Facial Comparison for APIS Compliance Test, 10137-10140 [2023-03285]

Download as PDF Federal Register / Vol. 88, No. 32 / Thursday, February 16, 2023 / Notices Contact Person: Jenny Raye Browning, Ph.D., Scientific Review Officer, Scientific Review Branch, Division of Extramural Research, National Institute on Drug Abuse, NIH, 301 North Stonestreet Avenue, MSC 6021, Bethesda, MD 20892, (301) 443–4577, jenny.browning@nih.gov. (Catalogue of Federal Domestic Assistance Program Nos. 93.277, Drug Abuse Scientist Development Award for Clinicians, Scientist Development Awards, and Research Scientist Awards; 93.278, Drug Abuse National Research Service Awards for Research Training; 93.279, Drug Abuse and Addiction Research Programs, National Institutes of Health, HHS) Dated: February 10, 2023. Melanie J. Pantoja, Program Analyst, Office of Federal Advisory Committee Policy. [FR Doc. 2023–03248 Filed 2–15–23; 8:45 am] BILLING CODE 4140–01–P DEPARTMENT OF HOMELAND SECURITY U.S. Customs and Border Protection Facial Comparison for APIS Compliance Test U.S. Customs and Border Protection, Department of Homeland Security. ACTION: General notice. AGENCY: This document announces that U.S. Customs and Border Protection (CBP) plans to conduct a voluntary test in which participating commercial airlines and vessels use CBP’s Traveler Verification Service (TVS) facial comparison service to comply with certain regulatory requirements regarding the Advance Passenger Information System (APIS). CBP regulations currently require an appropriate official of commercial aircraft and commercial vessels (collectively ‘‘carriers’’) to submit electronic manifests to CBP listing crew, non-crew, and passenger (collectively ‘‘travelers’’) information upon arrival and departure of aircraft and vessels. The carrier is required to compare the travel documents presented by the travelers with the information the carrier submits to CBP to, among other things, ensure that the information is correct and that each traveler is the person to whom the travel document was issued. Additionally, the carrier is required to ensure that the travel document presented is valid for travel to the United States. Participation in this pilot does not remove this requirement for carriers. During this test, participating carriers will use the existing TVS facial comparison service lotter on DSK11XQN23PROD with NOTICES1 SUMMARY: VerDate Sep<11>2014 16:51 Feb 15, 2023 Jkt 259001 to ensure the manifest information transmitted to CBP is correct and to perform the required identity verification. The use of TVS technology for APIS verification purposes has the potential to speed up the departure process for both carriers and travelers, as it enables travelers to be matched more efficiently to their travel documents. This notice provides a description of the test, sets forth requirements for participation, and invites public comment on any aspect of the test. DATES: The test will begin no earlier than February 16, 2023 and will run for at most two years. CBP is accepting applications from carriers to participate in the test on a rolling basis throughout the two-year testing period. CBP will announce any modifications by notice in the Federal Register. ADDRESSES: Applications to participate in the Facial Comparison for APIS Compliance Test must be submitted via email to simplifytravel@cbp.dhs.gov. Written comments concerning program, policy, and technical issues may also be submitted via email to simplifytravel@ cbp.dhs.gov. FOR FURTHER INFORMATION CONTACT: Natascha A. Gutermuth, Program Manager, Admissibility and Passenger Programs, Office of Field Operations, natascha.a.gutermuth@cbp.dhs.gov or (202) 417–0096. SUPPLEMENTARY INFORMATION: Background APIS Requirements The Advance Passenger Information System (APIS) is an electronic data system that allows carriers to transmit traveler data to CBP. Under the relevant statutes and CBP regulations, an appropriate official 1 of each carrier arriving in or departing from the United States must transmit an electronic manifest to CBP’s APIS system for all travelers within a specified timeframe (generally before the vessel or aircraft departs, though the exact timeframe varies, depending on the circumstances of the trip and type of carrier). See 8 U.S.C. 1221, 19 U.S.C. 1433, and 49 U.S.C. 44909; 19 CFR 4.7b(b), 4.64(b), 122.49a(b), 122.49b(b), 122.49c, 122.75a(b), and 122.75b(b). The electronic manifest must include the travelers’ biographic information 1 An ‘‘appropriate official’’ is defined as the master or commanding officer, or authorized agent, owner, or consignee of a commercial aircraft or vessel; this term and the term ‘‘carrier’’ are sometimes used interchangeably within the regulations. See title 19 of the Code of Federal Regulations parts 4 and 122 (19 CFR parts 4 and 122). PO 00000 Frm 00063 Fmt 4703 Sfmt 4703 10137 including name, age, gender, date of birth, citizenship, passport number if relevant, and numerous other biographic data elements depending upon the type of traveler (e.g., crew or passenger), as well as such other information as determined necessary by the Secretary of the Department of Homeland Security (DHS),2 in consultation with the Secretary of State, for flights and vessels arriving in and departing from the United States, or as determined necessary by the Administrator of the Transportation Security Administration (TSA), in consultation with the Commissioner of CBP, for flights arriving in the United States. See 8 U.S.C. 1221; 49 U.S.C. 44909. Among other things, the carrier must compare the travel document presented by the traveler with the information the carrier is transmitting to CBP on the electronic manifest in order to (1) verify that the manifest information transmitted to CBP is correct and (2) verify that the traveler is the person to whom the travel document was issued. These two requirements will be referred to in this document as the ‘‘APIS verification requirements’’. See 19 CFR 4.7b(d), 4.64(d), 122.49a(d), 122.49b(d), 122.75a(d), and 122.75b(d). The Facial Comparison for APIS Compliance Test Description and Purpose CBP plans to conduct a voluntary test (the ‘‘Facial Comparison for APIS Compliance Test’’ or the ‘‘APIS test’’) in which participating commercial airlines and vessels use CBP’s Traveler Verification Service (TVS) facial comparison service to comply with the APIS verification requirements referenced in the background section of this document. CBP’s TVS facial comparison service is part of an information technology system that provides facial matching for photos to verify the identity of travelers entering and leaving the United States pursuant to 8 CFR 215.8 and 235.1.3 The purpose 2 Upon the creation of the Department of Homeland Security (DHS), through the Homeland Security Act of 2002, Public Law 107–296, 116 Stat. 2140 (2002), and the Department of Homeland Security Reorganization Plan of November 25, 2002, as modified, the functions of the Immigration and Naturalization Service (INS) of the Department of Justice, and all authorities with respect to those functions were transferred to DHS on March 1, 2003. 