Which Drug and Alcohol Violations Fail an FMCSA New Entrant Audit?

FMCSA checks drug and alcohol compliance during the new entrant safety audit. A new motor carrier is monitored for 18 months, and the audit takes place once the carrier has enough records to review, generally after at least 3 months of operation (49 CFR 385.307). Under 49 CFR 385.321(b), a single violation of any of these drug and alcohol rules causes an automatic failure of the audit:

• No testing program. Failing to implement an alcohol and controlled substances testing program (49 CFR 382.115(a) for domestic carriers, 382.115(b) for foreign carriers)
• High alcohol result. Using a driver known to have an alcohol concentration of 0.04 or greater to perform a safety-sensitive function (49 CFR 382.201)
• Refusal. Using a driver who has refused a required test (49 CFR 382.211)
• Positive test. Using a driver known to have tested positive for a controlled substance (49 CFR 382.215)
• No random program. Failing to implement a random testing program (49 CFR 382.305)

These are 5 of the 16 violations in the 385.321 table. The others cover CDLs, disqualified or medically unqualified drivers, insurance, hours of service records and vehicle inspections. An automatic failure, or a lack of basic safety management controls, leads to a notice that the carrier's USDOT new entrant registration will be revoked (49 CFR 385.321(a)).

Each of the five drug and alcohol items comes from Part 382. A carrier implements its program on the date it begins CMV operations, not after its first audit (49 CFR 382.115). Using a driver after a verified positive result, a refusal or a 0.04 result also conflicts with the removal and return-to-duty rules in 49 CFR 40.23, 49 CFR 382.201, 382.211 and 382.215. The driver cannot return until the return-to-duty process is complete.

Part 382 also requires records that show the program is working, such as random selection documents, test results and supervisor training records, and sets how long to keep them (49 CFR 382.401). Records of each Clearinghouse query are kept for three years (49 CFR 382.701(e)).