# Collection of Biometric Data From Aliens Upon Entry to and Departure From the United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A2025-19655 ## Record - **Collection:** Federal Register - **Document type:** Rule - **Published:** October 27, 2025 - **Citation:** 90 FR 48604 ## Text DEPARTMENT OF HOMELAND SECURITY 8 CFR Parts 215 and 235 [Docket No. USCBP-2025-0033; CBP Dec. 25-06] RIN 1651-AB12 Collection of Biometric Data From Aliens Upon Entry to and Departure From the United States AGENCY: U.S. Customs and Border Protection, DHS. ACTION: Final rule with request for comments. SUMMARY: This final rule amends Department of Homeland Security (DHS) regulations to provide that DHS may require all aliens to be photographed when entering or exiting the United States, and may require non-exempt aliens to provide other biometrics. The final rule also amends the regulations to remove the references to pilot programs and the port limitation to permit collection of biometrics from aliens departing from airports, land ports, seaports, or any other authorized point of departure. In addition, DHS is requesting comments on the specific collection process as well as costs and benefits for new transportation modalities. DATES: Effective Date: This rule is effective on December 26, 2025. Submission of public comments: Comments must be submitted on or before November 26, 2025. ADDRESSES: You may submit comments regarding the specific collection process as well as costs and benefits for the newly implemented transportation modalities (the Simplified Arrival process at air entry, sea entry processes, and the process for entry for pedestrians at land) to the Federal eRulemaking Portal: https://www.regulations.gov. Follow the instructions for sending comments. Instructions: All submissions received must include the agency name and docket number USCBP-2020-0062 or RIN number 1651-AB12. All comments received will be posted without change to http://www.regulations.gov, including any personal information provided. For detailed instructions on submitting comments, see the “Public Participation” heading of the SUPPLEMENTARY INFORMATION section of this document. Docket: For access to the docket to read background documents or comments received, go to http://www.regulations.gov. FOR FURTHER INFORMATION CONTACT: Larry Panetta, Director, Biometrics Program Office, Office of Field Operations, U.S. Customs and Border Protection, by phone at (202) 344-1253 or via email at larry.a.panetta@cbp.dhs.gov. SUPPLEMENTARY INFORMATION: Table of Contents I. Public Participation II. Executive Summary A. Notice of Proposed Rulemaking B. Background and Purpose of the Rule C. Costs, Cost Savings, and Benefits III. Background A. National Security and Immigration Benefits of a Biometric Entry-Exit Program B. Facial Comparison-Based Entry-Exit Process Pursuant to This Final Rule 1. Benefits of a Facial Comparison-Based Process 2. Facial Comparison Technology Gallery Building 3. General Collection Process 4. Facial Comparison-Based Entry Process 5. Facial Comparison-Based Exit Process 6. Alternative Procedures and Public Notice 7. No Match Procedures 8. U.S. Nationals, Dual Nationals and Lawful Permanent Residents 9. Business Requirements for Public-Private Partnerships IV. Summary of Changes to the Biometric Entry and Exit Regulations A. General Biometric Exit Requirement for Aliens B. Collection of Photographs From Aliens Upon Entry and Departure C. Collection of Biometrics When Departing the United States and Other Minor Conforming and Editorial Changes V. Discussion of Comments Submitted in Response to the NPRM A. Overview B. Discussion of Comments 1. Comments Expressing General Support 2. Comments Expressing General Support With Recommendations 3. Comments Expressing General Inquiries 4. Comments Expressing General Opposition VI. Statutory and Regulatory Requirements A. Executive Orders 12866, 13563, and 14192 B. Regulatory Flexibility Act C. Unfunded Mandates Reform Act of 1995 D. Paperwork Reduction Act E. Privacy F. National Environmental Policy Act Table of Abbreviations and Acronyms ADIS—Arrival and Departure Information System APA—Administrative Procedure Act APIS—Advance Passenger Information System CBP—U.S. Customs and Border Protection DHS—Department of Homeland Security DHS DPIAC—DHS Data Privacy and Integrity Advisory Committee DHS TRIP—DHS Traveler Redress Inquiry Program DHS FIPPS—DHS Fair Information Practice Principles DOT—Department of Transportation FBD—Facial Biometric Debarkation FIS area—Federal Inspection Service area FOIA—Freedom of Information Act FY—Fiscal Year GAO—Government Accountability Office HART—Homeland Advanced Recognition Technology IDENT—Automated Biometric Identification System INA—Immigration and Nationality Act LPR—lawful permanent resident NARA—National Archives and Records Administration NIST—National Institute of Standards and Technology NPRM—Notice of Proposed Rulemaking OBIM—Office of Biometric Identity Management OMB—Office of Management and Budget PIA—Privacy Impact Assessment PII—personally identifiable information PCLOB—Privacy and Civil Liberties Oversight Board RFA—Regulatory Flexibility Analysis SORN—System of Records Notice S&T—Science and Technology TSA—Transportation Security Administration TVS—Traveler Verification Service USCIS—United States Citizenship and Immigration Services VWP—Visa Waiver Program I. Public Participation Interested persons are invited to participate in this rulemaking by submitting written data, views, or arguments on the specific collection process, as well as costs and benefits regarding the newly implemented transportation modalities for facial biometric collection, namely, the Simplified Arrival process at air entry, the sea entry processes, and the process for entry for pedestrians at land ports. Comments that will provide the most assistance will reference a specific portion of the final rule, explain the reason for any recommended change, and include data, information, or authority that supports such recommended change. All submissions received must include the agency name and docket number for this rulemaking. All comments received will be posted without change to http://www.regulations.gov, including any personal information provided. Comments submitted regarding any topic other than the specific collection process and costs and benefits on these newly implemented transportation modalities are out of scope for this final rule and will not be considered. II. Executive Summary A. Notice of Proposed Rulemaking On November 18, 2020, the Department of Homeland Security (DHS) published a Notice of Proposed Rulemaking in the Federal Register (85 FR 74162) (hereinafter referenced as “the NPRM”) proposing to amend the DHS regulations with regard to collection of biometrics from aliens entering and exiting the United States. 1 On February 10, 2021, DHS published a notice in the Federal Register (86 FR 8878) stating that it was reopening the comment period for an additional 30 days based on comments received during the initial comment period. 1 The NPRM referred to “aliens” as “noncitizens.” This final rule uses the statutory term “alien” as appropriate. DHS received a total of 320 comments in response to the NPRM. The submissions included comments supporting the rule, requesting clarification, providing suggestions for changes, and voicing concerns. After review of the comments, through this final rule, DHS is finalizing the proposed changes in the NPRM without substantive modification. B. Background and Purpose of the Rule DHS is mandated by statute to develop and implement an integrated, automated entry and exit data system to match records, including biographic data and biometrics, 2 of aliens entering and departing the United States. 3 DHS also has broad authority to control alien travel and to inspect aliens under various provisions of the Immigration and Nationality Act of 1952, Public Law 82-414, 66 Stat. 163, as amended (INA), which may include requiring aliens to provide biometrics and other relevant identifying information upon entry to, or departure from, the United States. 4 DHS, through U.S. Customs and Border Protection (CBP), has been collecting biometric data from certain aliens arriving in the United States since 2004. 5 However, currently there is no comprehensive system in place to collect biometrics from aliens departing the country. 2 Biographic data includes information specific to an individual traveler such as name, date of birth, and travel document number, which are data elements stored in that traveler's passport, visa, or lawful permanent resident card. Biometrics refers to forms of identification based on anatomical, physiological, and behavioral characteristics or other physical attributes unique to a person that can be collected, stored, and used to verify the identity of a person, e.g., fingerprints, photographs, iris, DNA, and voice print. See Executive Office of the President, National Science and Technology Council, Subcommittee on Biometrics, “The National Biometrics Challenge,” September 2011, available at https://www.bing.com/ck/a?!&&p=e3dc11c7c1aa323eJmltdHM9MTcyOTIwOTYwMCZpZ3VpZD0zYmYzOTY1ZS01ZjU1LTY0YmItMTUzMC04MjJhNWUxYTY1MDQmaW5zaWQ9NTE5OA&ptn=3&ver=2&hsh=3&fclid=3bf3965e-5f55-64bb-1530-822a5e1a6504&psq=the+national+biometrics+challenge+2011&u=a1aHR0cHM6Ly9vYmFtYXdoaXRlaG91c2UuYXJjaGl2ZXMuZ292L3NpdGVzL2RlZmF1bHQvZmlsZXMvbWljcm9zaXRlcy9vc3RwL2Jpb21ldHJpY3NjaGFsbGVuZ2UyMDExLnBkZg&ntb=1. (Last visited May 15, 2025.) 3 Numerous federal statutes require DHS to create an integrated, automated biometric entry and exit system that records the arrival and departure of aliens, compares the biometric data of aliens to verify their identity, and authenticates travel documents presented by such aliens through the comparison of biometrics. These include: section 110 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Public Law 104-828, 110 Stat. 3009-546, 3009-558; section 2(a) of the Immigration and Naturalization Service Data Management Improvement Act of 2000 (DMIA), Public Law 106-215, 114 Stat. 337, 338; section 205 of the Visa Waiver Permanent Program Act of 2000, Public Law 106-396, 114 Stat. 1637, 1641; section 414 of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT Act), Public Law 107-56, 115 Stat. 272, 353; section 302 of the Enhanced Border Security and Visa Entry Reform Act of 2002 (Border Security Act), Public Law 107-173, 116 Stat. 543, 552; section 7208 of the Intelligence Reform and Terrorism Prevention Act of 2004 (IRTPA), Public Law 108-458, 118 Stat. 3638, 3817; section 711 of the Implementing Recommendations of the 9/11 Commission Act of 2007 (Implementing Recommendations of the 9/11 Commission Act), Public Law 110-53, 121 Stat. 266, 338; and section 802 of the Trade Facilitation and Trade Enforcement Act of 2015, Public Law 114-125, 130 Stat. 122, 199 (6 U.S.C. 211(c)(10)). 4 See INA 214, 215(a), 235(a), 262(a), 263(a), 264(c), 287(b) (8 U.S.C. 1184, 1185(a), 1225(a), 1302(a), 1303(a), 1304(c)), 1357(b)). 5 See the NPRM, 85 FR at 74169 for more information. Implementing an integrated biometric entry-exit system that compares biometric data of aliens collected upon arrival with biometric data collected upon departure helps address the national security concerns arising from the threat of terrorism, the fraudulent use of legitimate travel documentation, aliens who remain in the United States beyond their period of authorized stay (overstays) or are present in the United States without being admitted or paroled, as well as incorrect or incomplete biographic data for travelers. As recognized by the National Commission on Terrorist Attacks Upon the United States (also known as the 9/11 Commission), combatting terrorism requires a screening system that examines individuals at multiple points within the travel continuum. 6 An integrated biometric entry-exit system provides an accurate way to verify an individual's identity, and, consequently, can improve security and effectively combat attempts by terrorists who use false travel documents to circumvent border checkpoints. An integrated biometric entry-exit system can also be used to biometrically verify that a person who presents a travel document is the true bearer of that document, which will help prevent visa fraud and the fraudulent use of legitimate travel documentation. 6 The 9/11 Commission Report 384-386 (2004), available at https://9-11commission.gov/report/ (last visited May 15, 2025). See also the NPRM, 85 FR at 74107. Such a system will also allow DHS to confirm more concretely the identity of aliens seeking entry or admission to the United States and to verify their departure from the United States. By having more accurate border crossing records of aliens, DHS can more effectively identify overstays and aliens who are, or were, present in the United States without being admitted or paroled and prevent their potential unlawful reentry into the United States. It will also make it more difficult for imposters to utilize other travelers' credentials. In addition, performing biometric identity verification can help DHS reconcile any errors or incomplete data in a traveler's biographic data. 7 Ultimately, this provides DHS with more reliable information to verify identities and to strengthen its ability to identify criminals and known or suspected terrorists. 7 See the NPRM, 85 FR at 74107 for more information on how biometric identity verification mitigates risks including overstays, unlawful reentry, and other risks. DHS has faced a number of logistical and operational challenges in developing and deploying a biometric exit capability. This is, in part, because U.S. ports generally do not have designated and secure exit areas for conducting outbound inspections, recording travelers' departures, or comparing biometric information against arrival data. As stated in the NPRM, CBP has been testing various options to collect biometrics at entry and departure. 8 The results of these tests and the recent advancement of new technologies, including facial comparison technology, have provided CBP with a model to implement a comprehensive biometric entry-exit solution. Based on these tests, CBP determined that facial comparison technology is currently the best available method for biometric verification, as it is accurate, unobtrusive, and efficient. 