49 U.S.C. § 40130 — FAA authority to conduct criminal his-

Page 1111 TITLE 49—TRANSPORTATION § 40130 (2) VIEWS.—The Administrator may obtain the views of interested parties in issuing the guidelines. (d) EFFECT OF DETERMINATION OF EXISTENCE OF CAPACITY REDUCTION EVENT.—Upon a determina- tion by the Administrator that a capacity reduc- tion event exists, the Administrator may au- thorize air carriers and foreign air carriers oper- ating at an airport participating in the pilot program to communicate for a period of time not to exceed 24 hours with each other con- cerning changes in their respective flight sched- ules in order to use air traffic capacity most ef- fectively. The Administration shall facilitate and monitor such communication. The Attorney General, or the Attorney General’s designee, may monitor such communication. (e) SELECTION OF PARTICIPATING AIRPORTS.— Not later than 30 days after the date on which the Administrator establishes the pilot pro- gram, the Administrator shall select 2 airports to participate in the pilot program from among the most capacity-constrained airports in the Nation based on the Administration’s Airport Capacity Benchmark Report 2001 or more recent data on airport capacity that is available to the Administrator. The Administrator shall select an airport for participation in the pilot program if the Administrator determines that collabo- rative decisionmaking among air carriers and foreign air carriers would reduce delays at the airport and have beneficial effects on reducing delays in the national airspace system as a whole. (f) ELIGIBILITY OF AIR CARRIERS.—An air car- rier or foreign air carrier operating at an airport selected to participate in the pilot program is eligible to participate in the pilot program if the Administrator determines that the carrier has the operational and communications capability to participate in the pilot program. (g) MODIFICATION OR TERMINATION OF PILOT PROGRAM AT AN AIRPORT.—The Administrator, with the concurrence of the Attorney General, may modify or end the pilot program at an air- port before the term of the pilot program has ex- pired, or may ban an air carrier or foreign air carrier from participating in the program, if the Administrator determines that the purpose of the pilot program is not being furthered by par- ticipation of the airport or air carrier or if the Secretary of Transportation, with the concur- rence of the Attorney General, finds that the pilot program or the participation of an air car- rier or foreign air carrier in the pilot program has had, or is having, an adverse effect on com- petition among carriers. (h) ANTITRUST IMMUNITY.— (1) IN GENERAL.—Unless, within 5 days after receiving notice from the Secretary of the Secretary’s intention to exercise authority under this subsection, the Attorney General submits to the Secretary a written objection to such action, including reasons for such ob- jection, the Secretary may exempt an air car- rier’s or foreign air carrier’s activities that are necessary to participate in the pilot pro- gram under this section from the antitrust laws for the sole purpose of participating in the pilot program. Such exemption shall not extend to any discussions, agreements, or ac- tivities outside the scope of the pilot program. (2) ANTITRUST LAWS DEFINED.—In this sec- tion, the term ‘‘antitrust laws’’ has the mean- ing given that term in the first section of the Clayton Act (15 U.S.C. 12). (i) CONSULTATION WITH ATTORNEY GENERAL.— The Secretary shall consult with the Attorney General regarding the design and implementa- tion of the pilot program, including determining whether a limit should be set on the number of occasions collaborative decisionmaking could be employed during the initial 2-year period of the pilot program. (j) EVALUATION.— (1) IN GENERAL.—Before the expiration of the 2-year period for which the pilot program is authorized under subsection (b), the Adminis- trator shall determine whether the pilot pro- gram has facilitated more effective use of air traffic capacity and the Secretary, with the concurrence of the Attorney General, shall de- termine whether the pilot program has had an adverse effect on airline competition or the availability of air services to communities. The Administrator shall also examine whether capacity benefits resulting from the participa- tion in the pilot program of an airport re- sulted in capacity benefits to other parts of the national airspace system. (2) OBTAINING NECESSARY DATA.—The Admin- istrator may require participating air carriers and airports to provide data necessary to evaluate the pilot program’s impact. (k) EXTENSION OF PILOT PROGRAM.—At the end of the 2-year period for which the pilot program is authorized, the Administrator, with the con- currence of the Attorney General, may continue the pilot program for an additional 2 years and expand participation in the program to up to 7 additional airports if the Administrator deter- mines pursuant to subsection (j) that the pilot program has facilitated more effective use of air traffic capacity and if the Secretary, with the concurrence of the Attorney General, deter- mines that the pilot program has had no adverse effect on airline competition or the availability of air services to communities. The Adminis- trator shall select the additional airports to par- ticipate in the extended pilot program in the same manner in which airports were initially se- lected to participate. (Added Pub. L. 108–176, title IV, § 423(a), Dec. 12, 2003, 117 Stat. 2552.) Editorial Notes REFERENCES IN TEXT The date of enactment of this section, referred to in subsec. (a), is the date of enactment of Pub. L. 108–176, which was approved Dec. 12, 2003. Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section applicable only to fiscal years beginning after Sept. 30, 2003, except as otherwise specifically pro- vided, see section 3 of Pub. L. 108–176, set out as an Ef- fective Date of 2003 Amendment note under section 106 of this title. § 40130. FAA authority to conduct criminal his- tory record checks (a) CRIMINAL HISTORY BACKGROUND CHECKS.— Page 1112 TITLE 49—TRANSPORTATION § 40131 (1) ACCESS TO INFORMATION.—The Adminis- trator of the Federal Aviation Administration, for certification purposes of the Administra- tion only, is authorized— (A) to conduct, in accordance with the es- tablished request process, a criminal history background check of an airman in the crimi- nal repositories of the Federal Bureau of In- vestigation and States by submitting posi- tive identification of the airman to a finger- print-based repository in compliance with section 217 of the National Crime Prevention and Privacy Compact Act of 1998 (34 U.S.C. 40316); and (B) to receive relevant criminal history record information regarding the airman checked. (2) RELEASE OF INFORMATION.—In accessing a repository referred to in paragraph (1), the Ad- ministrator shall be subject to the conditions and procedures established by the Department of Justice or the State, as appropriate, for other governmental agencies conducting back- ground checks for noncriminal justice pur- poses. (3) LIMITATION.—The Administrator may not use the authority under paragraph (1) to con- duct criminal investigations. (4) REIMBURSEMENT.—The Administrator may collect reimbursement to process the fin- gerprint-based checks under this subsection, to be used for expenses incurred, including Federal Bureau of Investigation fees, in pro- viding these services. (b) DESIGNATED EMPLOYEES.—The Adminis- trator shall designate, by order, employees of the Administration who may carry out the au- thority described in subsection (a). (Added Pub. L. 112–95, title VIII, § 802(a), Feb. 14, 2012, 126 Stat. 118; amended Pub. L. 118–63, title XI, § 1101(h), May 16, 2024, 138 Stat. 1413.) Editorial Notes AMENDMENTS 2024—Subsec. (a)(1)(A). Pub. L. 118–63 substituted ‘‘(34 U.S.C. 40316)’’ for ‘‘(42 U.S.C. 14616)’’. § 40131. National airspace system cyber threat management process (a) ESTABLISHMENT.—The Administrator of the Federal Aviation Administration, in consulta- tion with the heads of other agencies as the Ad- ministrator determines necessary, shall estab- lish a national airspace system cyber threat management process to protect the national air- space system cyber environment, including the safety, security, and efficiency of air navigation services provided by the Administration. (b) ISSUES TO BE ADDRESSED.—In establishing the national airspace system cyber threat man- agement process under subsection (a), the Ad- ministrator shall, at a minimum— (1) monitor the national airspace system for significant cybersecurity incidents; (2) in consultation with appropriate Federal agencies, evaluate the cyber threat landscape for the national airspace system, including up- dating such evaluation on both annual and threat-based timelines; (3) conduct national airspace system cyber incident analyses; (4) create a cyber common operating picture for the national airspace system cyber envi- ronment; (5) coordinate national airspace system sig- nificant cyber incident responses with other appropriate Federal agencies; (6) track significant cyber incident detec- tion, response, mitigation implementation, re- covery, and closure; (7) establish a process, or utilize existing processes, to share relevant significant cyber incident data related to the national airspace system; (8) facilitate significant cybersecurity re- porting, including through the Cybersecurity and Infrastructure Agency; and (9) consider any other matter the Adminis- trator determines appropriate. (c) DEFINITIONS.—In this section: (1) CYBER COMMON OPERATING PICTURE.—The term ‘‘cyber common operating picture’’ means the correlation of a detected cyber inci- dent or cyber threat in the national airspace system and other operational anomalies to provide a holistic view of potential cause and impact. (2) CYBER ENVIRONMENT.—The term ‘‘cyber environment’’ means the information environ- ment consisting of the interdependent net- works of information technology infrastruc- tures and resident data, including the inter- net, telecommunications networks, computer systems, and embedded processors and con- trollers. (3) CYBER INCIDENT.—The term ‘‘cyber inci- dent’’ means an action that creates noticeable degradation, disruption, or destruction to the cyber environment and causes a safety or other negative impact on operations of— (A) the national airspace system; (B) civil aircraft; or (C) aeronautical products and articles. (4) CYBER THREAT.—The term ‘‘cyber threat’’ means the threat of an action that, if carried out, would constitute a cyber incident or an electronic attack. (5) ELECTRONIC ATTACK.—The term ‘‘elec- tronic attack’’ means the use of electro- magnetic spectrum energy to impede oper- ations in the cyber environment, including through techniques such as jamming or spoof- ing. (6) SIGNIFICANT CYBER INCIDENT.—The term ‘‘significant cyber incident’’ means a cyber in- cident, or a group of related cyber incidents, that the Administrator determines is likely to result in demonstrable harm to the national airspace system of the United States. (Added Pub. L. 118–63, title III, § 393(a), May 16, 2024, 138 Stat. 1144.) Statutory Notes and Related Subsidiaries CYBERSECURITY LEAD Pub. L. 118–63, title II, § 217, May 16, 2024, 138 Stat. 1055, provided that: ‘‘(a) IN GENERAL.—The Administrator [of the Federal Aviation Administration] shall designate an executive