FMCSA Out-of-Service Orders: What They Mean and How to Respond
Updated June 16, 2026 · 49 CFR §§385.13, 385.15, 385.17 · FMCSA Compliance — Article 3 of 3
Quick Answer
- ✓There are two OOS paths: (1) rating-based — Unsatisfactory determination → 45/60-day clock under §385.13/§385.15; (2) imminent hazard — immediate shutdown under §385.7, no notice required.
- ✓The 45/60-day clock starts from the final determination date under §385.15 — not the date of the compliance review. Carriers can still operate during this window.
- ✓Once the OOS order takes effect, all regulated operations must cease. Continued operation after the effective date carries civil penalties exceeding $16,000 per day under §386.
- ✓Carriers can file an upgrade petition under §385.17 with a corrective action plan. FMCSA typically reviews petitions within 30 days.
- ✓Missing §40.33 collector qualification records are one of the most commonly cited Controlled Substances BASIC deficiencies that lead to OOS proceedings.
- ✓A corrective action plan for the Controlled Substances BASIC must show certified collectors with on-file §40.33 records — a Cedar & Crown certificate IS that record.
Two Distinct Paths to an Out-of-Service Order
Not all FMCSA out-of-service orders work the same way. There are two legally distinct paths — one gives carriers advance notice and an opportunity to respond; the other shuts down operations immediately with no rebuttal window.
49 CFR §§385.13 / 385.15
FMCSA issues a proposed Unsatisfactory determination following a compliance review. The carrier has a 30-day rebuttal window under §385.13 to contest the proposed rating. If the rating is finalized, a 45-day (passenger/hazmat) or 60-day (freight) clock begins.
- ✓30-day rebuttal window before final determination
- ✓45 days (passenger) / 60 days (freight) to comply
- ✓Carrier can still operate during the clock period
- ✓Upgrade petition under §385.17 can stop the clock
49 CFR §385.7
FMCSA can issue an immediate out-of-service order when operations pose an imminent hazard to public safety. There is no 30-day rebuttal, no clock, no warning — operations must stop immediately upon receipt of the order.
- ✗No advance notice or proposed determination
- ✗No 30-day rebuttal window
- ✗Operations cease immediately on receipt
- ✗Triggered by immediate safety threats (see §385.13(d))
The 45/60-Day Clock: What Carriers Can and Cannot Do
Once FMCSA issues a final Unsatisfactory Safety Fitness Determination under §385.15, the out-of-service clock begins. The length of the clock depends on the type of carrier:
Passenger Carriers
45 Days
From final determination date
Freight / Hazmat Carriers
60 Days
From final determination date
Important: The clock starts from the final determination date under §385.15 — not the date of the compliance review, and not the date of the proposed determination under §385.13. Carriers who use the 30-day §385.13 rebuttal window and lose it will have a shorter runway before the OOS effective date.
✓During the Window — Carriers CAN
- ✓Continue transporting regulated cargo or passengers
- ✓Implement corrective actions for cited deficiencies
- ✓File an upgrade petition under §385.17
- ✓Hire certified collectors and gather §40.33 documentation
- ✓Contest the rating through the rebuttal process (§385.13)
✗After OOS Takes Effect — Carriers CANNOT
- ✗Transport regulated cargo (hazmat, commercial freight)
- ✗Carry regulated passengers (CDL-required vehicles)
- ✗Dispatch drivers in safety-sensitive functions
- ✗Operate under their existing DOT authority number
- ✗Re-open under a new DOT number to evade the OOS order
Civil Penalty Exposure: Operating After OOS Effective Date
Continuing to operate after the OOS order takes effect is not just a compliance violation — it is a federal enforcement action under 49 CFR Part 386 and 49 U.S.C. §521. FMCSA has authority to assess civil penalties for each day of continued operation.
| Violation | Authority | Max Penalty |
|---|---|---|
| Operating a CMV after OOS effective date | 49 CFR §386 / 49 U.S.C. §521 | Up to $16,000 per day per violation |
| Knowing violation / willful non-compliance | 49 U.S.C. §521(b)(2)(B) | Up to $27,000 per day per violation |
| Operating without a required drug testing program | 49 CFR §390.5T / §382.115 | Up to $16,000 per day |
| Re-registering under a new DOT number to evade OOS | 49 U.S.C. §13905 / §31144 | Authority revocation + criminal referral |
Drug Testing Deficiencies: The §40.33 Problem in OOS Cases
Among all the deficiencies that can lead to an Unsatisfactory rating, drug testing program gaps are consistently cited in FMCSA enforcement actions — and one of the most common gaps is deceptively simple: the carrier cannot produce §40.33 collector qualification records.
