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[Senate Report 115-413]
[From the U.S. Government Publishing Office]

                                                     Calendar No. 717
115th Congress    }                          {                Report
                                 SENATE
 2d Session       }                          {                115-413
_______________________________________________________________________

                                     

                                                      

                      OFFICE OF BIOMETRIC IDENTITY

                        MANAGEMENT AUTHORIZATION

                              ACT OF 2018

                               __________

                              R E P O R T

                                 of the

                   COMMITTEE ON HOMELAND SECURITY AND

                          GOVERNMENTAL AFFAIRS

                          UNITED STATES SENATE

                              to accompany

                               H.R. 5206

               TO AMEND THE HOMELAND SECURITY ACT OF 2002
TO ESTABLISH THE OFFICE OF BIOMETRIC IDENTITY MANAGEMENT, AND FOR OTHER 
                                PURPOSES

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                December 4, 2018.--Ordered to be printed
                                   ______

                     U.S. GOVERNMENT PUBLISHING OFFICE 

89-010                       WASHINGTON : 2018

                
        COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS

                    RON JOHNSON, Wisconsin, Chairman
ROB PORTMAN, Ohio                    CLAIRE McCASKILL, Missouri
RAND PAUL, Kentucky                  THOMAS R. CARPER, Delaware
JAMES LANKFORD, Oklahoma             HEIDI HEITKAMP, North Dakota
MICHAEL B. ENZI, Wyoming             GARY C. PETERS, Michigan
JOHN HOEVEN, North Dakota            MAGGIE HASSAN, New Hampshire
STEVE DAINES, Montana                KAMALA D. HARRIS, California
JON KYL, Arizona                     DOUG JONES, Alabama

                  Christopher R. Hixon, Staff Director
                Gabrielle D'Adamo Singer, Chief Counsel
            Christopher S. Boness, Professional Staff Member
               Margaret E. Daum, Minority Staff Director
       Charles A. Moskowitz, Minority Senior Legislative Counsel
                 Subhasri Ramanathan, Minority Counsel
                     Laura W. Kilbride, Chief Clerk

                                                     Calendar No. 717
115th Congress    }                          {                Report
                                 SENATE
 2d Session       }                          {                115-413

======================================================================

 
   OFFICE OF BIOMETRIC IDENTITY MANAGEMENT AUTHORIZATION ACT OF 2018

                                _______
                                

                December 4, 2018.--Ordered to be printed

                                _______
                                

 Mr. Johnson, from the Committee on Homeland Security and Governmental 
                    Affairs, submitted the following

                              R E P O R T

                        [To accompany H.R. 5206]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Homeland Security and Governmental 
Affairs, to which was referred the bill (H.R. 5206) to amend 
the Homeland Security Act of 2002 to establish the Office of 
Biometric Identity Management, and for other purposes, having 
considered the same, reports favorably thereon with amendments 
and recommends that the bill, as amended, do pass.

                                CONTENTS

                                                                   Page
  I. Purpose and Summary..............................................1
 II. Background and Need for the Legislation..........................2
III. Legislative History..............................................3
 IV. Section-by-Section Analysis......................................4
  V. Evaluation of Regulatory Impact..................................4
 VI. Congressional Budget Office Cost Estimate........................5
VII. Changes in Existing Law Made by the Act, as Reported.............5

                         I. Purpose and Summary

    H.R. 5206, the Office of Biometric Identity Management 
Authorization Act of 2018, codifies the Office of Biometric 
Identity Management (OBIM) and moves the office to the 
Management Directorate of the Department of Homeland Security 
(DHS or the Department). Additionally, the Act defines the 
qualifications and duties of the Director and Deputy Director 
of the office.

