to be photographed upon entry and/or departure. U.S. citizens may voluntarily opt out of participating in CBP’s biometric verification program. This proposed rule also makes other minor conforming and editorial changes to the regulations. DATES: Written comments must be received on or before December 21, 2020. SUMMARY: Please submit comments, identified by docket number, by the following method: • Federal eRulemaking Portal: http:// www.regulations.gov. Follow the instructions for submitting comments via docket number USCBP–2020–0062. Due to COVID–19 related restrictions, CBP has temporarily suspended its ADDRESSES: VerDate Sep<11>2014 22:14 Nov 18, 2020 Jkt 253001 ability to receive public comments by mail. Instructions: All submissions received must include the agency name and docket number for this rulemaking. All comments received will be posted without change to http:// www.regulations.gov, including any personal information provided. For detailed instructions on submitting comments, see the ‘‘Public Participation’’ heading of the SUPPLEMENTARY INFORMATION section of this document. Docket: For access to the docket to read background documents or comments received, go to http:// www.regulations.gov. Due to COVID–19 related restrictions, CBP has temporarily suspended its on-site public inspection of submitted comments. FOR FURTHER INFORMATION CONTACT: Michael Hardin, Director, Entry/Exit Policy and Planning, Office of Field Operations, U.S. Customs and Border Protection, by phone at (202) 325–1053 or via email at michael.hardin@ cbp.dhs.gov. SUPPLEMENTARY INFORMATION: Table of Contents I. Public Participation II. Executive Summary III. Background A. Statutory and Executive Authority B. Current Entry-Exit Process 1. APIS Data Collection 2. Current Entry Process 3. Current Exit Process C. National Security and Immigration Benefits of a Biometric Entry-Exit Program D. Biometric Entry-Exit Program History 1. Implementation of US–VISIT 2. Exit Pilot Programs and Transfer of Entry and Exit Operations to CBP E. Recent Developments in the Biometric Entry-Exit System 1. Biometric Exit Mobile Experiment (BEMobile) 2. 1 to 1 Facial Comparison Project 3. Southwest Border Pedestrian Exit Field Test 4. Departure Information Systems Test 5. Land Border Biometric Tests 6. Simplified Arrival 7. Public-Private Partnerships F. Proposed Facial Recognition-Based Entry-Exit Process 1. Benefits of a Facial Recognition-Based Process 2. Facial Recognition Technology Gallery Building 3. General Collection Process 4. Facial Recognition Based Entry Process 5. Facial Recognition Based Exit Process 6. Alternative Procedures and Public Notices 7. ‘‘No Match’’ Procedures 8. U.S. Nationals, Dual Nationals and Lawful Permanent Residents 9. Business Requirements for PublicPrivate Partnerships PO 00000 Frm 00002 Fmt 4701 Sfmt 4702 IV. Proposed Regulatory Changes A. General Biometric Exit Requirement for Aliens B. Collection of Photographs From Aliens Upon Entry and Departure C. Collection of Biometrics When Departing the United States and Other Minor Conforming and Editorial Changes V. Withdrawal of 2008 Air Exit Notice of Proposed Rulemaking VI. Statutory and Regulatory Requirements A. Executive Orders 12866 and 13563 1. Need and Purpose of the Rule 2. Background, Baseline and Affected Population 3. Costs 4. Cost Savings 5. Benefits 6. Net Benefits 7. Alternative Analysis B. Regulatory Flexibility Act C. Paperwork Reduction Act D. Privacy E. National Environmental Policy Act F. Signature Table of Abbreviations and Acronyms APC—Automated Passport Control ADIS—Arrival and Departure Information System APIS—Advance Passenger Information System CBP—U.S. Customs and Border Protection DHS—Department of Homeland Security DHS TRIP—DHS Traveler Redress Inquiry Program DOJ—Department of Justice DOS—Department of State DMIA—Immigration and Naturalization Service Data Management Improvement Act of 2000 ICE—U.S. Immigration and Customs Enforcement INA—Immigration and Nationality Act IRTPA—Intelligence Reform and Terrorism Prevention Act of 2004 MPC—Mobile Passport Control MRZ—Machine-Readable Zone NPRM—Notice of Proposed Rulemaking OBIM—Office of Biometric Identity Management OTTI—Department of Commerce’s Office of Travel and Tourism Industries PIA—Privacy Impact Assessment TSA—Transportation Security Administration TVS—Traveler Verification Service USCIS—U.S. Citizenship and Immigration Services US-VISIT—United States Visitor and Immigrant Status Indicator Technology VWP—Visa Waiver Program I. Public Participation Interested persons are invited to participate in this rulemaking by submitting written data, views, or arguments on all aspects of the rule. Comments that will provide the most assistance will reference a specific portion of the rule, explain the reason for any recommended change, and include data, information, or authority that supports such recommended change. All submissions received must E:\FR\FM\19NOP3.SGM 19NOP3 Federal Register / Vol. 85, No. 224 / Thursday, November 19, 2020 / Proposed Rules include the agency name and docket number for this rulemaking. All comments received will be posted without change to http:// www.regulations.gov, including any personal information provided. II. Executive Summary As discussed in Section III (Background), the Department of Homeland Security (DHS) is mandated by statute to develop and implement an integrated, automated entry and exit data system to match records, including biographic data and biometrics,1 of aliens entering and departing the United States.2 In addition, Executive Order 13780, Protecting the Nation from Foreign Terrorist Entry into the United States, published in the Federal Register at 82 FR 13209, states that DHS is to expedite the completion and implementation of a biometric entry-exit tracking system. Although DHS, through U.S. Customs and Border Protection (CBP), has been collecting biometric data from certain aliens arriving in the United States since 2004,3 currently there is no comprehensive system in place to collect biometrics from aliens departing the country. Implementing an integrated biometric entry-exit system that compares 1 Biographic data includes information specific to an individual traveler such as name, date of birth, and travel document number, which are data elements stored in that traveler’s passport, visa, or lawful permanent resident card. A biometric refers to a form of identification based on anatomical, physiological, and behavioral characteristics or other physical attributes unique to a person that can be collected, stored, and used to verify the identity of a person, e.g., fingerprints, photographs, iris, DNA, and voice print. 2 Numerous federal statutes require DHS to create an integrated, automated biometric entry and exit system that records the arrival and departure of aliens, compares the biometric data of aliens to verify their identity, and authenticates travel documents presented by such aliens through the comparison of biometrics. These include: Section 2(a) of the Immigration and Naturalization Service Data Management Improvement Act of 2000 (DMIA), Public Law 106–215, 114 Stat. 337; Section 110 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Public Law 104–828, 110 Stat. 3009–546; Section 205 of the Visa Waiver Permanent Program Act of 2000, Public Law 106–396, 114 Stat. 1637, 1641; Section 414 of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT Act), Public Law 107–56, 115 Stat. 272, 353; Section 302 of the Enhanced Border Security and Visa Entry Reform Act of 2002 (Border Security Act), Public Law 107–173, 116 Stat. 543, 552; Section 7208 of the Intelligence Reform and Terrorism Prevention Act of 2004 (IRTPA), Public Law 108–458, 118 Stat. 3638, 3817; Section 711 of the Implementing Recommendations of the 9/11 Commission Act of 2007, Public Law 110–53, 121 Stat. 266, 338; and Section 802 of the Trade Facilitation and Trade Enforcement Act of 2015, Public Law 114–125, 130 Stat. 122, 199 (6 U.S.C. 211(c)(10)). 3 See Section III.B (Current Entry-Exit Process) for further discussion. VerDate Sep<11>2014 22:14 Nov 18, 2020 Jkt 253001 biometric data of aliens collected upon arrival with biometric data collected upon departure is essential for addressing the national security concerns arising from the threat of terrorism, the fraudulent use of legitimate travel documentation, aliens who overstay their authorized period of admission (overstays) or are present in the United States without having been admitted or paroled, and incorrect or incomplete biographic data for travelers. As recognized by the National Commission on Terrorist Attacks Upon the United States (also known as the 9/ 11 Commission), combatting terrorism requires a screening system that examines individuals at multiple points within the travel continuum.4 An integrated biometric entry-exit system provides an accurate way to verify an individual’s identity, and, consequently, can improve security and effectively combat attempts by terrorists who use false travel documents to circumvent border checkpoints. It can also be used to biometrically verify that a person who presents a travel document is the true bearer of that document, which will help prevent visa fraud and the fraudulent use of legitimate travel documentation. Such a system would also allow DHS to confirm more concretely the identity of aliens seeking entry or admission to the United States and to verify their departure from the United States. By having more accurate border crossing records of aliens, DHS can more effectively identify overstays and aliens who are, or were, present in the United States without having been admitted or paroled and prevent their unlawful reentry into the United States. It will also make it more difficult for imposters to utilize other travelers’ credentials. In addition, performing biometric identity verification can help DHS reconcile any errors or incomplete data in a traveler’s biographic data.5 Ultimately, this provides DHS with more reliable information to verify identity and to strengthen its ability to identify criminals and known or suspected terrorists. DHS has faced a number of logistical and operational challenges in developing and deploying a biometric exit capability. This is, in part, because U.S. airports generally do not have designated and secure exit areas for conducting outbound inspections, recording travelers’ departures, or 4 The 9/11 Commission Report at 384–386, available at http://govinfo.library.unt.edu/911/ report/911Report.pdf. Accessed October 23, 2020. See also Section III.C. 5 See Section III.C. for further explanation. PO 00000 Frm 00003 Fmt 4701 Sfmt 4702 74163 comparing biometric information against arrival data. U.S. land ports of entry present even more infrastructure and operational challenges due to geographic limitations (many border crossings involve crossing a bridge or tunnel), and a myriad of transportation alternatives for crossing a land port of entry (e.g., car, bus, rail, foot). CBP has been testing various options to collect biometrics at entry and departure. These tests are described in detail in Section III.E of this document. The results of these tests and the recent advancement of new technologies, including facial recognition technology, have provided CBP with a model to implement a comprehensive biometric entry-exit solution. CBP has determined that facial recognition technology is currently the best available method for biometric verification, as it is accurate, unobtrusive, and efficient. This technology uses existing advance passenger information along with photographs which have already been provided by travelers to the government for the purpose of facilitating international travel, to create ‘‘galleries’’ of facial image templates to correspond with who is expected to be arriving or departing the United States on a particular flight, voyage, etc. These photographs may be derived from passport applications, visa applications, or interactions with CBP at a prior border inspection. Once the gallery is created based on the advance information, the facial recognition technology compares a template of a live photograph of the traveler to the gallery of facial image templates. Live photographs are taken where there is clear expectation that a person will need to provide documentary evidence of their identity. If there is a facial image match, the traveler’s identity has been verified. In the initial stage of implementation, CBP plans to expand its facial recognition system to commercial air ports of entry. CBP plans to eventually establish a biometric entry-exit system at all air, sea, and land ports of entry. CBP estimates that a biometric entryexit system can be fully implemented at all commercial air ports of entry within the next three to five years. For land and sea ports of entry and private aircraft, CBP plans to continue to test and refine biometric exit strategies with the ultimate goal of implementing a comprehensive biometric entry-exit system nationwide.6 The proposed 6 Private aircraft are non-commercial flights, sometimes referred to as general aviation. See 19 CFR 122.1(h). E:\FR\FM\19NOP3.SGM 19NOP3 74164 Federal Register / Vol. 85, No. 224 / Thursday, November 19, 2020 / Proposed Rules regulatory changes are necessary to enable CBP to continue its testing and refinements, and implement permanent programs efficiently once the best solution is identified. As explained below, under the current regulations, CBP can only conduct pilot programs at a limited number of ports of entry at air and sea, and may only collect biometrics from a limited population. If this proposed rule is adopted as a final rule, CBP would continue to expand testing as necessary. Because CBP is still in the testing phase to determine the best way to implement biometric entry-exit for land and sea ports of entry and private aircraft, CBP has not included, in this proposed rule, an analysis of the costs and benefits of implementing a facial recognition based biometric entry-exit program for land and sea ports of entry and private aircraft. CBP welcomes comments from the public regarding the potential impact of this proposed rule in these environments. Additionally, before CBP moves forward with a large scale implementation at land or sea ports of entry or for private aircraft, the Commissioner of CBP will publish a notice in the Federal Register that notifies the public, specifies the details of these plans, and requests public comments. If CBP determines that the implementation of the specified facial recognition entry-exit program in these environments results in significant delays at ports of entry or exit, CBP will temporarily discontinue these efforts until the average processing time has improved to be under 125 percent of the baseline (manual processing without biometrics). Although the current regulations authorize DHS to require certain aliens to provide biometrics on entry and departure, those regulations are too limited in scope to advance the legal framework for establishing a comprehensive biometric entry-exit system. The regulations authorize DHS to require biometrics from certain aliens seeking admission to the United States. See section 235.1(f) of title 8 of the Code of Federal Regulations (CFR). They also authorize DHS to require biometrics from certain aliens upon departure from the United States under pilot programs at land ports and up to 15 air and seaports. See 8 CFR 215.8(a). This proposed rule advances a legal framework for DHS collection and use of biometrics from aliens and for CBP’s comprehensive biometric entry-exit system by removing the reference to pilot programs and the port limit. In addition, this proposed rule provides that all aliens may be required VerDate Sep<11>2014 22:14 Nov 18, 2020 Jkt 253001 to be photographed upon entry and/or departure. The use of facial recognition technology upon entry and departure will make the process for verifying an alien’s identity more efficient and accurate. It will enable CBP to match the traveler’s photograph with their vetted biographic information. The ability to biometrically verify the identity and confirm the departure of aliens will improve security and help DHS detect overstays and aliens who are or were present in the United States without having been admitted or paroled, and prevent their illegal reentry. DHS acknowledges that most overstays are of a rather limited duration and that many overstays are accidental in nature. Regardless of the length of time, however, overstaying past the authorized period of admission is unlawful and carries consequences for future visits to the United States. See Section 212 of the Immigration and Nationality Act of 1952, as amended, 8 U.S.C. 1182 (INA 212). Having accurate entry and exit records is a fundamental piece of the U.S. immigration system and detecting overstays supports said system. Furthermore, DHS data supports the conclusion that some status violators and illegal aliens also have links to terrorism and criminal activity. Ensuring the traveler’s photograph matches with their vetted biographic and biometric information, helps CBP prevent visa fraud and the use of fraudulent travel documents, or the use of legitimate travel documents by imposters, and identify criminals and known or suspected terrorists. Under this proposed rule, CBP will comply with all legal requirements (e.g., the Privacy Act of 1974, Section 208 of the E-Government Act of 2002, and Section 222 of the Homeland Security Act of 2002, as amended) and Departmental and government-wide policies that govern the collection, use, maintenance, and disposition of personally identifiable information, including biometrics. To ensure data minimization of U.S. citizen photographs, once CBP verifies that a traveler is a U.S. citizen, CBP will not retain in its database the photo of that U.S. citizen which is collected as part of CBP’s biometric verification program. Rather, photos of U.S. citizens collected as a result of their participation in this program will be discarded within 12 hours of verification of the individual’s identity and citizenship. PO 00000 Frm 00004 Fmt 4701 Sfmt 4702 III. Background A. Statutory and Executive Authority Numerous federal statutes require DHS to create an integrated, automated biometric entry and exit system that records the arrival and departure of aliens, compares the biometric data of aliens to verify their identity, and authenticates travel documents presented by such aliens through the comparison of biometrics. The following discussion covers the most relevant statutory and executive authority for the issuance of this rule. The creation of an automated entryexit system that integrates electronic alien arrival and departure information was authorized in the Immigration and Naturalization Service Data Management Improvement Act of 2000 (DMIA), Public Law 106–215, 114 Stat. 337, 339 (8 U.S.C. 1365a). The DMIA provides that the entry-exit system should integrate all authorized or required alien arrival and departure data that is maintained in electronic format. The DMIA also provides for DHS to use the entry-exit system to match the available arrival and departure data on aliens. DMIA section 2 (8 U.S.C. 1365a(e)). In December 2004, Congress enacted the Intelligence Reform and Terrorism Prevention Act of 2004 (IRTPA), Public Law 108–458, 118 Stat. 3638, 3817 (8 U.S.C. 1365b). Section 7208 of IRTPA provides for DHS to collect biometric exit data for all categories of aliens who are required to provide biometric entry data. IRTPA requires that the entry and exit data system contain, as an interoperable component, the fully integrated databases and data systems maintained by DHS, the Department of State (DOS), and the Department of Justice (DOJ) that process or contain information on aliens. Section 7208 of IRTPA also requires that the entry and exit data system have current and immediate access to information in the databases of Federal law enforcement agencies and the intelligence community, which is relevant to the determination of whether a visa should be issued and the admissibility or deportability of an alien. Section 7208 of IRTPA provides a complete list of entry-exit system goals, which include, among other things, screening travelers efficiently. Finally, section 7208 of IRTPA requires the Secretary of Homeland Security to develop a plan to accelerate full implementation of an automated biometric entry and exit data system. In the 2016 Consolidated Appropriations Act, Congress specified that DHS must submit a plan to E:\FR\FM\19NOP3.SGM 19NOP3 Federal Register / Vol. 85, No. 224 / Thursday, November 19, 2020 / Proposed Rules implement a biometric entry and exit capability and established a funding mechanism available to the Secretary of Homeland Security, beginning in fiscal year 2017, to develop and implement a biometric entry and exit system. See Consolidated Appropriations Act, 2016, Public Law 114–113, 129 Stat. 2242, 2493. The following statutes also require DHS to take action to create an integrated entry-exit system: • Section 110 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Public Law 104–828, 110 Stat. 3009–546; • Section 205 of the Visa Waiver Permanent Program Act of 2000, Public Law 106–396, 114 Stat. 1637, 1641; • Section 414 of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT Act), Public Law 107– 56, 115 Stat. 272, 353; • Section 302 of the Enhanced Border Security and Visa Entry Reform Act of 2002 (Border Security Act), Public Law 107–173, 116 Stat. 543, 552; • Section 711 of the Implementing Recommendations of the 9/11 Commission Act of 2007, Public Law 110–53, 121 Stat. 266, 338; • Section 802 of the Trade Facilitation and Trade Enforcement Act of 2015, Public Law 114–125, 130 Stat. 122, 199 (6 U.S.C. 211(c)(10)). On March 6, 2017, the President signed Executive Order 13780, Protecting the Nation from Foreign Terrorist Entry into the United States (82 FR 13209). Section 8 of this Order requires the Secretary of Homeland Security to expedite the completion and implementation of a biometric entry-exit tracking system for ‘‘in-scope travelers’’ 7 to the United States, as recommended by the National Commission on Terrorist Attacks Upon the United States, and periodically report to the President on DHS’s progress in this regard. DHS also has broad authority to control alien travel and to inspect aliens under various provisions of the INA. Under this authority, DHS may require aliens to provide biometrics and other relevant identifying information upon entry to, or departure from, the United States. Specifically, DHS may control alien entry and departure and inspect aliens under sections 215(a) and 235 of the INA (8 U.S.C. 1185, 1225). Aliens may be required to provide fingerprints, 7 Although the term ‘‘in-scope travelers’’ is not defined, DHS interprets this to mean those travelers who are required to provide biometric information upon entry to the United States. VerDate Sep<11>2014 22:14 Nov 18, 2020 Jkt 253001 photographs, or other biometrics upon arrival in, or departure from, the United States, and select classes of aliens may be required to provide information at any time. See, e.g., INA 214, 215(a), 235(a), 262(a), 263(a), 264(c), (8 U.S.C. 1184, 1185(a), 1225(a), 1302(a), 1303(a), 1304(c)); 8 U.S.C. 1365b. Pursuant to section 215(a) of the INA (8 U.S.C. 1185(a)), and Executive Order No. 13323 of Dec. 30, 2003 (69 FR 241), the Secretary of Homeland Security, with the concurrence of the Secretary of State, has the authority to require aliens to provide biographic, biometric, and other relevant identifying information as they depart the United States. Under section 214 of the INA (8 U.S.C. 1184), DHS may issue regulations, such as those concerning requirements to provide biometrics upon entry or departure, the compliance of which may be a condition of admission and maintenance of status of nonimmigrant aliens while in the United States. Finally, DHS is authorized to take and consider evidence concerning the privilege of any person to enter, reenter, pass through, or reside in the United States, or concerning any matter which is material or relevant to the enforcement of the INA and the administration of DHS. See INA 287(b) (8 U.S.C. 1357(b)). B. Current Entry-Exit Process Pursuant to the authorities discussed in the previous section, CBP is responsible for implementing an integrated, automated entry-exit system that matches the biographic data and biometrics of aliens entering and departing the United States. Furthermore, to carry out its mission responsibilities to control the border and to regulate the arrival and departure of both U.S. citizens and aliens, CBP has the authority to confirm the identity of all travelers and verify that they are the authorized bearers of their travel documents. The entry-exit process as it exists today serves this essential border security mission entrusted to CBP, while also serving the need to facilitate legitimate cross-border travel. The following sections describe the current entry-exit process in more detail and provide background on the relevant laws and obligations that pertain to both individuals who attempt to enter and exit the United States, as well as the commercial air or sea carriers who transport those individuals. 1. APIS Data Collection The Aviation and Transportation Security Act of 2001, Public Law 107– 71, 115 Stat. 597, and the Enhanced PO 00000 Frm 00005 Fmt 4701 Sfmt 4702 74165 Border Security and Visa Entry Reform Act of 2002, Public Law 107–173, 116 Stat. 543, together mandated the collection of certain biographical manifest information on all passengers and crew members who arrive in or depart from (and, in the case of crew members, overfly) the United States on a commercial aircraft or vessel. The carrier is generally required to transmit the required manifest information electronically to CBP through the Advance Passenger Information System (APIS).8 This requirement aligns with global standards developed by the World Customs Organization, International Air Transport Association (IATA), and the International Civil Aviation Organization. According to IATA, over 70 countries now require airlines to send advance passenger information before the flight’s arrival.9 In addition, United Nations Security Council Resolution 2178, adopted by the United States, called upon Member States to require airlines provide advance passenger information regarding flights into, out of and through their territories to detect the travel of UN-listed terrorists.10 APIS information includes, but is not limited to, the following information: Full name, date of birth, citizenship, passport/alien registration card number, travel document type, passport number, expiration date and country of issuance (if passport required), alien registration number, country of residence, passenger name record locator number, and U.S. destination address (when applicable). The carrier also collects and transmits to CBP the traveler’s U.S. destination address (except for U.S. citizens, lawful permanent residents, crew and persons in transit through the United States) and country of residence. APIS data allows CBP to effectively and efficiently facilitate the entry and departure of legitimate travelers into and from the United States. Using APIS data, CBP officers can access information on individuals with outstanding wants or warrants and information from other government agencies regarding high risk persons; confirm the accuracy of that information by comparison with information obtained from the traveler and from the carriers; and make immediate determinations as to a traveler’s security risk and admissibility and other determinations bearing on CBP’s 8 See the APIS regulations at 19 CFR 122.49a, 122.49b, 122.49c, 122.75a, and 122.75b. 9 See https://www.iata.org/whatwedo/passenger/ Pages/passenger-data.aspx. Last Accessed October 23, 2020. 10 See https://www.justice.gov/file/344501/ download. Last Accessed October 23, 2020. E:\FR\FM\19NOP3.SGM 19NOP3 74166 Federal Register / Vol. 85, No. 224 / Thursday, November 19, 2020 / Proposed Rules inspectional and screening responsibilities. During the entry processing of the traveler, a CBP officer will verify the traveler’s documents. See Section III.B.2. Through this process, CBP can verify the accuracy of the APIS information the carrier provided to CBP.11 CBP does not receive APIS data for individuals traveling to the United States by foot (pedestrian travelers) or by private vehicle, but it does receive APIS data on a voluntary basis from bus and rail carriers crossing the land border. 2. Current Entry Process Any traveler who requires a nonimmigrant visa to travel to the United States must apply to the DOS under specific visa categories depending on the purpose of their travel, including those as visitors for business, pleasure, study, and employment-based purposes.12 DOS also checks every visa applicant’s biographic and biometric data (i.e., fingerprints and facial images) against U.S. Government databases for records indicating potential risk factors, including security, criminal, and immigration violations. Under DHS regulations, upon arrival into the United States, travelers are required to present themselves to CBP for inspection. See 8 CFR 235.1. Under the current inspection process, CBP obtains information directly from the traveler via travel documents (e.g., passport) presented and/or verbal communications between a CBP officer and the traveler. As a part of this process, a CBP officer typically takes a physical passport from the traveler and electronically ‘‘reads’’ the passport 11 While APIS data has been shown to be highly accurate, information gaps remain. At entry, CBP Officers can, using biometrics and CBP system information, adjudicate any records with incorrect information. However, due to resource constraints there is generally no CBP officer stationed at departure locations to confirm that the APIS data submitted matches the traveler. Using biometrics upon exit, CBP can close informational gaps caused by inaccurate APIS data without additional personnel. 12 Under the Visa Waiver Program (VWP), most citizens or nationals of participating countries may travel to the United States for tourism or business for stays of 90 days or less without obtaining a visa. VWP travelers must have a valid Electronic System for Travel Authorization (ESTA) approval prior to travel. Through ESTA, CBP conducts enhanced vetting of VWP applicants in advance of travel to the United States, to assess whether they are eligible to travel under the VWP, or whether they could pose a risk to the United States or the public at large. All ESTA applications are screened against security and law enforcement databases, and CBP automatically refuses authorization to individuals who are found to be ineligible to travel to the United States under the VWP. Similarly, current and valid ESTAs may be revoked if concerns arise through recurrent vetting. VerDate Sep<11>2014 22:14 Nov 18, 2020 Jkt 253001 using its Machine-Readable Zone (MRZ) to pull up the traveler’s biographic data for inspection. In addition, for aliens (except for those exempt from biometric collection under 8 CFR 235.1), CBP collects fingerprints from the traveler to biometrically verify identity by comparing the travelers fingerprints with those previously collected as a part of a visa application, immigration benefits application, or prior inspection by CBP. Once the identity of the traveler is validated in this manner, the CBP officer conducts an interview with the traveler to establish the purpose and intent of travel, and to determine an alien’s admissibility. At some airports or seaports, some of these processes are facilitated for certain travelers through use of Automated Passport Control kiosks, Mobile Passport Control (mobile apps), or Global Entry kiosks. All travelers must still present themselves to a CBP officer to complete the inspection process. In the land environment, biometric collection may be required when an I– 94 is issued. CBP does not typically issue an I–94 for Mexican nationals admitted as nonimmigrants for a period of 72 hours to visit within 25 miles of the border or for Canadian citizens traveling to the United States for business or pleasure.13 If the travel document is reported as lost or stolen, upon swiping the document to bring up the biographic information of the traveler, CBP systems will alert the CBP officer. In the case of imposters using legitimate documents that have not been reported lost or stolen by their true owners, biometric identifiers (e.g., fingerprints) enable CBP to determine if the traveler is the true bearer of the travel document. As the regulations currently exempt certain aliens from the collection of biometrics, including those under 14 and over 79, as well as individuals in certain visa classes, CBP does not use fingerprints to confirm the traveler’s identity in these cases. For these exempt aliens, as well as those without fingerprints on file (i.e., first time VWP travelers 14), CBP must rely on the interview during the primary inspection process to determine if the traveler is 13 See 8 CFR 235.1(h). travelers traveling under the Visa Waiver Program for the first time, CBP will not have fingerprints on file as these individuals are not required to submit biometrics prior to travel. As such, during the primary inspection process, CBP currently collects fingerprints from these travelers. For future travel, CBP will use the fingerprints collected to biometrically verify his or her identity by comparing the fingerprints with those previously collected during the first visit to the United States. 14 For PO 00000 Frm 00006 Fmt 4701 Sfmt 4702 using a lost or stolen travel document.15 If the CBP officer has a law enforcement concern, then he or she may conduct law enforcement checks (querying but not retaining biometrics) on those exempt individuals, but not for the purpose of biometrically verifying the traveler’s identity. 3. Current Exit Process APIS requirements also apply to travelers departing the United States. CBP electronically records a traveler’s departure by air or sea using the biographic manifest information provided by the commercial air or vessel carrier. Unlike at entry, however, CBP does not routinely inspect travelers departing the United States to confirm that the APIS departure data is accurate or that the traveler is the true bearer of his or her travel document. Currently, persons departing the United States via a commercial aircraft must present their boarding pass and identification when being screened by the Transportation Security Administration (TSA).16 Before boarding, travelers must also present their travel documents and boarding passes to the carrier’s representative at the gate, who visually reviews the travel documents and validates the boarding pass with the carrier’s ticketing system.17 However, once the traveler has been screened by TSA and is in the secure area of the terminal, travelers generally do not have their photo identification scrutinized again before boarding the aircraft. CBP uses APIS information along with other law enforcement information and technology to determine whether CBP needs to further inspect outbound travelers. CBP’s outbound operations enable it to enforce U.S. laws applicable upon departure from the United States and effectively monitor and control the outbound flow of goods and people. In the land environment, CBP does not receive APIS data.18 Persons 15 See footnote 40 regarding an NPRM published by USCIS proposing to remove the age restrictions on fingerprint collection. 16 TSA incorporates unpredictable security measures, both seen and unseen, to accomplish its transportation security mission, see https:// www.tsa.gov/travel/security-screening. Last Accessed October 26, 2020. 17 Pursuant to 19 CFR 122.49a, 122.49b, 122.49c, 122.75a, and 122.75b, the carrier is responsible for comparing the travel document presented by the traveler with the travel document information it is transmitting to CBP in order to ensure that the information is correct, the document appears to be valid for travel purposes, and the traveler is the person to whom the travel document was issued. 18 While bus and rail carriers are not required to submit APIS data, CBP encourages these carriers to participate in CBP’s Voluntary APIS Program, See https://www.cbp.gov/travel/travel-industrypersonnel/apis2. Accessed October 26, 2020. E:\FR\FM\19NOP3.SGM 19NOP3 Federal Register / Vol. 85, No. 224 / Thursday, November 19, 2020 / Proposed Rules departing the United States at the land border are also not consistently subject to CBP inspection, as they are upon arrival. As a result, land departures may not be recorded accurately.19 C. National Security and Immigration Benefits of a Biometric Entry-Exit Program Currently, CBP has a comprehensive automated biographic information-based system that vets and checks aliens entering and departing the United States. While this information is extremely valuable to CBP in completing its mission, no biographic information-based system, by itself, can definitively verify the identity of persons presenting travel and identity documents. As stated by the 9/11 Commission: Linking biometric passports to good data systems and decision making is a fundamental goal. No one can hide his or her debt by acquiring a credit card with a slightly different name. Yet today, a terrorist can defeat the link to electronic records by tossing away an old passport and slightly altering the name in the new one.20 Since the 9/11 Commission Report was released, security features in passports have become significantly stronger. Forensic security features in passports have improved, and most countries began to issue electronic passports (e-Passports) around 2005. EPassports contain an electronic chip embedded in the document that contains the photo of the bearer and the information contained on the passport’s data page, such as the name, date of birth, and country of issuance. The International Civil Aviation Organization maintains standards for the issuance of e-Passports and these standards are adopted by most countries around the world. The increasingly sophisticated features in modern passports have led to the increased use of legitimate documents by imposters posing as the owners of the documents. Twenty years ago, it was far more common to encounter a passport that had been 19 CBP and the Canada Border Services Agency are exchanging biographic data, travel documents, and other border crossing information collected from individuals traveling between the countries at land border ports of entry. This data exchange allows both governments to expand their situational border awareness so that the record of a traveler’s entry into one country can establish a record of exit from the other country. See https://www.dhs.gov/ publication/beyond-border-entryexit-programphase-ii and https://www.dhs.gov/news/2019/07/ 11/us-and-canada-continue-commitment-securingour-borders-begin-phase-iii-entryexit. Accessed October 26, 2020. 20 The 9/11 Commission Report at 389, available at http://govinfo.library.unt.edu/911/report/ 911Report.pdf. Accessed October 26, 2020. VerDate Sep<11>2014 22:14 Nov 18, 2020 Jkt 253001 altered (i.e., changing the name or photo on a document issued legitimately) or manufactured fraudulently. While these cases still occur, the use of e-Passports, combined with sophisticated forensic security features, have made this method of passport fraud prohibitively expensive in most cases. Those seeking to evade detection by DHS or other border or transportation security agencies are turning instead to a relatively cheaper method of fraud— using a non-altered travel document legitimately issued to another person. This type of fraud is mitigated because carriers are required to ensure that the person presenting the travel document is the person to whom the travel document was issued, pursuant to 19 CFR 122.49a(d), 122.49b(d), 122.75a(d) and 122.75b(d). However, the best tool to combat this fraud is to biometrically verify that a person who presents a travel document is the true bearer of that document. CBP’s biometric tests using facial recognition technology support this conclusion. Within three weeks of implementing new facial recognition technology at Washington Dulles International Airport, CBP identified two imposters attempting to enter the United States by using another person’s passport.21 Since then, CBP has identified five additional imposters, for a total of seven imposters identified in the air environment, including two with genuine U.S. travel documents (passport or passport card), who were using another person’s valid travel documents as a basis for seeking entry to the United States.22 In addition, CBP’s facial recognition technology has identified at least 138 imposters, including 45 travelers with genuine U.S. travel documents (passport or passport card) attempting to enter the United States using another person’s travel documents at the San Luis and Nogales, Arizona land border ports.23 Several of these imposters identified in the land environment had criminal histories including assault, extortion, kidnapping, and drug smuggling. CBP anticipates that the number of imposters it is able to catch will increase as the program expands. While it is difficult to quantify the number of instances in which such fraud has occurred but not been identified by CBP because facial recognition technology is not broadly 21 See https://www.cbp.gov/newsroom/localmedia-release/second-impostor-three-weeks-caughtcbp-biometric-verification. Last accessed October 23, 2020. 22 See https://docs.house.gov/meetings/HM/ HM00/20190710/109753/HHRG-116-HM00-WstateWagnerJ-20190710.pdf. Last accessed October 23, 2020. 23 See id. PO 00000 Frm 00007 Fmt 4701 Sfmt 4702 74167 used at present, DHS expects that the implementation of this rule would greatly enhance DHS’s ability to identify more of these imposters. In addition to the benefits this technology can provide on entry, an integrated system, including biometric exit, is also essential for maintaining the integrity of the U.S. immigration system. Under current immigration laws, entering or staying in the United States without official permission from the U.S. government can cause a person to be legally barred from reentry to the United States for a number of years following departure or removal. Pursuant to INA 222(g), a nonimmigrant visa will be void if an alien remains in the United States beyond his or her period of authorized stay. For aliens traveling under the Visa Waiver Program, to remain eligible for the program, aliens must comply with the conditions of admission, including remaining in the U.S. only for the authorized period of stay.24 Depending on the duration of a person’s ‘‘unlawful presence’’ in the United States, that alien may be barred from returning to the United States for three or ten years.25 The absence of an effective biometric exit process has enabled aliens who are present in the United States without having been admitted or paroled or who overstayed their authorized period of admission (overstays) to evade immigration laws and avoid the time bars associated with unlawful presence. Through its limited deployment of biometric exit pilots, CBP has been able to process and document hundreds of aliens who were present in the United States without having been admitted or paroled.26 These cases follow a similar fact pattern. Upon the collection of the traveler’s biometrics, the system is unable to generate a match to any photographs of the traveler on record. Further inspection by CBP officers confirms that the traveler was not previously inspected by CBP or DHS, indicating that they entered the United States illegally. In such cases, CBP creates a biometric exit record for this traveler that will be available to other DHS component agencies, such as U.S. Citizenship and Immigration Services (USCIS) and U.S. Immigration and Customs Enforcement (ICE), as well as the Department of State. If the traveler 24 8 U.S.C. 1187(a)(7) and 8 CFR 217. U.S.C. 1182(a)(9)(B)(i). 26 Source: CBP Enterprise Management Information System-Enterprise Data Warehouse. See Privacy Impact Assessment available at https:// www.dhs.gov/sites/default/files/publications/ privacy-pia-cbp_emis_edw-appendixdapril2019.pdf. Last Accessed October 23, 2020. 25 8 E:\FR\FM\19NOP3.SGM 19NOP3 74168 Federal Register / Vol. 85, No. 224 / Thursday, November 19, 2020 / Proposed Rules has no other derogatory information, then CBP allows the traveler to depart, but maintains a record of the encounter which is used to inform future admissibility-related determinations. As stated in Executive Order 13768, Enhancing Public Safety in the Interior of the United States, ‘‘interior enforcement of our Nation’s immigration laws is critically important to the national security and public safety of the United States. Many aliens who illegally enter the United States and those who overstay or otherwise violate the terms of their visas present a significant threat to national security and public safety.’’ 27 DHS data supports the conclusion that certain status violators and illegal aliens also have links to terrorism and criminal activity.28 Using biometrics, CBP has apprehended criminal aliens who were present in the United States without having been admitted or paroled. For instance, during a recent outbound operation, CBP’s facial recognition generated a ‘‘no-match’’ result for a passenger resulting in further inspection by a CBP officer which then confirmed that the traveler was an alien who was present in the United States without admission or parole and was wanted for aggravated sexual abuse of a minor. Other examples of aliens identified through DHS’s biometric verification system include previously removed aliens who committed felonies such as armed robbery with a firearm, assault with a deadly weapon, and aggravated assault. Since the inception of its biometric exit pilots, CBP has encountered hundreds of cases with similar fact patterns. Because there is no comprehensive system currently in place to collect biometrics at exit, CBP has no way of knowing precisely how frequently these types of cases occur. Identifying aliens who overstay their period of authorized admission is best addressed with a biometric exit program. Each year, millions of visitors are admitted to the United States for limited times and purposes. According to DHS’s Entry/Exit Overstay Report for fiscal year 2019,29 676,422 of nearly 55 million aliens admitted for business or pleasure through air and sea ports of entry that were expected to depart the United States in fiscal year 2019 overstayed their authorized period of 27 See 82 FR 8799 (January 30, 2017). https://www.dhs.gov/news/2017/07/12/ written-testimony-plcy-cbp-and-ice-senatejudiciary-subcommittee-border-and. Accessed October 26, 2020. 29 Available at https://www.dhs.gov/sites/default/ files/publications/20_0513_fy19-entry-and-exitoverstay-report.pdf. Accessed October 26, 2020. 28 See VerDate Sep<11>2014 22:14 Nov 18, 2020 Jkt 253001 admission. This report likely understates the total number of overstays for fiscal year 2019. This is because, due to data reliability concerns, the Overstay Report only included data for aliens who lawfully entered the United States under nonimmigrant visa categories for temporary visitors for business or pleasure. It did not include aliens who entered the United States under other visa categories. In addition, biometric exit verification can allow CBP to address errors that sometimes appear in an alien’s biographic data. Although CBP is typically able to successfully vet aliens seeking admission into and departing from the United States based on biographic data, in some cases a biographic check can fail due to errors or incomplete data. Conducting biometric verification at departure can help uncover these issues in an alien’s biographic data and protect the accuracy of recorded border crossings. During the course of its biometric exit pilots, CBP encountered a number of cases where collecting biometrics from departing travelers revealed errors or incomplete data in a traveler’s biographic record. For instance, on one occasion, CBP’s biometric query of a departing traveler revealed that he was previously convicted for armed robbery with a firearm and had been deported from the United States. The traveler’s biographic data, however, did not reflect this information because of a misspelling on the traveler’s deportation record. On another occasion, CBP’s biometric query revealed that a traveler had been previously removed from the United States under a false identity. Because the traveler had been traveling under the traveler’s true identity, a review of the traveler’s biographic record did not alert the CBP officer to this important factual information. In each of these cases, the biometric query revealed the missing data from the traveler’s biographic data. By performing a biometric check at departure, CBP can reconcile any errors or incomplete data in the traveler’s biographic data, increasing the level of accuracy of CBP’s border crossing records. Ultimately, this provides CBP with more reliable information to better identify persons of law enforcement or national security concern. Finally, a comprehensive and integrated biometric entry-exit system serves an important tool in our fight against global terrorism. Since the 9/11 attacks, the United States remains vulnerable to the threat of global terrorism. The 9/11 Commission recognized that combatting terrorism PO 00000 Frm 00008 Fmt 4701 Sfmt 4702 requires a screening system that examines individuals at multiple points within the travel continuum: For terrorists, travel documents are as important as weapons. Terrorists must travel clandestinely to meet, train, plan, case targets, and gain access to attack. To them, international targets present great danger, because they must surface to pass through regulated channels, present themselves to border security officials, and attempt to circumvent inspection points . . . each of these checkpoints is a screening, a chance to establish that these people are who they say they are and are seeking access for their stated purpose, to intercept identifiable subjects, and to take effective action. The job of protection is shared among these many defined checkpoints. By taking advantage of them all, we need not depend on any one point in the system to do the whole job. The challenge is to see the common problem across agencies and functions and develop a common framework—an architecture—for an effective screening system.’’ 30 The Under Secretary General for the United Nations Office of CounterTerrorism said, ‘‘Terrorists, including foreign terrorist fighters use a wide variety of techniques to travel to destinations all over the world. With the number of international travelers continuing to increase, it is essential that we develop efficient counterterrorism measures that facilitate rapid, efficient and secure processing at our borders.’’ 31 Manuals prepared by terrorist groups such as the Islamic State, also known as ISIS, explicitly understand the need to forge identity papers, passports, and visas to circumvent border checkpoints and smuggle people across borders. Recognizing terrorism as one of the most serious threats to international peace and security and the need to take immediate action to address the evolving threat environment, the United Nations Security Council adopted a resolution on December 21, 2017, calling on member nations to increase aviation security and to develop and implement systems to collect biometric data to properly identify terrorists.32 The resolution was co-sponsored by 66 countries, including the United States, and passed the Security Council with unanimous support. Although CBP’s security mission has mainly been focused on identifying 30 The 9/11 Commission Report at 384–386 (emphasis added), available at http:// govinfo.library.unt.edu/911/report/911Report.pdf. Accessed October 26, 2020. 31 See https://www.un.org/counterterrorism/cct/ border-security-and-management. Accessed October 26, 2020. 32 S/RES/2396 (2017), available at http:// www.un.org/en/ga/search/view_doc.asp?symbol=S/ RES/2396(2017). Accessed October 26, 2020. E:\FR\FM\19NOP3.SGM 19NOP3 Federal Register / Vol. 85, No. 224 / Thursday, November 19, 2020 / Proposed Rules known or suspected terrorists seeking admission to the United States, identifying and intercepting these individuals at departure is critical to effectively combatting terrorism here and abroad. Individuals who seek to inflict harm on the American homeland are not limited to those attempting to enter the United States. Some of these individuals may seek to depart the United States in order to inflict harm to U.S. interests and allies abroad or engage in the terrorist/jihadist movement abroad for training or coordination. For individuals on a terrorist watch list, law enforcement and intelligence agencies may have a need to track that individual’s movements and travel. If that individual can depart the country under an alias without detection, then that impacts the ability of these law enforcement and intelligence agencies to operate effectively. Preventing these individuals from leaving the United States, or at minimum, gaining intelligence on their whereabouts, is critical to diminishing a terrorist network’s ability to mobilize. The need for identifying and tracking suspected terrorists departing the United States is further borne out by current research on the movements of such individuals. According to the George Washington University’s Program on Extremism, out of the 186 individuals who have been charged in the United States on offenses related to the Islamic State since March 2014, 39% were accused of attempting to travel or successfully traveled abroad.33 CBP, as the agency entrusted with securing the border, must verify the identity of those entering and departing with as much accuracy as possible, especially individuals linked to terrorism or criminal activity. As discussed in the 2018 National Strategy for Counterterrorism,34 one of the priority actions for the U.S. Government is to enhance detection and disruption of terrorist travel. By collecting and sharing relevant information on terrorist travel and identities, this information can be used for the benefit of the public and private section to identify and disrupt the movement of terrorists. CBP’s biometric exit program will provide another layer of identity verification and another opportunity to stop these individuals from departing. Despite the agency’s resource 33 See GW Extremism Tracker, The George Washington University, https://extremism.gwu.edu/ sites/g/files/zaxdzs2191/f/Jun19%20Tracker.pdf (last accessed October 26, 2020). 34 See https://www.dni.gov/index.php/nctcnewsroom/item/1911-white-house-releasesnational-strategy-for-counterterrorism. Accessed October 26, 2020. VerDate Sep<11>2014 22:14 Nov 18, 2020 Jkt 253001 constraints at departure, CBP has identified many recent national security cases that resulted from examining foreign nationals departing the United States on international flights. In several of these cases, CBP’s outbound examination of the individual revealed his or her connections to terrorist and militia groups abroad. Using a biometric verification system, CBP can update the individual’s border crossing record with this information, linking it to his or her biometrics, which provides greater assurance that the government will be able to identify this individual in the event of future encounters. Identifying overstays and aliens who are present in the United States without admission or parole is essential to maintaining the integrity of the U.S. immigration system and to national security as a whole. Expanding the biometric entry-exit program to create an integrated system will enable CBP to better identify overstays and aliens who are present in the United States without admission or parole. Furthermore, by providing an accurate way to verify an individual’s identity, a biometric entryexit system can effectively combat attempts by foreign national terrorists to circumvent border checkpoints using false identity documents. Establishing such a system is crucial to our efforts to respond to the continuing threat of global terrorism. D. Biometric Entry-Exit Program History 1. Implementation of US-VISIT In 2003, DHS established the legacy United States Visitor and Immigrant Status Indicator Technology (US-VISIT) program to develop a system to collect biographic data and biometrics from aliens at U.S. ports of entry. On January 5, 2004, DHS implemented the first phase of the legacy US-VISIT biometric program by publishing an interim final rule in the Federal Register (69 FR 468), which provided that certain aliens seeking admission to the United States through nonimmigrant visas must provide fingerprints, photographs, or other biometrics upon arrival in, or departure from, the United States at air and sea ports of entry. The interim final rule amended 8 CFR 235.1 to authorize DHS to require certain aliens who arrive at designated U.S. air and sea ports of entry to provide biometric data to CBP during the inspection process. DHS designated the air and sea ports of entry where the collection of biometrics from certain aliens upon entry would occur PO 00000 Frm 00009 Fmt 4701 Sfmt 4702 74169 in a series of notices published in the Federal Register.35 The January 5, 2004 interim final rule also added 8 CFR 215.8 to provide that the Secretary, or designee, may establish pilot programs to collect biometric information from certain aliens departing the United States at up to 15 air or sea ports of entry, designated through notice in the Federal Register. Pursuant to § 215.8(a)(1), DHS designated the 15 air and sea ports of entry where the collection of biometrics under exit pilot programs would occur in a series of notices published in the Federal Register.36 On August 31, 2004, DHS implemented the second phase of the legacy US-VISIT biometric program by publishing an interim final rule in the Federal Register (69 FR 53318) expanding the US-VISIT program to include aliens seeking admission under the Visa Waiver Program (VWP) 37 and travelers arriving at designated land border ports of entry. DHS designated the land ports of entry at which biometrics would be collected from certain aliens upon entry in two notices published in the Federal Register.38 The 35 On January 5, 2004, DHS issued a notice in the Federal Register (69 FR 482) designating 15 airports and 14 seaports for the collection of biometrics from aliens upon entry. On August 20, 2004, DHS published a notice in the Federal Register (69 FR 51695) identifying six new air and sea ports of entry for inclusion in the legacy US-VISIT program and removing two ports of entry that were inadvertently included in the legacy US-VISIT program in the January 5, 2004 notice. 36 On January 5, 2004, DHS issued a notice in the Federal Register (69 FR 482) identifying one airport and one seaport as ports designated for the collection of biometrics from aliens departing the United States under exit pilot programs. On August 3, 2004, DHS published a notice in the Federal Register (69 FR 46556) designating 13 additional ports for the collection of biometrics from aliens departing the United States under exit pilot programs. On August 20, 2004, DHS published a notice in the Federal Register (69 FR 51695) replacing two ports of entry inadvertently included in the exit pilot programs in the August 3, 2004 notice with two airports to maintain the full number of 15 exit pilot programs. 37 Pursuant to INA 217 (8 U.S.C. 1187), the Secretary of Homeland Security, in consultation with the Secretary of State, may designate certain countries as VWP program countries if certain requirements are met. Citizens and eligible nationals of VWP countries may apply for admission to the United States at a U.S. port of entry as nonimmigrant aliens for a period of 90 days or less for business or pleasure without first obtaining a nonimmigrant visa, provided that they are otherwise eligible for admission under applicable statutory and regulatory requirements. The list of countries which currently are eligible to participate in VWP is set forth in 8 CFR 217.2(a). 38 On November 9, 2004, DHS published a notice in the Federal Register (69 FR 64964) identifying the 50 most trafficked land border ports of entry where biometric data would be collected from certain aliens upon entry. On September 14, 2005, DHS published a notice in the Federal Register (70 E:\FR\FM\19NOP3.SGM Continued 19NOP3 74170 Federal Register / Vol. 85, No. 224 / Thursday, November 19, 2020 / Proposed Rules August 31, 2004 interim final rule also amended § 215.8 to authorize DHS to establish pilot programs to collect biometrics from aliens upon departure at designated land border ports of entry, in addition to the 15 designated air or sea ports at which DHS was authorized to conduct biometric exit pilot programs. See 8 CFR 215.8(a)(1). On December 19, 2008, DHS published a final rule in the Federal Register (73 FR 77473) expanding the population of aliens subject to legacy US-VISIT to nearly all aliens, including lawful permanent residents.39 The rule also finalized the August 31, 2004 interim final rule without change. As a result of the above rules and notices, DHS now collects biometrics from aliens upon entry, with certain exemptions provided in the regulations, at all air, sea and land ports of entry. The following categories of aliens currently are exempt from the requirements under 8 CFR 215.8 and 235.1 to provide biometrics upon arrival to, and departure from, the United States at a U.S. port of entry: • Aliens under the age of 14 and over the age of 79; 40 • Aliens admitted on an A–1, A–2, C– 3 (except for attendants, servants, or personal employees of accredited officials), G–1, G–2, G–3, G–4, NATO– 1, NATO–2, NATO–3, NATO–4, NATO– 5, or NATO–6 visa; • Certain Taiwan officials who hold E–1 visas and members of their immediate families who hold E–1 visas unless the Secretary of State and the Secretary of Homeland Security jointly determine that a class of such aliens should be subject to the requirements; and • Canadian citizens under INA 101(a)(15)(B) (8 U.S.C. 1011(a)(15)(B)) who are not otherwise required to present a visa or be issued Form I–94 or Form I–95 for admission or parole into the United States.41 See 8 CFR 235.1(f)(1)(ii), (iv); 8 CFR 215.8(a)(1)–(2). In addition, the Secretary of State and the Secretary of Homeland Security may jointly exempt classes of aliens from this requirement. The Secretaries of State and Homeland Security, in consultation with the directors of the relevant intelligence FR 54398) identifying additional land ports of entry in which aliens would be enrolled in legacy USVISIT upon entry into the United States. 39 See INA 101(a)(3). The term ‘‘alien’’ means any person not a citizen or national of the United States. 40 On September 11, 2020 USCIS published an NPRM proposing to remove the age exemptions in 8 CFR 215.8 and 8 CFR 235.1 regarding biometrics collection at entry and exit. See, 85 FR 56338. 41 This category of exemptions covers Canadian citizens traveling on a B1 or B2 visa. VerDate Sep<11>2014 22:14 Nov 18, 2020 Jkt 253001 agencies, also may exempt any individual from this requirement. See 8 U.S.C. 1365b; 8 CFR 235.1(f)(1)(iv)(C)– (D); 8 CFR 215.8(a)(2)(iii)–(iv). 2. Exit Pilot Programs and the Transfer of Entry and Exit Operations to CBP While DHS successfully implemented biometric entry capability at all ports of entry, establishing a biometric exit solution posed greater challenges. From January 2004 through May 2007, DHS conducted a series of exit pilot programs at 12 airports and 2 cruise ports across the United States.42 These pilots were conducted pursuant to 8 CFR 215.8.43 Under these exit pilot programs, DHS evaluated various technologies and processes to collect biometric data from aliens at the time of departure. DHS found that biometrics provide a significant enhancement to the existing ability to match arrival and departure records as biometrics provides greater assurance of identity verification. In addition, DHS found that each of the various technologies used to collect biometric exit records worked and that compliance with biometric exit procedures improved when the process was convenient for travelers. In a report dated June 28, 2007, the Government Accountability Office stated that ‘‘in particular, on average only about 24 percent of those travelers subject to USVISIT actually complied with the exit processing steps. The evaluation report attributed this, in part, to the fact that compliance during the pilot was voluntary, and that to achieve the desired compliance rate, the exit solution would need an enforcement mechanism.’’ 44 However, DHS also found that the collection process used during those pilots was inadequate and unsuitable for a nationwide deployment because it required significant DHS resources and also depended upon the facility operator, in this case airports, to provide adequate space for the collection of biometric data. The pilots beginning in 42 The ports of entry included in the pilot were: Baltimore/Washington International Thurgood Marshall Airport; Chicago O’Hare International Airport; Denver International Airport; Dallas Fort Worth International Airport; Miami Cruise Terminal; San Juan Luis Munoz Marin International Airport; Detroit Metropolitan Wayne County Airport (McNamara Terminal); Newark Liberty International Airport; San Francisco International Airport; Los Angeles Cruise Terminal; HartsfieldJackson Atlanta International Airport; Philadelphia International Airport; Ft. Lauderdale/Hollywood International Airport; and Seattle-Tacoma International Airport. 43 See footnote 36. 44 See U.S. Government Accountability Office, ‘‘Prospects for Biometric US-VISIT Exit Capability Remain Unclear’’ (June 28, 2007), available at https://www.gao.gov/assets/120/117187.pdf. PO 00000 Frm 00010 Fmt 4701 Sfmt 4702 2004 used kiosks placed between the security checkpoint and airline gates that would collect a traveler’s fingerprint biometrics. The traveler had the responsibility to find and use the devices, with varying degrees of support from the airports where the pilots were deployed. DHS also hired contract teams to assist travelers in finding and using the kiosks. Although the specific fingerprint technology collection generally worked as intended when it was utilized, the overall compliance rate was low because travelers often departed without providing their biometrics. DHS concluded from these pilots that it was generally inefficient and impractical to introduce entirely new government processes into an existing and familiar traveler flow, particularly in the air environment. Unlike many airports in Europe and around the world, United States transportation infrastructure was not built with departure control in mind, and does not have existing space within its airports to biometrically process departing travelers. Because DHS was required to secure space within the airports from the private sector, and because space within airports is limited and valuable from a commercial perspective, DHS’s biometric exit pilots tended to operate in relatively inconvenient locations, which contributed to low compliance rates. Overall, DHS concluded that a biometric collection process that fit, to the extent practicable, within the existing traveler flow was necessary for successful implementation. The facial recognition technology required to reliably implement biometric exit processes into existing traveler flows has not been available until recently. Overall, DHS’s conclusion is that the process of collecting biometric exit records should be integrated into the existing departure process. From May through June 2009, DHS operated two biometric air exit pilots as required by the Consolidated Security, Disaster Assistance, and Continuing Appropriations Act, 2009, Public Law 110–329, 122 Stat. 3574, 3669–70. DHS announced the implementation of these biometric air exit pilots at Atlanta, Georgia (Hartsfield-Jackson Atlanta International Airport), and Detroit, Michigan (Detroit Metropolitan Wayne County Airport), by notice published in the Federal Register.45 The pilots tested the collection of biometric exit data in two scenarios: First, the collection of biometric information consisting of one or more electronic fingerprints by CBP at the departure gate using a hand-held 45 74 E:\FR\FM\19NOP3.SGM FR 26721 (June 3, 2009). 19NOP3 Federal Register / Vol. 85, No. 224 / Thursday, November 19, 2020 / Proposed Rules mobile device or other portable device; and second, biometric information consisting of one or more electronic fingerprints collected by TSA at the TSA security checkpoint using a mobile device. Although the technology worked as expected and DHS successfully captured the biometric data, DHS concluded that the use of mobile and portable devices to capture electronic fingerprints would be extremely resource-intensive and costly to implement and maintain on a larger scale. Beginning in December 2009, CBP conducted the Temporary Worker Visa Exit Program Pilot in San Luis, Arizona and Douglas, Arizona, under which aliens admitted on certain temporary worker visas were required to depart from designated land ports of entry and submit certain biographical and biometric information at one of the outdoor kiosks established for this purpose.46 In its evaluation of the pilot, CBP identified several issues, including difficulties participants experienced in understanding the requirements and using the kiosks, resource and staffing burdens, unreliable kiosk operability due to the harsh desert climate, and infrastructure challenges. As a result, CBP discontinued the Temporary Worker Visa Exit Program Pilot in September 2011.47 In 2013, pursuant to the Consolidated and Further Continuing Appropriations Act, 2013, Public Law 113–6, 127 Stat. 198, Congress transferred US-VISIT’s entry-exit policy and operations, including responsibility for implementing a biometric exit program, to CBP; US-VISIT’s biometric identity management functions to the newly created Office of Biometric Identity Management (OBIM) within DHS’s National Protection and Programs Directorate (now Cybersecurity and 46 In December 2008, DHS promulgated a final rule establishing the Temporary Worker Visa Exit Program under 8 CFR 215.9, to be started on a pilot basis. See 73 FR 76891 (Dec. 18, 2008) (final rule establishing the Temporary Worker Visa Exit Program at 8 CFR 215.9 for aliens admitted on an H–2A visa) and 73 FR 78104 (Dec. 19, 2008) (final rule amending 8 CFR 215.9 to include aliens admitted on an H–2B visas). CBP, through notices published in the Federal Register, designated aliens admitted under H–2A and H–2B visas who entered the United States at either the port of San Luis, Arizona or the port of Douglas, Arizona as participants in the Temporary Worker Visa Exit Program Pilot. See 73 FR 77049 (Dec. 18, 2008) (notice designating H–2A temporary workers and the ports of entry), and 73 FR 77817 (Dec. 19, 2008) (notice designating H–2B temporary workers); see also 74 FR 42909 (Aug. 25, 2009) (notice announcing the postponement of the pilot until December 8, 2009). 47 See 76 FR 60518 (Sept. 21, 2011). VerDate Sep<11>2014 22:14 Nov 18, 2020 Jkt 253001 Infrastructure Security Agency 48); and US-VISIT’s overstay analysis mission to ICE within DHS. E. Recent Developments in the Biometric Entry-Exit System In 2015 and 2016, CBP conducted the following four biometric tests, three at airports and one at a land port: (1) Biometric Exit Mobile Air Test (BEMobile); (2) 1 to 1 Facial Comparison Project; (3) Southwest Border Pedestrian Exit Field Test; and (4) Departure Information Systems Test. In October 2017, CBP began testing a streamlined entry process using facial recognition technology known as ‘‘Simplified Arrival.’’ Since 2017, CBP has partnered with a number of airlines and airport authorities to test a facial-recognition exit process for international flights at certain locations. In 2018, CBP began conducting biometric pilot programs at the land border in Anzalduas, Texas and Nogales and San Luis, Arizona. Summaries of the tests, lessons learned, and conclusions are set forth below. 1. Biometric Exit Mobile Experiment (BE-Mobile) In the summer of 2015, CBP began deploying the BE-Mobile pilot at the 10 highest volume international airports in the United States.49 Under this pilot, CBP officers stationed at the passenger loading bridges of selected flights used a handheld mobile device to scan fingerprints and passports of certain aliens at the time of their departure from the United States at designated airports. The biometric and biographic data collected by the BE-Mobile device was matched against data such as departures and arrivals in the United States, criminal histories, and lawful immigration status. The goal of the BEMobile pilot was to evaluate the viability of using handheld mobile technology to collect exit data from a sample population on randomly selected flights within a specified airport, as well as to evaluate the viability of implementing biometric exit in conjunction with CBP’s outbound enforcement operations.50 In its evaluation of the pilot, CBP concluded that while the handheld mobile technology can effectively capture biometric data and match that data against DHS databases, the handheld devices required too much 48 As a result of the Cybersecurity and Infrastructure Agency Act of 2018, OBIM was transferred to the DHS Management Directorate. 49 See 80 FR 44983 (July 28, 2015). 50 CBP conducts traveler targeting operations to vet inbound and outbound travelers from commercial airlines to identify potential high-risk individuals, such as terrorists. PO 00000 Frm 00011 Fmt 4701 Sfmt 4702 74171 time and manpower to be a biometric exit solution on all flights departing the United States. However, CBP concluded that BE-Mobile does provide some benefits when used to assist with outbound enforcement operations. For instance, BE-Mobile allows officers to identify travelers who have suspicious travel histories or other derogatory information for further investigation by searching databases that detail individuals’ travel patterns, visa status, and criminal records. Similarly, BEMobile can identify travelers exiting the country who do not have corresponding entry information, indicating that they potentially entered the country without having been admitted or paroled. Finally, BE-Mobile may identify individuals who have overstayed their period of admission, allowing CBP to collect more accurate overstay information. CBP is currently utilizing the same technology tested in the BE-Mobile pilot at the original 10 airports as an enforcement tool for use by CBP officers. Since 2017, CBP has expanded the use of the BE-Mobile technology as an enforcement tool to additional airports and, more recently, land ports.51 BE-Mobile technology also serves as an additional identity verification tool for CBP’s biometric pilots using facial recognition technology in the air and land environments, and CBP is considering it for use in the sea environment, as well. 2. 1 to 1 Facial Comparison Project From March to May 2015, CBP tested the 1 to 1 Facial Comparison Project at Dulles International Airport.52 This pilot was intended to assist CBP officers in matching travelers to their passport photo. After the conclusion of the pilot program, the technology was deployed for use at both Dulles International Airport and John F. Kennedy International Airport for U.S. citizens and first-time VWP travelers. The technology compares a photograph taken of the traveler by a CBP officer upon entry to the photograph stored on the traveler’s electronic passport to assess whether the individual applying for entry into the United States is the 51 See Biometric Exit Mobile Program PIA, available at https://www.dhs.gov/sites/default/files/ publications/privacy-pia-cbp026a-bemobilejune2018.pdf. Last Accessed October 26, 2020. 