3 TVS is used at participating ports of entry and with participating carriers to biometrically confirm the identity of noncitizens who are subject to biometric facial comparison when entering and exiting the United States pursuant to 8 CFR 215.8 and 235.1. Additionally, TVS is used for other travelers who submit their facial images voluntarily to participating carriers or at participating ports of E:\FR\FM\16FEN1.SGM Continued 16FEN1 10138 Federal Register / Vol. 88, No. 32 / Thursday, February 16, 2023 / Notices of the APIS test is to determine the feasibility of allowing carriers to use CBP’s TVS facial comparison service to comply with the carrier’s APIS verification requirements. The APIS TVS procedures are discussed in greater detail in the Procedures Section below. lotter on DSK11XQN23PROD with NOTICES1 Procedures The APIS test is voluntary for carriers and travelers. Eligible carriers may participate in this test by following the procedures outlined below in the Eligibility and Participation Requirements Section. Carriers who voluntarily participate in this test will collect facial images (photographs) of certain travelers at the gate or other identity check points. The carriers will then submit those facial images to CBP’s TVS facial comparison service.4 Carriers must submit photos at the time of boarding. Carriers may also submit photos at passenger check-in if the carriers elect to take photos at that identity check point. The submitted photographs will be compared to biometric templates 5 generated from pre-existing photographs that CBP already maintains, known as a ‘‘gallery.’’ When CBP receives a passenger manifest, CBP will build a gallery of photographs for the individuals identified on the manifest. These images may include photographs captured by CBP during previous entry inspections, photographs from U.S. passports and U.S. visas, and photographs from other DHS encounters. If the TVS matches the traveler’s facial image to a photograph in the gallery and the manifest information transmitted to CBP is correct, the carrier’s APIS verification requirements will be considered fulfilled and the carrier will not need to perform any additional identity or passenger manifest verification.6 If the traveler’s entry. For additional information on CBP’s TVS see the TVS Privacy Impact Assessment (PIA), available at: https://www.dhs.gov/publication/dhscbppia056-traveler-verification-service-0. 4 As noted in further detail below, individual travelers may opt out of the APIS test procedures if they do not wish to provide their facial image. 5 A biometric template is a digital representation of a biometric trait of an individual generated from a biometric image and processed by an algorithm. The template is usually represented as a sequence of characters and numbers. For the TVS, templates cannot be reverse engineered to recreate a biometric image. The templates generated for the TVS are proprietary to a specific vendor’s algorithm and cannot be used with another vendor’s algorithms. 6 Carriers still need to ensure that each traveler has a valid passport or authorized travel document in his or her possession. This separate check for a valid passport or authorized travel document fulfills the passenger manifest requirements for the United States, but there may be additional requirements from destination or transit countries. VerDate Sep<11>2014 16:51 Feb 15, 2023 Jkt 259001 facial image does not result in a match from TVS for any reason, the carrier will be required to verify the traveler’s identity through a manual review of the traveler’s travel documents pursuant to the existing APIS regulatory requirements. If a carrier identifies a traveler who has been incorrectly matched by the TVS to another passenger (referred to as a ‘‘false positive’’), the carrier will manually review the travel documents of any such false positives pursuant to current APIS requirements.7 The APIS test procedures described above involve the use of TVS facial comparison service, which depends on the traveler being photographed at the time of boarding or other identity checkpoints. If an individual traveler does not want to be photographed, the traveler can opt out of this procedure by notifying the carrier. CBP will require carriers to post clear and visible signs notifying travelers of their ability to opt out. Additionally, carriers may choose to give a verbal announcement during the boarding process and pass out tear sheets provided by CBP with additional information about CBP’s use of facial comparison technology. If a traveler opts out of the APIS test procedures, the carrier must perform a manual review of the travel documents to ensure the manifest information sent to CBP is correct and verify the traveler’s identity as required by the APIS regulations. CBP requires carriers to provide an electronic manifest listing all travelers pursuant to APIS regulations, regardless of the verification process used by the carrier. Eligibility and Participation Requirements Any commercial air or commercial sea carrier may apply to participate in the APIS test. In order to participate, a carrier must submit a request to participate in this test and must meet CBP requirements including those listed in the Business Requirements Document 8 and the Technical Reference Guides provided by CBP to the carriers. Upon request, CBP will provide the carrier with the full list of requirements for participation, which vary depending 7 In the unlikely event that a false positive results in the creation of an incorrect travel record, the traveler affected by the incorrect travel record can seek redress through the DHS Traveler Redress Inquiry Program (DHS TRIP) at https:// www.dhs.gov/dhs-trip or the CBP redress process, which can be found at https://www.cbp.gov/travel/ international-visitors/i-94/traveler-compliance. 8 Business Requirement Documents available at: https://www.cbp.gov/document/specifications/exitbusiness-requirements-document and https:// www.cbp.gov/document/specifications/exitbusiness-requirements-document. PO 00000 Frm 00064 Fmt 4703 Sfmt 4703 upon the specific circumstances of the carrier. Carriers must agree that they will not store or retain any photos taken while using TVS facial comparison services. They also must provide a method agreeable to CBP by which CBP is able to audit compliance with this requirement. Any system log files associated with a TVS enabled system must be approved by CBP to ensure compliance with DHS and CBP privacy and security policies and all applicable privacy statutes and regulations. The carrier must also sign and return the Business Requirements Document agreement to CBP in order to participate in the APIS test. The Business Requirements Document is an acknowledgement by the carrier that it agrees to all CBP terms and technical specifications as well as any other requirements as determined by CBP. Any carrier that wishes to participate in the APIS test may contact CBP via email at simplifytravel@cbp.dhs.gov to request the detailed technical requirements for participation from CBP, as well as to obtain a copy of the Business Requirements Document to be signed by the carrier. If the carrier wishes to participate in the test, they can return the signed Business Requirements document and CBP will coordinate with the carrier to ensure that the carrier’s systems meet the technical and privacy requirements as determined by CBP. It is within CBP’s sole discretion to refuse test participation for any carrier. Authorization for the Test The test described in this notice is authorized pursuant to 19 CFR 101.9(a), which allows the Commissioner of CBP to impose requirements different from those specified in the CBP regulations for conducting a test program or procedure designed to evaluate the effectiveness of new technology or operation procedures regarding the processing of passengers, vessels, or merchandise. This test is authorized pursuant to this regulation as it is designed to evaluate whether the use of CBP’s TVS technology is a feasible way for carriers to meet their APIS verification requirements. Waiver of Certain Regulatory Requirements Under this test, the requirement that carriers manually review travel documents to