Under 49 CFR §40.33, every collector who processes DOT urine specimens must have completed: (1) a DOT collector training course, (2) a mock collection proficiency demonstration (minimum 5 scenarios), and (3) error correction training if an error has occurred. Carriers are responsible for verifying that their contracted collectors meet this standard — and for keeping documentation on file.
Missing §40.33 Training Documentation
The most common drug testing deficiency. Auditors ask for the collector's training certificate, mock collection proficiency documentation, and error correction records (if applicable). If a collector has no paperwork on file — regardless of whether they completed training — it is scored as an unqualified collector deficiency.
Cancelled Tests That Reduce the Effective Random Rate
CCF fatal flaws — including errors in the collector's section of the form — cause tests to be cancelled. Cancelled tests do not count toward the carrier's 50% random testing rate requirement under §382.305. A low effective rate is a direct Controlled Substances BASIC scoring deficiency.
Using a Non-Certified Collector for Observed Collections
Observed collections (required for return-to-duty, follow-up, and reasonable suspicion cases) must be conducted by a trained same-sex observer. Using an unqualified observer for an observed collection is both a §40.67 violation and a §40.33 qualification deficiency — dual scoring impact.
No Pre-Employment Test on File Before Safety-Sensitive Function
§382.301 requires a verified negative drug test result before a CDL driver performs safety-sensitive functions. A driver file missing a pre-employment result — or with a result that was processed by a non-§40.33-qualified collector — is a scored deficiency in the Controlled Substances BASIC.
What the Corrective Action Plan Must Show for the Controlled Substances BASIC
Under §385.17, a carrier's upgrade petition must include a corrective action plan (CAP) demonstrating that each cited deficiency has been corrected. For a Controlled Substances BASIC deficiency rooted in §40.33 documentation gaps, the CAP must show:
Cedar & Crown Certificate = The §40.33 Record Carriers Need
When a carrier's corrective action plan under §385.17 must show that their drug testing program now uses a qualified collector with on-file §40.33 records, the Cedar & Crown completion certificate is exactly that document. It demonstrates: (1) completion of a DOT collector training course, (2) mock collection proficiency, and (3) error correction training where applicable — the three components §40.33 requires. Carriers citing a missing collector credential in their OOS case can directly satisfy the FMCSA documentation requirement by hiring a Cedar & Crown-certified collector. This is not a soft benefit — it's a direct line between the upgrade petition and the $99 course.
The §385.17 Upgrade Petition: 5-Step Process
The upgrade petition under 49 CFR §385.17 is the formal process by which a carrier with an Unsatisfactory rating requests that FMCSA upgrade their safety fitness determination. Filing a petition — and having it accepted — is the primary mechanism for stopping the OOS clock.
The carrier submits a written petition to the FMCSA Service Center requesting an upgrade. The petition must include a corrective action plan (CAP) identifying each cited deficiency from the compliance review and describing the specific corrective actions taken. A petition without a complete CAP will be rejected without review.
FMCSA reviews the petition and corrective action plan to determine whether the documented corrections are sufficient to address the cited deficiencies. This review typically takes 30 days. If the CAP is incomplete or the documentation does not address the specific deficiencies cited, FMCSA will reject the petition and the OOS clock continues.
FMCSA may request additional documentation beyond the initial CAP submission. For drug testing deficiencies, this commonly includes: §40.33 collector qualification certificates, updated random testing pool records, pre-employment test results for new drivers, C/TPA verification letters, and supervisor training records. All documentation must be specific to the cited deficiency — generic policy statements are not accepted.