52 See https://www.dhs.gov/publication/facialrecognition-air-entry-pilot; https://www.cbp.gov/ sites/default/files/documents/502050_ 1to1%20Face%20ePassport_ Fact%20Sheet%208.5x11_OFO_05222015_FINAL_ Online.pdf. Accessed October 26, 2020. E:\FR\FM\19NOP3.SGM 19NOP3 74172 Federal Register / Vol. 85, No. 224 / Thursday, November 19, 2020 / Proposed Rules same person to whom the passport was legally issued.53 Although the capability was tested at the time of entry to the United States, the information gathered through the pilot was intended to also inform the acquisition of a biometric exit capability. The results of the pilot showed that biometric facial matching can increase the confidence with which CBP officers verify individuals’ identities without a negative impact to port of entry operations and traveler wait times. Further, the results of this pilot aided CBP in determining the appropriate technical specifications needed for the air travel environment, which CBP could then test at exit by air. 3. Southwest Border Pedestrian Exit Field Test From February to May 2016, CBP conducted a pilot program to test facial and iris scanning technology at the Otay Mesa port of entry south of San Diego, California.54 The purpose of the test was to determine if biometric technology could be effectively used in an outdoor land environment without significant impact to operations and wait times, and to determine if collecting biometrics in conjunction with biographic data upon exit would assist CBP in identifying individuals who have overstayed their period of admission. Under this pilot program, CBP collected biographic data from all travelers departing the United States at the Otay Mesa port of entry, and biometrics (facial images and/or iris scans) from all aliens, except for those exempt pursuant to 8 CFR 215.8(a)(2) and 235.1(f)(1)(iv), entering and departing the Otay Mesa port of entry on foot. Before departing, travelers scanned their passports at a radio frequency identification-enabled kiosk. One collection lane was equipped with facial and iris scanning equipment that required the traveler to pause for biometric data collection. Another lane was equipped with technology that collected facial and iris images while the traveler continued through the lane without pausing. The pedestrian exit field test allowed CBP to test the capability of biometrics other than fingerprints in an outdoor environment. The pilot also provided information about the physical 53 The 1 to 1 Facial Comparison Project focused on U.S. citizens and first-time Visa Waiver Program travelers because fingerprint biometrics are already available to verify other travelers upon admission to the United States. 54 See 80 FR 70241 (Nov. 31, 2015) and PIA, available at https://www.dhs.gov/sites/default/files/ publications/privacy-pia-cbpswborderpedestrianexit-november2015.pdf. Accessed October 26, 2020. VerDate Sep<11>2014 22:14 Nov 18, 2020 Jkt 253001 challenges to implementing face and iris scanning technology at land ports of entry. The successful implementation of a biometric capture system requires infrastructure tailored to mitigate both environmental factors that degrade image quality and human factors that inhibit travelers from properly interacting with the biometric capture system. Environmental factors included issues such as light, temperature, and items within the biometric camera field of view. Certain human factors, such as traveler attire and attentiveness, did impact technology effectiveness. The test highlighted the need for biometric scanning equipment to be located inside for protection from the elements, while recognizing that some land ports of entry do not have sufficient space for such infrastructure. 4. Departure Information Systems Test In June 2016, in partnership with an airline, CBP deployed the Departure Information Systems Test pilot at Atlanta’s Hartsfield-Jackson International Airport.55 The goal of the pilot was to evaluate the effectiveness of biometric facial recognition matching of a real-time photograph of an individual to a gallery of photographs stored in a database. The field trial was designed to use existing CBP systems and to leverage data already provided to CBP by the traveler and airlines for matching purposes. Additionally, the field trial was designed to support existing business practices of airlines and fit within existing infrastructure at U.S. airports. During the pilot, photographs of travelers taken during boarding were compared to photographs taken previously (as part of a U.S. passport application, a U.S. visa application, or through DHS encounters such as admission processing) that had been stored in the gallery. The names on the outbound flight manifest were used to populate the gallery with potential matches to the travelers boarding the flight. The device used to capture the photographs upon departure consisted of a camera, document reader, and display tablet. The display tablet instructed travelers to present their boarding pass to the reader as they approached the unit. Once the boarding pass was scanned, a camera captured a photograph of the traveler’s face. After the system matched the photograph to the photographs in the gallery, an 55 See https://www.dhs.gov/sites/default/files/ publications/privacy-pia-cbp-dis%20testjune2016.pdf and https://www.cbp.gov/newsroom/ local-media-release/cbp-deploys-test-departureinformation-systems-technology-hartsfield. Accessed October 26, 2020. PO 00000 Frm 00012 Fmt 4701 Sfmt 4702 indicator light appeared and the traveler was instructed to proceed to board the plane. In the event the system did not produce a match, a CBP officer could attempt to verify the traveler’s identity through in person manual review and use of other available information. For the pilot, CBP deployed the capability at one gate and for one daily nonstop flight from Atlanta to Tokyo. Today, this technology, now operating as the Traveler Verification Service (TVS), is recording biometric exit records for a limited number of daily international flights at a number of international airports.56 5. Land Border Biometric Tests In 2018, CBP began testing a number of different processes to develop a biometric entry-exit system to track aliens entering and departing the United States at the land border. For example, in September 2018, CBP began a technical demonstration at the San Luis port of entry in Arizona, testing the collection of photographs from pedestrian travelers entering the United States.57 Under this technical demonstration, CBP uses a facial recognition system to collect photographs of in-scope travelers entering the United States. CBP expanded this pilot to Nogales, Arizona in October 2018 and to Brownsville, Texas; Progresso, Texas; and Blaine, Washington in 2020. CBP has also explored using facial recognition technology in the vehicle environment. From August 2018 to February 2019, CBP conducted the Vehicle Face demonstration at Anzalduas, Texas, which captured facial images of vehicle occupants ‘‘at speed’’ under 20 mph and biometrically matched the new images against a TVS gallery of recent travelers.58 For this demonstration, CBP installed several cameras in inbound lanes just prior to the existing vehicle lane infrastructure and in outbound lanes just beyond the license plate reader vehicle footprint. Vehicles proceeded through the respective inbound and outbound lanes as normal, with CBP officers processing vehicle occupants at the primary inbound booths using existing CBP software applications and technology. This process captured the biographic data of the vehicle occupants, associated the travelers with the vehicle, and created an exit crossing record for the 56 See https://www.biometrics.cbp.gov/air for an up to date listing of these airports. 57 See https://www.cbp.gov/newsroom/localmedia-release/cbp-implement-facial-comparisontechnical-demonstration-port-san-luis. Accessed October 26, 2020. 58 See 83 FR 56862 (Nov. 14, 2018). E:\FR\FM\19NOP3.SGM 19NOP3 Federal Register / Vol. 85, No. 224 / Thursday, November 19, 2020 / Proposed Rules occupants. The identification numbers assigned to the exit crossing records were associated with scene and facial images captured during this demonstration so that analysts could compare the biographic crossing data with the facial images and biometric matching. This demonstration did not impact the current experience of the travelers or officers, except during normal outbound operations in which CBP officers stopped vehicles and processed the occupants using a TECS System application. After an evaluation of these and any other pilot programs, CBP plans to implement a long-term biometric exit solution at the land border that would address the unique operational and infrastructure challenges that exist in that environment. 6. Simplified Arrival In October 2017, CBP began testing Simplified Arrival, a streamlined entry process using facial recognition technology at Atlanta’s HartsfieldJackson International Airport. Under Simplified Arrival, CBP uses facial recognition technology to biometrically verify a traveler’s identity. Under this process, CBP uses APIS manifest data to retrieve existing traveler photographs from government databases, including CBP’s own data systems, passport and visa databases of the Department of State, and other DHS holdings such as DHS’s Automated Biometric Identification System (IDENT), to build a photo gallery of travelers who are expected to arrive in the United States. At the inspection booth, CBP captures a ‘‘live image’’ of the traveler and matches it to a photograph in the pre-assembled gallery. Both the live image and the gallery photograph are displayed to the CBP officer along with the traveler’s biographic data. The CBP officer then conducts an interview with the traveler to validate the results and complete the inspection process.59 In addition to Atlanta, CBP is now testing Simplified Arrival for arriving travelers on international flights at locations including, Miami International Airport, Orlando International Airport, George Bush Intercontinental Airport, Houston Hobby, San Antonio International Airport, San Francisco International Airport, Dallas—Fort Worth International Airport, Norman Y. Mineta San Jose International Airport, Fort Lauderdale-Hollywood International Airport, Washington 59 Currently, U.S. citizens and aliens exempt under 8 CFR 235.1(f) may voluntarily participate in Simplified Arrival or instead undergo the normal inspection process. VerDate Sep<11>2014 22:14 Nov 18, 2020 Jkt 253001 Dulles International Airport, McCarran International Airport, Detroit Metropolitan Airport, San Diego International Airport, John F. Kennedy International Airport, Newark International Airport, and Los Angeles International Airport. CBP is also testing Simplified Arrival for arriving travelers processed through the preclearance facilities at locations including Queen Beatrix International Airport, Aruba; Shannon Airport and Dublin Airports, Ireland; and Abu Dhabi International Airport, United Arab Emirates.60 7. Public-Private Partnerships Since June 2017, certain airlines, such as JetBlue Airways, Delta Air Lines, and British Airways, have volunteered to use their own technology in partnership with CBP to test a facial recognitionbased boarding process for international flights that would facilitate identity verification, and also assist CBP in meeting its congressional mandate to implement biometric exit. In compliance with CBP’s business requirements, these stakeholders deployed their own camera operators and camera technology meeting CBP’s technical specifications to capture photographs of travelers boarding certain international flights via a facial biometric capture device. The photographs are sent to CBP’s TVS via a secure, encrypted connection, which will indicate to the airline if each traveler’s identity can be verified. The technology has the potential to speed up the departure for airlines and travelers, as it enables identity verification without manual verification of the boarding pass and scanning of the passport. This new process can assist carriers to more efficiently and accurately comply with their obligation to ensure that the person presenting the travel document is the person to whom the travel document was issued, pursuant to 19 CFR 122.49a(d), 122.49b(d), 122.75a(d) and 122.75b(d). In some of these tests, the biometric verification process has replaced the use of boarding passes. Eventually, participating airlines may choose to eliminate boarding passes entirely or use the technology to speed up other processes. Participating airlines, in partnership with CBP, are testing this facial recognition-based boarding process on select international flights at locations including: Atlanta Hartsfield-Jackson International Airport, Boston Logan International Airport, Chicago O’Hare 60 See https://www.biometrics.cbp.gov/air for an up to date list of locations where CBP is testing Simplified Arrival. PO 00000 Frm 00013 Fmt 4701 Sfmt 4702 74173 International Airport, Dallas/Fort Worth International Airport, Detroit Metropolitan Wayne County Airport, Fort Lauderdale—Hollywood International Airport, William P. Hobby Airport, George Bush Intercontinental Airport, McCarran International Airport, Miami International Airport, Minneapolis-St. Paul International Airport, Newark Liberty International Airport, John F. Kennedy International Airport (New York), Orlando International Airport, Portland International Airport, Salt Lake City International Airport, San Antonio International Airport, San Francisco International Airport, Washington Dulles International Airport, and Ronald Reagan Washington National Airport.61 F. Proposed Facial Recognition Based Entry-Exit Process Based on CBP’s extensive biometric tests discussed above, DHS has determined that facial recognition technology can provide a successful foundation for a biometric exit solution, as well as an improved and more streamlined biometric entry process. The following sections will discuss CBP’s proposed facial recognition based entry-exit process. This process will be implemented first at commercial air ports of entry. Full implementation at for land and sea ports of entry will follow after CBP has tested and refined its biometric exit strategies in those environments. Some of the facial recognition based entry and exit processes described below may already be implemented in limited form at entry or under biometric exit pilot programs. For such existing processes, CBP adheres to all applicable laws or regulations that govern its collection of biometrics. If this proposed rule is implemented, CBP will be able to collect facial images under the processes described here from all aliens arriving and departing the United States. 1. Benefits of a Facial Recognition Based Process Using facial recognition technology, CBP has developed a model for moving forward with implementing a biometric exit solution, starting at airports. As fingerprint scans have proven to be an effective law enforcement tool, CBP will continue to capture fingerprints as the initial identification biometric. CBP may elect not to collect fingerprints for subsequent identity verification where CBP has implemented facial 61 See https://www.biometrics.cbp.gov/air for an up to date list of locations where CBP is testing facial recognition on international flights departing from the United States. E:\FR\FM\19NOP3.SGM 19NOP3 74174 Federal Register / Vol. 85, No. 224 / Thursday, November 19, 2020 / Proposed Rules recognition. Fingerprint scans can be used for most aliens should facial recognition fail to properly identify the traveler. CBP has determined that facial recognition technology is currently the best available method for biometric verification as it is efficient, accurate, and unobtrusive. The key benefit of a biometric entry-exit system based on facial recognition is its efficiency; it can leverage information that all travelers provide to the U.S. government as a condition for international travel. Photographs of all travelers are readily available to DHS through sources such as previous encounter photos and visa databases, eliminating the need to collect new information and add another layer to travel process. In addition, a system that matches a traveler’s facial biometrics against a limited number of stored photographs, rather than an entire government database of photographs, significantly reduces the amount of time necessary to verify a traveler’s identity. As a result, CBP is able to verify the identity of arriving or departing travelers with a high degree of efficiency while facilitating travel for the public. Biometric verification using facial recognition is highly accurate. As of September 2018, CBP’s facial recognition technology was able to match travelers at a rate of greater than 97 percent. If the system fails to match a traveler, then a manual review of the traveler’s document is performed, just as the process is conducted today. Additionally, CBP has a rigorous process in place to review data and metrics associated with biometric facial recognition matching performance. CBP is working with DHS Science and Technology (S&T) Directorate to continue to develop and refine methods to analyze any differences that are discovered in matching performance (e.g., age,62 gender, and citizenship) based on the available data collected through biometric entry-exit operations. CBP is also seeking the expertise of the National Institute of Standards and Technology (NIST) in evaluating the performance and core algorithm capability of face recognition algorithms. CBP’s presently available data demonstrates marginal differences in match rate between age, gender, or 62 Currently, the regulations provide that aliens younger than 14 or older than 79 are exempt from the collection of biometrics upon entry and departure from the United States. See 8 CFR 215.8(a) and 235.1(f)(1); see also Section III.D.1 for more discussion. CBP will collect additional data on these populations and evaluate match rates once the regulations are amended to include these age groups. VerDate Sep<11>2014 22:14 Nov 18, 2020 Jkt 253001 citizenship.63 CBP will continue to work with its partners to develop methods to address any performance variations within the system. As an added benefit, a biometric entry-exit system based on facial recognition is relatively unobtrusive. It relies on current traveler behaviors and expectations; most travelers are familiar with cameras and do not need to learn how to have a photograph taken. Finally, the biometric capture device can be installed at an airline departure gate without any necessary changes to existing airport infrastructure. To fully implement an effective biometric entry-exit system in a secure and comprehensive manner, and to avoid another layer in the travel process, DHS has concluded that it may be necessary to collect photographs from all aliens upon entry and/or departure from the United States.64 In this proposed rule, DHS proposes to amend the regulations to provide that all aliens may be required to be photographed upon entry and/or departure. Failure to comply with a requirement to be photographed upon entry and/or departure may be found to constitute a violation of the terms of the alien’s admission, parole, or other immigration status and, where the failure to comply is upon entry, may result in a determination that the alien is inadmissible under section 212(a) of the Immigration and Nationality Act or any other law.65 By collecting photographs from all aliens departing the United States, DHS can more effectively verify their identity and confirm their departure. This collection also helps identify visa overstays and aliens who are present in the United States without having been admitted or paroled, and prevent their illegal reentry into the United States, as well as prevent visa fraud and the use of fraudulent travel documents. It also helps DHS identify known or suspected 63 Based on June 2017–May 2018 CBP Air Exit data from ATL, HOU, IAD, IAH, JFK, LAS, LAX, MIA, ORD, SEA, SFO. Please see Evaluating Bias in the docket for this rulemaking. See also NIST Interagency Report 8271, available at https:// doi.org/10.6028/NIST.IR.8271. 64 Currently, the regulations provide that certain aliens are exempt from the collection of biometrics upon entry and departure from the United States. See 8 CFR 215.8(a) and 235.1(f)(1); see also Section III.D.1 for more discussion. 65 See proposed 8 CFR 215.8(b) and 235.1(f)(1)(iv). In the event of technical failures preventing the capture and matching of photographs of travelers at exit, air carriers will be directed to use manual boarding processes until the systems are functional. In this scenario, a biographic exit record will be created for the traveler but a biometric confirmation will not exist. A missing biometric confirmation record based on technology or operational failures is not considered non-compliance with departure requirements. PO 00000 Frm 00014 Fmt 4701 Sfmt 4702 terrorists or criminals traveling using someone else’s documents, before they depart the country. By confirming that the traveler is not the true bearer of a presented travel document, the traveler would then be subject to further inspection, first by the airline and also in some circumstances by CBP officers, which may include fingerprinting and/ or an interview. Through this additional inspection, CBP would be better able to identify known criminals and other threats to border security. The collection of photographs from all aliens avoids the need to have different processes at the point of departure for alien travelers who are currently subject to the collection of biometrics and those who are not. Collecting photographs from all alien travelers aligns with international passport standards, which require a photograph of the traveler on the document regardless of age or classification. Having multiple processes for different alien travelers at the departure gate would add another layer to the travel process and place significant burdens on carriers, airports and other port facilities, and the traveling public. Also, at certain locations, such as at an international departure gate at an airport, there may not be sufficient space for multiple lines of alien travelers. DHS has also determined that the collection of photographs from all aliens at entry is necessary, without regard to age or visa classification. Based on NIST’s research, CBP has found that effectiveness of a biometric entry-exit system based on facial recognition improves when more sources of biometrics are available to match against.66 A photograph collected from a traveler upon entry to the United States would provide DHS with another data point to match against a photograph collected upon departure, in addition to the photographs already available to DHS through sources such as previous encounter photos and visa databases. In addition to improving the system’s matching performance, establishing a requirement that all aliens may be photographed without exemption enables DHS to biometrically verify the identity of all alien travelers traveling to and from the United States, thereby helping prevent visa fraud and the fraudulent use of legitimate travel documentation. Collecting photographs from all aliens at entry also enables CBP to implement 66 See NIST Interagency Report 8238, available at https://nvlpubs.nist.gov/nistpubs/ir/2018/ NIST.IR.8238.pdf. See NIST Interagency Report 8271, available at https://doi.org/10.6028/ NIST.IR.8271.https://nvlpubs.nist.gov/nistpubs/ir/ 2018/NIST.IR.8238.pdf. E:\FR\FM\19NOP3.SGM 19NOP3 Federal Register / Vol. 85, No. 224 / Thursday, November 19, 2020 / Proposed Rules a streamlined entry process using facial recognition for all such aliens. For example, under the Simplified Arrival process described above, CBP primarily uses photographs rather than fingerprints to verify the traveler’s identity and retrieve the traveler’s biographic information for inspection. Facial recognition technology can perform the function of biometrically verifying an alien traveler’s identity much more efficiently than collecting and comparing his or her fingerprints. During CBP’s current inspection process, most aliens are subject to being photographed upon arrival into the United States at primary inspection. The Simplified Arrival process, which is based on this requirement, utilizes integrated biometric identity verification with the retrieval of a traveler’s biographic data from a single capture of a photograph. In doing so, the Simplified Arrival process eliminates the need for CBP to scan a passport or travel document to pull up the traveler’s biographic data for inspection because a facial recognition scan performs this same function more quickly. Ultimately, using facial recognition at entry can eliminate several administrative processes that will increase the speed at which CBP can inspect travelers arriving in the United States. By eliminating the administrative tasks involved in scanning a travel document or collecting fingerprints, CBP can devote more resources to interviewing an alien traveler to determine his or her admissibility. As noted above, DHS proposes in this rule to collect photographs from all aliens regardless of their age. This will enable DHS to associate the immigration records created for children to their adult records later, which will help combat trafficking of children, and confirm the absence of criminal history or associations with terrorist or other organizations seeking to violate applicable law. The current regulations that exempt biometric collection based on the age of the individual (i.e., under 14 and over 79) were based on technological limitations on collecting fingerprints from children and elderly persons, as well as traditional law enforcement policies and other policies, such as not running criminal history background checks on children. These policies are no longer applicable to CBP’s facial recognition based biometric entry-exit program, as the use of biometrics has expanded beyond criminal history background checks and now plays a vital role in identity verification and management. The use of facial recognition also obviates the VerDate Sep<11>2014 22:14 Nov 18, 2020 Jkt 253001 technological problems previously associated with fingerprints. Certain privacy advocates have expressed concern over the accuracy of facial matching technology especially as it relates to demographics such as age, race and gender. By expanding the scope of individuals subject to facial image collection, the accuracy of the facial matching system will improve for all segments of the population, including children and the elderly, as it would be matching against more recent photos of the traveler rather than older, outdated visa photos.67 Additionally, as discussed above, the proposed change to remove biometric exemptions for aliens would also alleviate the need to have multiple processing procedures for aliens, which would be a resource intensive process. For land and sea ports of entry and private aircraft, CBP plans to continue to test and refine biometric exit strategies with the ultimate goal of implementing a comprehensive biometric entry-exit system nationwide. The proposed regulatory changes would support CBP’s efforts to regularly conduct a variety of statistical tests to bolster performance thresholds and minimize any possible bias impact on travelers of certain race, gender or nationality. In this proposed rule, CBP has not analyzed the costs and benefits for implementing a facial recognition based biometric entry-exit program for land and sea ports of entry and private aircraft because CBP is still in the testing phase to determine the best way to implement biometric entry-exit within each of these unique environments. CBP would welcome comments from the public on the rule’s impact on land and sea ports of entry and private aircraft. CBP is continually evaluating how to best implement a biometric entry-exit system that is efficient, accurate, and secure and incorporates the latest technology. These evaluations will allow CBP to determine if new technology or new methods of employing existing technology might improve the entry-exit system. 2. Facial Recognition Technology Gallery Building CBP has developed a matching service for all biometric entry and exit operations that use facial recognition, regardless of the method of entry or exit (i.e., air, land, and sea). For all biometric matching deployments, TVS relies on biometric templates generated from preexisting photographs that CBP already 67 See NIST Interagency Report 8271, available at https://doi.org/10.6028/NIST.IR.8271. PO 00000 Frm 00015 Fmt 4701 Sfmt 4702 74175 maintains, known as a ‘‘gallery.’’ These images may include photographs captured by CBP during previous entry inspection, photographs from U.S. passports and U.S. visas, and photographs from other DHS encounters. CBP builds ‘‘galleries’’ of photographs based on where and when a traveler will enter or exit. If CBP has access to APIS manifest information, CBP will build galleries of photographs based on upcoming flight or vessel arrivals or departures. If CBP does not have access to APIS manifest information, such as for pedestrians or privately owned vehicles at land ports of entry, CBP will build galleries using photographs of ‘‘frequent’’ crossers for that specific POE, taken at that specific POE, that become part of a localized photographic gallery. CBP’s TVS facial matching service then generates a biometric template for each gallery photograph that is stored in the TVS virtual private cloud for matching when the traveler arrives or departs. 3. General Collection Process Due to the complexities in logistics across the entry and exit environments, CBP will collect photographs of the arriving or departing traveler via several different methods depending on the local port of entry. Generally, when travelers present themselves for entry or exit, they will encounter a camera connected to CBP’s cloud-based TVS facial matching service via a secure, encrypted connection. This camera matches live images with existing photo templates from passenger travel documents. The camera may be owned by CBP, the air or vessel carrier, another government agency such as TSA, or an international partner governmental agency. Once the camera captures a quality image and the system successfully finds a match among the historical photo templates of all travelers from the gallery associated with that particular manifest, the traveler proceeds to inspection for an admissibility determination by a CBP Officer, or is permitted to depart the United States. When a ‘‘no match’’ occurs, CBP may use an alternative means to verify the traveler’s identity, such as a manual review of the travel document. See Section III.F.6 for more discussion. 4. Facial Recognition Based Entry Process Historically, prior to admission to the United States, CBP has used a manual process to inspect travel documents, such as passports or visas, to initiate system checks and verify a traveler’s identity, travel history, and any law or E:\FR\FM\19NOP3.SGM 19NOP3 74176 Federal Register / Vol. 85, No. 224 / Thursday, November 19, 2020 / Proposed Rules border enforcement concerns that may require attention. The new primary entry solution uses biometrics to initiate the transaction and system checks, using facial recognition as the primary biometric verification modality. This shift from a biographic, document-based system to a biometric-initiated transaction requires travelers to provide facial photos for identity verification purposes. This enables CBP to more accurately verify identity and citizenship by matching the traveler’s photograph with vetted and validated biographic information. Studies show that humans can benefit in face recognition tasks when assisted by a machine, and vice versa. 68 Under Simplified Arrival, CBP uses CBP-owned cameras, CBP’s primary arrival subsystem of TECS, and the facial matching service to capture facial biometric data from travelers seeking to enter the United States. All travelers proceed to the entry lanes within CBP’s Federal Inspection Services (FIS) area, where a camera captures an image of the traveler’s face. The TECS primary arrival subsystem transmits the image to TVS. In order to biometrically identify the traveler, TVS automatically creates a template from the image and uses the template to query against a gallery of known identities, based on the manifests for all incoming flights for that day. Once the traveler is matched, TVS transmits the match results, along with a TECS system-generated unique traveler identifier and a unique photo identifier generated by CBP’s Automated Targeting System (ATS)– Unified Passenger (UPAX) module to TECS. In turn, the TECS primary arrival subsystem uses the unique traveler identifier to retrieve the traveler’s biographic information from the APIS manifest. Additionally, the TECS subsystem uses the ATS–UPAXgenerated identifier to retrieve the historical image (which had matched with the new image) stored in UPAX. The CBP officer has the ability to view and evaluate the traveler’s biographic data, along with any derogatory information, in the TECS primary arrival application, along with associated biometric match results from TVS. The CBP officer then conducts the standard inspection interview and establishes the purpose and intent of travel. Upon admission or entry, CBP 68 See https://www.pnas.org/content/pnas/115/ 24/6171.full.pdf. See also https:// onlinelibrary.wiley.com/doi/abs/10.1002/acp.2968. Accessed October 26, 2020. See also https:// royalsocietypublishing.org/doi/full/10.1098/ rsos.170249#RSOS170249C16. Accessed October 26, 2020. VerDate Sep<11>2014 22:14 Nov 18, 2020 Jkt 253001 updates the traveler crossing history in TECS to reflect a confirmed arrival into the United States. Inbound processing for travelers on commercial sea vessels (e.g., cruise ships) will resemble the air entry process, as this travel method is also based on an APIS traveler manifest. Even with the use of facial recognition technology upon entry, CBP still leverages APIS information and screens it against TECS records and other law enforcement databases in order for CBP to ascertain if any security or law enforcement risks exist. At this time, CBP is not actively using galleries of known travelers in the land environment. This is because private rail and bus lines are not required to submit APIS manifests (although, in some cases, private rail and bus lines submit APIS to CBP voluntarily) and CBP does not receive any manifest for pedestrians crossing the land border on foot or for persons traveling in private vehicles. However, CBP is developing processes that would enable the use of TVS at the land border. For example, CBP may briefly retain local galleries of travelers who have recently crossed at a given POE and are expected to cross again within a given period of time. CBP is conducting tests to determine feasibility. Currently, in San Luis and Nogales, Arizona, CBP is using facial recognition technology to compare the traveler against the photo in the travel document presented (1:1 comparison). Expanding the scope of travelers that may be required to present biometrics will allow CBP to continue to examine the possibility of using galleries in the land environment. 5. Facial Recognition Based Exit Process CBP is using biometric technologies in voluntary partnerships with other federal agencies and commercial stakeholders. These partnerships enable CBP to more effectively verify the identities of individuals entering and exiting the United States, identify aliens who are violating the terms of their admission, and expedite immediate action when such violations are identified. In some partnership arrangements, an airline or airport authority partner staffs TVS biometric collection and the boarding process, rather than CBP. These stakeholders are assisting CBP in meeting the congressional biometric entry-exit system mandate. Some of these partners are already using traveler photographs in their own business processes. A number of airlines and airport authorities may choose to leverage their own technology in partnership with CBP to facilitate identity verification. Based on PO 00000 Frm 00016 Fmt 4701 Sfmt 4702 agreements with CBP, these stakeholders deploy their own camera operators and camera technology to operate TVS for identity verification. These stakeholders must adhere to strict business requirements and the cameras must meet CBP’s technical specifications to capture facial images of travelers prior to use. Each camera is connected to the TVS via a secure, encrypted connection. While the photo capture process may vary slightly according to the unique requirements of each participating airline and airport authority, the IT infrastructure supporting the backend process is the same. During the boarding process, CBP’s facial recognition matching service allows CBP to biometrically verify the identity of travelers departing the United States with the assistance of airline or airport partnerships. At the departure gate, each traveler stands for a photo in front of a partner-provided camera. Aided by the authorized airline or airport personnel, the partner-owned camera attempts to capture a usable image and submits the image, sometimes through an authorized integration platform or vendor, to CBP’s cloud-based TVS facial matching service. TVS then generates a template from the departure photo and uses that template to search the assembly of historical photo templates in the cloudbased gallery. Some airlines continue to accept boarding passes at the gate, while other carriers accept CBP’s biometric identity verification in lieu of boarding passes as part of a new paperless, selfboarding process. In the latter process, the carrier may employ technologies (such as automated gates) to further automate the boarding process. For example, a traveler whose photo has generated a positive match with a photo in the gallery, will be directed to board the plane. As CBP verifies the identity of the traveler, either through the automated TVS facial recognition process or manual officer processing, the backend matching service returns the ‘‘match’’ or ‘‘no-match’’ result, along with the associated unique identifier. Carriers, pursuant to the APIS regulations, are responsible for comparing the travel document to validate the information provided and ensure that the person presenting the document ‘‘is the person to whom the travel document was issued.’’ 19 CFR 122.49a, 122.49b, 122.49c, 122.75a, and 122.75b. The use of TVS provides a more efficient and accurate way to meet this requirement. Typically, on air exit, CBP is not permanently stationed at the gate. Therefore, CBP currently must rely on E:\FR\FM\19NOP3.SGM 19NOP3 Federal Register / Vol. 85, No. 224 / Thursday, November 19, 2020 / Proposed Rules the review of biographic data (provided via APIS) to determine whether further inspection on departure is warranted and whether an outbound enforcement teams should be sent to the gate. With the use of facial recognition technology, outbound enforcement teams are informed immediately when a no match occurs (via notification on mobile device) and can then determine if additional inspection is warranted. Outbound processing for travelers on commercial sea vessels (e.g., cruise ships) would resemble the air exit process. It is expected that this process will also be based on an APIS traveler manifest, although further testing is needed to refine and implement this process. At the land border, as part of CBP’s outbound enforcement efforts, CBP has begun recording departures of Third Country Nationals (TCN) encountered during outbound operations at land crossings, both biographically and with facial images and fingerprint biometrics. A TCN is defined as a foreign national who is attempting to enter either Canada or Mexico but is not a citizen of either country. TCNs departing the United States by land are those individuals who are currently subject to biometric collection under existing CBP regulations. 6. Alternative Procedures and Public Notices Currently for air exit, all travelers, including U.S. citizens, may notify the airline-boarding agent if they would like to opt out of the facial-recognition based process at the time of boarding and request that an alternative mean of validation be employed. Airline personnel would then conduct manual identity verification using the travel document, and may notify CBP to collect biometrics, if applicable. Under the proposed rule, alien travelers would no longer be able to opt out. Alternative procedures would only be available to U.S. citizen travelers. All U.S. citizens are subject to inspection upon arrival into and departure from the United States to confirm their identity and citizenship. Where CBP has implemented a biometric verification program, participation by U.S. citizens in CBP’s biometric verification program is voluntary. Such participation provides a more efficient boarding process or admission process and a more accurate and efficient method for verifying the identity and citizenship of U.S. citizens. A U.S. citizen traveler who does not wish to have his or her photograph taken may request an alternative inspection process. For example, in the VerDate Sep<11>2014 22:14 Nov 18, 2020 Jkt 253001 event a U.S. citizen elects not to be photographed at airports where CBP is conducting biometric exit verification, an airline gate agent will perform a manual review of the U.S. citizen’s passport. If there is some question as to the authenticity of the passport or whether the person presenting the passport is the person to whom the passport was lawfully issued, the airline will contact CBP for additional inspection, and a CBP officer may perform a manual review of the passport. A CBP officer may ask questions to validate identity and citizenship. At other departure locations, such as at a land port where CBP is conducting biometric verification, CBP provides appropriate alternative procedures. As biometric collection progresses, CBP believes that it will save travelers time. If this is the case, the alternative inspection process may be a slower process than the automated process, but every effort will be made to not delay or hinder travel. As discussed in Section III.E.6, Simplified Arrival enables CBP to use facial recognition to streamline the entry process for all arriving travelers. This process has been implemented at certain locations and will be expanded. For U.S. citizens, participation is voluntary. CBP provides appropriate alternative procedures for U.S. citizens who choose not to participate in the biometric verification process at entry. The alternative procedures proposed in this rule are intended to be similar to the existing process at entry today, in which a CBP officer would physically examine the traveler’s documentation to ensure the bearer is the true owner, and scan the document to pull up the traveler’s data for inspection. See Section III.E.6. CBP strives to be transparent and provide notice to individuals regarding its collection, use, dissemination, and maintenance of personally identifiable information (PII). When airlines or airports are partnering with CBP on biometric air exit, the public is informed that the partner is collecting the biometric data in coordination with CBP. CBP provides notice to travelers at the designated ports of entry through both physical and either LED message boards or electronic signs, as well as verbal announcements in some cases, to inform the public that CBP will be taking photos for identity verification purposes. CBP also provides notice to the public that a traveler may opt out of having their photo taken and request an alternative procedure. CBP works with carriers, airports, and other port facilities to incorporate appropriate notices and processes into their current business models. PO 00000 Frm 00017 Fmt 4701 Sfmt 4702 74177 Upon request, CBP officers provide individuals with a tear sheet with Frequently Asked Questions (FAQ), optout procedures, and additional information on the particular demonstration, including the legal authority and purpose for inspection, the routine uses, and the consequences for failing to provide information. Additionally, in the FIS, CBP posts signs informing individuals of possible searches, and the purpose for those searches, upon arrival or departure from the United States. Privacy information on the program, such as System of Records Notices and Privacy Impact Assessments (PIAs), are published on www.dhs.gov/privacy. CBP will also continue to make program information, such as Frequently Asked Questions, available for the public on CBP’s biometrics website at www.cbp.gov/ biometrics. 7. ‘‘No Match’’ Procedures CBP has designed the entry and exit inspection process such that, in the event of a mismatch, false match, or ‘‘no match,’’ CBP may use alternative means to verify the traveler’s identity and ensure that the traveler is not unduly delayed. If the system fails to match a traveler, then a manual review of the traveler’s document is performed. On entry, the CBP officer may continue to conduct additional screening or request fingerprints (if appropriate) to verify identity. Each inspection booth at entry is equipped with a fingerprint reader. At departure, after the manual review of the travel document (i.e., scanning a boarding pass and checking a traveler’s passport), the airline or cruise line may notify CBP’s outbound enforcement teams should additional inspection be required.69 In such case, CBP officers may inspect the traveler’s passport or other valid travel document. If the traveler is subject to biometric collection (under the current regulations or under the amended regulations once this rule is finalized), the officer may swipe the traveler’s document in the MRZ of the BE-Mobile device and collect the traveler’s fingerprints. BEMobile uses fingerprints, facial images, and the existing connections between ATS–UPAX and DHS IDENT for all 69 Communication between CBP’s outbound enforcement team and airlines/cruise lines is not unique to locations where facial recognition is implemented. During the outbound inspection, CBP may interview the traveler as well as use BE-Mobile devices. CBP conducts outbound enforcement operations using BE-Mobile devices in all modes of transportation and also at locations where facial recognition technology (i.e., biometric exit boarding) is unavailable. Neither the operations nor the technology is exclusive to locations where facial recognition based biometric exit is implemented. E:\FR\FM\19NOP3.SGM 19NOP3 74178 Federal Register / Vol. 85, No. 224 / Thursday, November 19, 2020 / Proposed Rules biometric queries and storage. CBP encrypts data on the wireless handheld device as it is collected and encrypts the biometric and biographic data during transmission to and from internal and external systems. No information is retained on the BE-Mobile device. The BE-Mobile device transfers prints and passport information to the appropriate DHS and CBP information technology system to identify any law enforcement lookouts related to the traveler. In addition, the device matches the traveler to the APIS manifest and creates a confirmed exit record in such CBP systems as APIS and the Arrival and Departure Information System (ADIS). If the system checks yield no derogatory information, the CBP officer allows the traveler to board/continue travel. Based on the inspection results and the queries using the newly collected biometric and biographic data, if CBP finds actionable derogatory information on the traveler, the CBP officer may escort the traveler to the FIS area to conduct further questioning and take the appropriate actions under CBP’s law enforcement authorities. In the event that an individual does experience a delay or issue as an outcome of these processes, travelers may contact the CBP Info Center and/or DHS Traveler Redress Inquiry Program (TRIP). Signage and tear sheets at select ports of entry where the TVS is employed provides information on how to contact the CBP Info Center and/or DHS TRIP. In addition, travelers may request information from the on-site CBP officer or gate agent. 8. U.S. Nationals, Dual Nationals and Lawful Permanent Residents Under the INA, a U.S. national is either a citizen of the United States, or a person who, though not a U.S. citizen, owes permanent allegiance to the United States. See INA section 101(a)(22). Non-citizen U.S. national status applies only to individuals who were born either in American Samoa or on Swains Island to parents who are not citizens of the United States.70 Dual nationals are individuals who owe allegiance to both the United States and the foreign country. They are required to obey the laws of both countries, and either country has the right to enforce its laws. For purposes of international travel, U.S. nationals, including dual nationals, must use a U.S. passport (or alternative 70 See Dual Nationality, U.S. Department of State, https://travel.state.gov/content/travel/en/legal/ travel-legal-considerations/Advice-about-PossibleLoss-of-US-Nationality-Dual-Nationality/DualNationality.html. VerDate Sep<11>2014 23:05 Nov 18, 2020 Jkt 253001 documentation as required by 22 CFR part 53) to enter and leave the United States. See INA 215(b) (8 U.S.C. 1185(b)); see also 22 CFR 53.1. For purposes of this proposed rule, a U.S. national or dual national who presents as a citizen of another country will be processed as a foreign national and their photo will be retained accordingly, unless they are able to present evidence of U.S. citizenship or nationality.71 Under immigration law, lawful permanent residents (LPRs) are aliens authorized to live permanently within the United States.72 As such, for purposes of this proposed rule, LPRs will be processed as aliens. 9. Business Requirements for PublicPrivate Partnerships The business requirements implemented by CBP with its partners govern the retention and use of the facial images collected using CBP’s facial recognition technology. CBP prohibits its approved partners such as airlines, airport authorities, or cruise lines and participating organizations (e.g., vendors, systems integrators, or other third parties) from retaining the photos they collect under this process for their own business purposes. The partners must immediately purge the images following transmittal to CBP, and the partner must allow CBP to audit compliance with this requirement. As discussed in the November 2018 PIA, CBP has developed Business Requirements to document this commitment. In order to use TVS, private sector partners must agree to these Business Requirements. After this rule is implemented, the Business Requirements document will be updated and available for viewing on cbp.gov. IV. Proposed Regulatory Changes A. General Biometric Exit Requirement for Aliens To advance the legal framework for the full implementation of a biometric exit capability as described above, DHS is proposing to amend the regulations in 8 CFR that set forth the requirements for providing biometrics upon entry and departure. Currently, 8 CFR 215.8(a)(1) 71 A person claiming U.S. citizenship must establish that fact to the examining officer’s satisfaction and must present a U.S. passport or alternative documentation as required by 22 CFR part 53. If such person fails to satisfy the examining immigration officer that they are a U.S. citizen, the person shall thereafter be inspected as an alien applicant for admission. 8 CFR 235.1(b). 72 Under the INA, the term alien means any person who is not a citizen or national of the United States. 8 CFR 215.1(a). Therefore, a lawful permanent resident is an alien under the INA. PO 00000 Frm 00018 Fmt 4701 Sfmt 4702 authorizes DHS to collect biometric exit information from certain aliens on departure from the United States pursuant to pilot programs at air, land, or sea ports of entry and places a limit of 15 air or sea ports of entry at which such biometric exit pilots may be established. The reference to pilot programs and the 15 air or sea port limitation hinders DHS’s ability to expand and fully implement a comprehensive biometric exit solution. Therefore, DHS is proposing to amend § 215.8 by removing the reference to pilot programs and the 15 air or sea port limit. B. Collection of Photographs From Aliens Upon Entry and Departure As discussed in Section III.D.1, DHS regulations implementing the legacy US–VISIT program provide that certain categories of aliens are exempt from the collection of biometrics upon arrival to, and departure from, the United States. See 8 CFR 235.1(f); 8 CFR 215.8(a)(1)– (2). These exemptions are not statutorily based. As discussed in Section III.A, DHS has broad statutory authority to control alien travel, inspect aliens and require biometrics from aliens upon arrival in, or departure from, the United States. To implement a biometric entry-exit system based on facial recognition, DHS is proposing to amend the regulations to provide that all aliens may be required to be photographed upon departure from the United States. The exemptions of certain aliens from the collection of biometrics in § 215.8(a)(1)–(2) will no longer pertain to the collection of photographs from aliens upon departure. Specifically, DHS is proposing to amend § 215.8 to add new paragraph (a)(1), which provides that an alien may be required to be photographed when departing the United States to determine identity. The collection of photographs from an alien upon departure will assist DHS in determining the alien’s identity and whether immigration status in the United States has been properly maintained. In addition, DHS is proposing to amend § 235.1(f) to add new paragraph (1)(ii), which provides that an alien seeking admission may be required to be photographed to determine the alien’s identity, admissibility, and whether immigration status in the United States has been properly maintained. As for the collection of photographs upon departure, the exemptions in § 235.1(f)(1)(ii) will no longer pertain to the collection of photographs from aliens seeking admission. E:\FR\FM\19NOP3.SGM 19NOP3 Federal Register / Vol. 85, No. 224 / Thursday, November 19, 2020 / Proposed Rules DHS is not proposing to change the existing exemptions in §§ 215.8 and 235.1(f) 73 for the collection of biometrics other than photographs (e.g., fingerprints and other biometrics) from aliens upon entry to and departure from the United States. This is set forth in 8 CFR 215.8(a)(2)–(3) and 235.1(f)(1)(iii) and (vi) as amended in this document; see also Section IV.C.1 of this document. Notwithstanding these exemptions, DHS is authorized to collect biometrics from aliens, regardless of age, citizenship, or visa status, for law enforcement purposes or in other contexts not addressed by these regulations, such as from aliens attempting to enter the United States illegally between U.S. ports of entry. See Section III.A. As such, CBP may, on a case-by-case basis, collect biometrics other than photographs from aliens outside of the age limits or visa category exceptions. C. Collection of Biometrics When Departing the United States and Other Minor Conforming and Editorial Changes DHS is proposing to amend § 215.8(a) to specify that biometrics may be required ‘‘when departing the United States.’’ The current provision refers to ‘‘upon departure from a U.S. port of entry.’’ This amendment is necessary to allow for the collection of biometrics from individuals upon departure at locations other than at a U.S. port of entry.74 Although the majority of travelers depart the country from a 73 The following categories of aliens currently are exempt from the requirements under 8 CFR 215.8 and 235.1 to provide biometrics upon arrival to, and departure from, the United States at a U.S. port of entry: Canadian citizens under Section 101(a)(15)(B) of the Act who are not otherwise required to present a visa or be issued a form I–94 or Form I–95; aliens younger than 14 or older than 79 on the data of admission; aliens admitted A–1, A–2, C–3 (except for attendants, servants, or personal employees of accredited officials), G–1, G– 2, G–3, G–4, NATO–1, NATO–2, NATO–3, NATO– 4, NATO–5, or NATO–6 visas, and certain Taiwan officials who hold E–1 visas and members of their immediate families who hold E–1 visas unless the Secretary of State and the Secretary of Homeland Security jointly determine that a class of such aliens should be subject to the requirements of paragraph (d)(1)(ii); classes of aliens to whom the Secretary of Homeland Security and the Secretary of State jointly determine it shall not apply; or an individual alien to whom the Secretary of Homeland Security, the Secretary of State, or the Director of Central Intelligence determines it shall not apply. 74 A port of entry is any location in the United States or its territories that is designated as a point of entry for aliens and U.S. citizens. See 8 CFR 235.1(a) (providing that application to lawfully enter the United States shall be made in person to an immigration officer at a U.S. port of entry); see also 8 CFR 100.4(a) (designating ports of entry for aliens arriving by vessel or by land transportation) and 100.4(b) (designating ports of entry for aliens arriving by aircraft). VerDate Sep<11>2014 22:14 Nov 18, 2020 Jkt 253001 designated U.S. port of entry, a few travelers depart the country from locations that are not designated as ports of entry, such as Ronald Reagan Washington National Airport or John Wayne Airport, California.75 To ensure the implementation of a biometric entryexit system that tracks all individuals departing the country, DHS may require aliens to provide biometrics upon departure at U.S. ports of entry or when departing the United States at any other location. In addition, DHS is proposing to make certain minor conforming and editorial changes in §§ 215.8 and 235.1(f). In § 215.8, DHS is proposing to redesignate paragraph (a)(2) as paragraph (a)(3), revise cross-references and add paragraph headings as necessary. In § 235.1(f), DHS is proposing to redesignate paragraph (f)(1)(ii) as paragraph (f)(1)(iii), paragraphs (f)(1)(iii) and (iv) as paragraphs (f)(1)(v) and (vi), add new paragraphs (f)(1)(ii) and (iv), and revise cross-references and add paragraph headings as necessary. In §§ 215.8 and 235.1(f), DHS is proposing to remove the phrase ‘‘[t]he Secretary of Homeland Security or his or her designee’’ and add in its place ‘‘DHS’’ and remove the phrase ‘‘biometric identifiers’’ and add in its place ‘‘biometrics.’’ Finally, DHS is proposing to amend §§ 215.8(a) and 235.1(f) to remove the specific references to fingerprints and photographs. Currently, these sections provide that any alien may be required ‘‘to provide fingerprints, photograph(s) or other specified biometric identifiers’’ upon arrival into or departure from the United States. Because this rule adds a separate sub-paragraph relating to the provision of photographs, the word ‘‘photograph(s)’’ in this provision is no longer appropriate. Furthermore, to allow the flexibility for DHS to employ different methods of biometric collection in the future, DHS is proposing to amend §§ 215.8(a) and 235.1(f) to provide instead that any alien, other than those exempt by regulation, may be required ‘‘to provide other biometrics’’ upon arrival into and departure from the United States. CBP has tested iris technology, for example, but biometric technology continues to advance and there may be other biometric options that may have 75 These airports are not ports of entry pursuant to 8 CFR 100.4(b) and do not have federal inspection processes or facilities, but still have a few flights that depart to international locations, mostly those that have CBP preclearance facilities (typically in Canada or the Caribbean). This proposed change would account for these departures from the United States. PO 00000 Frm 00019 Fmt 4701 Sfmt 4702 74179 potential for implementation in the future. V. Withdrawal of 2008 Air Exit Notice of Proposed Rulemaking On April 24, 2008, DHS published a notice of proposed rulemaking (NPRM) in the Federal Register (73 FR 22065) proposing a biometric exit program at air and sea ports that would require commercial air and vessel carriers to collect biometric data from aliens and submit this information to DHS within a certain timeframe. The proposed rule set out certain technical requirements and a substantive performance standard for the transmission of biometric data, but provided the carriers with some discretion in the manner of collection and submission of biometric data, including latitude in determining the location of the biometric data collection within the port of entry. DHS received 118 comments from the public in response to the NPRM. Most of the comments opposed the adoption of the proposed rule due to issues of cost and feasibility. In consideration of the regulatory changes being made in this rule, the comments received, the results of the biometric exit pilots conducted in 2009,76 and DHS’s new approach to implementing a biometric entry-exit system, DHS has decided that the 2008 NPRM should be withdrawn. The withdrawal notice is being published concurrently with the publication of this proposed rule. VI. Statutory and Regulatory Requirements A. Executive Orders 12866 and 13563 Executive Orders 13563 (‘‘Improving Regulation and Regulatory Review’’) and 12866 (‘‘Regulatory Planning and Review’’) direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule is an ‘‘economically significant regulatory action,’’ under section 3(f) of Executive Order 12866. Accordingly, the Office of Management and Budget (OMB) has reviewed this regulation. 76 See E:\FR\FM\19NOP3.SGM Section III.D.2. 19NOP3 74180 Federal Register / Vol. 85, No. 224 / Thursday, November 19, 2020 / Proposed Rules 1. Need and Purpose of the Rule DHS is statutorily mandated to develop and implement an integrated, automated entry and exit data system to match records, including biographic data and biometrics, of aliens entering and departing the United States. DHS is also required by Executive Order to expedite the completion and implementation of a biometric entry-exit tracking system. Since 2004, DHS, through CBP, has been collecting biometric data from aliens arriving in the United States, but currently there is no comprehensive biometric system in place to track when the aliens depart the country. Since taking over entry and exit operations in 2013, CBP has been testing various options to collect biometrics at arrival and departure. The results of these tests and the recent advancement of facial recognition technology have provided CBP with a model for moving forward with implementing a comprehensive biometric exit solution. In the initial stage of implementation, CBP has expanded its biometric exit capability to a limited number of airports. These deployments are allowing CBP to fine-tune the process before implementing it on a nationwide basis. However, CBP is limited by regulation to collecting biometrics from aliens upon departure from air and seaports under pilot programs to 15 locations (no limits apply in the land border context). This rule will remove the reference to pilot programs and the port limit and establish that all aliens may be required to be photographed upon entry and/or exit. Upon exit, U.S. citizens are currently typically processed similarly to aliens (i.e., without the collection of photographs) and may generally continue to be inspected in the same way under this rule, even in situations where CBP has instituted a biometric exit program. Where CBP has instituted photograph collection at exit, U.S. citizens may be photographed voluntarily or request the existing alternative process. This rule will not change the option U.S. citizens have not to have their pictures taken and instead, to request alternative processing. Currently, certain aliens are not subject to photograph collection. For example, aliens who are under the age of 14 or over the age of 79 are not required to be photographed at entry or exit. By providing that all aliens may be required to be photographed at entry and/or exit, CBP will be able to further expand the photograph collection program to allow for a more complete VerDate Sep<11>2014 22:14 Nov 18, 2020 Jkt 253001 evaluation as it moves toward nationwide expansion. Collecting photographs will allow CBP to know with better accuracy whether aliens are departing the country when they are required to depart, reduce visa or travel document fraud, and improve CBP’s ability to identify criminals and known or suspected terrorists before they depart the United States. It will also allow for a substantial time savings for travelers. 2. Background, Baseline, and Affected Population Under DHS regulations, upon arrival into the United States, travelers are required to present themselves to CBP for inspection under the immigration laws. See 8 CFR 235.1. Under the current air inspection process, CBP obtains information directly from the traveler via his or her travel documents (e.g., passport) and/or verbal communications between a CBP officer and the traveler. As a part of this process, a CBP officer typically takes a physical passport from the traveler and electronically ‘‘reads’’ the passport using its MRZ to pull up the traveler’s biographic data for inspection. In addition, for aliens (except for those exempt from biometric collection under 8 CFR 235.1), CBP collects fingerprints from the traveler to biometrically verify his or her identity by comparing the fingerprints with those previously collected as a part of a visa application, immigration benefits application, or earlier inspection process with CBP.77 Once the identity of the traveler is validated in this manner, the CBP officer conducts an interview with the traveler to establish the purpose and intent of travel, and to determine admissibility. The Aviation and Transportation Security Act of 2001 and the Enhanced Border Security and Visa Entry Reform Act of 2002 together mandated the collection of certain biographical manifest information on all passengers and crew members who arrive in or depart from (and, in the case of crew members, overfly) the United States on a commercial air or sea carrier. This collection is done through APIS. As APIS requirements apply equally to travelers departing the United States, CBP electronically records a traveler’s departure by commercial air or sea using the biographic manifest information provided by the carrier. Unlike at entry, however, CBP does not routinely inspect travelers departing the United States to confirm that the APIS 77 See section III.B.2 for more information on the current process. PO 00000 Frm 00020 Fmt 4701 Sfmt 4702 departure data is accurate or that the traveler is the true bearer of his or her travel document. Currently, those departing the United States via the air environment must present their boarding pass and identification when being screened by TSA. Before boarding, travelers must also present their boarding passes to the carrier at the gate, who visually reviews the travel documents and validates the boarding pass with the carrier’s ticketing system. However, once in the sterile area of the terminal, although travelers may be subject to random identification checks, travelers generally do not have their photo identification scrutinized again before boarding the aircraft. CBP uses APIS information along with other law enforcement information and technology to determine whether CBP needs to further inspect outbound travelers. CBP’s outbound operations enable it to enforce U.S. laws applicable upon departure from the United States and effectively monitor and control the outbound flow of goods and people. In the land environment, CBP does not receive advance APIS data. Persons departing the United States at the land border are also not consistently subject to CBP inspection, as they are upon arrival. As a result, land departures may not be recorded accurately. For the purposes of this analysis, the process described above is the baseline.78 This analysis assesses the incremental change from the baseline. CBP has operated various pilot programs over the years that deviate from the baseline and have guided CBP in its development of the air exit process under this rule. Tests continue at land and sea and at air entry. The costs and benefits of these pilots are sunk for the purposes of deciding whether to proceed with the regulatory program, but they are important for understanding the full costs and benefits of CBP’s facial recognition program as a whole. As such, we analyze the effects of the facial recognition program over two time periods. First, we study the pilot period from 2017 to 2019. Then we study the regulatory period from 2020 to 2024. CBP collects biometric data from most aliens entering the United States by air and sea at entry but does not generally collect biometric data at departure from aliens in any outbound environment, nor does it generally collect biometric data from U.S. citizens on a systematic basis upon entry or departure from the 78 For a more detailed explanation of the baseline, see section III.B, titled ‘‘Current Entry Exit Process,’’ earlier in the preamble of this document. E:\FR\FM\19NOP3.SGM 19NOP3 Federal Register / Vol. 85, No. 224 / Thursday, November 19, 2020 / Proposed Rules United States.79 DHS, through CBP, has been developing and testing additional biometric entry and exit capabilities since 2004. What follows is a brief summary of the pilot programs and the current biometric entry-exit requirements for those affected by this rule. For a full history, see Section III.D above, titled ‘‘Biometric Entry-Exit Program History.’’ Since 2004, DHS and CBP have run a variety of pilot programs to test various biometric entry and exit capabilities. Tests have been conducted using a variety of technologies in different environments ranging from handheld devices for capturing fingerprints at airports upon entry to kiosks for pedestrians at land ports. CBP has most recently been testing facial recognition technology and has concluded that this is the preferred method of widespread biometric collection. It allows CBP to collect biometric data quickly and unobtrusively and the data can be easily compared with previously collected data to match the traveler with previous entries and with her/his passport or visa photograph. CBP already takes photographs of most aliens at entry during the routine inspection process and maintains them in a database. For aliens who have traveled to the United States previously, CBP’s database includes a photograph from each entry. For aliens with visas, CBP’s database also includes the photographs taken during the visa application process. Facial recognition technology compares a new photograph of an individual with previously captured photographs to ensure that the individual is who he or she claims to be. In June 2016, CBP deployed a facial recognition pilot at the HartsfieldJackson Atlanta International Airport. This pilot was the first time a process 79 CBP does collect biometric data from U.S. citizens in certain circumstances on a voluntary basis, such as under entry-exit pilot programs described herein, under CBP’s trusted traveler programs, and may be compelled on a case-by-case basis for law enforcement purposes. For the Automated Passport Control (APC) kiosks, which are free, voluntary, and do not require a membership, the APC kiosks collect facial images from all travelers and fingerprints from VWP, U.S. visa, and non-Canadian LPR travelers. The kiosk captures a photo and then prints out a receipt with the traveler’s face and biographic information. This process allows CBP Officers to make manual oneto-one comparisons of the newly-captured facial images with the travelers themselves. APC kiosk systems may not retain PII, including biographic and biometric data. APC Services retains PII via log records for no longer than 30 days. For Mobile Passport Control, although the traveler profile includes a facial photo, there is no option for the user to submit the profile itself, including the photo, to CBP. The traveler only submits the MPC ‘‘trip’’ which includes the traveler’s biographic information, inspection question responses, and class of admission, if applicable. VerDate Sep<11>2014 22:14 Nov 18, 2020 Jkt 253001 similar to the one used under this rule was tested at exit. Based on the early success of the pilot in Atlanta, CBP expanded the use of facial recognition technology to additional airports. For the purposes of this analysis, the process at the eight airports shall be referred to as the initial pilot.80 The facial recognition technology is now operating as TVS. Using the initial pilot, CBP is capturing photographs from all participating travelers on selected daily outbound flights at a number of international airports. Before boarding, travelers typically line up so an airline employee can scan their boarding passes. CBP has added a station along this line where CBP officers scan travelers’ boarding passes and take their photographs. The photograph is compared with the photograph(s) in CBP’s database to ensure there is a match. Under the initial pilot, an airline employee still scans the boarding pass after the facial recognition process is complete. According to a time in motion study of the biometric identity verification process, this process took 9 seconds of each traveler’s time.81 Overall boarding time is unaffected because the facial scans are done while the traveler is already in line waiting to board. Note that this is an estimate for the added time for the initial pilot and it does not apply to the end state solution under this rule because in the end state there will not be a boarding pass scan in addition to the facial recognition. While this initial pilot model has been useful for testing the facial recognition software and process, it is not feasible for nationwide deployment because CBP does not have the staffing for such an expansion. Airlines have recognized the potential for facial recognition to speed up the process for airlines and travelers and have partnered with CBP to test the software in different locations and with alterations to the model. For example, British Airways began testing a new model at Los Angeles International Airport in November 2017, and is 80 The eight airports include: Washington Dulles International Airport, Atlanta Hartsfield-Jackson International Airport, Houston George Bush Intercontinental Airport, Chicago O’Hare International Airport, Las Vegas McCarran International Airport, Houston William P. Hobby Airport, John F. Kennedy International Airport, and Miami International Airport. 81 The time in motion study captured the ‘‘stop and look’’ scenario for currently ‘‘in-scope’’ travelers, which encompasses the reading a boarding pass, face capture and matching. If a traveler does not match, or matches erroneously, then a manual review, as occurs today, would be conducted; therefore, manual reviews are not included in the 9 seconds. Source: Communication with the Office of Field Operations on May 2, 2017. PO 00000 Frm 00021 Fmt 4701 Sfmt 4702 74181 currently testing or planning to expand this at additional airports, including the Orlando International Airport. Under this model, airline employees operate the facial recognition gates rather than CBP. Once the match is made, there is no additional step of scanning the boarding pass or checking the traveler’s identification. If there is not a match, the document is examined by an airline representative, and a CBP officer may also be notified to examine the document. British Airways has found that this process allows for boarding of its largest aircraft in 22 minutes, less than half the time under the usual process.82 Orlando International Airport has announced that it will soon begin building infrastructure to collect photographs of all arriving and exiting aliens.83 The exit model will be similar to the British Airways pilot in that the exit process will be conducted by the airlines. Participating airlines may eventually choose to eliminate boarding passes entirely and may also use facial recognition to speed up other processes. TVS will also be tested at entry and is already being tested in certain other locations. CBP and airlines expect the implementation at entry to save considerable time. The existing version of 19 CFR 235.1 already specifically authorizes CBP to require photographs of most aliens at entry. This rule will expand the requirement to all aliens. This would simplify the testing at entry because no aliens would be eligible to opt out of the facial recognition process. Currently, this process is optional for all exempt travelers. The rule will advance the legal framework to implement a biometric exit requirement using facial recognition technology on a nationwide basis. CBP lacks the resources to implement this program nationwide and will continue to work with airlines and airports to establish partnerships before doing so. Due to airline and airport interest, CBP expects to implement the program nationwide within five years. While this analysis is primarily focused on the impacts of this rule once it is in effect, CBP has been using similar facial recognition in its pilot programs for several years, which have both costs and benefits to CBP and the public. To give the reader a full view of the effects of CBP’s facial recognition program through the entire time it has been used, CBP analyzes the impact of 82 Source: http://mediacentre.britishairways.com/ pressrelease/details/86/2018-247/9247?ref=News. Accessed October 26, 2020. 