9 This technology uses existing advance passenger information along with photographs, which have already been provided by travelers to the U.S. government for the purpose of facilitating international travel, to create galleries of facial image templates to correspond with who is expected to be arriving in or departing from the United States on a particular flight, voyage, etc. These photographs may be derived from passport applications, visa applications, immigration applications, or interactions with CBP at a prior border inspection. Once the gallery is created based on the advance information, the facial comparison technology compares a template of a live photograph of the traveler to the gallery of facial image templates. Live photographs are taken where there is clear expectation that travelers will need to provide documentary evidence of their identity. If there is a facial image match, the traveler's identity has been verified. In select cases, fingerprints may also need to be collected, but only as required to better establish links to previously collected traveler biometric records. 8 See the NPRM, 85 FR at 74171-74173 for a discussion of these tests. 9 See the NPRM, 85 FR at 74173-74178 for a discussion of the benefits of a biometric entry-exit system based on facial recognition. CBP has fully implemented its facial comparison system in the commercial air environment at entry through a process known as Simplified Arrival. CBP has implemented exit in the air environment primarily through partnerships with airlines at select locations. CBP has also fully implemented facial comparison biometrics at entry in the sea environment through processes known as Facial Biometric Debarkation (FBD), Mobile Primary Face, and Simplified Arrival Sea, and at entry in the pedestrian land environment through a process known as Pedestrian Entry. CBP plans to eventually establish a biometric entry-exit system at all air, sea, and land ports of entry. See CBP, Biometrics, https://www.cbp.gov/travel/biometrics (last modified April 24, 2025) (last visited May 12, 2025). As noted above, in this final rule, CBP is seeking comments regarding the specific collection process as well as costs and benefits for these newly implemented transportation modalities (the Simplified Arrival process at air entry, sea entry processes, and the process for entry for pedestrians at land). CBP estimates that a biometric entry-exit system can be fully implemented at all commercial airports and sea ports for both entry and exit within the next three to five years. CBP plans to continue to work to determine the best option for implementing a comprehensive biometric entry-exit system nationwide, which may include pilot programs to test various options for travelers at exit in the sea and pedestrian land environment as well as for travelers entering and exiting in vehicles at land ports and on private aircraft. 10 The regulatory changes adopted in this rule are necessary to enable CBP to continue its refinements, and implement facial comparison efficiently once the best solution is identified. As explained in the NPRM, prior to implementation of this rule, CBP could only conduct pilot programs at a limited number of air and sea ports of entry and could only collect biometrics from a limited population. 10 Private aircraft are those engaged in non-commercial flights, sometimes referred to as general aviation. See section 122.1(h) of title 19 of the Code of Federal Regulations (CFR) (19 CFR 122.1(h)). This final rule advances the legal framework for DHS collection and use of biometrics from aliens through a comprehensive biometric entry-exit system by removing the references to pilot programs and the port limitations and requiring facial comparison biometrics from all aliens on entry and exit. See 8 CFR 215.8(a) and 235.1(f). Because CBP is still determining the best way to implement biometric entry-exit in certain environments, as listed above, CBP has not included in this rule an analysis of the costs and benefits for those environments that are not yet operational. When CBP moves forward with a large-scale implementation of biometric entry-exit for vehicles at land ports and private aircraft or biometric exit at pedestrian land or sea ports, CBP will publish a notice in the Federal Register with information regarding details of implementation and request comments on the newly implemented transportation modalities. This final rule provides that all aliens may be required to be photographed upon entry and/or departure. Facial comparison technology upon entry and departure makes the process for verifying aliens' identities more efficient and accurate. It enables CBP to match the travelers' biometric photographs with their biographic information. The ability to biometrically verify the identity to confirm the departure of aliens will improve security, comply with federal statutory requirements, and help DHS detect overstays and aliens who are or were present in the United States without being admitted or paroled and prevent their illegal reentry. Having accurate entry and exit records is a fundamental piece of the U.S. immigration system and detecting overstays supports that system. Remaining in the United States beyond the period of authorized stay is unlawful and carries consequences for future visits to the United States. See INA 212(a)(9)(B) (8 U.S.C. 1182(a)(9)(B)). Ensuring the travelers' photographs match with their vetted biographic and biometric information also helps CBP prevent document fraud and the use of fraudulent travel documents, or the use of legitimate travel documents by imposters (thereby also assisting in combatting identity theft), and to identify criminals and known or suspected terrorists. CBP will comply with all legal requirements ( e.g., the Privacy Act of 1974, 5 U.S.C. 552a (Privacy Act), section 208 of the E-Government Act of 2002, Public Law 107-347, 116 Stat. 2899, 2921 (44 U.S.C. 3501 note) (E-Government Act), and section 222 of the Homeland Security Act of 2002, Public Law 107-296, 116 Stat. 2135, as amended (Homeland Security Act) (6 U.S.C. 142)) and departmental and government-wide policies that govern the collection, use, maintenance, and disposition of personally identifiable information (PII), including biometrics. As discussed in section III.B.6 of this final rule, U.S. citizens 11 may voluntarily participate in the biometric verification process. To minimize the data collected on U.S. citizens, CBP will not retain photographs of U.S. citizens collected as part of CBP's biometric verification program in CBP databases once CBP verifies that a traveler is a U.S. citizen. Encounter photos of U.S. citizens will be used exclusively for identity verification purposes and any photos of U.S. citizens will be discarded within 12 hours of verification of the individual's identity and citizenship. 11 For the purposes of opt out and photo retention policies, U.S. non-citizen nationals are treated the same as U.S. citizens. C. Costs, Cost Savings, and Benefits CBP anticipates that during the time period of analysis (2017-2029) this final rule will result in costs, cost savings, and benefits to CBP, approved partners, and travelers. CBP estimates total costs to CBP, outbound air travelers, inbound pedestrian travelers, and approved partners will range between $1.3 billion (in discounted 2024 U.S. dollars) using a three percent discount rate and $993 million (in discounted 2024 U.S. dollars) using a seven percent discount rate. Annualized costs are estimated to be between $122 million using a three percent discount rate and $119 million using a seven percent discount rate. Meanwhile, total cost savings to inbound air and sea travelers, and CBP, will be between $578 million (in discounted 2024 U.S. dollars) using a three percent discount rate and $406 million (in discounted 2024 U.S. dollars) using a seven percent discount rate. Annualized total cost savings are estimated to range between $54 million using a three percent discount rate, to $49 million using a seven percent discount rate. Total net costs from the implementation of this final rule are expected to range between $722 million (in discounted 2024 U.S. dollars) using a three percent discount rate to $587 million (in discounted 2024 U.S. dollars) using a seven percent discount rate. Annualized net costs are estimated to range between $68 million using a three percent discount rate and $70 million using a seven percent discount rate. 12 12 In the economic analysis for this final rule, CBP used a 3% and 7% discount rate showing values in discounted 2024 U.S. dollars, for estimated future quantified and monetized costs, costs savings and benefits. Additionally, some travelers may perceive having their photographs taken for facial comparison as a loss of privacy; however, CBP could not quantify these costs. Other cost savings that CBP was unable to monetize were an estimated time savings to vessel carriers from a swifter debarkation process when using Facial Biometric Debarkation, approximately 1.25 hours per vessel arrival. Improving national and homeland security efforts through the application of facial comparison technology during biometric identification of individuals entering and leaving the United States is the primary benefit of this final rule. CBP was unable to quantify these enhanced security benefits. Table 1 below shows CBP's estimates for future annualized costs, costs savings, benefits, and net costs from this final rule using three and seven percent discount rates over the period of analysis (2017-2029). Table 1—Estimated Annualized Cost, Cost Savings, Benefits (2017-2029) [Discounted thousands of 2024 U.S. dollars] 3% Discount rate 7% Discount rate Costs Annualized monetized costs $122,259 $118,870. Annualized quantified, but not monetized costs None None. Qualitative (non-quantified) costs Perceived privacy loss Perceived privacy loss. Cost Savings Annualized monetized cost savings $54,355 $48,599. Annualized quantified, but not monetized cost savings None None. Qualitative (non-quantified) cost savings None None. Benefits Annualized monetized benefits None None. Annualized quantified, but not monetized benefits None None. Qualitative (non-quantified) benefits Enhanced National Security and identification of visa overstays Enhanced National Security and identification of visa overstays. Once fully implemented possible shorter plane turnaround times Once fully implemented possible shorter plane turnaround times. Net Costs Annualized $67,904 $70,271. III. Background As discussed above, CBP is responsible for implementing an integrated, automated entry-exit system that matches the biographic data and biometrics of aliens entering and departing the United States. Furthermore, to carry out its mission responsibilities to control the border and to regulate the arrival and departure of both U.S. citizens and aliens, CBP has the authority to confirm the identity of all travelers and verify that they are the authorized bearers of their travel documents. See INA 287(b) (8 U.S.C. 1357(b)). A. National Security, Public Safety, and Immigration Benefits of a Biometric Entry-Exit Program The primary benefit of a biometric entry-exit system is the enhanced security provided by having biometric confirmation of the identification of alien travelers entering and leaving the United States. CBP has a comprehensive automated biographic information-based system that vets and checks aliens entering and departing the United States. Although this information is extremely valuable to CBP in completing its mission, no biographic information-based system, by itself, can definitively verify the identity of persons presenting travel and identity documents. Modern e-passports can make passport fraud more difficult. However, the best tool to combat passport fraud is to utilize the digital photos contained in e-passports to biometrically verify that a person who presents a travel document is the true bearer of that document. CBP's biometric tests using facial comparison technology support this conclusion. 13 DHS expects that the implementation of this rule will greatly enhance DHS's ability to identify more of these imposters. 13 See the NPRM, 85 FR at 74167-74169 for more discussion on how e-passports mitigate fraud. In addition to the benefits this technology can provide on entry, an integrated system, including biometric exit, is also essential for maintaining the integrity of the U.S. immigration system. Under current statutes and regulations, entering or staying in the United States without official permission from the U.S. government can cause a person to be legally barred from reentry to the United States for a number of years following that person's departure or removal. 14 The absence of an effective biometric exit process has enabled aliens who are present in the United States without being admitted or paroled or who overstayed their authorized period of admission (overstays) to evade immigration laws and avoid the time bars associated with unlawful presence. For Fiscal Year (FY) 2022, DHS estimates that about 853,955 aliens who entered by air or sea and were expected to depart that year overstayed their lawful period of admission, or 3.67 percent of aliens arriving by air and sea. 15 Through its deployment of biometric exit pilots, CBP has been able to process and document hundreds of aliens who were present in the United States without being admitted or paroled. 16 Additionally, biometric exit verification can allow CBP to address errors that sometimes appear in an alien's biographic data. 14 See INA 212(a)(9)(B) and 217(a)(7) (8 U.S.C. 1182(a)(9)(B) and 8 U.S.C. 1187(a)(7)); see also 8 CFR 217.4(a). 15 DHS, FY 2023 Entry/Exit Overstay Report (2024), https://www.dhs.gov/sites/default/files/2024-10/24_1011_CBP-Entry-Exit-Overstay-Report-FY23-Data.pdf (last visited May 15, 2025). 16 See generally Enterprise Management Information System-Enterprise Data Warehouse (internal CBP reporting system); and CBP, DHS/CBP/PIA-034, Privacy Impact Assessment for the Enterprise Management Information System-Enterprise Data Warehouse (EMIS-EDW) Appendix A (2016 and subsequent updates), available at https://www.dhs.gov/sites/default/files/publications/privacy-pia-cbp_emis_edw-appendixd-january2021.pdf (last visited May 15, 2025). Finally, a comprehensive and integrated biometric entry-exit system serves as an important tool in the fight against global terrorism. Since the 9/11 attacks, the United States remains vulnerable to the threat of global terrorism. Recognizing terrorism as one of the most serious threats to international peace and security and the need to take immediate action to address the evolving threat environment, the United Nations Security Council adopted a resolution on December 21, 2017, calling on member nations to increase aviation security and to develop and implement systems to collect biometric data to properly identify terrorists. 17 The resolution was co-sponsored by 66 countries, including the United States, and passed the Security Council with unanimous support. CBP's biometric exit program will provide another layer of identity verification and another opportunity to stop these individuals from departing without opportunity for further investigation. 