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DEPARTMENT OF HOMELAND ability to receive public comments by IV. Proposed Regulatory Changes SECURITY mail. A. General Biometric Exit Requirement for Instructions: All submissions received Aliens 8 CFR Parts 215 and 235 must include the agency name and B. Collection of Photographs From Aliens docket number for this rulemaking. All Upon Entry and Departure [Docket No. USCBP–2020–0062] C. Collection of Biometrics When comments received will be posted Departing the United States and Other RIN 1651–AB12 without change to http:// Minor Conforming and Editorial Changes www.regulations.gov, including any V. Withdrawal of 2008 Air Exit Notice of Collection of Biometric Data From personal information provided. For Proposed Rulemaking Aliens Upon Entry to and Departure detailed instructions on submitting VI. Statutory and Regulatory Requirements From the United States comments, see the ‘‘Public A. Executive Orders 12866 and 13563 Participation’’ heading of the 1. Need and Purpose of the Rule 2. Background, Baseline and Affected AGENCY: U.S. Customs and Border SUPPLEMENTARY INFORMATION section of Population Protection, Department of Homeland this document. Security. 3. Costs Docket: For access to the docket to 4. Cost Savings ACTION: Notice of proposed rulemaking. read background documents or 5. Benefits comments received, go to http:// 6. Net Benefits SUMMARY: The Department of Homeland www.regulations.gov. Due to COVID–19 7. Alternative Analysis Security (DHS) is required by statute to related restrictions, CBP has temporarily B. Regulatory Flexibility Act develop and implement an integrated, suspended its on-site public inspection C. Paperwork Reduction Act automated entry and exit data system to of submitted comments. D. Privacy match records, including biographic E. National Environmental Policy Act FOR FURTHER INFORMATION CONTACT: F. Signature data and biometrics, of aliens entering Michael Hardin, Director, Entry/Exit and departing the United States. Policy and Planning, Office of Field Table of Abbreviations and Acronyms Although the current regulations Operations, U.S. Customs and Border APC—Automated Passport Control provide that DHS may require certain Protection, by phone at (202) 325–1053 ADIS—Arrival and Departure Information aliens to provide biometrics when or via email at michael.hardin@ System entering and departing the United cbp.dhs.gov. APIS—Advance Passenger Information States, they only authorize DHS to System require certain aliens to provide SUPPLEMENTARY INFORMATION: CBP—U.S. Customs and Border Protection biometrics upon departure under pilot Table of Contents DHS—Department of Homeland Security programs at land ports and at up to 15 DHS TRIP—DHS Traveler Redress Inquiry I. Public Participation Program airports and seaports. To advance the II. Executive Summary legal framework for DHS to begin a DOJ—Department of Justice III. Background DOS—Department of State comprehensive biometric entry-exit A. Statutory and Executive Authority DMIA—Immigration and Naturalization system, DHS is proposing to amend the B. Current Entry-Exit Process Service Data Management Improvement Act regulations to remove the references to 1. APIS Data Collection of 2000 pilot programs and the port limitation to 2. Current Entry Process ICE—U.S. Immigration and Customs permit collection of biometrics from 3. Current Exit Process Enforcement aliens departing from airports, land C. National Security and Immigration INA—Immigration and Nationality Act Benefits of a Biometric Entry-Exit IRTPA—Intelligence Reform and Terrorism ports, seaports, or any other authorized Program point of departure. In addition, to Prevention Act of 2004 D. Biometric Entry-Exit Program History MPC—Mobile Passport Control enable U.S. Customs and Border 1. Implementation of US–VISIT MRZ—Machine-Readable Zone Protection (CBP) to make the process for 2. Exit Pilot Programs and Transfer of Entry NPRM—Notice of Proposed Rulemaking verifying the identity of aliens more and Exit Operations to CBP OBIM—Office of Biometric Identity efficient, accurate, and secure by using E. Recent Developments in the Biometric Management facial recognition technology, DHS is Entry-Exit System OTTI—Department of Commerce’s Office 1. Biometric Exit Mobile Experiment (BE- proposing to amend the regulations to of Travel and Tourism Industries Mobile) PIA—Privacy Impact Assessment provide that all aliens may be required 2. 1 to 1 Facial Comparison Project to be photographed upon entry and/or TSA—Transportation Security 3. Southwest Border Pedestrian Exit Field Administration departure. U.S. citizens may voluntarily Test TVS—Traveler Verification Service opt out of participating in CBP’s 4. Departure Information Systems Test USCIS—U.S. Citizenship and Immigration biometric verification program. This 5. Land Border Biometric Tests Services proposed rule also makes other minor 6. Simplified Arrival US-VISIT—United States Visitor and 7. Public-Private Partnerships conforming and editorial changes to the Immigrant Status Indicator Technology F. Proposed Facial Recognition-Based VWP—Visa Waiver Program regulations. Entry-Exit Process DATES: Written comments must be 1. Benefits of a Facial Recognition-Based I. Public Participation Process received on or before December 21, Interested persons are invited to 2020. 2. Facial Recognition Technology Gallery Building participate in this rulemaking by ADDRESSES: Please submit comments, 3. General Collection Process submitting written data, views, or identified by docket number, by the 4. Facial Recognition Based Entry Process arguments on all aspects of the rule. following method: 5. Facial Recognition Based Exit Process Comments that will provide the most • Federal eRulemaking Portal: http:// 6. Alternative Procedures and Public assistance will reference a specific www.regulations.gov. Follow the Notices portion of the rule, explain the reason 7. ‘‘No Match’’ Procedures instructions for submitting comments 8. U.S. Nationals, Dual Nationals and for any recommended change, and via docket number USCBP–2020–0062. Lawful Permanent Residents include data, information, or authority Due to COVID–19 related restrictions, 9. Business Requirements for Public- that supports such recommended CBP has temporarily suspended its Private Partnerships change. All submissions received must

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include the agency name and docket biometric data of aliens collected upon comparing biometric information number for this rulemaking. All arrival with biometric data collected against arrival data. U.S. land ports of comments received will be posted upon departure is essential for entry present even more infrastructure without change to http:// addressing the national security and operational challenges due to www.regulations.gov, including any concerns arising from the threat of geographic limitations (many border personal information provided. terrorism, the fraudulent use of crossings involve crossing a bridge or II. Executive Summary legitimate travel documentation, aliens tunnel), and a myriad of transportation who overstay their authorized period of alternatives for crossing a land port of As discussed in Section III admission (overstays) or are present in entry (e.g., car, bus, rail, foot). (Background), the Department of the United States without having been CBP has been testing various options Homeland Security (DHS) is mandated admitted or paroled, and incorrect or to collect biometrics at entry and by statute to develop and implement an incomplete biographic data for travelers. departure. These tests are described in integrated, automated entry and exit As recognized by the National detail in Section III.E of this document. data system to match records, including Commission on Terrorist Attacks Upon The results of these tests and the recent biographic data and biometrics,1 of the United States (also known as the 9/ advancement of new technologies, aliens entering and departing the United 11 Commission), combatting terrorism including facial recognition technology, States.2 In addition, Executive Order requires a screening system that have provided CBP with a model to 13780, Protecting the Nation from examines individuals at multiple points implement a comprehensive biometric Foreign Terrorist Entry into the United within the travel continuum.4 An entry-exit solution. CBP has determined States, published in the Federal integrated biometric entry-exit system that facial recognition technology is Register at 82 FR 13209, states that DHS provides an accurate way to verify an currently the best available method for is to expedite the completion and individual’s identity, and, consequently, biometric verification, as it is accurate, implementation of a biometric entry-exit can improve security and effectively tracking system. Although DHS, through unobtrusive, and efficient. This combat attempts by terrorists who use technology uses existing advance U.S. Customs and Border Protection false travel documents to circumvent (CBP), has been collecting biometric passenger information along with border checkpoints. It can also be used photographs which have already been data from certain aliens arriving in the to biometrically verify that a person United States since 2004,3 currently provided by travelers to the government who presents a travel document is the for the purpose of facilitating there is no comprehensive system in true bearer of that document, which will place to collect biometrics from aliens international travel, to create ‘‘galleries’’ help prevent visa fraud and the departing the country. of facial image templates to correspond fraudulent use of legitimate travel Implementing an integrated biometric with who is expected to be arriving or documentation. entry-exit system that compares departing the United States on a Such a system would also allow DHS particular flight, voyage, etc. These 1 Biographic data includes information specific to to confirm more concretely the identity photographs may be derived from an individual traveler such as name, date of birth, of aliens seeking entry or admission to passport applications, visa applications, and travel document number, which are data the United States and to verify their or interactions with CBP at a prior elements stored in that traveler’s passport, visa, or departure from the United States. By border inspection. Once the gallery is lawful permanent resident card. A biometric refers to a form of identification based on anatomical, having more accurate border crossing created based on the advance physiological, and behavioral characteristics or records of aliens, DHS can more information, the facial recognition other physical attributes unique to a person that can effectively identify overstays and aliens technology compares a template of a be collected, stored, and used to verify the identity who are, or were, present in the United live photograph of the traveler to the of a person, e.g., fingerprints, photographs, iris, DNA, and voice print. States without having been admitted or gallery of facial image templates. Live 2 Numerous federal statutes require DHS to create paroled and prevent their unlawful photographs are taken where there is an integrated, automated biometric entry and exit reentry into the United States. It will clear expectation that a person will need system that records the arrival and departure of also make it more difficult for imposters to provide documentary evidence of aliens, compares the biometric data of aliens to to utilize other travelers’ credentials. In verify their identity, and authenticates travel their identity. If there is a facial image documents presented by such aliens through the addition, performing biometric identity match, the traveler’s identity has been comparison of biometrics. These include: Section verification can help DHS reconcile any verified. 2(a) of the Immigration and Naturalization Service errors or incomplete data in a traveler’s In the initial stage of implementation, Data Management Improvement Act of 2000 biographic data.5 Ultimately, this (DMIA), Public Law 106–215, 114 Stat. 337; Section CBP plans to expand its facial 110 of the Illegal Immigration Reform and provides DHS with more reliable recognition system to commercial air Immigrant Responsibility Act of 1996, Public Law information to verify identity and to ports of entry. CBP plans to eventually 104–828, 110 Stat. 3009–546; Section 205 of the strengthen its ability to identify establish a biometric entry-exit system Visa Waiver Permanent Program Act of 2000, Public criminals and known or suspected Law 106–396, 114 Stat. 1637, 1641; Section 414 of at all air, sea, and land ports of entry. terrorists. the Uniting and Strengthening America by CBP estimates that a biometric entry- DHS has faced a number of logistical Providing Appropriate Tools Required to Intercept exit system can be fully implemented at and Obstruct Terrorism Act of 2001 (USA PATRIOT and operational challenges in all commercial air ports of entry within Act), Public Law 107–56, 115 Stat. 272, 353; Section developing and deploying a biometric 302 of the Enhanced Border Security and Visa Entry the next three to five years. For land and exit capability. This is, in part, because Reform Act of 2002 (Border Security Act), Public sea ports of entry and private aircraft, U.S. airports generally do not have Law 107–173, 116 Stat. 543, 552; Section 7208 of CBP plans to continue to test and refine the Intelligence Reform and Terrorism Prevention designated and secure exit areas for biometric exit strategies with the Act of 2004 (IRTPA), Public Law 108–458, 118 Stat. conducting outbound inspections, 3638, 3817; Section 711 of the Implementing ultimate goal of implementing a recording travelers’ departures, or Recommendations of the 9/11 Commission Act of comprehensive biometric entry-exit 2007, Public Law 110–53, 121 Stat. 266, 338; and 6 Section 802 of the Trade Facilitation and Trade 4 The 9/11 Commission Report at 384–386, system nationwide. The proposed Enforcement Act of 2015, Public Law 114–125, 130 available at http://govinfo.library.unt.edu/911/ Stat. 122, 199 (6 U.S.C. 211(c)(10)). report/911Report.pdf. Accessed October 23, 2020. 6 Private aircraft are non-commercial flights, 3 See Section III.B (Current Entry-Exit Process) for See also Section III.C. sometimes referred to as general aviation. See 19 further discussion. 5 See Section III.C. for further explanation. CFR 122.1(h).

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regulatory changes are necessary to to be photographed upon entry and/or III. Background enable CBP to continue its testing and departure. The use of facial recognition A. Statutory and Executive Authority refinements, and implement permanent technology upon entry and departure programs efficiently once the best will make the process for verifying an Numerous federal statutes require solution is identified. As explained alien’s identity more efficient and DHS to create an integrated, automated below, under the current regulations, accurate. It will enable CBP to match the biometric entry and exit system that CBP can only conduct pilot programs at traveler’s photograph with their vetted records the arrival and departure of aliens, compares the biometric data of a limited number of ports of entry at air biographic information. The ability to aliens to verify their identity, and and sea, and may only collect biometrically verify the identity and biometrics from a limited population. If authenticates travel documents confirm the departure of aliens will this proposed rule is adopted as a final presented by such aliens through the improve security and help DHS detect rule, CBP would continue to expand comparison of biometrics. The following testing as necessary. overstays and aliens who are or were discussion covers the most relevant Because CBP is still in the testing present in the United States without statutory and executive authority for the phase to determine the best way to having been admitted or paroled, and issuance of this rule. implement biometric entry-exit for land prevent their illegal reentry. DHS The creation of an automated entry- and sea ports of entry and private acknowledges that most overstays are of exit system that integrates electronic aircraft, CBP has not included, in this a rather limited duration and that many alien arrival and departure information proposed rule, an analysis of the costs overstays are accidental in nature. was authorized in the Immigration and and benefits of implementing a facial Regardless of the length of time, Naturalization Service Data recognition based biometric entry-exit however, overstaying past the Management Improvement Act of 2000 program for land and sea ports of entry authorized period of admission is (DMIA), Public Law 106–215, 114 Stat. and private aircraft. CBP welcomes unlawful and carries consequences for 337, 339 (8 U.S.C. 1365a). The DMIA comments from the public regarding the future visits to the United States. See provides that the entry-exit system potential impact of this proposed rule in Section 212 of the Immigration and should integrate all authorized or these environments. Additionally, Nationality Act of 1952, as amended, 8 required alien arrival and departure data that is maintained in electronic format. before CBP moves forward with a large U.S.C. 1182 (INA 212). Having accurate The DMIA also provides for DHS to use scale implementation at land or sea entry and exit records is a fundamental the entry-exit system to match the ports of entry or for private aircraft, the piece of the U.S. immigration system Commissioner of CBP will publish a available arrival and departure data on and detecting overstays supports said notice in the Federal Register that aliens. DMIA section 2 (8 U.S.C. system. notifies the public, specifies the details 1365a(e)). of these plans, and requests public Furthermore, DHS data supports the In December 2004, Congress enacted comments. conclusion that some status violators the Intelligence Reform and Terrorism If CBP determines that the and illegal aliens also have links to Prevention Act of 2004 (IRTPA), Public implementation of the specified facial terrorism and criminal activity. Law 108–458, 118 Stat. 3638, 3817 (8 recognition entry-exit program in these Ensuring the traveler’s photograph U.S.C. 1365b). Section 7208 of IRTPA environments results in significant matches with their vetted biographic provides for DHS to collect biometric delays at ports of entry or exit, CBP will and biometric information, helps CBP exit data for all categories of aliens who temporarily discontinue these efforts prevent visa fraud and the use of are required to provide biometric entry data. IRTPA requires that the entry and until the average processing time has fraudulent travel documents, or the use exit data system contain, as an improved to be under 125 percent of the of legitimate travel documents by baseline (manual processing without interoperable component, the fully imposters, and identify criminals and biometrics). integrated databases and data systems Although the current regulations known or suspected terrorists. maintained by DHS, the Department of authorize DHS to require certain aliens Under this proposed rule, CBP will State (DOS), and the Department of to provide biometrics on entry and comply with all legal requirements (e.g., Justice (DOJ) that process or contain departure, those regulations are too the Privacy Act of 1974, Section 208 of information on aliens. Section 7208 of limited in scope to advance the legal the E-Government Act of 2002, and IRTPA also requires that the entry and framework for establishing a Section 222 of the Homeland Security exit data system have current and comprehensive biometric entry-exit Act of 2002, as amended) and immediate access to information in the system. The regulations authorize DHS Departmental and government-wide databases of Federal law enforcement to require biometrics from certain aliens policies that govern the collection, use, agencies and the intelligence seeking admission to the United States. maintenance, and disposition of community, which is relevant to the See section 235.1(f) of title 8 of the Code personally identifiable information, determination of whether a visa should of Federal Regulations (CFR). They also including biometrics. To ensure data be issued and the admissibility or authorize DHS to require biometrics minimization of U.S. citizen deportability of an alien. Section 7208 from certain aliens upon departure from photographs, once CBP verifies that a of IRTPA provides a complete list of the United States under pilot programs entry-exit system goals, which include, traveler is a U.S. citizen, CBP will not at land ports and up to 15 air and among other things, screening travelers retain in its database the photo of that seaports. See 8 CFR 215.8(a). This efficiently. Finally, section 7208 of proposed rule advances a legal U.S. citizen which is collected as part of IRTPA requires the Secretary of framework for DHS collection and use CBP’s biometric verification program. Homeland Security to develop a plan to of biometrics from aliens and for CBP’s Rather, photos of U.S. citizens collected accelerate full implementation of an comprehensive biometric entry-exit as a result of their participation in this automated biometric entry and exit data system by removing the reference to program will be discarded within 12 system. pilot programs and the port limit. hours of verification of the individual’s In the 2016 Consolidated In addition, this proposed rule identity and citizenship. Appropriations Act, Congress specified provides that all aliens may be required that DHS must submit a plan to

