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§ 44936. Employment investigations and restrictions

Version history — every release point where this text changed

Release point 115-35 · current through 05/17/2017

§ 44936.

Employment investigations and restrictions

(a)

Employment Investigation Requirement.—

(1)
(A)

The Under Secretary of Transportation for Security shall require by regulation that an employment investigation, including a criminal history record check and a review of available law enforcement data bases and records of other governmental and international agencies to the extent determined practicable by the Under Secretary of Transportation for Transportation Security,,1

1 So in original.
shall be conducted of each individual employed in, or applying for, a position as a security screener under section 44935(e) or a position in which the individual has unescorted access, or may permit other individuals to have unescorted access, to—

(i)

aircraft of an air carrier or foreign air carrier; or

(ii)

a secured area of an airport in the United States the Under Secretary designates that serves an air carrier or foreign air carrier.

(B)

The Under Secretary shall require by regulation that an employment investigation (including a criminal history record check and a review of available law enforcement data bases and records of other governmental and international agencies to the extent determined practicable by the Under Secretary of Transportation for Transportation Security) be conducted for—

(i)

individuals who are responsible for screening passengers or property under section 44901 of this title;

(ii)

supervisors of the individuals described in clause (i);

(iii)

individuals who regularly have escorted access to aircraft of an air carrier or foreign air carrier or a secured area of an airport in the United States the Administrator designates that serves an air carrier or foreign air carrier; and

(iv)

such other individuals who exercise security functions associated with baggage or cargo, as the Under Secretary determines is necessary to ensure air transportation security.

(C)
Background checks of current employees.—
(i)

A new background check (including a criminal history record check and a review of available law enforcement data bases and records of other governmental and international agencies to the extent determined practicable by the Under Secretary of Transportation for Transportation Security 2

2 So in original. Probably should be followed by a closing parenthesis.
shall be required for any individual who is employed in a position described in subparagraphs (A) and (B) on the date of enactment of the Aviation and Transportation Security Act.

(ii)

The Under Secretary may provide by order (without regard to the provisions of chapter 5 of title 5, United States Code) for a phased-in implementation of the requirements of this subparagraph.

(D)
Exemption.—

An employment investigation, including a criminal history record check, shall not be required under this subsection for an individual who is exempted under section 107.31(m)(1) or (2) of title 14, Code of Federal Regulations, as in effect on

November 22, 2000
. The Under Secretary shall work with the International Civil Aviation Organization and with appropriate authorities of foreign countries to ensure that individuals exempted under this subparagraph do not pose a threat to aviation or national security.

(2)

An air carrier, foreign air carrier, airport operator, or government that employs, or authorizes or makes a contract for the services of, an individual in a position described in paragraph (1) of this subsection shall ensure that the investigation the Under Secretary requires is conducted.

(3)

The Under Secretary shall provide for the periodic audit of the effectiveness of criminal history record checks conducted under paragraph (1) of this subsection.

(b)

Prohibited Employment.—

(1)

Except as provided in paragraph (3) of this subsection, an air carrier, foreign air carrier, airport operator, or government may not employ, or authorize or make a contract for the services of, an individual in a position described in subsection (a)(1) of this section if—

(A)

the investigation of the individual required under this section has not been conducted; or

(B)

the results of that investigation establish that, in the 10-year period ending on the date of the investigation, the individual was convicted (or found not guilty by reason of insanity) of—

(i)

a crime referred to in section 46306, 46308, 46312, 46314, or 46315 or chapter 465 of this title or section 32 of title 18;

(ii)

murder;

(iii)

assault with intent to murder;

(iv)

espionage;

(v)

sedition;

(vi)

treason;

(vii)

rape;

(viii)

kidnapping;

(ix)

unlawful possession, sale, distribution, or manufacture of an explosive or weapon;

(x)

extortion;

(xi)

armed or felony unarmed robbery;

(xii)

distribution of, or intent to distribute, a controlled substance;

(xiii)

a felony involving a threat;

(xiv)

a felony involving—

(I)

willful destruction of property;

(II)

importation or manufacture of a controlled substance;

(III)

burglary;

(IV)

theft;

(V)

dishonesty, fraud, or misrepresentation;

(VI)

possession or distribution of stolen property;

(VII)

aggravated assault;

(VIII)

bribery; and

(IX)

illegal possession of a controlled substance punishable by a maximum term of imprisonment of more than 1 year, or any other crime classified as a felony that the Under Secretary determines indicates a propensity for placing contraband aboard an aircraft in return for money; or

(xv)

conspiracy to commit any of the acts referred to in clauses (i) through (xiv).