17 S.C. Res. 2396 (Dec. 21, 2017), available at https://www.un.org/securitycouncil/content/sres23962017#:~:text=Decides%20that%20Member%20States%20shall,and%20suspected%20terrorists%2C%20including%20FTFs (last visited May 15, 2025). CBP has conducted extensive tests of the biometric comparison technology prior to implementation of this final rule. All of those tests support CBP's statements above regarding the efficacy of the congressionally mandated biometric entry-exit process. 18 18 See the NPRM, 85 FR at 74171-74173 for more discussion regarding CBP's prior biometric comparison tests and the results of those tests; see also CBP, Biometrics, https://www.cbp.gov/travel/biometrics (last modified Apr. 16, 2025) (last visited May 1, 2025). B. Facial Comparison-Based Entry-Exit Process Pursuant to This Final Rule In this final rule, DHS is amending the regulations to provide that all aliens may be required to be photographed upon entry and departure from the United States. See 8 CFR 215.8(a), and 235.1(f). Failure to comply with a requirement to be photographed may result in a determination of inadmissibility or a violation of the terms of the alien's status where CBP requires this information to determine identity or other immigration information. 19 19 See 8 CFR 215.8(b) and 8 CFR 235.1(f)(1)(iv). In the event of technical failures preventing the capture and matching of photographs of travelers at entry or exit, air carriers and CBP officers will be directed to use manual boarding processes until the systems are functional. In this scenario, a biographic travel record will be created for the traveler but a biometric confirmation will not exist. A missing biometric confirmation record based on technology or operational failures is not considered non-compliance with the regulatory requirements. Facial comparison technology will provide DHS a successful foundation for a biometric exit solution, as well as an improved and more streamlined biometric entry process. The following sections discuss CBP's facial comparison-based entry-exit process pursuant to this final rule. This process has been implemented for entry and exit at commercial airports and for entry at sea ports and pedestrian land ports. In this final rule, CBP seeks comments on these newly implemented transportation modalities. CBP will proceed with full implementation of an entry-exit process at all land modalities and for private aircraft, as well as on exit at sea ports, after refining its biometric exit strategies in those environments. Additionally, when CBP moves forward with a large-scale implementation for entry-exit at land ports or for private aircraft or for exit at sea ports, CBP will publish a notice in the Federal Register providing information regarding details of implementation in each new environment and request comments on the newly implemented transportation modalities. Some of the facial comparison-based entry and exit processes described below may already be implemented in limited form at entry or under biometric exit pilot programs. For such existing processes, CBP adheres to all applicable laws and regulations that govern its collection of biometrics. Pursuant to this final rule, CBP may collect and compare facial images under the processes described here from all aliens arriving in and departing from the United States. 1. Benefits of a Facial Comparison-Based Process CBP has developed a model for implementing a biometric entry-exit solution using facial comparison technology, currently implemented at commercial air entry and exit, pedestrian entry, and sea entry. As fingerprint scans have proven to be an effective law enforcement tool, CBP will continue to capture fingerprints as one of the initial identification biometrics at entry to the United States. 20 However, CBP has determined that facial comparison technology is currently the best available method for biometric verification at entry and exit as it is efficient, accurate, and unobtrusive. CBP may elect not to collect fingerprints for subsequent identity verification (after collecting them during the initial encounter) where CBP has implemented facial comparison. 21 Fingerprint scans can be used for most aliens should facial comparison fail to properly identify the traveler. 20 Note that the U.S. Department of State also collects biometrics from visa applicants and U.S. Citizenship and Immigration Services (USCIS) collects biometrics at other times that may be accessed by CBP as well. 21 CBP may collect facial images from all aliens entering or exiting pursuant to this rule, and, when requested, aliens must comply with CBP requirements to submit facial biometrics. CBP also has discretion not to collect facial images in certain cases where CBP determines that is appropriate. The key benefit of using facial comparison for biometric identity verification (as opposed to fingerprints) is its efficiency. The facial comparison process leverages information that all travelers provide to the U.S. government as a condition for international travel. In general, photographs of travelers are readily available to DHS through sources such as previous encounter photos and visa databases, eliminating the need to collect new information and add another layer to the travel process. In addition, a system that matches a traveler's facial biometrics against a limited number of stored photographs, rather than an entire government database of photographs, significantly reduces the amount of time necessary to verify a traveler's identity. As a result, CBP is able to verify the identity of arriving or departing travelers with a high degree of efficiency while facilitating travel for the public. Biometric verification using facial comparison is highly accurate. The National Institute of Standards and Technology (NIST) Face Recognition Vendor Test (FRVT) Demographic Effects Report (NIST FRVT Demographic Effects Report) shows that facial comparison technology is able to match travelers at a rate of greater than 98 percent. 22 If the system fails to match a traveler, then a manual review of the traveler's document is performed. Although CBP does not intend to cause delay or adverse consequences for the traveler in these situations, CBP is aware that in rare cases, travelers who fail to match are referred to secondary inspection or to a CBP officer for additional inspection, which may delay or hinder travel. 22 See NIST, NISTIR 8280, FRVT Part 3: Demographic Effects 8, 26 (2019) (NIST FRVT Demographic Effects Report), available at https://nvlpubs.nist.gov/nistpubs/ir/2019/nist.ir.8280.pdf (last visited May 15, 2025). As an added benefit, a biometric entry-exit system based on facial comparison is relatively unobtrusive. It relies on current traveler behaviors and expectations; most travelers are familiar with cameras and do not need to learn how to have a photograph taken. Finally, the biometric capture device can be installed at an airline departure gate without any necessary changes to existing airport infrastructure. By collecting photographs from all aliens departing the United States, DHS can more effectively verify their identity and confirm their departure. It also helps DHS identify known or suspected terrorists or criminals traveling using someone else's documents before they depart the country. This collection also helps identify visa overstays and aliens who are present in the United States without having been admitted or paroled, and prevent their illegal reentry into the United States, as well as prevent visa fraud and the use of fraudulent travel documents. After confirmation that the traveler is not the true bearer of a presented travel document, the traveler would then be subject to further inspection, first by the airline and also in some circumstances by CBP officers, which may include fingerprinting and/or an interview. Through this additional inspection, CBP will be better able to identify known criminals and other threats to border security. The collection of photographs from all aliens avoids the need to have different processes at the point of departure for different alien travelers depending on whether they are exempt or not (such as the exemption based on age provided by the regulations prior to the effective date of this final rule). Collecting photographs from all alien travelers aligns with international passport standards, which require a photograph of the traveler on the document regardless of age or visa classification. DHS has also determined that the collection of photographs from all aliens at entry is necessary, without regard to age, visa classification, or immigration status. Establishing a requirement that all aliens may be photographed without exemption enables DHS to biometrically verify the identity of all alien travelers traveling to and from the United States, thereby helping prevent visa fraud and the fraudulent use of legitimate travel documentation. Collecting photographs from all aliens at entry also enables CBP to implement a streamlined entry process using facial comparison for all such aliens. For example, under the Simplified Arrival process, CBP primarily uses photographs rather than fingerprints to verify the traveler's identity and retrieve the traveler's biographic information for inspection. 23 Facial comparison technology can perform the function of biometrically verifying an alien traveler's identity much more efficiently than collecting and comparing an individual's fingerprints each time a person enters and exits the United States. 24 The Simplified Arrival process (which applies only to certain in-scope aliens prior to the effective date of this final rule and will thereafter apply to all aliens) utilizes integrated biometric identity verification with the retrieval of a traveler's biographic data from a single capture of a photograph. In doing so, the Simplified Arrival process eliminates the need for CBP to scan a passport or travel document to pull up the traveler's biographic data for inspection because a facial comparison scan performs this same function more quickly. Using facial comparison at entry can eliminate several administrative processes that will ultimately increase the speed at which CBP can inspect travelers arriving in the United States. By eliminating the administrative tasks involved in scanning a travel document or collecting fingerprints, CBP can devote more resources to interviewing an alien traveler to determine the person's admissibility. The increased efficiency benefits travelers by allowing them more time to make airline connections and spend less time waiting in lines to be processed by CBP. The increased efficiency also benefits the travel industry by allowing faster processing of customers which decreases resources required to process customers as well as increasing customer satisfaction. 23 See the NPRM, 85 FR at 74173 for more discussion on the Simplified Arrival process. 24 Note that CBP will continue to collect fingerprints during initial encounters with aliens entering the United States. Pursuant to this rule, DHS may collect photographs from all aliens seeking to enter or exit the United States regardless of their age for the purposes of identity verification. This enables DHS to associate the immigration records created for children to their adult records later, which will help combat the trafficking of children, and screen for criminal history or associations with terrorist or other organizations seeking to violate applicable law throughout a person's lifetime. The exemptions in the current regulations for biometric collection based on the age of the individual ( i.e., under 14 and over 79) were based on technological limitations on collecting fingerprints from children and elderly persons, as well as traditional law enforcement policies and other policies, such as not running criminal history background checks on children. These exemptions are not applicable to CBP's facial comparison-based biometric entry-exit program, as the use of biometrics has expanded beyond criminal history background checks and now plays a vital role in identity verification and management, and combatting the trafficking of children. Furthermore, internal CBP studies of biometric facial match accuracy, historical matching data, examination of biometric matching of ages under 14 and over 79, and CBP standard operating procedures associated with these ages no longer support exempting facial biometric collection from these populations. Exemptions based on age will continue to apply to biometrics other than facial images. Certain privacy advocates have expressed concern over the accuracy of facial matching technology especially as it relates to demographics such as age, race and sex. CBP has conducted extensive testing of facial matching technology and CBP's internal analysis shows that facial comparison technology as used in international traveler screening operations is able to match travelers at a rate of greater than 98 percent. By expanding the scope of individuals subject to facial image collection, more travelers can be successfully matched. This will improve the experience for all segments of the population, including children and the elderly. 25 Additionally, removing biometric exemptions for aliens alleviates the need to have multiple processing procedures for aliens, which would be a resource-intensive process. For entry and exit at land ports and for private aircraft as well as for exit at sea ports, CBP plans to continue to refine biometric exit strategies with the ultimate goal of implementing a comprehensive biometric entry-exit system nationwide. The regulatory changes in this final rule support CBP's efforts to regularly conduct a variety of statistical tests to bolster performance thresholds and minimize any possible bias impact on travelers of a certain race, gender, or nationality. 25 See Nat'l Inst. Standards & Tech. (NIST), NISTIR 8271, Face Recognition Vendor Test (FRVT) Part 2: Identification 9 (2019), available at https://doi.org/10.6028/NIST.IR.8271 (last visited May 25, 2025). In this final rule, CBP has not analyzed the costs and benefits for implementing a facial comparison-based biometric entry-exit program for vehicles at land ports and private aircraft, or for exit at sea ports and pedestrians at land ports because CBP is still in the process of determining the best way to implement biometric entry-exit within each of these unique environments. 