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Rule2024-29268

Implementing the Whistleblower Provisions of the Vehicle Safety Act

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Published

December 17, 2024

Effective

January 16, 2025

Issuing agencies

Transportation DepartmentNational Highway Traffic Safety Administration

Abstract

This final rule addresses an important source of motor vehicle safety information and fulfills a requirement in the Motor Vehicle Safety Whistleblower Act (Whistleblower Act) that NHTSA promulgate regulations on the requirements of the Act, in complement to NHTSA's existing whistleblower program. The Whistleblower Act authorizes the Secretary of Transportation to pay an award, subject to certain limitations, to eligible whistleblowers who voluntarily provide original information relating to any motor vehicle defect, noncompliance, or any violation or alleged violation of any notification or reporting requirement, which is likely to cause unreasonable risk of death or serious physical injury, if the information provided leads to the successful resolution of a covered action. This final rule defines certain terms important to the operation of the whistleblower program, outlines the procedures for submitting original information to NHTSA and applying for awards, discusses NHTSA's procedures for making decisions on award applications, and generally explains the scope of the whistleblower program to the public and potential whistleblowers.

Full Text

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<title>Federal Register, Volume 89 Issue 242 (Tuesday, December 17, 2024)</title>
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[Federal Register Volume 89, Number 242 (Tuesday, December 17, 2024)]
[Rules and Regulations]
[Pages 101952-101993]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-29268]

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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

49 CFR Part 513

[Docket No. NHTSA-2023-0014]
RIN 2127-AL85

Implementing the Whistleblower Provisions of the Vehicle Safety
Act

AGENCY: National Highway Traffic Safety Administration (NHTSA),
Department of Transportation (DOT).

ACTION: Final rule.

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SUMMARY: This final rule addresses an important source of motor vehicle
safety information and fulfills a requirement in the Motor Vehicle
Safety Whistleblower Act (Whistleblower Act) that NHTSA promulgate
regulations on the requirements of the Act, in complement to NHTSA's
existing whistleblower program. The Whistleblower Act authorizes the
Secretary of Transportation to pay an award, subject to certain
limitations, to eligible whistleblowers who voluntarily provide
original information relating to any motor vehicle defect,
noncompliance, or any violation or alleged violation of any
notification or reporting requirement, which is likely to cause
unreasonable risk of death or serious physical injury, if the
information provided leads to the successful resolution of a covered
action. This final rule defines certain terms important to the
operation of the whistleblower program, outlines the procedures for
submitting original information to NHTSA and applying for awards,
discusses NHTSA's procedures for making decisions on award
applications, and generally explains the scope of the whistleblower
program to the public and potential whistleblowers.

DATES:
Effective date: This rule is effective January 16, 2025.
Petitions for Reconsideration: If you wish to submit a petition for
reconsideration of this rule, your petition must be received by January
31, 2025.

ADDRESSES: Any petitions for reconsideration should refer to the docket
number set forth above (NHTSA-2023-0014) and be submitted to the

[[Page 101953]]

Administrator, National Highway Traffic Safety Administration, 1200 New
Jersey Avenue SE, West Building, Washington, DC 20590.

FOR FURTHER INFORMATION CONTACT: Dylan Voneiff, Office of the Chief
Counsel, National Highway Traffic Safety Administration (telephone:
(202) 763-8536), email: <a href="/cdn-cgi/l/email-protection#07637e6b666929716869626e61614763687329606871">[email&#160;protected]</a>; or Daniel Rabinovitz,
Office of the Chief Counsel, National Highway Traffic Safety
Administration (telephone: (202) 366-5263), email:
<a href="/cdn-cgi/l/email-protection#b2d6d3dcdbd7de9cc0d3d0dbdcddc4dbc6c8f2d6ddc69cd5ddc4">[email&#160;protected]</a>. The mailing address for these officials is:
National Highway Traffic Safety Administration, 1200 New Jersey Avenue
SE, Washington, DC 20590.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Executive Summary
II. Final Rule and Responses to Comments
A. General (Sec. 513.1)
B. Definitions (Sec. 513.2(b))
i. Collected Monetary Sanctions
ii. Contractor
iii. Covered Action and Related Administrative or Judicial
Action
iv. Dealership
v. Employee
vi. Independent Knowledge or Analysis
vii. Original Information
viii. Potential Whistleblower
ix. Whistleblower
C. Procedures for Submitting Original Information (Sec. 513.4)
D. Confidentiality (Sec. 513.5)
E. Prerequisites to the Consideration of an Award (Sec. 513.6)
F. Whistleblowers Ineligible for an Award (Sec. 513.7)
G. Provision of False Information (Sec. 513.8)
H. Procedures for Making a Claim for a Whistleblower Award
(Sec. 513.9)
I. Award Determinations (Sec. 513.10)
J. Appeals of Award Determinations (Sec. 513.11)
K. Form WB-INFO (Appendix A)
L. Form WB-RELEASE (Appendix B)
M. Form WB-AWARD (Appendix C)
III. Regulatory Analyses and Notices

I. Executive Summary

The Fixing America's Surface Transportation Act (FAST Act), Public
Law 114-94, established important protections and incentives for motor
vehicle safety whistleblowers. The Motor Vehicle Safety Whistleblower
Act (Whistleblower Act), Sections 24351-25352 of the FAST Act, amended
the National Traffic and Motor Vehicle Safety Act of 1966 (Safety Act)
to authorize the Secretary of Transportation (the Secretary) to pay an
award, subject to certain limitations, to eligible whistleblowers who
voluntarily provide original information relating to any motor vehicle
defect, noncompliance, or any violation or alleged violation of any
notification or reporting requirement of 49 U.S.C. Chapter 301, which
is likely to cause unreasonable risk of death or serious physical
injury, if that information leads to the successful resolution of a
covered action. Public Law 114-94, Sec. 24351-52, 129 Stat. 1716
(2015) (codifying ``Whistleblower incentives and protections'' at 49
U.S.C. 30172).
In addition to the statutory whistleblower protections and
incentives added by the FAST Act, Congress required NHTSA to promulgate
whistleblower regulations.\1\ NHTSA's notice of proposed rulemaking
(NPRM), published on April 14, 2023,\2\ proposed definitions of certain
terms important to the operation of the whistleblower program, outlined
the procedures for submitting original information to NHTSA and
applying for awards, discussed NHTSA's procedures for making decisions
on award applications, and generally explained the scope of the
whistleblower program to the public and potential whistleblowers.
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\1\ See 49 U.S.C. 30172(i).
\2\ 88 FR 23276 (Apr. 14, 2023).
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NHTSA received 14 comments on the NPRM. The proposal garnered
comments from whistleblower counsel and advocates, vehicle
manufacturers, industry associations, and individuals. These comments
are available in the docket for this rulemaking.\3\ After considering
the public comments, the Agency is issuing this final rule and
generally adopting the proposal without significant change.
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\3\ <a href="https://www.regulations.gov/document/NHTSA-2023-0014-0001">https://www.regulations.gov/document/NHTSA-2023-0014-0001</a>.
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II. Final Rule and Responses to Comments

In the NPRM, NHTSA proposed adding a new part to its regulations,
49 CFR part 513, to further implement the whistleblower program
established by the Whistleblower Act and codified at 49 U.S.C. 30172.
The proposal defined certain terms important to the operation of the
whistleblower program, outlined the procedures for submitting original
information to NHTSA and applying for awards, discussed the Agency's
procedures for making decisions on award applications, and generally
explained the scope of the whistleblower program to the public and
potential whistleblowers. The proposed rule sought to help facilitate
the Agency's identification of information provided by whistleblowers
to ensure that whistleblowers receive the protections accorded under
the statute and to inform the public of those limited circumstances
where information that could reasonably be expected to reveal the
identity of the whistleblower may be disclosed. NHTSA sought comments
on all aspects of the NPRM.
In response to the NPRM, NHTSA received comments from whistleblower
counsel and advocates, vehicle manufacturers, industry associations,
and members of the general public. Whistleblower counsel and advocates
submitting comments were Cohen Milstein Sellers & Toll PLLC (Cohen
Milstein); Constantine Cannon LLP (Constantine Cannon); Kohn, Kohn, and
Colapinto (Kohn); and the National Whistleblower Center. The individual
vehicle manufacturers that commented were Ford Motor Company (Ford) and
Hyundai Motor America (Hyundai). The industry associations that
submitted comments were the Alliance for Automotive Innovation (Auto
Innovators) and the vehicle supplier industry association Motor &
Equipment Manufacturers Association (MEMA). NHTSA also received
comments from some individuals.
Generally, most commenters shared their support for the creation of
a new part to NHTSA's regulations governing NHTSA's whistleblower
program. Commenters addressed many aspects of the rule, including the
definitions of certain terms, procedures for submitting information and
making a claim for an award, eligibility requirements for an award and
award determinations. The order of the topics or comments discussed in
this document is not intended to reflect the significance of the
comment raised or the standing of the commenter. Additionally, this
summary of the comments is intended to provide both a general
understanding of the overall scope and themes raised by the commenters,
as well as give some specific descriptions to provide context.
Whistleblower counsel and advocates generally commented in support
of broadening the definition of ``whistleblower,'' ``independent
knowledge or analysis,'' and ``covered action.'' These commenters
proposed relaxing internal reporting requirements and more specifically
defining protections against retaliation. Additionally, these
commenters proposed removing agency discretion for granting an award.
Generally, vehicle manufacturers and industry associations
commented in support of restricting the definition of whistleblower and
the definition of independent knowledge or analysis. Additionally,
these commenters suggested broadening disqualifications for an award.
Specifically, these

[[Page 101954]]

commenters proposed stricter internal reporting requirements and
proposed eliminating exceptions to these requirements.
Finally, most individual commenters expressed general support for
the goals and content of the proposed rule. Individual commenters
focused on the definition of whistleblower and the definition of
employee. Additionally, individual commenters expressed concerns about
the formalized process to be eligible for an award and the Agency's
discretion in granting an award.
This final rule generally adopts the proposal without substantive
change. In response to comments, NHTSA has clarified in this final rule
the timing for submitting an award claim. In the NPRM, NHTSA proposed a
potential whistleblower must file a claim for a whistleblower award by
completing the WB-AWARD form and submitting it to NHTSA no later than
ninety (90) calendar days from the date of the Notice of Covered
Action. This final rule specifies that if the ninetieth day falls on a
weekend or federal holiday, the claim deadline is the next business
day. NHTSA has also clarified in this final rule that the criminal
exclusion is limited to criminal violations decided by a United States
federal or state court--not by a foreign tribunal.
While NHTSA also agreed with many other issues raised by
commenters, for the reasons discussed below, it does not believe those
issues warrant additional or changed regulatory text. After
consideration of the comments, NHTSA believes this final rule
appropriately balances the need to provide additional guidance on
aspects of the statute and Agency's processes, while leaving room for
flexibility and case-by-case considerations. As NHTSA has learned
through working with numerous whistleblowers since enactment of the
FAST Act in 2015, each matter involves unique circumstances. NHTSA will
continue to consider these issues as it implements its whistleblower
program with the benefit of these new rules and will make future
refinements through rulemaking or guidance as necessary and
appropriate.
NHTSA maintains information about its whistleblower program on its
website, <a href="https://www.nhtsa.gov/laws-regulations/whistleblower-program">https://www.nhtsa.gov/laws-regulations/whistleblower-program</a>,
which it will continue to update with additional information and
developments.

A. General (Sec. 513.1)

Proposed rule Sec. 513.1 provided a general description of NHTSA's
whistleblower program. Specifically, it stated that Part 513 describes
the whistleblower program that the Agency has established to implement
the Motor Vehicle Safety Whistleblower Act, 49 U.S.C. 30172; explained
the procedures that the potential whistleblower will need to follow to
be eligible for an award; and discusses the circumstances under which
information that may reasonably be expected to reveal the identity of a
whistleblower may be disclosed by NHTSA. Additionally, it cautioned
potential whistleblowers to read the procedures carefully because
failure to take required steps within the time frames described could
result in disqualification from receiving an award.
NHTSA received no comments on proposed Sec. 513.1. NHTSA is
adopting Sec. 513.1 as proposed.

B. Definitions (Sec. 513.2(b))

i. Collected Monetary Sanctions
The NPRM contained a proposed definition clarifying that the term
``collected monetary sanctions'' means monies, including penalties and
interest, ordered or agreed to be paid and that have been collected by
the United States pursuant to the authority in 49 U.S.C. 30165 or under
the authority of 49 U.S.C. 30170. This proposed definition sought
consistency with the express terms of the statute, which provides:
``Any amount payable [to a whistleblower] . . . shall be paid from the
monetary sanctions collected, and any monetary sanctions so collected
shall be available for such payment.'' 49 U.S.C. 30172(b)(2).
Prior to publication of the NPRM, stakeholders advocated for court
ordered restitution to parties other than the United States to be
considered monetary sanctions under the regulation. The NPRM proposed
that ``collected monetary sanctions'' cannot reasonably be construed to
include such restitution intended to directly compensate victims and
other affected third parties (as opposed to penalties paid to the
United States).
Commenters Kohn and Constantine Cannon proposed that Congress
intended for ``collected monetary sanctions'' to include restitution
intended to directly compensate victims or other third parties. Kohn
suggested that restitution required by statute is congressional
allocation of monies owed to the United States and thus should be
considered money collected and allocated by the United States. Kohn
proposed that Congress could have decided to allocate those funds in a
different way and thus any sanction paid as the result of an
enforcement action must be considered a ``collected monetary
sanction.''
NHTSA declines to change its proposed definition. The FAST Act,
section 31202, appropriates to the Highway Trust Fund amounts
equivalent to ``covered motor vehicle safety penalty collections.'' The
section defines ``covered motor vehicle safety penalty collections'' as
any amount collected in connection with a civil penalty under 49 U.S.C.
30165, ``reduced by any award authorized by the Secretary of
Transportation to be paid to any person in connection with information
provided by such person related to a violation of Chapter 301 of such
title which is a predicate to such civil penalty.'' Based on this
section of the FAST Act, it is NHTSA's view that whistleblowers are
paid out of the money collected from a paid Safety Act penalty or fine,
which is further discussed below with respect to the definition of
``covered action.'' The Safety Act does not give NHTSA authority to
reallocate money collected as restitution intended to directly
compensate victims or other third parties. Additionally, Congress
neither created a victim allocation fund like that created by the Dodd-
Frank Act nor did Congress include restitution in its definition of
``monetary sanctions'' as it did in the Dodd-Frank Act.\4\ It is
NHTSA's view that ``collected monetary sanctions'' does not include
restitution intended to directly compensate victims or other third
parties because those funds are not ``collected'' by NHTSA.
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\4\ See 7 U.S.C. 26(a)(3); 12 U.S.C. 5497(b)(d)(1).
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Additionally, Kohn proposed that any monetary performance
obligations, including agreements to pay a certain amount towards a
performance obligation,\5\ should be included in the definition of
collected monetary sanctions. Kohn suggested that exclusion of money
used to satisfy performance obligations would give discretion to NHTSA
to manipulate a whistleblower's eligibility and the amount of an award.
Kohn asserted that this exclusion sends the wrong message and is
counter to legislative intent because it gives money back to the

