The 16 violations that fail the audit on their own
49 CFR 385.321(b) names the regulations a new entrant fails the safety audit for if found in violation of any one of them. Fourteen fail on a single occurrence. Two, no logs and no periodic inspection, need the violation in 51% or more of the records the auditor examines.
| Rule | Violation | Fails on |
|---|---|---|
| 382.115(a) or (b) | No alcohol and controlled substances testing program | Single occurrence |
| 382.201 | Using a driver known to have an alcohol concentration of 0.04 or greater | Single occurrence |
| 382.211 | Using a driver who refused a required alcohol or controlled substances test | Single occurrence |
| 382.215 | Using a driver known to have tested positive for a controlled substance | Single occurrence |
| 382.305 | No random alcohol and controlled substances testing program | Single occurrence |
| 383.3(a) or 383.23(a) | Knowingly using a driver who does not hold a valid CDL | Single occurrence |
| 383.37(b) | Allowing a driver with a suspended, revoked or canceled CLP or CDL to operate | Single occurrence |
| 383.51(a) | Knowingly allowing a disqualified driver to drive a CMV | Single occurrence |
| 387.7(a) | Operating without the required minimum level of financial responsibility (insurance) | Single occurrence |
| 387.31(a) | Operating a passenger vehicle without the required minimum financial responsibility | Single occurrence |
| 391.15(a) | Knowingly using a disqualified driver | Single occurrence |
| 391.11(b)(4) | Knowingly using a physically unqualified driver | Single occurrence |
| 395.8(a) | Failing to require a driver to make a record of duty status | 51% or more of examined records |
| 396.9(c)(2) | Requiring or permitting operation of a CMV declared out of service before repairs are made | Single occurrence |
| 396.11(a)(3) | Failing to correct out-of-service defects listed on a driver vehicle inspection report before the vehicle is operated again | Single occurrence |
| 396.17(a) | Using a CMV that has not been periodically inspected | 51% or more of examined records |
Two violations that other lists often include are not on this one: 395.8(e), false logs, and 391.45, the medical certificate. Appendix B to Part 385 treats both as critical violations, so they still count in the audit, but on their own they do not fail it.
What the auditor reads to find them
Every item on the list is proven or disproven from paper the carrier keeps. Pull these before the auditor asks:
- The drug and alcohol program. The written policy, the consortium or random-selection records, pre-employment results, and a Clearinghouse query for each driver (Part 382).
- Each driver's CDL and qualification file. A valid CDL of the right class, the driving record, and nothing that disqualifies the driver (Parts 383 and 391; the file itself is 391.51).
- Proof of insurance. The filing FMCSA holds for your USDOT number at the required minimum (387.7, 387.9).
- Records of duty status. ELD records or logs for every driver who needs them (395.8).
- Each truck's annual inspection and repair records. The periodic inspection report (396.17), driver inspection reports with out-of-service defects fixed (396.11), and proof that no out-of-service vehicle moved before repair (396.9).
Work through the full new entrant safety audit checklist for the rest of what the audit reviews, and the driver qualification file checklist file by file.
What happens after a failed audit
- Written notice within 45 days of the audit (385.319(c)).
- 60 days to correct and show FMCSA the corrective action; 45 days for passenger carriers and certain hazmat carriers. FMCSA can extend the 60 days by up to 60 more, and the 45 days by up to 10 (385.323).
- Revocation on day 61 (day 46 for the 45-day group) if the corrective action is not accepted: the registration is revoked and an out-of-service order takes effect (385.325(b)).
- Administrative review can be requested within 90 days (385.327). A revoked carrier can reapply no sooner than 30 days after revocation, and the 18-month monitoring period starts over (385.329).
Got the audit letter already? Start with what happens after the FMCSA letter.
Worked example: a four-truck new entrant, nine months in
Illustration, not a customer
The owner pulls the five areas above two weeks before the audit window and finds:
- Random testing: enrolled in a consortium, with the selection notices on file. Clear.
- One driver's CDL: renewed, but the copy on file is the old card. A paperwork fix, not a 383.23 violation, once the current card is filed.
- Annual inspections: three of four trucks have a current 396.17 report; the fourth was inspected but the report is missing. One of four is 25%, under the 51% line, and the report can still be requested from the shop.
- Medical card: one is expired. Not an automatic failure, but a critical violation and a driver who cannot drive until re-certified.
Nothing on the list fails the audit today. Two items still need closing before the auditor arrives.
Where FileFlo does the work
Most compliance tools track a date someone typed in and send a notice. FileFlo does the work behind the date: it reads each document, finds the date, checks it against the rule, files it where the rule wants it and works out what is due next, for every driver and every recurring item. New-entrant automatic-failure items come first in your gap list. Your gap report names each missing record, the rule that requires it and who owes it, and says which areas do not apply to you and why. Nothing goes out to your drivers until you switch each routine on and choose who hears, how and when.
Sources
Checked
- 49 CFR 385.321, safety audit failure, eCFR. Title 49 current as of October 19, 2026
- 49 CFR 385.319, notice and corrective action periods, eCFR
- 49 CFR 385.323, extensions, eCFR
- 49 CFR 385.325, revocation and out-of-service order, eCFR
- 49 CFR 385.327 and 385.329, review and reapplication, eCFR
- 49 CFR Part 385, Appendix A and Appendix B, eCFR
- 49 CFR 385.307, the 18-month new entrant period, eCFR
Questions
How many violations automatically fail a new entrant safety audit?
Sixteen. 49 CFR 385.321(b) lists them: the drug and alcohol program failures in Part 382, using a driver without a valid CDL or a disqualified driver (Parts 383 and 391), operating without the required insurance (Part 387), no records of duty status (395.8(a)), operating an out-of-service vehicle or not fixing out-of-service defects (396.9(c)(2), 396.11(a)(3)), and no periodic inspection (396.17(a)). Finding any one of them fails the audit.
Does one missing log or one missing annual inspection fail the audit?
No. 395.8(a) (no record of duty status) and 396.17(a) (no periodic inspection) count only when the auditor finds them in 51% or more of the records examined. The other fourteen fail the audit on a single occurrence.
Are false logs or an expired medical card on the automatic-failure list?
No. 395.8(e) (false reports of duty status) and 391.45 (medical certification) are not among the 16 in 385.321(b). Appendix B to Part 385 treats them as critical violations, which still count against you, but on their own they do not fail a new entrant audit.
What happens if I fail the new entrant safety audit?
FMCSA sends written notice within 45 days of the audit (385.319(c)). Most property carriers then have 60 days to correct the violations and show it; passenger carriers and certain hazmat carriers have 45. If FMCSA does not accept the corrective action, the registration is revoked and an out-of-service order takes effect on day 61 (day 46 for the 45-day group) under 385.325(b). The 60-day period can be extended up to 60 more days (385.323).
When does the new entrant safety audit happen?
A new carrier is monitored for 18 months (385.307). For carriers of property the audit is conducted within 12 months of receiving the USDOT number; for passenger carriers, within 120 days (Appendix A to Part 385).