49 CFR §40.389

1. (a)The actual or potential harm that results or may result from your noncompliance;
2. (b)The frequency of incidents and/or duration of the noncompliance;
3. (c)Whether there is a pattern or prior history of noncompliance;
4. (d)Whether the noncompliance was pervasive within your organization, including such factors as the following:
   1. (1)Whether and to what extent your organization planned, initiated, or carried out the noncompliance;
   2. (2)The positions held by individuals involved in the noncompliance, and whether your principals tolerated their noncompliance; and
   3. (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;
5. (e)Whether you have demonstrated an appropriate compliance disposition, including such factors as the following:
   1. (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. (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. (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. (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. (5)Whether your organization has taken appropriate corrective actions or remedial measures, including implementing actions to prevent recurrence;
6. (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;
7. (g)Other factors appropriate to the circumstances of the case.