[[Page 101955]]

wrongdoer and blocks a whistleblower from obtaining a larger award.
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\5\ See In re Hyundai Motor America, Inc. RQ17-004, NHTSA Recall
No. 15V-568, NHTSA Recall No. 17V-226, Consent Order, Para. 21,
available at <a href="https://www.nhtsa.gov/sites/nhtsa.dot.gov/files/documents/rq17-004_hyundai_consent_order_executed_11272020.pdf">https://www.nhtsa.gov/sites/nhtsa.dot.gov/files/documents/rq17-004_hyundai_consent_order_executed_11272020.pdf</a>
(consent order including performance obligations to invest in safety
data analytics and development of a testing laboratory); see also In
Re Daimler Trucks North America LLC, AQ18-002 Consent Order, Para.
12(c), available at <a href="https://www.nhtsa.gov/sites/nhtsa.dot.gov/files/documents/aq18-002_consent_order_executed.pdf">https://www.nhtsa.gov/sites/nhtsa.dot.gov/files/documents/aq18-002_consent_order_executed.pdf</a> (consent order
including performance obligations to invest in safety data analytics
infrastructure).
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NHTSA does not find this suggestion persuasive. NHTSA does not view
performance obligations as constituting a ``collected'' monetary
sanction. Additionally, NHTSA disagrees that exclusion of money used to
satisfy performance obligations is in any way a pretext for allowing
NHTSA to block whistleblowers from receiving a larger award. Unlike
``collected'' monetary sanctions, money used to satisfy performance
obligations may be an important component of a resolution, helping to
ensure that a regulated entity sufficiently addresses ongoing and
sustainable compliance with the Safety Act and NHTSA's safety
regulations. If there is a collection of the performance obligation
amounts in the form of a monetary payment to the United States
government as a result of a violation of a consent order, NHTSA agrees
that amount is then considered a ``collected'' monetary sanction.
Likewise, in those cases where the agreement specifies that if the
total performance amount is not spent and the company is liable for a
payment to NHTSA for the balance of the unspent performance amount,\6\
and the company pays such amount to NHTSA, that is considered a
``collected'' monetary sanction.
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\6\ See In re Kia Motors America, RQ17-003, NHTSA Recall 17V-
224, Consent Order, Para. 26, available at <a href="https://www.nhtsa.gov/sites/nhtsa.dot.gov/files/documents/rq17-003_kia_consent_order_executed_11272020.pdf">https://www.nhtsa.gov/sites/nhtsa.dot.gov/files/documents/rq17-003_kia_consent_order_executed_11272020.pdf</a>.
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Similarly, ``deferred penalties'' or ``abeyance amounts'' agreed to
be paid as a monetary penalty in the event that the company violates
the consent order, the Safety Act, or the regulations thereunder are
``collected monetary sanctions'' if and when the deferred penalty or
abeyance amount is actually paid to the United States government.
These views are consistent with the statutory requirement that:
``Any amount payable [to a whistleblower] . . . shall be paid from the
monetary sanctions collected, and any monetary sanctions so collected
shall be available for such payment.'' 49 U.S.C. 30172(b)(2). Penalties
allocated to performance obligations and deferred penalties that have
not been paid to the United States government are neither ``collected''
nor ``available for [ ] payment.''
ii. Contractor
The NPRM contained a proposed definition of ``contractor'' as an
individual presently or formerly providing goods or services to a motor
vehicle manufacturer, part supplier, or dealership pursuant to a
contract. NHTSA continues to believe that the definition must include
both present and former contractors to maximize the reach and
effectiveness of the whistleblower program. For example, if a company
terminates a contractor after the contractor reports safety issues, it
would not serve the purpose of the Whistleblower Act to bar such a
contractor from an award simply because the contractor no longer works
for the company. Additionally, whether a contractor is currently or
formerly employed has no bearing on whether the contractor has
information that might assist NHTSA's vehicle safety work.
One commenter asked if the above definition of ``contractor''
includes independent contractors. The definition is inclusive of
independent contractors and there is no restriction or minimum on how
long they worked for or with the motor vehicle manufacturer, part
supplier, or dealership.
iii. Covered Action and Related Administrative or Judicial Action
NHTSA's proposed definitions of ``covered action'' and ``related
administrative or judicial action'' are based on the definition found
in 49 U.S.C. 30172(a)(1). The proposed definition of ``covered action''
includes any administrative or judicial action, including any related
administrative or judicial action brought by the Secretary, NHTSA, or
the U.S. Attorney General (Attorney General) under 49 U.S.C. Chapter
301, or the regulations in Chapter 301 that in the aggregate results in
monetary sanctions exceeding $1,000,000. Additionally, the proposed
rule explains that the more than $1,000,000 threshold can be satisfied
if the total amount of monetary sanctions paid by multiple defendants
or parties and collected by the United States totals more than
$1,000,000 from the covered action. The proposed definition of
``related administrative or judicial action'' includes ``an action that
was brought under 49 U.S.C. Chapter 301 by the U.S. Department of
Justice, the U.S. Department of Transportation, or the Agency, and is
based on the original information provided by the whistleblower.''
NHTSA explained in the NPRM that since the statute specifies that
an action is brought by the Secretary or Attorney General ``under this
chapter,'' the statute is referring solely to 49 U.S.C. Chapter 301 and
the regulatory obligations promulgated under 49 U.S.C. Chapter 301, as
the Whistleblower Act was codified as part of 49 U.S.C. Chapter 301.
Some commenters supported NHTSA's proposed definition. Hyundai
agreed that covered actions and related administrative and judicial
actions should arise directly under Chapter 301 and the parenthetical
phrase ``including any related administrative and judicial action''
does not encompass actions outside of Chapter 301.
Conversely, some commenters disagreed with this definition and
proposed ``related administrative and judicial action'' to include any
related administrative or judicial action, even those not under Chapter
301. Constantine Cannon asserted that interpreting ``related'' action
to mean a subset of ``any administrative or judicial action'' makes the
phrase superfluous and pointed to other areas of the statute that
define related action to include actions taken outside of Chapter 301.
NHTSA disagrees that its reading of the statute renders the word
``related'' superfluous. An example of related actions under the
Vehicle Safety Act might be a civil penalty action for a reporting
violation of 49 U.S.C. 30166 and a criminal action with respect to the
same reporting, pursuant to 49 U.S.C. 30170(a). Moreover, as stated in
the NPRM, despite 49 U.S.C. 30172(c)(2)(A)'s mandate that no award
shall be made to any whistleblower who is convicted of a criminal
violation ``related to the covered action'' for which the whistleblower
would otherwise receive an award, NHTSA does not believe the use of the
word ``related'' in that context is relevant to the scope of a related
action under 49 U.S.C. 30172(a)(1). The purpose of the criminal
conviction provision in section 30172(c)(2)(A) is to ensure that a
whistleblower cannot benefit from their own wrongdoing. That provision
is not limited to a related action ``under this chapter'' and thus has
a different (broader) scope based on the plain text of the statute.
The National Whistleblower Center proposed regulatory language that
covered actions under the Whistleblower Act include federal enforcement
actions outside of Chapter 301. The National Whistleblower Center also
proposed a requirement that NHTSA work and coordinate with the U.S.
Department of Labor, the U.S. Securities and Exchange Commission (SEC),
the Internal Revenue Service, the U.S Commodity Futures Trading
Commission (CFTC), the U.S. Environmental Protection Agency, the
Federal Trade Commission, and/or the U.S. Department of Justice on any
matters related to the Whistleblower Act that may also implicate the
violation of laws enforced by these agencies. To

[[Page 101956]]

further support these proposals, a few commenters pointed to the SEC
and CFTC's ability to include actions brought by other agencies under
their definitions of ``covered action.'' NHTSA does not find these
proposals persuasive.
Unlike the Whistleblower Act, the SEC and CFTC's governing statutes
include a definition of ``related action.'' \7\ Both of these
definitions of ``related action'' specifically incorporate by reference
actions brought by other specified, federal agencies. The Whistleblower
Act does not contain a definition of related action or any reference to
actions other than those brought under Chapter 301.\8\ ``[R]elated
action'' under 49 U.S.C. Chapter 301 is given effect by considering two
actions under 49 U.S.C. Chapter 301. For example, if NHTSA pursues two
separate enforcement actions for violations of 49 U.S.C. Chapter 301,
or regulations thereunder, against two different companies (for
example, a supplier and a vehicle manufacturer) based on the same facts
provided by a whistleblower, in that case, the two separate actions
would be related.\9\
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\7\ See 7 U.S.C. 26(a)(5); 15 U.S.C. 78u-6(a)(5).
\8\ Similarly, a few commenters also proposed that the barriers
to NHTSA's acquisition of information from other agencies, such as
information regarding whether whistleblower information was used to
bring an administrative action, cannot restrict the definition of
``covered action.'' Again, commenters point to the SEC and CFTC's
ability to obtain information from other agencies to support this
assertion. NHTSA believes the plain language of its governing
statute is determinative of the definition of ``covered action''
and, as described, unlike the Dodd-Frank Act, the Whistleblower Act
does not mandate coordination with agencies other than DOJ, when
necessary.
\9\ NHTSA's first whistleblower award was given to a
whistleblower who provided information that led to enforcement
actions resulting in consent orders with two companies (Hyundai
Motor America, Inc. and Kia Motors America, Inc.). See <a href="https://www.nhtsa.gov/sites/nhtsa.gov/files/2022-02/whistleblower-decision-letter-RQ17-003-Kia-RQ17-004-Hyundai_web.pdf">https://www.nhtsa.gov/sites/nhtsa.gov/files/2022-02/whistleblower-decision-letter-RQ17-003-Kia-RQ17-004-Hyundai_web.pdf</a>.
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NHTSA continues to believe that the plain language of the statute
is clear and that NHTSA does not have discretion under the statute to
consider actions taken under other statutes (such as separate criminal
statutes) as part of a ``covered action,'' even if such actions involve
vehicle safety issues and/or are based on facts common to an action
taken under 49 U.S.C. Chapter 301.
Kohn outlined concerns that the Department of Justice has a
historical preference for bringing actions under Title 18 and the
exclusion of monetary sanctions from actions brought under Title 18
will dissuade whistleblowers from coming forward. Similarly, Cohen
Milstein, along with other commenters, voiced concerns that a
whistleblower would lose incentive to report if an award is dependent
on how the government chooses to pursue a wrongdoer. Although NHTSA
acknowledges these concerns, the plain language of the statute does not
allow NHTSA to include every action under Title 18 or otherwise broaden
the reach of the statute.
Additionally, a few commenters argued the specific fund from which
NHTSA is obligated to pay a whistleblower should not constrict the
definition of ``covered action.'' However, NHTSA does not believe that
the existence of a particular fund is what is restricting the
definition of ``covered action.'' Rather, NHTSA continues to believe
that a whistleblower cannot be issued an award percentage of monies
paid by a company for criminal violations of statutes other than the
Safety Act. Such a reading would be inconsistent with the requirement
of the statute that the action be brought ``under this chapter.'' For
example, a criminal action for wire fraud under 18 U.S.C. 1343 is not
an action under the Safety Act (49 U.S.C. Chapter 301). However, a
criminal action brought under 49 U.S.C. 30170, the criminal penalties
provision of the Safety Act, would constitute an action ``under this
chapter.'' \10\
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\10\ Section 30170(a)(1) provides for criminal liability for
falsifying or withholding information. It states: ``A person who
violates section 1001 of title 18 with respect to the reporting
requirements of section 30166, with the specific intention of
misleading the Secretary with respect to motor vehicle or motor
vehicle equipment safety related defects that have caused death or
serious bodily injury to an individual (as defined in section
1365(g)(3)[1] of title 18), shall be subject to criminal penalties
of a fine under title 18, or imprisoned for not more than 15 years,
or both.''
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In sum, a covered action does not include any action brought by the
U.S. Department of Justice under any statute other 49 U.S.C. Chapter
301.
iv. Dealership
NHTSA proposed to define ``dealership'' using a broader definition
than the statutory definition of ``dealer'' found in 49 U.S.C.
30102(a)(2). Specifically, NHTSA proposed a ``dealership'' means a
person selling and distributing motor vehicles or motor vehicle
equipment primarily to purchasers that in good faith purchase the
vehicles or equipment other than for resale. The definition is not
limited to a dealership selling new motor vehicles, as in the statutory
definition of ``dealer.'' For example, an employee of a used car dealer
could identify and bring to the Agency's attention a safety defect in a
vehicle that has not been timely recalled.
Auto Innovators proposed that dealership should only include those
with a franchise relationship to the manufacturer and whose products
are being reported to NHTSA. Auto Innovators stated it does not believe
dealerships without a franchise relationship will likely possess
original information.
NHTSA disagrees. A dealership without a franchise relationship can
obtain information gained from experiences, communications, and
observations. For example, individuals who work at a dealership without
a franchise relationship work with motor vehicles and motor vehicle
equipment on daily basis and receive purchaser complaints and ready
vehicles and vehicle parts for sale. Additionally, some of these
dealerships specialize in a particular make and model of a car and
would be able to detect issues with the motor vehicles or motor vehicle
parts that are likely to cause a risk to motor vehicle safety.
Therefore, NHTSA disagrees with Auto Innovators' proposal and believes
a limited definition of dealership would not serve the purpose of the
Whistleblower Act and would inhibit the reporting of potential safety
defects that are likely to cause unreasonable risk of death or serious
physical injury.
v. Employee
The proposed definition of ``employee'' defined ``employee'' as an
individual presently or formerly employed by a motor vehicle
manufacturer, part supplier, or dealership. The proposed definition
included both present and former employees to maximize the reach and
effectiveness of the whistleblower program. As noted above, it would
not serve the purpose of the Whistleblower Act to bar a former employee
from an award simply because he or she no longer works for the motor
vehicle manufacturer, part supplier, or dealership.
The comments all favored the proposed definition of employee to
include owners of a motor vehicle manufacturer, part supplier, or
dealership. However, Auto Innovators proposed owners of these
businesses should not be allowed to benefit if they are reporting their
own misconduct or the misconduct of the business enterprise that they
own. Constantine Cannon addressed Auto Innovators concern by pointing
to proposed Sec. 513.7, on whistleblower ineligibility, which bars
whistleblowers who deliberately or substantially contribute to the
alleged violation. NHTSA agrees with this view. Further, Auto
Innovators