83 See https://www.cbp.gov/newsroom/nationalmedia-release/cbp-advances-biometric-exitmission-orlando-international-airport. E:\FR\FM\19NOP3.SGM 19NOP3 74182 Federal Register / Vol. 85, No. 224 / Thursday, November 19, 2020 / Proposed Rules the biometrics process over two time periods. First, we analyze the impacts in the initial facial recognition pilot period (2017–2019). This includes the systems and hardware development by CBP, the initial testing, and the photographic collection process operated by CBP at the initial pilot locations. Because the pilots have started at different times and new pilot locations are still being set up, we present the unit costs for the pilot time period in addition to the total cost of the initial pilot. The unit costs illustrate the effects of new pilots as they are added. Second, we analyze the impacts of facial recognition in the regulatory period beginning in 2019 when CBP moves to nationwide deployment. CBP expects deployment at all airports within five years, so we use the period of analysis of 2020–2024. For the regulatory time period, CBP estimates, to the extent data is available, the total projected costs, and cost savings, and benefits that result from the gradual nationwide expansion of the collection of photographs at exit and entry. To estimate the number of U.S. citizens and aliens that could be affected by this rule, we use historical arrival and departure data from internal CBP databases and the international travel forecast produced by the Department of Commerce’s Office of Travel and Tourism Industries (OTTI).84 Table 1 shows the OTTI growth forecast from 2017–2024. We note that this is a forecast of inbound travel, not outbound. Quality forecasts of outbound air travel are not available, so we use inbound air travel as a proxy. Because most international travel is done on a round-trip basis, we believe that inbound air travel growth is a good proxy for outbound air travel growth. To the extent that inbound and outbound travel grow at different rates, the effects of this analysis could be overstated or understated. TABLE 1—OTTI INTERNATIONAL TRAVEL FORECAST GROWTH RATES Growth rate (%) Year 2017 2018 2019 2020 2021 2022 2023 2024 ...................................... ...................................... ...................................... ...................................... ...................................... ...................................... ...................................... ...................................... 0.7 55.7 3.2 22.7 3.3 3.6 3.7 3.7 Tables 2 shows the actual 2017 and projected 2018–2024 outbound air traveler volumes from the United States. Table 3 shows the projected inbound air traveler volumes for the same years. TABLE 2—2017–2024 PROJECTED OUTBOUND AIR TRAVEL Year 2017 2018 2019 2020 2021 2022 2023 2024 U.S. citizens ............................................................................................................................................. ............................................................................................................................................. ............................................................................................................................................. ............................................................................................................................................. ............................................................................................................................................. ............................................................................................................................................. ............................................................................................................................................. ............................................................................................................................................. 50,375,295 53,246,687 54,950,581 56,434,247 58,296,577 60,395,254 62,629,878 64,947,183 Aliens 64,784,389 68,477,099 70,668,366 72,576,412 74,971,434 77,670,406 80,544,211 83,524,347 Total 115,159,684 121,723,786 125,618,947 129,010,659 133,268,011 138,065,660 143,174,089 148,471,530 TABLE 3—2017–2024 PROJECTED INBOUND AIR TRAVEL Year 2017 2018 2019 2020 2021 2022 2023 2024 U.S. citizens ............................................................................................................................................. ............................................................................................................................................. ............................................................................................................................................. ............................................................................................................................................. ............................................................................................................................................. ............................................................................................................................................. ............................................................................................................................................. ............................................................................................................................................. 47,493,852 50,201,002 51,807,434 53,206,235 54,962,041 56,940,674 59,047,479 61,232,236 Aliens 58,312,091 61,635,880 63,608,228 65,325,650 67,481,396 69,910,726 72,497,423 75,179,828 Total 105,805,943 111,836,882 115,415,662 118,531,885 122,443,437 126,851,400 131,544,902 136,412,064 This rule removes the existing limitation on biometric exit pilot programs at airports and seaports and establishes that all aliens may be required to be photographed upon departure. The practical effect of this change at air exit is that CBP will be able to continue expanding its biometric exit capability to additional locations, aliens will be subject to the collection of photographs at these locations, and U.S. citizens who voluntarily participate in CBP’s biometric verification program will also have their photographs taken. The pace of the expansion will depend on how quickly CBP is able to enter into partnerships with airlines and airports. Given the level of interest in such partnerships so far, CBP expects that the program will expand steadily over the next five years until it has been implemented for most outbound commercial passenger air traffic. We therefore assume that 20 percent of travelers will be affected in 2020, 40 percent in 2021, 60 percent in 2022, 80 percent in 2023, and 97 percent in 2024 and beyond.85 Table 4 shows the estimated number of aliens and U.S. travelers on outbound flights with the biometric process in each year. 84 Source: U.S. Department of Commerce, International Trade Administration, Industry & Analysis, National Travel and Tourism Office; Statistics Canada; INEGI, Forecast of International Travelers to the United States by Top Origin Countries, October 2018. Available as a supporting document in the docket of this rulemaking. The OTTI October 2018 forecast is only through 2023. For the purposes of this analysis, we use the 2023 growth rate for 2024. 85 97 percent corresponds to the portion of the international traveler volume that takes place at the 20 busiest airports. VerDate Sep<11>2014 22:14 Nov 18, 2020 Jkt 253001 PO 00000 Frm 00022 Fmt 4701 Sfmt 4702 E:\FR\FM\19NOP3.SGM 19NOP3 Federal Register / Vol. 85, No. 224 / Thursday, November 19, 2020 / Proposed Rules 74183 TABLE 4—2020–2024 PROJECTED OUTBOUND AIR TRAVELERS ON FLIGHTS WITH BIOMETRICS Year 2020 2021 2022 2023 2024 U.S. citizens ............................................................................................................................................. ............................................................................................................................................. ............................................................................................................................................. ............................................................................................................................................. ............................................................................................................................................. After implementation of this rule, as is currently the case under CBP’s biometric exit pilot programs, participation by U.S. citizens will be voluntary. As is the case in the air pilots, U.S. citizens may request an alternative inspection process rather than being photographed. The alternative process is no different than what happens absent this is rule—an airline employee verifies the traveler’s passport information and will contact CBP if they are concerned with the validity of the passport or the identity of the passport holder. Based on recent experiences under various pilots, and because the biometric process is expected to save time, CBP does not expect many to request the alternative process. Biometrics are captured with minimal inconvenience for the traveler and under the biometric exit pilot programs it has been extremely rare for travelers to decline to be photographed. We estimate the opt-out rate through reference to the Transportation Security Agency (TSA)’s biometrics pilot. TSA has recently begun testing facial recognition at some locations, comparing the photographs of travelers to CBP’s gallery. During the test, TSA has made clear through signage that it was optional and the TSA agent asked travelers whether they wanted to opt out. TSA tracked the number of opt outs over two days in the summer of 2019 and found an opt-out rate of 0.18 percent across more than 13,000 travelers. We adopt this rate as our estimate for U.S. citizens who will opt out of biometric collection under this rule. We request comment on this assumption. CBP will continue to gather available data, to the extent possible on the opt-out rates as it continues its pilots until this rule is finalized and will update this assumption for the final rule. Table 5 shows the projected number of U.S. citizens who will be subject to photographs, excluding the 0.18 percent who we assume would request an alternative process. VerDate Sep<11>2014 22:14 Nov 18, 2020 Jkt 253001 11,286,849 23,318,631 36,237,152 50,103,902 62,998,768 Aliens 14,515,282 29,988,574 46,602,244 64,435,369 81,018,617 Total 25,802,132 53,307,204 82,839,396 114,539,271 144,017,384 Approximately 1,134,000 travelers TABLE 5—2020–2024 PROJECTED OUTBOUND U.S. CITIZENS SUBJECT traveled on flights that were part of the pilot programs in 2017.88 Therefore, the TO BIOMETRICS U.S. citizen travelers Year 2020 2021 2022 2023 2024 ...................................... ...................................... ...................................... ...................................... ...................................... 11,266,533 23,276,657 36,171,926 50,013,715 62,885,370 3. Costs We next analyze the costs of the biometrics process both for the pilot period and the nationwide deployment period. Because the various pilots have started at different times and new pilot locations are still being set up we focus on the unit costs for the pilot time period. For the regulatory time period, CBP estimates, to the extent data is available, the total projected costs and cost savings that result from the gradual nationwide expansion of the collection of photographs at exit and entry. Pilot Period As discussed above, CBP conducted a time in motion study during the initial biometric exit pilot. This study estimated that the biometric identity verification process added 9 seconds to a traveler’s departure time.86 We monetize the travelers’ time burden using the Department of Transportation’s recommended hourly wage rates for all-purpose air travel, $47.10.87 The opportunity cost per traveler is approximately $0.12. 86 During the initial pilots, the biometric verification process was done separately from the airline scan of the travelers’ boarding passes. In some pilots, and in the regulatory period, biometric identification will be fully integrated into the boarding process, which will save the travelers time. See the benefits section for a discussion of the time savings in the regulatory period. 87 Source: U.S. Department of Transportation, Office of Transportation Policy. The Value of Travel Time Savings: Departmental Guidance for Conducting Economic Evaluations Revision 2 (2016 Update), ‘‘Table 4 (Revision 2—2016 Update): Recommended Hourly Values of Travel Time Savings for Intercity, All-Purpose Travel by Air and High-Speed Rail.’’ September 27, 2016. Available at https://www.transportation.gov/sites/dot.gov/files/ docs/2016%20Revised%20Value%20of%20Travel %20Time%20Guidance.pdf. Accessed October 26, 2020. PO 00000 Frm 00023 Fmt 4701 Sfmt 4702 approximate opportunity cost for these travelers in 2017 was $136,080. Similar numbers are expected for 2018 and 2019.89 Participation in the biometric exit pilot programs is voluntary for U.S. citizens, who may request an alternative inspection process. As discussed earlier, we estimate 0.18 percent of U.S. citizens request an alternative process. In the event a U.S. citizen elects not to be photographed at airports where CBP is conducting biometric exit verification, an airline gate agent will perform a manual review of the passport. If there is some question as to the authenticity of the passport or whether the person presenting the passport is the owner of the passport, the airline will contact CBP for additional inspection, which would take longer than the biometric process. However, as this is the current procedure without the rule, there is no new opportunity cost associated with this requirement. CBP has borne the bulk of the costs of the biometric verification pilot programs. CBP’s costs include the cost to develop the facial recognition capabilities, the cost of the hardware for the expansion of the biometric exit pilot programs and the annual operation and maintenance costs of that hardware, the cost of the required network upgrades, and the opportunity cost of the CBP officers who collect the biometrics. Table 6 shows the estimated hardware and software costs for the expansion of the biometric exit pilot programs. The expansion hardware is the cost of the hardware that has been placed during the initial pilot. The Biometric Pathway Development Costs are the software development costs required to create a service to operate facial recognition at airport international departure gates used for the biometric exit pilot 88 Source: CBP’s Borderstat Database. first pilot began at a single airport in 2016. Because we do not have quality data for 2016 and because a relatively small number of flights and travelers were affected by this pilot, we begin our quantification of the pilot period in 2017, acknowledging that there were some small costs and benefits in 2016 as well. 89 The E:\FR\FM\19NOP3.SGM 19NOP3 74184 Federal Register / Vol. 85, No. 224 / Thursday, November 19, 2020 / Proposed Rules programs and will serve as the foundation for use as the program becomes operational on a nationwide basis. This development includes creating open interfaces to accommodate multiple biometric collection devices, adapting current systems to survey and collect traveler images from existing data, transferring data between the point of collection and the CBP back-end, processing biometric data, and creating reports for awareness and analysis. Facial Recognition Technology Expansion Hardware O&M are the annual operations and maintenance costs for the hardware at the airports participating in CBP’s biometric exit pilot programs. Matching Licenses are costs to procure back-end enterprise matching licenses for the airports participating in CBP’s biometric exit pilot programs from the developer. It is anticipated that these costs are spread over the first two years of use. After the first two years, we estimate no further costs for CBP as airlines will be buying their own hardware, which is expected to have a useful life longer than the period of analysis. During the pilot period, CBP installed the facial recognition technology hardware into existing airport gates at CBP’s expense. Though the hardware does not use a significant amount of electricity, airports were concerned that their networks did not have sufficient bandwidth to accommodate the matching software. CBP has added additional capacity to allow for the needed bandwidth. This is included in the Cloud Hosting costs listed in Table 6. CBP also bears the opportunity costs of assigning CBP Officers at each of the biometric exit pilot program flights. Two CBP Officers are assigned to each flight, and it takes an hour for each of them to process the travelers on a flight. There were 18 daily flights that were part of the initial biometric exit pilot programs (the initial pilot period), and staffing that number of flights takes approximately 13,140 hours of officer time (18 flights per day × 365 days per year × 2 officers). According to CBP’s position model, the average loaded wage rate for a CBP Officer is $63.80 per hour.90 We therefore estimate that it costs approximately $838,000 per year in officer time costs. Table 6 shows CBP’s estimated pilot costs for 2017–2019. These costs are based on the initial pilot period. The Air Technology Development, Air Technology Operations and Maintenance, and Biometric Pathway Development and Matching Licenses are fixed costs that will not change if the pilot is expanded to other flights. The remaining costs are variable and will increase when the pilot is expanded. The total variable cost over the threeyear period is $44,074,000 or an average of $1,358,000 per year. The initial pilot period covered 18 scheduled flights per day. Dividing by 18 flights, the annual variable pilot cost to CBP is $80,657 per flight. TABLE 6—CBP COSTS (UNDISCOUNTED THOUSANDS OF 2017 DOLLARS)—PILOT Cost category 2017 2018 2019 Biometric Entry-exit—Air Technology Development ................................................................... Biometric Entry-exit—Air Technology Operation & Maintenance ............................................... Facial Recognition Technology Expansion Hardware ................................................................. Biometric Pathway Development—Facial Recognition Technology Expansion ......................... Facial Recognition Technology Expansion Hardware O&M ....................................................... Cloud Hosting—Facial Recognition Technology ......................................................................... Matching Licenses ....................................................................................................................... CBPO Time Cost ......................................................................................................................... 44,447 10,661 804 8,104 ........................ 90 567 838 58,642 19,693 ........................ ........................ 243 90 567 838 44,286 24,066 ........................ ........................ ........................ 90 567 838 Total ...................................................................................................................................... 65,512 80,073 70,090 In summary, the biometric exit pilot programs have resulted in costs to travelers and CBP. Table 7 shows the total costs during the pilot period. The unit cost per additional traveler would be 12 cents per departure. Annual costs to CBP per daily-scheduled flight added would be approximately $81,000 per flight. TABLE 7—SUMMARY OF PILOT COSTS [Undiscounted thousands of $2017] Year 2017 2018 2019 Traveler Costs ............................................................................................................................. CBP Costs ................................................................................................................................... $136 65,512 $136 80,073 $136 70,090 Total Costs ........................................................................................................................... 65,648 80,209 70,226 Regulatory Period The estimated costs during the regulatory time period (2020–2024) are substantially different than those in the pilot period. During the regulatory period, CBP will enter into partnerships with carriers and airports to streamline the process and eliminate redundancies. 90 Source: CBP’s Office of Finance Position Model. VerDate Sep<11>2014 22:14 Nov 18, 2020 Jkt 253001 Facial recognition will be integrated into the boarding process and will result in time savings for all parties (see the benefits section below for more information), rather than a cost. As occurs today, CBP will continue to be available to adjudicate any issues. The hardware cost in the regulatory period will be borne by the carriers and airports who partner with CBP.91 CBP will give carriers and airports access to its facial recognition system and the carriers and airports will choose (and pay for) the hardware that best fits their needs. While this partnership is 91 Costs to carriers and airports are limited to hardware costs. During the pilot period, carriers and airports have not needed additional staff, nor has there been a need for additional training as the system is intended to be integrated with the airline or airport departure control system. PO 00000 Frm 00024 Fmt 4701 Sfmt 4702 E:\FR\FM\19NOP3.SGM 19NOP3 Federal Register / Vol. 85, No. 224 / Thursday, November 19, 2020 / Proposed Rules voluntary, CBP expects that all commercial carriers and major airports will elect to participate within five years. As discussed above, we assume that the biometric exit process will be expanded by 20 percent each year. In total, there are approximately 2,500 departure gates that will need facial recognition hardware installed, so we assume that carriers and airports will install the hardware at 500 departure gates each year.92 The cost of the hardware will vary by carrier and airport and may depend on how they intend to use the hardware. For example, if they intend to use it only at the exit gate, costs will be lower than if they also choose to use it for their own purposes, such as simplifying the baggage drop and claim process or for access into elite traveler lounge areas. CBP believes costs will range from $5,000 to $20,000 per departure gate, based on its experience procuring equipment during the pilot period. We use $20,000 as the primary estimate for the analysis as carriers and airports have expressed interest in using facial recognition for other purposes and are likely to purchase higher end cameras 74185 that will give them flexibility. It is also possible that costs will go down substantially over time as carriers and airports develop better and cheaper hardware. For example, the Washington Metropolitan Airports Authority has begun using modified iPads for its new facial recognition pilot.93 If this hardware is successful and is adopted more broadly, the cost to carriers and airports would drop substantially. We request comment on these estimates. Carrier and airport hardware estimated costs for the regulatory period are reported in Table 8. TABLE 8—2020–2024 CARRIER AND AIRPORT HARDWARE COSTS [Undiscounted thousands of $2017] Year 2020 2021 2022 2023 2024 Gates ............................................................................................................................................. ............................................................................................................................................. ............................................................................................................................................. ............................................................................................................................................. ............................................................................................................................................. Much of the costs to develop the facial recognition technology was incurred by CBP during the pilot period, but CBP will continue to incur some additional technology costs as facial recognition is expanded nationwide. In the first two years of the regulatory period, CBP expects to incur costs for final development and deployment of the technology. Throughout the period Cost—low 500 500 500 500 500 2,500 2,500 2,500 2,500 2,500 Cost—high 10,000 10,000 10,000 10,000 10,000 of analysis, CBP will also incur operations and maintenance costs. CBP’s costs in the regulatory period are summarized in Table 9 below.94 TABLE 9—2020–2024 CBP TECHNOLOGY COSTS [Undiscounted thousands of $2017] Year 2020 2021 2022 2023 2024 Development ............................................................................................................................................. ............................................................................................................................................. ............................................................................................................................................. ............................................................................................................................................. ............................................................................................................................................. 43,449 0 0 0 0 O&M 21,802 39,585 31,605 32,383 33,178 Total 65,251 39,585 31,605 32,383 33,178 Most aliens are already subject to a biometric requirement at entry, so there will be no change for those already photographed at entry. U.S. citizens are not currently required to be photographed at entry, and this rule does not change that. CBP continues to explore ways to streamline traveler processing upon entry and is developing pilot programs, often in coordination with industry partners, to help inform its decisions. CBP has been testing facial recognition to improve the arrival process. For example, CBP has implemented Simplified Arrival for travelers entering the United States at various airports. Under this new process, CBP uses facial recognition instead of scanning travelers’ travel documents. The photograph is taken as the traveler approaches the CBP Officer for primary inspection. If there is a match, the officer does not need to scan the traveler’s documents. If there is no match, the officer proceeds with the current process of scanning the documents. Simplified Arrival is still in its infancy, but early analysis indicates that this could save approximately 15 seconds of processing time per traveler on average, an estimate that could change once it has been tested further. As travelers’ wait times are affected by not only their own processing time but also the processing time of everyone else ahead of them in line, this could have a very significant time savings for travelers. In fact, airlines have indicated that they are hopeful that Simplified Arrival will lead to even more time savings than the new exit procedure. At this time, there is not enough information to adequately evaluate the possible savings that results from Simplified Arrival. Although CBP plans to eventually revamp the admission process to speed the inspection of arriving travelers and will likely use photographs in this process, this process would only be implemented if it results in a net time savings for travelers. In addition, U.S. citizens would generally have the option not to be photographed (though they would then not get the benefits of 92 Source: Subject matter expert estimate. Communication with the Office of Field Operations on June 26, 2018. 93 Source: https://www.washingtonpost.com/ transportation/2018/09/06/officials-unveil-newfacial-recognition-system-dulles-international- airport/?noredirect=on&utm_term=.ae3fdefbd1a6. Accessed October 26, 2020. 94 Source: CBP Biometric Entry-Exit Life Cycle Cost Estimate. September 20, 2017. VerDate Sep<11>2014 22:14 Nov 18, 2020 Jkt 253001 PO 00000 Frm 00025 Fmt 4701 Sfmt 4702 E:\FR\FM\19NOP3.SGM 19NOP3 74186 Federal Register / Vol. 85, No. 224 / Thursday, November 19, 2020 / Proposed Rules the shorter inspection process). Therefore, this rule imposes no cost on most aliens or U.S. citizens at entry. To the extent that CBP is able to extend its facial recognition capabilities to improve the entry process, it would result in time savings for all travelers and CBP. CBP will conduct a study of the effect of Simplified Arrival on wait times and will include the results in the analysis for the final rule. This rule provides that all aliens may be required to be photographed at entry and/or exit. Under the current regulations only certain aliens are subject to such requirements. This expansion of the biometric entry-exit verification program will enable CBP to require all aliens to be photographed at entry and exit. There are no additional hardware costs for carriers or airports who photograph travelers. As discussed later in the Cost Savings section, the regulatory facial recognition exit process will result in opportunity cost savings for travelers. The savings to currently exempted aliens is included in the total cost savings for travelers in that section.95 CBP will initially focus primarily on the air environment. In the near term, CBP also plans to gradually scale up efforts in the land and sea environments to determine the best way to fully implement biometric entry-exit in those environments pursuant to this rule. Most aliens are already photographed when entering by air. CBP is testing various biometric collection options, such as the Simplified Arrival process described earlier, that would apply to aliens who are not currently subject to photographs. CBP anticipates that such a process, once implemented on a nationwide basis, will result in a net time savings for travelers. Therefore, that change will impose no new costs on these currently exempted aliens. This rule would also allow for the implementation of a biometric exit capability at land border ports. CBP already has authority to test biometric collection at land borders through pilot programs that are not subject to the limits that air and sea pilots have. CBP will continue testing biometric collection at land border ports, but a nationwide biometric exit solution at 95 Our data on the travelers that are affected by the pilot do not separate out the portion of travelers who are out of the scope of the pilot. We do not have separate data, for example, on the number of travelers who are under the age of 14. Because of this, the estimates in our analysis capture the impacts on all travelers, including the currently out of scope travelers. VerDate Sep<11>2014 22:14 Nov 18, 2020 Jkt 253001 the land border in all modes of transportation is not feasible at this time and there is no near-term plan for such an expansion. As CBP already has the ability to test biometric collection at land border ports without a limit on the number of locations, this rule has no practical effect in that environment except that it would include currently exempt aliens in those tests. For any potential future process to be workable in the land environment it needs to be done in a way that minimizes the burden on the public and the ability to expand the pilots will help inform CBP on how to accomplish that. Because there is no near-term plan to expand the general requirement for biometrics to land and sea beyond pilots, we focus the analysis on the effects of the pilots. This analysis does not account for the costs, cost savings, or benefits of some future expansion to land and sea beyond pilot programs because it is impossible to predict what that expansion would entail. The ability to collect photographs from currently exempt aliens will enhance CBP’s ability to test various exit concepts at the land border. For example, CBP is considering testing biometrics of pedestrians exiting the United States on a limited basis under various scenarios. CBP has not yet determined this process, but it would likely involve providing notice that U.S. citizens may opt out of the test by approaching a CBP officer and requesting an alternative process. As this pilot is still being developed, we do not have a firm estimate of the time it will take to capture photographs or how many travelers would be affected. We note, however, that their time delay and opportunity cost will be no greater than the 9 seconds and 12 cents estimated above for the biometric exit pilot programs process.96 When CBP begins requiring biometrics from all aliens exiting at the land border (i.e., not through a limited pilot program), to the extent that requirement lengthens entry or exit processing, there will be additional opportunity costs for the travelers and CBP. CBP is endeavoring to use biometrics as a way to streamline the entry and exit process, and it believes any additional net time it will 96 The process currently being used for pedestrians is similar to what is being used at airports. For vehicles, CBP is working on various concepts and is committed to a system that would not significantly increase wait times at the land border. PO 00000 Frm 00026 Fmt 4701 Sfmt 4702 add to travelers will be minimal or nonexistent. Depending on the particulars of the biometric collection, there may also be significant hardware and infrastructure costs to CBP. This rule would add a provision that aliens may be photographed upon exit and entry. While this provision applies at all types of ports of entry, more testing will be conducted before full implementation for land and sea ports of entry and private aircraft. For the near future the photographic requirement will apply primarily at airports. Most aliens arriving by air are already photographed at entry and have their fingerprints captured, and such aliens already have their passport photographs examined visually when entering or exiting the United States. In addition, most aliens are photographed if they are required to apply for a U.S. visa. A facial recognition system would compare the traveler’s face to the previously taken photographs to ensure there is a match. CBP acknowledges that the traveler may perceive this process to be a loss of privacy, which is a cost of the rule. Facial comparison has presented CBP with the best biometric approach because it can be performed relatively quickly, with a high degree of accuracy, and in a manner perceived as less invasive to the traveler (e.g., no actual physical contact is required to collect the biometric). This approach, as with all biometric collections, poses privacy risks which, as discussed in the PIA for the TVS,97 are mostly mitigated. Nevertheless, CBP’s phased deployment has shown the use of facial recognition technology is successful in a variety of scenarios that meet CBP’s business requirements while requiring minimal infrastructure investments and space redesign and having minimal impacts on travelers. Moreover, the phased deployment has allowed CBP to ensure that biometrics are collected, maintained, and used consistent with applicable privacy laws and best practices. Table 10 summarizes the monetized costs of the regulatory period. These estimated costs are only for air exit. Any costs from an unknown future deployment at land or sea are not included in these estimates. 97 See DHS/CBP/PIA–056, Privacy Impact Assessment for the Traveler Verification Service, issued Nov. 14, 2018, available at https:// www.dhs.gov/sites/default/files/publications/ privacy-pia-cbp030-tvs-november2018_2.pdf. E:\FR\FM\19NOP3.SGM 19NOP3 Federal Register / Vol. 85, No. 224 / Thursday, November 19, 2020 / Proposed Rules 74187 TABLE 10—2020–2024 REGULATORY COSTS [Undiscounted thousands of $2017] Year 2020 2021 2022 2023 2024 Carriers/ airports—low CBP ..................................................................................... ..................................................................................... ..................................................................................... ..................................................................................... ..................................................................................... 4. Cost Savings In the regulatory period, CBP and airlines expect that the use of facial recognition will speed the entry and exit processes considerably, resulting in time savings for travelers and shorter plane turnaround times for carriers. Various airlines have been testing facial recognition models similar to what is planned under this rule. In one test, an airline partner has been able to board an Airbus A–380 with 350 travelers in only 20 minutes.98 Another airline partner has reported to CBP that their baseline loading time for an A–380 is 45 minutes. In the test of the integrated facial recognition system used at the Orlando Airport, travelers have experienced a 15 minute time savings. According to one news article, this is down from 30 minutes for a 240passenger plane.99 In both tests, boarding times are reduced by approximately 50 percent. These estimates are for some of the largest 65,251 39,585 31,605 32,383 33,178 2,500 2,500 2,500 2,500 2,500 planes carrying travelers and much of the time savings is due to a process that allows boarding through several doors. Smaller planes do not have as many doors so the time savings for their travelers is likely to be lower. Additionally, these initial implementation flights and locations were selected in part based on ease of implementation. Using a 50 percent or 15-minute time savings for all flights based on the savings in these pilots would overstate the time savings due to this rule. Because of the uncertainty surrounding the time savings, we present a range of time savings estimates. For the low end of the range, which serves as our primary estimate, we assume that average time savings due to this rule will be 5 minutes per traveler, or one third of the savings airline partners observed during the pilot. For the high end of the range, we assume that the time savings would be 10 minutes, or two thirds of the savings from the pilot. We request comment on Carriers/ airports—high Total—low 10,000 10,000 10,000 10,000 10,000 67,751 42,085 34,105 34,883 35,678 Total—high 75,251 49,585 41,605 42,383 43,178 these assumptions. CBP will be conducting time studies to refine our estimates and will use updated estimates, and will consider any public input on the estimates at the final rule stage. To estimate the value of time savings of air travelers at exit due to this rule, we apply the assumed range of time savings (5 to 10 minutes) to the traveler projections from Table 4.100 We then apply the $47.10 hourly value of time for these travelers to determine the total opportunity cost savings as a result of this rule. Table 11 shows the hours saved at air exit due to this rule during the 5-year regulatory period of analysis. Table 12 shows the value of this time savings. As shown, in the primary estimate the savings range from $101 million in the first year to $565 million in 2024, when full nationwide deployment is expected to occur at air exit. These estimated savings are for air exit only. TABLE 11—2020–2024 PROJECTED TIME SAVINGS FOR AIR TRAVELERS AT EXIT [Hours] U.S Citizens—Primary ......................................................... U.S. Citizens—High ............................................................. Aliens—Primary ................................................................... Aliens—High ........................................................................ 2020 2021 2022 2023 938,878 1,877,756 1,209,607 2,419,214 1,939,721 3,879,443 2,499,048 4,998,096 3,014,327 6,028,654 3,883,520 7,767,041 4,167,810 8,335,619 5,369,614 10,739,228 2024 5,240,447 10,480,895 6,751,551 13,503,103 TABLE 12—2020–2024 VALUE OF TIME SAVINGS FOR AIR TRAVELERS AT EXIT [$2017] 2020 U.S Citizens—Primary ......................................................... U.S. Citizens—High ............................................................. Aliens—Primary ................................................................... Aliens—High ........................................................................ Total—Primary ..................................................................... Total—High .......................................................................... 98 Source: https://www.cntraveler.com/story/ orlando-airport-first-in-the-us-to-scan-faces-of-allinternational-passengers. Accessed October 26, 2020. 99 Source: https://www.forbes.com/sites/ grantmartin/2018/06/24/orlando-airport-deploys- VerDate Sep<11>2014 22:14 Nov 18, 2020 Jkt 253001 2021 44,221,142 88,442,284 56,972,483 113,944,967 101,273,367 202,387,251 91,360,880 182,721,759 117,705,151 235,410,303 209,230,777 418,132,062 biometric-scanners-at-all-international-gates/ #2a4a588118f9 and https:// www.washingtonexaminer.com/news/bye-byeboarding-pass-us-airport-launches-first-eversecurity-checkpoints-that-scan-your-face. Accessed October 26, 2020. PO 00000 Frm 00027 Fmt 4701 Sfmt 4702 2022 2023 141,974,809 283,949,618 182,913,806 365,827,612 325,144,629 649,777,230 196,303,832 392,607,664 252,908,823 505,817,645 449,566,639 898,425,309 2024 246,825,076 493,650,152 317,998,070 635,996,140 565,268,232 1,129,646,292 100 As a reminder, we assume that a small portion of U.S. citizens will request an alternative inspection. These costs include only the U.S. citizens who undergo the facial recognition process. E:\FR\FM\19NOP3.SGM 19NOP3 74188 Federal Register / Vol. 85, No. 224 / Thursday, November 19, 2020 / Proposed Rules In addition to the savings to travelers, boarding an aircraft more quickly has a substantial benefit to airlines as they will be able to turn around aircraft more quickly. According to one study, reducing turn time by 10 minutes could lead to an improved aircraft utilization rate of 8.1 percent.101 If there is a sustained decrease in turn times as a result of this rule, carriers could eventually reduce the number of aircraft in their fleets. In addition, to the extent the shorter turn time saves airline staff time, airlines could experience additional savings. 5. Benefits The primary benefit of this rule is the security benefit of having biometric confirmation of the identification of those leaving the country by air. CBP has very good records of those legally entering the United States by air, land and sea. These records are enhanced for aliens through the collection of biometrics at entry. At departure, CBP has a record of the names of everyone leaving the United States by air or sea. However, these records are not verified with the same accuracy as at entry. Comparing biometrics at departure will enable CBP to know with greater certainty the identity of those leaving the United States, which will help detect and deter visa overstays and visa fraud; help identify persons attempting to fraudulently use travel documents; and alert authorities to criminals or known or suspected terrorists prior to boarding. Studies show that humans are best at identifying imposters when paired with technology.102 CBP believes that facial recognition is the best available method for biometric identification as it is highly accurate, unobtrusive, and cost effective. This rule would expand CBP’s ability to implement this biometric exit capability at additional locations before eventually implementing it nationwide. 101 Source: Economic Impact of Airplane Turn Times. Available at https://www.boeing.com/ commercial/aeromagazine/articles/qtr_4_08/pdfs/ AERO_Q408_article03.pdf. Accessed on August 22, 2018. 102 See ‘‘NIST Study Shows Face Recognition Experts Perform Better with AI as Partner.’’ Available at https://www.nist.gov/news-events/ news/2018/05/nist-study-shows-face-recognitionexperts-perform-better-ai-partner. https:// www.pnas.org/content/pnas/115/24/6171.full.pdf. https://www.nist.gov/news-events/news/2018/05/ nist-study-shows-face-recognition-experts-performbetter-ai-partner. See also https:// onlinelibrary.wiley.com/doi/abs/10.1002/acp.2968. Accessed October 26, 2020. See also https:// royalsocietypublishing.org/doi/full/10.1098/ rsos.170249#RSOS170249C16. See also https:// royalsocietypublishing.org/doi/full/10.1098/ rsos.170249#RSOS170249C16. Accessed October 26, 2020. VerDate Sep<11>2014 22:14 Nov 18, 2020 Jkt 253001 An alien admitted to the United States on a visa or through the Visa Waiver Program (VWP) is permitted to remain in the country for the lawful period of admission (in the case of a VWP traveler, 90 days). An overstay occurs when a person enters the United States legally on a visa or through the VWP, but does not leave within the prescribed time period. Some aliens who overstay their lawful period of admission remain in the United States illegally for years. For Fiscal Year 2018, DHS estimates that about 666,500 aliens who entered by air or sea and were expected to depart that year overstayed their lawful period of admission, or 1.22 percent of aliens arriving by air and sea.103 These figures are estimates because without biometrics, CBP cannot verify with certainty the identity of those leaving the United States. For example, many aliens sharing a common name may enter the United States in a given year. Biometrics allow CBP to better differentiate those who have identical names and basic biographic information, provide checks against the use of fraudulent identity documents, and better understand whether any particular alien left the United States on time or if the departing alien was a different person with the same name. Without biometrics it is difficult to know whether the alien leaving did so on time or if the departing alien was a different person with the same name. Similarly, there are ways to exploit the current exit system to avoid the detection of passport and visa fraud. Currently, those departing the United States must present their boarding pass and identification when being screened by TSA. Before boarding, travelers also need to present their travel documents and boarding passes to the carrier at the gate, who visually reviews the travel documents and validates the boarding pass with the carrier’s ticketing system. However, once in the sterile area of the terminal, although travelers may be subject to random identification checks, travelers generally do not have their photo identification scrutinized again before boarding the aircraft. This has allowed for passport and visa fraud.104 During the boarding process, in addition to addressing customer service issues, such as baggage and seat assignments, gate agents are also required to check 103 Source: Internal Database, as reported in the FY 2016201820162018 Entry/Exit Overstay Report. Available at https://www.dhs.gov/sites/default/ files/publications/19_0417_fy18-entry-and-exitoverstay-report.pdf. Accessed September 1010, 2019. 104 Note: TSA subjects all travelers entering the sterile area of an airport, and their carry-on belongings, to security screening at the checkpoint. PO 00000 Frm 00028 Fmt 4701 Sfmt 4702 travel documents during what can often be a hectic boarding process. Using facial recognition technology reduces the number of documents that the gate agent needs to review thereby increasing the effectiveness of the limited fraudulent document detection and impostor identification training gate agents receive. Furthermore, people are most effective at identifying fraud when paired with technology. The facial recognition pilots have helped identify 77,000 visa overstays and 240 individuals who previously entered the United States without inspection.105 CBP has also used facial recognition to identify several imposters attempting to fraudulently enter the United States and expects to have similar success on exit.106 Having an accurate accounting of visa overstays is important both for reasons of equity and government resources. The United States has set up a system whereby aliens may visit by legal means and the vast majority follow this system conscientiously, though it can sometimes take a significant amount of time to proceed through the immigration process. It is not equitable for these legitimate travelers and immigrants when others circumvent the legitimate process through illegal visa overstays. The success of those who are able to overstay their visas without consequences only encourages others to attempt to do the same. Further, overstays place a strain on government resources as the government must investigate and remove those who are not here legally. Compounding this problem is a lack of true identity verification, as DHS must spend time determining whether an individual actually overstayed his/her lawful period of admission before beginning the actual investigation. Biometric identity verification will give DHS the information it needs about those who have overstayed their visas and will allow it to focus on these individuals. The public also has an interest in accurate identification at departure for law enforcement and national security reasons. Security agencies maintain an 105 Source: DHS Fiscal Year 2018 Entry/Exit Report. Available at: https://www.dhs.gov/sites/ default/files/publications/19_0417_fy18-entry-andexit-overstay-report.pdf. Accessed October 26, 2020. See also source: DHS Office of Inspector General Report: ‘‘Progress Made, but CBP Faces Challenges Implementing a Biometric Capability to Track Air Passenger Departures Nationwide.’’ Available at https://www.oig.dhs.gov/sites/default/files/assets/ 2018-09/OIG-18-80-Sep18.pdf. 106 Source: CBP press release: Second Imposter in Three Weeks Caught by CBP Biometric Verification Technology at Washington Dulles Airport. Available at https://www.cbp.gov/newsroom/local-mediarelease/second-impostor-three-weeks-caught-cbpbiometric-verification. Accessed October 26, 2020. E:\FR\FM\19NOP3.SGM 19NOP3 Federal Register / Vol. 85, No. 224 / Thursday, November 19, 2020 / Proposed Rules extensive database of known and suspected terrorists, but sometimes they have incomplete information about them. In some cases, they may have photographs on a person of interest, but no name. In other cases, someone could be traveling under a false name with false documents. Having biometric identification would assist CBP in identifying these individuals during the travel process and taking appropriate action. Similarly, biometric identification would help CBP identify those wanted for a crime or who are the subject of a court order (such as in a child custody dispute) and intercept them before they are able to leave the country. As discussed in the Costs section above, CBP is exploring various ways to use biometrics to streamline the entry process. This rule allows for the expansion of these tests as it provides the framework for CBP to require all aliens to be photographed at entry. Under the current regulations, certain aliens are not subject to this requirement, making a full evaluation of the concept impossible. Early analysis of the Simplified Arrival pilot suggests that it could save 15 seconds of processing time for all participating travelers, including U.S. citizens who voluntarily participate. CBP is expected to experience time savings as well, but it is unknown how much time it will save. CBP is expanding Simplified Arrival and will be doing time-inmotion studies to determine the effect on processing and wait times. We will include a discussion of the results in the final rule. The development of a reliable facial recognition system could also have benefits for other government agencies. CBP is coordinating with TSA to test facial recognition to streamline its processes. Among other things, TSA is considering using facial recognition to improve the TSA Pre√TM process. TSA also plans to explore other ways facial recognition can improve security and 74189 traveler processing.107 TSA’s use of CBP’s facial recognition system is still in its planning stage, so it is impossible to estimate any savings that could result. To the extent that TSA is able to improve security or reduce processing times for travelers, that would be an additional cost savings or benefit of this rule. 6. Net Benefits As discussed in the cost section, the biometric exit pilot programs have resulted in costs to travelers and CBP. From 2017–2019, travelers experienced approximately $136,000 in opportunity costs per year. CBP spent $228 million to develop, maintain, and operate the initial pilots from 2017 to 2019. The unit costs to expand these pilots would be 12 cents per departure for travelers and $81,000 annually per dailyscheduled flight for CBP. These costs are summarized in Table 13. TABLE 13—TOTAL PILOT COSTS 2017–2019 [Thousands of 2017 U.S. dollars] 3% Discount rate Total Present Value Cost ........................................................................................................................................ Annualized Cost ....................................................................................................................................................... During the regulatory time period, the costs will be split by carriers and airports who will install the facial recognition hardware at gates and CBP, which incurs development and operations and maintenance costs. Table 14 shows the discounted costs of the regulatory time period. As shown, costs over the 5-year period of analysis range from $211 to $233 million, depending on the discount rate used. Annualized costs range are $51 million. Unquantified costs include the costs of expanding photographic collection of $215,222 76,088 7% Discount rate $199,887 76,159 currently exempt aliens at entry. These costs are difficult to quantify as the Simplified Arrival concept has not yet been widely tested and this expansion will only occur if it is determined that the aliens experience net savings as a result. TABLE 14—TOTAL REGULATORY COSTS 2020–2024 [Thousands of 2017 U.S. Dollars] 3% Discount rate Total Present Value Cost ........................................................................................................................................ Annualized Cost ....................................................................................................................................................... This rule’s establishment of a biometric identification system at departure will have benefits, including cost savings, to CBP and the public. Travelers will experience a time savings through a shorter boarding process. Table 15 shows the discounted savings as a result of this rule. As shown, CBP estimates that this rule will save travelers opportunity costs of between $1.289 and $1.480 billion over the 5year period of analysis. On an annualized basis, this rule will save between $314 and $323 million. In addition, carriers may experience turn around cost savings and travelers may 22:14 Nov 18, 2020 Jkt 253001 PO 00000 Frm 00029 Fmt 4701 Sfmt 4702 $210,719 51,393 experience additional savings from a new Simplified Arrival process. Further, this rule will allow CBP to identify travelers with greater certainty, which will reduce travel document fraud. It will also give CBP a more accurate record of those who overstayed their visas. 107 See TSA’s Biometric Roadmap, available at https://www.tsa.gov/sites/default/files/tsa_ biometrics_roadmap.pdf. VerDate Sep<11>2014 $232,776 50,827 7% Discount rate E:\FR\FM\19NOP3.SGM 19NOP3 74190 Federal Register / Vol. 85, No. 224 / Thursday, November 19, 2020 / Proposed Rules TABLE 15—TOTAL REGULATORY COST SAVINGS 2020–2024 FOR BOTH ALIENS AND U.S. CITIZENS [Thousands of 2017 U.S. Dollars] 3% Discount rate Total Present Value Cost Savings .......................................................................................................................... Annualized Cost Savings ......................................................................................................................................... Table 16 shows the net monetized cost savings for the rule’s primary estimate. As shown, the rule will result in total net savings ranging from $1.078 million to $1.247 million, depending on the discount rate used. On an annualized basis, savings will range from $262 to $272 million. Accounting statements 1 and 2 show the costs, cost savings, and benefits of the rule for the pilot period and the regulatory period, respectively. The net cost savings listed $1,480,137 323,195 7% Discount rate $1,288,814 314,330 in this table is for air exit only. Any costs, cost savings, and benefits from an unknown future deployment at land or sea are not included in these estimates. TABLE 16—NET REGULATORY COSTS SAVINGS 2020–2024 [Thousands of 2017 U.S. Dollars] 3% Discount rate Total Present Value Cost Savings .......................................................................................................................... Annualized Cost Savings ......................................................................................................................................... $1,247,361 272,367 7% Discount rate $1,078,094 262,937 ACCOUNTING STATEMENT 1—PILOT PERIOD (2017–2019) [Thousands of $2017] 3% Discount rate Costs: Annualized monetized costs ....................... Annualized quantified, but non-monetized costs. Qualitative (non-quantified) costs ................ Cost Savings: Annualized monetized benefits ................... Annualized quantified, but non-monetized benefits. Qualitative (non-quantified) costs ................ Benefits: Annualized monetized benefits ................... Annualized quantified, but non-monetized benefits. Qualitative (non-quantified) benefits ........... 7% Discount rate 76,088 .............................................................. None ................................................................. 76,160. None. None ................................................................. None. None ................................................................. None ................................................................. None. None. None ................................................................. None. None ................................................................. None ................................................................. None. None. Enhanced security and identification of visa overstays. Enhanced security and identification of visa overstays. ACCOUNTING STATEMENT 2—REGULATORY PERIOD (2020–2024) [Thousands of $2017] 3% Discount rate Costs: Annualized monetized costs ....................... Annualized quantified, but non-monetized costs. Qualitative (non-quantified) costs ................ Cost Savings: Annualized monetized cost savings ............ Annualized quantified, but non-monetized cost savings. Qualitative (non-quantified) cost savings .... Benefits: Annualized monetized benefits ................... Annualized quantified, but non-monetized benefits. Qualitative (non-quantified) benefits ........... VerDate Sep<11>2014 22:14 Nov 18, 2020 Jkt 253001 7% Discount rate 50,828 .............................................................. None ................................................................. 51,393. None. Perceived privacy loss ..................................... Perceived privacy loss. 323,195 ............................................................ None ................................................................. 314,330. None. Shorter plane turn times. Potential additional savings at entry. Shorter plane turn times. Potential additional savings at entry. None ................................................................. None ................................................................. None. None. Enhanced security and identification of visa overstays. Enhanced security and identification of visa overstays. PO 00000 Frm 00030 Fmt 4701 Sfmt 4702 E:\FR\FM\19NOP3.SGM 19NOP3 Federal Register / Vol. 85, No. 224 / Thursday, November 19, 2020 / Proposed Rules 7. Alternatives Analysis CBP considered many types of biometrics and has concluded that partnering with carriers and airports to capture facial images is the most viable large scale solution as it is highly effective, cost effective, and less disruptive than other possible methods. Two other methods that were considered were fingerprint and/or iris scans and using CBP personnel and equipment to collect the facial scans. CBP has tested fingerprint and iris scans on a limited basis to determine its effectiveness and scalability. CBP found that while these scans are highly effective in finding matches when data is available, they have numerous problems. First, CBP often lacks data to match against. Although CBP often has fingerprints from entry that it can use to match a departing alien, it does not typically capture iris scans. Nor are these biometrics typically included in passports. To use iris scans, CBP would need to establish a new way to capture a baseline iris scan to compare against at exit, which is not feasible. Fingerprint and iris scans are also more time consuming and the equipment needed is more expensive than facial recognition. Finally, these methods are more intrusive than taking a picture, so they present additional privacy concerns. CBP also considered purchasing the facial recognition hardware and using CBP personnel to capture the facial images rather than having the carrier or airport purchase and operate it. This alternative would essentially expand the initial pilot nationwide. As discussed above, this would add an opportunity cost of 12 cents per traveler departure and $81,000 annually in costs for CBP per daily-scheduled flight. More importantly, since this would add a step to the boarding process rather than simplify the process, travelers would forgo the time savings estimated above and valued at $310 million per year. Further, this alternative approach would eliminate the advantage of giving carriers and airports access to the facial recognition capabilities, which allows them to use it for other purposes. B. Regulatory Flexibility Act The Regulatory Flexibility Act (5 U.S.C. 601 et. seq.), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996, requires an agency to prepare and make available to the public a regulatory flexibility analysis that describes the effect of a proposed rule on small entities (i.e., small businesses, small organizations, and small governmental jurisdictions) when the agency is required to publish a VerDate Sep<11>2014 22:14 Nov 18, 2020 Jkt 253001 general notice of proposed rulemaking for a rule. The Regulatory Flexibility Act requires agencies to consider the impacts of their rules on small entities. This proposed rule would only directly regulate travelers. Travelers are individuals and are not considered to be small entities by the RFA. Carriers are indirectly affected by the rule as the rule does not place any requirements on the carriers, nor does it grant them any new rights. Any participation by carriers is strictly voluntary and CBP expects that carriers will only participate if they believe the benefits of participation outweigh the costs. CBP therefore certifies that this rule will not result in a significant economic impact on a substantial number of small entities. C. Paperwork Reduction Act In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3507), an agency may not conduct, and a person is not required to respond to, a collection of information unless the collection of information displays a valid control number assigned by OMB. The collections of information related to this NPRM, including biometric exit, are approved by OMB under collection 1651–0138. D. Privacy CBP will ensure that all legal requirements (e.g., the Privacy Act of 1974, Section 208 of the E-Government Act of 2002, and Section 222 of the Homeland Security Act of 2002, as amended) and applicable policies are adhered to during the implementation of the biometric entry-exit system. CBP retains biographic records for 15 years for U.S. citizens and lawful permanent residents and 75 years for non-immigrant aliens, consistent with the DHS/CBP–007 Border Crossing Information (BCI) System of Records Notice (SORN).108 Records associated with a law enforcement action are retained for 75 years in accordance with the DHS/CBP–011 TECS SORN.109 CBP retains biographic entry and exit records in the ADIS for lawful permanent residents and non-immigrant aliens, consistent with the SORN.110 Since 2004, CBP has collected biometric information in the form of fingerprints and a facial photograph on entry for in-scope travelers (pursuant to 108 Available at https://www.dhs.gov/systemrecords-notices-sorns. 109 Id. 110 Associated ADIS SORNS are listed at https:// www.dhs.gov/publication/arrival-and-departureinformation-system and available at https:// www.dhs.gov/system-records-notices-sorns. Last Accessed October 26, 2020. PO 00000 Frm 00031 Fmt 4701 Sfmt 4702 74191 8 CFR 235.1); CBP transmits this information to the DHS OBIM’s IDENT, where it is stored. Under CBP’s facial recognition based entry-exit program, CBP’s biographic data retention policies remain the same. CBP temporarily retains facial images of non-immigrant aliens and lawful permanent residents for no more than 14 days within ATS–UPAX for confirmation of travelers’ identities, evaluation of the technology, assurance of accuracy of the algorithms, and system audits. However, if the TVS matching service determines that a particular traveler is a U.S. citizen, CBP holds the photo in secure CBP systems for no more than 12 hours after identity verification, in case of an extended system outage, and then deletes it. Photos of all travelers are purged from the TVS cloud matching service within a number of hours, depending on the mode of travel. Photos of in-scope travelers are retained in IDENT for up to 75 years, consistent with existing CBP records that are housed in IDENT in accordance with the BCI SORN. As discussed in Section III, CBP will begin implementation of the biometric entry-exit system through the TVS. CBP has issued a number of PIAs for the TVS, and earlier traveler verification tests, which outline how CBP will ensure compliance with the DHS Fair Information Practice Principles (FIPPs) as part of the biometric entry-exit system.111 In November 2018, CBP published a revised comprehensive TVS PIA, which, along with the previous versions, examines the privacy impact and mitigation strategies of TVS as it relates to the Privacy Act and the FIPPs.112 The FIPPs address how information being collected is maintained, used and protected, particularly to issues such as security, integrity, sharing of data, use limitation and transparency. The comprehensive TVS PIA provides background information on early test deployments. Additionally, it explains how CBP’s use of facial recognition technology complies with privacy requirements at both entry and exit operations in all modes of travel where the technology is currently deployed. 111 See generally DHS/CBP/PIA–056, Privacy Impact Assessment for the Traveler Verification Service Related PIAs, https://www.dhs.gov/ publication/departure-information-systems-test, issued Nov. 14, 2018, available at https:// www.dhs.gov/sites/default/files/publications/ privacy-pia-cbp030-tvs-november2018_2.pdf. 112 See DHS/CBP/PIA–056, Privacy Impact Assessment for the Traveler Verification Service, issued Nov. 14, 2018, available at https:// www.dhs.gov/sites/default/files/publications/ privacy-pia-cbp030-tvs-november2018_2.pdf. E:\FR\FM\19NOP3.SGM 19NOP3 74192 Federal Register / Vol. 85, No. 224 / Thursday, November 19, 2020 / Proposed Rules As discussed in Section III.E, CBP is conducting a number of biometric exit pilot programs at the land border. CBP will issue PIAs for these pilot programs, which will be made publicly available at: www.dhs.gov/privacy. E. National Environmental Policy Act DHS Directive (Dir.) 023–01 Rev. 01[1] establishes the procedures that DHS and its components use to comply with the National Environmental Policy Act (NEPA) and the Council on Environmental Quality (CEQ) regulations for implementing NEPA, 40 CFR parts 1500–1508. The CEQ regulations allow Federal agencies to establish, with CEQ review and concurrence, categories of actions (‘‘categorical exclusions’’) which experience has shown do not individually or cumulatively have a significant effect on the human environment and, therefore, do not require an Environmental Assessment (EA) or Environmental Impact Statement (EIS). 40 CFR 1507.3(b)(1)(iii), 1508.4. DHS Instruction 023–01–001 Rev. 01 establishes such Categorical Exclusions that DHS has found to have no such effect. Inst. 023–01–001 Rev. 01 Appendix A Table 1. For an action to be categorically excluded, DHS Inst. 023– 01–001 Rev. 01 requires the action to satisfy each of the following three conditions: (1) The entire action clearly fits within one or more of the Categorical Exclusions; (2) the action is not a piece of a larger action; and (3) no extraordinary circumstances exist that create the potential for a significant environmental effect. Inst. 023–01–001 Rev. 01 section V.B (1)–(3). DHS analyzed this action and has concluded that the proposed changes to 8 CFR parts 215 and 235 concerning the collection of biometric data from aliens upon entry and departure falls within DHS’s categorical exclusion A.3, which is set forth in DHS Inst. 023–01–001 Rev. 01, Appendix A, Table 1. Categorical exclusion A.3 covers, among other things, the promulgation of rules that interpret or amend an existing regulation without changing its environmental impacts. Although the changes to 8 CFR parts 215 and 235 will mean that DHS/CBP will be collecting more biometric data, it will not fundamentally alter the manner in which DHS/CBP processes travelers within existing facilities. F. Signature The Acting Secretary of Homeland Security, Chad F. Wolf, having reviewed and approved this document, has delegated the authority to electronically VerDate Sep<11>2014 22:14 Nov 18, 2020 Jkt 253001 sign this document to Chad R. Mizelle, who is the Senior Official Performing the Duties of the General Counsel for DHS, for purposes of publication in the Federal Register. List of Subjects 8 CFR Part 215 Administrative practice and procedure, Aliens, Travel restrictions. 8 CFR Part 235 Administrative practice and procedure, Aliens, Immigration, Reporting and recordkeeping requirements. Proposed Amendments to the Regulations For the reasons discussed in the preamble, DHS proposes to amend 8 CFR chapter I as set forth below: PART 215—CONTROLS OF ALIENS DEPARTING FROM THE UNITED STATES; ELECTRONIC VISA UPDATE SYSTEM 1. The authority section for part 215 is revised to read as follows: ■ Authority: 6 U.S.C. 202(4), 236; 8 U.S.C. 1101, 1103, 1104, 1184, 1185 (pursuant to Executive Order 13323, 69 FR 241, 3 CFR, 2003 Comp., p. 278), 1357, 1365a, 1365a note, 1365b, 1379, 1731–32; and 8 CFR part 2. 2. Amend § 215.8 as follows: a. Revise the section heading; b. Add a heading for paragraph (a); c. Redesignate paragraphs (a)(1) and (2) as paragraphs (a)(2) and (3); ■ d. Add new paragraph (a)(1); ■ e. Revise newly redesignated paragraph (a)(2) and paragraph (a)(3) introductory text; ■ f. In newly redesignated paragraph (a)(3)(ii), remove ‘‘(a)(1)’’ and add in its place ‘‘(a)(2) of this section’’; ■ g. In paragraph (b), add a heading and revise the first sentence; and ■ h. In paragraph (c), add a heading. The revisions and additions read as follows: ■ ■ ■ ■ § 215.8 Requirements for biometrics from aliens on departure from the United States. (a) Photographs and other biometrics—(1) Photographs. DHS may require an alien to be photographed when departing the United States to determine his or her identity or for other lawful purposes. (2) Other biometrics. DHS may require any alien, other than aliens exempted under paragraph (a)(3) of this section or Canadian citizens under section 101(a)(15)(B) of the Act who were not otherwise required to present a visa or have been issued Form I–94 (see § 1.4 of PO 00000 Frm 00032 Fmt 4701 Sfmt 4702 this chapter) or Form I–95 upon arrival at the United States, to provide other biometrics, documentation of immigration status in the United States, as well as such other evidence as may be requested to determine the alien’s identity and whether the alien has properly maintained immigration status while in the United States, when departing the United States. (3) Exemptions. The requirements of paragraphs (a)(2) of this section shall not apply to: * * * * * (b) Failure of a non-exempt alien to comply with departure requirements. An alien who is required to provide biometrics when departing the United States pursuant to paragraph (a)(1) or (2) of this section and who fails to comply with the departure requirements may be found in violation of the terms of his or her admission, parole, or other immigration status. * * * (c) Determination of overstay status. * * * PART 235—INSPECTIONS OF PERSONS APPLYING FOR ADMISSION 3. The authority citation for part 235 is revised to read as follows: ■ Authority: 6 U.S.C. 218 and note; 8 U.S.C. 1101 and note, 1103, 1158, 1182, 1183, 1185 (pursuant to E.O. 13323, 69 FR 241, 3 CFR, 2003 Comp., p.278), 1185 note, 1201, 1224, 1225, 1226, 1228, 1357, 1365a, 1365a note, 1365b, 1379, 1731–32; 48 U.S.C. 1806 and note. 4. Amend § 235.1 as follows: a. In paragraph (f)(1) introductory text, add a heading; ■ b. In paragraph (f)(1)(i), add a heading; ■ c. Redesignate paragraphs (f)(1)(ii), (iii), and (iv) as paragraphs (f)(1)(iii), (v), and (vi), respectively; ■ d. Add new paragraph (f)(1)(ii); ■ e. Revise newly redesignated paragraph (f)(1)(iii); ■ f. Add new paragraph (f)(1)(iv); ■ g. Revise newly redesignated paragraph (f)(1)(v) and paragraph (f)(1)(vi) introductory text; and ■ h. In newly redesignated paragraph (f)(1)(vi)(B), remove ‘‘(d)(1)(ii)’’ and add in its place ‘‘(f)(1)(iii) of this section’’. The revisions and additions read as follows: ■ ■ § 235.1 Scope of examination. * * * * * (f) * * * (1) Requirements for admission. * * * (i) Permanent residents. * * * (ii) Photographs. DHS may require an alien seeking admission to be photographed to determine his or her identity or for other lawful purposes. E:\FR\FM\19NOP3.SGM 19NOP3 Federal Register / Vol. 85, No. 224 / Thursday, November 19, 2020 / Proposed Rules (iii) Other biometrics. DHS may require any alien, other than aliens exempted under paragraph (f)(1)(vi) of this section or Canadian citizens under section 101(a)(15)(B) of the Act who are not otherwise required to present a visa or be issued Form I–94 (see § 1.4 of this chapter) or Form I–95 for admission or parole into the United States, to provide other biometrics, documentation of immigration status in the United States, as well as such other evidence as may be requested to determine the alien’s identity and admissibility and/or whether the alien has properly VerDate Sep<11>2014 22:14 Nov 18, 2020 Jkt 253001 maintained immigration status while in the United States. (iv) Failure to comply with biometric requirements. The failure of an alien at the time of inspection to comply with paragraph (f)(1)(ii) or (iii) of this section may result in a determination that the alien is inadmissible under section 212(a) of the Immigration and Nationality Act or any other law. (v) Biometric requirements upon departure. Aliens who are required under paragraph (f)(1)(ii) or (iii) of this section to provide biometrics at inspection may also be subject to the PO 00000 Frm 00033 Fmt 4701 Sfmt 9990 74193 departure requirements for biometrics contained in § 215.8 of this chapter, unless otherwise exempted. (vi) Exemptions. The requirements of paragraph (f)(1)(iii) of this section shall not apply to: * * * * * Chad R. Mizelle, Senior Official Performing the Duties of the General Counsel, U.S. Department of Homeland Security. [FR Doc. 2020–24707 Filed 11–18–20; 8:45 am] BILLING CODE 9111–14–P E:\FR\FM\19NOP3.SGM 19NOP3