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implement a biometric entry and exit photographs, or other biometrics upon Border Security and Visa Entry Reform capability and established a funding arrival in, or departure from, the United Act of 2002, Public Law 107–173, 116 mechanism available to the Secretary of States, and select classes of aliens may Stat. 543, together mandated the Homeland Security, beginning in fiscal be required to provide information at collection of certain biographical year 2017, to develop and implement a any time. See, e.g., INA 214, 215(a), manifest information on all passengers biometric entry and exit system. See 235(a), 262(a), 263(a), 264(c), (8 U.S.C. and crew members who arrive in or Consolidated Appropriations Act, 2016, 1184, 1185(a), 1225(a), 1302(a), 1303(a), depart from (and, in the case of crew Public Law 114–113, 129 Stat. 2242, 1304(c)); 8 U.S.C. 1365b. Pursuant to members, overfly) the United States on 2493. section 215(a) of the INA (8 U.S.C. a commercial aircraft or vessel. The The following statutes also require 1185(a)), and Executive Order No. 13323 carrier is generally required to transmit DHS to take action to create an of Dec. 30, 2003 (69 FR 241), the the required manifest information integrated entry-exit system: Secretary of Homeland Security, with electronically to CBP through the • Section 110 of the Illegal the concurrence of the Secretary of Advance Passenger Information System Immigration Reform and Immigrant State, has the authority to require aliens (APIS).8 This requirement aligns with Responsibility Act of 1996, Public Law to provide biographic, biometric, and global standards developed by the 104–828, 110 Stat. 3009–546; other relevant identifying information as World Customs Organization, • Section 205 of the Visa Waiver they depart the United States. Under International Air Transport Association Permanent Program Act of 2000, Public section 214 of the INA (8 U.S.C. 1184), (IATA), and the International Civil Law 106–396, 114 Stat. 1637, 1641; DHS may issue regulations, such as Aviation Organization. According to • Section 414 of the Uniting and those concerning requirements to IATA, over 70 countries now require Strengthening America by Providing provide biometrics upon entry or airlines to send advance passenger Appropriate Tools Required to Intercept departure, the compliance of which may information before the flight’s arrival.9 and Obstruct Terrorism Act of 2001 be a condition of admission and In addition, United Nations Security (USA PATRIOT Act), Public Law 107– maintenance of status of nonimmigrant Council Resolution 2178, adopted by 56, 115 Stat. 272, 353; aliens while in the United States. the United States, called upon Member • Section 302 of the Enhanced Border Finally, DHS is authorized to take and States to require airlines provide Security and Visa Entry Reform Act of consider evidence concerning the advance passenger information 2002 (Border Security Act), Public Law privilege of any person to enter, reenter, regarding flights into, out of and 107–173, 116 Stat. 543, 552; pass through, or reside in the United through their territories to detect the • Section 711 of the Implementing States, or concerning any matter which travel of UN-listed terrorists.10 Recommendations of the 9/11 is material or relevant to the APIS information includes, but is not Commission Act of 2007, Public Law enforcement of the INA and the limited to, the following information: 110–53, 121 Stat. 266, 338; administration of DHS. See INA 287(b) Full name, date of birth, citizenship, • Section 802 of the Trade (8 U.S.C. 1357(b)). passport/alien registration card number, travel document type, passport number, Facilitation and Trade Enforcement Act B. Current Entry-Exit Process of 2015, Public Law 114–125, 130 Stat. expiration date and country of issuance 122, 199 (6 U.S.C. 211(c)(10)). Pursuant to the authorities discussed (if passport required), alien registration On March 6, 2017, the President in the previous section, CBP is number, country of residence, passenger signed Executive Order 13780, responsible for implementing an name record locator number, and U.S. Protecting the Nation from Foreign integrated, automated entry-exit system destination address (when applicable). Terrorist Entry into the United States that matches the biographic data and The carrier also collects and transmits to (82 FR 13209). Section 8 of this Order biometrics of aliens entering and CBP the traveler’s U.S. destination requires the Secretary of Homeland departing the United States. address (except for U.S. citizens, lawful Security to expedite the completion and Furthermore, to carry out its mission permanent residents, crew and persons implementation of a biometric entry-exit responsibilities to control the border in transit through the United States) and tracking system for ‘‘in-scope and to regulate the arrival and departure country of residence. APIS data allows CBP to effectively travelers’’ 7 to the United States, as of both U.S. citizens and aliens, CBP has and efficiently facilitate the entry and recommended by the National the authority to confirm the identity of departure of legitimate travelers into Commission on Terrorist Attacks Upon all travelers and verify that they are the and from the United States. Using APIS the United States, and periodically authorized bearers of their travel data, CBP officers can access report to the President on DHS’s documents. The entry-exit process as it exists information on individuals with progress in this regard. today serves this essential border outstanding wants or warrants and DHS also has broad authority to security mission entrusted to CBP, information from other government control alien travel and to inspect aliens while also serving the need to facilitate agencies regarding high risk persons; under various provisions of the INA. legitimate cross-border travel. The confirm the accuracy of that information Under this authority, DHS may require following sections describe the current by comparison with information aliens to provide biometrics and other entry-exit process in more detail and obtained from the traveler and from the relevant identifying information upon provide background on the relevant carriers; and make immediate entry to, or departure from, the United laws and obligations that pertain to both determinations as to a traveler’s security States. Specifically, DHS may control individuals who attempt to enter and risk and admissibility and other alien entry and departure and inspect exit the United States, as well as the determinations bearing on CBP’s aliens under sections 215(a) and 235 of commercial air or sea carriers who the INA (8 U.S.C. 1185, 1225). Aliens transport those individuals. 8 See the APIS regulations at 19 CFR 122.49a, may be required to provide fingerprints, 122.49b, 122.49c, 122.75a, and 122.75b. 1. APIS Data Collection 9 See https://www.iata.org/whatwedo/passenger/ 7 Although the term ‘‘in-scope travelers’’ is not Pages/passenger-data.aspx. Last Accessed October defined, DHS interprets this to mean those travelers The Aviation and Transportation 23, 2020. who are required to provide biometric information Security Act of 2001, Public Law 107– 10 See https://www.justice.gov/file/344501/ upon entry to the United States. 71, 115 Stat. 597, and the Enhanced download. Last Accessed October 23, 2020.

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inspectional and screening using its Machine-Readable Zone (MRZ) using a lost or stolen travel document.15 responsibilities. to pull up the traveler’s biographic data If the CBP officer has a law enforcement During the entry processing of the for inspection. In addition, for aliens concern, then he or she may conduct traveler, a CBP officer will verify the (except for those exempt from biometric law enforcement checks (querying but traveler’s documents. See Section collection under 8 CFR 235.1), CBP not retaining biometrics) on those III.B.2. Through this process, CBP can collects fingerprints from the traveler to exempt individuals, but not for the verify the accuracy of the APIS biometrically verify identity by purpose of biometrically verifying the information the carrier provided to comparing the travelers fingerprints traveler’s identity. CBP.11 CBP does not receive APIS data with those previously collected as a part 3. Current Exit Process for individuals traveling to the United of a visa application, immigration States by foot (pedestrian travelers) or benefits application, or prior inspection APIS requirements also apply to by private vehicle, but it does receive by CBP. Once the identity of the traveler travelers departing the United States. APIS data on a voluntary basis from bus is validated in this manner, the CBP CBP electronically records a traveler’s and rail carriers crossing the land officer conducts an interview with the departure by air or sea using the border. traveler to establish the purpose and biographic manifest information provided by the commercial air or 2. Current Entry Process intent of travel, and to determine an alien’s admissibility. vessel carrier. Unlike at entry, however, Any traveler who requires a CBP does not routinely inspect travelers nonimmigrant visa to travel to the At some airports or seaports, some of departing the United States to confirm United States must apply to the DOS these processes are facilitated for certain that the APIS departure data is accurate under specific visa categories depending travelers through use of Automated or that the traveler is the true bearer of on the purpose of their travel, including Passport Control kiosks, Mobile his or her travel document. those as visitors for business, pleasure, Passport Control (mobile apps), or Currently, persons departing the study, and employment-based Global Entry kiosks. All travelers must United States via a commercial aircraft purposes.12 DOS also checks every visa still present themselves to a CBP officer must present their boarding pass and applicant’s biographic and biometric to complete the inspection process. In identification when being screened by data (i.e., fingerprints and facial images) the land environment, biometric the Transportation Security 16 against U.S. Government databases for collection may be required when an I– Administration (TSA). Before records indicating potential risk factors, 94 is issued. CBP does not typically boarding, travelers must also present including security, criminal, and issue an I–94 for Mexican nationals their travel documents and boarding immigration violations. admitted as nonimmigrants for a period passes to the carrier’s representative at Under DHS regulations, upon arrival of 72 hours to visit within 25 miles of the gate, who visually reviews the travel into the United States, travelers are the border or for Canadian citizens documents and validates the boarding required to present themselves to CBP traveling to the United States for pass with the carrier’s ticketing 13 17 for inspection. See 8 CFR 235.1. Under business or pleasure. system. However, once the traveler the current inspection process, CBP If the travel document is reported as has been screened by TSA and is in the obtains information directly from the lost or stolen, upon swiping the secure area of the terminal, travelers traveler via travel documents (e.g., document to bring up the biographic generally do not have their photo passport) presented and/or verbal information of the traveler, CBP systems identification scrutinized again before communications between a CBP officer will alert the CBP officer. In the case of boarding the aircraft. CBP uses APIS information along and the traveler. As a part of this imposters using legitimate documents with other law enforcement information process, a CBP officer typically takes a that have not been reported lost or and technology to determine whether physical passport from the traveler and stolen by their true owners, biometric CBP needs to further inspect outbound electronically ‘‘reads’’ the passport identifiers (e.g., fingerprints) enable CBP to determine if the traveler is the true travelers. CBP’s outbound operations enable it to enforce U.S. laws applicable 11 While APIS data has been shown to be highly bearer of the travel document. accurate, information gaps remain. At entry, CBP upon departure from the United States Officers can, using biometrics and CBP system As the regulations currently exempt and effectively monitor and control the information, adjudicate any records with incorrect certain aliens from the collection of outbound flow of goods and people. information. However, due to resource constraints biometrics, including those under 14 In the land environment, CBP does there is generally no CBP officer stationed at and over 79, as well as individuals in 18 departure locations to confirm that the APIS data not receive APIS data. Persons submitted matches the traveler. Using biometrics certain visa classes, CBP does not use upon exit, CBP can close informational gaps caused fingerprints to confirm the traveler’s 15 See footnote 40 regarding an NPRM published by inaccurate APIS data without additional identity in these cases. For these exempt by USCIS proposing to remove the age restrictions personnel. aliens, as well as those without on fingerprint collection. 12 Under the Visa Waiver Program (VWP), most 16 TSA incorporates unpredictable security citizens or nationals of participating countries may fingerprints on file (i.e., first time VWP measures, both seen and unseen, to accomplish its 14 travel to the United States for tourism or business travelers ), CBP must rely on the transportation security mission, see https:// for stays of 90 days or less without obtaining a visa. interview during the primary inspection www.tsa.gov/travel/security-screening. Last VWP travelers must have a valid Electronic System process to determine if the traveler is Accessed October 26, 2020. for Travel Authorization (ESTA) approval prior to 17 Pursuant to 19 CFR 122.49a, 122.49b, 122.49c, travel. Through ESTA, CBP conducts enhanced 122.75a, and 122.75b, the carrier is responsible for vetting of VWP applicants in advance of travel to 13 See 8 CFR 235.1(h). comparing the travel document presented by the the United States, to assess whether they are 14 For travelers traveling under the Visa Waiver traveler with the travel document information it is eligible to travel under the VWP, or whether they Program for the first time, CBP will not have transmitting to CBP in order to ensure that the could pose a risk to the United States or the public fingerprints on file as these individuals are not information is correct, the document appears to be at large. All ESTA applications are screened against required to submit biometrics prior to travel. As valid for travel purposes, and the traveler is the security and law enforcement databases, and CBP such, during the primary inspection process, CBP person to whom the travel document was issued. automatically refuses authorization to individuals currently collects fingerprints from these travelers. 18 While bus and rail carriers are not required to who are found to be ineligible to travel to the For future travel, CBP will use the fingerprints submit APIS data, CBP encourages these carriers to United States under the VWP. Similarly, current collected to biometrically verify his or her identity participate in CBP’s Voluntary APIS Program, See and valid ESTAs may be revoked if concerns arise by comparing the fingerprints with those previously https://www.cbp.gov/travel/travel-industry- through recurrent vetting. collected during the first visit to the United States. personnel/apis2. Accessed October 26, 2020.

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departing the United States at the land altered (i.e., changing the name or photo used at present, DHS expects that the border are also not consistently subject on a document issued legitimately) or implementation of this rule would to CBP inspection, as they are upon manufactured fraudulently. While these greatly enhance DHS’s ability to identify arrival. As a result, land departures may cases still occur, the use of e-Passports, more of these imposters. not be recorded accurately.19 combined with sophisticated forensic In addition to the benefits this security features, have made this technology can provide on entry, an C. National Security and Immigration method of passport fraud prohibitively integrated system, including biometric Benefits of a Biometric Entry-Exit expensive in most cases. Those seeking exit, is also essential for maintaining the Program to evade detection by DHS or other integrity of the U.S. immigration system. Currently, CBP has a comprehensive border or transportation security Under current immigration laws, automated biographic information-based agencies are turning instead to a entering or staying in the United States system that vets and checks aliens relatively cheaper method of fraud— without official permission from the entering and departing the United using a non-altered travel document U.S. government can cause a person to States. While this information is legitimately issued to another person. be legally barred from reentry to the extremely valuable to CBP in This type of fraud is mitigated United States for a number of years completing its mission, no biographic because carriers are required to ensure following departure or removal. information-based system, by itself, can that the person presenting the travel Pursuant to INA 222(g), a nonimmigrant definitively verify the identity of document is the person to whom the visa will be void if an alien remains in persons presenting travel and identity travel document was issued, pursuant to the United States beyond his or her documents. As stated by the 9/11 19 CFR 122.49a(d), 122.49b(d), period of authorized stay. For aliens Commission: 122.75a(d) and 122.75b(d). However, the traveling under the Visa Waiver Linking biometric passports to good data best tool to combat this fraud is to Program, to remain eligible for the systems and decision making is a biometrically verify that a person who program, aliens must comply with the fundamental goal. No one can hide his or her presents a travel document is the true conditions of admission, including debt by acquiring a credit card with a slightly bearer of that document. CBP’s remaining in the U.S. only for the different name. Yet today, a terrorist can biometric tests using facial recognition authorized period of stay.24 Depending defeat the link to electronic records by technology support this conclusion. on the duration of a person’s ‘‘unlawful tossing away an old passport and slightly Within three weeks of implementing presence’’ in the United States, that altering the name in the new one.20 new facial recognition technology at alien may be barred from returning to Since the 9/11 Commission Report Washington Dulles International the United States for three or ten was released, security features in Airport, CBP identified two imposters years.25 The absence of an effective passports have become significantly attempting to enter the United States by biometric exit process has enabled stronger. Forensic security features in using another person’s passport.21 Since aliens who are present in the United passports have improved, and most then, CBP has identified five additional States without having been admitted or countries began to issue electronic imposters, for a total of seven imposters paroled or who overstayed their passports (e-Passports) around 2005. E- identified in the air environment, authorized period of admission Passports contain an electronic chip including two with genuine U.S. travel (overstays) to evade immigration laws embedded in the document that documents (passport or passport card), and avoid the time bars associated with contains the photo of the bearer and the who were using another person’s valid unlawful presence. information contained on the passport’s travel documents as a basis for seeking Through its limited deployment of data page, such as the name, date of entry to the United States.22 In addition, biometric exit pilots, CBP has been able birth, and country of issuance. The CBP’s facial recognition technology has to process and document hundreds of International Civil Aviation identified at least 138 imposters, aliens who were present in the United Organization maintains standards for including 45 travelers with genuine U.S. States without having been admitted or the issuance of e-Passports and these travel documents (passport or passport paroled.26 These cases follow a similar standards are adopted by most countries card) attempting to enter the United fact pattern. Upon the collection of the around the world. States using another person’s travel traveler’s biometrics, the system is The increasingly sophisticated documents at the San Luis and Nogales, unable to generate a match to any features in modern passports have led to Arizona land border ports.23 Several of photographs of the traveler on record. the increased use of legitimate these imposters identified in the land Further inspection by CBP officers documents by imposters posing as the environment had criminal histories confirms that the traveler was not owners of the documents. Twenty years including assault, extortion, previously inspected by CBP or DHS, ago, it was far more common to kidnapping, and drug smuggling. CBP indicating that they entered the United encounter a passport that had been anticipates that the number of imposters States illegally. In such cases, CBP it is able to catch will increase as the creates a biometric exit record for this 19 CBP and the Canada Border Services Agency program expands. While it is difficult to traveler that will be available to other are exchanging biographic data, travel documents, DHS component agencies, such as U.S. and other border crossing information collected quantify the number of instances in from individuals traveling between the countries at which such fraud has occurred but not Citizenship and Immigration Services land border ports of entry. This data exchange been identified by CBP because facial (USCIS) and U.S. Immigration and allows both governments to expand their situational recognition technology is not broadly Customs Enforcement (ICE), as well as border awareness so that the record of a traveler’s the Department of State. If the traveler entry into one country can establish a record of exit from the other country. See https://www.dhs.gov/ 21 See https://www.cbp.gov/newsroom/local- publication/beyond-border-entryexit-program- media-release/second-impostor-three-weeks-caught- 24 8 U.S.C. 1187(a)(7) and 8 CFR 217. phase-ii and https://www.dhs.gov/news/2019/07/ cbp-biometric-verification. Last accessed October 25 8 U.S.C. 1182(a)(9)(B)(i). 11/us-and-canada-continue-commitment-securing- 23, 2020. 26 Source: CBP Enterprise Management our-borders-begin-phase-iii-entryexit. Accessed 22 See https://docs.house.gov/meetings/HM/ Information System-Enterprise Data Warehouse. See October 26, 2020. HM00/20190710/109753/HHRG-116-HM00-Wstate- Privacy Impact Assessment available at https:// 20 The 9/11 Commission Report at 389, available WagnerJ-20190710.pdf. Last accessed October 23, www.dhs.gov/sites/default/files/publications/ at http://govinfo.library.unt.edu/911/report/ 2020. privacy-pia-cbp_emis_edw-appendixd- 911Report.pdf. Accessed October 26, 2020. 23 See id. april2019.pdf. Last Accessed October 23, 2020.