confirm that the electronic manifest information the carrier is transmitting to CBP is correct as well as the identity of the traveler prior to submission of the manifest data to CBP will be waived if CBP’s TVS returns a match of the traveler’s facial E:\FR\FM\16FEN1.SGM 16FEN1 Federal Register / Vol. 88, No. 32 / Thursday, February 16, 2023 / Notices image to a photograph in the gallery.9 For carriers participating in this test, when TVS returns a match of a traveler’s facial image, the carrier’s APIS verification requirements under 19 CFR 122.49a(d), 122.49b(d), 122.75a(d), and 122.75b(d) will be considered fulfilled without the carrier further inspecting the traveler’s travel documents.10 As noted above, if CBP’s TVS does not return a match of the traveler’s facial image, the carrier will still be required to perform the manual document check to fulfill the carrier’s APIS verification requirements. Costs CBP will give carriers access to its TVS facial comparison service, and the carriers will choose and purchase the equipment that best fits their needs. The cost of the equipment will vary by carrier and may depend on how the equipment is used. CBP believes costs will range from $5,000 to $20,000 per departure gate, based on its experience procuring equipment for previous CBP facial comparison pilots. It is also possible that costs will go down substantially over time as carriers develop more efficient and inexpensive equipment. For example, the Washington Metropolitan Airports Authority has begun using modified iPads for its facial comparison pilot.11 If this equipment is successful and is adopted more broadly, the cost to carriers could drop substantially. lotter on DSK11XQN23PROD with NOTICES1 Benefits The goal of the APIS test procedure is to enable carriers to satisfy the APIS verification requirements more accurately and efficiently by eliminating the manual data and identity verification process in most cases. As noted in the Evaluation section below, CBP will evaluate whether the test procedure is more accurate than the current regulatory procedure. Performing biometric identity verification can help CBP and partner stakeholders reconcile any errors or incomplete data in a traveler’s biographic data. CBP anticipates that having a more accurate verification will result in more accurate border crossing 9 However, in the event of a ‘‘false positive’’ as discussed above, the carrier will still be required to manually review the travel documents in accordance with the requirements of 19 CFR 122.49a(d), 122.49b(d), 122.75a(d), and 122.75b(d). 10 As noted above, carriers still need to ensure each traveler has a valid passport or authorized travel document in his or her possession. 11 Source: https://www.washingtonpost.com/ transportation/2018/09/06/officials-unveil-newfacial-recognition-system-dulles-internationalairport/?noredirect=on&utm_term=.ae3fdefbd1a6. Accessed June 4, 2020. VerDate Sep<11>2014 16:51 Feb 15, 2023 Jkt 259001 records of travelers. By having more accurate border crossing records of travelers, CBP can more effectively identify overstays and noncitizens 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. Ultimately, this provides CBP with more reliable information to verify identity and to strengthen its ability to identify criminals and known or suspected terrorists. The use of TVS technology for APIS verification purposes has the potential to speed up the departure process for both carriers and travelers, as it enables travelers to be matched more efficiently to their travel documents. Various airlines have already partnered with CBP to test facial comparison in other contexts pursuant to regulations in Title 8 of the Code of Federal Regulations. These other programs are unrelated to APIS compliance, and participants have reported that facial comparison tests speed up the boarding process substantially.12 Duration of Test This test will run for at most two years from February 16, 2023. While the test is ongoing, CBP will evaluate the results and determine whether the test should be extended or otherwise modified. CBP reserves the right to discontinue this test at any time at CBP’s sole discretion. CBP will announce any modifications by notice in the Federal Register. Evaluation of APIS Test CBP will use the results of this test to assess the operational feasibility of using TVS facial comparison service for the purposes of compliance with the APIS verification requirements. CBP will evaluate this test based on a number of criteria, including: • the percentage of travelers for whom CBP had a gallery photo available for matching purposes; and 12 In one test, an airline partner has been able to board an Airbus A–380 with 350 travelers in only 20 minutes. (https://www.cntraveler.com/story/ orlando-airport-first-in-the-us-to-scan-faces-of-allinternational-passengers. Accessed June 4, 2020.) 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 comparison service 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. (https:// www.forbes.com/sites/grantmartin/2018/06/24/ orlando-airport-deploys-biometric-scanners-at-allinternational-gates/#2a4a588118f9. Accessed June 4, 2020.) In both tests, boarding times are reduced by approximately 50 percent. PO 00000 Frm 00065 Fmt 4703 Sfmt 4703 10139 • the ability of the technology to correctly match the facial images captured to the correct individuals’ facial image(s) on file, including continued tracking of any differences in matching performance based on measurable demographic factors. CBP’s operational data continues to show there is no measurable differential performance in matching based on demographic factors. CBP continually monitors algorithm performance and technology enhancements to ensure we are deploying the most accurate and effective algorithm. CBP continues to partner with the National Institute of Standards and Technology (NIST) and use NIST research to ensure the continued optimal performance.13 CBP will continue its review of matches and no-matches to determine the reason for such a match, including whether the match was based on a demographic factor (age, gender, citizenship). CBP will continue to work both internally and with partners to identify and remediate disparate impacts and other forms of bias and discrimination, if any.14 Misconduct Under the Test If a carrier participating in the test fails to abide by the rules, procedures, or terms and conditions of this test, fails to exercise reasonable care in the execution of participant obligations, or otherwise fails to comply with all applicable laws and regulations, then the participant may be suspended from participation in this test and/or subjected to penalties, liquidated damages, and/or other administrative or judicial sanction under APIS regulations. If CBP determines that a suspension is warranted, CBP will notify the participant of this decision, the facts or conduct warranting suspension, and the 13 In July 2021, NIST published its Face Recognition Vendor Test (FRVT) Part 7: Identification for Paperless Travel and Immigration, available at: https://nvlpubs.nist.gov/nistpubs/ir/ 2021/NIST.IR.8381.pdf. The report demonstrates that the current biometric facial recognition technology passes the threshold for use in CBP’s Biometric Exit Program, based on computer-focused simulations. In December 2019, NIST published the FRVT Part 3: Demographic Effects, available at: https://nvlpubs.nist.gov/nistpubs/ir/2021/NIST.IR. 8381.pdf. As the report demonstrates, NEC–3, which CBP uses, is among the algorithms with an undetectable false positive differential. NIST also noted, ‘‘NEC–3, is on many measures the most accurate we have evaluated,’’ see page 8 of the report. 