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What are the Chances of Getting a Violation?
The number of violations every year are relatively low, but the dollar amounts can be quite high. In our own experience we see a fair amount of civil cases where the proposed penalty exceeds $50,000 dollars for an undeclared air shipment by a medium sized company. Violations for ground shipments are a fraction of the size but can still add up. The new statutory maximum just went up last month to $75,000 per violation per day.
The top 5 ways the US DOT and FAA Track Down Violations (and Violators)
In our experience working on penalty cases there are a handful of mechanisms that trigger an investigation that could result in a DOT or FAA penalty case and violation:
DOT/FAA “Whistleblower” Reporting – Can your competitors (or former employees) turn you in?
Though they don’t refer to it as a “whistleblower” program, the DOT Enforcement Team does have a 24 hour hotline at 1-800-467-4922 (Press #4 to Anonymously Report a Violation) or you can also report it anonymously by a webform.
Many times companies are frustrated because they suspect that their competitors do not take the regulations as seriously as their own company does – they spend a lot of money on training, compliance, packaging and on certifying their employee in the warehouse and shipping department, and their competitors sell and ship the same product without declaring it as hazardous and avoiding those costs.
So, DOT gives companies these reporting options to help level the playing field and ensure that everyone is following the rules. Once an anonymous tip is received, the appropriate agency will schedule an inspection and either contact the company, or simply send out investigators. All tips are taken seriously.
The Difference between Civil and Criminal Penalties
The DOT and FAA classify civil penalties as “knowing” violations. That is to say that you should have known, or a reasonable person acting in a similar circumstance should have known about the regulations, but there was no willful intent to violate the rules – just an honest mistake. That’s when you get a fine, but you don’t normally face any jail time.
“Willful” violations are different – or they can be. This means you either knew that what you were doing (or responsible for doing) was against the rules and you did it anyway, or you turned a blind eye on the behavior and it resulted in the same thing. The DOT and FAA do not hand out criminal penalties very often, but when they can demonstrate that someone not only knew that they were violating the rules but intentionally violating or disregarding the rules – that’s when criminal sanctions, including prison time can be involved.
In our experience handling penalty cases, a criminal penalty is most likely to be applied when there is serious injury or property damage as a result of an intentional violation by the shipper (for example, deliberately using untrained personnel who improperly package or prepare a shipment that leaks or has an incident during transport resulting in serious damage, injury or death).