Agencies

[Federal Register Volume 85, Number 224 (Thursday, November 19, 2020)]
[Proposed Rules]
[Pages 74162-74193]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-24707]



[[Page 74161]]

Vol. 85

Thursday,

No. 224

November 19, 2020

Part VII





 Department of Homeland Security





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8 CFR Parts 215 and 235





Collection of Biometric Data From Aliens Upon Entry to and Departure 
From the United States; Proposed Rule

Federal Register / Vol. 85, No. 224 / Thursday, November 19, 2020 / 
Proposed Rules

[[Page 74162]]


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DEPARTMENT OF HOMELAND SECURITY

8 CFR Parts 215 and 235

[Docket No. USCBP-2020-0062]
RIN 1651-AB12


Collection of Biometric Data From Aliens Upon Entry to and 
Departure From the United States

AGENCY: U.S. Customs and Border Protection, Department of Homeland 
Security.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Department of Homeland Security (DHS) is required by 
statute to develop and implement an integrated, automated entry and 
exit data system to match records, including biographic data and 
biometrics, of aliens entering and departing the United States. 
Although the current regulations provide that DHS may require certain 
aliens to provide biometrics when entering and departing the United 
States, they only authorize DHS to require certain aliens to provide 
biometrics upon departure under pilot programs at land ports and at up 
to 15 airports and seaports. To advance the legal framework for DHS to 
begin a comprehensive biometric entry-exit system, DHS is proposing to 
amend the regulations to remove the references to pilot programs and 
the port limitation to permit collection of biometrics from aliens 
departing from airports, land ports, seaports, or any other authorized 
point of departure. In addition, to enable U.S. Customs and Border 
Protection (CBP) to make the process for verifying the identity of 
aliens more efficient, accurate, and secure by using facial recognition 
technology, DHS is proposing to amend the regulations to provide that 
all aliens may be required to be photographed upon entry and/or 
departure. U.S. citizens may voluntarily opt out of participating in 
CBP's biometric verification program. This proposed rule also makes 
other minor conforming and editorial changes to the regulations.

DATES: Written comments must be received on or before December 21, 
2020.

ADDRESSES: Please submit comments, identified by docket number, by the 
following method:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments via docket number 
USCBP-2020-0062.
    Due to COVID-19 related restrictions, CBP has temporarily suspended 
its ability to receive public comments by mail.
    Instructions: All submissions received must include the agency name 
and docket number for this rulemaking. All comments received will be 
posted without change to http://www.regulations.gov, including any 
personal information provided. For detailed instructions on submitting 
comments, see the ``Public Participation'' heading of the SUPPLEMENTARY 
INFORMATION section of this document.
    Docket: For access to the docket to read background documents or 
comments received, go to http://www.regulations.gov. Due to COVID-19 
related restrictions, CBP has temporarily suspended its on-site public 
inspection of submitted comments.

FOR FURTHER INFORMATION CONTACT: Michael Hardin, Director, Entry/Exit 
Policy and Planning, Office of Field Operations, U.S. Customs and 
Border Protection, by phone at (202) 325-1053 or via email at 
[email protected].

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Public Participation
II. Executive Summary
III. Background
    A. Statutory and Executive Authority
    B. Current Entry-Exit Process
    1. APIS Data Collection
    2. Current Entry Process
    3. Current Exit Process
    C. National Security and Immigration Benefits of a Biometric 
Entry-Exit Program
    D. Biometric Entry-Exit Program History
    1. Implementation of US-VISIT
    2. Exit Pilot Programs and Transfer of Entry and Exit Operations 
to CBP
    E. Recent Developments in the Biometric Entry-Exit System
    1. Biometric Exit Mobile Experiment (BE-Mobile)
    2. 1 to 1 Facial Comparison Project
    3. Southwest Border Pedestrian Exit Field Test
    4. Departure Information Systems Test
    5. Land Border Biometric Tests
    6. Simplified Arrival
     7. Public-Private Partnerships
    F. Proposed Facial Recognition-Based Entry-Exit Process
    1. Benefits of a Facial Recognition-Based Process
    2. Facial Recognition Technology Gallery Building
    3. General Collection Process
    4. Facial Recognition Based Entry Process
    5. Facial Recognition Based Exit Process
    6. Alternative Procedures and Public Notices
    7. ``No Match'' Procedures
    8. U.S. Nationals, Dual Nationals and Lawful Permanent Residents
    9. Business Requirements for Public-Private Partnerships
IV. Proposed Regulatory Changes
    A. General Biometric Exit Requirement for Aliens
    B. Collection of Photographs From Aliens Upon Entry and 
Departure
    C. Collection of Biometrics When Departing the United States and 
Other Minor Conforming and Editorial Changes
V. Withdrawal of 2008 Air Exit Notice of Proposed Rulemaking
VI. Statutory and Regulatory Requirements
    A. Executive Orders 12866 and 13563
    1. Need and Purpose of the Rule
    2. Background, Baseline and Affected Population
    3. Costs
    4. Cost Savings
    5. Benefits
    6. Net Benefits
    7. Alternative Analysis
    B. Regulatory Flexibility Act
    C. Paperwork Reduction Act
    D. Privacy
    E. National Environmental Policy Act
    F. Signature

Table of Abbreviations and Acronyms

    APC--Automated Passport Control
    ADIS--Arrival and Departure Information System
    APIS--Advance Passenger Information System
    CBP--U.S. Customs and Border Protection
    DHS--Department of Homeland Security
    DHS TRIP--DHS Traveler Redress Inquiry Program
    DOJ--Department of Justice
    DOS--Department of State
    DMIA--Immigration and Naturalization Service Data Management 
Improvement Act of 2000
    ICE--U.S. Immigration and Customs Enforcement
    INA--Immigration and Nationality Act
    IRTPA--Intelligence Reform and Terrorism Prevention Act of 2004
    MPC--Mobile Passport Control
    MRZ--Machine-Readable Zone
    NPRM--Notice of Proposed Rulemaking
    OBIM--Office of Biometric Identity Management
    OTTI--Department of Commerce's Office of Travel and Tourism 
Industries
    PIA--Privacy Impact Assessment
    TSA--Transportation Security Administration
TVS--Traveler Verification Service
USCIS--U.S. Citizenship and Immigration Services
US-VISIT--United States Visitor and Immigrant Status Indicator 
Technology
VWP--Visa Waiver Program

I. Public Participation

    Interested persons are invited to participate in this rulemaking by 
submitting written data, views, or arguments on all aspects of the 
rule. Comments that will provide the most assistance will reference a 
specific portion of the rule, explain the reason for any recommended 
change, and include data, information, or authority that supports such 
recommended change. All submissions received must

[[Page 74163]]

include the agency name and docket number for this rulemaking. All 
comments received will be posted without change to http://www.regulations.gov, including any personal information provided.