(2)

The Under Secretary may specify other factors that are sufficient to prohibit the employment of an individual in a position described in subsection (a)(1) of this section.

(3)

An air carrier, foreign air carrier, airport operator, or government may employ, or authorize or contract for the services of, an individual in a position described in subsection (a)(1) of this section without carrying out the investigation required under this section, if the Under Secretary approves a plan to employ the individual that provides alternate security arrangements.

(c)

Fingerprinting and Record Check Information.—

(1)

If the Under Secretary requires an identification and criminal history record check, to be conducted by the Attorney General, as part of an investigation under this section, the Under Secretary shall designate an individual to obtain fingerprints and submit those fingerprints to the Attorney General. The Attorney General may make the results of a check available to an individual the Under Secretary designates. Before designating an individual to obtain and submit fingerprints or receive results of a check, the Under Secretary shall consult with the Attorney General. All Federal agencies shall cooperate with the Under Secretary and the Under Secretary’s designee in the process of collecting and submitting fingerprints.

(2)

The Under Secretary shall prescribe regulations on—

(A)

procedures for taking fingerprints; and

(B)

requirements for using information received from the Attorney General under paragraph (1) of this subsection—

(i)

to limit the dissemination of the information; and

(ii)

to ensure that the information is used only to carry out this section.

(3)

If an identification and criminal history record check is conducted as part of an investigation of an individual under this section, the individual—

(A)

shall receive a copy of any record received from the Attorney General; and

(B)

may complete and correct the information contained in the check before a final employment decision is made based on the check.

(d)

Fees and Charges.—

The Under Secretary and the Attorney General shall establish reasonable fees and charges to pay expenses incurred in carrying out this section. The employer of the individual being investigated shall pay the costs of a record check of the individual. Money collected under this section shall be credited to the account in the Treasury from which the expenses were incurred and are available to the Under Secretary and the Attorney General for those expenses.

(e)

When Investigation or Record Check Not Required.—

This section does not require an investigation or record check when the investigation or record check is prohibited by a law of a foreign country.

Source(Pub. L. 103–272, § 1(e),
July 5, 1994
, 108 Stat. 1218; Pub. L. 104–264, title III, §§ 304(a), 306, title V, § 502(a),
Oct. 9, 1996
, 110 Stat. 3251, 3252, 3259; Pub. L. 105–102, § 2(25),
Nov. 20, 1997
, 111 Stat. 2205; Pub. L. 105–142, § 1,
Dec. 5, 1997
, 111 Stat. 2650; Pub. L. 106–181, title V, § 508,
Apr. 5, 2000
, 114 Stat. 140; Pub. L. 106–528, § 2(c), (d),
Nov. 22, 2000
, 114 Stat. 2517, 2518; Pub. L. 107–71, title I, §§ 101(f)(7), (9), 111(b), 138(a), (b)(1), 140(a)(1),
Nov. 19, 2001
, 115 Stat. 603, 620, 639–641.)
Notes
Historical and Revision Notes
Pub. L. 103–272
Revised
Section
Source (U.S. Code)
Source (Statutes at Large)
44936(a)
49 App.:1357(g)(1).
Aug. 23, 1958, Pub. L. 85–726, 72 Stat. 731, § 316(g); added Nov. 16, 1990, Pub. L. 101–604, § 105(a), 104 Stat. 3071.
 
49 App.:1357 (note).
Oct. 28, 1991, Pub. L. 102–143, § 346, 105 Stat. 949.
44936(b)
49 App.:1357(g)(3).
44936(c)
49 App.:1357(g)(2) (less (A) (2d sentence)).
44936(d)
49 App.:1357(g)(2)(A) (2d sentence), (5).
44936(e)
49 App.:1357(g)(4).
In subsection (a), the text of section 346 of the Department of Transportation and Related Agencies Appropriations Act, 1992 (Public Law 102–143, 105 Stat. 949) is omitted as executed.
In subsection (a)(2), the words “shall ensure” are substituted for “shall take such actions as may be necessary to ensure” to eliminate unnecessary words. The word “conducted” is substituted for “performed” for consistency in the revised title.
In subsection (b)(2), the words “The Administrator may specify” are substituted for “The Administrator may specify . . . the Administrator determines” to eliminate unnecessary words. The words “prohibit the employment of an individual” are substituted for “make an individual ineligible for employment” for clarity.
In subsection (b)(3), the words “may employ” are substituted for “It shall not be a violation of subparagraph (A) for . . . to employ” to eliminate unnecessary words.
In subsection (c)(1), the words “Before designating an individual to obtain and submit fingerprints or receive results of a check, the Administrator shall consult with the Attorney General” are substituted for “after consultation with the Attorney General” for clarity.
In subsection (c)(2), before clause (A), the words “For purposes of administering this subsection” are omitted as unnecessary. In clause (A), the word “implement” is omitted as unnecessary because of the restatement. In clause (B), before subclause (ii), the word “establish” is omitted as unnecessary because of the restatement. In subclause (ii), the words “to carry out this section” are substituted for “for the purposes of this section” for clarity.
In subsection (e), the words “a law of a foreign country” are substituted for “applicable laws of a foreign government” for clarity and consistency in the revised title and with other titles of the United States Code.