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has no other derogatory information, admission. This report likely requires a screening system that then CBP allows the traveler to depart, understates the total number of examines individuals at multiple points but maintains a record of the encounter overstays for fiscal year 2019. This is within the travel continuum: which is used to inform future because, due to data reliability For terrorists, travel documents are as admissibility-related determinations. concerns, the Overstay Report only important as weapons. Terrorists must travel As stated in Executive Order 13768, included data for aliens who lawfully clandestinely to meet, train, plan, case Enhancing Public Safety in the Interior entered the United States under targets, and gain access to attack. To them, of the United States, ‘‘interior nonimmigrant visa categories for international targets present great danger, enforcement of our Nation’s temporary visitors for business or because they must surface to pass through immigration laws is critically important pleasure. It did not include aliens who regulated channels, present themselves to to the national security and public border security officials, and attempt to entered the United States under other circumvent inspection points . . . each of safety of the United States. Many aliens visa categories. these checkpoints is a screening, a chance to who illegally enter the United States In addition, biometric exit verification establish that these people are who they say and those who overstay or otherwise can allow CBP to address errors that they are and are seeking access for their violate the terms of their visas present sometimes appear in an alien’s stated purpose, to intercept identifiable a significant threat to national security biographic data. Although CBP is subjects, and to take effective action. and public safety.’’ 27 DHS data supports typically able to successfully vet aliens The job of protection is shared among these the conclusion that certain status seeking admission into and departing many defined checkpoints. By taking violators and illegal aliens also have from the United States based on advantage of them all, we need not depend on any one point in the system to do the links to terrorism and criminal biographic data, in some cases a whole job. The challenge is to see the 28 activity. biographic check can fail due to errors common problem across agencies and Using biometrics, CBP has or incomplete data. Conducting functions and develop a common apprehended criminal aliens who were biometric verification at departure can framework—an architecture—for an effective present in the United States without help uncover these issues in an alien’s screening system.’’ 30 having been admitted or paroled. For biographic data and protect the accuracy The Under Secretary General for the instance, during a recent outbound of recorded border crossings. United Nations Office of Counter- operation, CBP’s facial recognition During the course of its biometric exit Terrorism said, ‘‘Terrorists, including generated a ‘‘no-match’’ result for a pilots, CBP encountered a number of foreign terrorist fighters use a wide passenger resulting in further inspection cases where collecting biometrics from variety of techniques to travel to by a CBP officer which then confirmed departing travelers revealed errors or destinations all over the world. With the that the traveler was an alien who was incomplete data in a traveler’s number of international travelers present in the United States without biographic record. For instance, on one continuing to increase, it is essential admission or parole and was wanted for occasion, CBP’s biometric query of a that we develop efficient counter- aggravated sexual abuse of a minor. departing traveler revealed that he was terrorism measures that facilitate rapid, Other examples of aliens identified previously convicted for armed robbery efficient and secure processing at our through DHS’s biometric verification with a firearm and had been deported borders.’’ 31 Manuals prepared by system include previously removed from the United States. The traveler’s terrorist groups such as the Islamic aliens who committed felonies such as biographic data, however, did not reflect State, also known as ISIS, explicitly this information because of a armed robbery with a firearm, assault understand the need to forge identity misspelling on the traveler’s deportation with a deadly weapon, and aggravated papers, passports, and visas to record. On another occasion, CBP’s assault. Since the inception of its circumvent border checkpoints and biometric query revealed that a traveler biometric exit pilots, CBP has smuggle people across borders. had been previously removed from the encountered hundreds of cases with Recognizing terrorism as one of the most United States under a false identity. similar fact patterns. Because there is no serious threats to international peace Because the traveler had been traveling comprehensive system currently in and security and the need to take under the traveler’s true identity, a place to collect biometrics at exit, CBP immediate action to address the review of the traveler’s biographic has no way of knowing precisely how evolving threat environment, the United record did not alert the CBP officer to frequently these types of cases occur. Nations Security Council adopted a Identifying aliens who overstay their this important factual information. resolution on December 21, 2017, period of authorized admission is best In each of these cases, the biometric calling on member nations to increase addressed with a biometric exit query revealed the missing data from aviation security and to develop and program. Each year, millions of visitors the traveler’s biographic data. By implement systems to collect biometric are admitted to the United States for performing a biometric check at data to properly identify terrorists.32 limited times and purposes. According departure, CBP can reconcile any errors The resolution was co-sponsored by 66 to DHS’s Entry/Exit Overstay Report for or incomplete data in the traveler’s countries, including the United States, fiscal year 2019,29 676,422 of nearly 55 biographic data, increasing the level of and passed the Security Council with million aliens admitted for business or accuracy of CBP’s border crossing unanimous support. pleasure through air and sea ports of records. Ultimately, this provides CBP with more reliable information to better Although CBP’s security mission has entry that were expected to depart the mainly been focused on identifying United States in fiscal year 2019 identify persons of law enforcement or national security concern. overstayed their authorized period of 30 The 9/11 Commission Report at 384–386 Finally, a comprehensive and (emphasis added), available at http:// 27 See 82 FR 8799 (January 30, 2017). integrated biometric entry-exit system govinfo.library.unt.edu/911/report/911Report.pdf. 28 See https://www.dhs.gov/news/2017/07/12/ serves an important tool in our fight Accessed October 26, 2020. written-testimony-plcy-cbp-and-ice-senate- against global terrorism. Since the 9/11 31 See https://www.un.org/counterterrorism/cct/ judiciary-subcommittee-border-and. Accessed attacks, the United States remains border-security-and-management. Accessed October 26, 2020. October 26, 2020. 29 Available at https://www.dhs.gov/sites/default/ vulnerable to the threat of global 32 S/RES/2396 (2017), available at http:// files/publications/20_0513_fy19-entry-and-exit- terrorism. The 9/11 Commission www.un.org/en/ga/search/view_doc.asp?symbol=S/ overstay-report.pdf. Accessed October 26, 2020. recognized that combatting terrorism RES/2396(2017). Accessed October 26, 2020.

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known or suspected terrorists seeking constraints at departure, CBP has in a series of notices published in the admission to the United States, identified many recent national security Federal Register.35 identifying and intercepting these cases that resulted from examining The January 5, 2004 interim final rule individuals at departure is critical to foreign nationals departing the United also added 8 CFR 215.8 to provide that effectively combatting terrorism here States on international flights. In several the Secretary, or designee, may establish and abroad. Individuals who seek to of these cases, CBP’s outbound pilot programs to collect biometric inflict harm on the American homeland examination of the individual revealed information from certain aliens are not limited to those attempting to his or her connections to terrorist and departing the United States at up to 15 enter the United States. Some of these militia groups abroad. Using a biometric air or sea ports of entry, designated individuals may seek to depart the verification system, CBP can update the through notice in the Federal Register. United States in order to inflict harm to individual’s border crossing record with Pursuant to § 215.8(a)(1), DHS U.S. interests and allies abroad or this information, linking it to his or her designated the 15 air and sea ports of engage in the terrorist/jihadist biometrics, which provides greater entry where the collection of biometrics movement abroad for training or assurance that the government will be under exit pilot programs would occur coordination. For individuals on a able to identify this individual in the in a series of notices published in the terrorist watch list, law enforcement and 36 event of future encounters. Federal Register. intelligence agencies may have a need to On August 31, 2004, DHS track that individual’s movements and Identifying overstays and aliens who implemented the second phase of the travel. If that individual can depart the are present in the United States without legacy US-VISIT biometric program by country under an alias without admission or parole is essential to publishing an interim final rule in the detection, then that impacts the ability maintaining the integrity of the U.S. Federal Register (69 FR 53318) of these law enforcement and immigration system and to national expanding the US-VISIT program to intelligence agencies to operate security as a whole. Expanding the include aliens seeking admission under effectively. Preventing these individuals biometric entry-exit program to create the Visa Waiver Program (VWP) 37 and from leaving the United States, or at an integrated system will enable CBP to travelers arriving at designated land minimum, gaining intelligence on their better identify overstays and aliens who border ports of entry. DHS designated whereabouts, is critical to diminishing a are present in the United States without the land ports of entry at which terrorist network’s ability to mobilize. admission or parole. Furthermore, by biometrics would be collected from The need for identifying and tracking providing an accurate way to verify an certain aliens upon entry in two notices suspected terrorists departing the individual’s identity, a biometric entry- published in the Federal Register.38 The United States is further borne out by exit system can effectively combat current research on the movements of 35 attempts by foreign national terrorists to On January 5, 2004, DHS issued a notice in the such individuals. According to the Federal Register (69 FR 482) designating 15 airports circumvent border checkpoints using George Washington University’s and 14 seaports for the collection of biometrics from false identity documents. Establishing aliens upon entry. On August 20, 2004, DHS Program on Extremism, out of the 186 published a notice in the Federal Register (69 FR individuals who have been charged in such a system is crucial to our efforts to respond to the continuing threat of 51695) identifying six new air and sea ports of entry the United States on offenses related to for inclusion in the legacy US-VISIT program and the Islamic State since March 2014, 39% global terrorism. removing two ports of entry that were inadvertently included in the legacy US-VISIT program in the were accused of attempting to travel or D. Biometric Entry-Exit Program History January 5, 2004 notice. 33 successfully traveled abroad. 36 On January 5, 2004, DHS issued a notice in the CBP, as the agency entrusted with 1. Implementation of US-VISIT Federal Register (69 FR 482) identifying one airport securing the border, must verify the and one seaport as ports designated for the identity of those entering and departing In 2003, DHS established the legacy collection of biometrics from aliens departing the with as much accuracy as possible, United States Visitor and Immigrant United States under exit pilot programs. On August Status Indicator Technology (US-VISIT) 3, 2004, DHS published a notice in the Federal especially individuals linked to Register (69 FR 46556) designating 13 additional terrorism or criminal activity. As program to develop a system to collect ports for the collection of biometrics from aliens discussed in the 2018 National Strategy biographic data and biometrics from departing the United States under exit pilot 34 aliens at U.S. ports of entry. programs. On August 20, 2004, DHS published a for Counterterrorism, one of the notice in the Federal Register (69 FR 51695) priority actions for the U.S. Government On January 5, 2004, DHS replacing two ports of entry inadvertently included is to enhance detection and disruption implemented the first phase of the in the exit pilot programs in the August 3, 2004 of terrorist travel. By collecting and legacy US-VISIT biometric program by notice with two airports to maintain the full sharing relevant information on terrorist publishing an interim final rule in the number of 15 exit pilot programs. 37 Pursuant to INA 217 (8 U.S.C. 1187), the travel and identities, this information Federal Register (69 FR 468), which Secretary of Homeland Security, in consultation can be used for the benefit of the public provided that certain aliens seeking with the Secretary of State, may designate certain and private section to identify and admission to the United States through countries as VWP program countries if certain disrupt the movement of terrorists. requirements are met. Citizens and eligible nonimmigrant visas must provide nationals of VWP countries may apply for CBP’s biometric exit program will fingerprints, photographs, or other admission to the United States at a U.S. port of provide another layer of identity biometrics upon arrival in, or departure entry as nonimmigrant aliens for a period of 90 days verification and another opportunity to from, the United States at air and sea or less for business or pleasure without first stop these individuals from departing. obtaining a nonimmigrant visa, provided that they ports of entry. The interim final rule are otherwise eligible for admission under Despite the agency’s resource amended 8 CFR 235.1 to authorize DHS applicable statutory and regulatory requirements. to require certain aliens who arrive at The list of countries which currently are eligible to 33 See GW Extremism Tracker, The George designated U.S. air and sea ports of participate in VWP is set forth in 8 CFR 217.2(a). Washington University, https://extremism.gwu.edu/ 38 On November 9, 2004, DHS published a notice sites/g/files/zaxdzs2191/f/Jun19%20Tracker.pdf entry to provide biometric data to CBP in the Federal Register (69 FR 64964) identifying (last accessed October 26, 2020). during the inspection process. DHS the 50 most trafficked land border ports of entry 34 See https://www.dni.gov/index.php/nctc- designated the air and sea ports of entry where biometric data would be collected from newsroom/item/1911-white-house-releases- where the collection of biometrics from certain aliens upon entry. On September 14, 2005, national-strategy-for-counterterrorism. Accessed DHS published a notice in the Federal Register (70 October 26, 2020. certain aliens upon entry would occur Continued

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August 31, 2004 interim final rule also agencies, also may exempt any 2004 used kiosks placed between the amended § 215.8 to authorize DHS to individual from this requirement. See 8 security checkpoint and airline gates establish pilot programs to collect U.S.C. 1365b; 8 CFR 235.1(f)(1)(iv)(C)– that would collect a traveler’s biometrics from aliens upon departure (D); 8 CFR 215.8(a)(2)(iii)–(iv). fingerprint biometrics. The traveler had at designated land border ports of entry, the responsibility to find and use the 2. Exit Pilot Programs and the Transfer devices, with varying degrees of support in addition to the 15 designated air or of Entry and Exit Operations to CBP sea ports at which DHS was authorized from the airports where the pilots were to conduct biometric exit pilot While DHS successfully implemented deployed. DHS also hired contract programs. See 8 CFR 215.8(a)(1). biometric entry capability at all ports of teams to assist travelers in finding and On December 19, 2008, DHS entry, establishing a biometric exit using the kiosks. Although the specific published a final rule in the Federal solution posed greater challenges. From fingerprint technology collection Register (73 FR 77473) expanding the January 2004 through May 2007, DHS generally worked as intended when it population of aliens subject to legacy conducted a series of exit pilot programs was utilized, the overall compliance rate US-VISIT to nearly all aliens, including at 12 airports and 2 cruise ports across was low because travelers often lawful permanent residents.39 The rule the United States.42 These pilots were departed without providing their also finalized the August 31, 2004 conducted pursuant to 8 CFR 215.8.43 biometrics. interim final rule without change. Under these exit pilot programs, DHS DHS concluded from these pilots that As a result of the above rules and evaluated various technologies and it was generally inefficient and notices, DHS now collects biometrics processes to collect biometric data from impractical to introduce entirely new from aliens upon entry, with certain aliens at the time of departure. DHS government processes into an existing exemptions provided in the regulations, found that biometrics provide a and familiar traveler flow, particularly at all air, sea and land ports of entry. significant enhancement to the existing in the air environment. Unlike many The following categories of aliens ability to match arrival and departure airports in Europe and around the currently are exempt from the records as biometrics provides greater world, United States transportation requirements under 8 CFR 215.8 and assurance of identity verification. In infrastructure was not built with 235.1 to provide biometrics upon arrival addition, DHS found that each of the departure control in mind, and does not to, and departure from, the United various technologies used to collect have existing space within its airports to States at a U.S. port of entry: biometric exit records worked and that biometrically process departing • Aliens under the age of 14 and over compliance with biometric exit travelers. Because DHS was required to the age of 79; 40 procedures improved when the process secure space within the airports from • Aliens admitted on an A–1, A–2, C– was convenient for travelers. In a report the private sector, and because space 3 (except for attendants, servants, or dated June 28, 2007, the Government within airports is limited and valuable personal employees of accredited Accountability Office stated that ‘‘in from a commercial perspective, DHS’s officials), G–1, G–2, G–3, G–4, NATO– particular, on average only about 24 biometric exit pilots tended to operate 1, NATO–2, NATO–3, NATO–4, NATO– percent of those travelers subject to US- in relatively inconvenient locations, 5, or NATO–6 visa; VISIT actually complied with the exit which contributed to low compliance • Certain Taiwan officials who hold processing steps. The evaluation report rates. Overall, DHS concluded that a E–1 visas and members of their attributed this, in part, to the fact that biometric collection process that fit, to the extent practicable, within the immediate families who hold E–1 visas compliance during the pilot was existing traveler flow was necessary for unless the Secretary of State and the voluntary, and that to achieve the successful implementation. The facial Secretary of Homeland Security jointly desired compliance rate, the exit recognition technology required to determine that a class of such aliens solution would need an enforcement 44 reliably implement biometric exit should be subject to the requirements; mechanism.’’ processes into existing traveler flows and However, DHS also found that the has not been available until recently. • Canadian citizens under INA collection process used during those Overall, DHS’s conclusion is that the 101(a)(15)(B) (8 U.S.C. 1011(a)(15)(B)) pilots was inadequate and unsuitable for process of collecting biometric exit who are not otherwise required to a nationwide deployment because it records should be integrated into the present a visa or be issued Form I–94 or required significant DHS resources and also depended upon the facility existing departure process. Form I–95 for admission or parole into From May through June 2009, DHS 41 operator, in this case airports, to provide the United States. operated two biometric air exit pilots as See 8 CFR 235.1(f)(1)(ii), (iv); 8 CFR adequate space for the collection of biometric data. The pilots beginning in required by the Consolidated Security, 215.8(a)(1)–(2). In addition, the Disaster Assistance, and Continuing Secretary of State and the Secretary of 42 The ports of entry included in the pilot were: Appropriations Act, 2009, Public Law Homeland Security may jointly exempt Baltimore/Washington International Thurgood 110–329, 122 Stat. 3574, 3669–70. DHS classes of aliens from this requirement. Marshall Airport; Chicago O’Hare International announced the implementation of these The Secretaries of State and Homeland Airport; Denver International Airport; Dallas Fort biometric air exit pilots at Atlanta, Security, in consultation with the Worth International Airport; Miami Cruise Terminal; San Juan Luis Munoz Marin International Georgia (Hartsfield-Jackson Atlanta directors of the relevant intelligence Airport; Detroit Metropolitan Wayne County International Airport), and Detroit, Airport (McNamara Terminal); Newark Liberty Michigan (Detroit Metropolitan Wayne FR 54398) identifying additional land ports of entry International Airport; San Francisco International County Airport), by notice published in in which aliens would be enrolled in legacy US- Airport; Los Angeles Cruise Terminal; Hartsfield- 45 VISIT upon entry into the United States. Jackson Atlanta International Airport; Philadelphia the Federal Register. The pilots tested 39 See INA 101(a)(3). The term ‘‘alien’’ means any International Airport; Ft. Lauderdale/Hollywood the collection of biometric exit data in person not a citizen or national of the United States. International Airport; and Seattle-Tacoma two scenarios: First, the collection of 40 On September 11, 2020 USCIS published an International Airport. biometric information consisting of one NPRM proposing to remove the age exemptions in 43 See footnote 36. or more electronic fingerprints by CBP 8 CFR 215.8 and 8 CFR 235.1 regarding biometrics 44 See U.S. Government Accountability Office, collection at entry and exit. See, 85 FR 56338. ‘‘Prospects for Biometric US-VISIT Exit Capability at the departure gate using a hand-held 41 This category of exemptions covers Canadian Remain Unclear’’ (June 28, 2007), available at citizens traveling on a B1 or B2 visa. https://www.gao.gov/assets/120/117187.pdf. 45 74 FR 26721 (June 3, 2009).