              II. Background and the Need for Legislation

    The National Commission on Terrorist Attacks upon the 
United States, better known as the 9/11 Commission, recommended 
that DHS swiftly establish a biometric entry-exit screening 
system for travelers coming in and out of the United States.\1\ 
In response to this recommendation, Congress required the 
Secretary for Homeland Security to develop a plan to 
``accelerate the full implementation of an automated biometric 
entry and exit data system.''\2\ In 2004 DHS began collected 
biometric entry data through their United States Visitor and 
Immigration Status Indicator Technology (US-VISIT) program.\3\ 
However, DHS has yet to implement a full biometric entry-exit 
screening system for travelers.\4\
---------------------------------------------------------------------------
    \1\Nat'l Comm'n on Terrorist Attacks upon the United States, The 9/
11 Commission Report, 389 (2004), available at https://www.9-
11commission.gov/report/911Report.pdf.
    \2\8 U.S.C. 1365b Sec. 7208 et seq. (Pub. L. 108-458).
    \3\Gov't Accountability Office, GAO-17-170, DHS Has Made Progress 
in Planning for a Biometric Air Exit System and Reporting Overstays, 
but Challenges Remain 3 (2017), available at https://www.gao.gov/
assets/690/683690.pdf.
    \4\Id.
---------------------------------------------------------------------------
    The Department created OBIM in March 2013 to replace the 
US-VISIT program.\5\ The biometric identification program was 
moved from U.S. Customs and Border Protection (CBP) to an 
office within the National Protection and Programs Directorate 
(NPPD).\6\
---------------------------------------------------------------------------
    \5\Office of Biometric Identity Mgmt., Dep't of Homeland Sec. (Feb. 
20, 2018), available at https://www.dhs.gov/obim.
    \6\Consolidated and Further Continuing Appropriations Act, 2013, 
Pub. L. 113-6, Sec. 127 Stat. 356 (2013).
---------------------------------------------------------------------------
    OBIM's stated mission is to ``provide the Department of 
Homeland Security and its mission partners with biometric 
identity services that enable national security and public 
safety decision making,'' and currently has the largest 
database of fingerprints within the Federal Government.\7\\8\ 
Biometric data, such as fingerprints, facial recognition, and 
other unique identifiers, is used to verify the identity of 
U.S. persons and non-citizens. Agencies within DHS, like CBP 
and U.S. Citizenship and Immigration Services, use biometric 
data to check identities against watch lists and ensure the 
validity of documents when presented to Federal officers.\9\ 
OBIM also provides biometric services to and shares information 
with other Federal agencies as well as state and local 
governments.\10\
---------------------------------------------------------------------------
    \7\Office of Biometric Identity Mgmt., Dep't of Homeland Sec., 
supra note 5.
    \8\Biometrics, Dep't of Homeland Sec. (Feb. 6, 2017), available at 
https://www.dhs.gov/
biometrics.
    \9\Office of Biometric Identity Mgmt. Identification Servs., Dep't 
of Homeland Sec. (Feb. 10, 2016), available at https://www.dhs.gov/
obim-biometric-identification-services.
    \10\Office of Biometric Identity Mgmt., Dep't of Homeland Sec., 
supra note 5.
---------------------------------------------------------------------------
    In 2016, CBP took the first steps to implement biometric 
exit at select airports in the United States.\11\ Photographs 
of departing travelers on international flights will be 
captured as biometric data that validates exit from the 
U.S.\12\ CBP also launched a pilot that includes facial 
recognition biometric technology at airports.\13\ The pilot 
includes a number of privacy provisions so that the program 
adheres to current privacy laws and regulations.\14\ 
Additionally, no new biometric information is collected--the 
facial recognition images are matched against existing data, 
and CBP deletes facial images within hours.\15\
---------------------------------------------------------------------------
    \11\Biometric Air Exit, U.S. Customs & Border Protection, Dep't of 
Homeland Sec. (January 4, 2018), available at https://www.cbp.gov/
travel/biometrics/air-exit.
    \12\Id.
    \13\Id.
    \14\Id.
    \15\Id.
---------------------------------------------------------------------------
    On April 28, 2015, the Committee held a roundtable to 
examine DHS' efforts to implement a full biometric entry and 
exit system.\16\ Officials from DHS' Science and Technology 
Directorate, CBP, and Office of Policy, as well as a former 
counsel to the 9/11 Commission and the American Association of 
Airport Executives testified on the benefits, challenges, and 
implications of a full biometric entry and exit system.\17\ In 
her testimony, Janice Kephart, former counsel for the 9/11 
Commission, stated, ``Tracking the arrival and departure of 
foreign visitors to the United States is an essential part of 
immigration control, law enforcement and national 
security.''\18\
---------------------------------------------------------------------------
    \16\Securing the Border: Biometric Entry and Exit at our Ports of 
Entry: Roundtable Before the S. Comm. on Homeland Sec. & Governmental 
Affairs, 114th Cong. (2015).
    \17\Id.
    \18\Id. (testimony of Janice Kephart, former Counsel to the 
National Commission on Terrorist Attacks Upon the United States).
---------------------------------------------------------------------------
    This Act transfers OBIM from NPPD to the DHS Management 
Directorate. NPPD's mission is focused on the cybersecurity and 
physical security of the nation's critical infrastructure 
systems including election systems, government buildings, and 
other sectors.\19\ OBIM's mission is not appropriately aligned 
within NPPD's mission. On November 16, 2018, the President 
signed the Cybersecurity and Infrastructure Security Agency Act 
of 2018, an Act to reform NPPD and rename it the Cybersecurity 
and Infrastructure Security Agency (CISA).\20\ That legislation 
realigned CISA to focus squarely on cybersecurity and critical 
infrastructure protection. It also contains a provision to move 
OBIM out of NPPD and into the Management Directorate.
---------------------------------------------------------------------------
    \19\National Protection and Programs Directorate, Dep't of Homeland 
Sec. (July 14, 2017), available at https://www.dhs.gov/national-
protection-and-programs-directorate.
    \20\Pub. L. No. 115-278 (2018).
---------------------------------------------------------------------------
    Additionally, a 2018 DHS Office of Inspector General report 
highlighted concerns that DHS components, such as the 
Transportation Security Administration and CBP, are not 
properly coordinating or sharing their biometric data.\21\ 
Moving OBIM to the Management Directorate, as a direct report 
to the Secretary for Homeland Security, allows DHS to better 
integrate biometric systems and share information across DHS 
and the entire Federal Government. The purpose of the 
Management Directorate is to facilitate communication and 
clearly define responsibilities so that DHS components and 
offices are effective and efficient.\22\ The Act codifies OBIM 
for the first time, placing it within the Management 
Directorate, specifies the qualifications and duties of the 
Director of the office, and establishes a Deputy Director.
---------------------------------------------------------------------------
    \21\Dep't of Homeland Sec., Office of Inspector General, Progress 
Made, but CBP Faces Challenges Implementing a Biometric Capability to 
Track Air Passenger Departures Nationwide (OIG-18-80) (Sept. 21, 2018), 
available at https://www.oig.dhs.gov/sites/default/files/assets/2018-
09/OIG-18-80-Sep18.pdf.
    \22\Management Directorate, Dep't of Homeland Sec. (July 10, 2018), 
available at https://www.dhs.gov/directorate-management.
---------------------------------------------------------------------------