II. Executive Summary

    As discussed in Section III (Background), the Department of 
Homeland Security (DHS) is mandated by statute to develop and implement 
an integrated, automated entry and exit data system to match records, 
including biographic data and biometrics,\1\ of aliens entering and 
departing the United States.\2\ In addition, Executive Order 13780, 
Protecting the Nation from Foreign Terrorist Entry into the United 
States, published in the Federal Register at 82 FR 13209, states that 
DHS is to expedite the completion and implementation of a biometric 
entry-exit tracking system. Although DHS, through U.S. Customs and 
Border Protection (CBP), has been collecting biometric data from 
certain aliens arriving in the United States since 2004,\3\ currently 
there is no comprehensive system in place to collect biometrics from 
aliens departing the country.
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    \1\ Biographic data includes information specific to an 
individual traveler such as name, date of birth, and travel document 
number, which are data elements stored in that traveler's passport, 
visa, or lawful permanent resident card. A biometric refers to a 
form of identification based on anatomical, physiological, and 
behavioral characteristics or other physical attributes unique to a 
person that can be collected, stored, and used to verify the 
identity of a person, e.g., fingerprints, photographs, iris, DNA, 
and voice print.
    \2\ Numerous federal statutes require DHS to create an 
integrated, automated biometric entry and exit system that records 
the arrival and departure of aliens, compares the biometric data of 
aliens to verify their identity, and authenticates travel documents 
presented by such aliens through the comparison of biometrics. These 
include: Section 2(a) of the Immigration and Naturalization Service 
Data Management Improvement Act of 2000 (DMIA), Public Law 106-215, 
114 Stat. 337; Section 110 of the Illegal Immigration Reform and 
Immigrant Responsibility Act of 1996, Public Law 104-828, 110 Stat. 
3009-546; Section 205 of the Visa Waiver Permanent Program Act of 
2000, Public Law 106-396, 114 Stat. 1637, 1641; Section 414 of the 
Uniting and Strengthening America by Providing Appropriate Tools 
Required to Intercept and Obstruct Terrorism Act of 2001 (USA 
PATRIOT Act), Public Law 107-56, 115 Stat. 272, 353; Section 302 of 
the Enhanced Border Security and Visa Entry Reform Act of 2002 
(Border Security Act), Public Law 107-173, 116 Stat. 543, 552; 
Section 7208 of the Intelligence Reform and Terrorism Prevention Act 
of 2004 (IRTPA), Public Law 108-458, 118 Stat. 3638, 3817; Section 
711 of the Implementing Recommendations of the 9/11 Commission Act 
of 2007, Public Law 110-53, 121 Stat. 266, 338; and Section 802 of 
the Trade Facilitation and Trade Enforcement Act of 2015, Public Law 
114-125, 130 Stat. 122, 199 (6 U.S.C. 211(c)(10)).
    \3\ See Section III.B (Current Entry-Exit Process) for further 
discussion.
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    Implementing an integrated biometric entry-exit system that 
compares biometric data of aliens collected upon arrival with biometric 
data collected upon departure is essential for addressing the national 
security concerns arising from the threat of terrorism, the fraudulent 
use of legitimate travel documentation, aliens who overstay their 
authorized period of admission (overstays) or are present in the United 
States without having been admitted or paroled, and incorrect or 
incomplete biographic data for travelers.
    As recognized by the National Commission on Terrorist Attacks Upon 
the United States (also known as the 9/11 Commission), combatting 
terrorism requires a screening system that examines individuals at 
multiple points within the travel continuum.\4\ An integrated biometric 
entry-exit system provides an accurate way to verify an individual's 
identity, and, consequently, can improve security and effectively 
combat attempts by terrorists who use false travel documents to 
circumvent border checkpoints. It can also be used to biometrically 
verify that a person who presents a travel document is the true bearer 
of that document, which will help prevent visa fraud and the fraudulent 
use of legitimate travel documentation.
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    \4\ The 9/11 Commission Report at 384-386, available at http://govinfo.library.unt.edu/911/report/911Report.pdf. Accessed October 
23, 2020. See also Section III.C.
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    Such a system would also allow DHS to confirm more concretely the 
identity of aliens seeking entry or admission to the United States and 
to verify their departure from the United States. By having more 
accurate border crossing records of aliens, DHS can more effectively 
identify overstays and aliens who are, or were, present in the United 
States without having been admitted or paroled and prevent their 
unlawful reentry into the United States. It will also make it more 
difficult for imposters to utilize other travelers' credentials. In 
addition, performing biometric identity verification can help DHS 
reconcile any errors or incomplete data in a traveler's biographic 
data.\5\ Ultimately, this provides DHS with more reliable information 
to verify identity and to strengthen its ability to identify criminals 
and known or suspected terrorists.
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    \5\ See Section III.C. for further explanation.
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    DHS has faced a number of logistical and operational challenges in 
developing and deploying a biometric exit capability. This is, in part, 
because U.S. airports generally do not have designated and secure exit 
areas for conducting outbound inspections, recording travelers' 
departures, or comparing biometric information against arrival data. 
U.S. land ports of entry present even more infrastructure and 
operational challenges due to geographic limitations (many border 
crossings involve crossing a bridge or tunnel), and a myriad of 
transportation alternatives for crossing a land port of entry (e.g., 
car, bus, rail, foot).
    CBP has been testing various options to collect biometrics at entry 
and departure. These tests are described in detail in Section III.E of 
this document. The results of these tests and the recent advancement of 
new technologies, including facial recognition technology, have 
provided CBP with a model to implement a comprehensive biometric entry-
exit solution. CBP has determined that facial recognition technology is 
currently the best available method for biometric verification, as it 
is accurate, unobtrusive, and efficient. This technology uses existing 
advance passenger information along with photographs which have already 
been provided by travelers to the government for the purpose of 
facilitating international travel, to create ``galleries'' of facial 
image templates to correspond with who is expected to be arriving or 
departing the United States on a particular flight, voyage, etc. These 
photographs may be derived from passport applications, visa 
applications, or interactions with CBP at a prior border inspection. 
Once the gallery is created based on the advance information, the 
facial recognition technology compares a template of a live photograph 
of the traveler to the gallery of facial image templates. Live 
photographs are taken where there is clear expectation that a person 
will need to provide documentary evidence of their identity. If there 
is a facial image match, the traveler's identity has been verified.
    In the initial stage of implementation, CBP plans to expand its 
facial recognition system to commercial air ports of entry. CBP plans 
to eventually establish a biometric entry-exit system at all air, sea, 
and land ports of entry.
    CBP estimates that a biometric entry-exit system can be fully 
implemented at all commercial air ports of entry within the next three 
to five years. For land and sea ports of entry and private aircraft, 
CBP plans to continue to test and refine biometric exit strategies with 
the ultimate goal of implementing a comprehensive biometric entry-exit 
system nationwide.\6\ The proposed

[[Page 74164]]

regulatory changes are necessary to enable CBP to continue its testing 
and refinements, and implement permanent programs efficiently once the 
best solution is identified. As explained below, under the current 
regulations, CBP can only conduct pilot programs at a limited number of 
ports of entry at air and sea, and may only collect biometrics from a 
limited population. If this proposed rule is adopted as a final rule, 
CBP would continue to expand testing as necessary.
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    \6\ Private aircraft are non-commercial flights, sometimes 
referred to as general aviation. See 19 CFR 122.1(h).
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    Because CBP is still in the testing phase to determine the best way 
to implement biometric entry-exit for land and sea ports of entry and 
private aircraft, CBP has not included, in this proposed rule, an 
analysis of the costs and benefits of implementing a facial recognition 
based biometric entry-exit program for land and sea ports of entry and 
private aircraft. CBP welcomes comments from the public regarding the 
potential impact of this proposed rule in these environments. 
Additionally, before CBP moves forward with a large scale 
implementation at land or sea ports of entry or for private aircraft, 
the Commissioner of CBP will publish a notice in the Federal Register 
that notifies the public, specifies the details of these plans, and 
requests public comments.
    If CBP determines that the implementation of the specified facial 
recognition entry-exit program in these environments results in 
significant delays at ports of entry or exit, CBP will temporarily 
discontinue these efforts until the average processing time has 
improved to be under 125 percent of the baseline (manual processing 
without biometrics).
    Although the current regulations authorize DHS to require certain 
aliens to provide biometrics on entry and departure, those regulations 
are too limited in scope to advance the legal framework for 
establishing a comprehensive biometric entry-exit system. The 
regulations authorize DHS to require biometrics from certain aliens 
seeking admission to the United States. See section 235.1(f) of title 8 
of the Code of Federal Regulations (CFR). They also authorize DHS to 
require biometrics from certain aliens upon departure from the United 
States under pilot programs at land ports and up to 15 air and 
seaports. See 8 CFR 215.8(a). This proposed rule advances a legal 
framework for DHS collection and use of biometrics from aliens and for 
CBP's comprehensive biometric entry-exit system by removing the 
reference to pilot programs and the port limit.
    In addition, this proposed rule provides that all aliens may be 
required to be photographed upon entry and/or departure. The use of 
facial recognition technology upon entry and departure will make the 
process for verifying an alien's identity more efficient and accurate. 
It will enable CBP to match the traveler's photograph with their vetted 
biographic information. The ability to biometrically verify the 
identity and confirm the departure of aliens will improve security and 
help DHS detect overstays and aliens who are or were present in the 
United States without having been admitted or paroled, and prevent 
their illegal reentry. DHS acknowledges that most overstays are of a 
rather limited duration and that many overstays are accidental in 
nature. Regardless of the length of time, however, overstaying past the 
authorized period of admission is unlawful and carries consequences for 
future visits to the United States. See Section 212 of the Immigration 
and Nationality Act of 1952, as amended, 8 U.S.C. 1182 (INA 212). 
Having accurate entry and exit records is a fundamental piece of the 
U.S. immigration system and detecting overstays supports said system.
    Furthermore, DHS data supports the conclusion that some status 
violators and illegal aliens also have links to terrorism and criminal 
activity. Ensuring the traveler's photograph matches with their vetted 
biographic and biometric information, helps CBP prevent visa fraud and 
the use of fraudulent travel documents, or the use of legitimate travel 
documents by imposters, and identify criminals and known or suspected 
terrorists.
    Under this proposed rule, CBP will comply with all legal 
requirements (e.g., the Privacy Act of 1974, Section 208 of the E-
Government Act of 2002, and Section 222 of the Homeland Security Act of 
2002, as amended) and Departmental and government-wide policies that 
govern the collection, use, maintenance, and disposition of personally 
identifiable information, including biometrics. To ensure data 
minimization of U.S. citizen photographs, once CBP verifies that a 
traveler is a U.S. citizen, CBP will not retain in its database the 
photo of that U.S. citizen which is collected as part of CBP's 
biometric verification program. Rather, photos of U.S. citizens 
collected as a result of their participation in this program will be 
discarded within 12 hours of verification of the individual's identity 
and citizenship.

III. Background

A. Statutory and Executive Authority

    Numerous federal statutes require DHS to create an integrated, 
automated biometric entry and exit system that records the arrival and 
departure of aliens, compares the biometric data of aliens to verify 
their identity, and authenticates travel documents presented by such 
aliens through the comparison of biometrics. The following discussion 
covers the most relevant statutory and executive authority for the 
issuance of this rule.
    The creation of an automated entry-exit system that integrates 
electronic alien arrival and departure information was authorized in 
the Immigration and Naturalization Service Data Management Improvement 
Act of 2000 (DMIA), Public Law 106-215, 114 Stat. 337, 339 (8 U.S.C. 
1365a). The DMIA provides that the entry-exit system should integrate 
all authorized or required alien arrival and departure data that is 
maintained in electronic format. The DMIA also provides for DHS to use 
the entry-exit system to match the available arrival and departure data 
on aliens. DMIA section 2 (8 U.S.C. 1365a(e)).
    In December 2004, Congress enacted the Intelligence Reform and 
Terrorism Prevention Act of 2004 (IRTPA), Public Law 108-458, 118 Stat. 
3638, 3817 (8 U.S.C. 1365b). Section 7208 of IRTPA provides for DHS to 
collect biometric exit data for all categories of aliens who are 
required to provide biometric entry data. IRTPA requires that the entry 
and exit data system contain, as an interoperable component, the fully 
integrated databases and data systems maintained by DHS, the Department 
of State (DOS), and the Department of Justice (DOJ) that process or 
contain information on aliens. Section 7208 of IRTPA also requires that 
the entry and exit data system have current and immediate access to 
information in the databases of Federal law enforcement agencies and 
the intelligence community, which is relevant to the determination of 
whether a visa should be issued and the admissibility or deportability 
of an alien. Section 7208 of IRTPA provides a complete list of entry-
exit system goals, which include, among other things, screening 
travelers efficiently. Finally, section 7208 of IRTPA requires the 
Secretary of Homeland Security to develop a plan to accelerate full 
implementation of an automated biometric entry and exit data system.
    In the 2016 Consolidated Appropriations Act, Congress specified 
that DHS must submit a plan to

[[Page 74165]]

implement a biometric entry and exit capability and established a 
funding mechanism available to the Secretary of Homeland Security, 
beginning in fiscal year 2017, to develop and implement a biometric 
entry and exit system. See Consolidated Appropriations Act, 2016, 
Public Law 114-113, 129 Stat. 2242, 2493.
    The following statutes also require DHS to take action to create an 
integrated entry-exit system:
     Section 110 of the Illegal Immigration Reform and 
Immigrant Responsibility Act of 1996, Public Law 104-828, 110 Stat. 
3009-546;
     Section 205 of the Visa Waiver Permanent Program Act of 
2000, Public Law 106-396, 114 Stat. 1637, 1641;
     Section 414 of the Uniting and Strengthening America by 
Providing Appropriate Tools Required to Intercept and Obstruct 
Terrorism Act of 2001 (USA PATRIOT Act), Public Law 107-56, 115 Stat. 
272, 353;
     Section 302 of the Enhanced Border Security and Visa Entry 
Reform Act of 2002 (Border Security Act), Public Law 107-173, 116 Stat. 
543, 552;
     Section 711 of the Implementing Recommendations of the 9/
11 Commission Act of 2007, Public Law 110-53, 121 Stat. 266, 338;
     Section 802 of the Trade Facilitation and Trade 
Enforcement Act of 2015, Public Law 114-125, 130 Stat. 122, 199 (6 
U.S.C. 211(c)(10)).
    On March 6, 2017, the President signed Executive Order 13780, 
Protecting the Nation from Foreign Terrorist Entry into the United 
States (82 FR 13209). Section 8 of this Order requires the Secretary of 
Homeland Security to expedite the completion and implementation of a 
biometric entry-exit tracking system for ``in-scope travelers'' \7\ to 
the United States, as recommended by the National Commission on 
Terrorist Attacks Upon the United States, and periodically report to 
the President on DHS's progress in this regard.
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    \7\ Although the term ``in-scope travelers'' is not defined, DHS 
interprets this to mean those travelers who are required to provide 
biometric information upon entry to the United States.
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    DHS also has broad authority to control alien travel and to inspect 
aliens under various provisions of the INA. Under this authority, DHS 
may require aliens to provide biometrics and other relevant identifying 
information upon entry to, or departure from, the United States. 
Specifically, DHS may control alien entry and departure and inspect 
aliens under sections 215(a) and 235 of the INA (8 U.S.C. 1185, 1225). 
Aliens may be required to provide fingerprints, photographs, or other 
biometrics upon arrival in, or departure from, the United States, and 
select classes of aliens may be required to provide information at any 
time. See, e.g., INA 214, 215(a), 235(a), 262(a), 263(a), 264(c), (8 
U.S.C. 1184, 1185(a), 1225(a), 1302(a), 1303(a), 1304(c)); 8 U.S.C. 
1365b. Pursuant to section 215(a) of the INA (8 U.S.C. 1185(a)), and 
Executive Order No. 13323 of Dec. 30, 2003 (69 FR 241), the Secretary 
of Homeland Security, with the concurrence of the Secretary of State, 
has the authority to require aliens to provide biographic, biometric, 
and other relevant identifying information as they depart the United 
States. Under section 214 of the INA (8 U.S.C. 1184), DHS may issue 
regulations, such as those concerning requirements to provide 
biometrics upon entry or departure, the compliance of which may be a 
condition of admission and maintenance of status of nonimmigrant aliens 
while in the United States.
    Finally, DHS is authorized to take and consider evidence concerning 
the privilege of any person to enter, reenter, pass through, or reside 
in the United States, or concerning any matter which is material or 
relevant to the enforcement of the INA and the administration of DHS. 
See INA 287(b) (8 U.S.C. 1357(b)).

B. Current Entry-Exit Process

    Pursuant to the authorities discussed in the previous section, CBP 
is responsible for implementing an integrated, automated entry-exit 
system that matches the biographic data and biometrics of aliens 
entering and departing the United States. Furthermore, to carry out its 
mission responsibilities to control the border and to regulate the 
arrival and departure of both U.S. citizens and aliens, CBP has the 
authority to confirm the identity of all travelers and verify that they 
are the authorized bearers of their travel documents.
    The entry-exit process as it exists today serves this essential 
border security mission entrusted to CBP, while also serving the need 
to facilitate legitimate cross-border travel. The following sections 
describe the current entry-exit process in more detail and provide 
background on the relevant laws and obligations that pertain to both 
individuals who attempt to enter and exit the United States, as well as 
the commercial air or sea carriers who transport those individuals.
1. APIS Data Collection
    The Aviation and Transportation Security Act of 2001, Public Law 
107-71, 115 Stat. 597, and the Enhanced Border Security and Visa Entry 
Reform Act of 2002, Public Law 107-173, 116 Stat. 543, together 
mandated the collection of certain biographical manifest information on 
all passengers and crew members who arrive in or depart from (and, in 
the case of crew members, overfly) the United States on a commercial 
aircraft or vessel. The carrier is generally required to transmit the 
required manifest information electronically to CBP through the Advance 
Passenger Information System (APIS).\8\ This requirement aligns with 
global standards developed by the World Customs Organization, 
International Air Transport Association (IATA), and the International 
Civil Aviation Organization. According to IATA, over 70 countries now 
require airlines to send advance passenger information before the 
flight's arrival.\9\ In addition, United Nations Security Council 
Resolution 2178, adopted by the United States, called upon Member 
States to require airlines provide advance passenger information 
regarding flights into, out of and through their territories to detect 
the travel of UN-listed terrorists.\10\
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    \8\ See the APIS regulations at 19 CFR 122.49a, 122.49b, 
122.49c, 122.75a, and 122.75b.
    \9\ See https://www.iata.org/whatwedo/passenger/Pages/passenger-data.aspx. Last Accessed October 23, 2020.
    \10\ See https://www.justice.gov/file/344501/download. Last 
Accessed October 23, 2020.
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    APIS information includes, but is not limited to, the following 
information: Full name, date of birth, citizenship, passport/alien 
registration card number, travel document type, passport number, 
expiration date and country of issuance (if passport required), alien 
registration number, country of residence, passenger name record 
locator number, and U.S. destination address (when applicable). The 
carrier also collects and transmits to CBP the traveler's U.S. 
destination address (except for U.S. citizens, lawful permanent 
residents, crew and persons in transit through the United States) and 
country of residence.
    APIS data allows CBP to effectively and efficiently facilitate the 
entry and departure of legitimate travelers into and from the United 
States. Using APIS data, CBP officers can access information on 
individuals with outstanding wants or warrants and information from 
other government agencies regarding high risk persons; confirm the 
accuracy of that information by comparison with information obtained 
from the traveler and from the carriers; and make immediate 
determinations as to a traveler's security risk and admissibility and 
other determinations bearing on CBP's

[[Page 74166]]

inspectional and screening responsibilities.
    During the entry processing of the traveler, a CBP officer will 
verify the traveler's documents. See Section III.B.2. Through this 
process, CBP can verify the accuracy of the APIS information the 
carrier provided to CBP.\11\ CBP does not receive APIS data for 
individuals traveling to the United States by foot (pedestrian 
travelers) or by private vehicle, but it does receive APIS data on a 
voluntary basis from bus and rail carriers crossing the land border.
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    \11\ While APIS data has been shown to be highly accurate, 
information gaps remain. At entry, CBP Officers can, using 
biometrics and CBP system information, adjudicate any records with 
incorrect information. However, due to resource constraints there is 
generally no CBP officer stationed at departure locations to confirm 
that the APIS data submitted matches the traveler. Using biometrics 
upon exit, CBP can close informational gaps caused by inaccurate 
APIS data without additional personnel.
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2. Current Entry Process
    Any traveler who requires a nonimmigrant visa to travel to the 
United States must apply to the DOS under specific visa categories 
depending on the purpose of their travel, including those as visitors 
for business, pleasure, study, and employment-based purposes.\12\ DOS 
also checks every visa applicant's biographic and biometric data (i.e., 
fingerprints and facial images) against U.S. Government databases for 
records indicating potential risk factors, including security, 
criminal, and immigration violations.
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    \12\ Under the Visa Waiver Program (VWP), most citizens or 
nationals of participating countries may travel to the United States 
for tourism or business for stays of 90 days or less without 
obtaining a visa. VWP travelers must have a valid Electronic System 
for Travel Authorization (ESTA) approval prior to travel. Through 
ESTA, CBP conducts enhanced vetting of VWP applicants in advance of 
travel to the United States, to assess whether they are eligible to 
travel under the VWP, or whether they could pose a risk to the 
United States or the public at large. All ESTA applications are 
screened against security and law enforcement databases, and CBP 
automatically refuses authorization to individuals who are found to 
be ineligible to travel to the United States under the VWP. 
Similarly, current and valid ESTAs may be revoked if concerns arise 
through recurrent vetting.
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    Under DHS regulations, upon arrival into the United States, 
travelers are required to present themselves to CBP for inspection. See 
8 CFR 235.1. Under the current inspection process, CBP obtains 
information directly from the traveler via travel documents (e.g., 
passport) presented and/or verbal communications between a CBP officer 
and the traveler. As a part of this process, a CBP officer typically 
takes a physical passport from the traveler and electronically 
``reads'' the passport using its Machine-Readable Zone (MRZ) to pull up 
the traveler's biographic data for inspection. In addition, for aliens 
(except for those exempt from biometric collection under 8 CFR 235.1), 
CBP collects fingerprints from the traveler to biometrically verify 
identity by comparing the travelers fingerprints with those previously 
collected as a part of a visa application, immigration benefits 
application, or prior inspection by CBP. Once the identity of the 
traveler is validated in this manner, the CBP officer conducts an 
interview with the traveler to establish the purpose and intent of 
travel, and to determine an alien's admissibility.
    At some airports or seaports, some of these processes are 
facilitated for certain travelers through use of Automated Passport 
Control kiosks, Mobile Passport Control (mobile apps), or Global Entry 
kiosks. All travelers must still present themselves to a CBP officer to 
complete the inspection process. In the land environment, biometric 
collection may be required when an I-94 is issued. CBP does not 
typically issue an I-94 for Mexican nationals admitted as nonimmigrants 
for a period of 72 hours to visit within 25 miles of the border or for 
Canadian citizens traveling to the United States for business or 
pleasure.\13\
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    \13\ See 8 CFR 235.1(h).
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    If the travel document is reported as lost or stolen, upon swiping 
the document to bring up the biographic information of the traveler, 
CBP systems will alert the CBP officer. In the case of imposters using 
legitimate documents that have not been reported lost or stolen by 
their true owners, biometric identifiers (e.g., fingerprints) enable 
CBP to determine if the traveler is the true bearer of the travel 
document.
    As the regulations currently exempt certain aliens from the 
collection of biometrics, including those under 14 and over 79, as well 
as individuals in certain visa classes, CBP does not use fingerprints 
to confirm the traveler's identity in these cases. For these exempt 
aliens, as well as those without fingerprints on file (i.e., first time 
VWP travelers \14\), CBP must rely on the interview during the primary 
inspection process to determine if the traveler is using a lost or 
stolen travel document.\15\ If the CBP officer has a law enforcement 
concern, then he or she may conduct law enforcement checks (querying 
but not retaining biometrics) on those exempt individuals, but not for 
the purpose of biometrically verifying the traveler's identity.
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    \14\ For travelers traveling under the Visa Waiver Program for 
the first time, CBP will not have fingerprints on file as these 
individuals are not required to submit biometrics prior to travel. 
As such, during the primary inspection process, CBP currently 
collects fingerprints from these travelers. For future travel, CBP 
will use the fingerprints collected to biometrically verify his or 
her identity by comparing the fingerprints with those previously 
collected during the first visit to the United States.
    \15\ See footnote 40 regarding an NPRM published by USCIS 
proposing to remove the age restrictions on fingerprint collection.
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3. Current Exit Process
    APIS requirements also apply to travelers departing the United 
States. CBP electronically records a traveler's departure by air or sea 
using the biographic manifest information provided by the commercial 
air or vessel carrier. Unlike at entry, however, CBP does not routinely 
inspect travelers departing the United States to confirm that the APIS 
departure data is accurate or that the traveler is the true bearer of 
his or her travel document.
    Currently, persons departing the United States via a commercial 
aircraft must present their boarding pass and identification when being 
screened by the Transportation Security Administration (TSA).\16\ 
Before boarding, travelers must also present their travel documents and 
boarding passes to the carrier's representative at the gate, who 
visually reviews the travel documents and validates the boarding pass 
with the carrier's ticketing system.\17\ However, once the traveler has 
been screened by TSA and is in the secure area of the terminal, 
travelers generally do not have their photo identification scrutinized 
again before boarding the aircraft.
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    \16\ TSA incorporates unpredictable security measures, both seen 
and unseen, to accomplish its transportation security mission, see 
https://www.tsa.gov/travel/security-screening. Last Accessed October 
26, 2020.
    \17\ Pursuant to 19 CFR 122.49a, 122.49b, 122.49c, 122.75a, and 
122.75b, the carrier is responsible for comparing the travel 
document presented by the traveler with the travel document 
information it is transmitting to CBP in order to ensure that the 
information is correct, the document appears to be valid for travel 
purposes, and the traveler is the person to whom the travel document 
was issued.
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    CBP uses APIS information along with other law enforcement 
information and technology to determine whether CBP needs to further 
inspect outbound travelers. CBP's outbound operations enable it to 
enforce U.S. laws applicable upon departure from the United States and 
effectively monitor and control the outbound flow of goods and people.
    In the land environment, CBP does not receive APIS data.\18\ 
Persons

[[Page 74167]]

departing the United States at the land border are also not 
consistently subject to CBP inspection, as they are upon arrival. As a 
result, land departures may not be recorded accurately.\19\
---------------------------------------------------------------------------

    \18\ While bus and rail carriers are not required to submit APIS 
data, CBP encourages these carriers to participate in CBP's 
Voluntary APIS Program, See https://www.cbp.gov/travel/travel-industry-personnel/apis2. Accessed October 26, 2020.
    \19\ CBP and the Canada Border Services Agency are exchanging 
biographic data, travel documents, and other border crossing 
information collected from individuals traveling between the 
countries at land border ports of entry. This data exchange allows 
both governments to expand their situational border awareness so 
that the record of a traveler's entry into one country can establish 
a record of exit from the other country. See https://www.dhs.gov/publication/beyond-border-entryexit-program-phase-ii and https://www.dhs.gov/news/2019/07/11/us-and-canada-continue-commitment-securing-our-borders-begin-phase-iii-entryexit. Accessed October 26, 
2020.
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C. National Security and Immigration Benefits of a Biometric Entry-Exit 
Program

    Currently, CBP has a comprehensive automated biographic 
information-based system that vets and checks aliens entering and 
departing the United States. While this information is extremely 
valuable to CBP in completing its mission, no biographic information-
based system, by itself, can definitively verify the identity of 
persons presenting travel and identity documents. As stated by the 9/11 
Commission:

    Linking biometric passports to good data systems and decision 
making is a fundamental goal. No one can hide his or her debt by 
acquiring a credit card with a slightly different name. Yet today, a 
terrorist can defeat the link to electronic records by tossing away 
an old passport and slightly altering the name in the new one.\20\
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    \20\ The 9/11 Commission Report at 389, available at http://govinfo.library.unt.edu/911/report/911Report.pdf. Accessed October 
26, 2020.

    Since the 9/11 Commission Report was released, security features in 
passports have become significantly stronger. Forensic security 
features in passports have improved, and most countries began to issue 
electronic passports (e-Passports) around 2005. E-Passports contain an 
electronic chip embedded in the document that contains the photo of the 
bearer and the information contained on the passport's data page, such 
as the name, date of birth, and country of issuance. The International 
Civil Aviation Organization maintains standards for the issuance of e-
Passports and these standards are adopted by most countries around the 
world.
    The increasingly sophisticated features in modern passports have 
led to the increased use of legitimate documents by imposters posing as 
the owners of the documents. Twenty years ago, it was far more common 
to encounter a passport that had been altered (i.e., changing the name 
or photo on a document issued legitimately) or manufactured 
fraudulently. While these cases still occur, the use of e-Passports, 
combined with sophisticated forensic security features, have made this 
method of passport fraud prohibitively expensive in most cases. Those 
seeking to evade detection by DHS or other border or transportation 
security agencies are turning instead to a relatively cheaper method of 
fraud--using a non-altered travel document legitimately issued to 
another person.
    This type of fraud is mitigated because carriers are required to 
ensure that the person presenting the travel document is the person to 
whom the travel document was issued, pursuant to 19 CFR 122.49a(d), 
122.49b(d), 122.75a(d) and 122.75b(d). However, the best tool to combat 
this fraud is to biometrically verify that a person who presents a 
travel document is the true bearer of that document. CBP's biometric 
tests using facial recognition technology support this conclusion. 
Within three weeks of implementing new facial recognition technology at 
Washington Dulles International Airport, CBP identified two imposters 
attempting to enter the United States by using another person's 
passport.\21\ Since then, CBP has identified five additional imposters, 
for a total of seven imposters identified in the air environment, 
including two with genuine U.S. travel documents (passport or passport 
card), who were using another person's valid travel documents as a 
basis for seeking entry to the United States.\22\ In addition, CBP's 
facial recognition technology has identified at least 138 imposters, 
including 45 travelers with genuine U.S. travel documents (passport or 
passport card) attempting to enter the United States using another 
person's travel documents at the San Luis and Nogales, Arizona land 
border ports.\23\ Several of these imposters identified in the land 
environment had criminal histories including assault, extortion, 
kidnapping, and drug smuggling. CBP anticipates that the number of 
imposters it is able to catch will increase as the program expands. 
While it is difficult to quantify the number of instances in which such 
fraud has occurred but not been identified by CBP because facial 
recognition technology is not broadly used at present, DHS expects that 
the implementation of this rule would greatly enhance DHS's ability to 
identify more of these imposters.
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    \21\ See https://www.cbp.gov/newsroom/local-media-release/second-impostor-three-weeks-caught-cbp-biometric-verification. Last 
accessed October 23, 2020.
    \22\ See https://docs.house.gov/meetings/HM/HM00/20190710/109753/HHRG-116-HM00-Wstate-WagnerJ-20190710.pdf. Last accessed 
October 23, 2020.
    \23\ See id.
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    In addition to the benefits this technology can provide on entry, 
an integrated system, including biometric exit, is also essential for 
maintaining the integrity of the U.S. immigration system. Under current 
immigration laws, entering or staying in the United States without 
official permission from the U.S. government can cause a person to be 
legally barred from reentry to the United States for a number of years 
following departure or removal. Pursuant to INA 222(g), a nonimmigrant 
visa will be void if an alien remains in the United States beyond his 
or her period of authorized stay. For aliens traveling under the Visa 
Waiver Program, to remain eligible for the program, aliens must comply 
with the conditions of admission, including remaining in the U.S. only 
for the authorized period of stay.\24\ Depending on the duration of a 
person's ``unlawful presence'' in the United States, that alien may be 
barred from returning to the United States for three or ten years.\25\ 
The absence of an effective biometric exit process has enabled aliens 
who are present in the United States without having been admitted or 
paroled or who overstayed their authorized period of admission 
(overstays) to evade immigration laws and avoid the time bars 
associated with unlawful presence.
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    \24\ 8 U.S.C. 1187(a)(7) and 8 CFR 217.
    \25\ 8 U.S.C. 1182(a)(9)(B)(i).
---------------------------------------------------------------------------

    Through its limited deployment of biometric exit pilots, CBP has 
been able to process and document hundreds of aliens who were present 
in the United States without having been admitted or paroled.\26\ These 
cases follow a similar fact pattern. Upon the collection of the 
traveler's biometrics, the system is unable to generate a match to any 
photographs of the traveler on record. Further inspection by CBP 
officers confirms that the traveler was not previously inspected by CBP 
or DHS, indicating that they entered the United States illegally. In 
such cases, CBP creates a biometric exit record for this traveler that 
will be available to other DHS component agencies, such as U.S. 
Citizenship and Immigration Services (USCIS) and U.S. Immigration and 
Customs Enforcement (ICE), as well as the Department of State. If the 
traveler

[[Page 74168]]

has no other derogatory information, then CBP allows the traveler to 
depart, but maintains a record of the encounter which is used to inform 
future admissibility-related determinations.
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    \26\ Source: CBP Enterprise Management Information System-
Enterprise Data Warehouse. See Privacy Impact Assessment available 
at https://www.dhs.gov/sites/default/files/publications/privacy-pia-cbp_emis_edw-appendixd-april2019.pdf. Last Accessed October 23, 
2020.
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    As stated in Executive Order 13768, Enhancing Public Safety in the 
Interior of the United States, ``interior enforcement of our Nation's 
immigration laws is critically important to the national security and 
public safety of the United States. Many aliens who illegally enter the 
United States and those who overstay or otherwise violate the terms of 
their visas present a significant threat to national security and 
public safety.'' \27\ DHS data supports the conclusion that certain 
status violators and illegal aliens also have links to terrorism and 
criminal activity.\28\
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    \27\ See 82 FR 8799 (January 30, 2017).
    \28\ See https://www.dhs.gov/news/2017/07/12/written-testimony-plcy-cbp-and-ice-senate-judiciary-subcommittee-border-and. Accessed 
October 26, 2020.
---------------------------------------------------------------------------

    Using biometrics, CBP has apprehended criminal aliens who were 
present in the United States without having been admitted or paroled. 
For instance, during a recent outbound operation, CBP's facial 
recognition generated a ``no-match'' result for a passenger resulting 
in further inspection by a CBP officer which then confirmed that the 
traveler was an alien who was present in the United States without 
admission or parole and was wanted for aggravated sexual abuse of a 
minor. Other examples of aliens identified through DHS's biometric 
verification system include previously removed aliens who committed 
felonies such as armed robbery with a firearm, assault with a deadly 
weapon, and aggravated assault. Since the inception of its biometric 
exit pilots, CBP has encountered hundreds of cases with similar fact 
patterns. Because there is no comprehensive system currently in place 
to collect biometrics at exit, CBP has no way of knowing precisely how 
frequently these types of cases occur.
    Identifying aliens who overstay their period of authorized 
admission is best addressed with a biometric exit program. Each year, 
millions of visitors are admitted to the United States for limited 
times and purposes. According to DHS's Entry/Exit Overstay Report for 
fiscal year 2019,\29\ 676,422 of nearly 55 million aliens admitted for 
business or pleasure through air and sea ports of entry that were 
expected to depart the United States in fiscal year 2019 overstayed 
their authorized period of admission. This report likely understates 
the total number of overstays for fiscal year 2019. This is because, 
due to data reliability concerns, the Overstay Report only included 
data for aliens who lawfully entered the United States under 
nonimmigrant visa categories for temporary visitors for business or 
pleasure. It did not include aliens who entered the United States under 
other visa categories.
---------------------------------------------------------------------------

    \29\ Available at https://www.dhs.gov/sites/default/files/publications/20_0513_fy19-entry-and-exit-overstay-report.pdf. 
Accessed October 26, 2020.
---------------------------------------------------------------------------

    In addition, biometric exit verification can allow CBP to address 
errors that sometimes appear in an alien's biographic data. Although 
CBP is typically able to successfully vet aliens seeking admission into 
and departing from the United States based on biographic data, in some 
cases a biographic check can fail due to errors or incomplete data. 
Conducting biometric verification at departure can help uncover these 
issues in an alien's biographic data and protect the accuracy of 
recorded border crossings.
    During the course of its biometric exit pilots, CBP encountered a 
number of cases where collecting biometrics from departing travelers 
revealed errors or incomplete data in a traveler's biographic record. 
For instance, on one occasion, CBP's biometric query of a departing 
traveler revealed that he was previously convicted for armed robbery 
with a firearm and had been deported from the United States. The 
traveler's biographic data, however, did not reflect this information 
because of a misspelling on the traveler's deportation record. On 
another occasion, CBP's biometric query revealed that a traveler had 
been previously removed from the United States under a false identity. 
Because the traveler had been traveling under the traveler's true 
identity, a review of the traveler's biographic record did not alert 
the CBP officer to this important factual information.
    In each of these cases, the biometric query revealed the missing 
data from the traveler's biographic data. By performing a biometric 
check at departure, CBP can reconcile any errors or incomplete data in 
the traveler's biographic data, increasing the level of accuracy of 
CBP's border crossing records. Ultimately, this provides CBP with more 
reliable information to better identify persons of law enforcement or 
national security concern.
    Finally, a comprehensive and integrated biometric entry-exit system 
serves an important tool in our fight against global terrorism. Since 
the 9/11 attacks, the United States remains vulnerable to the threat of 
global terrorism. The 9/11 Commission recognized that combatting 
terrorism requires a screening system that examines individuals at 
multiple points within the travel continuum:

    For terrorists, travel documents are as important as weapons. 
Terrorists must travel clandestinely to meet, train, plan, case 
targets, and gain access to attack. To them, international targets 
present great danger, because they must surface to pass through 
regulated channels, present themselves to border security officials, 
and attempt to circumvent inspection points . . . each of these 
checkpoints is a screening, a chance to establish that these people 
are who they say they are and are seeking access for their stated 
purpose, to intercept identifiable subjects, and to take effective 
action.
    The job of protection is shared among these many defined 
checkpoints. By taking advantage of them all, we need not depend on 
any one point in the system to do the whole job. The challenge is to 
see the common problem across agencies and functions and develop a 
common framework--an architecture--for an effective screening 
system.'' \30\
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    \30\ The 9/11 Commission Report at 384-386 (emphasis added), 
available at http://govinfo.library.unt.edu/911/report/911Report.pdf. Accessed October 26, 2020.

    The Under Secretary General for the United Nations Office of 
Counter-Terrorism said, ``Terrorists, including foreign terrorist 
fighters use a wide variety of techniques to travel to destinations all 
over the world. With the number of international travelers continuing 
to increase, it is essential that we develop efficient counter-
terrorism measures that facilitate rapid, efficient and secure 
processing at our borders.'' \31\ Manuals prepared by terrorist groups 
such as the Islamic State, also known as ISIS, explicitly understand 
the need to forge identity papers, passports, and visas to circumvent 
border checkpoints and smuggle people across borders. Recognizing 
terrorism as one of the most serious threats to international peace and 
security and the need to take immediate action to address the evolving 
threat environment, the United Nations Security Council adopted a 
resolution on December 21, 2017, calling on member nations to increase 
aviation security and to develop and implement systems to collect 
biometric data to properly identify terrorists.\32\ The resolution was 
co-sponsored by 66 countries, including the United States, and passed 
the Security Council with unanimous support.
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    \31\ See https://www.un.org/counterterrorism/cct/border-security-and-management. Accessed October 26, 2020.
    \32\ S/RES/2396 (2017), available at http://www.un.org/en/ga/search/view_doc.asp?symbol=S/RES/2396(2017). Accessed October 26, 
2020.
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    Although CBP's security mission has mainly been focused on 
identifying

[[Page 74169]]

known or suspected terrorists seeking admission to the United States, 
identifying and intercepting these individuals at departure is critical 
to effectively combatting terrorism here and abroad. Individuals who 
seek to inflict harm on the American homeland are not limited to those 
attempting to enter the United States. Some of these individuals may 
seek to depart the United States in order to inflict harm to U.S. 
interests and allies abroad or engage in the terrorist/jihadist 
movement abroad for training or coordination. For individuals on a 
terrorist watch list, law enforcement and intelligence agencies may 
have a need to track that individual's movements and travel. If that 
individual can depart the country under an alias without detection, 
then that impacts the ability of these law enforcement and intelligence 
agencies to operate effectively. Preventing these individuals from 
leaving the United States, or at minimum, gaining intelligence on their 
whereabouts, is critical to diminishing a terrorist network's ability 
to mobilize.
    The need for identifying and tracking suspected terrorists 
departing the United States is further borne out by current research on 
the movements of such individuals. According to the George Washington 
University's Program on Extremism, out of the 186 individuals who have 
been charged in the United States on offenses related to the Islamic 
State since March 2014, 39% were accused of attempting to travel or 
successfully traveled abroad.\33\
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    \33\ See GW Extremism Tracker, The George Washington University, 
https://extremism.gwu.edu/sites/g/files/zaxdzs2191/f/Jun19%20Tracker.pdf (last accessed October 26, 2020).
---------------------------------------------------------------------------

    CBP, as the agency entrusted with securing the border, must verify 
the identity of those entering and departing with as much accuracy as 
possible, especially individuals linked to terrorism or criminal 
activity. As discussed in the 2018 National Strategy for 
Counterterrorism,\34\ one of the priority actions for the U.S. 
Government is to enhance detection and disruption of terrorist travel. 
By collecting and sharing relevant information on terrorist travel and 
identities, this information can be used for the benefit of the public 
and private section to identify and disrupt the movement of terrorists.
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    \34\ See https://www.dni.gov/index.php/nctc-newsroom/item/1911-white-house-releases-national-strategy-for-counterterrorism. 
Accessed October 26, 2020.
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    CBP's biometric exit program will provide another layer of identity 
verification and another opportunity to stop these individuals from 
departing. Despite the agency's resource constraints at departure, CBP 
has identified many recent national security cases that resulted from 
examining foreign nationals departing the United States on 
international flights. In several of these cases, CBP's outbound 
examination of the individual revealed his or her connections to 
terrorist and militia groups abroad. Using a biometric verification 
system, CBP can update the individual's border crossing record with 
this information, linking it to his or her biometrics, which provides 
greater assurance that the government will be able to identify this 
individual in the event of future encounters.
    Identifying overstays and aliens who are present in the United 
States without admission or parole is essential to maintaining the 
integrity of the U.S. immigration system and to national security as a 
whole. Expanding the biometric entry-exit program to create an 
integrated system will enable CBP to better identify overstays and 
aliens who are present in the United States without admission or 
parole. Furthermore, by providing an accurate way to verify an 
individual's identity, a biometric entry-exit system can effectively 
combat attempts by foreign national terrorists to circumvent border 
checkpoints using false identity documents. Establishing such a system 
is crucial to our efforts to respond to the continuing threat of global 
terrorism.