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mobile device or other portable device; Infrastructure Security Agency 48); and time and manpower to be a biometric and second, biometric information US-VISIT’s overstay analysis mission to exit solution on all flights departing the consisting of one or more electronic ICE within DHS. United States. However, CBP concluded fingerprints collected by TSA at the E. Recent Developments in the that BE-Mobile does provide some TSA security checkpoint using a mobile Biometric Entry-Exit System benefits when used to assist with device. Although the technology worked outbound enforcement operations. For as expected and DHS successfully In 2015 and 2016, CBP conducted the instance, BE-Mobile allows officers to captured the biometric data, DHS following four biometric tests, three at identify travelers who have suspicious airports and one at a land port: (1) concluded that the use of mobile and travel histories or other derogatory Biometric Exit Mobile Air Test (BE- portable devices to capture electronic information for further investigation by Mobile); (2) 1 to 1 Facial Comparison fingerprints would be extremely Project; (3) Southwest Border Pedestrian searching databases that detail resource-intensive and costly to Exit Field Test; and (4) Departure individuals’ travel patterns, visa status, implement and maintain on a larger Information Systems Test. In October and criminal records. Similarly, BE- scale. 2017, CBP began testing a streamlined Mobile can identify travelers exiting the Beginning in December 2009, CBP entry process using facial recognition country who do not have corresponding conducted the Temporary Worker Visa technology known as ‘‘Simplified entry information, indicating that they Exit Program Pilot in San Luis, Arizona Arrival.’’ Since 2017, CBP has partnered potentially entered the country without and Douglas, Arizona, under which with a number of airlines and airport having been admitted or paroled. aliens admitted on certain temporary authorities to test a facial-recognition Finally, BE-Mobile may identify worker visas were required to depart exit process for international flights at individuals who have overstayed their from designated land ports of entry and certain locations. In 2018, CBP began period of admission, allowing CBP to submit certain biographical and conducting biometric pilot programs at collect more accurate overstay biometric information at one of the the land border in Anzalduas, Texas and information. outdoor kiosks established for this Nogales and San Luis, Arizona. CBP is currently utilizing the same purpose.46 In its evaluation of the pilot, Summaries of the tests, lessons learned, technology tested in the BE-Mobile pilot CBP identified several issues, including and conclusions are set forth below. at the original 10 airports as an difficulties participants experienced in 1. Biometric Exit Mobile Experiment enforcement tool for use by CBP understanding the requirements and (BE-Mobile) officers. Since 2017, CBP has expanded using the kiosks, resource and staffing the use of the BE-Mobile technology as In the summer of 2015, CBP began burdens, unreliable kiosk operability an enforcement tool to additional deploying the BE-Mobile pilot at the 10 due to the harsh desert climate, and airports and, more recently, land highest volume international airports in infrastructure challenges. As a result, ports.51 BE-Mobile technology also the United States.49 Under this pilot, CBP discontinued the Temporary serves as an additional identity CBP officers stationed at the passenger Worker Visa Exit Program Pilot in verification tool for CBP’s biometric September 2011.47 loading bridges of selected flights used a handheld mobile device to scan pilots using facial recognition In 2013, pursuant to the Consolidated fingerprints and passports of certain technology in the air and land and Further Continuing Appropriations aliens at the time of their departure from environments, and CBP is considering it Act, 2013, Public Law 113–6, 127 Stat. the United States at designated airports. for use in the sea environment, as well. 198, Congress transferred US-VISIT’s The biometric and biographic data 2. 1 to 1 Facial Comparison Project entry-exit policy and operations, collected by the BE-Mobile device was including responsibility for matched against data such as departures From March to May 2015, CBP tested implementing a biometric exit program, and arrivals in the United States, the 1 to 1 Facial Comparison Project at to CBP; US-VISIT’s biometric identity criminal histories, and lawful Dulles International Airport.52 This management functions to the newly immigration status. The goal of the BE- pilot was intended to assist CBP officers created Office of Biometric Identity Mobile pilot was to evaluate the in matching travelers to their passport Management (OBIM) within DHS’s viability of using handheld mobile photo. After the conclusion of the pilot National Protection and Programs technology to collect exit data from a program, the technology was deployed Directorate (now Cybersecurity and sample population on randomly for use at both Dulles International selected flights within a specified Airport and John F. Kennedy 46 In December 2008, DHS promulgated a final airport, as well as to evaluate the International Airport for U.S. citizens rule establishing the Temporary Worker Visa Exit Program under 8 CFR 215.9, to be started on a pilot viability of implementing biometric exit and first-time VWP travelers. The basis. See 73 FR 76891 (Dec. 18, 2008) (final rule in conjunction with CBP’s outbound technology compares a photograph establishing the Temporary Worker Visa Exit enforcement operations.50 taken of the traveler by a CBP officer Program at 8 CFR 215.9 for aliens admitted on an In its evaluation of the pilot, CBP upon entry to the photograph stored on H–2A visa) and 73 FR 78104 (Dec. 19, 2008) (final concluded that while the handheld rule amending 8 CFR 215.9 to include aliens the traveler’s electronic passport to admitted on an H–2B visas). CBP, through notices mobile technology can effectively assess whether the individual applying published in the Federal Register, designated aliens capture biometric data and match that for entry into the United States is the admitted under H–2A and H–2B visas who entered data against DHS databases, the the United States at either the port of San Luis, handheld devices required too much Arizona or the port of Douglas, Arizona as 51 See Biometric Exit Mobile Program PIA, participants in the Temporary Worker Visa Exit available at https://www.dhs.gov/sites/default/files/ Program Pilot. See 73 FR 77049 (Dec. 18, 2008) 48 As a result of the Cybersecurity and publications/privacy-pia-cbp026a-bemobile- (notice designating H–2A temporary workers and Infrastructure Agency Act of 2018, OBIM was june2018.pdf. Last Accessed October 26, 2020. the ports of entry), and 73 FR 77817 (Dec. 19, 2008) transferred to the DHS Management Directorate. 52 See https://www.dhs.gov/publication/facial- (notice designating H–2B temporary workers); see 49 See 80 FR 44983 (July 28, 2015). recognition-air-entry-pilot; https://www.cbp.gov/ also 74 FR 42909 (Aug. 25, 2009) (notice 50 CBP conducts traveler targeting operations to sites/default/files/documents/502050_ announcing the postponement of the pilot until vet inbound and outbound travelers from 1to1%20Face%20ePassport_ December 8, 2009). commercial airlines to identify potential high-risk Fact%20Sheet%208.5x11_OFO_05222015_FINAL_ 47 See 76 FR 60518 (Sept. 21, 2011). individuals, such as terrorists. Online.pdf. Accessed October 26, 2020.

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same person to whom the passport was challenges to implementing face and iris indicator light appeared and the traveler legally issued.53 scanning technology at land ports of was instructed to proceed to board the Although the capability was tested at entry. The successful implementation of plane. In the event the system did not the time of entry to the United States, a biometric capture system requires produce a match, a CBP officer could the information gathered through the infrastructure tailored to mitigate both attempt to verify the traveler’s identity pilot was intended to also inform the environmental factors that degrade through in person manual review and acquisition of a biometric exit image quality and human factors that use of other available information. capability. The results of the pilot inhibit travelers from properly For the pilot, CBP deployed the showed that biometric facial matching interacting with the biometric capture capability at one gate and for one daily can increase the confidence with which system. Environmental factors included nonstop flight from Atlanta to Tokyo. CBP officers verify individuals’ issues such as light, temperature, and Today, this technology, now operating identities without a negative impact to items within the biometric camera field as the Traveler Verification Service port of entry operations and traveler of view. Certain human factors, such as (TVS), is recording biometric exit wait times. Further, the results of this traveler attire and attentiveness, did records for a limited number of daily pilot aided CBP in determining the impact technology effectiveness. The international flights at a number of appropriate technical specifications test highlighted the need for biometric international airports.56 needed for the air travel environment, scanning equipment to be located inside 5. Land Border Biometric Tests which CBP could then test at exit by air. for protection from the elements, while recognizing that some land ports of In 2018, CBP began testing a number 3. Southwest Border Pedestrian Exit of different processes to develop a Field Test entry do not have sufficient space for such infrastructure. biometric entry-exit system to track From February to May 2016, CBP aliens entering and departing the United conducted a pilot program to test facial 4. Departure Information Systems Test States at the land border. For example, and iris scanning technology at the Otay In June 2016, in partnership with an in September 2018, CBP began a Mesa port of entry south of San Diego, airline, CBP deployed the Departure technical demonstration at the San Luis California.54 The purpose of the test was Information Systems Test pilot at port of entry in Arizona, testing the to determine if biometric technology Atlanta’s Hartsfield-Jackson collection of photographs from could be effectively used in an outdoor International Airport.55 The goal of the pedestrian travelers entering the United land environment without significant pilot was to evaluate the effectiveness of States.57 Under this technical impact to operations and wait times, biometric facial recognition matching of demonstration, CBP uses a facial and to determine if collecting biometrics a real-time photograph of an individual recognition system to collect in conjunction with biographic data to a gallery of photographs stored in a photographs of in-scope travelers upon exit would assist CBP in database. The field trial was designed to entering the United States. CBP identifying individuals who have use existing CBP systems and to expanded this pilot to Nogales, Arizona overstayed their period of admission. leverage data already provided to CBP in October 2018 and to Brownsville, Under this pilot program, CBP by the traveler and airlines for matching Texas; Progresso, Texas; and Blaine, collected biographic data from all purposes. Additionally, the field trial Washington in 2020. travelers departing the United States at was designed to support existing CBP has also explored using facial the Otay Mesa port of entry, and business practices of airlines and fit recognition technology in the vehicle biometrics (facial images and/or iris within existing infrastructure at U.S. environment. From August 2018 to scans) from all aliens, except for those airports. February 2019, CBP conducted the exempt pursuant to 8 CFR 215.8(a)(2) During the pilot, photographs of Vehicle Face demonstration at and 235.1(f)(1)(iv), entering and travelers taken during boarding were Anzalduas, Texas, which captured facial departing the Otay Mesa port of entry on compared to photographs taken images of vehicle occupants ‘‘at speed’’ foot. Before departing, travelers scanned previously (as part of a U.S. passport under 20 mph and biometrically their passports at a radio frequency application, a U.S. visa application, or matched the new images against a TVS identification-enabled kiosk. One through DHS encounters such as gallery of recent travelers.58 For this collection lane was equipped with facial admission processing) that had been demonstration, CBP installed several and iris scanning equipment that stored in the gallery. The names on the cameras in inbound lanes just prior to required the traveler to pause for outbound flight manifest were used to the existing vehicle lane infrastructure biometric data collection. Another lane populate the gallery with potential and in outbound lanes just beyond the was equipped with technology that matches to the travelers boarding the license plate reader vehicle footprint. collected facial and iris images while flight. The device used to capture the Vehicles proceeded through the the traveler continued through the lane photographs upon departure consisted respective inbound and outbound lanes without pausing. of a camera, document reader, and as normal, with CBP officers processing The pedestrian exit field test allowed display tablet. The display tablet vehicle occupants at the primary CBP to test the capability of biometrics instructed travelers to present their inbound booths using existing CBP other than fingerprints in an outdoor boarding pass to the reader as they software applications and technology. environment. The pilot also provided approached the unit. Once the boarding This process captured the biographic information about the physical pass was scanned, a camera captured a data of the vehicle occupants, associated photograph of the traveler’s face. After the travelers with the vehicle, and 53 The 1 to 1 Facial Comparison Project focused the system matched the photograph to created an exit crossing record for the on U.S. citizens and first-time Visa Waiver Program travelers because fingerprint biometrics are already the photographs in the gallery, an available to verify other travelers upon admission 56 See https://www.biometrics.cbp.gov/air for an to the United States. 55 See https://www.dhs.gov/sites/default/files/ up to date listing of these airports. 54 See 80 FR 70241 (Nov. 31, 2015) and PIA, publications/privacy-pia-cbp-dis%20test- 57 See https://www.cbp.gov/newsroom/local- available at https://www.dhs.gov/sites/default/files/ june2016.pdf and https://www.cbp.gov/newsroom/ media-release/cbp-implement-facial-comparison- publications/privacy-pia-cbp- local-media-release/cbp-deploys-test-departure- technical-demonstration-port-san-luis. Accessed swborderpedestrianexit-november2015.pdf. information-systems-technology-hartsfield. October 26, 2020. Accessed October 26, 2020. Accessed October 26, 2020. 58 See 83 FR 56862 (Nov. 14, 2018).

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occupants. The identification numbers Dulles International Airport, McCarran International Airport, Dallas/Fort Worth assigned to the exit crossing records International Airport, Detroit International Airport, Detroit were associated with scene and facial Metropolitan Airport, San Diego Metropolitan Wayne County Airport, images captured during this International Airport, John F. Kennedy Fort Lauderdale—Hollywood demonstration so that analysts could International Airport, Newark International Airport, William P. Hobby compare the biographic crossing data International Airport, and Los Angeles Airport, George Bush Intercontinental with the facial images and biometric International Airport. CBP is also testing Airport, McCarran International Airport, matching. This demonstration did not Simplified Arrival for arriving travelers Miami International Airport, impact the current experience of the processed through the preclearance Minneapolis-St. Paul International travelers or officers, except during facilities at locations including Queen Airport, Newark Liberty International normal outbound operations in which Beatrix International Airport, Aruba; Airport, John F. Kennedy International CBP officers stopped vehicles and Shannon Airport and Dublin Airports, Airport (New York), Orlando processed the occupants using a TECS Ireland; and Abu Dhabi International International Airport, Portland System application. Airport, United Arab Emirates.60 International Airport, Salt Lake City After an evaluation of these and any International Airport, San Antonio 7. Public-Private Partnerships other pilot programs, CBP plans to International Airport, San Francisco implement a long-term biometric exit Since June 2017, certain airlines, such International Airport, Washington solution at the land border that would as JetBlue Airways, Delta Air Lines, and Dulles International Airport, and Ronald address the unique operational and British Airways, have volunteered to Reagan Washington National Airport.61 use their own technology in partnership infrastructure challenges that exist in F. Proposed Facial Recognition Based with CBP to test a facial recognition- that environment. Entry-Exit Process based boarding process for international 6. Simplified Arrival flights that would facilitate identity Based on CBP’s extensive biometric In October 2017, CBP began testing verification, and also assist CBP in tests discussed above, DHS has Simplified Arrival, a streamlined entry meeting its congressional mandate to determined that facial recognition process using facial recognition implement biometric exit. In technology can provide a successful technology at Atlanta’s Hartsfield- compliance with CBP’s business foundation for a biometric exit solution, Jackson International Airport. Under requirements, these stakeholders as well as an improved and more Simplified Arrival, CBP uses facial deployed their own camera operators streamlined biometric entry process. recognition technology to biometrically and camera technology meeting CBP’s The following sections will discuss verify a traveler’s identity. Under this technical specifications to capture CBP’s proposed facial recognition based process, CBP uses APIS manifest data to photographs of travelers boarding entry-exit process. This process will be retrieve existing traveler photographs certain international flights via a facial implemented first at commercial air from government databases, including biometric capture device. The ports of entry. Full implementation at CBP’s own data systems, passport and photographs are sent to CBP’s TVS via for land and sea ports of entry will visa databases of the Department of a secure, encrypted connection, which follow after CBP has tested and refined State, and other DHS holdings such as will indicate to the airline if each its biometric exit strategies in those DHS’s Automated Biometric traveler’s identity can be verified. environments. Some of the facial recognition based Identification System (IDENT), to build The technology has the potential to entry and exit processes described a photo gallery of travelers who are speed up the departure for airlines and below may already be implemented in expected to arrive in the United States. travelers, as it enables identity limited form at entry or under biometric At the inspection booth, CBP captures a verification without manual verification of the boarding pass and scanning of the exit pilot programs. For such existing ‘‘live image’’ of the traveler and matches processes, CBP adheres to all applicable it to a photograph in the pre-assembled passport. This new process can assist carriers to more efficiently and laws or regulations that govern its gallery. Both the live image and the collection of biometrics. If this proposed gallery photograph are displayed to the accurately comply with their obligation to ensure that the person presenting the rule is implemented, CBP will be able CBP officer along with the traveler’s to collect facial images under the biographic data. The CBP officer then travel document is the person to whom the travel document was issued, processes described here from all aliens conducts an interview with the traveler arriving and departing the United pursuant to 19 CFR 122.49a(d), to validate the results and complete the States. inspection process.59 122.49b(d), 122.75a(d) and 122.75b(d). In addition to Atlanta, CBP is now In some of these tests, the biometric 1. Benefits of a Facial Recognition Based testing Simplified Arrival for arriving verification process has replaced the use Process travelers on international flights at of boarding passes. Eventually, Using facial recognition technology, locations including, Miami International participating airlines may choose to CBP has developed a model for moving Airport, Orlando International Airport, eliminate boarding passes entirely or forward with implementing a biometric George Bush Intercontinental Airport, use the technology to speed up other exit solution, starting at airports. As Houston Hobby, San Antonio processes. fingerprint scans have proven to be an International Airport, San Francisco Participating airlines, in partnership effective law enforcement tool, CBP will International Airport, Dallas—Fort with CBP, are testing this facial continue to capture fingerprints as the Worth International Airport, Norman Y. recognition-based boarding process on initial identification biometric. CBP may Mineta San Jose International Airport, select international flights at locations elect not to collect fingerprints for Fort Lauderdale-Hollywood including: Atlanta Hartsfield-Jackson subsequent identity verification where International Airport, Washington International Airport, Boston Logan CBP has implemented facial International Airport, Chicago O’Hare 59 Currently, U.S. citizens and aliens exempt 61 See https://www.biometrics.cbp.gov/air for an under 8 CFR 235.1(f) may voluntarily participate in 60 See https://www.biometrics.cbp.gov/air for an up to date list of locations where CBP is testing Simplified Arrival or instead undergo the normal up to date list of locations where CBP is testing facial recognition on international flights departing inspection process. Simplified Arrival. from the United States.

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recognition. Fingerprint scans can be citizenship.63 CBP will continue to work terrorists or criminals traveling using used for most aliens should facial with its partners to develop methods to someone else’s documents, before they recognition fail to properly identify the address any performance variations depart the country. By confirming that traveler. within the system. the traveler is not the true bearer of a CBP has determined that facial As an added benefit, a biometric presented travel document, the traveler recognition technology is currently the entry-exit system based on facial would then be subject to further best available method for biometric recognition is relatively unobtrusive. It inspection, first by the airline and also verification as it is efficient, accurate, relies on current traveler behaviors and in some circumstances by CBP officers, and unobtrusive. The key benefit of a expectations; most travelers are familiar which may include fingerprinting and/ biometric entry-exit system based on with cameras and do not need to learn or an interview. Through this additional facial recognition is its efficiency; it can how to have a photograph taken. inspection, CBP would be better able to leverage information that all travelers Finally, the biometric capture device identify known criminals and other provide to the U.S. government as a can be installed at an airline departure threats to border security. condition for international travel. gate without any necessary changes to The collection of photographs from all Photographs of all travelers are readily existing airport infrastructure. aliens avoids the need to have different available to DHS through sources such To fully implement an effective processes at the point of departure for as previous encounter photos and visa biometric entry-exit system in a secure alien travelers who are currently subject databases, eliminating the need to and comprehensive manner, and to to the collection of biometrics and those collect new information and add avoid another layer in the travel who are not. Collecting photographs another layer to travel process. In process, DHS has concluded that it may from all alien travelers aligns with addition, a system that matches a be necessary to collect photographs international passport standards, which traveler’s facial biometrics against a from all aliens upon entry and/or require a photograph of the traveler on limited number of stored photographs, departure from the United States.64 In the document regardless of age or rather than an entire government this proposed rule, DHS proposes to classification. Having multiple database of photographs, significantly amend the regulations to provide that processes for different alien travelers at reduces the amount of time necessary to all aliens may be required to be the departure gate would add another verify a traveler’s identity. As a result, photographed upon entry and/or layer to the travel process and place CBP is able to verify the identity of departure. Failure to comply with a significant burdens on carriers, airports arriving or departing travelers with a requirement to be photographed upon and other port facilities, and the high degree of efficiency while entry and/or departure may be found to traveling public. Also, at certain facilitating travel for the public. constitute a violation of the terms of the locations, such as at an international Biometric verification using facial alien’s admission, parole, or other departure gate at an airport, there may recognition is highly accurate. As of immigration status and, where the not be sufficient space for multiple lines September 2018, CBP’s facial failure to comply is upon entry, may of alien travelers. recognition technology was able to result in a determination that the alien DHS has also determined that the match travelers at a rate of greater than is inadmissible under section 212(a) of collection of photographs from all aliens 97 percent. If the system fails to match the Immigration and Nationality Act or at entry is necessary, without regard to 65 a traveler, then a manual review of the any other law. age or visa classification. Based on traveler’s document is performed, just as By collecting photographs from all NIST’s research, CBP has found that the process is conducted today. aliens departing the United States, DHS effectiveness of a biometric entry-exit can more effectively verify their identity Additionally, CBP has a rigorous system based on facial recognition and confirm their departure. This process in place to review data and improves when more sources of collection also helps identify visa metrics associated with biometric facial biometrics are available to match overstays and aliens who are present in 66 recognition matching performance. CBP against. A photograph collected from the United States without having been is working with DHS Science and a traveler upon entry to the United admitted or paroled, and prevent their Technology (S&T) Directorate to States would provide DHS with another illegal reentry into the United States, as continue to develop and refine methods data point to match against a well as prevent visa fraud and the use photograph collected upon departure, in to analyze any differences that are of fraudulent travel documents. It also addition to the photographs already discovered in matching performance helps DHS identify known or suspected available to DHS through sources such (e.g., age,62 gender, and citizenship) as previous encounter photos and visa based on the available data collected 63 Based on June 2017–May 2018 CBP Air Exit databases. In addition to improving the through biometric entry-exit operations. data from ATL, HOU, IAD, IAH, JFK, LAS, LAX, system’s matching performance, CBP is also seeking the expertise of the MIA, ORD, SEA, SFO. Please see Evaluating Bias in establishing a requirement that all aliens National Institute of Standards and the docket for this rulemaking. See also NIST may be photographed without Technology (NIST) in evaluating the Interagency Report 8271, available at https:// doi.org/10.6028/NIST.IR.8271. exemption enables DHS to biometrically performance and core algorithm 64 Currently, the regulations provide that certain verify the identity of all alien travelers capability of face recognition aliens are exempt from the collection of biometrics traveling to and from the United States, algorithms. CBP’s presently available upon entry and departure from the United States. thereby helping prevent visa fraud and data demonstrates marginal differences See 8 CFR 215.8(a) and 235.1(f)(1); see also Section III.D.1 for more discussion. the fraudulent use of legitimate travel in match rate between age, gender, or 65 See proposed 8 CFR 215.8(b) and documentation. 235.1(f)(1)(iv). In the event of technical failures Collecting photographs from all aliens 62 Currently, the regulations provide that aliens preventing the capture and matching of younger than 14 or older than 79 are exempt from photographs of travelers at exit, air carriers will be at entry also enables CBP to implement the collection of biometrics upon entry and directed to use manual boarding processes until the departure from the United States. See 8 CFR systems are functional. In this scenario, a 66 See NIST Interagency Report 8238, available at 215.8(a) and 235.1(f)(1); see also Section III.D.1 for biographic exit record will be created for the https://nvlpubs.nist.gov/nistpubs/ir/2018/ more discussion. CBP will collect additional data traveler but a biometric confirmation will not exist. NIST.IR.8238.pdf. See NIST Interagency Report on these populations and evaluate match rates once A missing biometric confirmation record based on 8271, available at https://doi.org/10.6028/ the regulations are amended to include these age technology or operational failures is not considered NIST.IR.8271.https://nvlpubs.nist.gov/nistpubs/ir/ groups. non-compliance with departure requirements. 2018/NIST.IR.8238.pdf.