                        III. Legislative History

    Representative Martha McSally (R-AZ-2), along with 
Representatives Don Bacon (R-NE-2), Mike Gallagher (R-WI-8), 
Clay Higgins (R-LA-3), and Michael McCaul (R-TX-10), introduced 
H.R. 5206 on March 7, 2018. The bill was referred to the House 
Committee on Homeland Security. Representative John Katko (R-
NY-24) joined as a cosponsor on March 8, 2018. The House 
Committee on Homeland Security considered H.R. 5206 at a 
business meeting on June 6, 2018. The House of Representatives 
passed H.R. 5206 under suspension of the rules by voice vote on 
June 25, 2018.
    The Act was received in the Senate and referred to the 
Committee on Homeland Security and Governmental Affairs on June 
26, 2018. The Committee considered H.R. 5206 at a business 
meeting on September 26, 2018. During the business meeting, 
Senator Kamala Harris offered an amendment to require the OBIM 
Director to consult with DHS's Office of Civil Rights and Civil 
Liberties. The amendment and the Act as amended were agreed to 
by a voice vote en bloc. Senators Johnson, Portman, Lankford, 
Enzi, Hoeven, McCaskill, Carper, Heitkamp, Peters, Hassan, 
Harris, and Jones were present for both votes.
    Consistent with Committee Rule 11, the Committee reports 
the Act with a technical amendment by mutual agreement of the 
Chairman and Ranking Member.