2. Facial Comparison Technology Gallery Building CBP has developed a matching service for all biometric entry and exit operations that use facial comparison, regardless of the method of entry or exit ( i.e., air, land, and sea) known as Traveler Verification Service (TVS). For all biometric matching deployments, TVS relies on biometric templates generated from pre-existing photographs that CBP already maintains, known as a “gallery.” These images may include photographs captured by CBP during previous entry inspection, photographs from U.S. passports and U.S. visas, immigration applications, and photographs from other U.S. government encounters. CBP builds galleries of photographs based on where and when a traveler will enter or exit. If CBP has access to Advance Passenger Information System (APIS) manifest information, CBP will build galleries of photographs based on upcoming flight, vessel, or, in some cases, bus arrivals or departures. If CBP does not have access to APIS manifest information, such as for pedestrians or privately owned vehicles at land ports of entry, CBP may build galleries using photographs of aliens that frequently cross for that specific port of entry, taken at that specific port, that become part of a localized photographic gallery. CBP's TVS facial matching service then generates a biometric template for each gallery photograph that is stored in the TVS virtual private cloud for matching when the traveler arrives or departs. 3. General Collection Process Due to the complexities in logistics and variety of air, land, and sea port designs across the entry and exit environments, CBP will collect photographs of the arriving or departing traveler via several different methods depending on the local port of entry and mode of travel. Generally, when travelers present themselves for entry or exit, they will encounter a camera connected to CBP's cloud-based TVS facial matching service via a secure, encrypted connection. This camera matches live images with existing photo templates from previously submitted passenger travel documents or other photos that CBP possesses ( e.g., CBP encounter photos). The camera may be owned by CBP, the airport or air or vessel carrier, another U.S. government agency such as the Transportation Security Administration (TSA), or a foreign commercial partner. Once the camera captures a quality image and the system successfully finds a match among the historical photo templates of all travelers from the gallery associated with that particular manifest or port, the traveler proceeds to inspection for an admissibility determination by a CBP officer or is permitted to depart the United States. When a no match occurs, CBP or the carrier may use an alternative means to verify the traveler's identity, such as use of an alternate biometric modality like fingerprints, or a manual review of the travel document as has been done historically. 4. Facial Comparison-Based Entry Process Historically, prior to admission of a person to the United States, CBP used a manual process to inspect travel documents, such as passports or visas, to initiate system checks and verify a traveler's identity, travel history, and any law or border enforcement concerns that may require attention. The new primary entry solutions, including Simplified Arrival, FBD, Mobile Primary Face, and Pedestrian Entry, use biometrics to initiate the transaction and system checks, using facial comparison as the primary biometric verification modality. This shift from a biographic, document-based system to a biometric-initiated transaction requires travelers to provide facial photos for identity verification purposes. This enables CBP to more accurately verify identity and citizenship by matching the traveler's photograph with vetted and validated biographic information that is associated with a validated photo. Studies show that humans can benefit in face comparison tasks when assisted by a machine, and vice versa. 26 26 See P. Jonathon Phillips, et al., Face recognition accuracy of forensic examiners, superrecognizers, and face recognition algorithms, 115 PNAS 6171 (2018), https://www.pnas.org/content/pnas/115/24/6171.full.pdf (last visited May 15, 2025). See also Hamood M. Alenezi & Markus Bindemann, The Effect of Feedback on Face-Matching Accuracy, 27 Applied Cognitive Psych. 735 (2013), https://onlinelibrary.wiley.com/doi/abs/10.1002/acp.2968 (last visited May 15, 2025); and Matthew C. Fysh & Markus Bindemann, Effects of time pressure and time passage on face-matching accuracy, 4 Royal Soc'y Open Sci. 170249 (2017), https://royalsocietypublishing.org/doi/full/10.1098/rsos.170249#RSOS170249C16 (last visited May 15, 2025). At entry, CBP uses CBP-owned cameras, CBP's primary arrival subsystem of TECS (not an acronym), and the TVS facial matching service to capture facial biometric data from travelers seeking to enter the United States. TVS automatically creates a template from the image and uses the template to query against a gallery of known identities, based on the manifests for entering flights and vessels that day. At this time, CBP is not actively using galleries of known travelers in the land vehicle environment. CBP uses gallery matching in some instances at land borders, such as bus manifest processing. The process works the same as in the air and sea environments, but APIS submission is currently voluntary for commercial bus and rail operators. CBP does not receive a manifest for pedestrians crossing the land border on foot or for persons traveling in private vehicles. CBP is conducting technical demonstrations to determine the feasibility of gallery matching in the personal vehicle environment at entry. CBP uses one-to-one matching in environments where no manifest exists, such as pedestrian entry. In those cases, CBP will use facial comparison technology to compare the live image captured at the time of application for entry with the traveler's travel document ( e.g., passport) when possible. 5. Facial Comparison-Based Exit Process CBP is using biometric technologies in voluntary partnerships with other federal agencies and commercial stakeholders. These partnerships enable CBP to more effectively verify the identities of individuals entering and exiting the United States, identify aliens who are violating the terms of their admission, and expedite immediate action when such violations are identified. In some partnership arrangements, an airline or airport authority partner uses its own technology and staff to incorporate TVS biometric facial comparison during the boarding process. These stakeholders have to adhere to strict business requirements and the cameras must meet CBP's technical specifications to capture facial images of travelers, prior to use. Each camera is connected to the TVS via a secure, encrypted connection. During the boarding process, CBP's facial comparison matching service allows CBP to biometrically verify the identity of travelers departing the United States with the assistance of airline or airport partnerships. Once the traveler's photo is captured via a camera at the departure gate, TVS generates a template from the departure photo and uses that template to search the gallery of historical photo templates in the cloud-based gallery. Some airlines now accept CBP's biometric identity verification in lieu of boarding passes as part of a new paperless, self-boarding process. Carriers, pursuant to the APIS regulations, are responsible for comparing the travel document to validate the information provided and ensure that the person presenting the document “is the person to whom the travel document was issued.” 19 CFR 122.49a, 122.49b, 122.75a, and 122.75b. The use of TVS provides a more efficient and accurate way to meet this requirement. Typically, on air exit, CBP is not permanently stationed at the gate. Therefore, CBP currently relies on the review of biographic data (provided via APIS) to determine whether further inspection on departure is warranted and whether an outbound enforcement team should be sent to the gate. With the use of facial comparison technology, outbound enforcement teams are informed immediately when a no match occurs (via notification on a mobile device) and may, in some cases, determine that additional inspection is warranted. The carrier may also notify CBP if additional CBP inspection is needed. Outbound processing for travelers on commercial sea vessels ( e.g., cruise ships) will resemble the air exit process. It is expected that this process will also be based on an APIS traveler manifest, although CBP is still determining the best way to implement this process. CBP may collect biometrics from travelers leaving the United States at land borders, when staffing permits. CBP may consider and examine partnering opportunities in the future in the land environment to enable more complete collection of biometrics at exit at land borders. When CBP moves forward with a large-scale implementation for entry-exit at land ports or for private aircraft or for exit at sea ports, CBP will publish a notice in the Federal Register providing information regarding details of implementation in each new environment and request comments on the newly implemented transportation modalities. 6. Alternative Procedures and Public Notices All U.S. citizens and nationals are subject to inspection upon arrival into and departure from the United States to confirm their identity and citizenship. See INA 287(b) (8 U.S.C. 1357(b)). However, where CBP has implemented a biometric verification program, participation by U.S. citizens in the biometric verification process is voluntary. A U.S. citizen traveler who does not wish to have a photograph taken may request an alternative inspection process. U.S. citizens may notify the airline or vessel boarding agent or a CBP officer if they would like to opt out of the facial comparison-based process at the time of boarding or during the entry process and request that an alternative method of validation be employed. The citizen's identity will then be verified manually by CBP or the gate agent examining the travel document. For example, in the event a U.S. citizen elects not to be photographed at airports where CBP is conducting biometric exit verification, an airline gate agent should perform a manual review of the U.S. citizen's passport. Although CBP and carriers make every effort to ensure no delays or adverse consequences result when a U.S. citizen opts out of the biometric collection, CBP is aware that in some cases, U.S. citizens have alleged that they have been referred to secondary inspection or told they would not be able to board because they declined biometrics. Individuals who feel they were unduly delayed and would like further information regarding their travel record may request information about records contained in the CBP systems through procedures provided by the Freedom of Information Act (FOIA) (5 U.S.C. 552) and the access provisions of the Privacy Act of 1974 (5 U.S.C. 552a(d)) online at https://www.dhs.gov/foia-contactinformation. CBP strives to be transparent and provide notice to individuals regarding its collection, use, dissemination, and maintenance of PII, as set forth in this rulemaking, the CBP biometrics website regarding CBP's Biometric Privacy Policy, https://www.cbp.gov/travel/biometrics/biometric-privacy-policy, the TVS Privacy Impact Assessment (PIA), 27 and the CBP Privacy Office report entitled “CBP Privacy Evaluation (CPE) of the TVS in support of the CBP Biometric Entry-Exit Program” (CPE TVS Report). 28 As detailed in the CPE TVS Report, when airlines or airports are partnering with CBP on biometric air exit, the public is informed that the partner is collecting the biometric data in coordination with CBP. 29 CBP provides notice to travelers at the designated ports of entry through both physical and either electronic message boards or electronic signs, as well as verbal announcements in some cases, to inform the public that CBP will be taking photos for identity verification purposes. CBP also provides notice to the public that a U.S. citizen may opt out of having a photo taken and request an alternative procedure. CBP works with carriers, airports, and other port facilities to incorporate appropriate notices and processes into their current business models. Examples of such notices are available on CBP's Biometrics Resources website, https://www.cbp.gov/travel/biometrics/resources. CBP is aware that, in some cases, adequate signage and notice may not have been installed or provided. CBP seeks to ensure that all locations place signs and notice regarding biometric collection where appropriate. 30 27 See DHS/CBP/PIA-056, Privacy Impact Assessment for the Traveler Verification Service (Nov. 14, 2018, as amended) (TVS PIA), available at https://www.dhs.gov/sites/default/files/publications/privacy-pia-cbp056-tvs-february2021.pdf (last visited May 15, 2025). 28 See CBP Privacy Evaluation (CPE) of the Traveler Verification Service (TVS) in support of the CBP Biometric Entry-Exit Program (Aug. 15, 2022), (CPE TVS Report), available at https://www.cbp.gov/document/foia-record/cpe-traveler-verification-service-final-report (last visited May 15, 2025); see also TVS PIA at 1. 29 See CPE TVS Report at 6. 30 See CPE TVS Report at 6. Upon request, CBP officers provide individuals with a handout ( i.e., “tear sheet”) with Frequently Asked Questions (FAQ), opt-out procedures, and additional information on the particular collection method, including the legal authority and purpose for inspection, the routine uses, and the consequences for failing to provide information. 31 CBP is aware that some locations may not have had adequate information informing travelers of the availability of a tear sheet for more information. CBP is working to make sure all locations collecting biometrics provide this information and have available tear sheets for travelers. Additionally, in the Federal Inspection Service area (FIS area), CBP posts signs informing individuals of possible searches, and the purpose for those searches, upon arrival or departure from the United States. 32 Privacy information on the program, such as applicable System of Records Notices (SORNs) and Privacy Impact Assessments (PIAs), are published on the DHS Privacy website, https://www .dhs.gov/privacy. CBP will also continue to make program information, such as FAQs, available for the public on CBP's biometrics website at https://www.cbp.gov/travel/biometrics. 31 See CPE TVS Report at 6. 32 See CPE TVS Report at 6-7. 7. No Match Procedures CBP has designed the entry and exit inspection process such that, in the event of a mismatch, false match, or no match, CBP or the carrier may use alternative means to verify the traveler's identity and ensure that the traveler is not unduly delayed. If the system fails to match a traveler, then a manual review of the traveler's document should be performed. On entry, the CBP officer may continue to conduct additional screening or request fingerprints (if appropriate) to verify identity. Each inspection booth at entry is equipped with a fingerprint reader. At departure, after the manual review of the travel document ( i.e., scanning a boarding pass and checking a traveler's passport), the airline or cruise line may notify CBP's outbound enforcement teams should additional inspection be required. 