# What factors may the Director consider?

**Citation:** 49 CFR 40.389  
**Type / status:** regulation / current  
**Agency:** Pipeline and Hazardous Materials Safety Administration  
**Effective:** 2026-08-18  
**Published:** Not stated

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 appropri

## Document text

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.

## Provenance

- Official: Yes
- Source: <https://www.ecfr.gov/on/2026-08-18/title-49/section-40.389>
- Source ID: `ecfr`
- SHA-256: `0e6233e53dc89be5ae111e0d1ba6a0250b45af3554576afa36ae9c8012e93d04`
- Retrieved: 2026-08-20T05:54:21.729Z
- Exported: 2026-08-23T09:01:32.367Z
- Document slug: `49-cfr-40-389`

### Source metadata

```json
{
  "cfrTitle": 49,
  "part": "40",
  "section": "40.389",
  "subpart": "Subpart R—Public Interest Exclusions",
  "corpusVersion": "2026-08-18",
  "jurisdiction": "US"
}
```