{"operation":"document","citation":"49 CFR 40.389","title":"What factors may the Director consider?","source_type":"regulation","agency":"Pipeline and Hazardous Materials Safety Administration","status":"current","official":true,"published_on":null,"effective_on":"2026-08-18","summary":"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","machine_formats":{"json":"https://regulus.evalyn.ai/document/49-cfr-40-389.json","markdown":"https://regulus.evalyn.ai/document/49-cfr-40-389.md"},"app_url":"https://regulus.evalyn.ai/document/49-cfr-40-389","source_url":"https://www.ecfr.gov/on/2026-08-18/title-49/section-40.389","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\n(a) The actual or potential harm that results or may result from your noncompliance;\n\n(b) The frequency of incidents and/or duration of the noncompliance;\n\n(c) Whether there is a pattern or prior history of noncompliance;\n\n(d) Whether the noncompliance was pervasive within your organization, including such factors as the following:\n\n(1) Whether and to what extent your organization planned, initiated, or carried out the noncompliance;\n\n(2) The positions held by individuals involved in the noncompliance, and whether your principals tolerated their noncompliance; and\n\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\n(e) Whether you have demonstrated an appropriate compliance disposition, including such factors as the following:\n\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\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\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\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\n(5) Whether your organization has taken appropriate corrective actions or remedial measures, including implementing actions to prevent recurrence;\n\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\n(g) Other factors appropriate to the circumstances of the case.","truncated":false,"body_characters":2364}