33 If the CBP inspection yields no derogatory information, the CBP officer allows the traveler to board/continue travel. If CBP finds actionable derogatory information on the traveler during the additional inspection, the CBP officer may escort the traveler to the FIS area to conduct further questioning and take the appropriate actions under CBP's law enforcement authorities. CBP is aware that in some cases, travelers have been improperly delayed or experienced other adverse consequences due to a mismatch. In the event that an individual does experience a delay or issue as an outcome of these processes, travelers may contact the CBP Information Center and/or DHS Traveler Redress Inquiry Program (TRIP). 34 Signage and tear sheets at select ports of entry where the TVS is employed provide information on how to contact the CBP Information Center and/or DHS TRIP. In addition, travelers may request information from the on-site CBP officer or gate agent. 33 Communication between CBP's outbound enforcement team and airlines/cruise lines is not unique to locations where facial comparison is implemented. During the outbound inspection, CBP may interview the traveler as well as use Biometric Exit-Mobile (BE-Mobile) devices. CBP conducts outbound enforcement operations using BE-Mobile devices in all modes of transportation and also at locations where facial comparison technology ( i.e., biometric exit boarding) is unavailable. Neither the operations nor the technology is exclusive to locations where facial comparison-based biometric exit is implemented. 34 See CBP, CBP Information Center, https://help.cbp.gov/s/?language=en_US (last visited May 15, 2025); DHS, DHS Traveler Redress Inquiry Program (DHS TRIP), https://www.dhs.gov/dhs-trip (last visited May 15, 2025). 8. U.S. Nationals, Dual Nationals and Lawful Permanent Residents Under the INA, a U.S. national is either a citizen of the United States, or a person who, though not a U.S. citizen, owes permanent allegiance to the United States. See INA 101(a)(22) (8 U.S.C. 1101(a)(22)). Alien U.S. national status applies only to individuals who were born either in American Samoa or on Swains Island to parents who are not citizens of the United States. 35 Dual nationals are individuals who owe allegiance to both the United States and a foreign country. They are required to obey the laws of both countries, and either country has the right to enforce its laws. For purposes of international travel, U.S. nationals, including dual nationals, must use a U.S. passport (or alternative documentation as required by 22 CFR part 53) to enter and leave the United States. See INA 215(b) (8 U.S.C. 1185(b)); 22 CFR 53.1. In cases where dual nationals fail to present the proper travel documents, biometrics may be used to identify that the same individual has traveled using documents issued by different countries. 35 See U.S. Department of State, Dual Nationality, https://travel.state.gov/content/travel/en/legal/travel-legal-considerations/Relinquishing-US-Nationality/Dual-Nationality.html (last visited May 15, 2025). For purposes of this rule, a U.S. national or dual national who presents as a citizen of another country will be processed as a foreign national and the individual's photo will be retained accordingly, unless the individual is able to present evidence of U.S. citizenship or nationality. 36 Under immigration law, lawful permanent residents (LPRs) are aliens authorized to live permanently within the United States. 37 As such, for purposes of this rule, LPRs will be processed as aliens. 36 A person claiming U.S. citizenship or nationality must establish that fact to the examining officer's satisfaction and must present a U.S. passport or alternative documentation as required by 22 CFR part 53. If such person fails to satisfy the examining immigration officer that the traveler is a U.S. citizen, the person shall thereafter be inspected as an alien applicant for admission. 8 CFR 235.1(b). 37 Under section 101(a) of the INA (8 U.S.C. 1101(a)), the term “alien” means any person who is not a citizen or national of the United States. See also 8 CFR 215.1(a). Therefore, a lawful permanent resident is an alien under the INA. 9. Business Requirements for Public-Private Partnerships The business requirements implemented by CBP with its partners govern the retention and use of the facial images collected using CBP's facial comparison technology. The Business Requirements Documents are available on CBP's biometrics website at https://www.cbp.gov/travel/biometrics/biometric-privacy-policy and are also discussed in the TVS PIA. 38 The CBP Business Requirements prohibit CBP's approved partners such as airlines, airport authorities, or cruise lines and participating organizations ( e.g., vendors, systems integrators, or other third parties) from retaining the photos they collect under this process for their own business purposes. 39 The partners must immediately purge the images following transmittal to CBP, and the partner must allow CBP to audit compliance with this requirement. To use TVS, private sector partners must agree to these Business Requirements. 40 38 TVS PIA at 10, 17-18, 21-22. 39 CBP, Biometric Air Exit Business Requirements, v3.0 at 10 (2023), https://www.cbp.gov/sites/default/files/assets/documents/2023-Oct/Biometric%20Air%20Exit%20Business%20Requirements5.pdf (CBP Biometric Air Exit Business Requirements); and CBP, Biometric Sea Entry-Exit Business Requirements, v2.0 at 10 (2023), https://www.cbp.gov/sites/default/files/assets/documents/2023-Oct/Sea%20Business%20Requirements%20Document10_0.pdf (CBP Biometric Sea Entry-Exit Business Requirements). 40 CBP Biometric Air Exit Business Requirements 8; CBP Biometric Sea Entry-Exit Business Requirements 8. IV. Summary of Changes to the Biometric Entry and Exit Regulations To advance the legal framework for the full implementation of a biometric exit capability as described above, DHS is amending the regulations in parts 215 and 235 of title 8 of the Code of Federal Regulations (8 CFR parts 215 and 235) that set forth the requirements for providing biometrics upon entry and departure as described below. A. General Biometric Exit Requirement for Aliens Prior to the effective date of this final rule, the regulations at 8 CFR 215.8(a)(1) authorize DHS to collect biometric exit information from certain aliens on departure from the United States pursuant to pilot programs at air, land, or sea ports of entry and places a limit of 15 air or sea ports of entry at which such biometric exit pilots may be established. The reference to pilot programs and the 15 air or sea port limitation hinder DHS's ability to expand and fully implement a comprehensive biometric exit solution. Therefore, DHS is amending 8 CFR 215.8 by removing the reference to pilot programs and the reference to 15 air or sea port limit, allowing DHS to establish a general biometric exit requirement for aliens. B. Collection of Photographs From Aliens Upon Entry and Departure To implement a biometric entry-exit system based on facial comparison, DHS is amending the regulations to provide that all aliens may be required to be photographed upon departure from the United States. Specifically, DHS is amending 8 CFR 215.8 to add a new paragraph (a)(1), which provides that an alien may be required to be photographed when departing the United States to determine identity or for other lawful purposes. The collection of photographs from an alien upon departure will assist DHS in determining the alien's identity and whether immigration status in the United States has been properly maintained. The exemptions of certain aliens from the collection of biometrics provided in 8 CFR 215.8(a)(1) and (2), redesignated as 8 CFR 215.8(a)(2) and (3) and revised by this final rule, will no longer pertain to the collection of photographs from aliens upon departure and will only apply to the collection of other biometrics. In addition, DHS is amending 8 CFR 235.1(f) to add new paragraph (f)(1)(ii), which provides that an alien seeking admission may be required to be photographed to determine the alien's identity, admissibility, and whether immigration status in the United States has been properly maintained. Like the collection of photographs upon departure, the exemptions provided in 8 CFR 235.1(f)(1)(ii), redesignated as 8 CFR 235.1(f)(1)(iii) and revised by this final rule, will no longer pertain to the collection of photographs from aliens seeking admission and will only apply to the collection of other biometrics. As noted above, DHS is retaining the exemptions in 8 CFR 215.8 and 235.1(f) 41 for the collection of biometrics other than photographs ( e.g., fingerprints and other biometrics) from aliens upon entry to and departure from the United States. This is set forth in redesignated 8 CFR 215.8(a)(2) and (3) and 235.1(f)(1)(iii) and (vi) as amended by this final rule. Notwithstanding these exemptions, DHS is authorized to collect biometrics from aliens, regardless of age, citizenship, or visa status, for law enforcement purposes or in other contexts not addressed by these regulations, such as from aliens attempting to enter the United States illegally between U.S. ports of entry. 41 The following categories of aliens will remain exempt from the requirements under 8 CFR 215.8 and 235.1 to provide other (non-photograph) biometrics upon arrival to, and departure from, the United States at a U.S. port of entry: Canadian citizens under section 101(a)(15)(B) of the INA who are not otherwise required to present a visa or be issued a form I-94 or Form I-95; aliens younger than 14 or older than 79 on the date of admission; aliens admitted on A-1, A-2, C-3 (except for attendants, servants, or personal employees of accredited officials), G-1, G-2, G-3, G-4, NATO-1, NATO-2, NATO-3, NATO-4, NATO-5, or NATO-6 visas, and certain Taiwan officials who hold E-1 visas and members of their immediate families who hold E-1 visas unless the Secretary of State and the Secretary of Homeland Security jointly determine that a class of such aliens should be subject to these requirements; classes of aliens to whom the Secretary of Homeland Security and the Secretary of State jointly determine it shall not apply; or an individual alien to whom the Secretary of Homeland Security, the Secretary of State, or the Director of Central Intelligence determines it shall not apply. See 8 CFR 215.8(a)(1) and (2); and 8 CFR 235.1(f)(1)(ii) and (iv). C. Collection of Biometrics When Departing the United States and Other Minor Conforming and Editorial Changes DHS is amending 8 CFR 215.8(a) to expand where the collection of biometrics may be required. Prior to the effective date of this final rule, 8 CFR 215.8(a)(1) provided that biometrics may be collected from aliens only when departing “the United States from a designated port of entry.” As described above, this final rule adds new paragraph 8 CFR 215.8(a)(1) and redesignates 8 CFR 215.8(a)(1) as 8 CFR 215.8(a)(2). Both new paragraph 8 CFR 215.8(a)(1) and redesignated paragraph 8 CFR 215.8(a)(2) now provide that biometrics may be collected from aliens “when departing the United States” from any location. This amendment is necessary to allow for the collection of biometrics from individuals upon departure at locations other than from a designated port of entry. 42 Although the majority of travelers depart the United States from a designated port of entry, a few travelers depart the country from locations that are not designated as ports of entry, including airports such as Ronald Reagan Washington National Airport 43 as well as other locations such as pleasure boat docks that are not designated ports of entry. To ensure the implementation of a biometric entry-exit system that tracks all individuals departing the United States, DHS may require aliens to provide biometrics upon departure from designated ports of entry or from any other location. 42 Designated ports of entry are listed in 8 CFR 100.4(a) for aliens arriving by vessel or by land transportation and in 8 CFR 100.4(b) for aliens arriving by aircraft. 43 This airport is not a port of entry pursuant to 8 CFR 100.4(b) and does not have federal inspection processes or facilities, but it still has a few flights that depart to international locations, mostly those that have CBP preclearance facilities (typically in Canada or the Caribbean). In addition, DHS is making certain minor conforming and editorial changes in 8 CFR 215.8 and 235.1(f). In 8 CFR 215.8, DHS is redesignating paragraphs (a)(1) and (2) as paragraphs (a)(2) and (3), and revising cross-references and adding paragraph headings as necessary. In § 235.1(f), DHS is redesignating paragraphs (f)(1)(ii), (iii), and (iv) as paragraphs (f)(1)(iii), (v), and (vi), respectively; adding new paragraphs (f)(1)(ii) and (iv); and revising cross-references and adding paragraph headings as necessary. In both §§ 215.8 and 235.1(f), DHS is removing the phrase “[t]he Secretary of Homeland Security or his or her designee” and adding in its place “DHS”, and removing the phrase “biometric identifiers” and adding in its place “biometrics.” Finally, DHS is amending 8 CFR 215.8(a) and 235.1(f) to remove the specific references to fingerprints and photographs. Prior to the effective date of this final rule, 8 CFR 215.8(a)(1) and 235.1(f)(1)(ii) provided that any alien may be required “to provide fingerprints, photograph(s) or other specified biometric identifiers” upon arrival into or departure from the United States. Because this final rule adds new paragraphs relating to the provision of photographs, the word “photograph(s)” in these provisions is no longer appropriate. Furthermore, to allow the flexibility for DHS to employ different methods of biometric collection in the future as biometric technology advances, DHS is amending 8 CFR 215.8(a) and 235.1(f) to provide instead that any alien, other than those exempt by regulation, may be required “to provide other biometrics” upon arrival into and departure from the United States. See 8 CFR 215.8(a)(2) and 235.1(f)(1)(iii). For example, CBP has tested iris technology, and there may be other biometric options that may have potential for implementation in the future. V. Discussion of Comments Submitted in Response to the NPRM A. Overview In response to the NPRM, DHS received 320 comments during the two 30 day public comment periods. Commenters consisted of individuals, advocacy groups, legal service providers, professional associations, State and local governments, and social organizations. The comments and responses are grouped by subject area. Some commenters expressed support for the rule and/or offered suggestions for improvement. The majority of commenters expressed general opposition to the rule, mentioning immigration policy concerns, general privacy concerns, and economic concerns. B. Discussion of Comments 1. Comments Expressing General Support Comment: Several commenters generally supported the proposed rule, providing various rationales or supporting data. Commenters noted that biometrics will streamline the travel process, address national security concerns, provide U.S. citizens with the opportunity to request alternative screening procedures and protect children from being exploited by human traffickers. Response: DHS appreciates the support for the rule and agrees that the rule will streamline the travel process and address various national security concerns to include terrorism and nonimmigrants who overstay their authorized period of admission. Furthermore, DHS agrees that the rule preserves the ability for U.S. citizens to request alternative procedures for identity verification. DHS also agrees that this rule will protect youth and children from being exploited by human traffickers; please see the response in Section V.B.4.l., Under 14 Children: Privacy, Authority and Accuracy Concerns, below for additional details regarding the benefits of collecting biometrics from children under the age of 14. 