If the petition is accepted, FMCSA schedules a follow-up compliance review to verify that the corrective actions documented in the CAP have actually been implemented. This review focuses on the specific BASICs where deficiencies were cited. A carrier that passes the follow-up review will have its rating upgraded.
Following a successful follow-up compliance review, FMCSA issues an upgraded Safety Fitness Determination — typically to Conditional or Satisfactory depending on the scope of remaining records. The new rating is posted to SAFER and the carrier's public profile. The OOS order is lifted and the carrier may resume full operations.
What Gets Accepted vs. Rejected
✓ Accepted by FMCSA
- ✓Specific, citation-by-citation corrective action plan
- ✓§40.33 certificates naming specific collectors
- ✓Updated policy documents with implementation dates
- ✓Evidence of new pre-employment tests for recently hired drivers
- ✓Updated C/TPA agreement with collector verification language
- ✓Supervisor training records for reasonable suspicion
✗ Rejected by FMCSA
- ✗Generic policy statements without implementation evidence
- ✗Promises of future corrective action (not yet completed)
- ✗Collector credentials that don't match the cited deficiency
- ✗Petitions that don't address every cited deficiency
- ✗Documentation from a different time period than the review
- ✗Unsigned or undated corrective action plans
Imminent Hazard OOS Orders: §385.7 and §385.13(d)
The imminent hazard out-of-service order is categorically different from the rating-based path. Under 49 CFR §385.7 and the §385.13(d) exception, FMCSA can issue an immediate operations shutdown when continuing to operate would pose an imminent hazard to public safety. There is no proposed determination, no 30-day rebuttal window, and no clock — the order is effective immediately.
What Triggers an Imminent Hazard OOS
Drug & Alcohol Violations
Drivers operating with confirmed positive drug tests, carrier knowingly permitting impaired drivers to operate, systematic failure to test for controlled substances
Driver Fatigue / HOS Violations
Drivers operating beyond hours of service limits, systemic ELD tampering, evidence of widespread logbook falsification
Brake and Mechanical Failures
Fleet-wide brake deficiencies creating immediate crash risk, vehicles with known unsafe conditions dispatched repeatedly after OOS roadside orders
Pattern of Serious Crashes
Multiple fatalities linked to carrier's operational practices, crash pattern suggesting systemic rather than isolated failures
| Factor | Rating-Based (§385.13/385.15) | Imminent Hazard (§385.7) |
|---|---|---|
| Advance Notice | Yes — proposed determination | No — immediate order |
| Rebuttal Window | 30 days under §385.13 | None |
| Operating Window | 45 or 60 days | Zero — immediate shutdown |
| Petition Process | §385.17 upgrade petition | Emergency reinstatement petition |
| Triggers | Unsatisfactory compliance review | Imminent public safety hazard |
| Common Drug Testing Trigger | Missing §40.33 records, low random rate | Drivers testing positive continuing to operate |
Your §40.33 Collector Certificate Is the Document Carriers Need for Their Upgrade Petition
When a carrier files a §385.17 upgrade petition after an Unsatisfactory rating tied to drug testing deficiencies, FMCSA requires documented proof that the Controlled Substances BASIC deficiency is corrected. If the deficiency was a non-certified or unrecorded collector, the corrective action plan must show §40.33 qualification records. A Cedar & Crown certificate — issued at course completion — is exactly that record. One enrollment. One certificate. The document carriers need to satisfy the FMCSA documentation requirement.
Enroll for $99 — Get Certified Today →Re-Entry After OOS: What the Follow-Up Compliance Review Covers
Whether a carrier successfully filed an upgrade petition before the OOS effective date or had its authority revoked and is seeking reinstatement, the follow-up compliance review is the critical gate before operations can resume. This review is not a full re-examination of all BASICs — it focuses specifically on the deficiencies that triggered the Unsatisfactory rating.
Scope of the Follow-Up Review
The follow-up review is targeted. Auditors examine only the BASICs that were cited in the original compliance review as deficient. If the Controlled Substances BASIC was the primary deficiency, auditors will pull drug testing records: §40.33 collector qualification certificates, updated random testing pool documentation, pre-employment results for newly hired drivers, CCF copies, and any corrective action documentation from the CAP.