[[Page 101957]]

proposed a definition of owner that specifies whether the term owner
includes anyone with an ownership interest in a business regardless of
the size of their interest or the size of their share of a publicly
traded company. NHTSA disagrees with a need to define ``owner.''
Rather, it is NHTSA's position that an owner in this context is
generally someone who both owns at least part of a company and holds a
permanent employment position or manages at least one employee (e.g.,
an owner does not need to be involved in a company's day-to-day
operations, but instead can have some sort of limited managerial
relationship with the person who manages a company's day-to-day
operations).
For example, as proposed by Kohn, owners of dealerships are in an
excellent position to gather customer complaints that have a
significant impact on public safety. Similarly, NHTSA believes partial
owners of businesses who manage employees and oversee operations can
learn about and witness safety defects within the supply chain that
were not otherwise reported to NHTSA.
Constantine Cannon also proposed the definition of employee should
include employees of an automaker's foreign parent company. NHTSA
agrees but does not find a need to change the proposed definition to
encompass these individuals. The definition of whistleblower under 49
U.S.C. 30172(a)(6) is not limited to those in the United States. The
definition in 49 U.S.C. 30172(a)(6) specifies that a whistleblower is
an individual who, among other requirements, is an ``employee or
contractor of a motor vehicle manufacturer, part supplier, or
dealership.'' The definitions of motor vehicle manufacturer, part
supplier, and dealership found in 49 U.S.C. 30102 are also not
restricted to only businesses based in the United States. Thousands of
motor vehicles and motor vehicle parts are imported and used in the
United States every year. Potential whistleblowers who are currently or
formerly employed outside the United States might possess vital
information related to potential safety defects which are likely to
cause unreasonable risk of death or serious physical injury. For
example, NHTSA relied upon information from and issued an award to a
whistleblower working in South Korea who supplied NHTSA with
information in connection to Hyundai Motor America, Inc. and Kia Motors
America, Inc.'s violations of the Safety Act.\11\ Therefore, it is
imperative for NHTSA's safety mission to include those employed outside
the United States within the scope of the definition of ``employee.''
NHTSA has not limited the definition of employee to individuals within
the United States and does not find a change to be necessary.
---------------------------------------------------------------------------

\11\ See Yang, Heekyong, Hyundai Motor whistleblower, $24 mln in
hand, plans to help others speak up, Reuters, Nov. 14, 2021, <a href="https://www.reuters.com/business/autos-transportation/hyundai-motor-whistleblower-24-mln-hand-plans-help-others-speak-up-2021-11-12/">https://www.reuters.com/business/autos-transportation/hyundai-motor-whistleblower-24-mln-hand-plans-help-others-speak-up-2021-11-12/</a>;
see also NHTSA Makes Its First Ever Whistleblower Award, Nov. 9,
2021, <a href="https://www.nhtsa.gov/press-releases/first-whistleblower-award">https://www.nhtsa.gov/press-releases/first-whistleblower-award</a>.
---------------------------------------------------------------------------

Finally, individual commenters proposed including relatives of
employees and contractors and specifying whether there is a minimum
time requirement to be considered an employee. NHTSA does not believe
that relatives of employees and contractors meet the definition of
``whistleblower'' found in 49 U.S.C. 30172(a)(6). Congress specifically
and unambiguously defined a ``whistleblower'' as an employee or
contractor and made no mention of those related to an employee or
contractor. NHTSA also does not believe that there needs to be a
minimum time requirement that an individual worked at a motor vehicle
manufacturer, part supplier, or dealership for that individual to be
considered an employee. Since no time limitation was specified in the
definition, NHTSA finds a change to be unnecessary.
vi. Independent Knowledge or Analysis
NHTSA proposed a definition of ``independent knowledge or
analysis'' because Section 30172(a)(3)(A) states that original
information is information that ``is derived from independent knowledge
or analysis of an individual'' (emphasis added). The proposed
definition defines ``independent knowledge'' as factual information in
the potential whistleblower's possession that is not generally known or
available to the public and is not already known to NHTSA. Publicly
available sources include both sources that are widely disseminated,
such as corporate press releases and filings, and media reports, as
well as sources that, while not widely disseminated, are generally
available to the public, such as court filings and documents obtained
through Freedom of Information Act requests.
The proposed definition does not require that a potential
whistleblower have direct, first-hand knowledge of potential
violations. The proposed definition states that the potential
whistleblower may gain independent knowledge from the potential
whistleblower's experiences, communications and observations in the
potential whistleblower's business or social interactions.
MEMA disagreed with the proposed definition's inclusion of those
without direct, first-hand knowledge of potential violations. MEMA
proposed that those without first-hand knowledge would be unable to
assess a potential safety violation resulting in the circumvention of
internal processes and communications between part manufacturers and
original equipment manufacturers (OEMs). NHTSA disagrees. Those without
``first-hand'' knowledge, such as an employee of a used-car dealership,
may still have the requisite expertise to conduct their own personal
analysis and identify a potential safety violation. They might get
regular complaints about a particular issue or conduct repairs related
to a particular issue on a regular basis. However, only those
individuals who are employees or contactors of a motor vehicle
manufacturer, part supplier, or dealership could be eligible for an
award if they meet the other requirements of 49 U.S.C. 30172 and
regulations thereunder.
The proposed definition of ``independent knowledge or analysis''
further provided that information will not be considered to have been
derived from an individual's ``independent knowledge or analysis'' in
some situations.
The first proposed exclusion was for information that was obtained
solely through a communication that is subject to attorney-client
privilege or the work product doctrine. When describing the proposed
exclusion, the NPRM recognized that there are some exceptions to
various privileges, such as Federal Rule of Civil Procedure 26(b)(3)
(providing that materials prepared in anticipation of litigation may be
discovered by an adverse party if the party shows ``substantial need''
and ``undue hardship''), and the crime-fraud exception to the attorney-
client privilege.
Several commenters proposed that all information that would be
admissible in an administrative, civil, or criminal proceeding should
be considered information upon which a reward can be based. Kohn
supported this by stating NHTSA's proposed exclusion will encourage
corporations to abuse attorney-client privilege. Auto Innovators
proposed that NHTSA should establish a process to isolate information
while a privileged information determination is made. The National
Whistleblower Center

[[Page 101958]]

proposed a definition excluding information subject to attorney-client
or work-product privilege unless it would otherwise be permitted by
applicable state attorney conduct rules or rules approved by the
Secretary. Similarly, Constantine Cannon proposed that NHTSA use the
same definition used by the SEC and CFTC, which includes exclusions for
communications subject to attorney-client privilege or in connection
with the legal representation that a putative whistleblower has been
providing to an employer or firm, unless disclosure is authorized by
the applicable federal or state attorney conduct rules.
NHTSA has determined that, pursuant to the District of Columbia
Rules of Professional Conduct, attorneys in its Office of the Chief
Counsel may not review materials protected by attorney-client
privilege. This determination is based on our understanding of the
District of Columbia Bar's Ethics Opinion 318: Disclosure of Privileged
Material by Third Party.\12\ The exclusion is not intended to preclude
an individual who has independent knowledge or analysis of potential
Safety Act violations from becoming a whistleblower if that person
chooses to consult with an attorney or is an attorney. Rather, this
exclusion prohibits an employee or contractor from revealing attorney-
client privileged or work product information that they learned of
solely through a privileged communication. Thus, NHTSA believes the
proposed definition remains appropriate and is adopting it in this
final rule.
---------------------------------------------------------------------------

\12\ D.C. Bar, Formal Op. 318 (2002) (discussing ethical
obligations when privileged material may have been taken without
authority).
---------------------------------------------------------------------------

The second proposed exclusion is for information that was obtained
in a means or manner that is determined by a United States federal
court or state court to violate applicable federal or state criminal
law.
Some commenters disagreed with excluding information if the
information was obtained in a means or manner found to be illegal by a
state court. The National Whistleblower Center proposed language that
limits excluded information to information obtained by means or in a
manner determined by a United States federal court to violate federal
or state criminal law. Kohn proposed removing the exclusion of
information obtained in violation of state law because of the
possibility of preemption and the differences between state and federal
law.
NHTSA disagrees with this proposal. NHTSA believes information
obtained in violation of state law should be excluded. NHTSA does not
want to encourage employees to obtain information for NHTSA by any
means or manner. For example, theft is generally a charge brought under
state law rather than federal law. NHTSA does not want to encourage
potential whistleblowers to illegally obtain information. In these
cases, preemption would generally not be at issue.
In the NPRM, NHTSA urged potential whistleblowers to use caution
when providing NHTSA with information covered by a legally binding
order or a confidentiality agreement. NHTSA's NPRM recommended that
those potential whistleblowers consult with private counsel before
submitting such information to NHTSA.
Kohn disagreed with the Agency's proposed suggestion for potential
whistleblowers under binding nondisclosure agreements to consult
private counsel before providing NHTSA with information. Kohn proposed
this suggestion will make whistleblowers think that they are forced to
hire private counsel. Similarly, Kohn proposed that the regulations
should prohibit private contracts, employment agreements or settlement
agreements from interfering with a whistleblower's disclosure to NHTSA.
NHTSA disagrees with Kohn on these issues.
NHTSA is obligated to adhere to and support a whistleblower's
statutory protections, but NHTSA's attorneys do not represent
whistleblowers. Whistleblowers should be aware that ``[t]o the extent
protective orders, settlement agreements, or other confidentiality
provisions prohibit motor vehicle safety-related information from being
transmitted to NHTSA, such limitations are contrary to established
principles of public policy and law, including Rule 26 of the Federal
Rules of Civil Procedure and its state corollaries which require a
showing of good cause to impose confidentiality.'' \13\ However, NHTSA
cannot advise a whistleblower that the agreement they are bound by
lacks good cause to impose confidentiality. Therefore, if a
whistleblower needs legal advice, they should obtain their own private
legal counsel. NHTSA continues to suggest that potential whistleblowers
who are aware of material protected by a protective order should not
provide the documents subject to the order to NHTSA; whistleblowers
should inform NHTSA about the existence of such documents without
revealing the substance of the material under the protective order.
---------------------------------------------------------------------------

\13\ NHTSA Enforcement Guidance Bulletin 2015-01: Recommended
Best Practices for Protective Orders and Settlement Agreements in
Civil Litigation, 81 FR 13026 (Mar. 11, 2016).
---------------------------------------------------------------------------

The NPRM also asked if commenters had suggestions for additional
exclusions, including those similar to the exclusions under
``independent knowledge'' or ``independent analysis'' within the SEC
and CFTC whistleblower programs. One example of a potential exclusion
mentioned in the NPRM was excluding information obtained solely because
the potential whistleblower is an officer, director, trustee or partner
of an entity or a person whose principal duties involve compliance or
internal audit responsibilities. The National Whistleblower Center
(NWC) proposed that an officer, director, trustee, partner of an
entity, or auditor of or within an entity who learns about information
from another individual within the entity should generally be excluded
from the rule because they lack original information from independent
knowledge. Specifically, the NWC proposed that these individuals should
be excluded from the rule if they learned about the subject information
via an entity's normal processes for identifying, reporting, and
addressing potential violations. Additionally, the NWC proposed that
individuals whose duties include audits and internal investigations
into possible violations also be excluded from the rule.
Conversely, Kohn agreed with NHTSA's proposal to not exclude a
potential whistleblower solely because the potential whistleblower was
or is an officer, director, trustee or partner. Additionally, Kohn
supported NHTSA's proposal to include those participating in or
observing internal audit processes. Kohn reasoned that auditors can be
pressured to water down reports and this allowance would deter
companies from enforcing this pressure. After consideration of the
comments, NHTSA has decided it should not exclude officers, directors,
trustees or partners. NHTSA believes officers, directors, trustees,
partners, and persons whose principal duties involve compliance or
internal audit responsibilities all have the potential to learn
important information concerning vehicle safety. Furthermore, NHTSA
disagrees with the NWC's proposed exclusion because NHTSA believes such
individuals may have information that is not generally known or
available to the public and is not already known to NHTSA. Excluding
such individuals could prevent such valuable safety information from
reaching the Agency. Consequently, NHTSA will not exclude such
individuals.