D. Biometric Entry-Exit Program History

1. Implementation of US-VISIT
    In 2003, DHS established the legacy United States Visitor and 
Immigrant Status Indicator Technology (US-VISIT) program to develop a 
system to collect biographic data and biometrics from aliens at U.S. 
ports of entry.
    On January 5, 2004, DHS implemented the first phase of the legacy 
US-VISIT biometric program by publishing an interim final rule in the 
Federal Register (69 FR 468), which provided that certain aliens 
seeking admission to the United States through nonimmigrant visas must 
provide fingerprints, photographs, or other biometrics upon arrival in, 
or departure from, the United States at air and sea ports of entry. The 
interim final rule amended 8 CFR 235.1 to authorize DHS to require 
certain aliens who arrive at designated U.S. air and sea ports of entry 
to provide biometric data to CBP during the inspection process. DHS 
designated the air and sea ports of entry where the collection of 
biometrics from certain aliens upon entry would occur in a series of 
notices published in the Federal Register.\35\
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    \35\ On January 5, 2004, DHS issued a notice in the Federal 
Register (69 FR 482) designating 15 airports and 14 seaports for the 
collection of biometrics from aliens upon entry. On August 20, 2004, 
DHS published a notice in the Federal Register (69 FR 51695) 
identifying six new air and sea ports of entry for inclusion in the 
legacy US-VISIT program and removing two ports of entry that were 
inadvertently included in the legacy US-VISIT program in the January 
5, 2004 notice.
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    The January 5, 2004 interim final rule also added 8 CFR 215.8 to 
provide that the Secretary, or designee, may establish pilot programs 
to collect biometric information from certain aliens departing the 
United States at up to 15 air or sea ports of entry, designated through 
notice in the Federal Register. Pursuant to Sec.  215.8(a)(1), DHS 
designated the 15 air and sea ports of entry where the collection of 
biometrics under exit pilot programs would occur in a series of notices 
published in the Federal Register.\36\
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    \36\ On January 5, 2004, DHS issued a notice in the Federal 
Register (69 FR 482) identifying one airport and one seaport as 
ports designated for the collection of biometrics from aliens 
departing the United States under exit pilot programs. On August 3, 
2004, DHS published a notice in the Federal Register (69 FR 46556) 
designating 13 additional ports for the collection of biometrics 
from aliens departing the United States under exit pilot programs. 
On August 20, 2004, DHS published a notice in the Federal Register 
(69 FR 51695) replacing two ports of entry inadvertently included in 
the exit pilot programs in the August 3, 2004 notice with two 
airports to maintain the full number of 15 exit pilot programs.
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    On August 31, 2004, DHS implemented the second phase of the legacy 
US-VISIT biometric program by publishing an interim final rule in the 
Federal Register (69 FR 53318) expanding the US-VISIT program to 
include aliens seeking admission under the Visa Waiver Program (VWP) 
\37\ and travelers arriving at designated land border ports of entry. 
DHS designated the land ports of entry at which biometrics would be 
collected from certain aliens upon entry in two notices published in 
the Federal Register.\38\ The

[[Page 74170]]

August 31, 2004 interim final rule also amended Sec.  215.8 to 
authorize DHS to establish pilot programs to collect biometrics from 
aliens upon departure at designated land border ports of entry, in 
addition to the 15 designated air or sea ports at which DHS was 
authorized to conduct biometric exit pilot programs. See 8 CFR 
215.8(a)(1).
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    \37\ Pursuant to INA 217 (8 U.S.C. 1187), the Secretary of 
Homeland Security, in consultation with the Secretary of State, may 
designate certain countries as VWP program countries if certain 
requirements are met. Citizens and eligible nationals of VWP 
countries may apply for admission to the United States at a U.S. 
port of entry as nonimmigrant aliens for a period of 90 days or less 
for business or pleasure without first obtaining a nonimmigrant 
visa, provided that they are otherwise eligible for admission under 
applicable statutory and regulatory requirements. The list of 
countries which currently are eligible to participate in VWP is set 
forth in 8 CFR 217.2(a).
    \38\ On November 9, 2004, DHS published a notice in the Federal 
Register (69 FR 64964) identifying the 50 most trafficked land 
border ports of entry where biometric data would be collected from 
certain aliens upon entry. On September 14, 2005, DHS published a 
notice in the Federal Register (70 FR 54398) identifying additional 
land ports of entry in which aliens would be enrolled in legacy US-
VISIT upon entry into the United States.
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    On December 19, 2008, DHS published a final rule in the Federal 
Register (73 FR 77473) expanding the population of aliens subject to 
legacy US-VISIT to nearly all aliens, including lawful permanent 
residents.\39\ The rule also finalized the August 31, 2004 interim 
final rule without change.
---------------------------------------------------------------------------

    \39\ See INA 101(a)(3). The term ``alien'' means any person not 
a citizen or national of the United States.
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    As a result of the above rules and notices, DHS now collects 
biometrics from aliens upon entry, with certain exemptions provided in 
the regulations, at all air, sea and land ports of entry. The following 
categories of aliens currently are exempt from the requirements under 8 
CFR 215.8 and 235.1 to provide biometrics upon arrival to, and 
departure from, the United States at a U.S. port of entry:
     Aliens under the age of 14 and over the age of 79; \40\
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    \40\ On September 11, 2020 USCIS published an NPRM proposing to 
remove the age exemptions in 8 CFR 215.8 and 8 CFR 235.1 regarding 
biometrics collection at entry and exit. See, 85 FR 56338.
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     Aliens admitted on an A-1, A-2, C-3 (except for 
attendants, servants, or personal employees of accredited officials), 
G-1, G-2, G-3, G-4, NATO-1, NATO-2, NATO-3, NATO-4, NATO-5, or NATO-6 
visa;
     Certain Taiwan officials who hold E-1 visas and members of 
their immediate families who hold E-1 visas unless the Secretary of 
State and the Secretary of Homeland Security jointly determine that a 
class of such aliens should be subject to the requirements; and
     Canadian citizens under INA 101(a)(15)(B) (8 U.S.C. 
1011(a)(15)(B)) who are not otherwise required to present a visa or be 
issued Form I-94 or Form I-95 for admission or parole into the United 
States.\41\
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    \41\ This category of exemptions covers Canadian citizens 
traveling on a B1 or B2 visa.
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    See 8 CFR 235.1(f)(1)(ii), (iv); 8 CFR 215.8(a)(1)-(2). In 
addition, the Secretary of State and the Secretary of Homeland Security 
may jointly exempt classes of aliens from this requirement. The 
Secretaries of State and Homeland Security, in consultation with the 
directors of the relevant intelligence agencies, also may exempt any 
individual from this requirement. See 8 U.S.C. 1365b; 8 CFR 
235.1(f)(1)(iv)(C)-(D); 8 CFR 215.8(a)(2)(iii)-(iv).
2. Exit Pilot Programs and the Transfer of Entry and Exit Operations to 
CBP
    While DHS successfully implemented biometric entry capability at 
all ports of entry, establishing a biometric exit solution posed 
greater challenges. From January 2004 through May 2007, DHS conducted a 
series of exit pilot programs at 12 airports and 2 cruise ports across 
the United States.\42\ These pilots were conducted pursuant to 8 CFR 
215.8.\43\ Under these exit pilot programs, DHS evaluated various 
technologies and processes to collect biometric data from aliens at the 
time of departure. DHS found that biometrics provide a significant 
enhancement to the existing ability to match arrival and departure 
records as biometrics provides greater assurance of identity 
verification. In addition, DHS found that each of the various 
technologies used to collect biometric exit records worked and that 
compliance with biometric exit procedures improved when the process was 
convenient for travelers. In a report dated June 28, 2007, the 
Government Accountability Office stated that ``in particular, on 
average only about 24 percent of those travelers subject to US-VISIT 
actually complied with the exit processing steps. The evaluation report 
attributed this, in part, to the fact that compliance during the pilot 
was voluntary, and that to achieve the desired compliance rate, the 
exit solution would need an enforcement mechanism.'' \44\
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    \42\ The ports of entry included in the pilot were: Baltimore/
Washington International Thurgood Marshall Airport; Chicago O'Hare 
International Airport; Denver International Airport; Dallas Fort 
Worth International Airport; Miami Cruise Terminal; San Juan Luis 
Munoz Marin International Airport; Detroit Metropolitan Wayne County 
Airport (McNamara Terminal); Newark Liberty International Airport; 
San Francisco International Airport; Los Angeles Cruise Terminal; 
Hartsfield-Jackson Atlanta International Airport; Philadelphia 
International Airport; Ft. Lauderdale/Hollywood International 
Airport; and Seattle-Tacoma International Airport.
    \43\ See footnote 36.
    \44\ See U.S. Government Accountability Office, ``Prospects for 
Biometric US-VISIT Exit Capability Remain Unclear'' (June 28, 2007), 
available at https://www.gao.gov/assets/120/117187.pdf.
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    However, DHS also found that the collection process used during 
those pilots was inadequate and unsuitable for a nationwide deployment 
because it required significant DHS resources and also depended upon 
the facility operator, in this case airports, to provide adequate space 
for the collection of biometric data. The pilots beginning in 2004 used 
kiosks placed between the security checkpoint and airline gates that 
would collect a traveler's fingerprint biometrics. The traveler had the 
responsibility to find and use the devices, with varying degrees of 
support from the airports where the pilots were deployed. DHS also 
hired contract teams to assist travelers in finding and using the 
kiosks. Although the specific fingerprint technology collection 
generally worked as intended when it was utilized, the overall 
compliance rate was low because travelers often departed without 
providing their biometrics.
    DHS concluded from these pilots that it was generally inefficient 
and impractical to introduce entirely new government processes into an 
existing and familiar traveler flow, particularly in the air 
environment. Unlike many airports in Europe and around the world, 
United States transportation infrastructure was not built with 
departure control in mind, and does not have existing space within its 
airports to biometrically process departing travelers. Because DHS was 
required to secure space within the airports from the private sector, 
and because space within airports is limited and valuable from a 
commercial perspective, DHS's biometric exit pilots tended to operate 
in relatively inconvenient locations, which contributed to low 
compliance rates. Overall, DHS concluded that a biometric collection 
process that fit, to the extent practicable, within the existing 
traveler flow was necessary for successful implementation. The facial 
recognition technology required to reliably implement biometric exit 
processes into existing traveler flows has not been available until 
recently. Overall, DHS's conclusion is that the process of collecting 
biometric exit records should be integrated into the existing departure 
process.
    From May through June 2009, DHS operated two biometric air exit 
pilots as required by the Consolidated Security, Disaster Assistance, 
and Continuing Appropriations Act, 2009, Public Law 110-329, 122 Stat. 
3574, 3669-70. DHS announced the implementation of these biometric air 
exit pilots at Atlanta, Georgia (Hartsfield-Jackson Atlanta 
International Airport), and Detroit, Michigan (Detroit Metropolitan 
Wayne County Airport), by notice published in the Federal Register.\45\ 
The pilots tested the collection of biometric exit data in two 
scenarios: First, the collection of biometric information consisting of 
one or more electronic fingerprints by CBP at the departure gate using 
a hand-held

[[Page 74171]]

mobile device or other portable device; and second, biometric 
information consisting of one or more electronic fingerprints collected 
by TSA at the TSA security checkpoint using a mobile device. Although 
the technology worked as expected and DHS successfully captured the 
biometric data, DHS concluded that the use of mobile and portable 
devices to capture electronic fingerprints would be extremely resource-
intensive and costly to implement and maintain on a larger scale.
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    \45\ 74 FR 26721 (June 3, 2009).
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    Beginning in December 2009, CBP conducted the Temporary Worker Visa 
Exit Program Pilot in San Luis, Arizona and Douglas, Arizona, under 
which aliens admitted on certain temporary worker visas were required 
to depart from designated land ports of entry and submit certain 
biographical and biometric information at one of the outdoor kiosks 
established for this purpose.\46\ In its evaluation of the pilot, CBP 
identified several issues, including difficulties participants 
experienced in understanding the requirements and using the kiosks, 
resource and staffing burdens, unreliable kiosk operability due to the 
harsh desert climate, and infrastructure challenges. As a result, CBP 
discontinued the Temporary Worker Visa Exit Program Pilot in September 
2011.\47\
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    \46\ In December 2008, DHS promulgated a final rule establishing 
the Temporary Worker Visa Exit Program under 8 CFR 215.9, to be 
started on a pilot basis. See 73 FR 76891 (Dec. 18, 2008) (final 
rule establishing the Temporary Worker Visa Exit Program at 8 CFR 
215.9 for aliens admitted on an H-2A visa) and 73 FR 78104 (Dec. 19, 
2008) (final rule amending 8 CFR 215.9 to include aliens admitted on 
an H-2B visas). CBP, through notices published in the Federal 
Register, designated aliens admitted under H-2A and H-2B visas who 
entered the United States at either the port of San Luis, Arizona or 
the port of Douglas, Arizona as participants in the Temporary Worker 
Visa Exit Program Pilot. See 73 FR 77049 (Dec. 18, 2008) (notice 
designating H-2A temporary workers and the ports of entry), and 73 
FR 77817 (Dec. 19, 2008) (notice designating H-2B temporary 
workers); see also 74 FR 42909 (Aug. 25, 2009) (notice announcing 
the postponement of the pilot until December 8, 2009).
    \47\ See 76 FR 60518 (Sept. 21, 2011).
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    In 2013, pursuant to the Consolidated and Further Continuing 
Appropriations Act, 2013, Public Law 113-6, 127 Stat. 198, Congress 
transferred US-VISIT's entry-exit policy and operations, including 
responsibility for implementing a biometric exit program, to CBP; US-
VISIT's biometric identity management functions to the newly created 
Office of Biometric Identity Management (OBIM) within DHS's National 
Protection and Programs Directorate (now Cybersecurity and 
Infrastructure Security Agency \48\); and US-VISIT's overstay analysis 
mission to ICE within DHS.
---------------------------------------------------------------------------

    \48\ As a result of the Cybersecurity and Infrastructure Agency 
Act of 2018, OBIM was transferred to the DHS Management Directorate.
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E. Recent Developments in the Biometric Entry-Exit System

    In 2015 and 2016, CBP conducted the following four biometric tests, 
three at airports and one at a land port: (1) Biometric Exit Mobile Air 
Test (BE-Mobile); (2) 1 to 1 Facial Comparison Project; (3) Southwest 
Border Pedestrian Exit Field Test; and (4) Departure Information 
Systems Test. In October 2017, CBP began testing a streamlined entry 
process using facial recognition technology known as ``Simplified 
Arrival.'' Since 2017, CBP has partnered with a number of airlines and 
airport authorities to test a facial-recognition exit process for 
international flights at certain locations. In 2018, CBP began 
conducting biometric pilot programs at the land border in Anzalduas, 
Texas and Nogales and San Luis, Arizona. Summaries of the tests, 
lessons learned, and conclusions are set forth below.
1. Biometric Exit Mobile Experiment (BE-Mobile)
    In the summer of 2015, CBP began deploying the BE-Mobile pilot at 
the 10 highest volume international airports in the United States.\49\ 
Under this pilot, CBP officers stationed at the passenger loading 
bridges of selected flights used a handheld mobile device to scan 
fingerprints and passports of certain aliens at the time of their 
departure from the United States at designated airports. The biometric 
and biographic data collected by the BE-Mobile device was matched 
against data such as departures and arrivals in the United States, 
criminal histories, and lawful immigration status. The goal of the BE-
Mobile pilot was to evaluate the viability of using handheld mobile 
technology to collect exit data from a sample population on randomly 
selected flights within a specified airport, as well as to evaluate the 
viability of implementing biometric exit in conjunction with CBP's 
outbound enforcement operations.\50\
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    \49\ See 80 FR 44983 (July 28, 2015).
    \50\ CBP conducts traveler targeting operations to vet inbound 
and outbound travelers from commercial airlines to identify 
potential high-risk individuals, such as terrorists.
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    In its evaluation of the pilot, CBP concluded that while the 
handheld mobile technology can effectively capture biometric data and 
match that data against DHS databases, the handheld devices required 
too much time and manpower to be a biometric exit solution on all 
flights departing the United States. However, CBP concluded that BE-
Mobile does provide some benefits when used to assist with outbound 
enforcement operations. For instance, BE-Mobile allows officers to 
identify travelers who have suspicious travel histories or other 
derogatory information for further investigation by searching databases 
that detail individuals' travel patterns, visa status, and criminal 
records. Similarly, BE-Mobile can identify travelers exiting the 
country who do not have corresponding entry information, indicating 
that they potentially entered the country without having been admitted 
or paroled. Finally, BE-Mobile may identify individuals who have 
overstayed their period of admission, allowing CBP to collect more 
accurate overstay information.
    CBP is currently utilizing the same technology tested in the BE-
Mobile pilot at the original 10 airports as an enforcement tool for use 
by CBP officers. Since 2017, CBP has expanded the use of the BE-Mobile 
technology as an enforcement tool to additional airports and, more 
recently, land ports.\51\ BE-Mobile technology also serves as an 
additional identity verification tool for CBP's biometric pilots using 
facial recognition technology in the air and land environments, and CBP 
is considering it for use in the sea environment, as well.
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    \51\ See Biometric Exit Mobile Program PIA, available at https://www.dhs.gov/sites/default/files/publications/privacy-pia-cbp026a-bemobile-june2018.pdf. Last Accessed October 26, 2020.
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2. 1 to 1 Facial Comparison Project
    From March to May 2015, CBP tested the 1 to 1 Facial Comparison 
Project at Dulles International Airport.\52\ This pilot was intended to 
assist CBP officers in matching travelers to their passport photo. 
After the conclusion of the pilot program, the technology was deployed 
for use at both Dulles International Airport and John F. Kennedy 
International Airport for U.S. citizens and first-time VWP travelers. 
The technology compares a photograph taken of the traveler by a CBP 
officer upon entry to the photograph stored on the traveler's 
electronic passport to assess whether the individual applying for entry 
into the United States is the

[[Page 74172]]

same person to whom the passport was legally issued.\53\
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    \52\ See https://www.dhs.gov/publication/facial-recognition-air-entry-pilot; https://www.cbp.gov/sites/default/files/documents/502050_1to1%20Face%20ePassport_Fact%20Sheet%208.5x11_OFO_05222015_FINAL_Online.pdf. Accessed October 26, 2020.
    \53\ The 1 to 1 Facial Comparison Project focused on U.S. 
citizens and first-time Visa Waiver Program travelers because 
fingerprint biometrics are already available to verify other 
travelers upon admission to the United States.
---------------------------------------------------------------------------

    Although the capability was tested at the time of entry to the 
United States, the information gathered through the pilot was intended 
to also inform the acquisition of a biometric exit capability. The 
results of the pilot showed that biometric facial matching can increase 
the confidence with which CBP officers verify individuals' identities 
without a negative impact to port of entry operations and traveler wait 
times. Further, the results of this pilot aided CBP in determining the 
appropriate technical specifications needed for the air travel 
environment, which CBP could then test at exit by air.
3. Southwest Border Pedestrian Exit Field Test
    From February to May 2016, CBP conducted a pilot program to test 
facial and iris scanning technology at the Otay Mesa port of entry 
south of San Diego, California.\54\ The purpose of the test was to 
determine if biometric technology could be effectively used in an 
outdoor land environment without significant impact to operations and 
wait times, and to determine if collecting biometrics in conjunction 
with biographic data upon exit would assist CBP in identifying 
individuals who have overstayed their period of admission.
---------------------------------------------------------------------------

    \54\ See 80 FR 70241 (Nov. 31, 2015) and PIA, available at 
https://www.dhs.gov/sites/default/files/publications/privacy-pia-cbp-swborderpedestrianexit-november2015.pdf. Accessed October 26, 
2020.
---------------------------------------------------------------------------

    Under this pilot program, CBP collected biographic data from all 
travelers departing the United States at the Otay Mesa port of entry, 
and biometrics (facial images and/or iris scans) from all aliens, 
except for those exempt pursuant to 8 CFR 215.8(a)(2) and 
235.1(f)(1)(iv), entering and departing the Otay Mesa port of entry on 
foot. Before departing, travelers scanned their passports at a radio 
frequency identification-enabled kiosk. One collection lane was 
equipped with facial and iris scanning equipment that required the 
traveler to pause for biometric data collection. Another lane was 
equipped with technology that collected facial and iris images while 
the traveler continued through the lane without pausing.
    The pedestrian exit field test allowed CBP to test the capability 
of biometrics other than fingerprints in an outdoor environment. The 
pilot also provided information about the physical challenges to 
implementing face and iris scanning technology at land ports of entry. 
The successful implementation of a biometric capture system requires 
infrastructure tailored to mitigate both environmental factors that 
degrade image quality and human factors that inhibit travelers from 
properly interacting with the biometric capture system. Environmental 
factors included issues such as light, temperature, and items within 
the biometric camera field of view. Certain human factors, such as 
traveler attire and attentiveness, did impact technology effectiveness. 
The test highlighted the need for biometric scanning equipment to be 
located inside for protection from the elements, while recognizing that 
some land ports of entry do not have sufficient space for such 
infrastructure.
4. Departure Information Systems Test
    In June 2016, in partnership with an airline, CBP deployed the 
Departure Information Systems Test pilot at Atlanta's Hartsfield-
Jackson International Airport.\55\ The goal of the pilot was to 
evaluate the effectiveness of biometric facial recognition matching of 
a real-time photograph of an individual to a gallery of photographs 
stored in a database. The field trial was designed to use existing CBP 
systems and to leverage data already provided to CBP by the traveler 
and airlines for matching purposes. Additionally, the field trial was 
designed to support existing business practices of airlines and fit 
within existing infrastructure at U.S. airports.
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    \55\ See https://www.dhs.gov/sites/default/files/publications/privacy-pia-cbp-dis%20test-june2016.pdf and https://www.cbp.gov/newsroom/local-media-release/cbp-deploys-test-departure-information-systems-technology-hartsfield. Accessed October 26, 2020.
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    During the pilot, photographs of travelers taken during boarding 
were compared to photographs taken previously (as part of a U.S. 
passport application, a U.S. visa application, or through DHS 
encounters such as admission processing) that had been stored in the 
gallery. The names on the outbound flight manifest were used to 
populate the gallery with potential matches to the travelers boarding 
the flight. The device used to capture the photographs upon departure 
consisted of a camera, document reader, and display tablet. The display 
tablet instructed travelers to present their boarding pass to the 
reader as they approached the unit. Once the boarding pass was scanned, 
a camera captured a photograph of the traveler's face. After the system 
matched the photograph to the photographs in the gallery, an indicator 
light appeared and the traveler was instructed to proceed to board the 
plane. In the event the system did not produce a match, a CBP officer 
could attempt to verify the traveler's identity through in person 
manual review and use of other available information.
    For the pilot, CBP deployed the capability at one gate and for one 
daily nonstop flight from Atlanta to Tokyo. Today, this technology, now 
operating as the Traveler Verification Service (TVS), is recording 
biometric exit records for a limited number of daily international 
flights at a number of international airports.\56\
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    \56\ See https://www.biometrics.cbp.gov/air for an up to date 
listing of these airports.
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5. Land Border Biometric Tests
    In 2018, CBP began testing a number of different processes to 
develop a biometric entry-exit system to track aliens entering and 
departing the United States at the land border. For example, in 
September 2018, CBP began a technical demonstration at the San Luis 
port of entry in Arizona, testing the collection of photographs from 
pedestrian travelers entering the United States.\57\ Under this 
technical demonstration, CBP uses a facial recognition system to 
collect photographs of in-scope travelers entering the United States. 
CBP expanded this pilot to Nogales, Arizona in October 2018 and to 
Brownsville, Texas; Progresso, Texas; and Blaine, Washington in 2020.
---------------------------------------------------------------------------

    \57\ See https://www.cbp.gov/newsroom/local-media-release/cbp-implement-facial-comparison-technical-demonstration-port-san-luis. 
Accessed October 26, 2020.
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    CBP has also explored using facial recognition technology in the 
vehicle environment. From August 2018 to February 2019, CBP conducted 
the Vehicle Face demonstration at Anzalduas, Texas, which captured 
facial images of vehicle occupants ``at speed'' under 20 mph and 
biometrically matched the new images against a TVS gallery of recent 
travelers.\58\ For this demonstration, CBP installed several cameras in 
inbound lanes just prior to the existing vehicle lane infrastructure 
and in outbound lanes just beyond the license plate reader vehicle 
footprint. Vehicles proceeded through the respective inbound and 
outbound lanes as normal, with CBP officers processing vehicle 
occupants at the primary inbound booths using existing CBP software 
applications and technology. This process captured the biographic data 
of the vehicle occupants, associated the travelers with the vehicle, 
and created an exit crossing record for the

[[Page 74173]]

occupants. The identification numbers assigned to the exit crossing 
records were associated with scene and facial images captured during 
this demonstration so that analysts could compare the biographic 
crossing data with the facial images and biometric matching. This 
demonstration did not impact the current experience of the travelers or 
officers, except during normal outbound operations in which CBP 
officers stopped vehicles and processed the occupants using a TECS 
System application.
---------------------------------------------------------------------------

    \58\ See 83 FR 56862 (Nov. 14, 2018).
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    After an evaluation of these and any other pilot programs, CBP 
plans to implement a long-term biometric exit solution at the land 
border that would address the unique operational and infrastructure 
challenges that exist in that environment.
6. Simplified Arrival
    In October 2017, CBP began testing Simplified Arrival, a 
streamlined entry process using facial recognition technology at 
Atlanta's Hartsfield-Jackson International Airport. Under Simplified 
Arrival, CBP uses facial recognition technology to biometrically verify 
a traveler's identity. Under this process, CBP uses APIS manifest data 
to retrieve existing traveler photographs from government databases, 
including CBP's own data systems, passport and visa databases of the 
Department of State, and other DHS holdings such as DHS's Automated 
Biometric Identification System (IDENT), to build a photo gallery of 
travelers who are expected to arrive in the United States. At the 
inspection booth, CBP captures a ``live image'' of the traveler and 
matches it to a photograph in the pre-assembled gallery. Both the live 
image and the gallery photograph are displayed to the CBP officer along 
with the traveler's biographic data. The CBP officer then conducts an 
interview with the traveler to validate the results and complete the 
inspection process.\59\
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    \59\ Currently, U.S. citizens and aliens exempt under 8 CFR 
235.1(f) may voluntarily participate in Simplified Arrival or 
instead undergo the normal inspection process.
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    In addition to Atlanta, CBP is now testing Simplified Arrival for 
arriving travelers on international flights at locations including, 
Miami International Airport, Orlando International Airport, George Bush 
Intercontinental Airport, Houston Hobby, San Antonio International 
Airport, San Francisco International Airport, Dallas--Fort Worth 
International Airport, Norman Y. Mineta San Jose International Airport, 
Fort Lauderdale-Hollywood International Airport, Washington Dulles 
International Airport, McCarran International Airport, Detroit 
Metropolitan Airport, San Diego International Airport, John F. Kennedy 
International Airport, Newark International Airport, and Los Angeles 
International Airport. CBP is also testing Simplified Arrival for 
arriving travelers processed through the preclearance facilities at 
locations including Queen Beatrix International Airport, Aruba; Shannon 
Airport and Dublin Airports, Ireland; and Abu Dhabi International 
Airport, United Arab Emirates.\60\
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    \60\ See https://www.biometrics.cbp.gov/air for an up to date 
list of locations where CBP is testing Simplified Arrival.
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7. Public-Private Partnerships
    Since June 2017, certain airlines, such as JetBlue Airways, Delta 
Air Lines, and British Airways, have volunteered to use their own 
technology in partnership with CBP to test a facial recognition-based 
boarding process for international flights that would facilitate 
identity verification, and also assist CBP in meeting its congressional 
mandate to implement biometric exit. In compliance with CBP's business 
requirements, these stakeholders deployed their own camera operators 
and camera technology meeting CBP's technical specifications to capture 
photographs of travelers boarding certain international flights via a 
facial biometric capture device. The photographs are sent to CBP's TVS 
via a secure, encrypted connection, which will indicate to the airline 
if each traveler's identity can be verified.
    The technology has the potential to speed up the departure for 
airlines and travelers, as it enables identity verification without 
manual verification of the boarding pass and scanning of the passport. 
This new process can assist carriers to more efficiently and accurately 
comply with their obligation to ensure that the person presenting the 
travel document is the person to whom the travel document was issued, 
pursuant to 19 CFR 122.49a(d), 122.49b(d), 122.75a(d) and 122.75b(d). 
In some of these tests, the biometric verification process has replaced 
the use of boarding passes. Eventually, participating airlines may 
choose to eliminate boarding passes entirely or use the technology to 
speed up other processes.
    Participating airlines, in partnership with CBP, are testing this 
facial recognition-based boarding process on select international 
flights at locations including: Atlanta Hartsfield-Jackson 
International Airport, Boston Logan International Airport, Chicago 
O'Hare International Airport, Dallas/Fort Worth International Airport, 
Detroit Metropolitan Wayne County Airport, Fort Lauderdale--Hollywood 
International Airport, William P. Hobby Airport, George Bush 
Intercontinental Airport, McCarran International Airport, Miami 
International Airport, Minneapolis-St. Paul International Airport, 
Newark Liberty International Airport, John F. Kennedy International 
Airport (New York), Orlando International Airport, Portland 
International Airport, Salt Lake City International Airport, San 
Antonio International Airport, San Francisco International Airport, 
Washington Dulles International Airport, and Ronald Reagan Washington 
National Airport.\61\
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    \61\ See https://www.biometrics.cbp.gov/air for an up to date 
list of locations where CBP is testing facial recognition on 
international flights departing from the United States.
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F. Proposed Facial Recognition Based Entry-Exit Process

    Based on CBP's extensive biometric tests discussed above, DHS has 
determined that facial recognition technology can provide a successful 
foundation for a biometric exit solution, as well as an improved and 
more streamlined biometric entry process. The following sections will 
discuss CBP's proposed facial recognition based entry-exit process. 
This process will be implemented first at commercial air ports of 
entry. Full implementation at for land and sea ports of entry will 
follow after CBP has tested and refined its biometric exit strategies 
in those environments.
    Some of the facial recognition based entry and exit processes 
described below may already be implemented in limited form at entry or 
under biometric exit pilot programs. For such existing processes, CBP 
adheres to all applicable laws or regulations that govern its 
collection of biometrics. If this proposed rule is implemented, CBP 
will be able to collect facial images under the processes described 
here from all aliens arriving and departing the United States.
1. Benefits of a Facial Recognition Based Process
    Using facial recognition technology, CBP has developed a model for 
moving forward with implementing a biometric exit solution, starting at 
airports. As fingerprint scans have proven to be an effective law 
enforcement tool, CBP will continue to capture fingerprints as the 
initial identification biometric. CBP may elect not to collect 
fingerprints for subsequent identity verification where CBP has 
implemented facial

[[Page 74174]]

recognition. Fingerprint scans can be used for most aliens should 
facial recognition fail to properly identify the traveler.
    CBP has determined that facial recognition technology is currently 
the best available method for biometric verification as it is 
efficient, accurate, and unobtrusive. The key benefit of a biometric 
entry-exit system based on facial recognition is its efficiency; it can 
leverage information that all travelers provide to the U.S. government 
as a condition for international travel. Photographs of all travelers 
are readily available to DHS through sources such as previous encounter 
photos and visa databases, eliminating the need to collect new 
information and add another layer to travel process. In addition, a 
system that matches a traveler's facial biometrics against a limited 
number of stored photographs, rather than an entire government database 
of photographs, significantly reduces the amount of time necessary to 
verify a traveler's identity. As a result, CBP is able to verify the 
identity of arriving or departing travelers with a high degree of 
efficiency while facilitating travel for the public.
    Biometric verification using facial recognition is highly accurate. 
As of September 2018, CBP's facial recognition technology was able to 
match travelers at a rate of greater than 97 percent. If the system 
fails to match a traveler, then a manual review of the traveler's 
document is performed, just as the process is conducted today. 
Additionally, CBP has a rigorous process in place to review data and 
metrics associated with biometric facial recognition matching 
performance. CBP is working with DHS Science and Technology (S&T) 
Directorate to continue to develop and refine methods to analyze any 
differences that are discovered in matching performance (e.g., age,\62\ 
gender, and citizenship) based on the available data collected through 
biometric entry-exit operations. CBP is also seeking the expertise of 
the National Institute of Standards and Technology (NIST) in evaluating 
the performance and core algorithm capability of face recognition 
algorithms. CBP's presently available data demonstrates marginal 
differences in match rate between age, gender, or citizenship.\63\ CBP 
will continue to work with its partners to develop methods to address 
any performance variations within the system.
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    \62\ Currently, the regulations provide that aliens younger than 
14 or older than 79 are exempt from the collection of biometrics 
upon entry and departure from the United States. See 8 CFR 215.8(a) 
and 235.1(f)(1); see also Section III.D.1 for more discussion. CBP 
will collect additional data on these populations and evaluate match 
rates once the regulations are amended to include these age groups.
    \63\ Based on June 2017-May 2018 CBP Air Exit data from ATL, 
HOU, IAD, IAH, JFK, LAS, LAX, MIA, ORD, SEA, SFO. Please see 
Evaluating Bias in the docket for this rulemaking. See also NIST 
Interagency Report 8271, available at https://doi.org/10.6028/NIST.IR.8271.
---------------------------------------------------------------------------

    As an added benefit, a biometric entry-exit system based on facial 
recognition is relatively unobtrusive. It relies on current traveler 
behaviors and expectations; most travelers are familiar with cameras 
and do not need to learn how to have a photograph taken. Finally, the 
biometric capture device can be installed at an airline departure gate 
without any necessary changes to existing airport infrastructure.
    To fully implement an effective biometric entry-exit system in a 
secure and comprehensive manner, and to avoid another layer in the 
travel process, DHS has concluded that it may be necessary to collect 
photographs from all aliens upon entry and/or departure from the United 
States.\64\ In this proposed rule, DHS proposes to amend the 
regulations to provide that all aliens may be required to be 
photographed upon entry and/or departure. Failure to comply with a 
requirement to be photographed upon entry and/or departure may be found 
to constitute a violation of the terms of the alien's admission, 
parole, or other immigration status and, where the failure to comply is 
upon entry, may result in a determination that the alien is 
inadmissible under section 212(a) of the Immigration and Nationality 
Act or any other law.\65\
---------------------------------------------------------------------------

    \64\ Currently, the regulations provide that certain aliens are 
exempt from the collection of biometrics upon entry and departure 
from the United States. See 8 CFR 215.8(a) and 235.1(f)(1); see also 
Section III.D.1 for more discussion.
    \65\ See proposed 8 CFR 215.8(b) and 235.1(f)(1)(iv). In the 
event of technical failures preventing the capture and matching of 
photographs of travelers at exit, air carriers will be directed to 
use manual boarding processes until the systems are functional. In 
this scenario, a biographic exit record will be created for the 
traveler but a biometric confirmation will not exist. A missing 
biometric confirmation record based on technology or operational 
failures is not considered non-compliance with departure 
requirements.
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    By collecting photographs from all aliens departing the United 
States, DHS can more effectively verify their identity and confirm 
their departure. This collection also helps identify visa overstays and 
aliens who are present in the United States without having been 
admitted or paroled, and prevent their illegal reentry into the United 
States, as well as prevent visa fraud and the use of fraudulent travel 
documents. It also helps DHS identify known or suspected terrorists or 
criminals traveling using someone else's documents, before they depart 
the country. By confirming that the traveler is not the true bearer of 
a presented travel document, the traveler would then be subject to 
further inspection, first by the airline and also in some circumstances 
by CBP officers, which may include fingerprinting and/or an interview. 
Through this additional inspection, CBP would be better able to 
identify known criminals and other threats to border security.
    The collection of photographs from all aliens avoids the need to 
have different processes at the point of departure for alien travelers 
who are currently subject to the collection of biometrics and those who 
are not. Collecting photographs from all alien travelers aligns with 
international passport standards, which require a photograph of the 
traveler on the document regardless of age or classification. Having 
multiple processes for different alien travelers at the departure gate 
would add another layer to the travel process and place significant 
burdens on carriers, airports and other port facilities, and the 
traveling public. Also, at certain locations, such as at an 
international departure gate at an airport, there may not be sufficient 
space for multiple lines of alien travelers.
    DHS has also determined that the collection of photographs from all 
aliens at entry is necessary, without regard to age or visa 
classification. Based on NIST's research, CBP has found that 
effectiveness of a biometric entry-exit system based on facial 
recognition improves when more sources of biometrics are available to 
match against.\66\ A photograph collected from a traveler upon entry to 
the United States would provide DHS with another data point to match 
against a photograph collected upon departure, in addition to the 
photographs already available to DHS through sources such as previous 
encounter photos and visa databases. In addition to improving the 
system's matching performance, establishing a requirement that all 
aliens may be photographed without exemption enables DHS to 
biometrically verify the identity of all alien travelers traveling to 
and from the United States, thereby helping prevent visa fraud and the 
fraudulent use of legitimate travel documentation.
---------------------------------------------------------------------------

    \66\ See NIST Interagency Report 8238, available at https://nvlpubs.nist.gov/nistpubs/ir/2018/NIST.IR.8238.pdf. See NIST 
Interagency Report 8271, available at https://doi.org/10.6028/NIST.IR.8271.https://nvlpubs.nist.gov/nistpubs/ir/2018/
NIST.IR.8238.pdf.
---------------------------------------------------------------------------

    Collecting photographs from all aliens at entry also enables CBP to 
implement

[[Page 74175]]

a streamlined entry process using facial recognition for all such 
aliens. For example, under the Simplified Arrival process described 
above, CBP primarily uses photographs rather than fingerprints to 
verify the traveler's identity and retrieve the traveler's biographic 
information for inspection. Facial recognition technology can perform 
the function of biometrically verifying an alien traveler's identity 
much more efficiently than collecting and comparing his or her 
fingerprints. During CBP's current inspection process, most aliens are 
subject to being photographed upon arrival into the United States at 
primary inspection. The Simplified Arrival process, which is based on 
this requirement, utilizes integrated biometric identity verification 
with the retrieval of a traveler's biographic data from a single 
capture of a photograph. In doing so, the Simplified Arrival process 
eliminates the need for CBP to scan a passport or travel document to 
pull up the traveler's biographic data for inspection because a facial 
recognition scan performs this same function more quickly. Ultimately, 
using facial recognition at entry can eliminate several administrative 
processes that will increase the speed at which CBP can inspect 
travelers arriving in the United States. By eliminating the 
administrative tasks involved in scanning a travel document or 
collecting fingerprints, CBP can devote more resources to interviewing 
an alien traveler to determine his or her admissibility.
    As noted above, DHS proposes in this rule to collect photographs 
from all aliens regardless of their age. This will enable DHS to 
associate the immigration records created for children to their adult 
records later, which will help combat trafficking of children, and 
confirm the absence of criminal history or associations with terrorist 
or other organizations seeking to violate applicable law. The current 
regulations that exempt biometric collection based on the age of the 
individual (i.e., under 14 and over 79) were based on technological 
limitations on collecting fingerprints from children and elderly 
persons, as well as traditional law enforcement policies and other 
policies, such as not running criminal history background checks on 
children. These policies are no longer applicable to CBP's facial 
recognition based biometric entry-exit program, as the use of 
biometrics has expanded beyond criminal history background checks and 
now plays a vital role in identity verification and management. The use 
of facial recognition also obviates the technological problems 
previously associated with fingerprints.
    Certain privacy advocates have expressed concern over the accuracy 
of facial matching technology especially as it relates to demographics 
such as age, race and gender. By expanding the scope of individuals 
subject to facial image collection, the accuracy of the facial matching 
system will improve for all segments of the population, including 
children and the elderly, as it would be matching against more recent 
photos of the traveler rather than older, outdated visa photos.\67\ 
Additionally, as discussed above, the proposed change to remove 
biometric exemptions for aliens would also alleviate the need to have 
multiple processing procedures for aliens, which would be a resource 
intensive process. For land and sea ports of entry and private 
aircraft, CBP plans to continue to test and refine biometric exit 
strategies with the ultimate goal of implementing a comprehensive 
biometric entry-exit system nationwide. The proposed regulatory changes 
would support CBP's efforts to regularly conduct a variety of 
statistical tests to bolster performance thresholds and minimize any 
possible bias impact on travelers of certain race, gender or 
nationality.
---------------------------------------------------------------------------

    \67\ See NIST Interagency Report 8271, available at https://doi.org/10.6028/NIST.IR.8271.
---------------------------------------------------------------------------

    In this proposed rule, CBP has not analyzed the costs and benefits 
for implementing a facial recognition based biometric entry-exit 
program for land and sea ports of entry and private aircraft because 
CBP is still in the testing phase to determine the best way to 
implement biometric entry-exit within each of these unique 
environments. CBP would welcome comments from the public on the rule's 
impact on land and sea ports of entry and private aircraft.
    CBP is continually evaluating how to best implement a biometric 
entry-exit system that is efficient, accurate, and secure and 
incorporates the latest technology. These evaluations will allow CBP to 
determine if new technology or new methods of employing existing 
technology might improve the entry-exit system.
2. Facial Recognition Technology Gallery Building
    CBP has developed a matching service for all biometric entry and 
exit operations that use facial recognition, regardless of the method 
of entry or exit (i.e., air, land, and sea). For all biometric matching 
deployments, TVS relies on biometric templates generated from pre-
existing photographs that CBP already maintains, known as a 
``gallery.'' These images may include photographs captured by CBP 
during previous entry inspection, photographs from U.S. passports and 
U.S. visas, and photographs from other DHS encounters. CBP builds 
``galleries'' of photographs based on where and when a traveler will 
enter or exit. If CBP has access to APIS manifest information, CBP will 
build galleries of photographs based on upcoming flight or vessel 
arrivals or departures. If CBP does not have access to APIS manifest 
information, such as for pedestrians or privately owned vehicles at 
land ports of entry, CBP will build galleries using photographs of 
``frequent'' crossers for that specific POE, taken at that specific 
POE, that become part of a localized photographic gallery. CBP's TVS 
facial matching service then generates a biometric template for each 
gallery photograph that is stored in the TVS virtual private cloud for 
matching when the traveler arrives or departs.
3. General Collection Process
    Due to the complexities in logistics across the entry and exit 
environments, CBP will collect photographs of the arriving or departing 
traveler via several different methods depending on the local port of 
entry. Generally, when travelers present themselves for entry or exit, 
they will encounter a camera connected to CBP's cloud-based TVS facial 
matching service via a secure, encrypted connection. This camera 
matches live images with existing photo templates from passenger travel 
documents. The camera may be owned by CBP, the air or vessel carrier, 
another government agency such as TSA, or an international partner 
governmental agency. Once the camera captures a quality image and the 
system successfully finds a match among the historical photo templates 
of all travelers from the gallery associated with that particular 
manifest, the traveler proceeds to inspection for an admissibility 
determination by a CBP Officer, or is permitted to depart the United 
States. When a ``no match'' occurs, CBP may use an alternative means to 
verify the traveler's identity, such as a manual review of the travel 
document. See Section III.F.6 for more discussion.
4. Facial Recognition Based Entry Process
    Historically, prior to admission to the United States, CBP has used 
a manual process to inspect travel documents, such as passports or 
visas, to initiate system checks and verify a traveler's identity, 
travel history, and any law or

[[Page 74176]]

border enforcement concerns that may require attention. The new primary 
entry solution uses biometrics to initiate the transaction and system 
checks, using facial recognition as the primary biometric verification 
modality. This shift from a biographic, document-based system to a 
biometric-initiated transaction requires travelers to provide facial 
photos for identity verification purposes. This enables CBP to more 
accurately verify identity and citizenship by matching the traveler's 
photograph with vetted and validated biographic information. Studies 
show that humans can benefit in face recognition tasks when assisted by 
a machine, and vice versa.\68\
---------------------------------------------------------------------------

    \68\ See https://www.pnas.org/content/pnas/115/24/6171.full.pdf. 
See also https://onlinelibrary.wiley.com/doi/abs/10.1002/acp.2968. 
Accessed October 26, 2020. See also https://royalsocietypublishing.org/doi/full/10.1098/rsos.170249#RSOS170249C16. Accessed October 26, 2020.
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    Under Simplified Arrival, CBP uses CBP-owned cameras, CBP's primary 
arrival subsystem of TECS, and the facial matching service to capture 
facial biometric data from travelers seeking to enter the United 
States. All travelers proceed to the entry lanes within CBP's Federal 
Inspection Services (FIS) area, where a camera captures an image of the 
traveler's face. The TECS primary arrival subsystem transmits the image 
to TVS. In order to biometrically identify the traveler, TVS 
automatically creates a template from the image and uses the template 
to query against a gallery of known identities, based on the manifests 
for all incoming flights for that day.
    Once the traveler is matched, TVS transmits the match results, 
along with a TECS system-generated unique traveler identifier and a 
unique photo identifier generated by CBP's Automated Targeting System 
(ATS)-Unified Passenger (UPAX) module to TECS. In turn, the TECS 
primary arrival subsystem uses the unique traveler identifier to 
retrieve the traveler's biographic information from the APIS manifest. 
Additionally, the TECS subsystem uses the ATS-UPAX-generated identifier 
to retrieve the historical image (which had matched with the new image) 
stored in UPAX. The CBP officer has the ability to view and evaluate 
the traveler's biographic data, along with any derogatory information, 
in the TECS primary arrival application, along with associated 
biometric match results from TVS. The CBP officer then conducts the 
standard inspection interview and establishes the purpose and intent of 
travel. Upon admission or entry, CBP updates the traveler crossing 
history in TECS to reflect a confirmed arrival into the United States. 
Inbound processing for travelers on commercial sea vessels (e.g., 
cruise ships) will resemble the air entry process, as this travel 
method is also based on an APIS traveler manifest.
    Even with the use of facial recognition technology upon entry, CBP 
still leverages APIS information and screens it against TECS records 
and other law enforcement databases in order for CBP to ascertain if 
any security or law enforcement risks exist.
    At this time, CBP is not actively using galleries of known 
travelers in the land environment. This is because private rail and bus 
lines are not required to submit APIS manifests (although, in some 
cases, private rail and bus lines submit APIS to CBP voluntarily) and 
CBP does not receive any manifest for pedestrians crossing the land 
border on foot or for persons traveling in private vehicles. However, 
CBP is developing processes that would enable the use of TVS at the 
land border. For example, CBP may briefly retain local galleries of 
travelers who have recently crossed at a given POE and are expected to 
cross again within a given period of time. CBP is conducting tests to 
determine feasibility. Currently, in San Luis and Nogales, Arizona, CBP 
is using facial recognition technology to compare the traveler against 
the photo in the travel document presented (1:1 comparison). Expanding 
the scope of travelers that may be required to present biometrics will 
allow CBP to continue to examine the possibility of using galleries in 
the land environment.
5. Facial Recognition Based Exit Process
    CBP is using biometric technologies in voluntary partnerships with 
other federal agencies and commercial stakeholders. These partnerships 
enable CBP to more effectively verify the identities of individuals 
entering and exiting the United States, identify aliens who are 
violating the terms of their admission, and expedite immediate action 
when such violations are identified.
    In some partnership arrangements, an airline or airport authority 
partner staffs TVS biometric collection and the boarding process, 
rather than CBP. These stakeholders are assisting CBP in meeting the 
congressional biometric entry-exit system mandate. Some of these 
partners are already using traveler photographs in their own business 
processes. A number of airlines and airport authorities may choose to 
leverage their own technology in partnership with CBP to facilitate 
identity verification. Based on agreements with CBP, these stakeholders 
deploy their own camera operators and camera technology to operate TVS 
for identity verification. These stakeholders must adhere to strict 
business requirements and the cameras must meet CBP's technical 
specifications to capture facial images of travelers prior to use. Each 
camera is connected to the TVS via a secure, encrypted connection. 
While the photo capture process may vary slightly according to the 
unique requirements of each participating airline and airport 
authority, the IT infrastructure supporting the backend process is the 
same.
    During the boarding process, CBP's facial recognition matching 
service allows CBP to biometrically verify the identity of travelers 
departing the United States with the assistance of airline or airport 
partnerships. At the departure gate, each traveler stands for a photo 
in front of a partner-provided camera. Aided by the authorized airline 
or airport personnel, the partner-owned camera attempts to capture a 
usable image and submits the image, sometimes through an authorized 
integration platform or vendor, to CBP's cloud-based TVS facial 
matching service. TVS then generates a template from the departure 
photo and uses that template to search the assembly of historical photo 
templates in the cloud-based gallery. Some airlines continue to accept 
boarding passes at the gate, while other carriers accept CBP's 
biometric identity verification in lieu of boarding passes as part of a 
new paperless, self-boarding process. In the latter process, the 
carrier may employ technologies (such as automated gates) to further 
automate the boarding process. For example, a traveler whose photo has 
generated a positive match with a photo in the gallery, will be 
directed to board the plane. As CBP verifies the identity of the 
traveler, either through the automated TVS facial recognition process 
or manual officer processing, the backend matching service returns the 
``match'' or ``no-match'' result, along with the associated unique 
identifier. Carriers, pursuant to the APIS regulations, are responsible 
for comparing the travel document to validate the information provided 
and ensure that the person presenting the document ``is the person to 
whom the travel document was issued.'' 19 CFR 122.49a, 122.49b, 
122.49c, 122.75a, and 122.75b. The use of TVS provides a more efficient 
and accurate way to meet this requirement.
    Typically, on air exit, CBP is not permanently stationed at the 
gate. Therefore, CBP currently must rely on