Pub. L. 105–102

This amends 49:44936(f)(1)(C) to reflect the redesignation of 49:30305(b)(7) as 49:30305(b)(8) by section 207(b) of the Coast Guard Authorization Act of 1996 (Public Law 104–324, 110 Stat. 3908).

References in Text

The date of enactment of the Aviation and Transportation Security Act, referred to in subsec. (a)(1)(C)(i), is the date of enactment of Pub. L. 107–71, which was approved
Nov. 19, 2001
.

Amendments

2001—Subsec. (a)(1)(A). Pub. L. 107–71, § 138(a)(1), inserted “and a review of available law enforcement data bases and records of other governmental and international agencies to the extent determined practicable by the Under Secretary of Transportation for Transportation Security,” after “record check” in introductory provisions.
Pub. L. 107–71, § 111(b)(1), inserted “as a security screener under section 44935(e) or a position” after “a position” in introductory provisions.
Pub. L. 107–71, § 101(f)(7), (9), in introductory provisions, substituted “Under Secretary” for “Administrator” and “of Transportation for Security” for “of the Federal Aviation Administration”.
Subsec. (a)(1)(A)(ii). Pub. L. 107–71, § 101(f)(7), substituted “Under Secretary” for “Administrator”.
Subsec. (a)(1)(B). Pub. L. 107–71, § 138(a)(2), in introductory provisions, substituted “and a review of available law enforcement data bases and records of other governmental and international agencies to the extent determined practicable by the Under Secretary of Transportation for Transportation Security” for “in any case described in subparagraph (C)”.
Pub. L. 107–71, § 101(f)(7), substituted “Under Secretary” for “Administrator” in introductory provisions.
Subsec. (a)(1)(B)(i). Pub. L. 107–71, § 138(a)(3), substituted “are” for “will be”.
Subsec. (a)(1)(B)(ii). Pub. L. 107–71, § 138(a)(4), struck out “and” after semicolon.
Subsec. (a)(1)(B)(iii). Pub. L. 107–71, § 138(a)(6), added cl. (iii). Former cl. (iii) redesignated (iv).
Pub. L. 107–71, § 101(f)(7), substituted “Under Secretary” for “Administrator”.
Subsec. (a)(1)(B)(iv). Pub. L. 107–71, § 138(a)(5), redesignated cl. (iii) as (iv).
Subsec. (a)(1)(C). Pub. L. 107–71, § 138(a)(7), (8), added subpar. (C) and struck out former subpar (C) which related to criminal history record checks.
Subsec. (a)(1)(D). Pub. L. 107–71, § 138(a)(7), (9), (10), redesignated subpar. (F) as (D), substituted “107.31(m)(1) or (2)” for “107.31(m)” and “
November 22, 2000
. The Under Secretary shall work with the International Civil Aviation Organization and with appropriate authorities of foreign countries to ensure that individuals exempted under this subparagraph do not pose a threat to aviation or national security” for “the date of enactment of this subparagraph” and struck out former subpar. (D) which allowed a supervised employee to remain in position until completion of record check.
Subsec. (a)(1)(E). Pub. L. 107–71, § 138(a)(7), struck out subpar. (E) which related to criminal history record checks for screeners and others.
Subsec. (a)(1)(E)(iv). Pub. L. 107–71, § 111(b)(2), struck out cl. (iv) which related to effective dates for subpar. (E).
Subsec. (a)(1)(F). Pub. L. 107–71, § 138(a)(7), redesignated subpar. (F) as (D).
Subsec. (a)(2). Pub. L. 107–71, §§ 107(f)(7), 138(a)(11), substituted “carrier, airport operator, or government” for “carrier, or airport operator” and “Under Secretary” for “Administrator”.
Subsec. (a)(3). Pub. L. 107–71, § 101(f)(7), substituted “Under Secretary” for “Administrator”.
Subsec. (b)(1). Pub. L. 107–71, § 138(a)(12), substituted “carrier, airport operator, or government” for “carrier, or airport operator” in introductory provisions.
Subsec. (b)(1)(B)(xiv)(IX). Pub. L. 107–71, § 101(f)(7), substituted “Under Secretary” for “Administrator”.
Subsec. (b)(2). Pub. L. 107–71, § 101(f)(7), substituted “Under Secretary” for “Administrator”.
Subsec. (b)(3). Pub. L. 107–71, §§ 101(f)(7), 138(a)(13), substituted “carrier, airport operator, or government” for “carrier, or airport operator” and “Under Secretary” for “Administrator”.