2. Comments Expressing General Support With Recommendations Comment: Some commenters expressed support for the rule and offered suggestions for improvement. Commenters supported CBP's efforts to maintain the ability for U.S. citizens to request alternative screening procedures and applauded CBP's efforts to institute privacy protections for all travelers. Commenters noted that an expanded system-wide biometric implementation will not only facilitate travel to include a more hygienic user experience, but also address national security concerns arising from fraudulent documents and those individuals that overstay their authorized period of admission. Several commenters supported DHS's decision to withdraw the 2008 NPRM 44 which proposed to require commercial air and vessel carriers to collect biometric information from certain aliens departing the United States and submit this information to DHS within a certain timeframe. 44 73 FR 22065 (Apr. 24, 2008). Response: DHS appreciates the support for the rule that provides for continued implementation of the statutorily mandated biometric entry-exit system. DHS also appreciates support for the withdrawal of the 2008 NPRM. DHS agrees that this final rule will streamline the travel process and address various national security concerns to include fraudulent documents and aliens who overstay their authorized period of admission. Furthermore, DHS agrees that the rule preserves the ability for U.S. citizens to request alternative procedures. a. Recommendation: Provide additional information for both the traveling public and stakeholders regarding U.S. citizens' voluntary participation in the program. Comment: Commenters suggested that to instill greater public confidence in the program, CBP should further clarify the option for U.S. citizens to opt out of the program and establish a rule dictating that U.S. citizens' photos may only be kept for up to 12 hours. Response: DHS agrees that U.S. citizens should have proper notification of their option to opt-out of facial comparison. This issue is further discussed in Section V.B.4.e., U.S. Citizen Opt-Out, below, including a discussion regarding CBP's authorities, signage/notification, alternative procedures, and training efforts. CBP agrees that the appropriate retention period for U.S. citizen photos should be no more than 12 hours. The National Archives and Records Administration (NARA)-approved records schedule requires destruction of U.S. citizen photos upon confirmation of U.S. citizenship and no later than 12 hours after confirmation of U.S, citizenship CBP worked closely with the NARA to approve the retention period for U.S. citizen photos. 45 45 See DHS, CBP, U.S. Citizen Encounter Photos (DAA-0568-2019-0002), available at: https://www.archives.gov/files/records-mgmt/rcs/schedules/departments/department-of-homeland-security/rg-0568/daa-0568-2019-0002_sf115.pdf (last visited May 15, 2025). Comment: One commenter suggested that both U.S. citizens and aliens should be required to have their photo taken upon arrival/departure. Response: CBP initially considered including U.S. citizens in its biometric entry-exit program because having separate processes for aliens and U.S. citizens at ports of entry creates logistical and operational challenges that affect security, wait times, and the traveler experience. However, CBP determined that the best course of action at this time is to continue to allow U.S. citizens to voluntarily participate in the biometric entry-exit program. CBP does not have plans at this time to require U.S. citizens to be photographed when entering or exiting the United States, as evidenced by DHS's withdrawal of the 2008 NPRM proposing to require biometric collection from U.S. citizens. See Withdrawal Notice (85 FR 73644). Nevertheless, to carry out its responsibilities effectively under the INA, for both arrivals and departures from the United States, CBP must be able to determine conclusively whether a traveler is a U.S. citizen or national or an alien by verifying that the traveler is the true bearer of the presented travel documentation. CBP is authorized to take and consider evidence concerning the privilege of any person to enter, reenter, pass through, or reside in the United States, or concerning any matter material or relevant to the enforcement or administration of the INA. See INA 287(b) (8 U.S.C. 1357(b)). A person claiming U.S. citizenship must establish that fact to the examining officer's satisfaction and must present a U.S. passport or alternative documentation. See INA 215(b) (8 U.S.C. 1185(b)), 8 CFR 235.1(b), and 22 CFR 53.1. b. Recommendation: Increase program transparency to address concerns from privacy advocates and members of Congress. Comment: Commenters suggested that CBP should provide the public with additional information about the biometric entry-exit program such as data usage, retention, protection, and dissemination, as well as continually update Privacy Impact Assessments and SORNs as biometric technology capabilities and methodologies continue to evolve. Response: CBP endeavors to provide notice to the public continuously regarding the biometric entry-exit program including through regular updates of its PIAs and SORNs as well as the CBP biometric website at https://www.cbp.gov/travel/biometrics. See Section V.B.4.d., Public Notification and Information, below, for more information on CBP's transparency and communication efforts. See Section V.B.3.c., Data Security, Retention, and Dissemination Concerns, below, for more information regarding CBP's data usage, storage, and protection. Additional information is also available in various places on the CBP and DHS websites including https://www.cbp.gov/travel/biometrics and https://www.dhs.gov/privacy, which provide the relevant PIA and SORN, and which are all updated regularly as capabilities and technologies evolve; and https://www.dhs.gov/compliance, which includes information on compliance including periodic reviews of Privacy Threshold Analyses (PTAs), PIAs, and SORNs. Comment: One commenter suggested that CBP work to make sure travelers understand and adjust to the new system in advance of making biometric collection fully mandatory. Response: As mentioned in the NPRM, 46 through the CBP biometrics website at https://www.cbp.gov/travel/biometrics, and the TVS PIA, 47 CBP strives to be transparent and provide notice to individuals regarding its collection, use, dissemination, and maintenance of PII. CBP has also gradually rolled out the biometric entry-exit program with various voluntary pilots over the past several years giving the public the opportunity to adjust to this new process. As discussed throughout this final rule, CBP is still in the process of determining the best way to fully implement biometric collection at all entry and exit modalities. CBP has maintained a proactive approach to stakeholder engagement and outreach through participation in speaking engagements, conferences, and stakeholder meetings. This outreach has kept CBP on the forefront of domestic and international engagement by allowing CBP the opportunity to partner with airlines, airport authorities, travel associations and agents, embassies, attachés, and privacy advocacy groups to share programmatic updates on CBP's use of biometric facial comparison technology in the air, land, and sea environments. 46 See the NPRM, 85 FR at 74177 for more information on CBP's protection of PII. 47 See TVS PIA at 19. CBP also participates regularly in events sponsored by travel industry partners to provide updates which highlight the benefits of biometric facial comparison technology. Some of these partners have included but are not limited to the U.S. Travel Association (USTA), Global Business Travel Association (GBTA), Cruise Line Industry Association (CLIA), American Association of Airport Executives (AAAE), and Airlines for America (A4A), to name just a few. Moreover, to maximize messaging efforts, CBP has often participated in these events in collaboration with its government partners, like TSA or the Science and Technology Directorate (S&T) of DHS. Comment: Commenters also suggested that CBP set a minimum acceptable accuracy rate consistent across demographics, which, along with system improvements, should then be studied and publicized regularly. One commenter encouraged CBP to expedite the implementation of the 2020 U.S. Government Accountability Office (GAO) audit. 48 48 See GAO, GAO-20-568, Facial Recognition: CBP and TSA are Taking Steps to Implement Programs, but CBP Should Address Privacy and System Performance Issues (2020), available at https://www.gao.gov/products/gao-20-568 (last visited May 15, 2025). Response: CBP appreciates the commenters' suggestions regarding tracking accuracy rates and effectiveness of improvements to the matching algorithm. CBP does have a minimum acceptable accuracy rate for the program and does regularly track it to ensure program success. CBP's Biometric Air Exit Key Performance Parameters (KPPs) mandate that the system's True Acceptance Rate (TAR) must equal or exceed 97 percent of all in-scope travelers (as previously defined by 8 CFR 215.8 and 235.1) and that the system's False Acceptance Rate (FAR) must not exceed 0.1 percent of all in-scope travelers. Through congressionally mandated reports, such as the annual DHS Entry/Exit Overstay Report 49 the TSA and CBP: Deployment of Biometric Technologies Report to Congress, 50 and other public reports, such as the annual CBP Trade and Travel Report, 51 CBP discusses the accuracy rates of the Biometric Entry-Exit program as well as system improvements. Additionally, CBP continues to collaborate with DHS S&T, DHS Office of Biometric Identity Management (OBIM), and the National Institute of Standards and Technology (NIST) on technical standards and evaluation to ensure optimal system performance. 49 This report is available for FY22 at https://www.dhs.gov/sites/default/files/2023-07/23_0707_FY22_FY23_CBP_Integrated_Entry_Exit_Overstay_Report.pdf and available for previous FYs at https://www.dhs.gov/publication/entryexit-overstay-report (last visited May 15, 2025). 50 This 2019 DHS report is posted in the docket for this rulemaking. 51 This report is available for FY22 and earlier at https://www.cbp.gov/document/annual-report/cbp-trade-and-travel-fiscal-year-2022-report (last visited May 16, 2025). CBP concurred with the 2020 GAO audit recommendations and has addressed each recommendation, as indicated in the Recommendations for Executive Action Table on the applicable GAO website. 52 52 See GAO, GAO-20-568, Facial Recognition: CBP and TSA are Taking Steps to Implement Programs, but CBP Should Address Privacy and System Performance Issues, Recommendations, Recommendations for Executive Action Table, https://www.gao.gov/products/gao-20-568 (last visited May 15, 2025). c. Recommendation: Provide additional information regarding no match and opt-out procedures. Comment: Several commenters requested that CBP clarify its process for when a traveler screening yields a no-match result, to include when CBP assistance should be requested. One commenter also requested the number of Biometric Exit-Mobile devices CBP currently has in use today, as they will likely be used for both no-match and opt-out procedures. Additionally, one commenter indicated that CBP should be responsible for the implications of a no-match result. Response: As discussed in the NPRM, in the event of no match at departure, the carrier or CBP officer will perform a manual review of the travel document ( i.e., scanning a boarding pass and checking a traveler's passport). 53 If additional inspection is required by a carrier, the carrier line may notify CBP's outbound enforcement teams, but the carrier is not required to do so. Carrier partners should follow internal business rules and policy to manually verify identity and determine boarding status of a traveler. Air carrier and airport partners may contact CBP, in accordance with existing guidelines outlined by the Carrier Liaison Program, when there are issues or concerns with U.S. entry requirements, human trafficking, traveler assessment, fraudulent document detection and imposter identification. 54 53 See the NPRM, 85 FR at 74177, for further discussion of no match procedures. 54 CBP, Carrier Information Guide: United States Document Requirements for Travel (2023), available at https://www.cbp.gov/sites/default/files/assets/documents/2023-Nov/Carrier%20Information%20Guide%20ENGLISH.pdf (last visited May 15, 2025). CBP may use mobile devices with the relevant CBP-built mobile applications to support its multilayered enforcement approach. These CBP applications include the Biometric Exit Mobile application. Additional information about the Biometric Exit Mobile application can be found in the Biometric Exit Mobile Program PIA. 55 CBP officers can use the application on any CBP smartphone. CBP does not dedicate phones to a single mobile application or operation. Rather, officers use these phones to perform various job responsibilities across multiple environments. Ports are provided with enough phones to meet their mobile mission including biometric exit operations. The port will make a determination on how officers will use their phones on a day-by-day basis based on staffing and other law enforcement-related factors. 