The 16 Automatic-Failure Violations in the New Entrant Safety Audit
FMCSA lists 16 violations in 49 CFR 385.321 that automatically fail a new entrant safety audit. Fourteen of them fail you on a single occurrence. Two fail you only when the problem shows up in 51% or more of the records the auditor checks. You can also fail without any of the 16 if your safety controls are weak in three or more of the six audit "factors."
Key takeaways
- The list of 16 is in the table in 49 CFR 385.321(b) itself. They cover drug and alcohol testing, CDLs, insurance, driver qualification, logs, and vehicle repairs.
- Fourteen items fail on one occurrence. Only missing logs (395.8(a)) and missing annual inspections (396.17(a)) need 51% or more of examined records.
- False logs and hours-of-service limit violations are serious, but they are not on the automatic-failure list.
- A second way to fail: inadequate controls in at least 3 of the 6 factors described in Appendix A to Part 385.
- A failed audit is not the end. You get a corrective action window, usually 60 days, before revocation.
How the automatic-failure rule works
Every new motor carrier goes through an 18-month new entrant period. Appendix A to Part 385 says the safety audit should happen within 12 months for property carriers and 120 days for passenger carriers. If you are new to the process, start with our new entrant safety audit guide.
Section 385.321(a) says you fail in one of two ways:
- You violate one or more of the 16 regulations in the table in 385.321(b), or
- You lack basic safety management controls, as described in Appendix A to Part 385.
The table has a column called "guidelines for determining automatic failure." For 14 items it says "single occurrence." That means one driver, one truck, or one day is enough. For two items it says the violation must show up in "51% or more of examined records."
If you fail, FMCSA must send you written notice within 45 days of the audit. Under 49 CFR 385.319, most carriers then have 60 days to fix the problems. Passenger carriers and certain hazmat carriers get 45 days. If you do not submit acceptable corrective action in time, 49 CFR 385.325 says FMCSA revokes your registration and issues an out-of-service order.
Below are all 16 items, grouped by area. The numbers match the order in the regulation.
Drug and alcohol testing (items 1–5)
These five items come from 49 CFR Part 382. They apply to carriers whose drivers need a CDL. Every one of them fails on a single occurrence.
1. No testing program — 382.115(a)
The rule: You must have an alcohol and controlled substances testing program in place before your CDL drivers perform safety-sensitive work. (382.115(b) is the same rule for foreign carriers.)
How carriers trip on it: An owner-operator gets authority and starts hauling. They plan to "sign up for drug testing later." At the audit, there is no policy, no consortium, and no pre-employment test.
How to prevent it: Set up the program before the first load. Join a consortium/third-party administrator if you are a one-truck operation, adopt a written policy, and keep proof of enrollment. Our drug and alcohol program service handles this setup.
2. Using a driver with 0.04 or higher alcohol — 382.201
The rule: You may not let a driver with an alcohol concentration of 0.04 or greater perform a safety-sensitive function, if you know about it.
How carriers trip on it: A driver tests 0.04 on a post-accident or reasonable-suspicion test, and the carrier keeps dispatching them while "waiting to see" what happens.
How to prevent it: Pull the driver from all safety-sensitive work the moment you learn the result. Do not return them until they complete the return-to-duty process with a substance abuse professional.
3. Using a driver who refused a test — 382.211
The rule: You may not let a driver who refused a required test perform safety-sensitive work.
How carriers trip on it: A driver "forgets" to go to a random test, or leaves the collection site before finishing. The carrier treats it as a scheduling issue instead of a refusal.
How to prevent it: Know what counts as a refusal under the rules (your testing provider can explain it). Treat refusals like a positive test: remove the driver and start the return-to-duty process.
4. Using a driver who tested positive — 382.215
The rule: You may not use a driver you know tested positive for a controlled substance.
How carriers trip on it: A small fleet hires a driver who failed a test at a previous job. The carrier never ran the required Clearinghouse query, or ignored what it showed.
How to prevent it: Run a full pre-employment query in the Drug and Alcohol Clearinghouse before hiring, and check previous employer testing history.
5. No random testing program — 382.305
The rule: You must run a random drug and alcohol testing program.
How carriers trip on it: The carrier did a pre-employment test but never enrolled the driver in a random pool. One-truck owner-operators are especially likely to miss this, because you cannot "randomly select" yourself without a consortium.
How to prevent it: Put every CDL driver, including yourself, in a random pool, usually through a consortium. Keep the selection records.
CDL and driver qualification (items 6–8, 11–12)
These items cover drivers who should not be behind the wheel. They come from Part 383 and Part 391. All five fail on a single occurrence.
6. Driver without a valid CDL — 383.3(a) / 383.23(a)
The rule: You may not knowingly use a driver who does not hold a valid CDL when the vehicle requires one.