14 Information regarding biometric matching performance can be found on CBP’s website at https://biometrics.cbp.gov/privacy which includes a link to CBP’s Privacy Evaluation Report as well as the TVS Privacy Impact Assessment (PIA). The PIA is also available at https://www.dhs.gov/privacydocuments-us-customs-and-border-protection. E:\FR\FM\16FEN1.SGM 16FEN1 10140 Federal Register / Vol. 88, No. 32 / Thursday, February 16, 2023 / Notices date when the suspension will be effective. This decision may be appealed in writing to the Executive Assistant Commissioner, Office of Field Operations, within 15 days of notification. The appeal should address the facts or conduct charges contained in the notice and state how the participant has or will achieve compliance. CBP will notify the participant within 30 days of receipt of an appeal whether the appeal is granted. If the appeal is granted and the participant has already been suspended, CBP will notify the participant when its participation in the test will be reinstated. Privacy CBP will ensure that all Privacy Act requirements and applicable DHS privacy policies are adhered to during this test.15 Pursuant to these requirements, CBP will delete photos of U.S. citizens immediately upon confirmation of U.S. citizenship.16 CBP will retain photos of all noncitizens 17 and no-matches for up to 14 days in the Automated Targeting System (ATS). DHS may retain the facial images of inscope 18 noncitizens for up to 75 years in DHS’s Automated Biometric Identification System (IDENT) system, and any successor system. CBP has issued a Privacy Impact Assessment (PIA) for TVS, which outlines how CBP ensures compliance with Privacy Act protections and DHS privacy policies, including DHS’s Fair Information Practice Principles (FIPPs). The FIPPs account for the nature and purpose of the information being collected in relation to DHS’s mission to preserve, protect and secure the United States. The PIA addresses issues such as the security, integrity, and sharing of data, use limitation and transparency. The PIA is publicly available at: https:// www.dhs.gov/privacy-documents-uscustoms-and-border-protection. lotter on DSK11XQN23PROD with NOTICES1 15 See 8 U.S.C. 552a and https://www.dhs.gov/ privacy-policy-guidance. 16 Photos of U.S. citizens are destroyed immediately upon confirmation of U.S. citizenship, but no later than 12 hours only under specific circumstances. If there is a system or network issue, photos will reside in an inaccessible queue for up to 12 hours and will be processed once the system and/or network connectivity is re-established and proper dispositioning (confirmation of U.S. citizenship) can occur. Further information about the retention of facial images is provided in the TVS Privacy Impact Assessment (PIA). It is available at https://www.dhs.gov/privacy-documents-uscustoms-and-border-protection. 17 For purposes of this document, CBP uses the term ‘‘noncitizen’’ in place of the term ‘‘alien.’’ However, CBP regulations use the term ‘‘alien.’’ 18 An ‘‘in-scope’’ noncitizen is any person who is required by law to provide biometrics upon entry or exit from the United States pursuant to 8 CFR 215.8(a) and 235.1(f). VerDate Sep<11>2014 16:51 Feb 15, 2023 Jkt 259001 CBP has also issued the DHS/CBP– 005 APIS System of Records Notice (SORN) and the APIS PIA, as well as the DHS/CBP–007 Border Crossing Information (BCI) SORN and the DHS/ CBP–006 Automated Targeting System (ATS) SORN. These documents encompass all data collected for APIS compliance, as well as data collected to create border crossing records for individuals. CBP will create new documents or update these documents as needed to reflect the use of biometric data for the purposes of this test and will make these documents available at: https://www.dhs.gov/compliance. Paperwork Reduction Act The Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3507(d)) requires that CBP consider the impact of paperwork and other information collection burdens imposed on the public. 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 the Office of Management and Budget (OMB). This information collection is covered by OMB control numbers 1651– 0138 Biometric Identity and 1651–0088 Passenger and Crew Manifest. Signing Authority Troy A. Miller, the Acting Commissioner of CBP, having reviewed and approved this document, is delegating the authority to electronically sign this document to Robert F. Altneu, who is the Director of the Regulations and Disclosure Law Division for CBP, for purposes of publication in the Federal Register. Dated: February 13, 2023. Robert F. Altneu, Director, Regulations & Disclosure Law Division, Regulations & Rulings, Office of Trade, U.S. Customs and Border Protection. [FR Doc. 2023–03285 Filed 2–15–23; 8:45 am] BILLING CODE 9111–14–P DEPARTMENT OF HOMELAND SECURITY U.S. Customs and Border Protection Section 321 Data Pilot: Modification of Data Elements, Expansion of Pilot To Include Additional Test Participants, and Extension of Pilot U.S. Customs and Border Protection; Department of Homeland Security. ACTION: General notice. AGENCY: This notice announces that U.S. Customs and Border Protection SUMMARY: PO 00000 Frm 00066 Fmt 4703 Sfmt 4703 (CBP) is modifying the Section 321 Data Pilot by adding optional data elements that may be submitted by any participant. CBP is also expanding the Section 321 Data Pilot to accept applications for additional participants in this test from all parties that meet the eligibility requirements. This notice also announces that CBP is extending the Section 321 Data Pilot through August 2025. DATES: The voluntary pilot initially began on August 22, 2019, and will run through August 2025. The modifications of the data elements and expansion of the test to include additional participants set forth in this document are effective as of the date of publication of this notice in the Federal Register. ADDRESSES: Prospective pilot participants should submit an email to ecommerce@cbp.dhs.gov. In the subject line of your email please state, ‘‘Application for Section 321 Data Pilot.’’ For information on what to include in the email, see section II.D (Application Process and Acceptance) of the notice published in the Federal Register on July 23, 2019 (84 FR 35405). FOR FURTHER INFORMATION CONTACT: Christopher Mabelitini, Director, Intellectual Property Rights & ECommerce Division at ecommerce@ cbp.dhs.gov or 202–325–6915. SUPPLEMENTARY INFORMATION: I. Section 321 Data Pilot Section 321(a)(2)(C) of the Tariff Act of 1930, as amended, provides for an exemption from duty and taxes for shipments of merchandise imported by one person on one day having an aggregate fair retail value in the country of shipment of not more than $800. See 19 U.S.C. 1321(a)(2)(C). On July 23, 2019, U.S. Customs and Border Protection (CBP) published a general notice in the Federal Register (84 FR 35405) (July 2019 notice) introducing a voluntary Section 321 Data Pilot with a limit of nine participants. In accordance with the pilot, participants agree to transmit electronically certain data in advance of arrival for shipments potentially eligible for release under section 321 of the Tariff Act of 1930, as amended (Section 321 shipments). The data pilot tests the feasibility of collecting certain advance data, beyond those required by current regulations, and of collecting data from nontraditional entities, such as online marketplaces, in order to effectively identify and target high-risk shipments in the e-commerce environment. With the expansion of the data pilot, CBP intends to increase the number of trade participants who are transmitting E:\FR\FM\16FEN1.SGM 16FEN1

