{"data":{"id":"us/49-cfr-40.389","jurisdiction":"us","citation":"49 CFR 40.389","heading":"What factors may the Director consider?","body":"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:\n(a) The actual or potential harm that results or may result from your noncompliance;\n(b) The frequency of incidents and/or duration of the noncompliance;\n(c) Whether there is a pattern or prior history of noncompliance;\n(d) Whether the noncompliance was pervasive within your organization, including such factors as the following:\n(1) Whether and to what extent your organization planned, initiated, or carried out the noncompliance;\n(2) The positions held by individuals involved in the noncompliance, and whether your principals tolerated their noncompliance; and\n(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;\n(e) Whether you have demonstrated an appropriate compliance disposition, including such factors as the following:\n(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;\n(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;\n(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;\n(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\n(5) Whether your organization has taken appropriate corrective actions or remedial measures, including implementing actions to prevent recurrence;\n(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;\n(g) Other factors appropriate to the circumstances of the case.","path":["Title 49—Transportation","Subtitle A—Office of the Secretary of Transportation","PART 40—PROCEDURES FOR TRANSPORTATION WORKPLACE DRUG AND ALCOHOL TESTING PROGRAMS","Subpart R—Public Interest Exclusions"],"source_url":"https://www.ecfr.gov/api/versioner/v1/full/2026-08-25/title-49.xml","current_through":"2026-08-25","vintage":"","retrieved_at":"2026-08-27T02:26:34Z","sha256":"b16a576c617ccda24a2c5d8e713251faa194045ef0558a24bf3608d8ed79f25c","source_id":"us-cfr","stale":true,"prev":"us/49-cfr-40.387","next":"us/49-cfr-40.391"},"notice":"GroundRules: Original legal text. Not legal advice."}