[Code of Federal Regulations]
[Title 49, Volume 4]
[Revised as of October 1, 2003]
From the U.S. Government Printing Office via GPO Access
[CITE: 49CFR209.329]

[Page 33]
 
                        TITLE 49--TRANSPORTATION
 
       CHAPTER II--FEDERAL RAILROAD ADMINISTRATION, DEPARTMENT OF 
                             TRANSPORTATION
 
PART 209--RAILROAD SAFETY ENFORCEMENT PROCEDURES--Table of Contents
 
                 Subpart D--Disqualification Procedures
 
Sec. 209.329  Assessment considerations.

    (a) Proof of a respondent's willful violation of one of the 
requirements of parts 213 through 236 (excluding parts 225, 228, and 
233) of this title establishes a rebuttable presumption that the 
respondent is unfit to perform the safety-sensitive functions described 
in Sec. 209.303. Where such presumption arises, the respondent has the 
burden of establishing that, taking account of the factors in paragraph 
(b) of this section, he or she is fit to perform the foregoing safety-
sensitive functions for the period and under the other conditions, if 
any, proposed in the notice of proposed disqualification.
    (b) In determining respondent's lack of fitness to perform safety-
sensitive functions and the duration and other conditions, if any, of 
appropriate disqualification orders under Secs. 209.309, 209.323, and 
209.327, the factors to be considered, to the extent: Each is pertinent 
to the respondent's case, include but are not limited to the following:
    (1) The nature and circumstances of the violation, including whether 
the violation was intentional, technical, or inadvertent, was committed 
willfully, or was frequently repeated;
    (2) The adverse impact or the potentially adverse impact of the 
violation on the health and safety of persons and the safety of 
property;
    (3) The railroad's operating rules, safety rules, and repair and 
maintenance standards;
    (4) Repair and maintenance standards adopted by the industry;
    (5) The consistency of the conditions of the proposed 
disqualification with disqualification orders issued against other 
employees for the same or similar violations;
    (6) Whether the respondent was on notice of any safety regulations 
that were violated or whether the respondent had been warned about the 
conduct in question;
    (7) The respondent's past record of committing violations of safety 
regulations, including previous FRA warnings issued, disqualifications 
imposed, civil penalties assessed, railroad disciplinary actions, and 
criminal convictions therefor;
    (8) The civil penalty scheduled for the violation of the safety 
regulation in question;
    (9) Mitigating circumstances surrounding the violation, such as the 
existence of an emergency situation endangering persons or property and 
the need for the respondent to take immediate action; and
    (10) Such other factors as may be warranted in the public interest.