55 The updated 2018 PIA for DHS/CBP/PIA-026 Biometric Exit Mobile Program, and all prior versions, are available at https://www.dhs.gov/publication/biometric-exit-mobile-air-test (last visited May 15, 2025). Comment: One commenter expressed concern that CBP will not have the staffing resources to conduct outbound enforcement operations efficiently. Response: CBP has partnered with multiple stakeholders, including airports and airlines, who are assisting with facilitating the collection at departure through the use of CBP's TVS. TVS provides an automated mechanism to verify the identities of travelers. CBP has also partnered with cruise operators in the entry environment and CBP expects these partnerships will also aid in developing a strategy for biometric exit in the sea environment as well. CBP is still determining the best method for using facial biometrics at land exit. Comment: One commenter requested further clarification on the process for families traveling with children, and persons with reduced mobility as experience during the trials has shown that collecting biometric information from these travelers can be difficult and time consuming. Response: Air carriers may use discretion when processing travelers with disabilities and families with children, including conducting manual identity verification using the individual's travel document (document review), as is performed for all flights where biometric processing is not available. Additionally, carriers must abide by existing local, state, and federal laws and regulations regarding processing persons with disabilities. CBP's biometric entry-exit program does not contradict existing accessibility regulations and processes. In many cases, biometric collection equipment accommodates disabilities; furthermore, it is CBP's policy to afford persons with disabilities an equal opportunity to participate in, or benefit from, CBP-conducted services, programs, and activities and to provide reasonable modifications to its services, programs, and activities to qualified individuals with a disability when necessary to avoid discrimination on the basis of disability. d. Recommendation: Clarify the impact that a biometric exit system would have on airport operations and infrastructure requirements for airports and airlines. Comment: Commenters requested that CBP explain whether the program's implementation would require separate screening lines, separate processes, or notifications for passengers. Additionally, one commenter requested clarification on whether non-U.S. citizens could opt out of the biometric exit process to avoid additional burdens on CBP and/or the carriers during boarding such as separate boarding queues ( i.e., one for U.S. citizens and one for aliens). Response: As noted throughout this rule, on the effective date of this final rule, collection of facial biometrics may be required from all aliens entering or exiting the United States, regardless of age, sex, race and nationality. As indicated on privacy signage, also available on CBP's biometrics website, https://www.cbp.gov/travel/biometrics/resources, if a traveler is a U.S. citizen and does not wish to have a photograph taken, the traveler may see a gate agent or CBP officer to request alternative procedures for identity verification. The alternative procedures are intended to be similar to the existing processes at entry and exit. See Section V.B.4.e., U.S. Citizen Opt-Out, below, for more information regarding CBP's authorities, signage/notification, alternative procedures, and training efforts. CBP will continue its transparency and communication efforts, discussed in detail in Section V.B.4.d., Public Notification and Information, below, as it rolls out full implementation of the biometric entry-exit program. e. Recommendation: Provide details should airlines/airports choose not to participate in the Biometric Entry-Exit Program. Comment: Several commenters requested that CBP provide procedures that airlines should follow if they decide not to participate in this voluntary program and that CBP should commit to continue working with those airports that do not participate in the program. Response: Participation in CBP's biometric entry-exit program will remain voluntary for carriers under this final rule. If air carriers or airports do not participate, they will continue conducting manual identity verification. However, CBP may supplement this verification with CBP officers conducting periodic biometric exit operations. CBP uses its Workload Staffing Model to determine the staffing requirements and help make allocation decisions for CBP officers at ports of entry, including airports. CBP will continue to use this data-driven methodology to identify staffing requirements by considering all the activities performed by CBP officers at ports of entry, the volume of those activities, and the levels of effort required to carry them out. f. Recommendation: Provide carrier protections through the SAFETY Act. Comment: Some commenters recommended that DHS provide SAFETY Act 56 legal liability protections for air carriers that participate as partners in CBP's biometric entry-exit program. The commenters stressed the importance of these protections against claims of discrimination in facial comparison technology, as well against any breach of traveler privacy. 56 Support Anti-Terrorism by Fostering Effective Technologies Act of 2002, Public Law 107-296, 116 Stat. 2135, 2238 (6 U.S.C. 441 et seq. ). Response: DHS will not issue a blanket liability protection. Carriers need to work with their technology providers on seeking SAFETY Act certification for biometric technology devices. The SAFETY Act also is designed for anti-terrorism technology certification, not for general privacy or other areas of discrimination concerns. The SAFETY Act offers liability protection to sellers of qualified anti-terrorism technologies to incentivize the development and deployment of anti-terrorism technology solutions. Additional information is available on the DHS S&T SAFETY Act website at https://www.safetyact.gov/. g. Recommendation: Establish an oversight body on DHS biometric programs. Comment: One commenter supports the findings and recommendations in the Homeland Security Advisory Council Biometrics Subcommittee 2020 Report, 57 including the establishment of a DHS Biometrics Oversight and Coordination Council. 57 Homeland Security Advisory Council, Final Report of the Biometrics Subcommittee (2020) (HSAC Biometrics Report), available at https://www.dhs.gov/sites/default/files/publications/final_hsac_biometrics_subcommittee_report_11-12-2020.pdf (last visited May 15, 2025). Response: While DHS has not created the specific oversight council as suggested in the 2020 report, numerous oversight processes exist to ensure DHS compliance with civil rights and civil liberties. These processes included congressional hearings, congressionally mandated status update reports and responses to formal congressional inquiries. See Section V.B.4.j., Government Accountability and Oversight, below for more information on the various biometric oversight and accountability mechanisms. h. Recommendation: Provide more information on the implications of state/local laws and implementation of biometric capabilities in the land and sea environments. Comment: One commenter requested that CBP provide additional guidance and clarification on the role of the biometric entry-exit program when local laws conflict with CBP's biometric entry-exit strategy. One commenter indicated that further details on process, timing, cost, etc., in the land and sea environments are necessary to ensure traveler confidence and comprehension. Response: CBP is congressionally mandated to implement a Biometric Entry-Exit System and is issuing this regulation to implement such system. The Supremacy Clause of the U.S. Constitution provides that federal laws and treaties are the supreme laws of the land, and it is well established that the power to regulate immigration is exclusively with the federal government. In instances where a state law conflicts with federal immigration laws, the state law must yield. See Section V.4.B.s, Land and Sea Implementation, below, for more information on CBP's implementation plan in the land and sea environments. i. Recommendation: Further coordinate with NIST to examine existing standards that may unintentionally inhibit CBP's ability to consider other biometric modalities. Comment: One commenter requested that CBP coordinate with NIST to ascertain gaps that could limit consideration of other biometric modalities— e.g., edge computing platforms, mobile platforms, and cloud-based systems. Response: CBP works closely with DHS S&T, OBIM and NIST on technical standards and system performance regarding facial comparison capabilities as well as remaining informed on the development and evolution of other biometric modalities, especially as it relates to the border security mission. 58 58 See, e.g., DHS/OBIM/PIA-005 Office of Biometric Identity Management (OBIM)-National Institute of Standards of Technology (NIST) Data Transfer 3-5 (2022), available at https://www.dhs.gov/publication/dhsobimpia-005-office-biometric-identity-management-obim-national-institute-standards (last visited May 15, 2025). j. Recommendation: Implement additional changes to the rule to ensure all aliens arriving to and departing from the United States are thoroughly screened and vetted. Comment: One commenter requested that CBP remove all age restrictions in 8 CFR 215.8 and 235.1 for all biometric collection regardless of biometric modality and expand biometric collection to include additional biometric modalities ( e.g., iris, DNA, voice). Additionally, the commenter requested that DHS finalize both the USCIS and CBP biometrics rules. Response: The NPRM published on September 11, 2020, entitled “Collection and Use of Biometrics by U.S. Citizenship and Immigration Services,” 85 FR 56338 (USCIS NPRM), would have implemented the suggested changes if finalized. 59 On May 10, 2021, DHS withdrew the USCIS NPRM. 86 FR 24750. However, since the withdrawal of the NPRM, the President has issued Executive Order No. 14161, Protecting the United States From Foreign Terrorists and Other National Security and Public Safety Threats, 90 FR 8451, (Jan. 30, 2025) (E.O. 14161). E.O. 14161 mandates that DHS protect the American public from “aliens who intend to commit terrorist attacks, threaten our national security, espouse hateful ideology, or otherwise exploit the immigration laws for malevolent purposes” and to “vet and screen to the maximum degree possible all aliens who intend to be admitted, enter, or are already inside the United States.” Therefore, DHS will consider future efforts to enhance biometric submission to further the goals of this Executive Order. Through this rulemaking, DHS is removing the age restrictions for photograph collection under 8 CFR 235.1 for aliens seeking admission to the United States, as well as under 8 CFR 215.8 for aliens departing the United States. See Section V.B.4.l, Under 14 Children: Privacy, Authorities and Accuracy Concerns, below, for more details. 3. Comments Expressing General Inquiries a. Rule Impact Comment: Commenters raised questions regarding to whom the rule applies, as well as the purpose and need for the biometric information collected. Response: As stated throughout this rule, on the effective date of this final rule, collection of facial biometrics may be required from all aliens entering or exiting the United States, regardless of age, sex, race and nationality. DHS is mandated by numerous statutes as discussed above 60 to develop and implement an integrated, automated entry and exit data system to match records, including biographic data and biometrics, of aliens entering and departing the United States. CBP has determined that facial comparison technology is currently the best available method for biometric verification, as it is accurate, unobtrusive, and efficient. 60 Two of the relevant statutes are section 110 of the DMIA (8 U.S.C. 1365a) and section 7208 of the IRTPA (8 U.S.C. 1365b). For a more complete list, please refer to Section II.B. of this final rule. This final rule improves DHS's ability to meaningfully implement a comprehensive biometric entry-exit system and make the process for verifying the identity of aliens more efficient, accurate, and secure by using facial comparison technology. Implementing an integrated biometric entry-exit system that verifies the identity of aliens at arrival and on exit and then uses that information to confirm that the alien has exited as required is essential for addressing the national security concerns arising from the threat of terrorism, combatting the fraudulent use of legitimate travel documentation, and identifying aliens who overstay their authorized period of admission or are present in the United States without being admitted or paroled. An integrated biometric entry-exit system can also fill the gaps left by incorrect or incomplete biographic data for travelers. b. Technology Usage and Techniques Accuracy and Misidentification Comment: Several commenters raised questions on the training dataset and machine learning models used for facial comparison. Response: The information requested regarding the training dataset and machine learning models CBP uses for facial comparison is proprietary information. CBP works closely with DHS S&T, OBIM and NIST on technical standards and system performance regarding facial comparison capabilities. NIST has conducted in-depth analysis on facial comparison algorithms, which showed that the vendor selected by CBP is capable of delivering algorithms with a high accuracy rate. 61 For more information on NIST's analysis, see Section V.B.4.k, Accuracy, General Bias, and Misidentification Concerns, below. 61 See NIST, NISTIR 8280, FRVT Part 3: Demographic Effects 8, 26 (2019) (NIST FRVT Demographic Effects Report), available at https://nvlpubs.nist.gov/nistpubs/ir/2019/nist.ir.8280.pdf (last visited May 15, 2025). CBP has issued PIAs for many pilots that were testing/developing facial comparison technology. These PIAs include information about how the algorithms are tested to assure accuracy of the facial comparison technology. 62 62 See, e.g., DHS/CBP/PIA-025 1:1 Facial Comparison Project, DHS/CBP/PIA-026 Biometric Exit Mobile Air Test, DHS/CBP/PIA-027 Southwest Border Pedestrian Exit Field Test, DHS/CBP/PIA-030 Departure Information Systems Test, and the TVS PIA. These PIAs are available at https://www.dhs.gov/privacy-documents-us-customs-and-border-protection (last visited May 16, 2025). For more information on how CBP ensures high accuracy rates across all demographics see Section V.B.4.k., Accuracy, General Bias, and Misidentification Concerns, below. c. Data Security, Retention, and Dissemination Concerns Comment: Many commenters had questions regarding the safety and protection of sensitive information with use of this technology and linkage to interagency databases. Additionally, one commenter asked whether protection would be provided to the individuals should a breach or cybersecurity incident occur. One commenter asked if CBP could delete the biometric information but retain the record of the entry or exit. Response: Because numerous federal statutes require DHS to create an integrated, automated biometric entry and exit system that records the arrival and departure of aliens, compares the biometric data to verify their identities, and authenticates travel documents, DHS cannot delete personally identifiable data and only retain a record of entry-exit. Furthermore, DHS retains certain records for up to 75 years, which is necessary to support the holding of biometrics of subjects of interest in immigration and border management or law enforcement activities. 