---
kind: "section"
citation: "49 C.F.R. § 209.329"
title: "49"
number: "209.329"
heading: "Assessment considerations."
url: "https://uscodex.org/cfr/49/209.329"
---

# §209.329. Assessment considerations.

- (a) Proof of a respondent's willful violation of one of the requirements of parts [213](/cfr/49/part213.md) through [241](/cfr/49/part241.md) (excluding parts [225](/cfr/49/part225.md), [228](/cfr/49/part228.md), and 233) of this title, or of one of the requirements of 49 U.S.C. Chapt. 51, or any regulation or order prescribed thereunder, establishes a rebuttable presumption that the respondent is unfit to perform the safety-sensitive functions described in [§ 209.303](/cfr/49/209.303.md). Where such presumption arises, the respondent has the burden of establishing that, taking account of the factors in [paragraph (b)](#b) of this section, he or she is fit to perform the foregoing safety-sensitive functions for the period and under the other conditions, if any, proposed in the notice of proposed disqualification.
- (b) In determining respondent's lack of fitness to perform safety-sensitive functions and the duration and other conditions, if any, of appropriate disqualification orders under §§ [209.309](/cfr/49/209.309.md), [209.323](/cfr/49/209.323.md), and [209.327](/cfr/49/209.327.md), the factors to be considered, to the extent each is pertinent to the respondent's case, include but are not limited to the following:
  - (1) The nature and circumstances of the violation, including whether the violation was intentional, technical, or inadvertent, was committed willfully, or was frequently repeated;
  - (2) The adverse impact or the potentially adverse impact of the violation on the health and safety of persons and the safety of property;
  - (3) The employing railroad's operating rules, safety rules, and repair and maintenance standards;
  - (4) Repair and maintenance standards adopted by the railroad industry;
  - (5) The consistency of the conditions of the proposed disqualification with disqualification orders issued against other employees of the employing railroad for the same or similar violations;
  - (6) Whether the respondent was on notice of any safety regulations that were violated or whether the respondent had been warned about the conduct in question;
  - (7) The respondent's past record of committing violations of safety regulations, including previous FRA warnings issued, disqualifications imposed, civil penalties assessed, railroad disciplinary actions, and criminal convictions therefor;
  - (8) The civil penalty scheduled for the violation of the safety regulation in question;
  - (9) Mitigating circumstances surrounding the violation, such as the existence of an emergency situation endangering persons or property and the need for the respondent to take immediate action; and
  - (10) Such other factors as may be warranted in the public interest.

## Notes

### Amendments

[74 FR 23334, May 19, 2009]

### Source

Source: 54 FR 42907, Oct. 18, 1989, unless otherwise noted.

### Authority

Authority: 49 U.S.C. 5123, 5124, 20103, 20107, 20111, 20112, 20114; 28 U.S.C. 2461 note; and 49 CFR 1.89.

### Source

Source: 42 FR 56742, Oct. 28, 1977, unless otherwise noted.

### Amendments

[74 FR 23334, May 19, 2009]