Every new interstate motor carrier spends its first 18 months as a "new entrant" under 49 CFR Part 385, subpart D. During that time FMCSA carries out a safety audit, generally once the carrier has at least 3 months of records, reviewing driver qualification, hours of service, maintenance, the accident register and drug and alcohol testing. Any one of 16 listed violations fails the audit automatically, and a failed audit leads to revocation unless the carrier fixes the problems within 60 days (45 for passenger and placarded hazmat carriers).
Who is a new entrant
A carrier becomes a new entrant when it registers with FMCSA and gets its USDOT number before starting interstate operations (385.301T). Subpart D applies to carriers domiciled in the United States and Canada (385.301T(b)). For a for-hire carrier the stakes are higher still: under 365.110, its operating authority "does not become permanent until the applicant satisfactorily completes the New Entrant Safety Assurance Program." How the registration itself works is covered in how to get your own trucking authority.
The 18-month monitoring period
385.307: once a new entrant has met the pre-operational requirements it is monitored for 18 months. During that period:
- its roadside inspection results are "closely monitored";
- a safety audit is conducted once it has been operating long enough to have records worth reviewing, which "will generally be at least 3 months"; and
- all records required for the audit must be made available on request to an auditor certified under FMCSA rules.
385.313 and 385.315: the audit is done by a certified auditor and "will generally be conducted at the new entrant’s business premises." 385.309 gives it two purposes: educational and technical assistance for the carrier, and gathering data on whether its "basic safety management controls" are adequate.
385.317: a safety audit does not produce a safety rating. Ratings follow compliance reviews. The audit outcome is pass or fail on basic controls.
What the auditor reviews
385.311 lists the areas: driver qualification; driver duty status; vehicle maintenance; accident register; and controlled substances and alcohol use and testing, plus hazardous materials rules if they apply. The table below maps each to the records usually asked for and the rule behind them.
| Area | Records | Rule |
|---|---|---|
| Drug and alcohol testing | Testing program in place from the first day of operations; pre-employment negative result before each driver’s first safety-sensitive work; random testing program (single-driver companies in a pool of two or more) | 382.115, 382.301, 382.305, 382.103(b) |
| Driver qualification | A file for each driver: employment application, motor vehicle records from each state for the past 3 years, road test certificate or equivalent, annual driving record review, medical examiner’s certificate; kept while employed and 3 years after | 391.51, 391.23 |
| Hours of service | Records of duty status (usually ELD records) and supporting documents, kept at least 6 months | 395.8, 395.8(k)(1) |
| Vehicle maintenance | For each vehicle controlled for 30 consecutive days: identification, a means of showing inspection and maintenance due dates, a record of inspections and repairs; kept 1 year and 6 months after the vehicle leaves your control | 396.3(b), (c) |
| Periodic inspection | Current annual inspection for every CMV, including each trailer | 396.17 |
| Driver vehicle inspection reports | Out-of-service defects reported by drivers corrected before the vehicle runs again | 396.11 |
| Accident register | List of each accident with date, place, driver, injuries, fatalities and hazmat release, plus copies of required reports; kept 3 years | 390.15(b) |
| Insurance | Proof of minimum financial responsibility (MCS-90 or MCS-82) at the principal place of business | 387.7(d) |
Background on each area: DOT drug testing, random testing rates, Clearinghouse queries, DOT physical, medical certificate validity, hours of service, the ELD rule, the annual inspection and the DVIR.
The 16 automatic failures
385.321(b): "A new entrant will automatically fail a safety audit if found in violation of any one of the following 16 regulations." Fourteen fail on a single occurrence; two need a threshold of 51% or more of the records examined.
| # | Violation | Trigger |
|---|---|---|
| 1 | 382.115(a)/(b): no alcohol and/or controlled substances testing program | Single occurrence |
| 2 | 382.201: using a driver known to have an alcohol concentration of 0.04 or greater | Single occurrence |
| 3 | 382.211: using a driver who refused a required test | Single occurrence |
| 4 | 382.215: using a driver known to have tested positive | Single occurrence |
| 5 | 382.305: no random testing program | Single occurrence |
| 6 | 383.3(a)/383.23(a): knowingly using a driver without a valid CDL | Single occurrence |
| 7 | 383.37(b): knowingly allowing a driver with a disqualified CLP or CDL to drive | Single occurrence |
| 8 | 383.51(a): knowingly allowing a disqualified driver to drive a CMV | Single occurrence |
| 9 | 387.7(a): operating without the required minimum financial responsibility | Single occurrence |
| 10 | 387.31(a): operating a passenger vehicle without the required financial responsibility | Single occurrence |
| 11 | 391.15(a): knowingly using a disqualified driver | Single occurrence |
| 12 | 391.11(b)(4): knowingly using a physically unqualified driver | Single occurrence |
| 13 | 395.8(a): failing to require a driver to make a record of duty status | 51% or more of records examined |
| 14 | 396.9(c)(2): operating a vehicle declared out of service before repairs | Single occurrence |
| 15 | 396.11(a)(3): not correcting out-of-service defects listed on a DVIR before the vehicle is operated | Single occurrence |
| 16 | 396.17(a): using a CMV not periodically inspected | 51% or more of records examined |
Item 12 is where many one-truck carriers slip: an owner-operator whose own medical certificate has lapsed is a "physically unqualified driver" being used by his own company. Under 385.321(a) an auditor can also fail a carrier for a general lack of basic safety management controls as described in Appendix A to Part 385, even without one of the 16.
