Is 49 CFR 396.9(c)(2) an acute or critical violation?

It is an acute violation on the FMCSA acute/critical list in 49 CFR Appendix B to Part 385. Acute means noncompliance is severe enough to require immediate corrective action.

Does 49 CFR 396.9(c)(2) automatically fail a new-entrant audit?

Yes. It is one of the 16 regulations in the 49 CFR 385.321 table that can automatically fail a new-entrant safety audit (single occurrence.).

§ 396.9(c)(2) — automatic failure

49 CFR 396.9(c)(2) in a new-entrant safety audit

49 CFR 396.9(c)(2) is one of the 16 regulations that can automatically fail a new-entrant safety audit under 49 CFR 385.321. Requiring or permitting the operation of a motor vehicle declared “out-of-service” before repairs were made. Single occurrence.

What does this regulation mean?

This is an acute violation of 49 CFR 396.9(c)(2): requiring or permitting the operation of a motor vehicle declared “out-of-service” before repairs were made. An acute regulation is one where noncompliance is severe enough to require immediate corrective action, regardless of a carrier's overall safety posture. A single documented occurrence counts against you.

How do I pass the audit on this point?

Keep the records that prove compliance current and complete before the audit, and be ready to show them for the period the auditor reviews. This is one of the 16 violations that can automatically fail a new-entrant safety audit under 49 CFR 385.321 (single occurrence), so it deserves priority attention.

Which audit factor is this scored under?

§ 396.9(c)(2) is scored under the Vehicle factor (Part 393, Part 396, and inspection data for the last 12 months) of the new-entrant safety audit. Points for Vehicle come from acute and critical violations of Part 396. When at least three roadside inspections are recorded in MCMIS in the prior 12 months and the vehicle out-of-service rate is 34% or higher, one additional point is assessed against the carrier (49 CFR Appendix A to Part 385).

Common questions

Is 49 CFR 396.9(c)(2) an acute or critical violation?: It is an acute violation on the FMCSA acute/critical list in 49 CFR Appendix B to Part 385. Acute means noncompliance is severe enough to require immediate corrective action.
Does 49 CFR 396.9(c)(2) automatically fail a new-entrant audit?: Yes. It is one of the 16 regulations in the 49 CFR 385.321 table that can automatically fail a new-entrant safety audit (single occurrence.).

Prep your own new-entrant audit

The CarrierReady Audit-Prep Kit gives you fillable templates mapped to all six factors — driver qualification files, a written maintenance program, a drug-and-alcohol testing policy, an accident register, and a document-by-document checklist.

See the kit

Primary sources

49 CFR Appendix B to Part 385 — verified as of 2026-07-04
49 CFR 385.321(b) — verified as of 2026-07-04

CarrierReady is an independent audit-preparation tool — not legal advice, and not affiliated with, endorsed by, or connected to the FMCSA or any government agency; always verify against the official regulations at ecfr.gov.