[[Page 74177]]

the review of biographic data (provided via APIS) to determine whether 
further inspection on departure is warranted and whether an outbound 
enforcement teams should be sent to the gate. With the use of facial 
recognition technology, outbound enforcement teams are informed 
immediately when a no match occurs (via notification on mobile device) 
and can then determine if additional inspection is warranted.
    Outbound processing for travelers on commercial sea vessels (e.g., 
cruise ships) would resemble the air exit process. It is expected that 
this process will also be based on an APIS traveler manifest, although 
further testing is needed to refine and implement this process. At the 
land border, as part of CBP's outbound enforcement efforts, CBP has 
begun recording departures of Third Country Nationals (TCN) encountered 
during outbound operations at land crossings, both biographically and 
with facial images and fingerprint biometrics. A TCN is defined as a 
foreign national who is attempting to enter either Canada or Mexico but 
is not a citizen of either country. TCNs departing the United States by 
land are those individuals who are currently subject to biometric 
collection under existing CBP regulations.
6. Alternative Procedures and Public Notices
    Currently for air exit, all travelers, including U.S. citizens, may 
notify the airline-boarding agent if they would like to opt out of the 
facial-recognition based process at the time of boarding and request 
that an alternative mean of validation be employed. Airline personnel 
would then conduct manual identity verification using the travel 
document, and may notify CBP to collect biometrics, if applicable. 
Under the proposed rule, alien travelers would no longer be able to opt 
out. Alternative procedures would only be available to U.S. citizen 
travelers.
    All U.S. citizens are subject to inspection upon arrival into and 
departure from the United States to confirm their identity and 
citizenship. Where CBP has implemented a biometric verification 
program, participation by U.S. citizens in CBP's biometric verification 
program is voluntary. Such participation provides a more efficient 
boarding process or admission process and a more accurate and efficient 
method for verifying the identity and citizenship of U.S. citizens. A 
U.S. citizen traveler who does not wish to have his or her photograph 
taken may request an alternative inspection process. For example, in 
the event a U.S. citizen elects not to be photographed at airports 
where CBP is conducting biometric exit verification, an airline gate 
agent will perform a manual review of the U.S. citizen's passport. If 
there is some question as to the authenticity of the passport or 
whether the person presenting the passport is the person to whom the 
passport was lawfully issued, the airline will contact CBP for 
additional inspection, and a CBP officer may perform a manual review of 
the passport. A CBP officer may ask questions to validate identity and 
citizenship. At other departure locations, such as at a land port where 
CBP is conducting biometric verification, CBP provides appropriate 
alternative procedures. As biometric collection progresses, CBP 
believes that it will save travelers time. If this is the case, the 
alternative inspection process may be a slower process than the 
automated process, but every effort will be made to not delay or hinder 
travel.
    As discussed in Section III.E.6, Simplified Arrival enables CBP to 
use facial recognition to streamline the entry process for all arriving 
travelers. This process has been implemented at certain locations and 
will be expanded. For U.S. citizens, participation is voluntary. CBP 
provides appropriate alternative procedures for U.S. citizens who 
choose not to participate in the biometric verification process at 
entry. The alternative procedures proposed in this rule are intended to 
be similar to the existing process at entry today, in which a CBP 
officer would physically examine the traveler's documentation to ensure 
the bearer is the true owner, and scan the document to pull up the 
traveler's data for inspection. See Section III.E.6.
    CBP strives to be transparent and provide notice to individuals 
regarding its collection, use, dissemination, and maintenance of 
personally identifiable information (PII). When airlines or airports 
are partnering with CBP on biometric air exit, the public is informed 
that the partner is collecting the biometric data in coordination with 
CBP. CBP provides notice to travelers at the designated ports of entry 
through both physical and either LED message boards or electronic 
signs, as well as verbal announcements in some cases, to inform the 
public that CBP will be taking photos for identity verification 
purposes. CBP also provides notice to the public that a traveler may 
opt out of having their photo taken and request an alternative 
procedure. CBP works with carriers, airports, and other port facilities 
to incorporate appropriate notices and processes into their current 
business models.
    Upon request, CBP officers provide individuals with a tear sheet 
with Frequently Asked Questions (FAQ), opt-out procedures, and 
additional information on the particular demonstration, including the 
legal authority and purpose for inspection, the routine uses, and the 
consequences for failing to provide information. Additionally, in the 
FIS, CBP posts signs informing individuals of possible searches, and 
the purpose for those searches, upon arrival or departure from the 
United States. Privacy information on the program, such as System of 
Records Notices and Privacy Impact Assessments (PIAs), are published on 
www.dhs.gov/privacy. CBP will also continue to make program 
information, such as Frequently Asked Questions, available for the 
public on CBP's biometrics website at www.cbp.gov/biometrics.
7. ``No Match'' Procedures
    CBP has designed the entry and exit inspection process such that, 
in the event of a mismatch, false match, or ``no match,'' CBP may use 
alternative means to verify the traveler's identity and ensure that the 
traveler is not unduly delayed. If the system fails to match a 
traveler, then a manual review of the traveler's document is performed. 
On entry, the CBP officer may continue to conduct additional screening 
or request fingerprints (if appropriate) to verify identity. Each 
inspection booth at entry is equipped with a fingerprint reader.
    At departure, after the manual review of the travel document (i.e., 
scanning a boarding pass and checking a traveler's passport), the 
airline or cruise line may notify CBP's outbound enforcement teams 
should additional inspection be required.\69\ In such case, CBP 
officers may inspect the traveler's passport or other valid travel 
document. If the traveler is subject to biometric collection (under the 
current regulations or under the amended regulations once this rule is 
finalized), the officer may swipe the traveler's document in the MRZ of 
the BE-Mobile device and collect the traveler's fingerprints. BE-Mobile 
uses fingerprints, facial images, and the existing connections between 
ATS-UPAX and DHS IDENT for all

[[Page 74178]]

biometric queries and storage. CBP encrypts data on the wireless 
handheld device as it is collected and encrypts the biometric and 
biographic data during transmission to and from internal and external 
systems. No information is retained on the BE-Mobile device.
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    \69\ Communication between CBP's outbound enforcement team and 
airlines/cruise lines is not unique to locations where facial 
recognition is implemented. During the outbound inspection, CBP may 
interview the traveler as well as use BE-Mobile devices. CBP 
conducts outbound enforcement operations using BE-Mobile devices in 
all modes of transportation and also at locations where facial 
recognition technology (i.e., biometric exit boarding) is 
unavailable. Neither the operations nor the technology is exclusive 
to locations where facial recognition based biometric exit is 
implemented.
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    The BE-Mobile device transfers prints and passport information to 
the appropriate DHS and CBP information technology system to identify 
any law enforcement lookouts related to the traveler. In addition, the 
device matches the traveler to the APIS manifest and creates a 
confirmed exit record in such CBP systems as APIS and the Arrival and 
Departure Information System (ADIS). If the system checks yield no 
derogatory information, the CBP officer allows the traveler to board/
continue travel.
    Based on the inspection results and the queries using the newly 
collected biometric and biographic data, if CBP finds actionable 
derogatory information on the traveler, the CBP officer may escort the 
traveler to the FIS area to conduct further questioning and take the 
appropriate actions under CBP's law enforcement authorities.
    In the event that an individual does experience a delay or issue as 
an outcome of these processes, travelers may contact the CBP Info 
Center and/or DHS Traveler Redress Inquiry Program (TRIP). Signage and 
tear sheets at select ports of entry where the TVS is employed provides 
information on how to contact the CBP Info Center and/or DHS TRIP. In 
addition, travelers may request information from the on-site CBP 
officer or gate agent.
8. U.S. Nationals, Dual Nationals and Lawful Permanent Residents
    Under the INA, a U.S. national is either a citizen of the United 
States, or a person who, though not a U.S. citizen, owes permanent 
allegiance to the United States. See INA section 101(a)(22). Non-
citizen U.S. national status applies only to individuals who were born 
either in American Samoa or on Swains Island to parents who are not 
citizens of the United States.\70\
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    \70\ See Dual Nationality, U.S. Department of State, https://travel.state.gov/content/travel/en/legal/travel-legal-considerations/Advice-about-Possible-Loss-of-US-Nationality-Dual-Nationality/Dual-Nationality.html.
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    Dual nationals are individuals who owe allegiance to both the 
United States and the foreign country. They are required to obey the 
laws of both countries, and either country has the right to enforce its 
laws. For purposes of international travel, U.S. nationals, including 
dual nationals, must use a U.S. passport (or alternative documentation 
as required by 22 CFR part 53) to enter and leave the United States. 
See INA 215(b) (8 U.S.C. 1185(b)); see also 22 CFR 53.1.
    For purposes of this proposed rule, a U.S. national or dual 
national who presents as a citizen of another country will be processed 
as a foreign national and their photo will be retained accordingly, 
unless they are able to present evidence of U.S. citizenship or 
nationality.\71\
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    \71\ A person claiming U.S. citizenship must establish that fact 
to the examining officer's satisfaction and must present a U.S. 
passport or alternative documentation as required by 22 CFR part 53. 
If such person fails to satisfy the examining immigration officer 
that they are a U.S. citizen, the person shall thereafter be 
inspected as an alien applicant for admission. 8 CFR 235.1(b).
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    Under immigration law, lawful permanent residents (LPRs) are aliens 
authorized to live permanently within the United States.\72\ As such, 
for purposes of this proposed rule, LPRs will be processed as aliens.
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    \72\ Under the INA, the term alien means any person who is not a 
citizen or national of the United States. 8 CFR 215.1(a). Therefore, 
a lawful permanent resident is an alien under the INA.
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9. Business Requirements for Public-Private Partnerships
    The business requirements implemented by CBP with its partners 
govern the retention and use of the facial images collected using CBP's 
facial recognition technology. CBP prohibits its approved partners such 
as airlines, airport authorities, or cruise lines and participating 
organizations (e.g., vendors, systems integrators, or other third 
parties) from retaining the photos they collect under this process for 
their own business purposes. The partners must immediately purge the 
images following transmittal to CBP, and the partner must allow CBP to 
audit compliance with this requirement. As discussed in the November 
2018 PIA, CBP has developed Business Requirements to document this 
commitment. In order to use TVS, private sector partners must agree to 
these Business Requirements. After this rule is implemented, the 
Business Requirements document will be updated and available for 
viewing on cbp.gov.

IV. Proposed Regulatory Changes

A. General Biometric Exit Requirement for Aliens

    To advance the legal framework for the full implementation of a 
biometric exit capability as described above, DHS is proposing to amend 
the regulations in 8 CFR that set forth the requirements for providing 
biometrics upon entry and departure. Currently, 8 CFR 215.8(a)(1) 
authorizes DHS to collect biometric exit information from certain 
aliens on departure from the United States pursuant to pilot programs 
at air, land, or sea ports of entry and places a limit of 15 air or sea 
ports of entry at which such biometric exit pilots may be established. 
The reference to pilot programs and the 15 air or sea port limitation 
hinders DHS's ability to expand and fully implement a comprehensive 
biometric exit solution. Therefore, DHS is proposing to amend Sec.  
215.8 by removing the reference to pilot programs and the 15 air or sea 
port limit.

B. Collection of Photographs From Aliens Upon Entry and Departure

    As discussed in Section III.D.1, DHS regulations implementing the 
legacy US-VISIT program provide that certain categories of aliens are 
exempt from the collection of biometrics upon arrival to, and departure 
from, the United States. See 8 CFR 235.1(f); 8 CFR 215.8(a)(1)-(2). 
These exemptions are not statutorily based. As discussed in Section 
III.A, DHS has broad statutory authority to control alien travel, 
inspect aliens and require biometrics from aliens upon arrival in, or 
departure from, the United States.
    To implement a biometric entry-exit system based on facial 
recognition, DHS is proposing to amend the regulations to provide that 
all aliens may be required to be photographed upon departure from the 
United States. The exemptions of certain aliens from the collection of 
biometrics in Sec.  215.8(a)(1)-(2) will no longer pertain to the 
collection of photographs from aliens upon departure. Specifically, DHS 
is proposing to amend Sec.  215.8 to add new paragraph (a)(1), which 
provides that an alien may be required to be photographed when 
departing the United States to determine identity. The collection of 
photographs from an alien upon departure will assist DHS in determining 
the alien's identity and whether immigration status in the United 
States has been properly maintained.
    In addition, DHS is proposing to amend Sec.  235.1(f) to add new 
paragraph (1)(ii), which provides that an alien seeking admission may 
be required to be photographed to determine the alien's identity, 
admissibility, and whether immigration status in the United States has 
been properly maintained. As for the collection of photographs upon 
departure, the exemptions in Sec.  235.1(f)(1)(ii) will no longer 
pertain to the collection of photographs from aliens seeking admission.

[[Page 74179]]

    DHS is not proposing to change the existing exemptions in 
Sec. Sec.  215.8 and 235.1(f) \73\ for the collection of biometrics 
other than photographs (e.g., fingerprints and other biometrics) from 
aliens upon entry to and departure from the United States. This is set 
forth in 8 CFR 215.8(a)(2)-(3) and 235.1(f)(1)(iii) and (vi) as amended 
in this document; see also Section IV.C.1 of this document. 
Notwithstanding these exemptions, DHS is authorized to collect 
biometrics from aliens, regardless of age, citizenship, or visa status, 
for law enforcement purposes or in other contexts not addressed by 
these regulations, such as from aliens attempting to enter the United 
States illegally between U.S. ports of entry. See Section III.A. As 
such, CBP may, on a case-by-case basis, collect biometrics other than 
photographs from aliens outside of the age limits or visa category 
exceptions.
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    \73\ The following categories of aliens currently are exempt 
from the requirements under 8 CFR 215.8 and 235.1 to provide 
biometrics upon arrival to, and departure from, the United States at 
a U.S. port of entry: Canadian citizens under Section 101(a)(15)(B) 
of the Act who are not otherwise required to present a visa or be 
issued a form I-94 or Form I-95; aliens younger than 14 or older 
than 79 on the data of admission; aliens admitted A-1, A-2, C-3 
(except for attendants, servants, or personal employees of 
accredited officials), G-1, G-2, G-3, G-4, NATO-1, NATO-2, NATO-3, 
NATO-4, NATO-5, or NATO-6 visas, and certain Taiwan officials who 
hold E-1 visas and members of their immediate families who hold E-1 
visas unless the Secretary of State and the Secretary of Homeland 
Security jointly determine that a class of such aliens should be 
subject to the requirements of paragraph (d)(1)(ii); classes of 
aliens to whom the Secretary of Homeland Security and the Secretary 
of State jointly determine it shall not apply; or an individual 
alien to whom the Secretary of Homeland Security, the Secretary of 
State, or the Director of Central Intelligence determines it shall 
not apply.
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C. Collection of Biometrics When Departing the United States and Other 
Minor Conforming and Editorial Changes

    DHS is proposing to amend Sec.  215.8(a) to specify that biometrics 
may be required ``when departing the United States.'' The current 
provision refers to ``upon departure from a U.S. port of entry.'' This 
amendment is necessary to allow for the collection of biometrics from 
individuals upon departure at locations other than at a U.S. port of 
entry.\74\ Although the majority of travelers depart the country from a 
designated U.S. port of entry, a few travelers depart the country from 
locations that are not designated as ports of entry, such as Ronald 
Reagan Washington National Airport or John Wayne Airport, 
California.\75\ To ensure the implementation of a biometric entry-exit 
system that tracks all individuals departing the country, DHS may 
require aliens to provide biometrics upon departure at U.S. ports of 
entry or when departing the United States at any other location.
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    \74\ A port of entry is any location in the United States or its 
territories that is designated as a point of entry for aliens and 
U.S. citizens. See 8 CFR 235.1(a) (providing that application to 
lawfully enter the United States shall be made in person to an 
immigration officer at a U.S. port of entry); see also 8 CFR 
100.4(a) (designating ports of entry for aliens arriving by vessel 
or by land transportation) and 100.4(b) (designating ports of entry 
for aliens arriving by aircraft).
    \75\ These airports are not ports of entry pursuant to 8 CFR 
100.4(b) and do not have federal inspection processes or facilities, 
but still have a few flights that depart to international locations, 
mostly those that have CBP preclearance facilities (typically in 
Canada or the Caribbean). This proposed change would account for 
these departures from the United States.
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    In addition, DHS is proposing to make certain minor conforming and 
editorial changes in Sec. Sec.  215.8 and 235.1(f). In Sec.  215.8, DHS 
is proposing to redesignate paragraph (a)(2) as paragraph (a)(3), 
revise cross-references and add paragraph headings as necessary. In 
Sec.  235.1(f), DHS is proposing to redesignate paragraph (f)(1)(ii) as 
paragraph (f)(1)(iii), paragraphs (f)(1)(iii) and (iv) as paragraphs 
(f)(1)(v) and (vi), add new paragraphs (f)(1)(ii) and (iv), and revise 
cross-references and add paragraph headings as necessary. In Sec. Sec.  
215.8 and 235.1(f), DHS is proposing to remove the phrase ``[t]he 
Secretary of Homeland Security or his or her designee'' and add in its 
place ``DHS'' and remove the phrase ``biometric identifiers'' and add 
in its place ``biometrics.''
    Finally, DHS is proposing to amend Sec. Sec.  215.8(a) and 235.1(f) 
to remove the specific references to fingerprints and photographs. 
Currently, these sections provide that any alien may be required ``to 
provide fingerprints, photograph(s) or other specified biometric 
identifiers'' upon arrival into or departure from the United States. 
Because this rule adds a separate sub-paragraph relating to the 
provision of photographs, the word ``photograph(s)'' in this provision 
is no longer appropriate. Furthermore, to allow the flexibility for DHS 
to employ different methods of biometric collection in the future, DHS 
is proposing to amend Sec. Sec.  215.8(a) and 235.1(f) to provide 
instead that any alien, other than those exempt by regulation, may be 
required ``to provide other biometrics'' upon arrival into and 
departure from the United States. CBP has tested iris technology, for 
example, but biometric technology continues to advance and there may be 
other biometric options that may have potential for implementation in 
the future.

V. Withdrawal of 2008 Air Exit Notice of Proposed Rulemaking

    On April 24, 2008, DHS published a notice of proposed rulemaking 
(NPRM) in the Federal Register (73 FR 22065) proposing a biometric exit 
program at air and sea ports that would require commercial air and 
vessel carriers to collect biometric data from aliens and submit this 
information to DHS within a certain timeframe. The proposed rule set 
out certain technical requirements and a substantive performance 
standard for the transmission of biometric data, but provided the 
carriers with some discretion in the manner of collection and 
submission of biometric data, including latitude in determining the 
location of the biometric data collection within the port of entry. DHS 
received 118 comments from the public in response to the NPRM. Most of 
the comments opposed the adoption of the proposed rule due to issues of 
cost and feasibility.
    In consideration of the regulatory changes being made in this rule, 
the comments received, the results of the biometric exit pilots 
conducted in 2009,\76\ and DHS's new approach to implementing a 
biometric entry-exit system, DHS has decided that the 2008 NPRM should 
be withdrawn. The withdrawal notice is being published concurrently 
with the publication of this proposed rule.
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    \76\ See Section III.D.2.
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VI. Statutory and Regulatory Requirements

A. Executive Orders 12866 and 13563

    Executive Orders 13563 (``Improving Regulation and Regulatory 
Review'') and 12866 (``Regulatory Planning and Review'') direct 
agencies to assess the costs and benefits of available regulatory 
alternatives and, if regulation is necessary, to select regulatory 
approaches that maximize net benefits (including potential economic, 
environmental, public health and safety effects, distributive impacts, 
and equity). Executive Order 13563 emphasizes the importance of 
quantifying both costs and benefits, of reducing costs, of harmonizing 
rules, and of promoting flexibility.
    This rule is an ``economically significant regulatory action,'' 
under section 3(f) of Executive Order 12866. Accordingly, the Office of 
Management and Budget (OMB) has reviewed this regulation.

[[Page 74180]]

1. Need and Purpose of the Rule
    DHS is statutorily mandated to develop and implement an integrated, 
automated entry and exit data system to match records, including 
biographic data and biometrics, of aliens entering and departing the 
United States. DHS is also required by Executive Order to expedite the 
completion and implementation of a biometric entry-exit tracking 
system. Since 2004, DHS, through CBP, has been collecting biometric 
data from aliens arriving in the United States, but currently there is 
no comprehensive biometric system in place to track when the aliens 
depart the country.
    Since taking over entry and exit operations in 2013, CBP has been 
testing various options to collect biometrics at arrival and departure. 
The results of these tests and the recent advancement of facial 
recognition technology have provided CBP with a model for moving 
forward with implementing a comprehensive biometric exit solution. In 
the initial stage of implementation, CBP has expanded its biometric 
exit capability to a limited number of airports. These deployments are 
allowing CBP to fine-tune the process before implementing it on a 
nationwide basis. However, CBP is limited by regulation to collecting 
biometrics from aliens upon departure from air and seaports under pilot 
programs to 15 locations (no limits apply in the land border context). 
This rule will remove the reference to pilot programs and the port 
limit and establish that all aliens may be required to be photographed 
upon entry and/or exit.
    Upon exit, U.S. citizens are currently typically processed 
similarly to aliens (i.e., without the collection of photographs) and 
may generally continue to be inspected in the same way under this rule, 
even in situations where CBP has instituted a biometric exit program. 
Where CBP has instituted photograph collection at exit, U.S. citizens 
may be photographed voluntarily or request the existing alternative 
process. This rule will not change the option U.S. citizens have not to 
have their pictures taken and instead, to request alternative 
processing.
    Currently, certain aliens are not subject to photograph collection. 
For example, aliens who are under the age of 14 or over the age of 79 
are not required to be photographed at entry or exit. By providing that 
all aliens may be required to be photographed at entry and/or exit, CBP 
will be able to further expand the photograph collection program to 
allow for a more complete evaluation as it moves toward nationwide 
expansion.
    Collecting photographs will allow CBP to know with better accuracy 
whether aliens are departing the country when they are required to 
depart, reduce visa or travel document fraud, and improve CBP's ability 
to identify criminals and known or suspected terrorists before they 
depart the United States. It will also allow for a substantial time 
savings for travelers.
2. Background, Baseline, and Affected Population
    Under DHS regulations, upon arrival into the United States, 
travelers are required to present themselves to CBP for inspection 
under the immigration laws. See 8 CFR 235.1. Under the current air 
inspection process, CBP obtains information directly from the traveler 
via his or her travel documents (e.g., passport) and/or verbal 
communications between a CBP officer and the traveler. As a part of 
this process, a CBP officer typically takes a physical passport from 
the traveler and electronically ``reads'' the passport using its MRZ to 
pull up the traveler's biographic data for inspection. In addition, for 
aliens (except for those exempt from biometric collection under 8 CFR 
235.1), CBP collects fingerprints from the traveler to biometrically 
verify his or her identity by comparing the fingerprints with those 
previously collected as a part of a visa application, immigration 
benefits application, or earlier inspection process with CBP.\77\ Once 
the identity of the traveler is validated in this manner, the CBP 
officer conducts an interview with the traveler to establish the 
purpose and intent of travel, and to determine admissibility.
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    \77\ See section III.B.2 for more information on the current 
process.
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    The Aviation and Transportation Security Act of 2001 and the 
Enhanced Border Security and Visa Entry Reform Act of 2002 together 
mandated the collection of certain biographical manifest information on 
all passengers and crew members who arrive in or depart from (and, in 
the case of crew members, overfly) the United States on a commercial 
air or sea carrier. This collection is done through APIS. As APIS 
requirements apply equally to travelers departing the United States, 
CBP electronically records a traveler's departure by commercial air or 
sea using the biographic manifest information provided by the carrier. 
Unlike at entry, however, CBP does not routinely inspect travelers 
departing the United States to confirm that the APIS departure data is 
accurate or that the traveler is the true bearer of his or her travel 
document.
    Currently, those departing the United States via the air 
environment must present their boarding pass and identification when 
being screened by TSA. Before boarding, travelers must also present 
their boarding passes to the carrier at the gate, who visually reviews 
the travel documents and validates the boarding pass with the carrier's 
ticketing system. However, once in the sterile area of the terminal, 
although travelers may be subject to random identification checks, 
travelers generally do not have their photo identification scrutinized 
again before boarding the aircraft.
    CBP uses APIS information along with other law enforcement 
information and technology to determine whether CBP needs to further 
inspect outbound travelers. CBP's outbound operations enable it to 
enforce U.S. laws applicable upon departure from the United States and 
effectively monitor and control the outbound flow of goods and people.
    In the land environment, CBP does not receive advance APIS data. 
Persons departing the United States at the land border are also not 
consistently subject to CBP inspection, as they are upon arrival. As a 
result, land departures may not be recorded accurately. For the 
purposes of this analysis, the process described above is the 
baseline.\78\ This analysis assesses the incremental change from the 
baseline. CBP has operated various pilot programs over the years that 
deviate from the baseline and have guided CBP in its development of the 
air exit process under this rule. Tests continue at land and sea and at 
air entry. The costs and benefits of these pilots are sunk for the 
purposes of deciding whether to proceed with the regulatory program, 
but they are important for understanding the full costs and benefits of 
CBP's facial recognition program as a whole. As such, we analyze the 
effects of the facial recognition program over two time periods. First, 
we study the pilot period from 2017 to 2019. Then we study the 
regulatory period from 2020 to 2024.
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    \78\ For a more detailed explanation of the baseline, see 
section III.B, titled ``Current Entry Exit Process,'' earlier in the 
preamble of this document.
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    CBP collects biometric data from most aliens entering the United 
States by air and sea at entry but does not generally collect biometric 
data at departure from aliens in any outbound environment, nor does it 
generally collect biometric data from U.S. citizens on a systematic 
basis upon entry or departure from the

[[Page 74181]]

United States.\79\ DHS, through CBP, has been developing and testing 
additional biometric entry and exit capabilities since 2004.
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    \79\ CBP does collect biometric data from U.S. citizens in 
certain circumstances on a voluntary basis, such as under entry-exit 
pilot programs described herein, under CBP's trusted traveler 
programs, and may be compelled on a case-by-case basis for law 
enforcement purposes. For the Automated Passport Control (APC) 
kiosks, which are free, voluntary, and do not require a membership, 
the APC kiosks collect facial images from all travelers and 
fingerprints from VWP, U.S. visa, and non-Canadian LPR travelers. 
The kiosk captures a photo and then prints out a receipt with the 
traveler's face and biographic information. This process allows CBP 
Officers to make manual one-to-one comparisons of the newly-captured 
facial images with the travelers themselves. APC kiosk systems may 
not retain PII, including biographic and biometric data. APC 
Services retains PII via log records for no longer than 30 days. For 
Mobile Passport Control, although the traveler profile includes a 
facial photo, there is no option for the user to submit the profile 
itself, including the photo, to CBP. The traveler only submits the 
MPC ``trip'' which includes the traveler's biographic information, 
inspection question responses, and class of admission, if 
applicable.
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    What follows is a brief summary of the pilot programs and the 
current biometric entry-exit requirements for those affected by this 
rule. For a full history, see Section III.D above, titled ``Biometric 
Entry-Exit Program History.''
    Since 2004, DHS and CBP have run a variety of pilot programs to 
test various biometric entry and exit capabilities. Tests have been 
conducted using a variety of technologies in different environments 
ranging from handheld devices for capturing fingerprints at airports 
upon entry to kiosks for pedestrians at land ports. CBP has most 
recently been testing facial recognition technology and has concluded 
that this is the preferred method of widespread biometric collection. 
It allows CBP to collect biometric data quickly and unobtrusively and 
the data can be easily compared with previously collected data to match 
the traveler with previous entries and with her/his passport or visa 
photograph. CBP already takes photographs of most aliens at entry 
during the routine inspection process and maintains them in a database. 
For aliens who have traveled to the United States previously, CBP's 
database includes a photograph from each entry. For aliens with visas, 
CBP's database also includes the photographs taken during the visa 
application process. Facial recognition technology compares a new 
photograph of an individual with previously captured photographs to 
ensure that the individual is who he or she claims to be.
    In June 2016, CBP deployed a facial recognition pilot at the 
Hartsfield-Jackson Atlanta International Airport. This pilot was the 
first time a process similar to the one used under this rule was tested 
at exit. Based on the early success of the pilot in Atlanta, CBP 
expanded the use of facial recognition technology to additional 
airports. For the purposes of this analysis, the process at the eight 
airports shall be referred to as the initial pilot.\80\ The facial 
recognition technology is now operating as TVS. Using the initial 
pilot, CBP is capturing photographs from all participating travelers on 
selected daily outbound flights at a number of international airports. 
Before boarding, travelers typically line up so an airline employee can 
scan their boarding passes. CBP has added a station along this line 
where CBP officers scan travelers' boarding passes and take their 
photographs. The photograph is compared with the photograph(s) in CBP's 
database to ensure there is a match. Under the initial pilot, an 
airline employee still scans the boarding pass after the facial 
recognition process is complete. According to a time in motion study of 
the biometric identity verification process, this process took 9 
seconds of each traveler's time.\81\ Overall boarding time is 
unaffected because the facial scans are done while the traveler is 
already in line waiting to board. Note that this is an estimate for the 
added time for the initial pilot and it does not apply to the end state 
solution under this rule because in the end state there will not be a 
boarding pass scan in addition to the facial recognition.
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    \80\ The eight airports include: Washington Dulles International 
Airport, Atlanta Hartsfield-Jackson International Airport, Houston 
George Bush Intercontinental Airport, Chicago O'Hare International 
Airport, Las Vegas McCarran International Airport, Houston William 
P. Hobby Airport, John F. Kennedy International Airport, and Miami 
International Airport.
    \81\ The time in motion study captured the ``stop and look'' 
scenario for currently ``in-scope'' travelers, which encompasses the 
reading a boarding pass, face capture and matching. If a traveler 
does not match, or matches erroneously, then a manual review, as 
occurs today, would be conducted; therefore, manual reviews are not 
included in the 9 seconds. Source: Communication with the Office of 
Field Operations on May 2, 2017.
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    While this initial pilot model has been useful for testing the 
facial recognition software and process, it is not feasible for 
nationwide deployment because CBP does not have the staffing for such 
an expansion. Airlines have recognized the potential for facial 
recognition to speed up the process for airlines and travelers and have 
partnered with CBP to test the software in different locations and with 
alterations to the model. For example, British Airways began testing a 
new model at Los Angeles International Airport in November 2017, and is 
currently testing or planning to expand this at additional airports, 
including the Orlando International Airport. Under this model, airline 
employees operate the facial recognition gates rather than CBP. Once 
the match is made, there is no additional step of scanning the boarding 
pass or checking the traveler's identification. If there is not a 
match, the document is examined by an airline representative, and a CBP 
officer may also be notified to examine the document. British Airways 
has found that this process allows for boarding of its largest aircraft 
in 22 minutes, less than half the time under the usual process.\82\
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    \82\ Source: http://mediacentre.britishairways.com/pressrelease/details/86/2018-247/9247?ref=News. Accessed October 26, 2020.
---------------------------------------------------------------------------

    Orlando International Airport has announced that it will soon begin 
building infrastructure to collect photographs of all arriving and 
exiting aliens.\83\ The exit model will be similar to the British 
Airways pilot in that the exit process will be conducted by the 
airlines. Participating airlines may eventually choose to eliminate 
boarding passes entirely and may also use facial recognition to speed 
up other processes. TVS will also be tested at entry and is already 
being tested in certain other locations. CBP and airlines expect the 
implementation at entry to save considerable time. The existing version 
of 19 CFR 235.1 already specifically authorizes CBP to require 
photographs of most aliens at entry. This rule will expand the 
requirement to all aliens. This would simplify the testing at entry 
because no aliens would be eligible to opt out of the facial 
recognition process. Currently, this process is optional for all exempt 
travelers.
---------------------------------------------------------------------------

    \83\ See https://www.cbp.gov/newsroom/national-media-release/cbp-advances-biometric-exit-mission-orlando-international-airport.
---------------------------------------------------------------------------

    The rule will advance the legal framework to implement a biometric 
exit requirement using facial recognition technology on a nationwide 
basis. CBP lacks the resources to implement this program nationwide and 
will continue to work with airlines and airports to establish 
partnerships before doing so. Due to airline and airport interest, CBP 
expects to implement the program nationwide within five years.
    While this analysis is primarily focused on the impacts of this 
rule once it is in effect, CBP has been using similar facial 
recognition in its pilot programs for several years, which have both 
costs and benefits to CBP and the public. To give the reader a full 
view of the effects of CBP's facial recognition program through the 
entire time it has been used, CBP analyzes the impact of

[[Page 74182]]

the biometrics process over two time periods. First, we analyze the 
impacts in the initial facial recognition pilot period (2017-2019). 
This includes the systems and hardware development by CBP, the initial 
testing, and the photographic collection process operated by CBP at the 
initial pilot locations. Because the pilots have started at different 
times and new pilot locations are still being set up, we present the 
unit costs for the pilot time period in addition to the total cost of 
the initial pilot. The unit costs illustrate the effects of new pilots 
as they are added. Second, we analyze the impacts of facial recognition 
in the regulatory period beginning in 2019 when CBP moves to nationwide 
deployment. CBP expects deployment at all airports within five years, 
so we use the period of analysis of 2020-2024. For the regulatory time 
period, CBP estimates, to the extent data is available, the total 
projected costs, and cost savings, and benefits that result from the 
gradual nationwide expansion of the collection of photographs at exit 
and entry.
    To estimate the number of U.S. citizens and aliens that could be 
affected by this rule, we use historical arrival and departure data 
from internal CBP databases and the international travel forecast 
produced by the Department of Commerce's Office of Travel and Tourism 
Industries (OTTI).\84\ Table 1 shows the OTTI growth forecast from 
2017-2024. We note that this is a forecast of inbound travel, not 
outbound. Quality forecasts of outbound air travel are not available, 
so we use inbound air travel as a proxy. Because most international 
travel is done on a round-trip basis, we believe that inbound air 
travel growth is a good proxy for outbound air travel growth. To the 
extent that inbound and outbound travel grow at different rates, the 
effects of this analysis could be overstated or understated.
---------------------------------------------------------------------------

    \84\ Source: U.S. Department of Commerce, International Trade 
Administration, Industry & Analysis, National Travel and Tourism 
Office; Statistics Canada; INEGI, Forecast of International 
Travelers to the United States by Top Origin Countries, October 
2018. Available as a supporting document in the docket of this 
rulemaking.
    The OTTI October 2018 forecast is only through 2023. For the 
purposes of this analysis, we use the 2023 growth rate for 2024.

        Table 1--OTTI International Travel Forecast Growth Rates
------------------------------------------------------------------------
                                                            Growth rate
                          Year                                  (%)
------------------------------------------------------------------------
2017....................................................             0.7
2018....................................................            55.7
2019....................................................             3.2
2020....................................................            22.7
2021....................................................             3.3
2022....................................................             3.6
2023....................................................             3.7
2024....................................................             3.7
------------------------------------------------------------------------

    Tables 2 shows the actual 2017 and projected 2018-2024 outbound air 
traveler volumes from the United States. Table 3 shows the projected 
inbound air traveler volumes for the same years.

                                Table 2--2017-2024 Projected Outbound Air Travel
----------------------------------------------------------------------------------------------------------------
                              Year                                 U.S. citizens      Aliens           Total
----------------------------------------------------------------------------------------------------------------
2017............................................................      50,375,295      64,784,389     115,159,684
2018............................................................      53,246,687      68,477,099     121,723,786
2019............................................................      54,950,581      70,668,366     125,618,947
2020............................................................      56,434,247      72,576,412     129,010,659
2021............................................................      58,296,577      74,971,434     133,268,011
2022............................................................      60,395,254      77,670,406     138,065,660
2023............................................................      62,629,878      80,544,211     143,174,089
2024............................................................      64,947,183      83,524,347     148,471,530
----------------------------------------------------------------------------------------------------------------


                                 Table 3--2017-2024 Projected Inbound Air Travel
----------------------------------------------------------------------------------------------------------------
                              Year                                 U.S. citizens      Aliens           Total
----------------------------------------------------------------------------------------------------------------
2017............................................................      47,493,852      58,312,091     105,805,943
2018............................................................      50,201,002      61,635,880     111,836,882
2019............................................................      51,807,434      63,608,228     115,415,662
2020............................................................      53,206,235      65,325,650     118,531,885
2021............................................................      54,962,041      67,481,396     122,443,437
2022............................................................      56,940,674      69,910,726     126,851,400
2023............................................................      59,047,479      72,497,423     131,544,902
2024............................................................      61,232,236      75,179,828     136,412,064
----------------------------------------------------------------------------------------------------------------

    This rule removes the existing limitation on biometric exit pilot 
programs at airports and seaports and establishes that all aliens may 
be required to be photographed upon departure. The practical effect of 
this change at air exit is that CBP will be able to continue expanding 
its biometric exit capability to additional locations, aliens will be 
subject to the collection of photographs at these locations, and U.S. 
citizens who voluntarily participate in CBP's biometric verification 
program will also have their photographs taken. The pace of the 
expansion will depend on how quickly CBP is able to enter into 
partnerships with airlines and airports. Given the level of interest in 
such partnerships so far, CBP expects that the program will expand 
steadily over the next five years until it has been implemented for 
most outbound commercial passenger air traffic. We therefore assume 
that 20 percent of travelers will be affected in 2020, 40 percent in 
2021, 60 percent in 2022, 80 percent in 2023, and 97 percent in 2024 
and beyond.\85\ Table 4 shows the estimated number of aliens and U.S. 
travelers on outbound flights with the biometric process in each year.
---------------------------------------------------------------------------

    \85\ 97 percent corresponds to the portion of the international 
traveler volume that takes place at the 20 busiest airports.

[[Page 74183]]



                 Table 4--2020-2024 Projected Outbound Air Travelers on Flights With Biometrics
----------------------------------------------------------------------------------------------------------------
                              Year                                 U.S. citizens      Aliens           Total
----------------------------------------------------------------------------------------------------------------
2020............................................................      11,286,849      14,515,282      25,802,132
2021............................................................      23,318,631      29,988,574      53,307,204
2022............................................................      36,237,152      46,602,244      82,839,396
2023............................................................      50,103,902      64,435,369     114,539,271
2024............................................................      62,998,768      81,018,617     144,017,384
----------------------------------------------------------------------------------------------------------------

    After implementation of this rule, as is currently the case under 
CBP's biometric exit pilot programs, participation by U.S. citizens 
will be voluntary. As is the case in the air pilots, U.S. citizens may 
request an alternative inspection process rather than being 
photographed. The alternative process is no different than what happens 
absent this is rule--an airline employee verifies the traveler's 
passport information and will contact CBP if they are concerned with 
the validity of the passport or the identity of the passport holder. 
Based on recent experiences under various pilots, and because the 
biometric process is expected to save time, CBP does not expect many to 
request the alternative process. Biometrics are captured with minimal 
inconvenience for the traveler and under the biometric exit pilot 
programs it has been extremely rare for travelers to decline to be 
photographed. We estimate the opt-out rate through reference to the 
Transportation Security Agency (TSA)'s biometrics pilot. TSA has 
recently begun testing facial recognition at some locations, comparing 
the photographs of travelers to CBP's gallery. During the test, TSA has 
made clear through signage that it was optional and the TSA agent asked 
travelers whether they wanted to opt out. TSA tracked the number of opt 
outs over two days in the summer of 2019 and found an opt-out rate of 
0.18 percent across more than 13,000 travelers. We adopt this rate as 
our estimate for U.S. citizens who will opt out of biometric collection 
under this rule. We request comment on this assumption. CBP will 
continue to gather available data, to the extent possible on the opt-
out rates as it continues its pilots until this rule is finalized and 
will update this assumption for the final rule. Table 5 shows the 
projected number of U.S. citizens who will be subject to photographs, 
excluding the 0.18 percent who we assume would request an alternative 
process.

     Table 5--2020-2024 Projected Outbound U.S. Citizens Subject to
                               Biometrics
------------------------------------------------------------------------
                                                           U.S. citizen
                          Year                               travelers
------------------------------------------------------------------------
2020....................................................      11,266,533
2021....................................................      23,276,657
2022....................................................      36,171,926
2023....................................................      50,013,715
2024....................................................      62,885,370
------------------------------------------------------------------------

3. Costs
    We next analyze the costs of the biometrics process both for the 
pilot period and the nationwide deployment period. Because the various 
pilots have started at different times and new pilot locations are 
still being set up we focus on the unit costs for the pilot time 
period. For the regulatory time period, CBP estimates, to the extent 
data is available, the total projected costs and cost savings that 
result from the gradual nationwide expansion of the collection of 
photographs at exit and entry.
Pilot Period
    As discussed above, CBP conducted a time in motion study during the 
initial biometric exit pilot. This study estimated that the biometric 
identity verification process added 9 seconds to a traveler's departure 
time.\86\ We monetize the travelers' time burden using the Department 
of Transportation's recommended hourly wage rates for all-purpose air 
travel, $47.10.\87\ The opportunity cost per traveler is approximately 
$0.12. Approximately 1,134,000 travelers traveled on flights that were 
part of the pilot programs in 2017.\88\ Therefore, the approximate 
opportunity cost for these travelers in 2017 was $136,080. Similar 
numbers are expected for 2018 and 2019.\89\
---------------------------------------------------------------------------

    \86\ During the initial pilots, the biometric verification 
process was done separately from the airline scan of the travelers' 
boarding passes. In some pilots, and in the regulatory period, 
biometric identification will be fully integrated into the boarding 
process, which will save the travelers time. See the benefits 
section for a discussion of the time savings in the regulatory 
period.
    \87\ Source: U.S. Department of Transportation, Office of 
Transportation Policy. The Value of Travel Time Savings: 
Departmental Guidance for Conducting Economic Evaluations Revision 2 
(2016 Update), ``Table 4 (Revision 2--2016 Update): Recommended 
Hourly Values of Travel Time Savings for Intercity, All-Purpose 
Travel by Air and High-Speed Rail.'' September 27, 2016. Available 
at https://www.transportation.gov/sites/dot.gov/files/docs/2016%20Revised%20Value%20of%20Travel%20Time%20Guidance.pdf. Accessed 
October 26, 2020.
    \88\ Source: CBP's Borderstat Database.
    \89\ The first pilot began at a single airport in 2016. Because 
we do not have quality data for 2016 and because a relatively small 
number of flights and travelers were affected by this pilot, we 
begin our quantification of the pilot period in 2017, acknowledging 
that there were some small costs and benefits in 2016 as well.
---------------------------------------------------------------------------

    Participation in the biometric exit pilot programs is voluntary for 
U.S. citizens, who may request an alternative inspection process. As 
discussed earlier, we estimate 0.18 percent of U.S. citizens request an 
alternative process. In the event a U.S. citizen elects not to be 
photographed at airports where CBP is conducting biometric exit 
verification, an airline gate agent will perform a manual review of the 
passport. If there is some question as to the authenticity of the 
passport or whether the person presenting the passport is the owner of 
the passport, the airline will contact CBP for additional inspection, 
which would take longer than the biometric process. However, as this is 
the current procedure without the rule, there is no new opportunity 
cost associated with this requirement.
    CBP has borne the bulk of the costs of the biometric verification 
pilot programs. CBP's costs include the cost to develop the facial 
recognition capabilities, the cost of the hardware for the expansion of 
the biometric exit pilot programs and the annual operation and 
maintenance costs of that hardware, the cost of the required network 
upgrades, and the opportunity cost of the CBP officers who collect the 
biometrics. Table 6 shows the estimated hardware and software costs for 
the expansion of the biometric exit pilot programs. The expansion 
hardware is the cost of the hardware that has been placed during the 
initial pilot. The Biometric Pathway Development Costs are the software 
development costs required to create a service to operate facial 
recognition at airport international departure gates used for the 
biometric exit pilot

[[Page 74184]]

programs and will serve as the foundation for use as the program 
becomes operational on a nationwide basis. This development includes 
creating open interfaces to accommodate multiple biometric collection 
devices, adapting current systems to survey and collect traveler images 
from existing data, transferring data between the point of collection 
and the CBP back-end, processing biometric data, and creating reports 
for awareness and analysis. Facial Recognition Technology Expansion 
Hardware O&M are the annual operations and maintenance costs for the 
hardware at the airports participating in CBP's biometric exit pilot 
programs. Matching Licenses are costs to procure back-end enterprise 
matching licenses for the airports participating in CBP's biometric 
exit pilot programs from the developer. It is anticipated that these 
costs are spread over the first two years of use. After the first two 
years, we estimate no further costs for CBP as airlines will be buying 
their own hardware, which is expected to have a useful life longer than 
the period of analysis.
    During the pilot period, CBP installed the facial recognition 
technology hardware into existing airport gates at CBP's expense. 
Though the hardware does not use a significant amount of electricity, 
airports were concerned that their networks did not have sufficient 
bandwidth to accommodate the matching software. CBP has added 
additional capacity to allow for the needed bandwidth. This is included 
in the Cloud Hosting costs listed in Table 6.
    CBP also bears the opportunity costs of assigning CBP Officers at 
each of the biometric exit pilot program flights. Two CBP Officers are 
assigned to each flight, and it takes an hour for each of them to 
process the travelers on a flight. There were 18 daily flights that 
were part of the initial biometric exit pilot programs (the initial 
pilot period), and staffing that number of flights takes approximately 
13,140 hours of officer time (18 flights per day x 365 days per year x 
2 officers). According to CBP's position model, the average loaded wage 
rate for a CBP Officer is $63.80 per hour.\90\ We therefore estimate 
that it costs approximately $838,000 per year in officer time costs.
---------------------------------------------------------------------------

    \90\ Source: CBP's Office of Finance Position Model.
---------------------------------------------------------------------------

    Table 6 shows CBP's estimated pilot costs for 2017-2019. These 
costs are based on the initial pilot period. The Air Technology 
Development, Air Technology Operations and Maintenance, and Biometric 
Pathway Development and Matching Licenses are fixed costs that will not 
change if the pilot is expanded to other flights. The remaining costs 
are variable and will increase when the pilot is expanded. The total 
variable cost over the three-year period is $44,074,000 or an average 
of $1,358,000 per year. The initial pilot period covered 18 scheduled 
flights per day. Dividing by 18 flights, the annual variable pilot cost 
to CBP is $80,657 per flight.

                       Table 6--CBP Costs (Undiscounted Thousands of 2017 Dollars)--Pilot
----------------------------------------------------------------------------------------------------------------
                          Cost category                                2017            2018            2019
----------------------------------------------------------------------------------------------------------------
Biometric Entry-exit--Air Technology Development................          44,447          58,642          44,286
Biometric Entry-exit--Air Technology Operation & Maintenance....          10,661          19,693          24,066
Facial Recognition Technology Expansion Hardware................             804  ..............  ..............
Biometric Pathway Development--Facial Recognition Technology               8,104  ..............  ..............
 Expansion......................................................
Facial Recognition Technology Expansion Hardware O&M............  ..............             243  ..............
Cloud Hosting--Facial Recognition Technology....................              90              90              90
Matching Licenses...............................................             567             567             567
CBPO Time Cost..................................................             838             838             838
                                                                 -----------------------------------------------
    Total.......................................................          65,512          80,073          70,090
----------------------------------------------------------------------------------------------------------------

    In summary, the biometric exit pilot programs have resulted in 
costs to travelers and CBP. Table 7 shows the total costs during the 
pilot period. The unit cost per additional traveler would be 12 cents 
per departure. Annual costs to CBP per daily-scheduled flight added 
would be approximately $81,000 per flight.