Subsec. (c)(1). Pub. L. 107–71, § 138(a)(14), inserted at end “All Federal agencies shall cooperate with the Under Secretary and the Under Secretary’s designee in the process of collecting and submitting fingerprints.”
Pub. L. 107–71, § 101(f)(7), substituted “Under Secretary” for “Administrator” wherever appearing.
Subsec. (c)(2). Pub. L. 107–71, § 101(f)(7), substituted “Under Secretary” for “Administrator” in introductory provisions.
Subsec. (d). Pub. L. 107–71, § 101(f)(7), substituted “Under Secretary” for “Administrator” in two places.
Subsecs. (f) to (h). Pub. L. 107–71, §§ 138(b)(1), 140(a)(1), amended section identically, redesignating subsecs. (f) to (h) as (h) to (j), respectively, of section 44703 of this title.
2000—Subsec. (a)(1)(A). Pub. L. 106–528, § 2(c)(1), in introductory provisions, struck out “, as the Administrator decides is necessary to ensure air transportation security,” after “shall be conducted”.
Subsec. (a)(1)(C)(v). Pub. L. 106–181, § 508(a), added cl. (v).
Subsec. (a)(1)(D). Pub. L. 106–528, § 2(c)(2), substituted “in the position for which the individual applied” for “as a screener”.
Subsec. (a)(1)(E), (F). Pub. L. 106–528, § 2(c)(3), added subpars. (E) and (F).
Subsec. (b)(1)(B). Pub. L. 106–528, § 2(d)(1), inserted “(or found not guilty by reason of insanity)” after “convicted” in introductory provisions.
Subsec. (b)(1)(B)(xi). Pub. L. 106–528, § 2(d)(2), inserted “or felony unarmed” after “armed”.
Subsec. (b)(1)(B)(xiii) to (xv). Pub. L. 106–528, § 2(d)(3)–(5), added cls. (xiii) and (xiv), redesignated former cl. (xiii) as (xv), and in cl. (xv) substituted “clauses (i) through (xiv)” for “clauses (i)–(xii) of this paragraph”.
Subsec. (f)(1)(B). Pub. L. 106–181, § 508(b)(1), inserted “(except a branch of the United States Armed Forces, the National Guard, or a reserve component of the United States Armed Forces)” after “other person” in introductory provisions.
Subsec. (f)(1)(B)(ii). Pub. L. 106–181, § 508(b)(2), substituted “individual’s performance as a pilot” for “individual” in introductory provisions.
Subsec. (f)(5). Pub. L. 106–181, § 508(b)(3), inserted before period at end of first sentence “; except that, for purposes of paragraph (15), the Administrator may allow an individual designated by the Administrator to accept and maintain written consent on behalf of the Administrator for records requested under paragraph (1)(A)”.
Subsec. (f)(13). Pub. L. 106–181, § 508(b)(4)(A), substituted “shall” for “may” in introductory provisions.
Subsec. (f)(13)(A)(i). Pub. L. 106–181, § 508(b)(4)(B), inserted “and disseminated under paragraph (15)” after “requested under paragraph (1)”.
Subsec. (f)(14)(B). Pub. L. 106–181, § 508(b)(5), inserted “or from a foreign government or entity that employed the individual” after “exists”.
Subsec. (f)(15). Pub. L. 106–181, § 508(b)(6), added par. (15).
1997—Subsec. (f)(1). Pub. L. 105–142, § 1(1), substituted “Subject to paragraph (14), before allowing an individual to begin service” for “Before hiring an individual” in introductory provisions.
Subsec. (f)(1)(B). Pub. L. 105–142, § 1(2), inserted “as a pilot of a civil or public aircraft” before “at any time” in introductory provisions.
Subsec. (f)(1)(C). Pub. L. 105–102 substituted “section 30305(b)(8) of this title” for “section 30305(b)(7)”.
Subsec. (f)(4). Pub. L. 105–142, § 1(3), inserted “and air carriers” after “Administrator” and substituted “paragraphs (1)(A) and (1)(B)” for “paragraph (1)(A)”.
Subsec. (f)(5). Pub. L. 105–142, § 1(4), substituted “this subsection” for “this paragraph”.
Subsec. (f)(10). Pub. L. 105–142, § 1(5), inserted “who is or has been” before “employed” and “, but not later than 30 days after the date” after “reasonable time”.
Subsec. (f)(14). Pub. L. 105–142, § 1(6), added par. (14).
1996—Subsec. (a)(1). Pub. L. 104–264, § 304(a), designated existing provisions as subpar. (A), redesignated former subpars. (A) and (B) of par. (1) as cls. (i) and (ii) of subpar. (A), respectively, and added subpars. (B) to (D).
Subsec. (a)(3). Pub. L. 104–264, § 306, added par. (3).
Subsecs. (f) to (h). Pub. L. 104–264, § 502(a), added subsecs. (f) to (h).