Agencies

[Federal Register Volume 88, Number 32 (Thursday, February 16, 2023)]
[Notices]
[Pages 10137-10140]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-03285]


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DEPARTMENT OF HOMELAND SECURITY

U.S. Customs and Border Protection


Facial Comparison for APIS Compliance Test

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

ACTION: General notice.

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SUMMARY: This document announces that U.S. Customs and Border 
Protection (CBP) plans to conduct a voluntary test in which 
participating commercial airlines and vessels use CBP's Traveler 
Verification Service (TVS) facial comparison service to comply with 
certain regulatory requirements regarding the Advance Passenger 
Information System (APIS). CBP regulations currently require an 
appropriate official of commercial aircraft and commercial vessels 
(collectively ``carriers'') to submit electronic manifests to CBP 
listing crew, non-crew, and passenger (collectively ``travelers'') 
information upon arrival and departure of aircraft and vessels. The 
carrier is required to compare the travel documents presented by the 
travelers with the information the carrier submits to CBP to, among 
other things, ensure that the information is correct and that each 
traveler is the person to whom the travel document was issued. 
Additionally, the carrier is required to ensure that the travel 
document presented is valid for travel to the United States. 
Participation in this pilot does not remove this requirement for 
carriers. During this test, participating carriers will use the 
existing TVS facial comparison service to ensure the manifest 
information transmitted to CBP is correct and to perform the required 
identity verification. The use of TVS technology for APIS verification 
purposes has the potential to speed up the departure process for both 
carriers and travelers, as it enables travelers to be matched more 
efficiently to their travel documents. This notice provides a 
description of the test, sets forth requirements for participation, and 
invites public comment on any aspect of the test.

DATES: The test will begin no earlier than February 16, 2023 and will 
run for at most two years. CBP is accepting applications from carriers 
to participate in the test on a rolling basis throughout the two-year 
testing period. CBP will announce any modifications by notice in the 
Federal Register.

ADDRESSES: Applications to participate in the Facial Comparison for 
APIS Compliance Test must be submitted via email to 
[email protected]. Written comments concerning program, 
policy, and technical issues may also be submitted via email to 
[email protected].

FOR FURTHER INFORMATION CONTACT: Natascha A. Gutermuth, Program 
Manager, Admissibility and Passenger Programs, Office of Field 
Operations, [email protected] or (202) 417-0096.

SUPPLEMENTARY INFORMATION:

Background

APIS Requirements

    The Advance Passenger Information System (APIS) is an electronic 
data system that allows carriers to transmit traveler data to CBP. 
Under the relevant statutes and CBP regulations, an appropriate 
official \1\ of each carrier arriving in or departing from the United 
States must transmit an electronic manifest to CBP's APIS system for 
all travelers within a specified timeframe (generally before the vessel 
or aircraft departs, though the exact timeframe varies, depending on 
the circumstances of the trip and type of carrier). See 8 U.S.C. 1221, 
19 U.S.C. 1433, and 49 U.S.C. 44909; 19 CFR 4.7b(b), 4.64(b), 
122.49a(b), 122.49b(b), 122.49c, 122.75a(b), and 122.75b(b). The 
electronic manifest must include the travelers' biographic information 
including name, age, gender, date of birth, citizenship, passport 
number if relevant, and numerous other biographic data elements 
depending upon the type of traveler (e.g., crew or passenger), as well 
as such other information as determined necessary by the Secretary of 
the Department of Homeland Security (DHS),\2\ in consultation with the 
Secretary of State, for flights and vessels arriving in and departing 
from the United States, or as determined necessary by the Administrator 
of the Transportation Security Administration (TSA), in consultation 
with the Commissioner of CBP, for flights arriving in the United 
States. See 8 U.S.C. 1221; 49 U.S.C. 44909. Among other things, the 
carrier must compare the travel document presented by the traveler with 
the information the carrier is transmitting to CBP on the electronic 
manifest in order to (1) verify that the manifest information 
transmitted to CBP is correct and (2) verify that the traveler is the 
person to whom the travel document was issued. These two requirements 
will be referred to in this document as the ``APIS verification 
requirements''. See 19 CFR 4.7b(d), 4.64(d), 122.49a(d), 122.49b(d), 
122.75a(d), and 122.75b(d).
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    \1\ An ``appropriate official'' is defined as the master or 
commanding officer, or authorized agent, owner, or consignee of a 
commercial aircraft or vessel; this term and the term ``carrier'' 
are sometimes used interchangeably within the regulations. See title 
19 of the Code of Federal Regulations parts 4 and 122 (19 CFR parts 
4 and 122).
    \2\ Upon the creation of the Department of Homeland Security 
(DHS), through the Homeland Security Act of 2002, Public Law 107-
296, 116 Stat. 2140 (2002), and the Department of Homeland Security 
Reorganization Plan of November 25, 2002, as modified, the functions 
of the Immigration and Naturalization Service (INS) of the 
Department of Justice, and all authorities with respect to those 
functions were transferred to DHS on March 1, 2003.
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The Facial Comparison for APIS Compliance Test