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a streamlined entry process using facial technological problems previously maintains, known as a ‘‘gallery.’’ These recognition for all such aliens. For associated with fingerprints. images may include photographs example, under the Simplified Arrival Certain privacy advocates have captured by CBP during previous entry process described above, CBP primarily expressed concern over the accuracy of inspection, photographs from U.S. uses photographs rather than facial matching technology especially as passports and U.S. visas, and fingerprints to verify the traveler’s it relates to demographics such as age, photographs from other DHS identity and retrieve the traveler’s race and gender. By expanding the encounters. CBP builds ‘‘galleries’’ of biographic information for inspection. scope of individuals subject to facial photographs based on where and when Facial recognition technology can image collection, the accuracy of the a traveler will enter or exit. If CBP has perform the function of biometrically facial matching system will improve for access to APIS manifest information, verifying an alien traveler’s identity all segments of the population, CBP will build galleries of photographs much more efficiently than collecting including children and the elderly, as it based on upcoming flight or vessel and comparing his or her fingerprints. would be matching against more recent arrivals or departures. If CBP does not During CBP’s current inspection photos of the traveler rather than older, have access to APIS manifest process, most aliens are subject to being outdated visa photos.67 Additionally, as information, such as for pedestrians or photographed upon arrival into the discussed above, the proposed change to privately owned vehicles at land ports United States at primary inspection. The remove biometric exemptions for aliens of entry, CBP will build galleries using Simplified Arrival process, which is would also alleviate the need to have photographs of ‘‘frequent’’ crossers for based on this requirement, utilizes multiple processing procedures for that specific POE, taken at that specific integrated biometric identity aliens, which would be a resource POE, that become part of a localized verification with the retrieval of a intensive process. For land and sea photographic gallery. CBP’s TVS facial traveler’s biographic data from a single ports of entry and private aircraft, CBP matching service then generates a capture of a photograph. In doing so, the plans to continue to test and refine biometric template for each gallery Simplified Arrival process eliminates biometric exit strategies with the photograph that is stored in the TVS the need for CBP to scan a passport or ultimate goal of implementing a virtual private cloud for matching when travel document to pull up the traveler’s comprehensive biometric entry-exit the traveler arrives or departs. biographic data for inspection because a system nationwide. The proposed 3. General Collection Process facial recognition scan performs this regulatory changes would support CBP’s Due to the complexities in logistics same function more quickly. Ultimately, efforts to regularly conduct a variety of across the entry and exit environments, using facial recognition at entry can statistical tests to bolster performance CBP will collect photographs of the eliminate several administrative thresholds and minimize any possible arriving or departing traveler via several processes that will increase the speed at bias impact on travelers of certain race, different methods depending on the which CBP can inspect travelers gender or nationality. local port of entry. Generally, when arriving in the United States. By In this proposed rule, CBP has not travelers present themselves for entry or eliminating the administrative tasks analyzed the costs and benefits for exit, they will encounter a camera involved in scanning a travel document implementing a facial recognition based connected to CBP’s cloud-based TVS or collecting fingerprints, CBP can biometric entry-exit program for land facial matching service via a secure, devote more resources to interviewing and sea ports of entry and private aircraft because CBP is still in the encrypted connection. This camera an alien traveler to determine his or her matches live images with existing photo admissibility. testing phase to determine the best way to implement biometric entry-exit templates from passenger travel As noted above, DHS proposes in this within each of these unique documents. The camera may be owned rule to collect photographs from all environments. CBP would welcome by CBP, the air or vessel carrier, another aliens regardless of their age. This will comments from the public on the rule’s government agency such as TSA, or an enable DHS to associate the immigration impact on land and sea ports of entry international partner governmental records created for children to their and private aircraft. agency. Once the camera captures a adult records later, which will help CBP is continually evaluating how to quality image and the system combat trafficking of children, and best implement a biometric entry-exit successfully finds a match among the confirm the absence of criminal history system that is efficient, accurate, and historical photo templates of all or associations with terrorist or other secure and incorporates the latest travelers from the gallery associated organizations seeking to violate technology. These evaluations will with that particular manifest, the applicable law. The current regulations allow CBP to determine if new traveler proceeds to inspection for an that exempt biometric collection based technology or new methods of admissibility determination by a CBP on the age of the individual (i.e., under employing existing technology might Officer, or is permitted to depart the 14 and over 79) were based on improve the entry-exit system. United States. When a ‘‘no match’’ technological limitations on collecting occurs, CBP may use an alternative fingerprints from children and elderly 2. Facial Recognition Technology means to verify the traveler’s identity, persons, as well as traditional law Gallery Building such as a manual review of the travel enforcement policies and other policies, CBP has developed a matching service document. See Section III.F.6 for more such as not running criminal history for all biometric entry and exit discussion. background checks on children. These operations that use facial recognition, policies are no longer applicable to 4. Facial Recognition Based Entry regardless of the method of entry or exit Process CBP’s facial recognition based biometric (i.e., air, land, and sea). For all biometric entry-exit program, as the use of matching deployments, TVS relies on Historically, prior to admission to the biometrics has expanded beyond biometric templates generated from pre- United States, CBP has used a manual criminal history background checks and existing photographs that CBP already process to inspect travel documents, now plays a vital role in identity such as passports or visas, to initiate verification and management. The use 67 See NIST Interagency Report 8271, available at system checks and verify a traveler’s of facial recognition also obviates the https://doi.org/10.6028/NIST.IR.8271. identity, travel history, and any law or

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

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the review of biographic data (provided event a U.S. citizen elects not to be Upon request, CBP officers provide via APIS) to determine whether further photographed at airports where CBP is individuals with a tear sheet with inspection on departure is warranted conducting biometric exit verification, Frequently Asked Questions (FAQ), opt- and whether an outbound enforcement an airline gate agent will perform a out procedures, and additional teams should be sent to the gate. With manual review of the U.S. citizen’s information on the particular the use of facial recognition technology, passport. If there is some question as to demonstration, including the legal outbound enforcement teams are the authenticity of the passport or authority and purpose for inspection, informed immediately when a no match whether the person presenting the the routine uses, and the consequences occurs (via notification on mobile passport is the person to whom the for failing to provide information. device) and can then determine if passport was lawfully issued, the airline Additionally, in the FIS, CBP posts additional inspection is warranted. will contact CBP for additional signs informing individuals of possible Outbound processing for travelers on inspection, and a CBP officer may searches, and the purpose for those commercial sea vessels (e.g., cruise perform a manual review of the searches, upon arrival or departure from ships) would resemble the air exit passport. A CBP officer may ask the United States. Privacy information process. It is expected that this process questions to validate identity and on the program, such as System of will also be based on an APIS traveler citizenship. At other departure Records Notices and Privacy Impact manifest, although further testing is locations, such as at a land port where Assessments (PIAs), are published on needed to refine and implement this CBP is conducting biometric www.dhs.gov/privacy. CBP will also process. At the land border, as part of verification, CBP provides appropriate continue to make program information, CBP’s outbound enforcement efforts, alternative procedures. As biometric such as Frequently Asked Questions, CBP has begun recording departures of collection progresses, CBP believes that available for the public on CBP’s Third Country Nationals (TCN) it will save travelers time. If this is the biometrics website at www.cbp.gov/ encountered during outbound case, the alternative inspection process biometrics. operations at land crossings, both may be a slower process than the 7. ‘‘No Match’’ Procedures biographically and with facial images automated process, but every effort will and fingerprint biometrics. A TCN is be made to not delay or hinder travel. CBP has designed the entry and exit defined as a foreign national who is As discussed in Section III.E.6, inspection process such that, in the attempting to enter either Canada or Simplified Arrival enables CBP to use event of a mismatch, false match, or ‘‘no Mexico but is not a citizen of either facial recognition to streamline the entry match,’’ CBP may use alternative means country. TCNs departing the United process for all arriving travelers. This to verify the traveler’s identity and States by land are those individuals who process has been implemented at certain ensure that the traveler is not unduly are currently subject to biometric locations and will be expanded. For delayed. If the system fails to match a collection under existing CBP U.S. citizens, participation is voluntary. traveler, then a manual review of the regulations. CBP provides appropriate alternative traveler’s document is performed. On procedures for U.S. citizens who choose entry, the CBP officer may continue to 6. Alternative Procedures and Public not to participate in the biometric conduct additional screening or request Notices verification process at entry. The fingerprints (if appropriate) to verify Currently for air exit, all travelers, alternative procedures proposed in this identity. Each inspection booth at entry including U.S. citizens, may notify the rule are intended to be similar to the is equipped with a fingerprint reader. airline-boarding agent if they would like existing process at entry today, in which At departure, after the manual review to opt out of the facial-recognition based a CBP officer would physically examine of the travel document (i.e., scanning a process at the time of boarding and the traveler’s documentation to ensure boarding pass and checking a traveler’s request that an alternative mean of the bearer is the true owner, and scan passport), the airline or cruise line may validation be employed. Airline the document to pull up the traveler’s notify CBP’s outbound enforcement personnel would then conduct manual data for inspection. See Section III.E.6. teams should additional inspection be identity verification using the travel CBP strives to be transparent and required.69 In such case, CBP officers document, and may notify CBP to provide notice to individuals regarding may inspect the traveler’s passport or collect biometrics, if applicable. Under its collection, use, dissemination, and other valid travel document. If the the proposed rule, alien travelers would maintenance of personally identifiable traveler is subject to biometric no longer be able to opt out. Alternative information (PII). When airlines or collection (under the current regulations procedures would only be available to airports are partnering with CBP on or under the amended regulations once U.S. citizen travelers. biometric air exit, the public is informed this rule is finalized), the officer may All U.S. citizens are subject to that the partner is collecting the swipe the traveler’s document in the inspection upon arrival into and biometric data in coordination with MRZ of the BE-Mobile device and departure from the United States to CBP. CBP provides notice to travelers at collect the traveler’s fingerprints. BE- confirm their identity and citizenship. the designated ports of entry through Mobile uses fingerprints, facial images, Where CBP has implemented a both physical and either LED message and the existing connections between biometric verification program, boards or electronic signs, as well as ATS–UPAX and DHS IDENT for all participation by U.S. citizens in CBP’s verbal announcements in some cases, to biometric verification program is inform the public that CBP will be 69 Communication between CBP’s outbound voluntary. Such participation provides a taking photos for identity verification enforcement team and airlines/cruise lines is not more efficient boarding process or purposes. CBP also provides notice to unique to locations where facial recognition is implemented. During the outbound inspection, CBP admission process and a more accurate the public that a traveler may opt out of may interview the traveler as well as use BE-Mobile and efficient method for verifying the having their photo taken and request an devices. CBP conducts outbound enforcement identity and citizenship of U.S. citizens. alternative procedure. CBP works with operations using BE-Mobile devices in all modes of A U.S. citizen traveler who does not carriers, airports, and other port transportation and also at locations where facial recognition technology (i.e., biometric exit wish to have his or her photograph facilities to incorporate appropriate boarding) is unavailable. Neither the operations nor taken may request an alternative notices and processes into their current the technology is exclusive to locations where facial inspection process. For example, in the business models. recognition based biometric exit is implemented.

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biometric queries and storage. CBP documentation as required by 22 CFR authorizes DHS to collect biometric exit encrypts data on the wireless handheld part 53) to enter and leave the United information from certain aliens on device as it is collected and encrypts the States. See INA 215(b) (8 U.S.C. departure from the United States biometric and biographic data during 1185(b)); see also 22 CFR 53.1. pursuant to pilot programs at air, land, transmission to and from internal and For purposes of this proposed rule, a or sea ports of entry and places a limit external systems. No information is U.S. national or dual national who of 15 air or sea ports of entry at which retained on the BE-Mobile device. presents as a citizen of another country such biometric exit pilots may be The BE-Mobile device transfers prints will be processed as a foreign national established. The reference to pilot and passport information to the and their photo will be retained programs and the 15 air or sea port appropriate DHS and CBP information accordingly, unless they are able to limitation hinders DHS’s ability to technology system to identify any law present evidence of U.S. citizenship or expand and fully implement a enforcement lookouts related to the nationality.71 comprehensive biometric exit solution. traveler. In addition, the device matches Under immigration law, lawful Therefore, DHS is proposing to amend the traveler to the APIS manifest and permanent residents (LPRs) are aliens § 215.8 by removing the reference to creates a confirmed exit record in such authorized to live permanently within pilot programs and the 15 air or sea port CBP systems as APIS and the Arrival the United States.72 As such, for limit. and Departure Information System purposes of this proposed rule, LPRs (ADIS). If the system checks yield no will be processed as aliens. B. Collection of Photographs From Aliens Upon Entry and Departure derogatory information, the CBP officer 9. Business Requirements for Public- allows the traveler to board/continue Private Partnerships As discussed in Section III.D.1, DHS travel. regulations implementing the legacy The business requirements Based on the inspection results and US–VISIT program provide that certain implemented by CBP with its partners the queries using the newly collected categories of aliens are exempt from the govern the retention and use of the biometric and biographic data, if CBP collection of biometrics upon arrival to, finds actionable derogatory information facial images collected using CBP’s facial recognition technology. CBP and departure from, the United States. on the traveler, the CBP officer may See 8 CFR 235.1(f); 8 CFR 215.8(a)(1)– escort the traveler to the FIS area to prohibits its approved partners such as airlines, airport authorities, or cruise (2). These exemptions are not statutorily conduct further questioning and take based. As discussed in Section III.A, the appropriate actions under CBP’s law lines and participating organizations (e.g., vendors, systems integrators, or DHS has broad statutory authority to enforcement authorities. control alien travel, inspect aliens and In the event that an individual does other third parties) from retaining the require biometrics from aliens upon experience a delay or issue as an photos they collect under this process arrival in, or departure from, the United outcome of these processes, travelers for their own business purposes. The States. may contact the CBP Info Center and/or partners must immediately purge the DHS Traveler Redress Inquiry Program images following transmittal to CBP, To implement a biometric entry-exit (TRIP). Signage and tear sheets at select and the partner must allow CBP to audit system based on facial recognition, DHS ports of entry where the TVS is compliance with this requirement. As is proposing to amend the regulations to employed provides information on how discussed in the November 2018 PIA, provide that all aliens may be required to contact the CBP Info Center and/or CBP has developed Business to be photographed upon departure DHS TRIP. In addition, travelers may Requirements to document this from the United States. The exemptions request information from the on-site commitment. In order to use TVS, of certain aliens from the collection of CBP officer or gate agent. private sector partners must agree to biometrics in § 215.8(a)(1)–(2) will no these Business Requirements. After this longer pertain to the collection of 8. U.S. Nationals, Dual Nationals and rule is implemented, the Business photographs from aliens upon Lawful Permanent Residents Requirements document will be departure. Specifically, DHS is Under the INA, a U.S. national is updated and available for viewing on proposing to amend § 215.8 to add new either a citizen of the United States, or cbp.gov. paragraph (a)(1), which provides that an a person who, though not a U.S. citizen, alien may be required to be owes permanent allegiance to the IV. Proposed Regulatory Changes photographed when departing the United States. See INA section A. General Biometric Exit Requirement United States to determine identity. The 101(a)(22). Non-citizen U.S. national for Aliens collection of photographs from an alien status applies only to individuals who To advance the legal framework for upon departure will assist DHS in were born either in American Samoa or the full implementation of a biometric determining the alien’s identity and on Swains Island to parents who are not exit capability as described above, DHS whether immigration status in the 70 citizens of the United States. is proposing to amend the regulations in United States has been properly Dual nationals are individuals who 8 CFR that set forth the requirements for maintained. owe allegiance to both the United States providing biometrics upon entry and In addition, DHS is proposing to and the foreign country. They are departure. Currently, 8 CFR 215.8(a)(1) amend § 235.1(f) to add new paragraph required to obey the laws of both (1)(ii), which provides that an alien countries, and either country has the 71 A person claiming U.S. citizenship must seeking admission may be required to be right to enforce its laws. For purposes of establish that fact to the examining officer’s photographed to determine the alien’s international travel, U.S. nationals, satisfaction and must present a U.S. passport or identity, admissibility, and whether including dual nationals, must use a alternative documentation as required by 22 CFR part 53. If such person fails to satisfy the examining immigration status in the United States U.S. passport (or alternative immigration officer that they are a U.S. citizen, the has been properly maintained. As for person shall thereafter be inspected as an alien the collection of photographs upon 70 See Dual Nationality, U.S. Department of State, applicant for admission. 8 CFR 235.1(b). departure, the exemptions in https://travel.state.gov/content/travel/en/legal/ 72 Under the INA, the term alien means any travel-legal-considerations/Advice-about-Possible- person who is not a citizen or national of the United § 235.1(f)(1)(ii) will no longer pertain to Loss-of-US-Nationality-Dual-Nationality/Dual- States. 8 CFR 215.1(a). Therefore, a lawful the collection of photographs from Nationality.html. permanent resident is an alien under the INA. aliens seeking admission.

