---
kind: "section"
citation: "49 C.F.R. § 40.389"
title: "49"
number: "40.389"
heading: "What factors may the Director consider?"
url: "https://uscodex.org/cfr/49/40.389"
---

# §40.389. What factors may the Director consider?


This section lists examples of the kind of mitigating and aggravating factors that the Director may consider in determining whether to issue a PIE concerning you, as well as the scope and duration of a PIE. This list is not exhaustive or exclusive. The Director may consider other factors if appropriate in the circumstances of a particular case. The list of examples follows:

- (a) The actual or potential harm that results or may result from your noncompliance;
- (b) The frequency of incidents and/or duration of the noncompliance;
- (c) Whether there is a pattern or prior history of noncompliance;
- (d) Whether the noncompliance was pervasive within your organization, including such factors as the following:
  - (1) Whether and to what extent your organization planned, initiated, or carried out the noncompliance;
  - (2) The positions held by individuals involved in the noncompliance, and whether your principals tolerated their noncompliance; and
  - (3) Whether you had effective standards of conduct and control systems (both with respect to your own organization and any contractors or affiliates) at the time the noncompliance occurred;
- (e) Whether you have demonstrated an appropriate compliance disposition, including such factors as the following:
  - (1) Whether you have accepted responsibility for the noncompliance and recognize the seriousness of the conduct that led to the cause for issuance of the PIE;
  - (2) **Whether you have cooperated fully with the Department during the investigation.** The Director may consider when the cooperation began and whether you disclosed all pertinent information known to you;
  - (3) Whether you have fully investigated the circumstances of the noncompliance forming the basis for the PIE and, if so, have made the result of the investigation available to the Director;
  - (4) Whether you have taken appropriate disciplinary action against the individuals responsible for the activity that constitutes the grounds for issuance of the PIE; and
  - (5) Whether your organization has taken appropriate corrective actions or remedial measures, including implementing actions to prevent recurrence;
- (f) With respect to noncompliance with a DOT agency regulation, the degree to which the noncompliance affects matters common to the DOT drug and alcohol testing program;
- (g) **Other factors appropriate to the circumstances of the case.**

## Notes

### Authority

Authority: 49 U.S.C. 102, 301, 322, 5331, 20140, 31306, and 54101 et seq.

### Source

Source: 65 FR 79526, Dec. 19, 2000, unless otherwise noted.