Description and Purpose

    CBP plans to conduct a voluntary test (the ``Facial Comparison for 
APIS Compliance Test'' or the ``APIS test'') in which participating 
commercial airlines and vessels use CBP's Traveler Verification Service 
(TVS) facial comparison service to comply with the APIS verification 
requirements referenced in the background section of this document. 
CBP's TVS facial comparison service is part of an information 
technology system that provides facial matching for photos to verify 
the identity of travelers entering and leaving the United States 
pursuant to 8 CFR 215.8 and 235.1.\3\ The purpose

[[Page 10138]]

of the APIS test is to determine the feasibility of allowing carriers 
to use CBP's TVS facial comparison service to comply with the carrier's 
APIS verification requirements. The APIS TVS procedures are discussed 
in greater detail in the Procedures Section below.
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    \3\ TVS is used at participating ports of entry and with 
participating carriers to biometrically confirm the identity of 
noncitizens who are subject to biometric facial comparison when 
entering and exiting the United States pursuant to 8 CFR 215.8 and 
235.1. Additionally, TVS is used for other travelers who submit 
their facial images voluntarily to participating carriers or at 
participating ports of entry. For additional information on CBP's 
TVS see the TVS Privacy Impact Assessment (PIA), available at: 
https://www.dhs.gov/publication/dhscbppia-056-traveler-verification-service-0.
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Procedures

    The APIS test is voluntary for carriers and travelers. Eligible 
carriers may participate in this test by following the procedures 
outlined below in the Eligibility and Participation Requirements 
Section.
    Carriers who voluntarily participate in this test will collect 
facial images (photographs) of certain travelers at the gate or other 
identity check points. The carriers will then submit those facial 
images to CBP's TVS facial comparison service.\4\ Carriers must submit 
photos at the time of boarding. Carriers may also submit photos at 
passenger check-in if the carriers elect to take photos at that 
identity check point. The submitted photographs will be compared to 
biometric templates \5\ generated from pre-existing photographs that 
CBP already maintains, known as a ``gallery.'' When CBP receives a 
passenger manifest, CBP will build a gallery of photographs for the 
individuals identified on the manifest. These images may include 
photographs captured by CBP during previous entry inspections, 
photographs from U.S. passports and U.S. visas, and photographs from 
other DHS encounters.
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    \4\ As noted in further detail below, individual travelers may 
opt out of the APIS test procedures if they do not wish to provide 
their facial image.
    \5\ A biometric template is a digital representation of a 
biometric trait of an individual generated from a biometric image 
and processed by an algorithm. The template is usually represented 
as a sequence of characters and numbers. For the TVS, templates 
cannot be reverse engineered to recreate a biometric image. The 
templates generated for the TVS are proprietary to a specific 
vendor's algorithm and cannot be used with another vendor's 
algorithms.
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    If the TVS matches the traveler's facial image to a photograph in 
the gallery and the manifest information transmitted to CBP is correct, 
the carrier's APIS verification requirements will be considered 
fulfilled and the carrier will not need to perform any additional 
identity or passenger manifest verification.\6\ If the traveler's 
facial image does not result in a match from TVS for any reason, the 
carrier will be required to verify the traveler's identity through a 
manual review of the traveler's travel documents pursuant to the 
existing APIS regulatory requirements. If a carrier identifies a 
traveler who has been incorrectly matched by the TVS to another 
passenger (referred to as a ``false positive''), the carrier will 
manually review the travel documents of any such false positives 
pursuant to current APIS requirements.\7\
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    \6\ Carriers still need to ensure that each traveler has a valid 
passport or authorized travel document in his or her possession. 
This separate check for a valid passport or authorized travel 
document fulfills the passenger manifest requirements for the United 
States, but there may be additional requirements from destination or 
transit countries.
    \7\ In the unlikely event that a false positive results in the 
creation of an incorrect travel record, the traveler affected by the 
incorrect travel record can seek redress through the DHS Traveler 
Redress Inquiry Program (DHS TRIP) at https://www.dhs.gov/dhs-trip 
or the CBP redress process, which can be found at https://www.cbp.gov/travel/international-visitors/i-94/traveler-compliance.
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    The APIS test procedures described above involve the use of TVS 
facial comparison service, which depends on the traveler being 
photographed at the time of boarding or other identity checkpoints. If 
an individual traveler does not want to be photographed, the traveler 
can opt out of this procedure by notifying the carrier. CBP will 
require carriers to post clear and visible signs notifying travelers of 
their ability to opt out. Additionally, carriers may choose to give a 
verbal announcement during the boarding process and pass out tear 
sheets provided by CBP with additional information about CBP's use of 
facial comparison technology. If a traveler opts out of the APIS test 
procedures, the carrier must perform a manual review of the travel 
documents to ensure the manifest information sent to CBP is correct and 
verify the traveler's identity as required by the APIS regulations. CBP 
requires carriers to provide an electronic manifest listing all 
travelers pursuant to APIS regulations, regardless of the verification 
process used by the carrier.

Eligibility and Participation Requirements

    Any commercial air or commercial sea carrier may apply to 
participate in the APIS test. In order to participate, a carrier must 
submit a request to participate in this test and must meet CBP 
requirements including those listed in the Business Requirements 
Document \8\ and the Technical Reference Guides provided by CBP to the 
carriers. Upon request, CBP will provide the carrier with the full list 
of requirements for participation, which vary depending upon the 
specific circumstances of the carrier. Carriers must agree that they 
will not store or retain any photos taken while using TVS facial 
comparison services. They also must provide a method agreeable to CBP 
by which CBP is able to audit compliance with this requirement. Any 
system log files associated with a TVS enabled system must be approved 
by CBP to ensure compliance with DHS and CBP privacy and security 
policies and all applicable privacy statutes and regulations.
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    \8\ Business Requirement Documents available at: https://www.cbp.gov/document/specifications/exit-business-requirements-document and https://www.cbp.gov/document/specifications/exit-business-requirements-document.
_____________________________________-

    The carrier must also sign and return the Business Requirements 
Document agreement to CBP in order to participate in the APIS test. The 
Business Requirements Document is an acknowledgement by the carrier 
that it agrees to all CBP terms and technical specifications as well as 
any other requirements as determined by CBP.
    Any carrier that wishes to participate in the APIS test may contact 
CBP via email at [email protected] to request the detailed 
technical requirements for participation from CBP, as well as to obtain 
a copy of the Business Requirements Document to be signed by the 
carrier. If the carrier wishes to participate in the test, they can 
return the signed Business Requirements document and CBP will 
coordinate with the carrier to ensure that the carrier's systems meet 
the technical and privacy requirements as determined by CBP.
    It is within CBP's sole discretion to refuse test participation for 
any carrier.