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DHS is not proposing to change the designated U.S. port of entry, a few potential for implementation in the existing exemptions in §§ 215.8 and travelers depart the country from future. 235.1(f) 73 for the collection of locations that are not designated as V. Withdrawal of 2008 Air Exit Notice biometrics other than photographs (e.g., ports of entry, such as Ronald Reagan of Proposed Rulemaking fingerprints and other biometrics) from Washington National Airport or John aliens upon entry to and departure from Wayne Airport, California.75 To ensure On April 24, 2008, DHS published a the United States. This is set forth in 8 the implementation of a biometric entry- notice of proposed rulemaking (NPRM) CFR 215.8(a)(2)–(3) and 235.1(f)(1)(iii) exit system that tracks all individuals in the Federal Register (73 FR 22065) and (vi) as amended in this document; departing the country, DHS may require proposing a biometric exit program at see also Section IV.C.1 of this aliens to provide biometrics upon air and sea ports that would require document. Notwithstanding these departure at U.S. ports of entry or when commercial air and vessel carriers to exemptions, DHS is authorized to departing the United States at any other collect biometric data from aliens and collect biometrics from aliens, location. submit this information to DHS within regardless of age, citizenship, or visa In addition, DHS is proposing to make a certain timeframe. The proposed rule status, for law enforcement purposes or certain minor conforming and editorial set out certain technical requirements in other contexts not addressed by these changes in §§ 215.8 and 235.1(f). In and a substantive performance standard regulations, such as from aliens § 215.8, DHS is proposing to redesignate for the transmission of biometric data, attempting to enter the United States paragraph (a)(2) as paragraph (a)(3), but provided the carriers with some illegally between U.S. ports of entry. See revise cross-references and add discretion in the manner of collection Section III.A. As such, CBP may, on a paragraph headings as necessary. In and submission of biometric data, case-by-case basis, collect biometrics § 235.1(f), DHS is proposing to including latitude in determining the other than photographs from aliens redesignate paragraph (f)(1)(ii) as location of the biometric data collection outside of the age limits or visa category paragraph (f)(1)(iii), paragraphs (f)(1)(iii) within the port of entry. DHS received exceptions. and (iv) as paragraphs (f)(1)(v) and (vi), 118 comments from the public in C. Collection of Biometrics When add new paragraphs (f)(1)(ii) and (iv), response to the NPRM. Most of the Departing the United States and Other and revise cross-references and add comments opposed the adoption of the Minor Conforming and Editorial paragraph headings as necessary. In proposed rule due to issues of cost and Changes §§ 215.8 and 235.1(f), DHS is proposing feasibility. DHS is proposing to amend § 215.8(a) to remove the phrase ‘‘[t]he Secretary of In consideration of the regulatory to specify that biometrics may be Homeland Security or his or her changes being made in this rule, the required ‘‘when departing the United designee’’ and add in its place ‘‘DHS’’ comments received, the results of the States.’’ The current provision refers to and remove the phrase ‘‘biometric biometric exit pilots conducted in ‘‘upon departure from a U.S. port of identifiers’’ and add in its place 2009,76 and DHS’s new approach to entry.’’ This amendment is necessary to ‘‘biometrics.’’ implementing a biometric entry-exit allow for the collection of biometrics Finally, DHS is proposing to amend system, DHS has decided that the 2008 from individuals upon departure at §§ 215.8(a) and 235.1(f) to remove the NPRM should be withdrawn. The locations other than at a U.S. port of specific references to fingerprints and withdrawal notice is being published entry.74 Although the majority of photographs. Currently, these sections concurrently with the publication of travelers depart the country from a provide that any alien may be required this proposed rule. ‘‘to provide fingerprints, photograph(s) VI. Statutory and Regulatory 73 The following categories of aliens currently are or other specified biometric identifiers’’ Requirements exempt from the requirements under 8 CFR 215.8 upon arrival into or departure from the and 235.1 to provide biometrics upon arrival to, and A. Executive Orders 12866 and 13563 departure from, the United States at a U.S. port of United States. Because this rule adds a entry: Canadian citizens under Section separate sub-paragraph relating to the Executive Orders 13563 (‘‘Improving 101(a)(15)(B) of the Act who are not otherwise provision of photographs, the word required to present a visa or be issued a form I–94 Regulation and Regulatory Review’’) or Form I–95; aliens younger than 14 or older than ‘‘photograph(s)’’ in this provision is no and 12866 (‘‘Regulatory Planning and 79 on the data of admission; aliens admitted A–1, longer appropriate. Furthermore, to Review’’) direct agencies to assess the A–2, C–3 (except for attendants, servants, or allow the flexibility for DHS to employ costs and benefits of available regulatory personal employees of accredited officials), G–1, G– different methods of biometric 2, G–3, G–4, NATO–1, NATO–2, NATO–3, NATO– alternatives and, if regulation is 4, NATO–5, or NATO–6 visas, and certain Taiwan collection in the future, DHS is necessary, to select regulatory officials who hold E–1 visas and members of their proposing to amend §§ 215.8(a) and immediate families who hold E–1 visas unless the approaches that maximize net benefits 235.1(f) to provide instead that any (including potential economic, Secretary of State and the Secretary of Homeland alien, other than those exempt by Security jointly determine that a class of such aliens environmental, public health and safety should be subject to the requirements of paragraph regulation, may be required ‘‘to provide effects, distributive impacts, and (d)(1)(ii); classes of aliens to whom the Secretary of other biometrics’’ upon arrival into and equity). Executive Order 13563 Homeland Security and the Secretary of State departure from the United States. CBP jointly determine it shall not apply; or an emphasizes the importance of individual alien to whom the Secretary of has tested iris technology, for example, quantifying both costs and benefits, of Homeland Security, the Secretary of State, or the but biometric technology continues to reducing costs, of harmonizing rules, Director of Central Intelligence determines it shall advance and there may be other and of promoting flexibility. not apply. biometric options that may have 74 A port of entry is any location in the United This rule is an ‘‘economically States or its territories that is designated as a point significant regulatory action,’’ under of entry for aliens and U.S. citizens. See 8 CFR 75 These airports are not ports of entry pursuant 235.1(a) (providing that application to lawfully to 8 CFR 100.4(b) and do not have federal section 3(f) of Executive Order 12866. enter the United States shall be made in person to inspection processes or facilities, but still have a Accordingly, the Office of Management an immigration officer at a U.S. port of entry); see few flights that depart to international locations, and Budget (OMB) has reviewed this also 8 CFR 100.4(a) (designating ports of entry for mostly those that have CBP preclearance facilities regulation. aliens arriving by vessel or by land transportation) (typically in Canada or the Caribbean). This and 100.4(b) (designating ports of entry for aliens proposed change would account for these arriving by aircraft). departures from the United States. 76 See Section III.D.2.

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

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United States.79 DHS, through CBP, has similar to the one used under this rule currently testing or planning to expand been developing and testing additional was tested at exit. Based on the early this at additional airports, including the biometric entry and exit capabilities success of the pilot in Atlanta, CBP Orlando International Airport. Under since 2004. expanded the use of facial recognition this model, airline employees operate What follows is a brief summary of technology to additional airports. For the facial recognition gates rather than the pilot programs and the current the purposes of this analysis, the CBP. Once the match is made, there is biometric entry-exit requirements for process at the eight airports shall be no additional step of scanning the those affected by this rule. For a full referred to as the initial pilot.80 The boarding pass or checking the traveler’s history, see Section III.D above, titled facial recognition technology is now identification. If there is not a match, ‘‘Biometric Entry-Exit Program History.’’ operating as TVS. Using the initial pilot, the document is examined by an airline Since 2004, DHS and CBP have run a CBP is capturing photographs from all representative, and a CBP officer may variety of pilot programs to test various participating travelers on selected daily also be notified to examine the biometric entry and exit capabilities. outbound flights at a number of document. British Airways has found Tests have been conducted using a international airports. Before boarding, that this process allows for boarding of variety of technologies in different travelers typically line up so an airline its largest aircraft in 22 minutes, less environments ranging from handheld employee can scan their boarding than half the time under the usual devices for capturing fingerprints at passes. CBP has added a station along process.82 airports upon entry to kiosks for this line where CBP officers scan Orlando International Airport has pedestrians at land ports. CBP has most travelers’ boarding passes and take their announced that it will soon begin recently been testing facial recognition photographs. The photograph is building infrastructure to collect technology and has concluded that this compared with the photograph(s) in photographs of all arriving and exiting is the preferred method of widespread CBP’s database to ensure there is a aliens.83 The exit model will be similar biometric collection. It allows CBP to match. Under the initial pilot, an airline to the British Airways pilot in that the collect biometric data quickly and employee still scans the boarding pass exit process will be conducted by the unobtrusively and the data can be easily after the facial recognition process is airlines. Participating airlines may compared with previously collected complete. According to a time in motion eventually choose to eliminate boarding data to match the traveler with previous study of the biometric identity passes entirely and may also use facial entries and with her/his passport or visa verification process, this process took 9 recognition to speed up other processes. photograph. CBP already takes seconds of each traveler’s time.81 TVS will also be tested at entry and is photographs of most aliens at entry Overall boarding time is unaffected already being tested in certain other during the routine inspection process because the facial scans are done while locations. CBP and airlines expect the and maintains them in a database. For the traveler is already in line waiting to implementation at entry to save aliens who have traveled to the United board. Note that this is an estimate for considerable time. The existing version States previously, CBP’s database the added time for the initial pilot and of 19 CFR 235.1 already specifically includes a photograph from each entry. it does not apply to the end state authorizes CBP to require photographs For aliens with visas, CBP’s database solution under this rule because in the of most aliens at entry. This rule will also includes the photographs taken end state there will not be a boarding expand the requirement to all aliens. during the visa application process. pass scan in addition to the facial This would simplify the testing at entry Facial recognition technology compares recognition. because no aliens would be eligible to a new photograph of an individual with While this initial pilot model has opt out of the facial recognition process. previously captured photographs to been useful for testing the facial Currently, this process is optional for all ensure that the individual is who he or recognition software and process, it is exempt travelers. she claims to be. not feasible for nationwide deployment The rule will advance the legal In June 2016, CBP deployed a facial because CBP does not have the staffing framework to implement a biometric recognition pilot at the Hartsfield- for such an expansion. Airlines have exit requirement using facial recognition Jackson Atlanta International Airport. recognized the potential for facial technology on a nationwide basis. CBP This pilot was the first time a process recognition to speed up the process for lacks the resources to implement this airlines and travelers and have program nationwide and will continue 79 CBP does collect biometric data from U.S. partnered with CBP to test the software to work with airlines and airports to citizens in certain circumstances on a voluntary in different locations and with establish partnerships before doing so. basis, such as under entry-exit pilot programs described herein, under CBP’s trusted traveler alterations to the model. For example, Due to airline and airport interest, CBP programs, and may be compelled on a case-by-case British Airways began testing a new expects to implement the program basis for law enforcement purposes. For the model at Los Angeles International nationwide within five years. Automated Passport Control (APC) kiosks, which Airport in November 2017, and is While this analysis is primarily are free, voluntary, and do not require a membership, the APC kiosks collect facial images focused on the impacts of this rule once from all travelers and fingerprints from VWP, U.S. 80 The eight airports include: Washington Dulles it is in effect, CBP has been using visa, and non-Canadian LPR travelers. The kiosk International Airport, Atlanta Hartsfield-Jackson similar facial recognition in its pilot captures a photo and then prints out a receipt with International Airport, Houston George Bush programs for several years, which have the traveler’s face and biographic information. This Intercontinental Airport, Chicago O’Hare process allows CBP Officers to make manual one- International Airport, Las Vegas McCarran both costs and benefits to CBP and the to-one comparisons of the newly-captured facial International Airport, Houston William P. Hobby public. To give the reader a full view of images with the travelers themselves. APC kiosk Airport, John F. Kennedy International Airport, and the effects of CBP’s facial recognition systems may not retain PII, including biographic Miami International Airport. program through the entire time it has 81 and biometric data. APC Services retains PII via log The time in motion study captured the ‘‘stop been used, CBP analyzes the impact of records for no longer than 30 days. For Mobile and look’’ scenario for currently ‘‘in-scope’’ Passport Control, although the traveler profile travelers, which encompasses the reading a includes a facial photo, there is no option for the boarding pass, face capture and matching. If a 82 Source: http://mediacentre.britishairways.com/ user to submit the profile itself, including the traveler does not match, or matches erroneously, pressrelease/details/86/2018-247/9247?ref=News. photo, to CBP. The traveler only submits the MPC then a manual review, as occurs today, would be Accessed October 26, 2020. ‘‘trip’’ which includes the traveler’s biographic conducted; therefore, manual reviews are not 83 See https://www.cbp.gov/newsroom/national- information, inspection question responses, and included in the 9 seconds. Source: Communication media-release/cbp-advances-biometric-exit- class of admission, if applicable. with the Office of Field Operations on May 2, 2017. mission-orlando-international-airport.

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the biometrics process over two time gradual nationwide expansion of the TABLE 1—OTTI INTERNATIONAL periods. First, we analyze the impacts in collection of photographs at exit and TRAVEL FORECAST GROWTH RATES the initial facial recognition pilot period entry. (2017–2019). This includes the systems To estimate the number of U.S. Year Growth rate and hardware development by CBP, the citizens and aliens that could be (%) initial testing, and the photographic affected by this rule, we use historical collection process operated by CBP at arrival and departure data from internal 2017 ...... 0.7 the initial pilot locations. Because the CBP databases and the international 2018 ...... 55.7 pilots have started at different times and travel forecast produced by the 2019 ...... 3.2 new pilot locations are still being set up, Department of Commerce’s Office of 2020 ...... 22.7 we present the unit costs for the pilot Travel and Tourism Industries (OTTI).84 2021 ...... 3.3 time period in addition to the total cost Table 1 shows the OTTI growth forecast 2022 ...... 3.6 of the initial pilot. The unit costs from 2017–2024. We note that this is a 2023 ...... 3.7 illustrate the effects of new pilots as forecast of inbound travel, not 2024 ...... 3.7 they are added. Second, we analyze the outbound. Quality forecasts of outbound impacts of facial recognition in the air travel are not available, so we use Tables 2 shows the actual 2017 and regulatory period beginning in 2019 inbound air travel as a proxy. Because projected 2018–2024 outbound air when CBP moves to nationwide most international travel is done on a traveler volumes from the United States. deployment. CBP expects deployment at round-trip basis, we believe that Table 3 shows the projected inbound air all airports within five years, so we use inbound air travel growth is a good traveler volumes for the same years. the period of analysis of 2020–2024. For proxy for outbound air travel growth. To the regulatory time period, CBP the extent that inbound and outbound estimates, to the extent data is available, travel grow at different rates, the effects the total projected costs, and cost of this analysis could be overstated or savings, and benefits that result from the understated.

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

84 Source: U.S. Department of Commerce, Countries, October 2018. Available as a supporting 85 97 percent corresponds to the portion of the International Trade Administration, Industry & document in the docket of this rulemaking. international traveler volume that takes place at the Analysis, National Travel and Tourism Office; The OTTI October 2018 forecast is only through 20 busiest airports. Statistics Canada; INEGI, Forecast of International 2023. For the purposes of this analysis, we use the Travelers to the United States by Top Origin 2023 growth rate for 2024.

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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 TABLE 5—2020–2024 PROJECTED Approximately 1,134,000 travelers is currently the case under CBP’s OUTBOUND U.S. CITIZENS SUBJECT traveled on flights that were part of the 88 biometric exit pilot programs, TO BIOMETRICS pilot programs in 2017. Therefore, the participation by U.S. citizens will be approximate opportunity cost for these travelers in 2017 was $136,080. Similar voluntary. As is the case in the air Year U.S. citizen pilots, U.S. citizens may request an travelers numbers are expected for 2018 and 2019.89 alternative inspection process rather 2020 ...... 11,266,533 than being photographed. The Participation in the biometric exit 2021 ...... 23,276,657 pilot programs is voluntary for U.S. alternative process is no different than 2022 ...... 36,171,926 what happens absent this is rule—an 2023 ...... 50,013,715 citizens, who may request an alternative airline employee verifies the traveler’s 2024 ...... 62,885,370 inspection process. As discussed earlier, we estimate 0.18 percent of U.S. citizens passport information and will contact request an alternative process. In the CBP if they are concerned with the 3. Costs event a U.S. citizen elects not to be validity of the passport or the identity We next analyze the costs of the photographed at airports where CBP is of the passport holder. Based on recent biometrics process both for the pilot conducting biometric exit verification, experiences under various pilots, and period and the nationwide deployment an airline gate agent will perform a because the biometric process is period. Because the various pilots have manual review of the passport. If there expected to save time, CBP does not started at different times and new pilot is some question as to the authenticity expect many to request the alternative locations are still being set up we focus of the passport or whether the person on the unit costs for the pilot time process. Biometrics are captured with presenting the passport is the owner of period. For the regulatory time period, minimal inconvenience for the traveler the passport, the airline will contact CBP estimates, to the extent data is and under the biometric exit pilot CBP for additional inspection, which available, the total projected costs and programs it has been extremely rare for would take longer than the biometric cost savings that result from the gradual travelers to decline to be photographed. process. However, as this is the current nationwide expansion of the collection We estimate the opt-out rate through procedure without the rule, there is no of photographs at exit and entry. reference to the Transportation Security new opportunity cost associated with Agency (TSA)’s biometrics pilot. TSA Pilot Period this requirement. has recently begun testing facial As discussed above, CBP conducted a CBP has borne the bulk of the costs recognition at some locations, time in motion study during the initial of the biometric verification pilot comparing the photographs of travelers biometric exit pilot. This study programs. CBP’s costs include the cost to CBP’s gallery. During the test, TSA estimated that the biometric identity to develop the facial recognition has made clear through signage that it verification process added 9 seconds to capabilities, the cost of the hardware for was optional and the TSA agent asked a traveler’s departure time.86 We the expansion of the biometric exit pilot travelers whether they wanted to opt monetize the travelers’ time burden programs and the annual operation and out. TSA tracked the number of opt outs using the Department of maintenance costs of that hardware, the cost of the required network upgrades, over two days in the summer of 2019 Transportation’s recommended hourly and the opportunity cost of the CBP and found an opt-out rate of 0.18 wage rates for all-purpose air travel, officers who collect the biometrics. percent across more than 13,000 $47.10.87 The opportunity cost per traveler is approximately $0.12. Table 6 shows the estimated hardware travelers. We adopt this rate as our and software costs for the expansion of estimate for U.S. citizens who will opt the biometric exit pilot programs. The out of biometric collection under this 86 During the initial pilots, the biometric verification process was done separately from the expansion hardware is the cost of the rule. We request comment on this airline scan of the travelers’ boarding passes. In hardware that has been placed during assumption. CBP will continue to gather some pilots, and in the regulatory period, biometric the initial pilot. The Biometric Pathway available data, to the extent possible on identification will be fully integrated into the boarding process, which will save the travelers Development Costs are the software the opt-out rates as it continues its time. See the benefits section for a discussion of the development costs required to create a pilots until this rule is finalized and time savings in the regulatory period. service to operate facial recognition at will update this assumption for the final 87 Source: U.S. Department of Transportation, airport international departure gates rule. Table 5 shows the projected Office of Transportation Policy. The Value of Travel used for the biometric exit pilot Time Savings: Departmental Guidance for number of U.S. citizens who will be Conducting Economic Evaluations Revision 2 (2016 subject to photographs, excluding the Update), ‘‘Table 4 (Revision 2—2016 Update): 88 Source: CBP’s Borderstat Database. 0.18 percent who we assume would Recommended Hourly Values of Travel Time 89 The first pilot began at a single airport in 2016. Savings for Intercity, All-Purpose Travel by Air and Because we do not have quality data for 2016 and request an alternative process. High-Speed Rail.’’ September 27, 2016. Available at because a relatively small number of flights and https://www.transportation.gov/sites/dot.gov/files/ travelers were affected by this pilot, we begin our docs/2016%20Revised%20Value%20of%20Travel quantification of the pilot period in 2017, %20Time%20Guidance.pdf. Accessed October 26, acknowledging that there were some small costs 2020. and benefits in 2016 as well.

