Row 1: No drug and alcohol testing program (49 CFR 382.115)
Row 1 of the automatic-fail table is "failing to implement an alcohol and/or controlled substances testing program". One occurrence fails the audit.
What the rule says
Under 49 CFR 382.115, a US-domiciled employer must implement the Part 382 drug and alcohol requirements on the date it begins commercial motor vehicle operations; a foreign-domiciled employer must do so on the date it begins CMV operations in the United States. The 385.321 table lists these as 382.115(a) (domestic) and 382.115(b) (foreign) in the same row (49 CFR 385.321).
Who it applies to
Part 382 applies to employers and drivers who operate a CMV in commerce and are subject to the commercial driver's license requirements of Part 383 (49 CFR 382.103). In practice that means vehicles that need a CDL: for example a combination of 26,001 lbs or more, a single vehicle of 26,001 lbs or more, a vehicle designed for 16 or more passengers, or a vehicle placarded for hazmat (CMV definition in 49 CFR 383.5). An owner-operator who employs only himself or herself must still be in a random testing pool of two or more covered employees, which in practice means joining a consortium (49 CFR 382.103).
What "implemented" looks like on paper
- A pre-employment drug test with a verified negative result before each driver's first safety-sensitive work, unless the narrow exception applies (49 CFR 382.301).
- A full pre-employment query of the Drug and Alcohol Clearinghouse, and at least one query per year for every driver (49 CFR 382.701).
- Enrollment in a random testing pool (see row 5).
- Records kept for the required periods: verified positives, results of 0.02 or greater and refusals for five years; collection-process records, including random-selection documents, for two years; negative results for one year (49 CFR 382.401).
Because the rule turns on the start date, a program set up a month after the first load is still a violation for that month. Auditors compare dates: when you began operating, when drivers started, and when the program and the first tests began.
How to fix it
- Join a consortium or third-party administrator (C/TPA) and get an enrollment certificate listing your company and every CDL driver.
- Adopt a written drug and alcohol policy and give drivers a copy.
- Register in the Clearinghouse, run full pre-employment queries, and keep the query records.
- Pre-employment test anyone not already tested, and keep them off safety-sensitive work until a verified negative arrives.
- File it all in a locked drug and alcohol file, separate from the driver qualification file.
If you already operated without a program, fix it now and keep proof of the date it began; corrective action after a failed audit asks for evidence of the same items.
If an auditor finds this violation, the audit fails. FMCSA then has up to 45 days to send written notice, and you get 60 days from the notice date to fix the problem and prove it (45 days for certain passenger and hazmat carriers) before your new entrant registration is revoked (49 CFR 385.319, 49 CFR 385.325). The overview explains the timeline.