        IV. Section-by-Section Analysis of the Act, as Reported

Section 1. Short title

    This section establishes the short title of the Act as the 
``Office of Biometric Identity Management Authorization Act of 
2018'' or the ``OBIM Authorization Act of 2018''.

Section 2. Establishment of the Office of Biometric Identity Management

    This section establishes the Office of Biometric Identity 
Management. This section moves OBIM from NPPD to the Management 
Directorate. It also identifies the qualifications and duties 
that the Director of OBIM shall perform and allows the Director 
to create offices within OBIM with a notification to Congress 
within 30 days. This section also establishes a Deputy Director 
of OBIM.

                   V. Evaluation of Regulatory Impact

    Pursuant to the requirements of paragraph 11(b) of rule 
XXVI of the Standing Rules of the Senate, the Committee has 
considered the regulatory impact of this Act and determined 
that the Act will have no regulatory impact within the meaning 
of the rules. The Committee agrees with the Congressional 
Budget Office's statement that the Act contains no 
intergovernmental or private-sector mandates as defined in the 
Unfunded Mandates Reform Act (UMRA) and would impose no costs 
on state, local, or tribal governments.

             VI. Congressional Budget Office Cost Estimate

                                     U.S. Congress,
                               Congressional Budget Office,
                                   Washington, DC, October 3, 2018.
Hon. Ron Johnson,
Chairman, Committee on Homeland Security and Governmental Affairs, U.S. 
        Senate, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for Department of Homeland 
Security legislation ordered reported by the Committee on 
Homeland Security and Governmental Affairs on September 26, 
2018.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Mark 
Grabowicz.
            Sincerely,
                                                Keith Hall,
                                                          Director.
    Enclosure.

Department of Homeland Security Legislation

    On September 26, the Senate Committee on Homeland Security 
and Governmental Affairs ordered two pieces of legislation to 
be reported:
       H.R. 5206, the Office of Biometric Identity 
Management Authorization Act of 2018; and
       H.R. 6439, the Biometric Identification 
Transnational Migration Alert Program Authorization Act of 
2018.
    Each act would mostly codify a current program in the 
Department of Homeland Security (DHS). CBO estimates that 
enacting the legislation would not significantly affect 
spending by DHS.
    Enacting the legislation would not affect direct spending 
or revenues; therefore, pay-as-you-go procedures do not apply.
    CBO estimates that enacting the legislation would not 
increase net direct spending or on-budget deficits in any of 
the four consecutive 10-year periods beginning in 2029.
    Neither act contains intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act.
    On June 28, 2018, CBO transmitted a cost estimate for H.R. 
5206 as reported by the House Committee on Homeland Security on 
June 21, 2018. On August 6, 2018, CBO transmitted a cost 
estimate for H.R. 6439 as ordered reported by the House 
Committee on Homeland Security on July 24, 2018. CBO's 
estimates of the two versions for each piece of legislation are 
the same.
    The CBO staff contact for this estimate is Mark Grabowicz. 
The estimate was reviewed by H. Samuel Papenfuss, Deputy 
Assistant Director for Budget Analysis.

       VII. Changes in Existing Law Made by the Act, as Reported

    In compliance with paragraph 12 of rule XXVI of the 
Standing Rules of the Senate, changes in existing law made by 
the Act, as reported, are shown as follows: (existing law 
proposed to be omitted is enclosed in brackets, new matter is 
printed in italic, and existing law in which no change is 
proposed is shown in roman):

HOMELAND SECURITY ACT OF 2002

           *       *       *       *       *       *       *

SEC. 1. SHORT TITLE; TABLE OF CONTENTS.