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programs and will serve as the buying their own hardware, which is approximately 13,140 hours of officer foundation for use as the program expected to have a useful life longer time (18 flights per day × 365 days per becomes operational on a nationwide than the period of analysis. year × 2 officers). According to CBP’s basis. This development includes During the pilot period, CBP installed position model, the average loaded wage creating open interfaces to the facial recognition technology rate for a CBP Officer is $63.80 per accommodate multiple biometric hardware into existing airport gates at hour.90 We therefore estimate that it collection devices, adapting current CBP’s expense. Though the hardware costs approximately $838,000 per year systems to survey and collect traveler does not use a significant amount of in officer time costs. images from existing data, transferring electricity, airports were concerned that Table 6 shows CBP’s estimated pilot data between the point of collection and their networks did not have sufficient costs for 2017–2019. These costs are the CBP back-end, processing biometric bandwidth to accommodate the based on the initial pilot period. The Air data, and creating reports for awareness matching software. CBP has added Technology Development, Air and analysis. Facial Recognition additional capacity to allow for the Technology Operations and Technology Expansion Hardware O&M needed bandwidth. This is included in Maintenance, and Biometric Pathway are the annual operations and the Cloud Hosting costs listed in Table Development and Matching Licenses are maintenance costs for the hardware at 6. fixed costs that will not change if the the airports participating in CBP’s CBP also bears the opportunity costs pilot is expanded to other flights. The biometric exit pilot programs. Matching of assigning CBP Officers at each of the remaining costs are variable and will Licenses are costs to procure back-end biometric exit pilot program flights. increase when the pilot is expanded. enterprise matching licenses for the Two CBP Officers are assigned to each The total variable cost over the three- airports participating in CBP’s biometric flight, and it takes an hour for each of year period is $44,074,000 or an average exit pilot programs from the developer. them to process the travelers on a flight. of $1,358,000 per year. The initial pilot It is anticipated that these costs are There were 18 daily flights that were period covered 18 scheduled flights per spread over the first two years of use. part of the initial biometric exit pilot day. Dividing by 18 flights, the annual After the first two years, we estimate no programs (the initial pilot period), and variable pilot cost to CBP is $80,657 per further costs for CBP as airlines will be staffing that number of flights takes 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 Expansion ...... 8,104 ...... 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 total costs during the pilot period. The to CBP per daily-scheduled flight added programs have resulted in costs to unit cost per additional traveler would would be approximately $81,000 per travelers and CBP. Table 7 shows the be 12 cents per departure. Annual costs 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 Facial recognition will be integrated The hardware cost in the regulatory The estimated costs during the into the boarding process and will result period will be borne by the carriers and regulatory time period (2020–2024) are in time savings for all parties (see the airports who partner with CBP.91 CBP substantially different than those in the benefits section below for more will give carriers and airports access to pilot period. During the regulatory information), rather than a cost. As its facial recognition system and the period, CBP will enter into partnerships occurs today, CBP will continue to be carriers and airports will choose (and with carriers and airports to streamline available to adjudicate any issues. pay for) the hardware that best fits their the process and eliminate redundancies. needs. While this partnership is

90 Source: CBP’s Office of Finance Position 91 Costs to carriers and airports are limited to has there been a need for additional training as the Model. hardware costs. During the pilot period, carriers system is intended to be integrated with the airline and airports have not needed additional staff, nor or airport departure control system.

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

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

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

92 Source: Subject matter expert estimate. 93 Source: https://www.washingtonpost.com/ airport/?noredirect=on&utm_term=.ae3fdefbd1a6. Communication with the Office of Field Operations transportation/2018/09/06/officials-unveil-new- Accessed October 26, 2020. on June 26, 2018. facial-recognition-system-dulles-international- 94 Source: CBP Biometric Entry-Exit Life Cycle Cost Estimate. September 20, 2017.

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the shorter inspection process). the land border in all modes of add to travelers will be minimal or non- Therefore, this rule imposes no cost on transportation is not feasible at this time existent. Depending on the particulars most aliens or U.S. citizens at entry. To and there is no near-term plan for such of the biometric collection, there may the extent that CBP is able to extend its an expansion. As CBP already has the also be significant hardware and facial recognition capabilities to ability to test biometric collection at infrastructure costs to CBP. improve the entry process, it would land border ports without a limit on the This rule would add a provision that result in time savings for all travelers number of locations, this rule has no aliens may be photographed upon exit and CBP. CBP will conduct a study of practical effect in that environment and entry. While this provision applies the effect of Simplified Arrival on wait except that it would include currently at all types of ports of entry, more times and will include the results in the exempt aliens in those tests. For any testing will be conducted before full analysis for the final rule. potential future process to be workable implementation for land and sea ports This rule provides that all aliens may in the land environment it needs to be of entry and private aircraft. For the be required to be photographed at entry done in a way that minimizes the near future the photographic and/or exit. Under the current burden on the public and the ability to requirement will apply primarily at regulations only certain aliens are expand the pilots will help inform CBP airports. Most aliens arriving by air are subject to such requirements. This on how to accomplish that. Because already photographed at entry and have expansion of the biometric entry-exit there is no near-term plan to expand the their fingerprints captured, and such verification program will enable CBP to general requirement for biometrics to aliens already have their passport require all aliens to be photographed at land and sea beyond pilots, we focus the photographs examined visually when entry and exit. There are no additional analysis on the effects of the pilots. This entering or exiting the United States. In hardware costs for carriers or airports analysis does not account for the costs, addition, most aliens are photographed who photograph travelers. As discussed cost savings, or benefits of some future if they are required to apply for a U.S. later in the Cost Savings section, the expansion to land and sea beyond pilot regulatory facial recognition exit process visa. A facial recognition system would programs because it is impossible to compare the traveler’s face to the will result in opportunity cost savings predict what that expansion would for travelers. The savings to currently previously taken photographs to ensure entail. there is a match. CBP acknowledges that exempted aliens is included in the total The ability to collect photographs cost savings for travelers in that the traveler may perceive this process to from currently exempt aliens will be a loss of privacy, which is a cost of section.95 CBP will initially focus enhance CBP’s ability to test various primarily on the air environment. In the the rule. Facial comparison has exit concepts at the land border. For presented CBP with the best biometric near term, CBP also plans to gradually example, CBP is considering testing scale up efforts in the land and sea approach because it can be performed biometrics of pedestrians exiting the relatively quickly, with a high degree of environments to determine the best way United States on a limited basis under to fully implement biometric entry-exit accuracy, and in a manner perceived as various scenarios. CBP has not yet less invasive to the traveler (e.g., no in those environments pursuant to this determined this process, but it would rule. Most aliens are already actual physical contact is required to likely involve providing notice that U.S. collect the biometric). This approach, as photographed when entering by air. CBP citizens may opt out of the test by is testing various biometric collection with all biometric collections, poses approaching a CBP officer and privacy risks which, as discussed in the options, such as the Simplified Arrival requesting an alternative process. As process described earlier, that would PIA for the TVS,97 are mostly mitigated. this pilot is still being developed, we do Nevertheless, CBP’s phased deployment apply to aliens who are not currently not have a firm estimate of the time it subject to photographs. CBP anticipates has shown the use of facial recognition will take to capture photographs or how technology is successful in a variety of that such a process, once implemented many travelers would be affected. We on a nationwide basis, will result in a scenarios that meet CBP’s business note, however, that their time delay and requirements while requiring minimal net time savings for travelers. Therefore, opportunity cost will be no greater than that change will impose no new costs on infrastructure investments and space the 9 seconds and 12 cents estimated redesign and having minimal impacts these currently exempted aliens. above for the biometric exit pilot This rule would also allow for the on travelers. Moreover, the phased programs process.96 When CBP begins implementation of a biometric exit deployment has allowed CBP to ensure requiring biometrics from all aliens capability at land border ports. CBP that biometrics are collected, exiting at the land border (i.e., not already has authority to test biometric maintained, and used consistent with through a limited pilot program), to the collection at land borders through pilot applicable privacy laws and best extent that requirement lengthens entry programs that are not subject to the practices. or exit processing, there will be limits that air and sea pilots have. CBP Table 10 summarizes the monetized will continue testing biometric additional opportunity costs for the travelers and CBP. CBP is endeavoring costs of the regulatory period. These collection at land border ports, but a estimated costs are only for air exit. Any nationwide biometric exit solution at to use biometrics as a way to streamline the entry and exit process, and it costs from an unknown future believes any additional net time it will deployment at land or sea are not 95 Our data on the travelers that are affected by included in these estimates. the pilot do not separate out the portion of travelers who are out of the scope of the pilot. We do not 96 The process currently being used for have separate data, for example, on the number of pedestrians is similar to what is being used at 97 See DHS/CBP/PIA–056, Privacy Impact travelers who are under the age of 14. Because of airports. For vehicles, CBP is working on various Assessment for the Traveler Verification Service, this, the estimates in our analysis capture the concepts and is committed to a system that would issued Nov. 14, 2018, available at https:// impacts on all travelers, including the currently out not significantly increase wait times at the land www.dhs.gov/sites/default/files/publications/ of scope travelers. border. privacy-pia-cbp030-tvs-november2018_2.pdf.

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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 planes carrying travelers and much of these assumptions. CBP will be the time savings is due to a process that conducting time studies to refine our In the regulatory period, CBP and allows boarding through several doors. estimates and will use updated airlines expect that the use of facial Smaller planes do not have as many estimates, and will consider any public recognition will speed the entry and exit doors so the time savings for their input on the estimates at the final rule processes considerably, resulting in travelers is likely to be lower. stage. time savings for travelers and shorter Additionally, these initial To estimate the value of time savings plane turnaround times for carriers. implementation flights and locations of air travelers at exit due to this rule, Various airlines have been testing facial were selected in part based on ease of recognition models similar to what is implementation. Using a 50 percent or we apply the assumed range of time planned under this rule. In one test, an 15-minute time savings for all flights savings (5 to 10 minutes) to the traveler 100 airline partner has been able to board an based on the savings in these pilots projections from Table 4. We then Airbus A–380 with 350 travelers in only would overstate the time savings due to apply the $47.10 hourly value of time 20 minutes.98 Another airline partner this rule. Because of the uncertainty for these travelers to determine the total has reported to CBP that their baseline surrounding the time savings, we opportunity cost savings as a result of loading time for an A–380 is 45 present a range of time savings this rule. Table 11 shows the hours minutes. In the test of the integrated estimates. For the low end of the range, saved at air exit due to this rule during facial recognition system used at the which serves as our primary estimate, the 5-year regulatory period of analysis. Orlando Airport, travelers have we assume that average time savings Table 12 shows the value of this time experienced a 15 minute time savings. due to this rule will be 5 minutes per savings. As shown, in the primary According to one news article, this is traveler, or one third of the savings estimate the savings range from $101 down from 30 minutes for a 240- airline partners observed during the million in the first year to $565 million passenger plane.99 In both tests, pilot. For the high end of the range, we in 2024, when full nationwide boarding times are reduced by assume that the time savings would be deployment is expected to occur at air approximately 50 percent. These 10 minutes, or two thirds of the savings exit. These estimated savings are for air estimates are for some of the largest from the pilot. We request comment on exit only.

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

98 Source: https://www.cntraveler.com/story/ biometric-scanners-at-all-international-gates/ 100 As a reminder, we assume that a small portion orlando-airport-first-in-the-us-to-scan-faces-of-all- #2a4a588118f9 and https:// of U.S. citizens will request an alternative international-passengers. Accessed October 26, www.washingtonexaminer.com/news/bye-bye- inspection. These costs include only the U.S. 2020. boarding-pass-us-airport-launches-first-ever- citizens who undergo the facial recognition process. 99 Source: https://www.forbes.com/sites/ security-checkpoints-that-scan-your-face. Accessed grantmartin/2018/06/24/orlando-airport-deploys- October 26, 2020.

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In addition to the savings to travelers, An alien admitted to the United States travel documents during what can often boarding an aircraft more quickly has a on a visa or through the Visa Waiver be a hectic boarding process. Using substantial benefit to airlines as they Program (VWP) is permitted to remain facial recognition technology reduces will be able to turn around aircraft more in the country for the lawful period of the number of documents that the gate quickly. According to one study, admission (in the case of a VWP agent needs to review thereby increasing reducing turn time by 10 minutes could traveler, 90 days). An overstay occurs the effectiveness of the limited lead to an improved aircraft utilization when a person enters the United States fraudulent document detection and rate of 8.1 percent.101 If there is a legally on a visa or through the VWP, impostor identification training gate sustained decrease in turn times as a but does not leave within the prescribed agents receive. Furthermore, people are result of this rule, carriers could time period. Some aliens who overstay most effective at identifying fraud when eventually reduce the number of aircraft their lawful period of admission remain paired with technology. The facial in their fleets. In addition, to the extent in the United States illegally for years. recognition pilots have helped identify the shorter turn time saves airline staff For Fiscal Year 2018, DHS estimates 77,000 visa overstays and 240 time, airlines could experience that about 666,500 aliens who entered individuals who previously entered the additional savings. by air or sea and were expected to United States without inspection.105 depart that year overstayed their lawful CBP has also used facial recognition to 5. Benefits period of admission, or 1.22 percent of identify several imposters attempting to The primary benefit of this rule is the aliens arriving by air and sea.103 These fraudulently enter the United States and security benefit of having biometric figures are estimates because without expects to have similar success on confirmation of the identification of biometrics, CBP cannot verify with exit.106 those leaving the country by air. CBP certainty the identity of those leaving Having an accurate accounting of visa has very good records of those legally the United States. For example, many overstays is important both for reasons entering the United States by air, land aliens sharing a common name may of equity and government resources. and sea. These records are enhanced for enter the United States in a given year. The United States has set up a system aliens through the collection of Biometrics allow CBP to better whereby aliens may visit by legal means biometrics at entry. At departure, CBP differentiate those who have identical and the vast majority follow this system has a record of the names of everyone names and basic biographic conscientiously, though it can leaving the United States by air or sea. information, provide checks against the sometimes take a significant amount of However, these records are not verified use of fraudulent identity documents, time to proceed through the with the same accuracy as at entry. and better understand whether any immigration process. It is not equitable Comparing biometrics at departure will particular alien left the United States on for these legitimate travelers and enable CBP to know with greater time or if the departing alien was a immigrants when others circumvent the certainty the identity of those leaving different person with the same name. legitimate process through illegal visa the United States, which will help Without biometrics it is difficult to overstays. The success of those who are detect and deter visa overstays and visa know whether the alien leaving did so able to overstay their visas without fraud; help identify persons attempting on time or if the departing alien was a consequences only encourages others to to fraudulently use travel documents; different person with the same name. attempt to do the same. Further, and alert authorities to criminals or Similarly, there are ways to exploit overstays place a strain on government known or suspected terrorists prior to the current exit system to avoid the resources as the government must investigate and remove those who are boarding. Studies show that humans are detection of passport and visa fraud. not here legally. Compounding this best at identifying imposters when Currently, those departing the United problem is a lack of true identity paired with technology.102 CBP believes States must present their boarding pass verification, as DHS must spend time that facial recognition is the best and identification when being screened determining whether an individual available method for biometric by TSA. Before boarding, travelers also actually overstayed his/her lawful identification as it is highly accurate, need to present their travel documents period of admission before beginning unobtrusive, and cost effective. This and boarding passes to the carrier at the the actual investigation. Biometric rule would expand CBP’s ability to gate, who visually reviews the travel identity verification will give DHS the implement this biometric exit capability documents and validates the boarding pass with the carrier’s ticketing system. information it needs about those who at additional locations before eventually have overstayed their visas and will implementing it nationwide. However, once in the sterile area of the terminal, although travelers may be allow it to focus on these individuals. The public also has an interest in 101 Source: Economic Impact of Airplane Turn subject to random identification checks, travelers generally do not have their accurate identification at departure for Times. Available at https://www.boeing.com/ law enforcement and national security commercial/aeromagazine/articles/qtr_4_08/pdfs/ photo identification scrutinized again AERO_Q408_article03.pdf. Accessed on August 22, before boarding the aircraft. This has reasons. Security agencies maintain an 2018. allowed for passport and visa fraud.104 102 See ‘‘NIST Study Shows Face Recognition 105 Source: DHS Fiscal Year 2018 Entry/Exit Experts Perform Better with AI as Partner.’’ During the boarding process, in addition Report. Available at: https://www.dhs.gov/sites/ Available at https://www.nist.gov/news-events/ to addressing customer service issues, default/files/publications/19_0417_fy18-entry-and- news/2018/05/nist-study-shows-face-recognition- such as baggage and seat assignments, exit-overstay-report.pdf. Accessed October 26, 2020. experts-perform-better-ai-partner. https:// gate agents are also required to check See also source: DHS Office of Inspector General www.pnas.org/content/pnas/115/24/6171.full.pdf. Report: ‘‘Progress Made, but CBP Faces Challenges https://www.nist.gov/news-events/news/2018/05/ Implementing a Biometric Capability to Track Air nist-study-shows-face-recognition-experts-perform- 103 Source: Internal Database, as reported in the Passenger Departures Nationwide.’’ Available at better-ai-partner. See also https:// FY 2016201820162018 Entry/Exit Overstay Report. https://www.oig.dhs.gov/sites/default/files/assets/ onlinelibrary.wiley.com/doi/abs/10.1002/acp.2968. Available at https://www.dhs.gov/sites/default/ 2018-09/OIG-18-80-Sep18.pdf. Accessed October 26, 2020. See also https:// files/publications/19_0417_fy18-entry-and-exit- 106 Source: CBP press release: Second Imposter in royalsocietypublishing.org/doi/full/10.1098/ overstay-report.pdf. Accessed September 1010, Three Weeks Caught by CBP Biometric Verification rsos.170249#RSOS170249C16. See also https:// 2019. Technology at Washington Dulles Airport. Available royalsocietypublishing.org/doi/full/10.1098/ 104 Note: TSA subjects all travelers entering the at https://www.cbp.gov/newsroom/local-media- rsos.170249#RSOS170249C16. Accessed October sterile area of an airport, and their carry-on release/second-impostor-three-weeks-caught-cbp- 26, 2020. belongings, to security screening at the checkpoint. biometric-verification. Accessed October 26, 2020.