How carriers trip on it: A driver's CDL expires and nobody notices. Or a carrier buys a heavier truck and has a driver with only a regular license run it "just for local trips."
How to prevent it: Track license expiration dates. Check that each driver's license class and endorsements match the vehicles they drive.
7. Driver with a disqualified CLP or CDL — 383.37(b)
The rule: You may not allow a driver to operate a CMV while their CDL or learner's permit is disqualified by a state, or when they have lost the right to drive a CMV in a state.
How carriers trip on it: A driver's license gets suspended for an unpaid ticket or a violation in another state. The driver does not tell you, and you never check.
How to prevent it: Run a motor vehicle record (MVR) on every driver at hire and at least once every 12 months, as 49 CFR 391.25 requires. Require drivers to report suspensions right away.
8. Disqualified driver driving — 383.51(a)
The rule: You may not knowingly allow a driver who is disqualified from driving a CMV to drive one.
How carriers trip on it: A driver gets disqualified after a serious offense, such as a DUI. They keep driving for you because you never saw the record.
How to prevent it: Same as above. Annual MVRs, a clear reporting policy, and a review before you dispatch someone after any major violation.
11. Knowingly using a disqualified driver — 391.15(a)
The rule: A driver who is disqualified under Part 391 may not drive a CMV, and you may not require or permit them to.
How carriers trip on it: It often overlaps with items 7 and 8: the driver lost their privileges, but stayed on the schedule.
How to prevent it: Keep a complete driver qualification file for each driver and review it whenever you get new information. Our driver qualification files service builds and audits these files.
12. Physically unqualified driver — 391.11(b)(4)
The rule: You may not knowingly use a driver who is not physically qualified under Part 391, subpart E.
How carriers trip on it: This is one of the most common problems we see. A driver's medical certificate expires, and they keep driving. Or the carrier never got a medical certificate on file at all.
How to prevent it: Keep a current medical examiner's certificate in every driver's file. Set a reminder at least 30 days before each one expires. Do not dispatch a driver with an expired card.
Hours of service (item 13)
13. Not requiring a record of duty status — 395.8(a)
The rule: You must require each driver to record their duty status, using an ELD or another allowed method, unless an exception applies.
Threshold: This one does not fail on one occurrence. It fails when the auditor finds it in 51% or more of the records examined.
How carriers trip on it: A carrier believes its drivers qualify for the short-haul exception, but the drivers regularly go beyond its limits and keep no logs. Or a driver with an older truck that is exempt from the ELD rule keeps no paper logs either. Exempt from ELDs does not mean exempt from logs.
How to prevent it: Confirm which logging rules apply to each driver. If you use the short-haul exception under 49 CFR 395.1(e), keep the required time records and require a log on any day the driver goes outside the exception. Our hours of service compliance service can review this with you.
False logs and HOS limits are not automatic failures
Many websites say false logs or going over the 11-hour or 14-hour limits automatically fail the audit. They do not. Those are "critical" violations under Appendix B to Part 385. They add points toward the factor rule explained below, so they still matter a lot. The only hours-of-service automatic failure is 395.8(a) at 51% or more.
Vehicle repairs and inspections (items 14–16)
These come from Part 396.
14. Operating an out-of-service vehicle before repairs — 396.9(c)(2)
The rule: After an inspector declares a vehicle out of service, nobody may operate it until the repairs are made.
Threshold: Single occurrence.
How carriers trip on it: A truck gets an out-of-service order at roadside for brakes. The driver limps to the next town to "get it fixed there," or the carrier dispatches the truck the next day without proof of repair.
How to prevent it: Do not drive an out-of-service vehicle until it is repaired. If it must move first, have it towed. Fix the problem, certify and return the inspection report as 49 CFR 396.9(d) requires, and keep the repair invoice.
15. Not fixing out-of-service defects from a DVIR — 396.11(a)(3)
The rule: Before a vehicle runs again, you must correct out-of-service defects that a driver listed on a driver vehicle inspection report (DVIR).
Threshold: Single occurrence.
How carriers trip on it: A driver writes "air leak, brakes" on the post-trip report. The next morning, the truck goes out again with no repair and no sign-off.
How to prevent it: Read every DVIR that lists a defect. Repair the defect, or document that no repair was needed, and certify it before the vehicle moves. Keep the DVIRs and repair records together.
16. Using a vehicle without a periodic inspection — 396.17(a)
The rule: Every CMV must pass a periodic inspection, which in practice means at least once every 12 months.
Threshold: This fails only at 51% or more of examined records.
How carriers trip on it: A carrier buys a used truck and assumes the old inspection sticker counts. Or a single-truck carrier forgets the annual inspection entirely. With one truck, one missing inspection is 100% of your records.
How to prevent it: Keep a current annual inspection report for every truck and trailer. Track the due dates. Our vehicle maintenance compliance service can set up a system.
