Ask X3What does 49 CFR 40.389 (What factors may the Director consider?) require?
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Based on 49 CFR 40.389, the Director may consider a non-exhaustive list of mitigating and aggravating factors when deciding whether to issue a Public Interest Exclusion (PIE), as well as the scope and duration of that PIE. Specifically, the Director may look at:
* Harm: The actual or potential harm resulting from your noncompliance.
* Frequency and Duration: How often the incidents occurred and how long the noncompliance lasted.
* History: Whether there is a pattern or prior history of noncompliance.
* Pervasiveness: Whether the noncompliance was widespread within your organization, including who planned or initiated it, the positions of the individuals involved, whether your principals tolerated it, and whether you had effective standards of conduct and control systems in place for your organization, contractors, and affiliates.
* Compliance Disposition: Whether you have shown an appropriate attitude toward compliance by:
* Accepting responsibility and recognizing the seriousness of the conduct.
* Cooperating fully and early with the Department and disclosing all pertinent information.
* Investigating the circumstances fully and sharing the results with the Director.
* Disciplining the individuals responsible for the noncompliance.
* Taking corrective actions or remedial measures to prevent it from happening again.
* Impact: For noncompliance with a DOT agency regulation, the degree to which it affects matters common to the DOT drug and alcohol testing program.
* Other Circumstances: Any other factors appropriate to the specific case.