[[Page 101959]]

However, as discussed above, any illegal action by these persons to
obtain the information excludes them from receiving a whistleblower
award.
vii. Original Information
Proposed Sec. 513.2(b) defined ``original information'' as
information that is derived from the independent knowledge or analysis
of an individual, is not known to the Secretary or Agency from any
other source, unless the individual is the original source of the
information; and is not exclusively derived from an allegation made in
a judicial or an administrative action, in a governmental report, a
hearing, an audit, or an investigation, or from the news media, unless
the individual is a source of the information. Proposed Sec. 513.2(b)
required that original information be provided to the Agency for the
first time after December 4, 2015.
Thomas Kowalick commented, disagreeing with the Agency's proposed
prohibition on information provided to the Agency prior to December 4,
2015. However, December 4, 2015 is the date on which Congress enacted
the FAST Act. Consequently, this limitation in 513.2(b) is based on the
rule of construction contained in Section 24352(b) of the FAST Act.
Other commenters supported NHTSA's proposed limitation.\14\
---------------------------------------------------------------------------

\14\ Kohn, again, noted their disagreement with the Agency's
proposed definition of independent knowledge. See NHTSA's analysis
of this comment under the discussion of ``Independent Knowledge or
Analysis.''
---------------------------------------------------------------------------

The Agency also is making minor edits to the definition of
``original information that leads to a successful resolution'' for
clarity.
viii. Potential Whistleblower
To differentiate from the statutory definition of ``whistleblower''
that contains a number of prerequisites that need to be met to fall
under the definition, NHTSA proposed the term ``potential
whistleblower'' for the sake of clarity. The proposed definition of
potential whistleblower refers to an employee or contractor of a motor
vehicle manufacturer, part supplier, or dealership submitting
information to the Agency in accordance with and pursuant to Part 513.
Potential whistleblowers will be treated as receiving the whistleblower
protections set forth in 49 U.S.C. 30172(f).
Commenters agreed with NHTSA's proposal to treat potential
whistleblowers as subject to the protections in 49 U.S.C. 30172(f).
Kohn disagreed with limiting a potential whistleblower to an employee
or contractor of a motor vehicle manufacturer, part supplier, or
dealership. Kohn proposed that anyone who submits information to NHTSA
should be considered a potential whistleblower and NHTSA's
determination with respect to whether or not a potential whistleblower
is eligible should be a separate analysis. NHTSA disagrees with this
proposal. NHTSA will not be able to determine whether a person is a
``whistleblower'' until, at the very least, that person submits
information to the Agency and it is evaluated. 49 U.S.C. 30172 limits
whistleblower protections to ``any employee or contractor of a motor
vehicle manufacturer, part supplier, or dealership.'' NHTSA does not
have the authority to broaden that definition and does not want to
encourage people who do not qualify to submit information to NHTSA's
whistleblower program. For example, a significant quantity of
information that NHTSA receives on vehicle safety issues comes from
ordinary vehicle owners and that information is not appropriate for
handling under the whistleblower program. NHTSA cannot reasonably
consider anyone who submits information to the agency to be a
whistleblower, and doing so would divert resources from and adversely
impact legitimate whistleblowers. The definition of potential
whistleblower as requiring someone to meet the basic requirement of
being an employee or contractor of a motor vehicle manufacturer, part
supplier, or dealership, in accordance with the statutory definition,
appropriately protects those individuals for whom the statutory
protections were designed.
ix. Whistleblower
Proposed Sec. 513.2(b) defined ``whistleblower'' as any employee
or contractor of a motor vehicle manufacturer, part supplier, or
dealership who voluntarily provides to the Agency original information
relating to any motor vehicle defect, noncompliance, or any violation
or alleged violation of any notification or reporting requirement set
forth in 49 U.S.C. Chapter 301 or regulations thereunder, which is
likely to cause unreasonable risk of death or serious physical
injury.\15\
---------------------------------------------------------------------------

\15\ This definition of whistleblower follows the definition
found in 49 U.S.C. 30172(a)(6) except that the proposed rule uses
the term ``Agency'' and clarifies that ``any violation or alleged
violation of any notification or reporting requirements of this
chapter'' refers to 49 U.S.C. Chapter 301 and regulations
promulgated thereunder for clarity.
---------------------------------------------------------------------------

Commenters generally supported NHTSA's proposed definition of
whistleblower. Auto Innovators proposed that the regulatory definition
should not include entities not covered by the statutory definition of
whistleblower such as advocacy groups, media reporters, industry trade
associations, or third parties. NHTSA has concluded that the proposed
scope was appropriate and consistent with the statute. While NHTSA
requested comment on whether employees of trade groups should be
included in the definition, after consideration of the comments, NHTSA
believes that such an expansion would not be consistent with the
statutory definition. However, as NHTSA explained in the NPRM,
employees and contractors working for companies within a trade group's
membership are eligible to be whistleblowers, provided that they fall
into the definition of motor vehicle manufacturer, part supplier, or
dealership.
Thomas Kowalick proposed that the definition should only include
individuals and not entities. NHTSA agrees. The proposed definition and
statutory definition uses the word ``employee,'' which denotes a single
person, and based on this context it would likewise be anomalous to
interpret ``contractor'' to encompass multi-person entities. Therefore,
NHTSA does not believe this comment warrants a change.
In the NPRM, NHTSA specifically requested comment on whether a
whistleblower must provide original information related to the company
that employed or contracted with the whistleblower or whether the
employee or contractor of any motor vehicle manufacturer, part
supplier, or dealership can report original information regarding any
motor vehicle manufacturer, part supplier or dealership (not just the
one that employed them or that they were contractors of). Kohn
supported NHTSA's proposal that competitors, partners, employees of
another separate corporate entity should be entitled to an award under
the plain meaning of the statute. NHTSA received no other comments in
response to this question.

C. Procedures for Submitting Original Information (Sec. 513.4)

NHTSA proposed requiring potential whistleblowers to submit
information on a standardized form--the proposed WB-INFO form. Proposed
Sec. 513.4(a) stated that the standard form must be submitted either
by email to NHTSA's established account (<a href="/cdn-cgi/l/email-protection#e7a9afb3b4a6b08f8e94938b82858b88908295a7838893c9808891">[email&#160;protected]</a>),
which is monitored by NHTSA's Office of the Chief Counsel, or by any
such method that the Agency may expressly designate

[[Page 101960]]

on its website. On the WB-INFO form, a potential whistleblower must
declare, under penalty of perjury, at the time the potential
whistleblower submits information on the WB-INFO form that the
information is true and correct to the best of the potential
whistleblower's knowledge and belief.\16\
---------------------------------------------------------------------------

\16\ As stated in the NPRM, the purpose of requiring a sworn
declaration on the WB-INFO form is to help deter the submission of
false and misleading information and mitigate the potential harm to
companies and individuals that may be caused by false or spurious
allegations of wrongdoing.
---------------------------------------------------------------------------

Proposed Sec. 513.4(c) provided that a potential whistleblower may
submit original information to the Agency anonymously through use of a
legal representative. The legal representative must submit the
information on behalf of the potential whistleblower pursuant to the
procedures specified in 513.4(a).
Kohn commented in support of NHTSA's proposed procedures but
objected to requiring that the timing of the submission of a WB-INFO
form be determinative of qualification for an award. However, NHTSA's
proposed regulations do not specify when the WB-INFO form must be
submitted to NHTSA.\17\ Therefore, NHTSA agrees with Kohn and will not
require the timing of the WB-INFO form to be determinative of
qualification for an award, subject to other provisions of the statute
and regulations. For example, if a whistleblower initially reaches out
to NHTSA without submitting a form (because the person is unaware of
the Agency's regulation), the whistleblower can still be eligible for
an award if they subsequently submit the WB-INFO form to NHTSA.
---------------------------------------------------------------------------

\17\ Kohn proposed that NHTSA take into consideration the case
Whistleblower 21276-13W v. Commissioner, where the United States Tax
Court held IRS regulations do not require Form 211 to be filed prior
to providing information to the IRS to qualify for an award under 26
U.S.C. 7623. 144 T.C. 290 (2015), United States Tax Court, Docket
Nos. 21276-13W, 21277-13W (June 2, 2015). However, NHTSA's final
rule does not require that a potential whistleblower submit a WB-
INFO form to NHTSA prior providing NHTSA any information.
---------------------------------------------------------------------------

In the NPRM, NHTSA proposed that a whistleblower or the
whistleblower's legal representative must be the one to directly
provide the information to NHTSA. This proposal was based on the
statutory requirement that a whistleblower voluntarily provide
information to the Secretary. NHTSA also requested comments on whether
it should allow non-attorneys to submit information on behalf of a
potential whistleblower. Kohn disagreed with requiring the
whistleblower or their legal representative to make the submission.
Kohn proposed that the statutory definition of original information
implies that third parties who learned the information from a
whistleblower can report the information to NHTSA, and those
whistleblowers should be eligible for an award. Kohn proposed that
NHTSA allow whistleblowers to submit information through third parties
such as ``news media, referrals from Congress or other investigatory
agencies, civil society organizations, [or] international anti-
corruption or law enforcement authorities.'' Further, Kohn proposed
that whistleblowers in countries outside the United States, especially
in countries with no whistleblower protections, should not be
ineligible for a whistleblower award because they used a third party,
such as an advocacy group, to relay the information to NHTSA. NHTSA
agrees with Kohn with respect to a whistleblower not being disqualified
if the whistleblower is initially represented by an advocacy group.
Rather, as long as it is clear that an advocacy group is making a
submission on behalf of an individual, a whistleblower's eligibility
will not be affected. However, to be eligible for an award, NHTSA
believes it is important that a whistleblower subsequently contact
NHTSA directly about the subject information (in other words, the
whistleblower must submit the WB-INFO form). That will help ensure that
the Agency can follow up on issues and has the direct, unfiltered
perspective of that person.
Similarly, Kohn commented that NHTSA should not require that a
whistleblower submit a WB-INFO form to be eligible for a whistleblower
award. Kohn pointed to news sources and congressional testimony
regarding whistleblowers who shared original information with news
media and non-governmental safety organizations rather than directly to
NHTSA. Kohn argued that NHTSA will likely continue to obtain useful,
original information from these third-party sources where a
whistleblower did not go through NHTSA's formal procedures. To support
this proposal, Kohn pointed to a whistleblower in the Takata case's
interaction with the press alongside that individual's reports to the
Department of Justice and the Federal Bureau of Investigation (FBI).
NHTSA disagrees with this proposal. 49 U.S.C. 30172(a)(6) defines a
``whistleblower'' as someone who ``voluntarily provides to the
Secretary original information.'' (emphasis added). Congress mandated
that a whistleblower provide the information to NHTSA to receive a
whistleblower award. Further, if a whistleblower provides information
to a news source, there is no guarantee that NHTSA will be able to
obtain that person's contact information. This is especially true if
the source is anonymous. Nothing in this rule prevents a whistleblower
from going to the press, the Department of Justice, the FBI, or other
authorities in conjunction with a report to NHTSA. If a potential
whistleblower goes to one of these other entities first, NHTSA hopes
that the other entity would direct the whistleblower to submit
information directly to NHTSA. If NHTSA receives a potential
whistleblower's contact information from another government agency,
news organization, law enforcement authorities, advocacy organizations,
or a similar third-party, NHTSA intends to attempt to contact the
potential whistleblower and provide them information about how to
submit a WB-INFO form.

D. Confidentiality (Sec. 513.5)

Consistent with the protections for whistleblowers in 49 U.S.C.
30172(f), NHTSA's proposed Sec. 513.5(a) explained that
notwithstanding 49 U.S.C. 30167, the Secretary and any officer or
employee of the U.S. Department of Transportation shall not disclose
any information, including information provided by a whistleblower to
the Secretary, that could reasonably be expected to reveal the identity
of a whistleblower, except in accordance with the provisions of 5
U.S.C. 552a, with certain exceptions as provided by statute.
In the NPRM, NHTSA stated it is the Agency's view that if an
individual is not a whistleblower, as defined by the statute, the
Agency is not bound by the limitations contained in 49 U.S.C. 30172(f).
However, it is the Agency's intent to generally afford potential
whistleblowers confidential protections, unless otherwise waived or
permitted or required by law. NHTSA recognizes that potential
whistleblowers often put themselves at risk of significant
consequences, and thus maintaining their confidentiality is of the
utmost importance.
In the NPRM, NHTSA proposed that an individual discloses
information relating to a motor vehicle defect, noncompliance, or
violation of notification or reporting requirement that is not likely
to cause unreasonable risk of death or serious physical injury, then
that person is not a whistleblower and is not entitled to the statutory
protection contained in 49 U.S.C. 30172.\18\
---------------------------------------------------------------------------

\18\ This includes a reporting individual who is an employee or
contractor of a motor vehicle manufacturer.

---------------------------------------------------------------------------

[[Page 101961]]

Commenters disagreed with NHTSA's proposal to not afford the
protections of 49 U.S.C. 30172(f) to whistleblowers whose information
relates to a motor vehicle defect, noncompliance, or violation of
notification or reporting requirement that is not likely to cause
unreasonable risk of death or injury. Commenters argue this exclusion
is too subjective and will prevent potential whistleblowers from coming
forward with information. Commenters argue potential whistleblowers
will fear losing protections following an agency determination that
submitted information is not likely to cause unreasonable risk of death
or injury. Kohn claims this policy is also counter to the Whistleblower
Act and will result in whistleblowers choosing not to report
information to NHTSA for fear of exposure.
NHTSA disagrees with these commenters. Under 49 U.S.C. 30172(a)(6),
Congress defined a whistleblower, in section 30172, among other
specifications, as someone who submits original information ``relating
to any motor vehicle defect, noncompliance, or any violation or alleged
violation of any notification or reporting requirement of this chapter,
which is likely to cause unreasonable risk of death or serious physical
injury'' (emphasis added). Further, under 49 U.S.C. 30172(f), Congress
limited confidentiality protections to persons who meet the definition
of whistleblower. Therefore, NHTSA is only authorized to afford those
legal protections to those who submit information ``relating to any
motor vehicle defect, noncompliance, or any violation or alleged
violation of any notification or reporting requirement of this chapter,
which is likely to cause unreasonable risk of death or serious physical
injury.'' See 49 U.S.C. 30172(a)(6) (emphasis added).
As discussed in the NPRM, unlike other entities that have a policy
and practice to treat all information obtained during an investigation
as confidential and nonpublic,\19\ NHTSA generally makes information on
safety-related defect investigations for which it has not received a
request for confidential treatment under 49 CFR part 512 publicly
available. The Agency posts materials such as Information Requests,
Special Orders, and answers thereto on its website, <a href="http://www.nhtsa.gov">www.nhtsa.gov</a>.
Further, NHTSA also makes publicly available various consumer
complaints that it receives through a variety of sources, including
calls to its vehicle safety hotline, which are transcribed, and
submissions of Vehicle Owner Questionnaires (VOQs) through its
website.\20\ Further, if an employee is worried about sharing
information with NHTSA for fear of retaliation, 49 U.S.C. 30171 put in
place protections for employees of motor vehicle manufacturers, part
suppliers, and dealerships to protect the employees from discrimination
or discharge for, among other things, providing to the employer or the
Secretary information relating to any motor vehicle defect,
noncompliance, or any violation or alleged violation of any
notification or reporting requirement of 49 U.S.C. Chapter 301. The
language in 49 U.S.C. 30171 does not restrict these protections only to
those submitting information of a violation ``which is likely to cause
unreasonable risk of death or serious physical injury.'' \21\ Finally,
Sec. 513.6(b) gives the agency the ability to waive this requirement
for good cause shown. NHTSA will therefore consider these issues on a
case-by-case basis.
---------------------------------------------------------------------------

\19\ The SEC and CFTC both have this practice. See, e.g., Final
Rule, Securities Whistleblower Incentives and Protections, 76 FR
34300, 34332 (June 13, 2011); Final Rule, Whistleblower Incentives
and Protection, 76 FR 53172, 53184 (Aug. 25, 2011).
\20\ NHTSA redacts Personally Identifiable Information (PII)
from publicly available documents.
\21\ Employees may file a complaint with the Secretary of Labor
alleging such discharge or discrimination. The Secretary of Labor is
required to notify in writing the person named in the complaint of
the filing of the complaint, of the allegations contained in the
complaint, of the substance of evidence supporting the complaint,
and of the opportunities that will be afforded to such person. 49
U.S.C. 30171(b).
---------------------------------------------------------------------------

Commenters either supported or did not comment on the remainder of
the proposed provisions related to confidentiality.