    (a) Short Title.--This Act may be cited as the ``Homeland 
Security Act of 2002.''
    (b) Table of Contents.--The table of contents for this Act 
is as follows:

Sec. 1. * * *
     * * * * * * *

                          TITLE VII--MANAGEMENT

     * * * * * * *
Sec. 710. Office of Biometric Identity Management.

           *       *       *       *       *       *       *

TITLE VII--MANAGEMENT

           *       *       *       *       *       *       *

SEC. 710. OFFICE OF BIOMETRIC IDENTITY MANAGEMENT.

    (a) Establishment.--The Office of Biometric Identity 
management is established within the Management Directorate of 
the Department.
    (b) Director.--
          (1) In general.--The Office of Biometric Identity 
        Management shall be administered by the Director of the 
        Office of Biometric Identity Management (in this 
        section referred to as the ``Director'') who shall 
        report to the Secretary, or to another official of the 
        Department, as the Secretary may direct.
          (2) Qualifications and duties.--The Director shall--
                  (A) have significant professional management 
                experience, as well as experience in the field 
                of biometrics and identity management;
                  (B) lead the Department's biometric identity 
                services to support anti-terrorism, 
                counterterrorism, border security, 
                credentialing, national security, and public 
                safety;
                  (C) enable operational missions across the 
                Department by receiving, matching, storing, 
                sharing, and analyzing biometric and associated 
                biographic and encounter data;
                  (D) deliver biometric identity information 
                and analysis capabilities to--
                          (i) the Department and its 
                        components;
                          (ii) appropriate Federal, State, 
                        local, and tribal agencies;
                          (iii) appropriate foreign 
                        governments; and
                          (iv) appropriate private sector 
                        entities;
                  (E) support the law enforcement, public 
                safety, national security, and homeland 
                security missions of other Federal, State, 
                local, and tribal agencies, as appropriate;
                  (F) manage the operation of the Department's 
                primary biometric repository and identification 
                system;
                  (G) manage Biometric Support Centers to 
                provide biometric identification and 
                verification analysis and services to the 
                Department, appropriate Federal, State, local, 
                and tribal agencies, appropriate foreign 
                governments, and appropriate private sector 
                entities;
                  (H) oversee the implementation of Department-
                wide standards for biometric conformity, and 
                work to make such standards Government-wide;
                  (I) in coordination with the Department's 
                Office of Strategy, Policy, and Plans, and in 
                consultation with relevant component offices 
                and headquarters offices, enter into data 
                sharing agreements with appropriate Federal, 
                State, local, and foreign agencies to support 
                immigration, law enforcement, national 
                security, and public safety missions;
                  (J) maximize interoperability with other 
                Federal, State, local, and foreign biometric 
                systems, as appropriate;
                  (K) ensure the activities of the Office of 
                Biometric Identity Management are carried out 
                in compliance with the policies and procedures 
                established by the Privacy Officer appointed 
                under section 222;
                  (L) consult with the Office for Civil Rights 
                and Civil Liberties of the Department about 
                biometric technologies that may result in 
                disparities in the treatment of individuals on 
                the basis of their race or ethnicity; and
                  (M) carry out other duties and powers 
                prescribed by law or delegated by the 
                Secretary.
    (c) Deputy Director.--There shall be in the Office of 
Biometric Identity Management a Deputy Director, who shall 
assist the Director in the management of the Office.
    (d) Other Authorities.--
          (1) In general.--The Director may establish such 
        other offices within the Office of Biometric Identity 
        Management as the Director determines necessary to 
        carry out the missions, duties, functions, and 
        authorities of the Office.
          (2) Notification.--If the Director exercises the 
        authority provided by paragraph (1), the Director shall 
        notify the Committee on Homeland Security of the House 
        of Representatives and the Committee on Homeland 
        Security and Governmental Affairs of the Senate not 
        later than 30 days before exercising such authority.

                                  [all]
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