                                         Table 7--Summary of Pilot Costs
                                        [Undiscounted thousands of $2017]
----------------------------------------------------------------------------------------------------------------
                              Year                                     2017            2018            2019
----------------------------------------------------------------------------------------------------------------
Traveler Costs..................................................            $136            $136            $136
CBP Costs.......................................................          65,512          80,073          70,090
                                                                 -----------------------------------------------
    Total Costs.................................................          65,648          80,209          70,226
----------------------------------------------------------------------------------------------------------------

Regulatory Period
    The estimated costs during the regulatory time period (2020-2024) 
are substantially different than those in the pilot period. During the 
regulatory period, CBP will enter into partnerships with carriers and 
airports to streamline the process and eliminate redundancies. Facial 
recognition will be integrated into the boarding process and will 
result in time savings for all parties (see the benefits section below 
for more information), rather than a cost. As occurs today, CBP will 
continue to be available to adjudicate any issues.
    The hardware cost in the regulatory period will be borne by the 
carriers and airports who partner with CBP.\91\ CBP will give carriers 
and airports access to its facial recognition system and the carriers 
and airports will choose (and pay for) the hardware that best fits 
their needs. While this partnership is

[[Page 74185]]

voluntary, CBP expects that all commercial carriers and major airports 
will elect to participate within five years. As discussed above, we 
assume that the biometric exit process will be expanded by 20 percent 
each year. In total, there are approximately 2,500 departure gates that 
will need facial recognition hardware installed, so we assume that 
carriers and airports will install the hardware at 500 departure gates 
each year.\92\ The cost of the hardware will vary by carrier and 
airport and may depend on how they intend to use the hardware. For 
example, if they intend to use it only at the exit gate, costs will be 
lower than if they also choose to use it for their own purposes, such 
as simplifying the baggage drop and claim process or for access into 
elite traveler lounge areas. CBP believes costs will range from $5,000 
to $20,000 per departure gate, based on its experience procuring 
equipment during the pilot period. We use $20,000 as the primary 
estimate for the analysis as carriers and airports have expressed 
interest in using facial recognition for other purposes and are likely 
to purchase higher end cameras that will give them flexibility. It is 
also possible that costs will go down substantially over time as 
carriers and airports develop better and cheaper hardware. For example, 
the Washington Metropolitan Airports Authority has begun using modified 
iPads for its new facial recognition pilot.\93\ If this hardware is 
successful and is adopted more broadly, the cost to carriers and 
airports would drop substantially. We request comment on these 
estimates. Carrier and airport hardware estimated costs for the 
regulatory period are reported in Table 8.
---------------------------------------------------------------------------

    \91\ Costs to carriers and airports are limited to hardware 
costs. During the pilot period, carriers and airports have not 
needed additional staff, nor has there been a need for additional 
training as the system is intended to be integrated with the airline 
or airport departure control system.
    \92\ Source: Subject matter expert estimate. Communication with 
the Office of Field Operations on June 26, 2018.
    \93\ Source: https://www.washingtonpost.com/transportation/2018/09/06/officials-unveil-new-facial-recognition-system-dulles-international-airport/?noredirect=on&utm_term=.ae3fdefbd1a6. 
Accessed October 26, 2020.

                              Table 8--2020-2024 Carrier and Airport Hardware Costs
                                        [Undiscounted thousands of $2017]
----------------------------------------------------------------------------------------------------------------
                              Year                                     Gates         Cost--low      Cost--high
----------------------------------------------------------------------------------------------------------------
2020............................................................             500           2,500          10,000
2021............................................................             500           2,500          10,000
2022............................................................             500           2,500          10,000
2023............................................................             500           2,500          10,000
2024............................................................             500           2,500          10,000
----------------------------------------------------------------------------------------------------------------

    Much of the costs to develop the facial recognition technology was 
incurred by CBP during the pilot period, but CBP will continue to incur 
some additional technology costs as facial recognition is expanded 
nationwide. In the first two years of the regulatory period, CBP 
expects to incur costs for final development and deployment of the 
technology. Throughout the period of analysis, CBP will also incur 
operations and maintenance costs. CBP's costs in the regulatory period 
are summarized in Table 9 below.\94\
---------------------------------------------------------------------------

    \94\ Source: CBP Biometric Entry-Exit Life Cycle Cost Estimate. 
September 20, 2017.

                                     Table 9--2020-2024 CBP Technology Costs
                                        [Undiscounted thousands of $2017]
----------------------------------------------------------------------------------------------------------------
                              Year                                  Development         O&M            Total
----------------------------------------------------------------------------------------------------------------
2020............................................................          43,449          21,802          65,251
2021............................................................               0          39,585          39,585
2022............................................................               0          31,605          31,605
2023............................................................               0          32,383          32,383
2024............................................................               0          33,178          33,178
----------------------------------------------------------------------------------------------------------------

    Most aliens are already subject to a biometric requirement at 
entry, so there will be no change for those already photographed at 
entry. U.S. citizens are not currently required to be photographed at 
entry, and this rule does not change that. CBP continues to explore 
ways to streamline traveler processing upon entry and is developing 
pilot programs, often in coordination with industry partners, to help 
inform its decisions. CBP has been testing facial recognition to 
improve the arrival process. For example, CBP has implemented 
Simplified Arrival for travelers entering the United States at various 
airports. Under this new process, CBP uses facial recognition instead 
of scanning travelers' travel documents. The photograph is taken as the 
traveler approaches the CBP Officer for primary inspection. If there is 
a match, the officer does not need to scan the traveler's documents. If 
there is no match, the officer proceeds with the current process of 
scanning the documents. Simplified Arrival is still in its infancy, but 
early analysis indicates that this could save approximately 15 seconds 
of processing time per traveler on average, an estimate that could 
change once it has been tested further. As travelers' wait times are 
affected by not only their own processing time but also the processing 
time of everyone else ahead of them in line, this could have a very 
significant time savings for travelers. In fact, airlines have 
indicated that they are hopeful that Simplified Arrival will lead to 
even more time savings than the new exit procedure. At this time, there 
is not enough information to adequately evaluate the possible savings 
that results from Simplified Arrival.
    Although CBP plans to eventually revamp the admission process to 
speed the inspection of arriving travelers and will likely use 
photographs in this process, this process would only be implemented if 
it results in a net time savings for travelers. In addition, U.S. 
citizens would generally have the option not to be photographed (though 
they would then not get the benefits of

[[Page 74186]]

the shorter inspection process). Therefore, this rule imposes no cost 
on most aliens or U.S. citizens at entry. To the extent that CBP is 
able to extend its facial recognition capabilities to improve the entry 
process, it would result in time savings for all travelers and CBP. CBP 
will conduct a study of the effect of Simplified Arrival on wait times 
and will include the results in the analysis for the final rule.
    This rule provides that all aliens may be required to be 
photographed at entry and/or exit. Under the current regulations only 
certain aliens are subject to such requirements. This expansion of the 
biometric entry-exit verification program will enable CBP to require 
all aliens to be photographed at entry and exit. There are no 
additional hardware costs for carriers or airports who photograph 
travelers. As discussed later in the Cost Savings section, the 
regulatory facial recognition exit process will result in opportunity 
cost savings for travelers. The savings to currently exempted aliens is 
included in the total cost savings for travelers in that section.\95\ 
CBP will initially focus primarily on the air environment. In the near 
term, CBP also plans to gradually scale up efforts in the land and sea 
environments to determine the best way to fully implement biometric 
entry-exit in those environments pursuant to this rule. Most aliens are 
already photographed when entering by air. CBP is testing various 
biometric collection options, such as the Simplified Arrival process 
described earlier, that would apply to aliens who are not currently 
subject to photographs. CBP anticipates that such a process, once 
implemented on a nationwide basis, will result in a net time savings 
for travelers. Therefore, that change will impose no new costs on these 
currently exempted aliens.
---------------------------------------------------------------------------

    \95\ Our data on the travelers that are affected by the pilot do 
not separate out the portion of travelers who are out of the scope 
of the pilot. We do not have separate data, for example, on the 
number of travelers who are under the age of 14. Because of this, 
the estimates in our analysis capture the impacts on all travelers, 
including the currently out of scope travelers.
---------------------------------------------------------------------------

    This rule would also allow for the implementation of a biometric 
exit capability at land border ports. CBP already has authority to test 
biometric collection at land borders through pilot programs that are 
not subject to the limits that air and sea pilots have. CBP will 
continue testing biometric collection at land border ports, but a 
nationwide biometric exit solution at the land border in all modes of 
transportation is not feasible at this time and there is no near-term 
plan for such an expansion. As CBP already has the ability to test 
biometric collection at land border ports without a limit on the number 
of locations, this rule has no practical effect in that environment 
except that it would include currently exempt aliens in those tests. 
For any potential future process to be workable in the land environment 
it needs to be done in a way that minimizes the burden on the public 
and the ability to expand the pilots will help inform CBP on how to 
accomplish that. Because there is no near-term plan to expand the 
general requirement for biometrics to land and sea beyond pilots, we 
focus the analysis on the effects of the pilots. This analysis does not 
account for the costs, cost savings, or benefits of some future 
expansion to land and sea beyond pilot programs because it is 
impossible to predict what that expansion would entail.
    The ability to collect photographs from currently exempt aliens 
will enhance CBP's ability to test various exit concepts at the land 
border. For example, CBP is considering testing biometrics of 
pedestrians exiting the United States on a limited basis under various 
scenarios. CBP has not yet determined this process, but it would likely 
involve providing notice that U.S. citizens may opt out of the test by 
approaching a CBP officer and requesting an alternative process. As 
this pilot is still being developed, we do not have a firm estimate of 
the time it will take to capture photographs or how many travelers 
would be affected. We note, however, that their time delay and 
opportunity cost will be no greater than the 9 seconds and 12 cents 
estimated above for the biometric exit pilot programs process.\96\ When 
CBP begins requiring biometrics from all aliens exiting at the land 
border (i.e., not through a limited pilot program), to the extent that 
requirement lengthens entry or exit processing, there will be 
additional opportunity costs for the travelers and CBP. CBP is 
endeavoring to use biometrics as a way to streamline the entry and exit 
process, and it believes any additional net time it will add to 
travelers will be minimal or non-existent. Depending on the particulars 
of the biometric collection, there may also be significant hardware and 
infrastructure costs to CBP.
---------------------------------------------------------------------------

    \96\ The process currently being used for pedestrians is similar 
to what is being used at airports. For vehicles, CBP is working on 
various concepts and is committed to a system that would not 
significantly increase wait times at the land border.
---------------------------------------------------------------------------

    This rule would add a provision that aliens may be photographed 
upon exit and entry. While this provision applies at all types of ports 
of entry, more testing will be conducted before full implementation for 
land and sea ports of entry and private aircraft. For the near future 
the photographic requirement will apply primarily at airports. Most 
aliens arriving by air are already photographed at entry and have their 
fingerprints captured, and such aliens already have their passport 
photographs examined visually when entering or exiting the United 
States. In addition, most aliens are photographed if they are required 
to apply for a U.S. visa. A facial recognition system would compare the 
traveler's face to the previously taken photographs to ensure there is 
a match. CBP acknowledges that the traveler may perceive this process 
to be a loss of privacy, which is a cost of the rule. Facial comparison 
has presented CBP with the best biometric approach because it can be 
performed relatively quickly, with a high degree of accuracy, and in a 
manner perceived as less invasive to the traveler (e.g., no actual 
physical contact is required to collect the biometric). This approach, 
as with all biometric collections, poses privacy risks which, as 
discussed in the PIA for the TVS,\97\ are mostly mitigated. 
Nevertheless, CBP's phased deployment has shown the use of facial 
recognition technology is successful in a variety of scenarios that 
meet CBP's business requirements while requiring minimal infrastructure 
investments and space redesign and having minimal impacts on travelers. 
Moreover, the phased deployment has allowed CBP to ensure that 
biometrics are collected, maintained, and used consistent with 
applicable privacy laws and best practices.
---------------------------------------------------------------------------

    \97\ See DHS/CBP/PIA-056, Privacy Impact Assessment for the 
Traveler Verification Service, issued Nov. 14, 2018, available at 
https://www.dhs.gov/sites/default/files/publications/privacy-pia-cbp030-tvs-november2018_2.pdf.
---------------------------------------------------------------------------

    Table 10 summarizes the monetized costs of the regulatory period. 
These estimated costs are only for air exit. Any costs from an unknown 
future deployment at land or sea are not included in these estimates.

[[Page 74187]]



                                      Table 10--2020-2024 Regulatory Costs
                                        [Undiscounted thousands of $2017]
----------------------------------------------------------------------------------------------------------------
                                                     Carriers/       Carriers/
              Year                      CBP        airports--low  airports--high    Total--low      Total--high
----------------------------------------------------------------------------------------------------------------
2020............................          65,251           2,500          10,000          67,751          75,251
2021............................          39,585           2,500          10,000          42,085          49,585
2022............................          31,605           2,500          10,000          34,105          41,605
2023............................          32,383           2,500          10,000          34,883          42,383
2024............................          33,178           2,500          10,000          35,678          43,178
----------------------------------------------------------------------------------------------------------------

4. Cost Savings
    In the regulatory period, CBP and airlines expect that the use of 
facial recognition will speed the entry and exit processes 
considerably, resulting in time savings for travelers and shorter plane 
turnaround times for carriers. Various airlines have been testing 
facial recognition models similar to what is planned under this rule. 
In one test, an airline partner has been able to board an Airbus A-380 
with 350 travelers in only 20 minutes.\98\ Another airline partner has 
reported to CBP that their baseline loading time for an A-380 is 45 
minutes. In the test of the integrated facial recognition system used 
at the Orlando Airport, travelers have experienced a 15 minute time 
savings. According to one news article, this is down from 30 minutes 
for a 240-passenger plane.\99\ In both tests, boarding times are 
reduced by approximately 50 percent. These estimates are for some of 
the largest planes carrying travelers and much of the time savings is 
due to a process that allows boarding through several doors. Smaller 
planes do not have as many doors so the time savings for their 
travelers is likely to be lower. Additionally, these initial 
implementation flights and locations were selected in part based on 
ease of implementation. Using a 50 percent or 15-minute time savings 
for all flights based on the savings in these pilots would overstate 
the time savings due to this rule. Because of the uncertainty 
surrounding the time savings, we present a range of time savings 
estimates. For the low end of the range, which serves as our primary 
estimate, we assume that average time savings due to this rule will be 
5 minutes per traveler, or one third of the savings airline partners 
observed during the pilot. For the high end of the range, we assume 
that the time savings would be 10 minutes, or two thirds of the savings 
from the pilot. We request comment on these assumptions. CBP will be 
conducting time studies to refine our estimates and will use updated 
estimates, and will consider any public input on the estimates at the 
final rule stage.
---------------------------------------------------------------------------

    \98\ Source: https://www.cntraveler.com/story/orlando-airport-first-in-the-us-to-scan-faces-of-all-international-passengers. 
Accessed October 26, 2020.
    \99\ Source: https://www.forbes.com/sites/grantmartin/2018/06/24/orlando-airport-deploys-biometric-scanners-at-all-international-gates/#2a4a588118f9 and https://www.washingtonexaminer.com/news/bye-bye-boarding-pass-us-airport-launches-first-ever-security-checkpoints-that-scan-your-face. Accessed October 26, 2020.
---------------------------------------------------------------------------

    To estimate the value of time savings of air travelers at exit due 
to this rule, we apply the assumed range of time savings (5 to 10 
minutes) to the traveler projections from Table 4.\100\ We then apply 
the $47.10 hourly value of time for these travelers to determine the 
total opportunity cost savings as a result of this rule. Table 11 shows 
the hours saved at air exit due to this rule during the 5-year 
regulatory period of analysis. Table 12 shows the value of this time 
savings. As shown, in the primary estimate the savings range from $101 
million in the first year to $565 million in 2024, when full nationwide 
deployment is expected to occur at air exit. These estimated savings 
are for air exit only.
---------------------------------------------------------------------------

    \100\ As a reminder, we assume that a small portion of U.S. 
citizens will request an alternative inspection. These costs include 
only the U.S. citizens who undergo the facial recognition process.

                      Table 11--2020-2024 Projected Time Savings for Air Travelers at Exit
                                                     [Hours]
----------------------------------------------------------------------------------------------------------------
                                       2020            2021            2022            2023            2024
----------------------------------------------------------------------------------------------------------------
U.S Citizens--Primary...........         938,878       1,939,721       3,014,327       4,167,810       5,240,447
U.S. Citizens--High.............       1,877,756       3,879,443       6,028,654       8,335,619      10,480,895
Aliens--Primary.................       1,209,607       2,499,048       3,883,520       5,369,614       6,751,551
Aliens--High....................       2,419,214       4,998,096       7,767,041      10,739,228      13,503,103
----------------------------------------------------------------------------------------------------------------


                       Table 12--2020-2024 Value of Time Savings for Air Travelers at Exit
                                                     [$2017]
----------------------------------------------------------------------------------------------------------------
                                       2020            2021            2022            2023            2024
----------------------------------------------------------------------------------------------------------------
U.S Citizens--Primary...........      44,221,142      91,360,880     141,974,809     196,303,832     246,825,076
U.S. Citizens--High.............      88,442,284     182,721,759     283,949,618     392,607,664     493,650,152
Aliens--Primary.................      56,972,483     117,705,151     182,913,806     252,908,823     317,998,070
Aliens--High....................     113,944,967     235,410,303     365,827,612     505,817,645     635,996,140
Total--Primary..................     101,273,367     209,230,777     325,144,629     449,566,639     565,268,232
Total--High.....................     202,387,251     418,132,062     649,777,230     898,425,309   1,129,646,292
----------------------------------------------------------------------------------------------------------------


[[Page 74188]]

    In addition to the savings to travelers, boarding an aircraft more 
quickly has a substantial benefit to airlines as they will be able to 
turn around aircraft more quickly. According to one study, reducing 
turn time by 10 minutes could lead to an improved aircraft utilization 
rate of 8.1 percent.\101\ If there is a sustained decrease in turn 
times as a result of this rule, carriers could eventually reduce the 
number of aircraft in their fleets. In addition, to the extent the 
shorter turn time saves airline staff time, airlines could experience 
additional savings.
---------------------------------------------------------------------------

    \101\ Source: Economic Impact of Airplane Turn Times. Available 
at https://www.boeing.com/commercial/aeromagazine/articles/qtr_4_08/pdfs/AERO_Q408_article03.pdf. Accessed on August 22, 2018.
---------------------------------------------------------------------------

5. Benefits
    The primary benefit of this rule is the security benefit of having 
biometric confirmation of the identification of those leaving the 
country by air. CBP has very good records of those legally entering the 
United States by air, land and sea. These records are enhanced for 
aliens through the collection of biometrics at entry. At departure, CBP 
has a record of the names of everyone leaving the United States by air 
or sea. However, these records are not verified with the same accuracy 
as at entry. Comparing biometrics at departure will enable CBP to know 
with greater certainty the identity of those leaving the United States, 
which will help detect and deter visa overstays and visa fraud; help 
identify persons attempting to fraudulently use travel documents; and 
alert authorities to criminals or known or suspected terrorists prior 
to boarding. Studies show that humans are best at identifying imposters 
when paired with technology.\102\ CBP believes that facial recognition 
is the best available method for biometric identification as it is 
highly accurate, unobtrusive, and cost effective. This rule would 
expand CBP's ability to implement this biometric exit capability at 
additional locations before eventually implementing it nationwide.
---------------------------------------------------------------------------

    \102\ See ``NIST Study Shows Face Recognition Experts Perform 
Better with AI as Partner.'' Available at https://www.nist.gov/news-events/news/2018/05/nist-study-shows-face-recognition-experts-perform-better-ai-partner. https://www.pnas.org/content/pnas/115/24/6171.full.pdf. https://www.nist.gov/news-events/news/2018/05/nist-study-shows-face-recognition-experts-perform-better-ai-partner. See 
also https://onlinelibrary.wiley.com/doi/abs/10.1002/acp.2968. 
Accessed October 26, 2020. See also https://royalsocietypublishing.org/doi/full/10.1098/rsos.170249#RSOS170249C16. See also https://royalsocietypublishing.org/doi/full/10.1098/rsos.170249#RSOS170249C16. Accessed October 26, 2020.
---------------------------------------------------------------------------

    An alien admitted to the United States on a visa or through the 
Visa Waiver Program (VWP) is permitted to remain in the country for the 
lawful period of admission (in the case of a VWP traveler, 90 days). An 
overstay occurs when a person enters the United States legally on a 
visa or through the VWP, but does not leave within the prescribed time 
period. Some aliens who overstay their lawful period of admission 
remain in the United States illegally for years. For Fiscal Year 2018, 
DHS estimates that about 666,500 aliens who entered by air or sea and 
were expected to depart that year overstayed their lawful period of 
admission, or 1.22 percent of aliens arriving by air and sea.\103\ 
These figures are estimates because without biometrics, CBP cannot 
verify with certainty the identity of those leaving the United States. 
For example, many aliens sharing a common name may enter the United 
States in a given year. Biometrics allow CBP to better differentiate 
those who have identical names and basic biographic information, 
provide checks against the use of fraudulent identity documents, and 
better understand whether any particular alien left the United States 
on time or if the departing alien was a different person with the same 
name. Without biometrics it is difficult to know whether the alien 
leaving did so on time or if the departing alien was a different person 
with the same name.
---------------------------------------------------------------------------

    \103\ Source: Internal Database, as reported in the FY 
2016201820162018 Entry/Exit Overstay Report. Available at https://www.dhs.gov/sites/default/files/publications/19_0417_fy18-entry-and-exit-overstay-report.pdf. Accessed September 1010, 2019.
---------------------------------------------------------------------------

    Similarly, there are ways to exploit the current exit system to 
avoid the detection of passport and visa fraud. Currently, those 
departing the United States must present their boarding pass and 
identification when being screened by TSA. Before boarding, travelers 
also need to present their travel documents and boarding passes to the 
carrier at the gate, who visually reviews the travel documents and 
validates the boarding pass with the carrier's ticketing system. 
However, once in the sterile area of the terminal, although travelers 
may be subject to random identification checks, travelers generally do 
not have their photo identification scrutinized again before boarding 
the aircraft. This has allowed for passport and visa fraud.\104\ During 
the boarding process, in addition to addressing customer service 
issues, such as baggage and seat assignments, gate agents are also 
required to check travel documents during what can often be a hectic 
boarding process. Using facial recognition technology reduces the 
number of documents that the gate agent needs to review thereby 
increasing the effectiveness of the limited fraudulent document 
detection and impostor identification training gate agents receive. 
Furthermore, people are most effective at identifying fraud when paired 
with technology. The facial recognition pilots have helped identify 
77,000 visa overstays and 240 individuals who previously entered the 
United States without inspection.\105\ CBP has also used facial 
recognition to identify several imposters attempting to fraudulently 
enter the United States and expects to have similar success on 
exit.\106\
---------------------------------------------------------------------------

    \104\ Note: TSA subjects all travelers entering the sterile area 
of an airport, and their carry-on belongings, to security screening 
at the checkpoint.
    \105\ Source: DHS Fiscal Year 2018 Entry/Exit Report. Available 
at: https://www.dhs.gov/sites/default/files/publications/19_0417_fy18-entry-and-exit-overstay-report.pdf. Accessed October 
26, 2020. See also source: DHS Office of Inspector General Report: 
``Progress Made, but CBP Faces Challenges Implementing a Biometric 
Capability to Track Air Passenger Departures Nationwide.'' Available 
at https://www.oig.dhs.gov/sites/default/files/assets/2018-09/OIG-18-80-Sep18.pdf.
    \106\ Source: CBP press release: Second Imposter in Three Weeks 
Caught by CBP Biometric Verification Technology at Washington Dulles 
Airport. Available at https://www.cbp.gov/newsroom/local-media-release/second-impostor-three-weeks-caught-cbp-biometric-verification. Accessed October 26, 2020.
---------------------------------------------------------------------------

    Having an accurate accounting of visa overstays is important both 
for reasons of equity and government resources. The United States has 
set up a system whereby aliens may visit by legal means and the vast 
majority follow this system conscientiously, though it can sometimes 
take a significant amount of time to proceed through the immigration 
process. It is not equitable for these legitimate travelers and 
immigrants when others circumvent the legitimate process through 
illegal visa overstays. The success of those who are able to overstay 
their visas without consequences only encourages others to attempt to 
do the same. Further, overstays place a strain on government resources 
as the government must investigate and remove those who are not here 
legally. Compounding this problem is a lack of true identity 
verification, as DHS must spend time determining whether an individual 
actually overstayed his/her lawful period of admission before beginning 
the actual investigation. Biometric identity verification will give DHS 
the information it needs about those who have overstayed their visas 
and will allow it to focus on these individuals.
    The public also has an interest in accurate identification at 
departure for law enforcement and national security reasons. Security 
agencies maintain an

[[Page 74189]]

extensive database of known and suspected terrorists, but sometimes 
they have incomplete information about them. In some cases, they may 
have photographs on a person of interest, but no name. In other cases, 
someone could be traveling under a false name with false documents. 
Having biometric identification would assist CBP in identifying these 
individuals during the travel process and taking appropriate action. 
Similarly, biometric identification would help CBP identify those 
wanted for a crime or who are the subject of a court order (such as in 
a child custody dispute) and intercept them before they are able to 
leave the country.
    As discussed in the Costs section above, CBP is exploring various 
ways to use biometrics to streamline the entry process. This rule 
allows for the expansion of these tests as it provides the framework 
for CBP to require all aliens to be photographed at entry. Under the 
current regulations, certain aliens are not subject to this 
requirement, making a full evaluation of the concept impossible. Early 
analysis of the Simplified Arrival pilot suggests that it could save 15 
seconds of processing time for all participating travelers, including 
U.S. citizens who voluntarily participate. CBP is expected to 
experience time savings as well, but it is unknown how much time it 
will save. CBP is expanding Simplified Arrival and will be doing time-
in-motion studies to determine the effect on processing and wait times. 
We will include a discussion of the results in the final rule.
    The development of a reliable facial recognition system could also 
have benefits for other government agencies. CBP is coordinating with 
TSA to test facial recognition to streamline its processes. Among other 
things, TSA is considering using facial recognition to improve the TSA 
Pre[radic]TM process. TSA also plans to explore other ways 
facial recognition can improve security and traveler processing.\107\ 
TSA's use of CBP's facial recognition system is still in its planning 
stage, so it is impossible to estimate any savings that could result. 
To the extent that TSA is able to improve security or reduce processing 
times for travelers, that would be an additional cost savings or 
benefit of this rule.
---------------------------------------------------------------------------

    \107\ See TSA's Biometric Roadmap, available at https://www.tsa.gov/sites/default/files/tsa_biometrics_roadmap.pdf.
---------------------------------------------------------------------------

6. Net Benefits
    As discussed in the cost section, the biometric exit pilot programs 
have resulted in costs to travelers and CBP. From 2017-2019, travelers 
experienced approximately $136,000 in opportunity costs per year. CBP 
spent $228 million to develop, maintain, and operate the initial pilots 
from 2017 to 2019. The unit costs to expand these pilots would be 12 
cents per departure for travelers and $81,000 annually per daily-
scheduled flight for CBP. These costs are summarized in Table 13.

                  Table 13--Total Pilot Costs 2017-2019
                    [Thousands of 2017 U.S. dollars]
------------------------------------------------------------------------
                                            3% Discount     7% Discount
                                               rate            rate
------------------------------------------------------------------------
Total Present Value Cost................        $215,222        $199,887
Annualized Cost.........................          76,088          76,159
------------------------------------------------------------------------

    During the regulatory time period, the costs will be split by 
carriers and airports who will install the facial recognition hardware 
at gates and CBP, which incurs development and operations and 
maintenance costs. Table 14 shows the discounted costs of the 
regulatory time period. As shown, costs over the 5-year period of 
analysis range from $211 to $233 million, depending on the discount 
rate used. Annualized costs range are $51 million. Unquantified costs 
include the costs of expanding photographic collection of currently 
exempt aliens at entry. These costs are difficult to quantify as the 
Simplified Arrival concept has not yet been widely tested and this 
expansion will only occur if it is determined that the aliens 
experience net savings as a result.

               Table 14--Total Regulatory Costs 2020-2024
                    [Thousands of 2017 U.S. Dollars]
------------------------------------------------------------------------
                                            3% Discount     7% Discount
                                               rate            rate
------------------------------------------------------------------------
Total Present Value Cost................        $232,776        $210,719
Annualized Cost.........................          50,827          51,393
------------------------------------------------------------------------

    This rule's establishment of a biometric identification system at 
departure will have benefits, including cost savings, to CBP and the 
public. Travelers will experience a time savings through a shorter 
boarding process. Table 15 shows the discounted savings as a result of 
this rule. As shown, CBP estimates that this rule will save travelers 
opportunity costs of between $1.289 and $1.480 billion over the 5-year 
period of analysis. On an annualized basis, this rule will save between 
$314 and $323 million. In addition, carriers may experience turn around 
cost savings and travelers may experience additional savings from a new 
Simplified Arrival process. Further, this rule will allow CBP to 
identify travelers with greater certainty, which will reduce travel 
document fraud. It will also give CBP a more accurate record of those 
who overstayed their visas.

[[Page 74190]]



  Table 15--Total Regulatory Cost Savings 2020-2024 for Both Aliens and
                              U.S. Citizens
                    [Thousands of 2017 U.S. Dollars]
------------------------------------------------------------------------
                                            3% Discount     7% Discount
                                               rate            rate
------------------------------------------------------------------------
Total Present Value Cost Savings........      $1,480,137      $1,288,814
Annualized Cost Savings.................         323,195         314,330
------------------------------------------------------------------------

    Table 16 shows the net monetized cost savings for the rule's 
primary estimate. As shown, the rule will result in total net savings 
ranging from $1.078 million to $1.247 million, depending on the 
discount rate used. On an annualized basis, savings will range from 
$262 to $272 million. Accounting statements 1 and 2 show the costs, 
cost savings, and benefits of the rule for the pilot period and the 
regulatory period, respectively. The net cost savings listed in this 
table is for air exit only. Any costs, cost savings, and benefits from 
an unknown future deployment at land or sea are not included in these 
estimates.

            Table 16--Net Regulatory Costs Savings 2020-2024
                    [Thousands of 2017 U.S. Dollars]
------------------------------------------------------------------------
                                            3% Discount     7% Discount
                                               rate            rate
------------------------------------------------------------------------
Total Present Value Cost Savings........      $1,247,361      $1,078,094
Annualized Cost Savings.................         272,367         262,937
------------------------------------------------------------------------


            Accounting Statement 1--Pilot Period (2017-2019)
                          [Thousands of $2017]
------------------------------------------------------------------------
                                3% Discount rate      7% Discount rate
------------------------------------------------------------------------
Costs:
    Annualized monetized      76,088..............  76,160.
     costs.
    Annualized quantified,    None................  None.
     but non-monetized costs.
    Qualitative (non-         None................  None.
     quantified) costs.
Cost Savings:
    Annualized monetized      None................  None.
     benefits.
    Annualized quantified,    None................  None.
     but non-monetized
     benefits.
    Qualitative (non-         None................  None.
     quantified) costs.
Benefits:
    Annualized monetized      None................  None.
     benefits.
    Annualized quantified,    None................  None.
     but non-monetized
     benefits.
    Qualitative (non-         Enhanced security     Enhanced security
     quantified) benefits.     and identification    and identification
                               of visa overstays.    of visa overstays.
------------------------------------------------------------------------


          Accounting Statement 2--Regulatory Period (2020-2024)
                          [Thousands of $2017]
------------------------------------------------------------------------
                                3% Discount rate      7% Discount rate
------------------------------------------------------------------------
Costs:
    Annualized monetized      50,828..............  51,393.
     costs.
    Annualized quantified,    None................  None.
     but non-monetized costs.
    Qualitative (non-         Perceived privacy     Perceived privacy
     quantified) costs.        loss.                 loss.
Cost Savings:
    Annualized monetized      323,195.............  314,330.
     cost savings.
    Annualized quantified,    None................  None.
     but non-monetized cost
     savings.
    Qualitative (non-         Shorter plane turn    Shorter plane turn
     quantified) cost          times. Potential      times. Potential
     savings.                  additional savings    additional savings
                               at entry.             at entry.
Benefits:
    Annualized monetized      None................  None.
     benefits.
    Annualized quantified,    None................  None.
     but non-monetized
     benefits.
    Qualitative (non-         Enhanced security     Enhanced security
     quantified) benefits.     and identification    and identification
                               of visa overstays.    of visa overstays.
------------------------------------------------------------------------


[[Page 74191]]

7. Alternatives Analysis
    CBP considered many types of biometrics and has concluded that 
partnering with carriers and airports to capture facial images is the 
most viable large scale solution as it is highly effective, cost 
effective, and less disruptive than other possible methods. Two other 
methods that were considered were fingerprint and/or iris scans and 
using CBP personnel and equipment to collect the facial scans.
    CBP has tested fingerprint and iris scans on a limited basis to 
determine its effectiveness and scalability. CBP found that while these 
scans are highly effective in finding matches when data is available, 
they have numerous problems. First, CBP often lacks data to match 
against. Although CBP often has fingerprints from entry that it can use 
to match a departing alien, it does not typically capture iris scans. 
Nor are these biometrics typically included in passports. To use iris 
scans, CBP would need to establish a new way to capture a baseline iris 
scan to compare against at exit, which is not feasible. Fingerprint and 
iris scans are also more time consuming and the equipment needed is 
more expensive than facial recognition. Finally, these methods are more 
intrusive than taking a picture, so they present additional privacy 
concerns.
    CBP also considered purchasing the facial recognition hardware and 
using CBP personnel to capture the facial images rather than having the 
carrier or airport purchase and operate it. This alternative would 
essentially expand the initial pilot nationwide. As discussed above, 
this would add an opportunity cost of 12 cents per traveler departure 
and $81,000 annually in costs for CBP per daily-scheduled flight. More 
importantly, since this would add a step to the boarding process rather 
than simplify the process, travelers would forgo the time savings 
estimated above and valued at $310 million per year. Further, this 
alternative approach would eliminate the advantage of giving carriers 
and airports access to the facial recognition capabilities, which 
allows them to use it for other purposes.

B. Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601 et. seq.), as amended 
by the Small Business Regulatory Enforcement Fairness Act of 1996, 
requires an agency to prepare and make available to the public a 
regulatory flexibility analysis that describes the effect of a proposed 
rule on small entities (i.e., small businesses, small organizations, 
and small governmental jurisdictions) when the agency is required to 
publish a general notice of proposed rulemaking for a rule.
    The Regulatory Flexibility Act requires agencies to consider the 
impacts of their rules on small entities. This proposed rule would only 
directly regulate travelers. Travelers are individuals and are not 
considered to be small entities by the RFA. Carriers are indirectly 
affected by the rule as the rule does not place any requirements on the 
carriers, nor does it grant them any new rights. Any participation by 
carriers is strictly voluntary and CBP expects that carriers will only 
participate if they believe the benefits of participation outweigh the 
costs. CBP therefore certifies that this rule will not result in a 
significant economic impact on a substantial number of small entities.

C. Paperwork Reduction Act

    In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 
3507), an agency may not conduct, and a person is not required to 
respond to, a collection of information unless the collection of 
information displays a valid control number assigned by OMB. The 
collections of information related to this NPRM, including biometric 
exit, are approved by OMB under collection 1651-0138.

D. Privacy

    CBP will ensure that all legal requirements (e.g., the Privacy Act 
of 1974, Section 208 of the E-Government Act of 2002, and Section 222 
of the Homeland Security Act of 2002, as amended) and applicable 
policies are adhered to during the implementation of the biometric 
entry-exit system.
    CBP retains biographic records for 15 years for U.S. citizens and 
lawful permanent residents and 75 years for non-immigrant aliens, 
consistent with the DHS/CBP-007 Border Crossing Information (BCI) 
System of Records Notice (SORN).\108\ Records associated with a law 
enforcement action are retained for 75 years in accordance with the 
DHS/CBP-011 TECS SORN.\109\ CBP retains biographic entry and exit 
records in the ADIS for lawful permanent residents and non-immigrant 
aliens, consistent with the SORN.\110\
---------------------------------------------------------------------------

    \108\ Available at https://www.dhs.gov/system-records-notices-sorns.
    \109\ Id.
    \110\ Associated ADIS SORNS are listed at https://www.dhs.gov/publication/arrival-and-departure-information-system and available 
at https://www.dhs.gov/system-records-notices-sorns. Last Accessed 
October 26, 2020.
---------------------------------------------------------------------------

    Since 2004, CBP has collected biometric information in the form of 
fingerprints and a facial photograph on entry for in-scope travelers 
(pursuant to 8 CFR 235.1); CBP transmits this information to the DHS 
OBIM's IDENT, where it is stored.
    Under CBP's facial recognition based entry-exit program, CBP's 
biographic data retention policies remain the same. CBP temporarily 
retains facial images of non-immigrant aliens and lawful permanent 
residents for no more than 14 days within ATS-UPAX for confirmation of 
travelers' identities, evaluation of the technology, assurance of 
accuracy of the algorithms, and system audits. However, if the TVS 
matching service determines that a particular traveler is a U.S. 
citizen, CBP holds the photo in secure CBP systems for no more than 12 
hours after identity verification, in case of an extended system 
outage, and then deletes it.
    Photos of all travelers are purged from the TVS cloud matching 
service within a number of hours, depending on the mode of travel. 
Photos of in-scope travelers are retained in IDENT for up to 75 years, 
consistent with existing CBP records that are housed in IDENT in 
accordance with the BCI SORN.
    As discussed in Section III, CBP will begin implementation of the 
biometric entry-exit system through the TVS. CBP has issued a number of 
PIAs for the TVS, and earlier traveler verification tests, which 
outline how CBP will ensure compliance with the DHS Fair Information 
Practice Principles (FIPPs) as part of the biometric entry-exit 
system.\111\ In November 2018, CBP published a revised comprehensive 
TVS PIA, which, along with the previous versions, examines the privacy 
impact and mitigation strategies of TVS as it relates to the Privacy 
Act and the FIPPs.\112\ The FIPPs address how information being 
collected is maintained, used and protected, particularly to issues 
such as security, integrity, sharing of data, use limitation and 
transparency. The comprehensive TVS PIA provides background information 
on early test deployments. Additionally, it explains how CBP's use of 
facial recognition technology complies with privacy requirements at 
both entry and exit operations in all modes of travel where the 
technology is currently deployed.
---------------------------------------------------------------------------

    \111\ See generally DHS/CBP/PIA-056, Privacy Impact Assessment 
for the Traveler Verification Service Related PIAs, https://www.dhs.gov/publication/departure-information-systems-test, issued 
Nov. 14, 2018, available at https://www.dhs.gov/sites/default/files/publications/privacy-pia-cbp030-tvs-november2018_2.pdf.
    \112\ See DHS/CBP/PIA-056, Privacy Impact Assessment for the 
Traveler Verification Service, issued Nov. 14, 2018, available at 
https://www.dhs.gov/sites/default/files/publications/privacy-pia-cbp030-tvs-november2018_2.pdf.

---------------------------------------------------------------------------

[[Page 74192]]

    As discussed in Section III.E, CBP is conducting a number of 
biometric exit pilot programs at the land border. CBP will issue PIAs 
for these pilot programs, which will be made publicly available at: 
www.dhs.gov/privacy.

E. National Environmental Policy Act

    DHS Directive (Dir.) 023-01 Rev. 01[1] establishes the procedures 
that DHS and its components use to comply with the National 
Environmental Policy Act (NEPA) and the Council on Environmental 
Quality (CEQ) regulations for implementing NEPA, 40 CFR parts 1500-
1508. The CEQ regulations allow Federal agencies to establish, with CEQ 
review and concurrence, categories of actions (``categorical 
exclusions'') which experience has shown do not individually or 
cumulatively have a significant effect on the human environment and, 
therefore, do not require an Environmental Assessment (EA) or 
Environmental Impact Statement (EIS). 40 CFR 1507.3(b)(1)(iii), 1508.4. 
DHS Instruction 023-01-001 Rev. 01 establishes such Categorical 
Exclusions that DHS has found to have no such effect. Inst. 023-01-001 
Rev. 01 Appendix A Table 1. For an action to be categorically excluded, 
DHS Inst. 023-01-001 Rev. 01 requires the action to satisfy each of the 
following three conditions: (1) The entire action clearly fits within 
one or more of the Categorical Exclusions; (2) the action is not a 
piece of a larger action; and (3) no extraordinary circumstances exist 
that create the potential for a significant environmental effect. Inst. 
023-01-001 Rev. 01 section V.B (1)-(3).
    DHS analyzed this action and has concluded that the proposed 
changes to 8 CFR parts 215 and 235 concerning the collection of 
biometric data from aliens upon entry and departure falls within DHS's 
categorical exclusion A.3, which is set forth in DHS Inst. 023-01-001 
Rev. 01, Appendix A, Table 1. Categorical exclusion A.3 covers, among 
other things, the promulgation of rules that interpret or amend an 
existing regulation without changing its environmental impacts. 
Although the changes to 8 CFR parts 215 and 235 will mean that DHS/CBP 
will be collecting more biometric data, it will not fundamentally alter 
the manner in which DHS/CBP processes travelers within existing 
facilities.

F. Signature

    The Acting Secretary of Homeland Security, Chad F. Wolf, having 
reviewed and approved this document, has delegated the authority to 
electronically sign this document to Chad R. Mizelle, who is the Senior 
Official Performing the Duties of the General Counsel for DHS, for 
purposes of publication in the Federal Register.

List of Subjects

8 CFR Part 215

    Administrative practice and procedure, Aliens, Travel restrictions.

8 CFR Part 235

    Administrative practice and procedure, Aliens, Immigration, 
Reporting and recordkeeping requirements.

Proposed Amendments to the Regulations

    For the reasons discussed in the preamble, DHS proposes to amend 8 
CFR chapter I as set forth below:

PART 215--CONTROLS OF ALIENS DEPARTING FROM THE UNITED STATES; 
ELECTRONIC VISA UPDATE SYSTEM

0
1. The authority section for part 215 is revised to read as follows:

    Authority: 6 U.S.C. 202(4), 236; 8 U.S.C. 1101, 1103, 1104, 
1184, 1185 (pursuant to Executive Order 13323, 69 FR 241, 3 CFR, 
2003 Comp., p. 278), 1357, 1365a, 1365a note, 1365b, 1379, 1731-32; 
and 8 CFR part 2.

0
2. Amend Sec.  215.8 as follows:
0
a. Revise the section heading;
0
b. Add a heading for paragraph (a);
0
c. Redesignate paragraphs (a)(1) and (2) as paragraphs (a)(2) and (3);
0
d. Add new paragraph (a)(1);
0
e. Revise newly redesignated paragraph (a)(2) and paragraph (a)(3) 
introductory text;
0
f. In newly redesignated paragraph (a)(3)(ii), remove ``(a)(1)'' and 
add in its place ``(a)(2) of this section'';
0
g. In paragraph (b), add a heading and revise the first sentence; and
0
h. In paragraph (c), add a heading.
    The revisions and additions read as follows:


Sec.  215.8  Requirements for biometrics from aliens on departure from 
the United States.

    (a) Photographs and other biometrics--(1) Photographs. DHS may 
require an alien to be photographed when departing the United States to 
determine his or her identity or for other lawful purposes.
    (2) Other biometrics. DHS may require any alien, other than aliens 
exempted under paragraph (a)(3) of this section or Canadian citizens 
under section 101(a)(15)(B) of the Act who were not otherwise required 
to present a visa or have been issued Form I-94 (see Sec.  1.4 of this 
chapter) or Form I-95 upon arrival at the United States, to provide 
other biometrics, documentation of immigration status in the United 
States, as well as such other evidence as may be requested to determine 
the alien's identity and whether the alien has properly maintained 
immigration status while in the United States, when departing the 
United States.
    (3) Exemptions. The requirements of paragraphs (a)(2) of this 
section shall not apply to:
* * * * *
    (b) Failure of a non-exempt alien to comply with departure 
requirements. An alien who is required to provide biometrics when 
departing the United States pursuant to paragraph (a)(1) or (2) of this 
section and who fails to comply with the departure requirements may be 
found in violation of the terms of his or her admission, parole, or 
other immigration status. * * *
    (c) Determination of overstay status. * * *

PART 235--INSPECTIONS OF PERSONS APPLYING FOR ADMISSION

0
3. The authority citation for part 235 is revised to read as follows:

    Authority: 6 U.S.C. 218 and note; 8 U.S.C. 1101 and note, 1103, 
1158, 1182, 1183, 1185 (pursuant to E.O. 13323, 69 FR 241, 3 CFR, 
2003 Comp., p.278), 1185 note, 1201, 1224, 1225, 1226, 1228, 1357, 
1365a, 1365a note, 1365b, 1379, 1731-32; 48 U.S.C. 1806 and note.

0
4. Amend Sec.  235.1 as follows:
0
a. In paragraph (f)(1) introductory text, add a heading;
0
b. In paragraph (f)(1)(i), add a heading;
0
c. Redesignate paragraphs (f)(1)(ii), (iii), and (iv) as paragraphs 
(f)(1)(iii), (v), and (vi), respectively;
0
d. Add new paragraph (f)(1)(ii);
0
e. Revise newly redesignated paragraph (f)(1)(iii);
0
f. Add new paragraph (f)(1)(iv);
0
g. Revise newly redesignated paragraph (f)(1)(v) and paragraph 
(f)(1)(vi) introductory text; and
0
h. In newly redesignated paragraph (f)(1)(vi)(B), remove ``(d)(1)(ii)'' 
and add in its place ``(f)(1)(iii) of this section''.
    The revisions and additions read as follows:


Sec.  235.1  Scope of examination.

* * * * *
    (f) * * *
    (1) Requirements for admission. * * *
    (i) Permanent residents. * * *
    (ii) Photographs. DHS may require an alien seeking admission to be 
photographed to determine his or her identity or for other lawful 
purposes.

[[Page 74193]]

    (iii) Other biometrics. DHS may require any alien, other than 
aliens exempted under paragraph (f)(1)(vi) of this section or Canadian 
citizens under section 101(a)(15)(B) of the Act who are not otherwise 
required to present a visa or be issued Form I-94 (see Sec.  1.4 of 
this chapter) or Form I-95 for admission or parole into the United 
States, to provide other biometrics, documentation of immigration 
status in the United States, as well as such other evidence as may be 
requested to determine the alien's identity and admissibility and/or 
whether the alien has properly maintained immigration status while in 
the United States.
    (iv) Failure to comply with biometric requirements. The failure of 
an alien at the time of inspection to comply with paragraph (f)(1)(ii) 
or (iii) of this section may result in a determination that the alien 
is inadmissible under section 212(a) of the Immigration and Nationality 
Act or any other law.
    (v) Biometric requirements upon departure. Aliens who are required 
under paragraph (f)(1)(ii) or (iii) of this section to provide 
biometrics at inspection may also be subject to the departure 
requirements for biometrics contained in Sec.  215.8 of this chapter, 
unless otherwise exempted.
    (vi) Exemptions. The requirements of paragraph (f)(1)(iii) of this 
section shall not apply to:
* * * * *

Chad R. Mizelle,
Senior Official Performing the Duties of the General Counsel, U.S. 
Department of Homeland Security.
[FR Doc. 2020-24707 Filed 11-18-20; 8:45 am]
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