E. Prerequisites to the Consideration of an Award (Sec. 513.6)

Proposed Sec. 513.6 summarized the general prerequisites for
persons to be considered for the payment of an award, based on the
statutory language of 49 U.S.C. 30172(b)(1) and the definition of a
whistleblower under 49 U.S.C. 30172(a)(6), but added the word
``potential'' in front of the terms ``motor vehicle defect'' and
``noncompliance.'' Under proposed Sec. 513.6(a), subject to the
eligibility requirements in these rules, NHTSA may, but is not required
to, authorize payment of an award to one or more persons who provide a
voluntary submission to the Agency that contains original information
relating to any potential motor vehicle defect, potential
noncompliance, or any violation or alleged violation of any
notification or reporting requirement of 49 U.S.C. Chapter 301 or a
regulation thereunder, which is likely to cause unreasonable risk of
death or serious physical injury, and the original information in that
submission leads to the successful resolution of a covered action. In
the NPRM, NHTSA asked for proposals of any other prerequisites for an
award.
Kohn commented on Hyundai's proposed definition of ``voluntary''
submitted to NHTSA prior to the publication of the NPRM. Specifically,
Kohn agreed a person should not be considered voluntarily providing
information if that person previously received a subpoena or a demand
that relates to the same subject matter. However, Kohn proposed
exceptions to the exclusion including ``friendly'' subpoenas, subpoenas
after the whistleblower's information ``is published in the news media,
presented to Congress or another federal or state agency, provided to
the victims of an auto accident, set forth in testimony in any
proceeding, or otherwise voluntarily presented prior to obtaining a
subpoena,'' and subpoenas after voluntarily providing ``information to
an organizations compliance program, legal organization and/or
supervisory personnel within the company.'' The National Whistleblower
Center also proposed language that defines a voluntary submission as
information provided before a request, inquiry, or demand that relates
to the inquiry is directed at the potential whistleblower or anyone
representing the potential whistleblower.
NHTSA believes that whether information submitted after the
potential whistleblower receives a subpoena or a demand related to the
subject matter is ``voluntarily provide[d]'' to NHTSA depends on the
particular circumstances. Like the SEC, NHTSA believes a whistleblower
award should not be made available to an individual who makes a
whistleblower submission after being asked to provide information on a
matter during the course of an investigation or inquiry by that
agency.\22\ Similar to the SEC, NHTSA believes ``[o]nly a request that
is directed to the individual involved (or the individual's
representative) will preclude that individual from subsequently making
a `voluntary' submission of the requested information or closely
related information.'' \23\ If an individual is part of a group or
division within a company that receives a request, they are not
precluded from

[[Page 101962]]

making a whistleblower submission so long as the information they are
providing to NHTSA meets the definition of ``original information.''
The prohibition on those who receive direct, individual requests for
information is restricted to requests from NHTSA. NHTSA considers a
potential whistleblower who gave information to another government
agency, by compulsion or voluntarily, as generally not relevant to
whether that individual voluntarily shared information with NHTSA.\24\
---------------------------------------------------------------------------

\22\ See Securities Whistleblower Incentives and Protections, 76
FR 34307 (June 13, 2011).
\23\ See Proposed Rules for Implementing the Whistleblower
Provisions of Section 21 F of the Securities Exchange Act of 1934,
75 FR 70490 (Nov. 17, 2010).
\24\ This includes those who receive a subpoena from the
Department of Justice. NHTSA notes that the receipt of a subpoena is
indicative that a person may have relevant information, and not
whether that person is a target of an investigation or otherwise
suspected of wrongdoing. Other provisions of this final rule
adequately inhibit wrongdoers from receiving a whistleblower award.
---------------------------------------------------------------------------

Additionally, Kohn proposed a mandatory payment of an award if all
the proposed requirements are met. NHTSA disagrees and believes there
may be instances when a person who meets the requirements of Sec.
513.6 is disqualified from an award or otherwise should not receive an
award. See 49 U.S.C. 30172(c)(1)(A), (2).\25\ Related issues are
further discussed with respect to the provisions on award
determinations in Sec. 513.10.
---------------------------------------------------------------------------

\25\ Other comments related to Sec. 513.6 are addressed in the
discussion of the definition of original information.
---------------------------------------------------------------------------

F. Whistleblowers Ineligible for an Award (Sec. 513.7)

The NPRM recited the categories of individuals who are ineligible
for an award. Proposed Sec. 513.7 was based on statutory construction
as well as the statutory provisions contained in 49 U.S.C. 30172(c)(2)
and (g).
Of the categories of individuals who are ineligible for an award
proposed by the NPRM, commenters only discussed whistleblowers who are
convicted of a criminal violation related to the covered action and
those who failed to internally report a violation through a company's
internal reporting mechanism. Commenters disagreed about the scope of
criminal violations included in proposed Sec. 513.7(a). Additionally,
commenters disagreed about whether a potential whistleblower should be
required to use a company's internal reporting mechanisms before
reporting information to NHTSA to be eligible for an award.
Proposed Sec. 513.7 stated a whistleblower is ineligible for an
award if the whistleblower is ``convicted of a criminal violation
related to the covered action for which the whistleblower otherwise
could receive an award.'' In the NPRM, NHTSA asked for comment
regarding whether it should limit the criminal conviction bar to only
those cases decided by a U.S. federal or state court or whether it
should consider convictions issued by courts in other countries.
Commenters disagreed about whether to include convictions issued by
courts or tribunals in other countries.
Hyundai proposed a broadening of the definition of criminal
violations in the proposed rule. Hyundai's proposal includes
disqualifying those convicted in foreign tribunals and those who
obtained information by a means or manner that is determined by a
foreign court to be in violation of laws in the appropriate
jurisdiction. Conversely, Constantine Cannon and Kohn propose the
exclusion be limited to cases decided by U.S. federal or state courts.
Both commenters point to NHTSA's unfamiliarity with foreign laws and
the markedly different procedures and rights afforded to those in
foreign countries. After considering these comments NHTSA believes the
exclusion should be limited to those criminal violations decided by a
U.S. federal or state court and will add clarifying language to the
final rule.\26\ Congress did not expressly state the scope of the
exclusion. Therefore, the most logical reading of the statute is that
it is referring to the United States. Moreover, expanding the exclusion
to those criminal convictions decided by tribunals outside of the
United States would potentially discourage whistleblowers by creating
legal uncertainty.
---------------------------------------------------------------------------

\26\ In 49 U.S.C. 30172(c)(2), Congress used very similar
language as in 7 U.S.C. 26(c)(2). The CFTC interpreted this language
to mean only criminal violations determined by a United States
court. See Whistleblower Incentives and Protection, 76 FR 53172
(Aug. 25, 2011).
---------------------------------------------------------------------------

Additionally, Constantine Cannon proposed the removal of the
requirement for a whistleblower to disclose on proposed WB-AWARD form
information about whether the potential whistleblower is currently the
subject or target of a criminal investigation connected to the
information at issue. Constantine Cannon asserted that this requirement
departs from congressional intent to only bar individuals who are
convicted of criminal violations rather than those investigated.
Constantine Cannon adds that a whistleblower may be unaware if there is
an investigation and be unable to provide that information. NHTSA
disagrees. As stated in the NPRM, NHTSA understands some potential
whistleblowers might not know if they are under investigation. However,
NHTSA continues to believe this information, to the extent known, would
benefit the agency. Filling in that portion of the WB-AWARD form does
not automatically disqualify a potential whistleblower from receiving
an award. NHTSA generally anticipates waiting until those disclosed,
applicable investigations are closed before issuing a decision on an
award. If a potential whistleblower discloses an investigation or some
other piece of information that is not related to a criminal
investigation connected to the information at issue, NHTSA will
determine on a case-by-case basis whether that information disqualifies
a potential whistleblower from being eligible for an award.
Finally, Hyundai requested to expand the exclusion of information
obtained by unlawful means to include civil unlawful conduct to account
for prosecutorial discretion. NHTSA disagrees. In 49 U.S.C.
30172(c)(2), Congress explicitly directs NHTSA to make no award to
whistleblowers who are ``convicted of a criminal violation related to
the covered action for which the whistleblower otherwise could receive
an award.'' In light of the plain text reference to a criminal
conviction, the provision as proposed is appropriate and would avoid
incentivizing companies from suing potential whistleblowers.
Commenters were also split on whether a whistleblower should be
required to use a motor vehicle manufacturer, parts supplier, or
dealership's internal reporting mechanism. Commenters also proposed
different assurances that a motor vehicle manufacturer, parts supplier,
or dealership's internal reporting mechanism contains protections
against retaliation and the adequacy of those protections.
Kohn commented that written protections from retaliation for
internal reporting are not enough. Rather, Kohn proposed a requirement
for confidential internal reporting mechanisms that prohibit corporate
attorneys from learning the identity of a whistleblower--to guarantee
complete confidentiality of a whistleblower. Additionally, Kohn argues
a whistleblower who works with the government for many years on a
successful enforcement action should not be barred from an award
because they did not abide by internal reporting requirements.
NHTSA believes that these comments are largely outside the scope of
this rulemaking. 49 U.S.C. 30172(c)(2)(E) does not address requirements
for internal reporting mechanisms. Rather, it describes the
circumstances when a whistleblower can use reporting mechanisms that
are in place. NHTSA's

[[Page 101963]]

rule is consistent with the statute and NHTSA reiterates that the
statute and associated regulatory provision allow for circumstances
when internal reporting is not required, including for good cause
shown. NHTSA believes these provisions strike the appropriate balance
that the statute intended by incentivizing the use of internal
reporting mechanisms in appropriate circumstances.
MEMA and Hyundai both proposed that internal reporting should
always be required for a potential whistleblower to be eligible for an
award. MEMA proposed a broader internal reporting requirement that
would require whistleblowers to report the information to the
manufacturer prior to providing the information to NHTSA. MEMA
explained that this requirement would give manufacturers the
opportunity to rectify an issue without having to burden NHTSA. Hyundai
proposed a similar broadening of the reporting requirement and proposed
a waiting period requiring a whistleblower to give a manufacturer a
discrete amount of time to report an issue to NHTSA before the
whistleblower can contact NHTSA. Hyundai argued that this waiting
period will give a manufacturer the opportunity to assess if a safety
issue exists and, if appropriate, issue a recall. This waiting period,
Hyundai comments, would prevent a whistleblower from internally
reporting an issue and reporting it to NHTSA in quick succession. If a
company does not have a formal requirement, Ford proposed the burden
should be on the whistleblower to show NHTSA in writing a reasonable
attempt was made to bring the information to persons in the company.
Conversely, the National Whistleblower Center proposed language
that further restricts the internal reporting requirement, excluding
the internal reporting requirement if no such mechanism exists or, like
in the proposed regulation, the whistleblower reasonably believes an
internal report would result in retaliation.
NHTSA disagrees with expanding the internal reporting requirement.
The proposed requirement in the NPRM comes from the statutory language
used in 49 U.S.C. 30172(c)(2)(E). That statutory language requires
potential whistleblowers to use internal reporting requirements only
when they are in place and have mechanisms to protect employees from
retaliation. Therefore, NHTSA disagrees with proposals expanding this
internal reporting requirement outside the statutory language and
requiring internal reporting when no mechanism is in place. Congress
carved out an exception to this requirement for potential
whistleblowers who have a reasonable belief that an internal report
would lead to retaliation. Therefore, it would be contrary to this
exception to always require internal reporting even when no mechanism
is in place to protect whistleblowers from retaliation.
Additionally, NHTSA disagrees with Hyundai's proposed, discrete
waiting period for manufacturers to report an issue to NHTSA before a
potential whistleblower may contact the Agency. The fact that NHTSA is
also aware of a potential safety issue does not impact a manufacturer's
ability to expeditiously address it.
Further, Kohn, Ford, and the National Whistleblower Center proposed
more specifically defining an internal report. Kohn proposed that NHTSA
include more specifications on what an internal report must include.
For example, Kohn proposed that NHTSA clarify whether the information
internally reported must match what is reported to NHTSA. Ford proposed
a requirement that internal reporting must be in writing so that the
whistleblower can provide documentation of internal reporting to NHTSA.
The National Whistleblower Center proposed a specific definition for
``internal reporting mechanism'' that includes a program widely
publicized to employees that is independent of any legal department of
the employer that can provide investigatory procedures, burdens of
proof, and relief consistent with the Moving Ahead for Progress in the
21st Century Act, Public Law 112-141, 49 U.S.C. 30171. Additionally,
Ford proposed that NHTSA should clarify how it will consider whether an
internal reporting mechanism has protections against retaliation.
NHTSA believes that these issues are best suited to case-by-case
evaluations and declines to further define these issues in the final
rule. NHTSA agrees that the issue internally reported must generally
match what is reported to NHTSA. It is likely that the information
reported will not be identical, however, since additional context may
be needed to explain the issue to the Agency. Additionally, the
potential whistleblower may have additional information to report to
the Agency based on how the internal report was handled. Whether or not
a whistleblower has a reasonable belief that retaliation could occur or
that the issue was already known to the company will likewise be
handled on a case-by-case basis, given the fact-specific nature of
those issues. Additionally, NHTSA disagrees that a specific format for
an internal report should be required. Although written documentation
would be helpful for evaluating whether or not a potential
whistleblower complied with internal reporting requirements, NHTSA does
not believe such a requirement is necessary. For example, NHTSA is
aware that some companies provide a telephone hotline for reporting
potential safety issues. Use of such a provided mechanism would
generally be sufficient to constitute an internal report.
In addition, Kohn proposed that NHTSA adopt a number of blanket
exemptions to the internal reporting requirement including: (1) if the
whistleblower is not an employee of the entity at issue; (2) if the
entity does not have an internal reporting program that guarantees
confidentiality, is not independent from line-management, is not
managed by an arm of the Office of General Counsel, and has independent
authority to report to the company's Chief Executive Office, Board of
Directors, or Audit Committee; and (3) if the whistleblower is located
in a country that lacks legal protections for internal whistleblowers
at least as effective as 49 U.S.C. 30171 and 29 CFR 1988. Further, Kohn
proposed that NHTSA create requirements that lawyer-managed compliance
programs be managed in an ethical manner.
Similarly, the National Whistleblower Center proposed a subjective
test to determine if a whistleblower has a reasonable belief of
retaliation. Additionally, the National Whistleblower Center proposed
language that exempts the internal reporting requirement when: (1) the
employer has been found to have obstructed justice within the last five
years prior to the whistleblower report; (2) the whistleblower
reasonably believes the information was already internally reported or
subject of an internal investigation, or was otherwise already known to
the employer, or constitutes an immediate threat to public safety, or
the violation was willfully committed; and (3) if the disclosure of the
whistleblower is covered under the obstruction of justice laws,
including 18 U.S.C. 1513(e), or if the whistleblower first provides the
information to any law enforcement officer as a result of voluntary
testimony in a grand jury or federal court proceeding concerning a
potential criminal violation of an auto safety law.
After consideration of these comments, NHTSA again believes these
issues are best suited for case-by-case evaluation. While these types
of considerations may support a potential