Typical Timeline
After a §385.17 petition is accepted, FMCSA typically schedules the follow-up review within 60 to 90 days. Carriers should have all corrective action documentation fully in place before the follow-up review date — not "in progress." FMCSA auditors do not give credit for planned actions; only completed and documented corrections count.
What Happens If Deficiencies Recur
If the follow-up review reveals that cited deficiencies have not been corrected — or that new deficiencies in the same BASIC categories have appeared — FMCSA can issue a new Unsatisfactory determination and restart the OOS clock. Carriers with a pattern of recurring Controlled Substances BASIC deficiencies may face accelerated enforcement timelines and are at higher risk for imminent hazard designation.
Upgrade to Conditional vs. Satisfactory
The upgrade from a follow-up review may result in either a Conditional or Satisfactory rating depending on the severity of remaining compliance gaps. A Conditional rating means the carrier addressed the OOS-level deficiencies but still has compliance gaps in other BASICs that require monitoring. A Satisfactory rating requires no outstanding deficiencies in any examined BASIC.
Full cluster: This is Article 3 of the FMCSA Enforcement Cluster. Article 1: FMCSA Safety Fitness Ratings covers the three carrier ratings and how SMS data feeds into them. Article 2: FMCSA Compliance Review Process covers what auditors examine and how to prepare.
Frequently Asked Questions
Can a carrier still operate during the FMCSA out-of-service window?+
Yes — during the 45-day window (60 days for hazmat/passenger carriers), the carrier CAN still operate. The out-of-service order does not take effect immediately upon the final Unsatisfactory determination under §385.15. It takes effect at the end of the clock period. The purpose of the window is to give the carrier time to correct deficiencies and file an upgrade petition under §385.17. Once the OOS order takes effect, all operations must cease.
How long does the FMCSA upgrade petition process take?+
After a carrier files an upgrade petition under §385.17 with a corrective action plan and supporting documentation, FMCSA typically reviews the petition within 30 days. If approved, FMCSA schedules a follow-up compliance review to verify the corrective actions were implemented. The follow-up review itself usually takes place within 60 to 90 days of petition approval. From start to finish — filing the petition to receiving a new rating — the process typically runs 90 to 180 days depending on the severity of original deficiencies and the completeness of the corrective action plan.
Does an FMCSA out-of-service order show on the CSA SMS?+
Yes. An Unsatisfactory Safety Fitness Determination — and any resulting out-of-service order — is publicly visible in FMCSA's Safety Measurement System (SMS) and on the SAFER carrier profile. The Unsatisfactory rating remains on the carrier's public profile until it is upgraded through the §385.17 petition process and a follow-up compliance review confirms the deficiencies are corrected. Shippers, brokers, and insurers routinely check SAFER before contracting with carriers.
Can a carrier permanently lose its operating authority after an out-of-service order?+
Yes. If a carrier continues operating after the OOS order takes effect and does not file a successful upgrade petition, FMCSA can revoke the carrier's operating authority under 49 U.S.C. §13905 and §31144. Civil penalties under §386 for continued operation after an OOS effective date can exceed $16,000 per day per violation. FMCSA can also pursue permanent revocation for carriers with a history of non-compliance or those who operated with actual knowledge of the OOS order.
What documents does FMCSA accept for drug program corrective action under §385.17?+
For a Controlled Substances BASIC deficiency, acceptable documentation for the §385.17 upgrade petition corrective action plan includes: §40.33 collector qualification certificates for all collectors currently used by the carrier (training course completion, mock collection proficiency, error correction training if required); a written policy acknowledging the prior deficiency and the corrective steps taken; updated C/TPA agreement confirming the TPA's collector verification process; pre-employment test results for any new CDL drivers; and updated random testing pool documentation. The certificate issued upon completing a DOT collector training course — such as Cedar & Crown's — is the §40.33 record FMCSA auditors are looking for.
Continue Learning
Complete the FMCSA Enforcement Cluster and explore related compliance guides
También disponible en español: Órdenes Fuera de Servicio FMCSA →
View the Course →