63 63 See DHS/NPPD/PIA-002, Privacy Impact Assessment for the Automated Biometric Identification System (IDENT) 25 (2012) (IDENT PIA), available at https://www.dhs.gov/publication/dhsnppdpia-002-automated-biometric-identification-system (last visited May 16, 2025) (note that this website refers to this PIA as “DHS/OBIM/PIA-001” due to OBIM renumbering after the DHS National Protection and Programs Directorate (NPPD) became the Cybersecurity and Infrastructure Security Agency within DHS); and DHS/OBIM/PIA-004, Privacy Impact Assessment for the Homeland Advanced Recognition Technology System (HART) Increment 1 PIA (2020) (HART PIA), available at https://www.dhs.gov/publication/dhsobimpia-004-homeland-advanced-recognition-technology-system-hart-increment-1 (last visited May 16, 2025). When DHS personnel discover a suspected or confirmed privacy incident, there are a series of actions and activities that must occur to appropriately report, investigate, respond, and mitigate the privacy incident. DHS's policy for responding to privacy incidents is established in the DHS Privacy Office, DHS Instruction Guide 047-01-008, Privacy Incident Handling Guidance (2017). 64 Additionally, DHS Privacy Policy Instruction 047-01-006, Privacy Incident Responsibilities and Breach Response Team (2017), 65 provides additional instruction on how DHS and CBP employees should handle and respond to privacy incidents. The Breach Response Team determines the appropriate course of action with respect to any privacy incident investigation, remedy options, resource allocations, risk mitigation, and interagency engagement. DHS and CBP also follow OMB's breach response guidance, including OMB M-17-12 and M-25-04. 66 64 Available at https://www.dhs.gov/sites/default/files/publications/047-01-008%20PIHG%20FINAL%2012-4-2017_0.pdf (last visited May 16, 2025). 65 Available at https://www.dhs.gov/sites/default/files/publications/047-01-006%20Privacy%20Incident%20Responsibilities%20and%20Breach%20Response%20Team%20FINAL%2012-04-17.pdf (last visited May 16, 2025). 66 See OMB M-17-12, available at https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/memoranda/2017/m-17-12_0.pdf (last visited July 31, 2025) and OMB 25-04, available at https://www.whitehouse.gov/wp-content/uploads/2025/01/M-25-04-Fiscal-Year-2025-Guidance-on-Federal-Information-Security-and-Privacy-Management-Requirements.pdf (last visited July 31, 2025). For more information on how CBP safeguards sensitive information, see Section V.B.4.g., Data Security, Retention, and Dissemination Concerns, below. 4. Comments Expressing General Opposition a. General Opposition Comment: Some commenters provided general opposition for the proposed rule, with little, non-specific reasoning or justification provided. Response: DHS appreciates the time these commenters took to read the rule, but DHS respectfully disagrees. DHS's intent for this rule is explained in detail in the rule's preamble and throughout the NPRM. DHS is mandated by numerous statutes to develop and implement an integrated, automated entry and exit data system to match records, including biographic data and biometrics, of aliens entering and departing the United States. Additionally, DHS gave careful consideration to the costs and benefits associated with this regulatory change, as well as considered all of the comments submitted by the public. DHS concludes that after the careful weighing of equities, this rulemaking is necessary as biometrics are simply a more efficient and reliable means of identifying an individual, compared to biographic identifiers. Comment: Some commenters requested that DHS not use the term “alien” in the rule. Response: DHS used the term “noncitizen” in the NPRM except where quoting directly from statutory or regulatory text that uses the term “alien.” However, DHS uses the term “alien” in this final rule consistent with the statutory and regulatory text. Comment: Two commenters suggested that DHS should be abolished. Response: Comments suggesting DHS be abolished are outside the scope of this rulemaking. DHS and its homeland security mission are born from the commitment and resolve of Americans across the United States in the wake of the September 11, 2001, attacks. With the enactment of the Homeland Security Act in November 2002, DHS formally came into being as a stand-alone, Cabinet-level department to further coordinate and unify national homeland security efforts, opening its doors on March 1, 2003. As the complex threat environment continues to evolve, DHS will embody the relentless resilience of the American people and continue to ensure a safe, secure, and prosperous homeland. Comment: One commenter expressed concern that the use of technology would cause officers to distance them physically from the subject and/or distance them from personal responsibility for tasks done. Response: CBP's mission is to protect the American people, safeguard our borders, and enhance the nation's economic prosperity. Technology will never replace the skills and capabilities that can only be exhibited by CBP's personnel in identifying and mitigating threats to the nation. In fact, studies 67 have shown that it is the combination of humans, with technology at their disposal, that best serve the CBP mission while simultaneously respecting the rights of all persons. Humans, balanced with technology, are essential to successful execution of these biometric programs. 67 See P. Jonathon Phillips, et al., Face recognition accuracy of forensic examiners, superrecognizers, and face recognition algorithms, 115 PNAS 6171 (2018), https://www.pnas.org/content/pnas/115/24/6171.full.pdf (last visited May 16, 2025). See also Hamood M. Alenezi & Markus Bindemann, The Effect of Feedback on Face-Matching Accuracy, 27 Applied Cognitive Psych. 735 (2013), https://onlinelibrary.wiley.com/doi/abs/10.1002/acp.2968 (last visited May 16, 2025); and Matthew C. Fysh & Markus Bindemann, Effects of time pressure and time passage on face-matching accuracy, 4 Royal Soc'y Open Sci. 170249 (2017), https://royalsocietypublishing.org/doi/full/10.1098/rsos.170249#RSOS170249C16 (last visited May 16, 2025). CBP's investment in technology is designed to empower officers to execute the agency's critical law enforcement mission and alleviate the administrative burden on officers so they are able to focus on enforcement. The use of facial comparison technology saves frontline officers' time in matching travelers to document photos and capturing fingerprints CBP already has in its holdings, allowing for a focus on threat detection and behavioral indicators that technology cannot identify. CBP's workforce is critical to accomplishing CBP's missions. b. General Privacy Concerns Comment: Many commenters disagreed with the rule, stating that the proposal is unnecessary, offensive, an invasion of privacy, infringes on freedoms, and would violate the respect, privacy rights, and civil liberties of U.S. citizens, legal immigrants, aliens, victims of domestic violence, other vulnerable parties, and children. Response: DHS disagrees with these comments. DHS recognizes there may be increased sensitivities associated with facial comparison technology. However, DHS complies with all applicable privacy statutes, regulations, and policies. Further, DHS currently includes information about specific privacy protections in the relevant PIAs. The PIAs also direct individuals to the applicable SORNs, which describe the categories of individuals covered by the system, categories of records in the system, legal authority for maintaining the system, purpose of the system, and routine uses of records maintained in the system. All PIAs and SORNs are submitted to the DHS Privacy Office for review and approval by the DHS Chief Privacy Officer. The privacy compliance documentation process is an iterative process that not only provides transparency into the details of DHS activities, but also shapes those activities by identifying privacy risks as well as mitigations and privacy-enhancing solutions. Privacy is a DHS-wide responsibility, and the DHS Privacy Office works with DHS components, including CBP, to ensure privacy protections are incorporated in the entire lifecycle of DHS projects, programs, and activities. DHS is committed to the fair and equal treatment of all individuals in its screening and vetting activities, ensuring the rights of all people are protected, while taking lawful actions necessary to secure the homeland. In addition to adhering to all relevant statutory and regulatory privacy protections, DHS complies with existing DHS policies, which include the DHS Fair Information Practice Principles (FIPPS) 68 that ensure privacy safeguards are incorporated throughout the information lifecycle. These safeguards also account for administrative, physical, and technical controls to ensure appropriate collection, use, maintenance, and protection of all information, both biometric and biographic, submitted to DHS. Furthermore, DHS complies with protections in 8 U.S.C. 1367 regarding disclosure of information pertaining to beneficiaries of applications for victim-based immigration relief. DHS will continue to adhere to all statutes, regulations, and policies regarding the privacy rights of individuals departing or entering the United States. 68 DHS, The Fair Information Practice Principles, https://www.dhs.gov/publication/privacy-policy-guidance-memorandum-2008-01-fair-information-practice-principles (last visited May 16, 2025). Comment: Some commenters stated the rule violates the fundamental human rights to privacy, provided specifically in Articles 17 and 26 of the International Covenant on Civil and Political Rights (ICCPR) 69 and Article 12 of the Universal Declaration of Human Rights (UDHR), 70 which the United States has ratified. 69 The text of the ICCPR is available on the United Nations Office of the High Commissioner for Human Rights website, https://www.ohchr.org/en/instruments-mechanisms/instruments/international-covenant-civil-and-political-rights (last visited May 16, 2025). 70 The text of the Universal Declaration of Human Rights is available on the United Nations website, https://www.un.org/en/about-us/universal-declaration-of-human-rights (last visited May 16, 2025). Response: DHS disagrees with commenters that this rule violates any provisions of international law that are applicable within the United States. The tenets of the rights to privacy expressed under the ICCPR and UDHR are already incorporated into U.S. domestic law via the Privacy Act and through DHS regulations and policy guidance. DHS is committed to fair equal treatment of all individuals and the rule complies with all applicable privacy statutes, regulations, and policies. Comment: Two commenters mentioned the 2020 DHS Office of the Inspector General (OIG) Report on DHS Privacy oversight inefficiencies. Response: CBP is aware of the DHS OIG report on its November 2020 audit, entitled “DHS Privacy Office Needs to Improve Oversight of Department-wide Activities, Programs, and Initiatives” 71 (Nov. 2020 DHS OIG Report). CBP takes privacy very seriously and is dedicated to protecting the privacy of all travelers. DHS OIG identified three recommendations for the DHS Privacy Office to improve privacy compliance, information sharing access agreements, and privacy training. 72 Two of the recommendations apply to internal record keeping (compliance and training) and the third applies to oversight of information sharing and access agreements. 73 None of those recommendations was specific to this rulemaking. CBP reviews all programs and changes to programs to determine any privacy concerns and mitigate any privacy risks. 71 DHS OIG, OIG-21-06, DHS Privacy Office Needs to Improve Oversight of Department-wide Activities, Programs, and Initiatives (2020), available at https://www.oig.dhs.gov/sites/default/files/assets/2020-12/OIG-21-06-Nov20.pdf (last visited May 16, 2025). 72 Nov. 2020 DHS OIG Report at 17. 73 Nov. 2020 DHS OIG Report at 17. c. Privacy Act and Paperwork Reduction Act Comment: Some commenters stated that the proposed rule fails to justify its claimed authority to collect biometrics from U.S. citizens or lawful permanent residents (LPRs) protected by the Privacy Act (5 U.S.C. 552a). Response: DHS respectfully disagrees with the commenters. In the NPRM, DHS explains in great detail its authority to collect biometrics from all aliens, including LPRs. 74 Moreover, DHS is authorized to take and consider evidence concerning the privilege of any person, including U.S. citizens, to enter, reenter, pass through, or reside in the United States, or concerning any matter which is material or relevant to the enforcement of the INA and DHS regulations. See INA 287(b) (8 U.S.C. 1357(b)). The Privacy Act does not prevent government agencies from collecting information about U.S. citizens and LPRs when needed for the agency to execute its statutory and regulatory responsibilities, but rather requires that the government follow a process for appropriately protecting information and informing the public about collection and retention of the information. Additionally, as noted here and elsewhere throughout this final rule, U.S. citizens are not required to but can voluntarily participate in the facial biometric process. 74 See the NPRM, 85 FR at 74164, for more information on DHS' authority to collect biometrics from all aliens. DHS acknowledges that the Privacy Act requires that “each agency that maintains a system of records shall . . . collect information to the greatest extent practicable directly from the subject.” 5 U.S.C. 552a(e)(2) (emphasis added), subject to any exemptions from this provision contained in 5 U.S.C. 552(j) and (k). Nevertheless, as explained in the NPRM, CBP considered and piloted many types of biometrics collections. 75 Using information gleaned from the pilots as well as public feedback, CBP has concluded that partnering with carriers and airports to capture facial images is the most viable large-scale solution as it is highly effective, cost effective, and less disruptive than other possible methods. 75 See the NPRM, 85 FR at 74171, for more information about CBP's biometrics pilots. Comment: One commenter stated that CBP should require airlines and airports to display the Office of [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2025-19655. Public record. Not legal advice.