[[Page 101964]]

whistleblower's reasonable belief that an internal report would have
resulted in retaliation, was not necessary because it was already
reported or known to the company, or otherwise constitute good cause
for not requiring an internal report, NHTSA believes the proposed
regulatory language appropriately balances providing guidance on these
considerations with flexibility to consider the unique circumstances of
each matter. Every situation is different and NHTSA does not want to
discourage potential whistleblowers from reporting if their particular
situation does not neatly fit into one of the proposed blanket
exceptions, or to incentivize companies to take a ``check the box''
approach to designing an appropriate internal reporting mechanism and
safeguards against retaliation.
Ford proposed creating a presumption that an internal reporting
mechanism protecting a whistleblower's confidentiality protects
whistleblowers against retaliation. Additionally, Ford proposed
clarification that a whistleblower's submitted information based on
independent analysis should be subject to the internal reporting
requirement. NHTSA declines to adopt these changes. Protecting
confidentiality does not necessarily mean that a company is protecting
a potential whistleblower from retaliation. For example, a potential
whistleblower might be assured their name will not be reported, but the
information they provide might indicate who reported that information.
In that situation, assurance of confidentiality does not ensure that
individual will not be retaliated against. Moreover, a potential
whistleblower should not have to keep their identity confidential to be
protected from retaliation and the ability of employees to openly speak
up about potential safety issues advances vehicle safety.
NHTSA also believes the proposed regulation adequately addresses
all types of information, including independent analysis. For example,
independent analysis logically would not be already known to the
company unless reported. However, a potential whistleblower that has
conducted independent analysis may have a reasonable belief that
disclosure would result in retaliation. These issues are best addressed
by a case-by-case consideration of the circumstances.
NHTSA also wants to note that if retaliation does take place, a
potential whistleblower should file a claim with the Occupational
Safety and Health Administration (OSHA).\27\ Retaliation includes such
actions as firing or laying off, demoting, denying overtime or
promotion, or reducing pay or hours.\28\
---------------------------------------------------------------------------

\27\ See <a href="https://www.dol.gov/general/topics/whistleblower">https://www.dol.gov/general/topics/whistleblower</a>.
\28\ See 15 U.S.C. 2087. If a claim is filed under 15 U.S.C.
2087, it needs to be filed within 180 days of the occurrence of the
discriminatory action.
---------------------------------------------------------------------------

G. Provision of False Information (Sec. 513.8)

Proposed Sec. 513.8 tracked the language of 49 U.S.C. 30172(g),
which states that a person who knowingly and intentionally makes any
false, fictitious, or fraudulent statement or representation, or who
makes or uses any writing or document knowing it to contain any false,
fictitious, or fraudulent statement or entry, shall not be entitled to
an award and shall be subject to prosecution under 18 U.S.C. 1001.
NHTSA received no comments on proposed Sec. 513.8. NHTSA is
adopting this rule as proposed.

H. Procedures for Making a Claim for a Whistleblower Award (Sec.
513.9)

Proposed Sec. 513.9 included a description of steps a
whistleblower is required to follow to make an application for an
award. The proposed process would begin with the Agency posting a
``Notice of Covered Action'' (Notice) on NHTSA's website whenever any
administrative or judicial action, including any related administrative
or judicial action, brought by the U.S. Department of Transportation,
NHTSA, or U.S. Department of Justice under 49 U.S.C. Chapter 301 in the
aggregate results in collected monetary sanctions exceeding $1,000,000.
The proposed Notice is published subsequent to a final judgment, order,
or agreement that alone, or in the aggregate, results in collected
monetary sanctions exceeding $1,000,000. For clarity, NHTSA will only
post a Notice of Covered Action for any such action after the effective
date of this rule.\29\
---------------------------------------------------------------------------

\29\ NHTSA also posts information on civil penalties collected
on its website at <a href="https://www.nhtsa.gov/laws-regulations/civil-penalty-settlements">https://www.nhtsa.gov/laws-regulations/civil-penalty-settlements</a>.
---------------------------------------------------------------------------

Hyundai commented generally in support of the procedures in
proposed Sec. 513.9. Kohn proposed an agency obligation to notify
known whistleblowers about a ``Notice of Covered Action'' that is
related to the information provided by that whistleblower.
Additionally, Kohn proposed an agency requirement, like that of the
IRS, whereby NHTSA must submit a form stating whether or not the
investigators relied on information from an individual resulting in an
enforcement action. Kohn and the National Whistleblower Center proposed
a deadline for NHTSA to make a preliminary award determination within
180 days of the posting of the notice and a final decision within one
year of the publication of the Notice.
NHTSA intends to inform known whistleblowers or their counsel of
the Notice, but does not believe that it is necessary to codify. NHTSA
disagrees with submitting a form stating whether or not the
investigators relied on information from an individual resulting in an
enforcement action. NHTSA is a much smaller organization than the IRS
and does not believe that the burden of preparing such a form is
outweighed by the benefit.
Also, NHTSA disagrees with the proposed requirement to impose a
particular deadline on issuing an award decision after the Notice. The
length of time to complete the Agency's assessment may depend on
multiple factors, including whether follow-up is needed to clarify
issues raised by the award claim and the complexity of the legal and
factual issues involved, as well as agency resources and priorities.
Additionally, due to its size, NHTSA does not have a dedicated
whistleblower office.
Kohn supported the allowance of emailed filings and the proposed
WB-AWARD form. Kohn also agrees that all persons meeting the
requirements should be eligible for an award regardless of citizenship.
These comments are consistent with the rule as proposed.
The NPRM proposed that a claimant will have ninety (90) days from
the date of the Notice of Covered Action to file a claim, including any
attachments, for an award based on that action, or the claim will be
barred. However, Kohn proposed that if the 90th day falls on a weekend
or federal holiday, the deadline should be the next business day. NHTSA
agrees and has changed the regulatory text to ensure clarity on this
issue.

I. Award Determinations (Sec. 513.10)

Proposed Sec. 513.10 described the award determination process.
513.10(b) implements 49 U.S.C. 30172(c), as delegated to the NHTSA
Administrator, and provides that the determination of whether, to whom,
or in what amount to make an award shall be in the discretion of the
Administrator. NHTSA requested comment regarding whether the Agency
should limit its discretion and, if so, in what way.
Although 49 U.S.C. 3017(c) provides the Secretary with discretion
as to

[[Page 101965]]

whether to make an award, Constantine Cannon, Cohen Milstein, and Kohn
commented that Sec. 513.10 should make awards mandatory. Commenters
pointed to a few mandatory award programs and their success to support
this proposal. Commenters proposed a mandatory award program is needed
because it will incentivize whistleblowers who fear losing their
livelihood to report information. Additionally, commenters suggested
mandatory financial incentives help potential whistleblowers partner
with counsel they would not otherwise be able to afford to represent
them through the legal process. Constantine Cannon claimed the rare and
unusual circumstances presented by NHTSA in the NPRM where an award
would be denied have never occurred and should not be used as reason to
retain discretion. Similarly, Cohen Milstein argues the occurrences
listed by NHTSA in the NPRM are already contemplated and addressed by
49 U.S.C. 30172(c)(2)(A) and (B), which expressly limit award
disqualification to situations where a whistleblower's own violations
relate to the violations that are subject of the enforcement action.
Cohen Milstein also proposed the statutory floor of a whistleblower
award at 10% would be redundant if the Administrator had discretion to
award no award at all. Additionally, Kohn argued judicial review is not
enough to prevent the abuse of discretion to deny rewards for any
reason because courts will not overturn denials.
After consideration of the comments, NHTSA believes that it is
important to retain discretion. The reward mandates found in the False
Claims Act and the Dodd-Frank Act use different language from that
found in 49 U.S.C. 30172(c). 49 U.S.C. 30172(c) explicitly provides
discretion to determine ``whether, to whom, or in what amount to'' make
a whistleblower award (emphasis added). Congress explicitly gave NHTSA
discretion it gave neither under the False Claims Act nor under the
Dodd-Frank Act.\30\ Therefore, a complete elimination of that
discretion, as proposed by commenters, would be inconsistent with the
language of the Whistleblower Act. Further, NHTSA does not believe the
statutory floor of 10% is redundant if NHTSA has the discretion to not
make an award. NHTSA believes the 10% is a statutory floor if NHTSA
decides to make an award. As described in the NPRM, this discretion
would allow NHTSA to retain the ability to address rare circumstances.
NHTSA does not believe this discretion should be a meaningful
consideration for prospective whistleblowers. NHTSA likewise has
discretion as to whether or not to pursue an enforcement action, and if
so, the appropriate penalty.
---------------------------------------------------------------------------

\30\ See 31 U.S.C. 3730(d) (``If the Government proceeds with an
action brought by a person under [the False Claims Act], such person
shall, subject to the second sentence of this paragraph, receive at
least 15 percent but not more than 25 percent of the proceeds of the
action or settlement of the claim'') (emphasis added); see also 7
U.S.C. 26 (``[T]he Commission . . . shall pay an award or awards to
1 or more whistleblowers who voluntarily provided original
information to the Commission that led to the successful enforcement
of the covered judicial or administrative action, or related action,
in an aggregate amount equal to--(A) not less than 10 percent, in
total, of what has been collected of the monetary sanctions imposed
in the action or related actions; and (B) not more than 30 percent,
in total, of what has been collected of the monetary sanctions
imposed in the action or related actions.'') (emphasis added); see
also 29 U.S.C. 7623(b)(1) (``If the Secretary proceeds with any
administrative or judicial action described in subsection (a) based
on information brought to the Secretary's attention by an
individual, such individual shall . . . receive as an award . . .''
(emphasis added)).
---------------------------------------------------------------------------

One individual commenter and Ford suggested the Agency develop a
well-defined award matrix and include in Sec. 513.10(a) the factors
considered when determining whether, to whom, and in what amount to
make an award. The National Whistleblower Center proposed such language
that specifically outlines when the Secretary may increase or decrease
the percentage of the award paid to the whistleblower. Proposed factors
to consider that may lead to an increase in percentage include (1) the
significance of the information, (2) assistance provided by the
whistleblower, (3) law enforcement interest, (4) participation in
internal compliance systems and reporting mechanisms, (5) whether the
whistleblower resides outside the United States, (6) the extent to
which the award will encourage non-US citizens to provide information,
and (7) whether the whistleblower promptly contacted federal or state
law enforcement. Proposed factors to consider that may decrease a
whistleblower award include (1) culpability, (2) an unreasonable
reporting delay, and (3) interference with internal compliance and
reporting mechanisms. These factors are similar to those found in the
False Claims Act and the Dodd-Frank Act.
NHTSA disagrees that adopting a formalized matrix or factors beyond
those already proposed is necessary or appropriate at this time. 49
U.S.C. 30172(c) already contains some of the factors proposed by the
National Whistleblower Center, including the significance of
information,\31\ assistance provided by the whistleblower,\32\ and
participation in internal compliance systems and reporting
mechanisms.\33\ These factors give guidance both to NHTSA and
stakeholders, while retaining flexibility to consider the unique
circumstances of each case. NHTSA also specifically disagrees with
adding an award factor that directs NHTSA to consider law enforcement
interest. This is a factor found in the CFTC's regulations, 17 CFR
165.9(3)(b), which states, ``the Commission will assess its
programmatic interest in deterring violations of the Commodity Exchange
Act by making awards to whistleblowers who provide information that
leads to the successful enforcement of such laws.'' NHTSA believes this
is goal is already encompassed in consideration of the ``public
interest'' found in proposed Sec. 513.10(b)(5). Further, NHTSA
disagrees with considering whether the whistleblower resides outside
the United States and the extent to which the award will encourage non-
U.S. citizens to provide information. Non-U.S. citizens are eligible
for whistleblower awards and NHTSA does not believe that this is
relevant to the amount of the award. Many vehicles and parts are
manufactured outside the United States and many companies that sell in
the United States also conduct business around the world. Thus,
whistleblowers outside the United States have information highly
relevant to NHTSA's vehicle safety work. As explained above, NHTSA has
already made a whistleblower award to an individual who was employed in
South Korea, which led to one of the largest enforcement actions in
NHTSA's history. Additionally, the NPRM already included a factor
regarding the statutory purpose of incentivizing whistleblowers. NHTSA
does not believe there is a need to bifurcate that factor into
incentivizing U.S. citizens specifically. Finally, NHTSA disagrees with
enumerating factors for decreasing a whistleblower award. Many of these
factors already will lead to disqualification of a whistleblower from
receiving an award as mentioned in the above discussion of proposed
Sec. 513.7. Each whistleblower award application will contain a unique
set of facts and circumstances that NHTSA will consider.
---------------------------------------------------------------------------

\31\ See 49 U.S.C. 30172(c)(1)(B)(ii).
\32\ See id. 30172(c)(1)(B)(iii).
\33\ See id. 30172(c)(1)(B)(i).
---------------------------------------------------------------------------

In the NPRM, NHTSA noted, in making a determination of a
whistleblower award, the Agency anticipates reviewing relevant
materials such as the claimant's WB-AWARD

[[Page 101966]]

form, other filings or submissions from the potential whistleblower,
materials from NHTSA staff, sworn declarations, and any other materials
that may be relevant to the determination. In the NPRM, NHTSA requested
comment on whether it should review information from outside persons,
such as the company that was liable for the civil penalties. In the
NPRM, NHTSA stated its tentative view that outside parties should not
be able to insert themselves into the award process and submit
information during the award determination.
Commenters generally agreed with NHTSA's tentative view that the
Agency should not review information from outside persons, such as the
company that was liable for the civil penalties. Commenters agreed that
NHTSA's confidentiality obligations prohibit sharing with third parties
a whistleblower's contribution to a successful action. Additionally,
Constantine Cannon and Kohn suggested it would be unfair to a
whistleblower to have to litigate with a third party whether the
whistleblower deserved an award. Further, Kohn proposed that allowing
information from outside persons would offer a company an opportunity
to submit derogatory information about the whistleblower. NHTSA agrees
with commenters and therefore will not generally consider submissions
of information from outside persons or third parties when making an
award determination. This determination does not preclude the Agency
from considering investigative material, much of which likely came from
the company liable from the civil penalty or other outside sources.
Moreover, this determination does not preclude the Agency from
following up, as appropriate, should it need additional information to
consider the award claim.