Pass or fail, and the deadlines that follow
385.319(a): the auditor reviews the findings with you at the end of the audit. FMCSA then sends written notice "as soon as practicable, but not later than 45 days after completion."
- Pass (385.319(b)): monitoring continues for the rest of the 18 months.
- Fail (385.319(c)): the notice says your new entrant registration will be revoked and operations placed out of service unless you take the actions it specifies. You have 60 days from the notice date. Passenger carriers (9 to 15 passengers for direct compensation, or more than 15) and carriers of placarded hazardous materials get 45 days.
| Step | Most carriers | Passenger and placarded hazmat | Rule |
|---|---|---|---|
| Submit corrective action | 60 days from notice | 45 days from notice | 385.319(c) |
| Possible extension | Up to 60 more days, if making a good faith effort | Up to 10 more days, if evidence is in and FMCSA needs time | 385.323 |
| Revocation and out-of-service order if no acceptable response | Day 61 | Day 46 | 385.325(b) |
| Ask for administrative review | Within 90 days; within 15 days to be sure of a decision first | Same | 385.327(c), (d) |
| FMCSA decision on review | Within 45 days | Within 30 days | 385.327(e) |
If the corrective action is accepted, FMCSA notifies you in writing that registration will not be revoked and you may continue (385.325(a)). If not, 385.325(c): you may not operate in interstate commerce from the effective date of the out-of-service order. Operating anyway brings the penalties in 49 U.S.C. 521(b)(2)(A), as adjusted in Part 386 Appendix B (385.331).
Administrative review
385.327 lets a carrier that believes FMCSA made an error ask the Field Administrator of the FMCSA Service Center for review, explaining the error and listing the disputed facts and supporting documents. File within 15 days of the failure notice if you want to be sure of a decision before revocation takes effect.
Refusing the audit
385.337: a new entrant that refuses an audit gets written notice that registration will be revoked unless it agrees in writing within 10 days; otherwise revocation takes effect on the 11th day. Refusal can also bring civil penalties.
Expedited audits
385.308(a) lists conduct that can bring an expedited safety audit or compliance review, or a demand for written proof of corrective action, at any point in the 18 months. It includes:
- using a driver without a valid CDL, including one that is expired or missing an endorsement;
- operating a vehicle placed out of service without fixing it;
- certain hazardous materials incidents;
- using a driver who tested positive or refused a test;
- operating without the required insurance;
- a driver or vehicle out-of-service rate of 50% or more based on at least three inspections within 90 consecutive days.
If you have already been audited, FMCSA asks for evidence of corrective action within 30 days, and 385.308(d) says failing to respond "will result in the revocation" of new entrant registration. Roadside inspections therefore matter from the first load; keep the annual inspection current and fix defects before trips.
End of the 18 months
385.333: if you have had an audit, and you are not under an out-of-service order or a pending corrective action notice, FMCSA removes the new entrant designation and tells you in writing that registration is permanent. If no audit has been done by month 18 through no fault of yours, you keep operating as a new entrant until one is done (385.333(d)). A compliance review in place of the audit counts, but the 18 months still run (385.335).
If registration is revoked
385.329T: you may reapply no sooner than 30 days after revocation. After a failed audit you must submit an updated MCS-150 and evidence that the deficiencies are corrected; after a refused audit, an updated MCS-150 and agreement to an audit. Either way the 18-month cycle starts again from approval, and a for-hire carrier whose authority was also revoked must reapply for authority under Part 365.
Worked example: a one-truck carrier’s audit
Example, applying the rules above. A new carrier starts hauling in March. In July an auditor contacts it to schedule the audit at its office. The owner produces: his consortium enrolment and pre-employment negative result dated before his first load; his driver qualification file with a medical certificate that expired in June and was renewed two weeks later; ELD records for the last six months; the tractor and trailer annual inspection reports; maintenance records; and an accident register showing no accidents.
The two weeks driving on an expired medical certificate is item 12 in the table, "knowingly using a physically unqualified driver," a single-occurrence automatic failure. The notice arrives within 45 days. He has 60 days to show corrective action, for example a written system for tracking certificate expiry dates and evidence that the current certificate is in the file. If FMCSA accepts it, he continues; if he does nothing, revocation takes effect on day 61.
Checklist before the auditor calls
- Drug and alcohol: program start date on or before the first day of operations, consortium certificate, every driver’s pre-employment result, Clearinghouse queries.
- For every driver including yourself: complete qualification file and a medical certificate that is current today.
- Six months of duty status records, with supporting documents.
- For every tractor and trailer: an annual inspection within the last 12 months and a maintenance file.
- DVIRs showing reported defects repaired.
- Accident register, even if empty.
- Proof of insurance (MCS-90) at your office.