Authorization for the Test

    The test described in this notice is authorized pursuant to 19 CFR 
101.9(a), which allows the Commissioner of CBP to impose requirements 
different from those specified in the CBP regulations for conducting a 
test program or procedure designed to evaluate the effectiveness of new 
technology or operation procedures regarding the processing of 
passengers, vessels, or merchandise. This test is authorized pursuant 
to this regulation as it is designed to evaluate whether the use of 
CBP's TVS technology is a feasible way for carriers to meet their APIS 
verification requirements.

Waiver of Certain Regulatory Requirements

    Under this test, the requirement that carriers manually review 
travel documents to confirm that the electronic manifest information 
the carrier is transmitting to CBP is correct as well as the identity 
of the traveler prior to submission of the manifest data to CBP will be 
waived if CBP's TVS returns a match of the traveler's facial

[[Page 10139]]

image to a photograph in the gallery.\9\ For carriers participating in 
this test, when TVS returns a match of a traveler's facial image, the 
carrier's APIS verification requirements under 19 CFR 122.49a(d), 
122.49b(d), 122.75a(d), and 122.75b(d) will be considered fulfilled 
without the carrier further inspecting the traveler's travel 
documents.\10\
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    \9\ However, in the event of a ``false positive'' as discussed 
above, the carrier will still be required to manually review the 
travel documents in accordance with the requirements of 19 CFR 
122.49a(d), 122.49b(d), 122.75a(d), and 122.75b(d).
    \10\ As noted above, carriers still need to ensure each traveler 
has a valid passport or authorized travel document in his or her 
possession.
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    As noted above, if CBP's TVS does not return a match of the 
traveler's facial image, the carrier will still be required to perform 
the manual document check to fulfill the carrier's APIS verification 
requirements.

Costs

    CBP will give carriers access to its TVS facial comparison service, 
and the carriers will choose and purchase the equipment that best fits 
their needs. The cost of the equipment will vary by carrier and may 
depend on how the equipment is used. CBP believes costs will range from 
$5,000 to $20,000 per departure gate, based on its experience procuring 
equipment for previous CBP facial comparison pilots. It is also 
possible that costs will go down substantially over time as carriers 
develop more efficient and inexpensive equipment. For example, the 
Washington Metropolitan Airports Authority has begun using modified 
iPads for its facial comparison pilot.\11\ If this equipment is 
successful and is adopted more broadly, the cost to carriers could drop 
substantially.
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    \11\ Source: https://www.washingtonpost.com/transportation/2018/09/06/officials-unveil-new-facial-recognition-system-dulles-international-airport/?noredirect=on&utm_term=.ae3fdefbd1a6. 
Accessed June 4, 2020.
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Benefits

    The goal of the APIS test procedure is to enable carriers to 
satisfy the APIS verification requirements more accurately and 
efficiently by eliminating the manual data and identity verification 
process in most cases. As noted in the Evaluation section below, CBP 
will evaluate whether the test procedure is more accurate than the 
current regulatory procedure. Performing biometric identity 
verification can help CBP and partner stakeholders reconcile any errors 
or incomplete data in a traveler's biographic data. CBP anticipates 
that having a more accurate verification will result in more accurate 
border crossing records of travelers. By having more accurate border 
crossing records of travelers, CBP can more effectively identify 
overstays and noncitizens 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. 
Ultimately, this provides CBP with more reliable information to verify 
identity and to strengthen its ability to identify criminals and known 
or suspected terrorists.
    The use of TVS technology for APIS verification purposes has the 
potential to speed up the departure process for both carriers and 
travelers, as it enables travelers to be matched more efficiently to 
their travel documents. Various airlines have already partnered with 
CBP to test facial comparison in other contexts pursuant to regulations 
in Title 8 of the Code of Federal Regulations. These other programs are 
unrelated to APIS compliance, and participants have reported that 
facial comparison tests speed up the boarding process 
substantially.\12\
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    \12\ In one test, an airline partner has been able to board an 
Airbus A-380 with 350 travelers in only 20 minutes. (https://www.cntraveler.com/story/orlando-airport-first-in-the-us-to-scan-faces-of-all-international-passengers. Accessed June 4, 2020.) 
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 comparison service 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. (https://www.forbes.com/sites/grantmartin/2018/06/24/orlando-airport-deploys-biometric-scanners-at-all-international-gates/#2a4a588118f9. Accessed June 4, 2020.) In both tests, boarding times 
are reduced by approximately 50 percent.
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Duration of Test

    This test will run for at most two years from February 16, 2023. 
While the test is ongoing, CBP will evaluate the results and determine 
whether the test should be extended or otherwise modified. CBP reserves 
the right to discontinue this test at any time at CBP's sole 
discretion. CBP will announce any modifications by notice in the 
Federal Register.