Insurance and financial responsibility (items 9–10)
These items come from Part 387. Both fail on a single occurrence.
9. Operating without the required insurance — 387.7(a)
The rule: Carriers covered by this rule may not operate a motor vehicle without the required minimum level of financial responsibility in effect.
How carriers trip on it: The policy lapses for non-payment, and the carrier keeps running for a week before reinstating it. Or the policy limit is lower than what the cargo type requires.
How to prevent it: Confirm your required minimum under 49 CFR 387.9 based on what you haul. Set up automatic payments, and keep a copy of your current policy (and MCS-90 endorsement, if required) where you can find it.
10. Passenger carrier without required coverage — 387.31(a)
The rule: Passenger carriers covered by this rule may not operate without the required minimum financial responsibility.
How carriers trip on it: The same ways as item 9: a lapsed policy, or limits that do not match the size of the vehicle.
How to prevent it: Check your required limit under 49 CFR 387.33 for the seating capacity of each vehicle, and never run during a lapse.
The other way to fail: 3 of the 6 factors
You can pass all 16 items and still fail. Appendix A to Part 385 says the auditor also checks whether you have "basic safety management controls."
The auditor reviews your compliance with "acute" and "critical" regulations. These are listed in Appendix B to Part 385. The appendix assigns:
- 1.5 points for each instance of noncompliance with an acute regulation
- 1 point for each instance of noncompliance with a critical regulation
The points are added up in six groups called factors.
| Factor | What it covers | How it is rated |
|---|---|---|
| 1. General | Parts 387 and 390 (insurance, general rules) | 3 or more points = inadequate |
| 2. Driver | Parts 382, 383, 391 (testing, CDL, qualification) | 3 or more points = inadequate |
| 3. Operational | Parts 392 and 395 (driving rules, hours of service) | 3 or more points = inadequate |
| 4. Vehicle | Parts 393 and 396, plus 12 months of inspection data | 3 or more points = inadequate. A vehicle out-of-service rate of 34% or higher (with at least 3 inspections) adds 1 point |
| 5. Hazardous materials | Parts 171, 177, 180, 397 | 3 or more points = inadequate |
| 6. Accident | Recordable accident rate per million miles | Inadequate if over 1.7 (urban carriers) or 1.5 (all others). Used only with 2 or more recordable accidents in 12 months |
If you are rated inadequate in three or more factors, you fail the audit, even with zero automatic-failure violations.
False logs or gaps in driver files are not automatic failures, but a few of them in one area can push that factor to 3 points. Repeat that in two other areas and you fail.
Quick self-check
Go through this table before your audit. If you answer "no" to any line, fix it now.
| Area | Question | Fails on |
|---|---|---|
| Drug and alcohol | Do you have a testing program and written policy? | 1 occurrence |
| Drug and alcohol | Is every CDL driver, including you, in a random pool? | 1 occurrence |
| Drug and alcohol | Have you removed any driver who tested 0.04+, tested positive, or refused? | 1 occurrence |
| Drug and alcohol | Did you run a Clearinghouse pre-employment query for each driver? | Helps prevent items 2–4 |
| CDL | Does every driver have a valid CDL of the right class? | 1 occurrence |
| CDL | Have you checked each driver's MVR in the last 12 months? | Helps prevent items 7, 8, 11 |
| Qualification | Does every driver have a current medical certificate on file? | 1 occurrence |
| HOS | Does every driver keep logs (ELD or allowed method) unless truly exempt? | 51% of records |
| Vehicle | Have all out-of-service orders been repaired before the vehicle moved? | 1 occurrence |
| Vehicle | Are DVIR defects repaired and certified before the next trip? | 1 occurrence |
| Vehicle | Does every truck and trailer have an annual inspection from the last 12 months? | 51% of records |
| Insurance | Is your insurance active at the required limit, with no lapses? | 1 occurrence |
If you already failed an audit, read our guide on what to do after a failed new entrant audit. If your authority has already been shut down, see how to get reinstated after an out-of-service order.
How JMM Compliance can help
We review your drug and alcohol program, driver files, logs, and maintenance records against the same 16 items and six factors the auditor uses. We tell you what is missing and help you fix it before the audit. If you have already failed, we help you write and submit a corrective action plan. Learn more about our new entrant safety audit service.
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This page is general information, not legal advice. Requirements depend on your operation; confirm details with FMCSA or a qualified professional.
Related guides
- Failed Your New Entrant Safety Audit? How to Write a Corrective Action PlanFailed your new entrant audit? Learn your 60- or 45-day deadline, how to build a corrective action plan FMCSA accepts, and the mistakes that get CAPs rejected.
- New Entrant Safety Audit: The Complete Guide for New CarriersWhat to expect at your FMCSA new entrant safety audit: when it happens, what auditors check, the automatic-failure violations, and a full document checklist.