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extensive database of known and aliens are not subject to this traveler processing.107 TSA’s use of suspected terrorists, but sometimes they requirement, making a full evaluation of CBP’s facial recognition system is still have incomplete information about the concept impossible. Early analysis in its planning stage, so it is impossible them. In some cases, they may have of the Simplified Arrival pilot suggests to estimate any savings that could photographs on a person of interest, but that it could save 15 seconds of result. To the extent that TSA is able to no name. In other cases, someone could processing time for all participating improve security or reduce processing be traveling under a false name with travelers, including U.S. citizens who times for travelers, that would be an false documents. Having biometric voluntarily participate. CBP is expected additional cost savings or benefit of this identification would assist CBP in to experience time savings as well, but rule. identifying these individuals during the it is unknown how much time it will travel process and taking appropriate save. CBP is expanding Simplified 6. Net Benefits action. Similarly, biometric Arrival and will be doing time-in- identification would help CBP identify motion studies to determine the effect As discussed in the cost section, the those wanted for a crime or who are the on processing and wait times. We will biometric exit pilot programs have subject of a court order (such as in a include a discussion of the results in the resulted in costs to travelers and CBP. child custody dispute) and intercept final rule. From 2017–2019, travelers experienced them before they are able to leave the The development of a reliable facial approximately $136,000 in opportunity country. recognition system could also have costs per year. CBP spent $228 million As discussed in the Costs section benefits for other government agencies. to develop, maintain, and operate the above, CBP is exploring various ways to CBP is coordinating with TSA to test initial pilots from 2017 to 2019. The use biometrics to streamline the entry facial recognition to streamline its unit costs to expand these pilots would process. This rule allows for the processes. Among other things, TSA is be 12 cents per departure for travelers expansion of these tests as it provides considering using facial recognition to and $81,000 annually per daily- √TM the framework for CBP to require all improve the TSA Pre process. TSA scheduled flight for CBP. These costs aliens to be photographed at entry. also plans to explore other ways facial are summarized in Table 13. Under the current regulations, certain recognition can improve security and

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 regulatory time period. As shown, costs currently exempt aliens at entry. These costs will be split by carriers and over the 5-year period of analysis range costs are difficult to quantify as the airports who will install the facial from $211 to $233 million, depending Simplified Arrival concept has not yet recognition hardware at gates and CBP, on the discount rate used. Annualized been widely tested and this expansion which incurs development and costs range are $51 million. will only occur if it is determined that operations and maintenance costs. Table Unquantified costs include the costs of the aliens experience net savings as a 14 shows the discounted costs of the expanding photographic collection of 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 estimates that this rule will save experience additional savings from a biometric identification system at travelers opportunity costs of between new Simplified Arrival process. Further, departure will have benefits, including $1.289 and $1.480 billion over the 5- this rule will allow CBP to identify cost savings, to CBP and the public. year period of analysis. On an travelers with greater certainty, which Travelers will experience a time savings annualized basis, this rule will save will reduce travel document fraud. It through a shorter boarding process. between $314 and $323 million. In will also give CBP a more accurate Table 15 shows the discounted savings addition, carriers may experience turn record of those who overstayed their as a result of this rule. As shown, CBP around cost savings and travelers may visas.

107 See TSA’s Biometric Roadmap, available at https://www.tsa.gov/sites/default/files/tsa_ biometrics_roadmap.pdf.

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

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 costs ...... 76,088 ...... 76,160. Annualized quantified, but non-monetized None ...... None. costs. Qualitative (non-quantified) costs ...... None ...... None. Cost Savings: Annualized monetized benefits ...... None ...... None. Annualized quantified, but non-monetized None ...... None. benefits. Qualitative (non-quantified) costs ...... None ...... None. Benefits: Annualized monetized benefits ...... None ...... None. Annualized quantified, but non-monetized None ...... None. benefits. Qualitative (non-quantified) benefits ...... Enhanced security and identification of visa Enhanced security and identification of visa overstays. overstays.

ACCOUNTING STATEMENT 2—REGULATORY PERIOD (2020–2024) [Thousands of $2017]

3% Discount rate 7% Discount rate

Costs: Annualized monetized costs ...... 50,828 ...... 51,393. Annualized quantified, but non-monetized None ...... None. costs. Qualitative (non-quantified) costs ...... Perceived privacy loss ...... Perceived privacy loss. Cost Savings: Annualized monetized cost savings ...... 323,195 ...... 314,330. Annualized quantified, but non-monetized None ...... None. cost savings. Qualitative (non-quantified) cost savings .... Shorter plane turn times. Potential additional Shorter plane turn times. Potential additional savings at entry. savings at entry. Benefits: Annualized monetized benefits ...... None ...... None. Annualized quantified, but non-monetized None ...... None. benefits. Qualitative (non-quantified) benefits ...... Enhanced security and identification of visa Enhanced security and identification of visa overstays. overstays.

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7. Alternatives Analysis general notice of proposed rulemaking 8 CFR 235.1); CBP transmits this CBP considered many types of for a rule. information to the DHS OBIM’s IDENT, biometrics and has concluded that The Regulatory Flexibility Act where it is stored. partnering with carriers and airports to requires agencies to consider the Under CBP’s facial recognition based capture facial images is the most viable impacts of their rules on small entities. entry-exit program, CBP’s biographic large scale solution as it is highly This proposed rule would only directly data retention policies remain the same. effective, cost effective, and less regulate travelers. Travelers are CBP temporarily retains facial images of disruptive than other possible methods. individuals and are not considered to be non-immigrant aliens and lawful Two other methods that were small entities by the RFA. Carriers are permanent residents for no more than considered were fingerprint and/or iris indirectly affected by the rule as the rule 14 days within ATS–UPAX for scans and using CBP personnel and does not place any requirements on the confirmation of travelers’ identities, equipment to collect the facial scans. carriers, nor does it grant them any new evaluation of the technology, assurance CBP has tested fingerprint and iris rights. Any participation by carriers is of accuracy of the algorithms, and scans on a limited basis to determine its strictly voluntary and CBP expects that system audits. However, if the TVS effectiveness and scalability. CBP found carriers will only participate if they matching service determines that a that while these scans are highly believe the benefits of participation particular traveler is a U.S. citizen, CBP effective in finding matches when data outweigh the costs. CBP therefore holds the photo in secure CBP systems is available, they have numerous certifies that this rule will not result in for no more than 12 hours after identity problems. First, CBP often lacks data to a significant economic impact on a verification, in case of an extended match against. Although CBP often has substantial number of small entities. system outage, and then deletes it. fingerprints from entry that it can use to C. Paperwork Reduction Act Photos of all travelers are purged from the TVS cloud matching service within match a departing alien, it does not In accordance with the Paperwork typically capture iris scans. Nor are a number of hours, depending on the Reduction Act of 1995 (44 U.S.C. 3507), mode of travel. Photos of in-scope these biometrics typically included in an agency may not conduct, and a passports. To use iris scans, CBP would travelers are retained in IDENT for up to person is not required to respond to, a 75 years, consistent with existing CBP need to establish a new way to capture collection of information unless the a baseline iris scan to compare against records that are housed in IDENT in collection of information displays a accordance with the BCI SORN. at exit, which is not feasible. Fingerprint valid control number assigned by OMB. and iris scans are also more time As discussed in Section III, CBP will The collections of information related to begin implementation of the biometric consuming and the equipment needed is this NPRM, including biometric exit, are more expensive than facial recognition. entry-exit system through the TVS. CBP approved by OMB under collection has issued a number of PIAs for the Finally, these methods are more 1651–0138. intrusive than taking a picture, so they TVS, and earlier traveler verification present additional privacy concerns. D. Privacy tests, which outline how CBP will CBP also considered purchasing the CBP will ensure that all legal ensure compliance with the DHS Fair facial recognition hardware and using requirements (e.g., the Privacy Act of Information Practice Principles (FIPPs) CBP personnel to capture the facial 1974, Section 208 of the E-Government as part of the biometric entry-exit 111 images rather than having the carrier or Act of 2002, and Section 222 of the system. In November 2018, CBP airport purchase and operate it. This Homeland Security Act of 2002, as published a revised comprehensive TVS alternative would essentially expand the amended) and applicable policies are PIA, which, along with the previous initial pilot nationwide. As discussed adhered to during the implementation versions, examines the privacy impact above, this would add an opportunity of the biometric entry-exit system. and mitigation strategies of TVS as it cost of 12 cents per traveler departure CBP retains biographic records for 15 relates to the Privacy Act and the 112 and $81,000 annually in costs for CBP years for U.S. citizens and lawful FIPPs. The FIPPs address how per daily-scheduled flight. More permanent residents and 75 years for information being collected is importantly, since this would add a step non-immigrant aliens, consistent with maintained, used and protected, to the boarding process rather than the DHS/CBP–007 Border Crossing particularly to issues such as security, simplify the process, travelers would Information (BCI) System of Records integrity, sharing of data, use limitation forgo the time savings estimated above Notice (SORN).108 Records associated and transparency. The comprehensive and valued at $310 million per year. with a law enforcement action are TVS PIA provides background Further, this alternative approach would retained for 75 years in accordance with information on early test deployments. eliminate the advantage of giving the DHS/CBP–011 TECS SORN.109 CBP Additionally, it explains how CBP’s use carriers and airports access to the facial retains biographic entry and exit records of facial recognition technology recognition capabilities, which allows in the ADIS for lawful permanent complies with privacy requirements at them to use it for other purposes. residents and non-immigrant aliens, both entry and exit operations in all 110 modes of travel where the technology is B. Regulatory Flexibility Act consistent with the SORN. Since 2004, CBP has collected currently deployed. The Regulatory Flexibility Act (5 biometric information in the form of U.S.C. 601 et. seq.), as amended by the fingerprints and a facial photograph on 111 See generally DHS/CBP/PIA–056, Privacy Small Business Regulatory Enforcement entry for in-scope travelers (pursuant to Impact Assessment for the Traveler Verification Fairness Act of 1996, requires an agency Service Related PIAs, https://www.dhs.gov/ publication/departure-information-systems-test, to prepare and make available to the 108 Available at https://www.dhs.gov/system- issued Nov. 14, 2018, available at https:// public a regulatory flexibility analysis records-notices-sorns. www.dhs.gov/sites/default/files/publications/ that describes the effect of a proposed 109 Id. privacy-pia-cbp030-tvs-november2018_2.pdf. rule on small entities (i.e., small 110 Associated ADIS SORNS are listed at https:// 112 See DHS/CBP/PIA–056, Privacy Impact www.dhs.gov/publication/arrival-and-departure- Assessment for the Traveler Verification Service, businesses, small organizations, and information-system and available at https:// issued Nov. 14, 2018, available at https:// small governmental jurisdictions) when www.dhs.gov/system-records-notices-sorns. Last www.dhs.gov/sites/default/files/publications/ the agency is required to publish a Accessed October 26, 2020. privacy-pia-cbp030-tvs-november2018_2.pdf.

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As discussed in Section III.E, CBP is sign this document to Chad R. Mizelle, this chapter) or Form I–95 upon arrival conducting a number of biometric exit who is the Senior Official Performing at the United States, to provide other pilot programs at the land border. CBP the Duties of the General Counsel for biometrics, documentation of will issue PIAs for these pilot programs, DHS, for purposes of publication in the immigration status in the United States, which will be made publicly available Federal Register. as well as such other evidence as may at: www.dhs.gov/privacy. be requested to determine the alien’s List of Subjects E. National Environmental Policy Act identity and whether the alien has 8 CFR Part 215 properly maintained immigration status DHS Directive (Dir.) 023–01 Rev. while in the United States, when 01[1] establishes the procedures that Administrative practice and procedure, Aliens, Travel restrictions. departing the United States. DHS and its components use to comply (3) Exemptions. The requirements of with the National Environmental Policy 8 CFR Part 235 paragraphs (a)(2) of this section shall Act (NEPA) and the Council on Administrative practice and not apply to: Environmental Quality (CEQ) procedure, Aliens, Immigration, * * * * * regulations for implementing NEPA, 40 Reporting and recordkeeping (b) Failure of a non-exempt alien to CFR parts 1500–1508. The CEQ requirements. comply with departure requirements. regulations allow Federal agencies to An alien who is required to provide establish, with CEQ review and Proposed Amendments to the biometrics when departing the United concurrence, categories of actions Regulations States pursuant to paragraph (a)(1) or (2) (‘‘categorical exclusions’’) which For the reasons discussed in the of this section and who fails to comply experience has shown do not preamble, DHS proposes to amend 8 with the departure requirements may be individually or cumulatively have a CFR chapter I as set forth below: found in violation of the terms of his or significant effect on the human environment and, therefore, do not her admission, parole, or other PART 215—CONTROLS OF ALIENS immigration status. * * * require an Environmental Assessment DEPARTING FROM THE UNITED (EA) or Environmental Impact (c) Determination of overstay status. STATES; ELECTRONIC VISA UPDATE *** Statement (EIS). 40 CFR SYSTEM 1507.3(b)(1)(iii), 1508.4. DHS PART 235—INSPECTIONS OF Instruction 023–01–001 Rev. 01 ■ 1. The authority section for part 215 PERSONS APPLYING FOR ADMISSION establishes such Categorical Exclusions is revised to read as follows: that DHS has found to have no such ■ 3. The authority citation for part 235 Authority: 6 U.S.C. 202(4), 236; 8 U.S.C. effect. Inst. 023–01–001 Rev. 01 1101, 1103, 1104, 1184, 1185 (pursuant to is revised to read as follows: Appendix A Table 1. For an action to be Executive Order 13323, 69 FR 241, 3 CFR, Authority: 6 U.S.C. 218 and note; 8 U.S.C. categorically excluded, DHS Inst. 023– 2003 Comp., p. 278), 1357, 1365a, 1365a 1101 and note, 1103, 1158, 1182, 1183, 1185 01–001 Rev. 01 requires the action to note, 1365b, 1379, 1731–32; and 8 CFR part (pursuant to E.O. 13323, 69 FR 241, 3 CFR, satisfy each of the following three 2. 2003 Comp., p.278), 1185 note, 1201, 1224, conditions: (1) The entire action clearly ■ 2. Amend § 215.8 as follows: 1225, 1226, 1228, 1357, 1365a, 1365a note, fits within one or more of the ■ 1365b, 1379, 1731–32; 48 U.S.C. 1806 and a. Revise the section heading; note. Categorical Exclusions; (2) the action is ■ b. Add a heading for paragraph (a); not a piece of a larger action; and (3) no ■ c. Redesignate paragraphs (a)(1) and ■ 4. Amend § 235.1 as follows: extraordinary circumstances exist that (2) as paragraphs (a)(2) and (3); ■ a. In paragraph (f)(1) introductory text, create the potential for a significant ■ d. Add new paragraph (a)(1); add a heading; environmental effect. Inst. 023–01–001 ■ e. Revise newly redesignated ■ b. In paragraph (f)(1)(i), add a heading; Rev. 01 section V.B (1)–(3). paragraph (a)(2) and paragraph (a)(3) ■ c. Redesignate paragraphs (f)(1)(ii), DHS analyzed this action and has introductory text; (iii), and (iv) as paragraphs (f)(1)(iii), (v), concluded that the proposed changes to ■ f. In newly redesignated paragraph and (vi), respectively; 8 CFR parts 215 and 235 concerning the (a)(3)(ii), remove ‘‘(a)(1)’’ and add in its ■ d. Add new paragraph (f)(1)(ii); collection of biometric data from aliens place ‘‘(a)(2) of this section’’; ■ e. Revise newly redesignated upon entry and departure falls within ■ g. In paragraph (b), add a heading and paragraph (f)(1)(iii); DHS’s categorical exclusion A.3, which revise the first sentence; and ■ f. Add new paragraph (f)(1)(iv); is set forth in DHS Inst. 023–01–001 ■ h. In paragraph (c), add a heading. ■ g. Revise newly redesignated Rev. 01, Appendix A, Table 1. The revisions and additions read as paragraph (f)(1)(v) and paragraph Categorical exclusion A.3 covers, among follows: (f)(1)(vi) introductory text; and other things, the promulgation of rules ■ h. In newly redesignated paragraph that interpret or amend an existing § 215.8 Requirements for biometrics from (f)(1)(vi)(B), remove ‘‘(d)(1)(ii)’’ and add regulation without changing its aliens on departure from the United States. in its place ‘‘(f)(1)(iii) of this section’’. environmental impacts. Although the (a) Photographs and other The revisions and additions read as changes to 8 CFR parts 215 and 235 will biometrics—(1) Photographs. DHS may follows: mean that DHS/CBP will be collecting require an alien to be photographed more biometric data, it will not when departing the United States to § 235.1 Scope of examination. fundamentally alter the manner in determine his or her identity or for other * * * * * which DHS/CBP processes travelers lawful purposes. (f) * * * within existing facilities. (2) Other biometrics. DHS may require (1) Requirements for admission. any alien, other than aliens exempted *** F. Signature under paragraph (a)(3) of this section or (i) Permanent residents. *** The Acting Secretary of Homeland Canadian citizens under section (ii) Photographs. DHS may require an Security, Chad F. Wolf, having reviewed 101(a)(15)(B) of the Act who were not alien seeking admission to be and approved this document, has otherwise required to present a visa or photographed to determine his or her delegated the authority to electronically have been issued Form I–94 (see § 1.4 of identity or for other lawful purposes.

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(iii) Other biometrics. DHS may maintained immigration status while in departure requirements for biometrics require any alien, other than aliens the United States. contained in § 215.8 of this chapter, exempted under paragraph (f)(1)(vi) of (iv) Failure to comply with biometric unless otherwise exempted. requirements. The failure of an alien at this section or Canadian citizens under (vi) Exemptions. The requirements of section 101(a)(15)(B) of the Act who are the time of inspection to comply with paragraph (f)(1)(iii) of this section shall not otherwise required to present a visa paragraph (f)(1)(ii) or (iii) of this section not apply to: or be issued Form I–94 (see § 1.4 of this may result in a determination that the chapter) or Form I–95 for admission or alien is inadmissible under section * * * * * parole into the United States, to provide 212(a) of the Immigration and Chad R. Mizelle, other biometrics, documentation of Nationality Act or any other law. immigration status in the United States, (v) Biometric requirements upon Senior Official Performing the Duties of the as well as such other evidence as may departure. Aliens who are required General Counsel, U.S. Department of Homeland Security. be requested to determine the alien’s under paragraph (f)(1)(ii) or (iii) of this identity and admissibility and/or section to provide biometrics at [FR Doc. 2020–24707 Filed 11–18–20; 8:45 am] whether the alien has properly inspection may also be subject to the BILLING CODE 9111–14–P

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