Evaluation of APIS Test

    CBP will use the results of this test to assess the operational 
feasibility of using TVS facial comparison service for the purposes of 
compliance with the APIS verification requirements. CBP will evaluate 
this test based on a number of criteria, including:
     the percentage of travelers for whom CBP had a gallery 
photo available for matching purposes; and
     the ability of the technology to correctly match the 
facial images captured to the correct individuals' facial image(s) on 
file, including continued tracking of any differences in matching 
performance based on measurable demographic factors.
    CBP's operational data continues to show there is no measurable 
differential performance in matching based on demographic factors. CBP 
continually monitors algorithm performance and technology enhancements 
to ensure we are deploying the most accurate and effective algorithm. 
CBP continues to partner with the National Institute of Standards and 
Technology (NIST) and use NIST research to ensure the continued optimal 
performance.\13\ CBP will continue its review of matches and no-matches 
to determine the reason for such a match, including whether the match 
was based on a demographic factor (age, gender, citizenship). CBP will 
continue to work both internally and with partners to identify and 
remediate disparate impacts and other forms of bias and discrimination, 
if any.\14\
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    \13\ In July 2021, NIST published its Face Recognition Vendor 
Test (FRVT) Part 7: Identification for Paperless Travel and 
Immigration, available at: https://nvlpubs.nist.gov/nistpubs/ir/2021/NIST.IR.8381.pdf. The report demonstrates that the current 
biometric facial recognition technology passes the threshold for use 
in CBP's Biometric Exit Program, based on computer-focused 
simulations. In December 2019, NIST published the FRVT Part 3: 
Demographic Effects, available at: https://nvlpubs.nist.gov/nistpubs/ir/2021/NIST.IR.8381.pdf. As the report demonstrates, NEC-
3, which CBP uses, is among the algorithms with an undetectable 
false positive differential. NIST also noted, ``NEC-3, is on many 
measures the most accurate we have evaluated,'' see page 8 of the 
report.
    \14\ Information regarding biometric matching performance can be 
found on CBP's website at https://biometrics.cbp.gov/privacy which 
includes a link to CBP's Privacy Evaluation Report as well as the 
TVS Privacy Impact Assessment (PIA). The PIA is also available at 
https://www.dhs.gov/privacy-documents-us-customs-and-border-protection.
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Misconduct Under the Test

    If a carrier participating in the test fails to abide by the rules, 
procedures, or terms and conditions of this test, fails to exercise 
reasonable care in the execution of participant obligations, or 
otherwise fails to comply with all applicable laws and regulations, 
then the participant may be suspended from participation in this test 
and/or subjected to penalties, liquidated damages, and/or other 
administrative or judicial sanction under APIS regulations.
    If CBP determines that a suspension is warranted, CBP will notify 
the participant of this decision, the facts or conduct warranting 
suspension, and the

[[Page 10140]]

date when the suspension will be effective. This decision may be 
appealed in writing to the Executive Assistant Commissioner, Office of 
Field Operations, within 15 days of notification. The appeal should 
address the facts or conduct charges contained in the notice and state 
how the participant has or will achieve compliance. CBP will notify the 
participant within 30 days of receipt of an appeal whether the appeal 
is granted. If the appeal is granted and the participant has already 
been suspended, CBP will notify the participant when its participation 
in the test will be reinstated.

Privacy

    CBP will ensure that all Privacy Act requirements and applicable 
DHS privacy policies are adhered to during this test.\15\ Pursuant to 
these requirements, CBP will delete photos of U.S. citizens immediately 
upon confirmation of U.S. citizenship.\16\ CBP will retain photos of 
all noncitizens \17\ and no-matches for up to 14 days in the Automated 
Targeting System (ATS). DHS may retain the facial images of in-scope 
\18\ noncitizens for up to 75 years in DHS's Automated Biometric 
Identification System (IDENT) system, and any successor system.
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    \15\ See 8 U.S.C. 552a and https://www.dhs.gov/privacy-policy-guidance.
    \16\ Photos of U.S. citizens are destroyed immediately upon 
confirmation of U.S. citizenship, but no later than 12 hours only 
under specific circumstances. If there is a system or network issue, 
photos will reside in an inaccessible queue for up to 12 hours and 
will be processed once the system and/or network connectivity is re-
established and proper dispositioning (confirmation of U.S. 
citizenship) can occur. Further information about the retention of 
facial images is provided in the TVS Privacy Impact Assessment 
(PIA). It is available at https://www.dhs.gov/privacy-documents-us-customs-and-border-protection.
    \17\ For purposes of this document, CBP uses the term 
``noncitizen'' in place of the term ``alien.'' However, CBP 
regulations use the term ``alien.''
    \18\ An ``in-scope'' noncitizen is any person who is required by 
law to provide biometrics upon entry or exit from the United States 
pursuant to 8 CFR 215.8(a) and 235.1(f).
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    CBP has issued a Privacy Impact Assessment (PIA) for TVS, which 
outlines how CBP ensures compliance with Privacy Act protections and 
DHS privacy policies, including DHS's Fair Information Practice 
Principles (FIPPs). The FIPPs account for the nature and purpose of the 
information being collected in relation to DHS's mission to preserve, 
protect and secure the United States. The PIA addresses issues such as 
the security, integrity, and sharing of data, use limitation and 
transparency. The PIA is publicly available at: https://www.dhs.gov/privacy-documents-us-customs-and-border-protection.
    CBP has also issued the DHS/CBP-005 APIS System of Records Notice 
(SORN) and the APIS PIA, as well as the DHS/CBP-007 Border Crossing 
Information (BCI) SORN and the DHS/CBP-006 Automated Targeting System 
(ATS) SORN. These documents encompass all data collected for APIS 
compliance, as well as data collected to create border crossing records 
for individuals. CBP will create new documents or update these 
documents as needed to reflect the use of biometric data for the 
purposes of this test and will make these documents available at: 
https://www.dhs.gov/compliance.

Paperwork Reduction Act

    The Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3507(d)) 
requires that CBP consider the impact of paperwork and other 
information collection burdens imposed on the public. 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 the Office of Management and Budget (OMB). 
This information collection is covered by OMB control numbers 1651-0138 
Biometric Identity and 1651-0088 Passenger and Crew Manifest.

Signing Authority

    Troy A. Miller, the Acting Commissioner of CBP, having reviewed and 
approved this document, is delegating the authority to electronically 
sign this document to Robert F. Altneu, who is the Director of the 
Regulations and Disclosure Law Division for CBP, for purposes of 
publication in the Federal Register.

    Dated: February 13, 2023.
Robert F. Altneu,
Director, Regulations & Disclosure Law Division, Regulations & Rulings, 
Office of Trade, U.S. Customs and Border Protection.
[FR Doc. 2023-03285 Filed 2-15-23; 8:45 am]
BILLING CODE 9111-14-P

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