J. Appeals of Award Determinations (Sec. 513.11)

In accordance with 49 U.S.C. 30172(h)(2), the proposed Sec. 513.11
outlined the procedures for a claimant to appeal any award
determination made by the Administrator under Sec. 513.10. Proposed
Sec. 513.11(a)(2) provided that if any claimant appeals within 30 days
after a final award determination is issued by the Administrator, no
payments with respect to the covered action will be made to any
whistleblower in the action until the appealed award determination
action is concluded. NHTSA requested comment on this position.
Most commenters supported or had no comments regarding the proposed
Sec. 513.11. However, Cohen Milstein commented that Sec. 513.11 is
too broad and NHTSA should not withhold uncontested portions of a
whistleblower award during an appeal. Cohen Milstein proposed that even
with multiple whistleblowers contesting an award amount, there is no
reason to withhold a minimum uncontested amount to each whistleblower.
However, NHTSA disagrees and believes that finality is important
before initiating payment. As stated in the NPRM, NHTSA is constrained
by the statute as to what percentage of the collected monetary
sanctions in a covered action it may award to all whistleblowers. Any
appeal could affect the amount paid. For example, if a court found that
the Agency erroneously determined an individual eligible, it is
possible even the uncontested portion of an award would be invalidated.

K. Form WB-INFO (Appendix A)

The Agency proposed to include form WB-INFO in Appendix A to part
513 to capture basic information about a potential whistleblower, the
potential whistleblower's legal representative (if applicable), the
motor vehicle manufacturer, part supplier or dealership about whom the
concern is raised, the potential whistleblower's current employer and
address, and the potential whistleblower's relationship to the company
about which the concern is raised.
Auto Innovators proposed a new field on the form explaining why the
information relates to a matter that is likely to cause unreasonable
risk of death or serious injury. Auto Innovators reasoned this proposal
will allow NHTSA to quickly determine whether the submitted information
is appropriate for the whistleblower program.
NHTSA disagrees, as this determination is more appropriately made
by NHTSA and the information already required by the form will inform
that issue.

L. Form WB-RELEASE (Appendix B)

In the NPRM, NHTSA proposed form WB-RELEASE in Appendix B for those
whistleblowers who wish to provide prior written consent for the Agency
to disclose information that could reasonably be expected to reveal the
whistleblower's identity. NHTSA requested comment on whether the form
WB-RELEASE should be prescribed by regulation, whether it would be
better to specify the content of the form (and not the form itself), or
whether the Agency should take a different approach.
Kohn objected to the release form because of concerns that a
potential whistleblower may interpret the release form as something
that must be done to please investigators and investigators may use the
form without considering specific circumstances. Kohn proposed any
waiver of confidentiality should be done on a case-by-case basis and
points to the IRS, SEC, and CFTC programs that do not use a similar
form.
Due to the way NHTSA investigates, in the course of an inquiry or
analysis surrounding a whistleblower's allegations, it may become
necessary for NHTSA to reveal information that reasonably could be
expected to reveal the whistleblower's identity to persons or their
counsel or agents at the organization or institution against whom such
allegations are made. Such information could also be revealed to other
entities if necessary for NHTSA to gather needed information on the
alleged safety issue or misconduct that the whistleblower has brought
to the Agency's attention. The WB-RELEASE form provides whistleblowers
a way to provide such consent. Consent is voluntary, as expressly
indicated on the form. The Agency may request that a whistleblower
provide such consent, as such consent may facilitate NHTSA's review of
the information.

M. Form WB-AWARD (Appendix C)

The NPRM also proposed WB-AWARD in Appendix C to part 513. Proposed
form WB-AWARD, and the instructions thereto, requested basic
information about a claimant and the claimant's legal representative
(if applicable), the issue/information submitted by the claimant,
information regarding the Notice of Covered Action, information on how
the claimant acquired the original information, as well as other
information relevant to the claimant's eligibility for an award.
Specifically, the form asks whether the potential whistleblower is the
subject or target of a criminal investigation connected to the
information at issue.
Constantine Cannon proposed the removal of the requirement for a
whistleblower to disclose on proposed WB-AWARD form information about
whether the potential whistleblower is currently the subject or target
of a criminal investigation connected to the information at issue.
Constantine Cannon suggested the disclosure is contrary to Congress's
intent because Congress mandated a bar for those convicted of criminal
violations, not individuals being investigated for a criminal
violation. Similarly,

[[Page 101967]]

Constantine Cannon proposed that a person might not know if they are
the subject of a criminal investigation and therefore be unable to
honestly respond to the question on the WB-AWARD form.
NHTSA disagrees. The requirement makes the Agency aware of criminal
investigations, to the extent known to the claimant. The regulations
still only bar a person from receiving an award if they are convicted
rather than if they are only investigated. A potential whistleblower
will not be barred from receiving an award because they did not
disclose a criminal investigation of which they were unaware. NHTSA is
adopting the form as proposed, without substantive change.

III. Regulatory Analyses and Notices

Executive Order 12866, Executive Order 13563, Executive Order 14094,
and DOT Regulatory Policies and Procedures

NHTSA has considered the impact of this rulemaking action under
Executive Order 12866, Executive Order 13563, Executive Order 14094,
and the Department of Transportation's regulatory policies and
procedures. This final rule is nonsignificant under E.O. 12866 and E.O.
14094 and was not reviewed by the Office of Management and Budget
(OMB). It is also not considered ``of special note to the Department''
under DOT Order 2100.6A, Rulemaking and Guidance Procedures.
This action adds part 513 to implement the whistleblower program.
This is a program for whistleblowers to voluntarily submit information
to NHTSA and potentially receive monetary awards. The rule formalizes
certain procedures for the whistleblower program, including through the
use of forms to help provide guidance to whistleblowers, organize
information submitted to the Agency, and ensure the Agency receives the
information needed to make determinations on whistleblower awards.
Because the Agency expects any costs, benefits, or savings associated
with this rulemaking to be minimal, we have not prepared a separate
economic analysis for this rulemaking.

Regulatory Flexibility Act

In compliance with the Regulatory Flexibility Act, 5 U.S.C. 601, et
seq., NHTSA has evaluated the effects of this action on small entities.
I certify that this final rule is not expected to have a significant
economic impact on a substantial number of small entities. The rules
apply only to those employees and contractors of motor vehicle
manufacturers, part suppliers, or dealerships who provide information
to the Agency relating a potential motor vehicle defect, potential
noncompliance, or any violation or alleged violation of any
notification or reporting requirement of 49 U.S.C. Chapter 301 (or
regulation thereunder), which is likely to cause unreasonable risk of
death or serious physical injury. Companies and other entities are not
eligible to participate in the program as whistleblowers. Consequently,
the persons that are subject to this final rule are not ``small
entities'' for the purposes to the Regulatory Flexibility Act.
Therefore, a regulatory flexibility analysis is not required for this
action.

National Environmental Policy Act

NHTSA has analyzed this rule for the purposes of the National
Environmental Policy Act. In accordance with 49 CFR 1.81, 42 U.S.C.
4336, and DOT NEPA Order 5610.1C, NHTSA has determined that this rule
is categorically excluded pursuant to 23 CFR 771.118(c)(4) (planning
and administrative activities, such as promulgation of rules, that do
not involve or lead directly to construction). This rule is not
anticipated to result in any environmental impacts and there are no
extraordinary circumstances present in connection with this rulemaking.
This rule defines certain terms important to the operation of the
whistleblower program, outlines the procedures for submitting original
information to NHTSA and applying for awards, discusses NHTSA's
procedures for making decisions on award applications, and generally
explains the scope of the whistleblower program to the public and
potential whistleblowers. NHTSA's decisions on who qualifies as a
whistleblower and who is eligible to receive a whistleblower award
would constitute separate agency actions that are independent of this
final rule. Similarly, the information that NHTSA will receive from
whistleblowers under this final rule will already exist, and therefore,
will be independent of this final rule. Finally, all current and former
employees or contractors who are potential whistleblowers under this
rule will choose to submit information voluntarily to NHTSA.
Consequently, this rule is not expected to significantly affect the
quality of the human environment.

Executive Order 13132 (Federalism)

NHTSA has examined this final rule pursuant to Executive Order
13132 (64 FR 43255, August 10, 1999) and concluded that no additional
consultation with states, local governments, or their representatives
is mandated beyond the rulemaking process. The Agency has concluded
that this action would not have ``federalism implications'' because it
would not have ``substantial direct effects on States, on the
relationship between the national government and the States, or on the
distribution of power and responsibilities among the various levels of
government,'' as specified in section 1 of the Executive Order. This
rule generally applies to employees and contractors of motor vehicle
manufacturers, part suppliers, or dealerships. Thus, Executive Order
13132 is not implicated and consultation with state and local officials
is not required.

Unfunded Mandates Reform Act

The Unfunded Mandates Reform Act of 1995 requires agencies to
prepare a written assessment of the costs, benefits and other effects
of proposed or final rules that include a federal mandate likely to
result in the expenditure by state, local or tribal governments, in the
aggregate, or by the private sector, of more than $100 million annually
(adjusted for inflation with base year of 1995). This final rule does
not result in the expenditure by state, local or tribal governments, in
the aggregate, or by the private sector, of more than $100 million
annually.

Executive Order 12988 (Civil Justice Reform)

With respect to the review of the promulgation of a new regulation,
section 3(b) of Executive Order 12988, ``Civil Justice Reform'' (61 FR
4729, February 7, 1996) requires that Executive agencies make every
reasonable effort to ensure that the regulation: (1) clearly specifies
the preemptive effect, if any; (2) clearly specifies any effect on
existing federal law or regulation; (3) provides a clear legal standard
for affected conduct while promoting simplification and burden
reduction; (4) specifies the retroactive effect, if any; (5) adequately
defines key terms; and (6) addresses other important issues affecting
clarity and general draftsmanship under any guidelines issued by the
Attorney General.
Pursuant to this Order, NHTSA notes as follows: This final rule
implements the whistleblower program, including outlining the
procedures for submitting original information, applying for awards,
the Agency's procedures for making decisions on the claims, appeals of
such decisions, and payment of the award. It discusses communications
with individuals reporting safety

[[Page 101968]]

information and protections afforded related to the whistleblowers'
identity. The statute was effective upon enactment.
The rule will not have retroactive effect. Under the rule of
construction contained in Section 24352(b) of the FAST Act, information
submitted by a whistleblower in accordance with the requirements at 49
U.S.C. 30172 does not lose its status as original information solely
because the whistleblower submitted the information prior to the
effective date of these regulations if that information was submitted
after the date of enactment of the FAST Act. In accordance with section
24352(b) of the FAST Act, the statute does not retroactively qualify
information submitted prior to the enactment of the FAST Act as
original information eligible for whistleblower protection or monetary
award. The rule likewise does not have retroactive application to
information submitted prior to enactment of the FAST Act.

Congressional Review Act

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. NHTSA will submit a report containing this rule and
other required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. This rule does not
meet the criteria in 5 U.S.C. 804(2) to be considered a major rule.

Regulation Identifier Number

The DOT assigns a regulation identifier number (RIN) to each
regulatory action listed in the Unified Agenda of Federal Regulations.
The Regulatory Information Service Center publishes the Unified Agenda
in April and October of each year. You may use the RIN contained in the
heading at the beginning of this document to find this action in the
Unified Agenda.

Paperwork Reduction Act

Under the procedures established by the Paperwork Reduction Act of
1995 (PRA) (44 U.S.C. 3501, et seq.), federal agencies must obtain
approval from the Office of Management and Budget (OMB) for each
collection of information they conduct, sponsor, or require through
regulations. A person is not required to respond to a collection of
information by a federal agency unless the collection displays a valid
OMB control number. The Information Collection Request (ICR) for a
proposed new information collection described below has been forwarded
to OMB for review and comment.
NHTSA did not receive any comments that directly addressed its PRA
analysis or its burden estimates discussed in the NPRM. As described
above, this final rule requires the same information to be collected as
was proposed in the NPRM. However, NHTSA did receive one comment about
a voluntary potential burden that is separate from NHTSA's three
required forms. This comment addressed the Agency's proposed suggestion
for potential whistleblowers under binding nondisclosure agreements to
consult private counsel before providing information to NHTSA. We
discuss that comment and potential burden below.
The titles for the collection of information are forms: (1) WB-
INFO, (2) WB-RELEASE, and (3) WB-AWARD. Under Sec. 513.4 and Sec.
513.9, these forms are necessary to implement section 30172 of the
Safety Act.
The WB-INFO form allows a whistleblower to provide information to
the Agency and its staff relating to general information about the
whistleblower, information about the motor vehicle manufacturer, part
supplier, or dealership about whom the concern is raised, the type and
source of information being reported, the individual's legal
representative (if applicable), the information about any potential
motor vehicle defect, potential noncompliance, or violation or alleged
violation of any notification or reporting requirement of Chapter 301
or regulation thereunder, which is likely to cause unreasonable risk of
death or serious physical injury, and additional information.
Form WB-RELEASE provides a means for a whistleblower to provide
prior written consent for the Agency to disclose information which
could reasonably be expected to reveal the whistleblower's identity.
The WB-AWARD form allows the claimant to provide information
related to the claimant's eligibility for an award.
Summary of the Collection of Information:
Form WB-INFO, which would be submitted pursuant to Sec. 513.4,
requests the following information:
(1) Background information regarding the person submitting the
form, including the person's name, contact information and occupation
and the person's relationship to the company about whom the concern is
raised;
(2) Information about the motor vehicle manufacturer, part supplier
or dealership about which the concern is raised;
(3) If the person is represented by a legal representative, the
name and contact information for the person's legal representative (in
cases of anonymous submissions the person must be represented by a
legal representative);
(4) Information regarding the issue involving a motor vehicle
manufacturer, part supplier, or dealership, including the date of the
alleged issue, whether the conduct is on-going, and whether the person
or their counsel had any prior communication with NHTSA;
(5) Whether the allegation is related to a potential safety-related
defect or noncompliance with an applicable Federal Motor Vehicle Safety
Standard, and if so a detailed description of the allegation and how
the allegation affects vehicle/system/component performance and/or
compliance, and the make, model, model year, part number, component
number, etc., if known;
(6) Whether the allegation is related to any violation or alleged
violation of any notification or reporting requirement of the Safety
Act, and if so, a description of the notification or reporting issue,
including all facts pertinent to the alleged violation;
(7) A description of supporting materials in the whistleblower's
possession and the availability and location of other additional
supporting materials;
(8) A description of how the person learned about or obtained the
information submitted, and, if any information was obtained from a
public source, a description of that source;
(9) Identification of documents or other information in the
submission that the person believes could reasonably be expected to
reveal the person's identity and the basis for that belief;
(10) Whether the person or legal representative of the person has
taken any other action regarding the issue, and if so, a description;
(11) Whether the person acquired the information through a means or
manner that has been determined by a United States federal court or a
state court to violate applicable federal or state criminal law, and if
so, details regarding that determination;
(12) Whether the person acquired the information solely through a
communication that was subject to a privilege, such as the attorney-
client privilege or attorney work product doctrine;