Effective Date of 2000 Amendments

Amendment by Pub. L. 106–528 effective 30 days after
Nov. 22, 2000
, see section 9 of Pub. L. 106–528, set out as a note under section 106 of this title.
Amendment by Pub. L. 106–181 applicable only to fiscal years beginning after
Sept. 30, 1999
, see section 3 of Pub. L. 106–181, set out as a note under section 106 of this title.

Effective Date of 1996 Amendment

Pub. L. 104–264, title III, § 304(b),
Oct. 9, 1996
, 110 Stat. 3252, provided that:
“The amendment made by subsection (a)(3) [amending this section] shall apply to individuals hired to perform functions described in section 44936(a)(1)(B) of title 49, United States Code, after the date of the enactment of this Act [
Oct. 9, 1996
]; except that the Administrator of the Federal Aviation Administration may, as the Administrator determines to be appropriate, require such employment investigations or criminal history records checks for individuals performing those functions on the date of the enactment of this Act.”
Amendment by section 502(a) of Pub. L. 104–264 applicable to any air carrier hiring an individual as a pilot whose application was first received by the carrier on or after the 120th day following
Oct. 9, 1996
, see section 502(d) of Pub. L. 104–264, set out as a note under section 30305 of this title.
Except as otherwise specifically provided, amendment by Pub. L. 104–264 applicable only to fiscal years beginning after
Sept. 30, 1996
, and not to be construed as affecting funds made available for a fiscal year ending before
Oct. 1, 1996
, see section 3 of Pub. L. 104–264, set out as a note under section 106 of this title.

Transfer of Functions

For transfer of functions, personnel, assets, and liabilities of the Transportation Security Administration of the Department of Transportation, including the functions of the Secretary of Transportation, and of the Under Secretary of Transportation for Security, relating thereto, to the Secretary of Homeland Security, and for treatment of related references, see sections 203(2), 551(d), 552(d), and 557 of Title 6, Domestic Security, and the Department of Homeland Security Reorganization Plan of
November 25, 2002
, as modified, set out as a note under section 542 of Title 6.

Criminal History Record Checks

Pub. L. 106–528, § 2(a), (b),
Nov. 22, 2000
, 114 Stat. 2517, provided that:
“(a)

Expansion of FAA Electronic Pilot Program.—

“(1)

In general.—

Not later than 2 years after the date of enactment of this Act [

Nov. 22, 2000
], the Administrator of the Federal Aviation Administration shall develop, in consultation with the Office of Personnel Management and the Federal Bureau of Investigation, the pilot program for individual criminal history record checks (known as the electronic fingerprint transmission pilot project) into an aviation industry-wide program.

“(2)

Limitation.—

The Administrator shall not require any airport, air carrier, or screening company to participate in the program described in subsection (a) if the airport, air carrier, or screening company determines that it would not be cost effective for it to participate in the program and notifies the Administrator of that determination.

“(b)

Application of Expanded Program.—

“(1)

Interim report.—

Not later than 1 year after the date of enactment of this Act [

Nov. 22, 2000
], the Administrator shall transmit to the Committee on Commerce, Science, and Transportation of the Senate and the Committee on Transportation and Infrastructure of the House of Representatives a report describing the status of the Administrator’s efforts to utilize the program described in subsection (a).

“(2)

Notification concerning sufficiency of operation.—

If the Administrator determines that the program described in subsection (a) is not sufficiently operational 2 years after the date of enactment of this Act to permit its utilization in accordance with subsection (a), the Administrator shall notify the committees referred to in paragraph (1) of that determination.”

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