[Code of Federal Regulations]

[Title 49, Volume 4]

[Revised as of October 1, 2005]

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 Sec. Sec. 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.