[[Page 101969]]

(13) Any other relevant information;
(14) A declaration, signed under penalty of perjury under the laws
of the United States, that the information provided to NHTSA is true
and correct to the best of the person's knowledge, information and
belief and acknowledgement from the person that they may be subject to
prosecution and ineligible for a whistleblower award if, in their
submission of information, their other dealings with NHTSA, or their
dealings with another authority in connection with a related action,
they knowingly and willfully make any false, fictitious or fraudulent
statements or representations, or use any false writing or document
knowing that the writing or document contains any false, fictitious or
fraudulent statement or entry; and
(15) If represented by a legal representative, the legal
representative's certification certifying that the legal representative
has verified the identity of the individual who completed form WB-INFO
by viewing that individual's valid, unexpired government issued
identification, reviewed the individual's WB-INFO form for accuracy,
and that the information contained therein is true and correct to the
best of the legal representative's knowledge, information and belief;
that the legal representative will retain an original, signed copy of
the form with section F filled out by their client in their file; and
that the legal representative has obtained the whistleblower's non-
waivable consent to provide NHTSA with the whistleblower's original
signed WB-INFO form in the event that NHTSA requests it.
Form WB-RELEASE requests the following information:
(1) Background information regarding the whistleblower submitting
the WB-RELEASE form, including the person's name and address;
(2) The name of the motor vehicle manufacturer, part supplier and/
or dealership to which the whistleblower's issue or information
relates;
(3) An acknowledgment that the person consents to disclosure of
information that could reasonably be expected to reveal the person's
identity; and
(4) Signature of the whistleblower and date.
Form WB-AWARD, which would be submitted pursuant to Sec. 513.9
requires the following information:
(1) The claimant's name, address and contact information;
(2) If the person is represented by a legal representative, the
name and contact information for the legal representative;
(3) Details concerning the issue, including the manner in which the
information was submitted to NHTSA, the date when the information was
submitted, the form in which it was submitted, and the name of the
motor vehicle manufacturer, part supplier and/or dealership to which
the issue or information relates;
(4) Information concerning the Notice of Covered Action to which
the claim relates, including the date of the Notice, the Notice Number,
and the Case name and number; and information regarding related
actions, if applicable;
(5) Information relating to the claimant's eligibility for an
award, including whether the person acquired the information solely
through a communication that was subject to the attorney-client
privilege or attorney work product doctrine; whether the person
acquired the original information by a means or manner that was
determined by a United States federal court or state court to violate
applicable federal or state criminal law; and whether the person is
currently a subject or target of a United States federal or state
criminal investigation or has been convicted of a criminal violation by
a United States federal or state court in connection with the
allegations or conduct the person submitted to NHTSA. If any of the
circumstances noted above were applicable, the person is requested to
provide an explanation;
(6) An explanation of the reasons that the person believes an award
in connection with the person's submission of information to NHTSA is
warranted, including any information that might be relevant in light of
the criteria for determining the amount of an award set forth in 49
U.S.C. 30172 and 49 CFR part 513; and
(7) A declaration by the claimant under penalty of perjury under
the laws of the United States that the information provided in the WB-
AWARD form is true and correct to the best of the person's knowledge,
information and belief and acknowledgement from the person that they
may be subject to prosecution and ineligible for a whistleblower award
if, in their submission of information, their other dealings with
NHTSA, or their dealings with another authority in connection with a
related action, they knowingly and willfully make any false, fictitious
or fraudulent statements or representations, or use any false writing
or document knowing that the writing or document contains any false,
fictitious or fraudulent statement or entry.
Description of the Need for the Information and Use of the
Information:
The collection of information on form WB-INFO will be used to
permit the Agency and its staff to collect information from
whistleblowers regarding any potential motor vehicle defect, potential
noncompliance, or any violation or alleged violation of any
notification or reporting requirement of the Safety Act or regulation
thereunder for which NHTSA has enforcement authority. NHTSA
investigators consider information provided by whistleblowers, which
may lead to formal actions like an investigation, recall, or civil
penalty enforcement action. If this information leads to a successful
resolution of a covered action resulting in monetary sanctions
collected by the United States in excess of $1,000,000, a whistleblower
would be eligible for an award.
The WB-RELEASE form will provide a means for the whistleblower to
provide consent for the Agency to disclose information that could
reasonably be expected to reveal the identity of the whistleblower.
Being able to disclose this information may allow the Agency to open a
public investigation or proceed more efficiently with an investigation
into the whistleblower's allegations. This form is not required.
The WB-AWARD form will permit the Agency to collect information
relating to a claimant's eligibility for an award, the claimant's
position on why they should receive an award, and the claimant's view
on the criteria for determining the amount of an award. This
information would allow the Administrator to determine claims for
whistleblower awards.
Finally, there is a potential limited number of respondents who may
need to consult with private counsel about a binding nondisclosure
agreement prior to the potential whistleblower submitting a WB-INFO
form to NHTSA. This is an optional, voluntary step that some potential
whistleblowers may choose to take so they can receive legal advice with
respect to whether a confidentiality agreement with their employer
prohibits them from submitting information to NHTSA.
Affected Public:
The likely respondents to form WB-INFO are those employees or
contractors of motor vehicle manufacturers, part suppliers, and
dealerships who wish to provide the Agency staff with information
relating to any potential motor vehicle defect, potential
noncompliance, or any violation or alleged violation of any
notification or reporting requirement of the Safety Act

[[Page 101970]]

or regulation thereunder that is likely to cause unreasonable risk of
death or serious physical injury.
The likely respondents to form WB-RELEASE are those individuals who
wish to provide prior written consent to NHTSA for disclosure of
information that could reasonably be expected to reveal that
individual's identity.
The likely respondents to form WB-AWARD will be those individuals
who have provided the Agency with original information by filing a WB-
INFO form, and who believe they are eligible for an award under 49 CFR
part 513.
The potential likely respondents who may need to consult with
private counsel prior to submitting a WB-INFO form to NHTSA are those
individuals who signed a binding nondisclosure agreement.
Estimated Number of Respondents for Form WB-INFO:
Since the enactment of the FAST Act in 2015, NHTSA has received
approximately 300 submissions that it has considered potential
whistleblower submissions.\34\ The Agency estimates that there will be
approximately 50 individuals per fiscal year who may wish to file such
form. The Agency estimated the number of individuals based on the
current number of whistleblower submissions and the Agency's view that
submissions will increase once the whistleblower reward program is more
widely known, after the rules are promulgated and additional
whistleblower awards are made.
---------------------------------------------------------------------------

\34\ Because there has not been a required method or form of
submission, NHTSA has taken a broad view of what is considered
whistleblower information. Such information comes from a variety of
sources, such as Vehicle Owner Questionnaires (``VOQ''), information
provided by telephone, and information submitted by letter or email
to the Agency. NHTSA has taken this broad view not only to review
and track the information submitted, but also to better protect the
confidentiality of those who have provided whistleblower information
to the Agency.
---------------------------------------------------------------------------

Frequency of Form WB-INFO:
The Agency expects that the individual will complete one form
detailing all potential issues they are aware of.
Number of Responses for Form WB-INFO:
The Agency anticipates there will be approximately 50 individuals
per fiscal year who may wish to file such a form. NHTSA assumes half of
this number will have a legal representative.
Estimated Total Annual Burden Hours for Form WB-INFO:
NHTSA estimates an average of 10 burden hours per individual who
completes the WB-INFO form, and 20 hours per individual who has a legal
representative complete the WB-INFO form. The completion time will
depend largely on the complexity of the alleged violation and the
amount of information the whistleblower possesses in support of the
allegations. The Agency estimates that the total annual PRA burden of
form WB-INFO is 750 hours per year (25 respondents who use a legal
representative x 20 hours) plus (25 respondents who fill out their own
form x 10 hours).
Estimated Total Annual Burden Cost for Form WB-INFO:
NHTSA estimates the total annual burden cost for the Form WB-INFO
to be $266,000. NHTSA bases the estimate on the following:
Costs for Legal Representatives to Fill out the Form WB-INFO:
Under the final rule, a potential whistleblower who discloses their
identity may elect to retain a legal representative, while an anonymous
potential whistleblower is required to retain a legal representative.
The Agency expects that in most of those instances where a legal
representative is retained, the whistleblower/claimant's legal
representative will complete or assist in the completion of some or all
of the required forms on the client's behalf. The Agency also expects
that in the vast majority of cases in which a whistleblower/claimant is
represented by a legal representative, such person will enter into a
contingency fee arrangement with such legal representative, providing
that the legal representative will provide representation in exchange
for a fixed percentage of any recovery under the whistleblower award
program. Therefore, the Agency believes that most persons will not
incur any direct expenses for attorneys' fees for the completion of
required forms. The Agency also anticipates that a very small number of
people will enter into hourly fee arrangements with counsel. The Agency
believes that approximately half of potential whistleblowers will have
a legal representative submit the forms. The Agency has estimated the
cost of using a legal representative regardless of whether the fee is
contingent or hourly.
To estimate those expenses, the Agency makes the following
assumptions:
(i) The Agency will receive approximately 50 WB-INFO forms
annually;
(ii) Of these approximately 50 WB-INFO forms, potential
whistleblowers will have a legal representative submit approximately 25
WB-INFO forms;
(iii) Legal representative cost will be on average $532 \35\ per
hour; and
---------------------------------------------------------------------------

\35\ This amount is based on the U.S Attorney's Office for the
District of Columbia Fees Matrix for 2015-2021, assuming that an
attorney with 11-15 years of experience assists the whistleblower.
See <a href="https://www.justice.gov/file/1461316/download">https://www.justice.gov/file/1461316/download</a>.
---------------------------------------------------------------------------

(iv) Legal representatives will bill on average 20 hours to review
materials and complete form WB-INFO.\36\
---------------------------------------------------------------------------

\36\ The Agency expects that counsel will need to expend
additional time to gather information from the whistleblower or
review sources of information needed to complete the forms, which is
why this estimate is higher than the estimate to just complete the
form.
---------------------------------------------------------------------------

Based on those assumptions, the Agency estimates that each year the
cost of legal representative time for completion of the forms will be
$266,000 for the completion of form WB-INFO (($532 x 20 hours) x 25
respondents).
Costs of Submission
The Agency anticipates that the vast majority of whistleblowers/
claimants will submit the forms using electronic means rather than
mail. Therefore, the expected cost of submission of the forms is $0.00.
Estimated Number of Respondents for Form WB-RELEASE:
The Agency estimates that it will receive 45 WB-RELEASE forms per
year.
Frequency of Form WB-RELEASE:
The Agency expects that an individual will complete one form per
year.
Number of Responses for Form WB-RELEASE:
The Agency anticipates there will be approximately 45 individuals
per fiscal year who may wish to file a form WB-RELEASE.
Estimated Total Annual Burden Hours for Form WB-RELEASE:
The Agency estimates that it will take 15 minutes per individual to
complete the form, and the Agency estimates that it would receive 45
WB-RELEASE forms per year. The Agency anticipates that potential
whistleblowers will complete and submit for themselves 20 WB-RELEASE
forms annually and that legal representatives will submit on their
client's behalf 25 WB-RELEASE forms annually. Thus, the Agency
estimates that that estimated annual PRA burden of form WB-RELEASE is
11.25 hours per fiscal year (45 respondents x 15 minutes/60).
Estimated Total Annual Burden Cost for Form WB-RELEASE:
NHTSA estimates the total annual burden cost for the Form WB-
RELEASE to be $3,325. The Agency bases the estimate on the following:
Involvement and Cost of Legal Representatives:

[[Page 101971]]

Under the Final Rule, a potential whistleblower who discloses their
identity may elect to retain a legal representative, while an anonymous
potential whistleblower is required to retain a legal representative.
The Agency expects that in most of those instances where a legal
representative is retained, the potential whistleblower's legal
representative will complete or assist in the completion of some or all
of the required forms on the client's behalf. The Agency also expects
that in the vast majority of cases in which a potential whistleblower
is represented by a legal representative, such person will enter into a
contingency fee arrangement with such legal representative, providing
that the legal representative will provide representation in exchange
for a fixed percentage of any recovery under the whistleblower award
program. Therefore, the Agency believes that most persons will not
incur any direct expenses for attorneys' fees for the completion of
required forms. The Agency also anticipates that a very small number of
people will enter into hourly fee arrangements with counsel. The Agency
has estimated the cost of using a legal representative regardless of
whether the fee is contingent or hourly.
To estimate those expenses, the Agency makes the following
assumptions:
(i) The Agency will receive 45 WB-RELEASE forms annually;
(ii) Potential whistleblowers will have a legal representative
submit approximately 25 WB-RELEASE forms annually;
(iii) Attorney cost will be on average $532 \37\ per hour; and
---------------------------------------------------------------------------

\37\ This amount is based on the U.S Attorney's Office for the
District of Columbia Fees Matrix for 2015-2021, assuming that an
attorney with 11-15 years of experience assists the whistleblower.
See <a href="https://www.justice.gov/file/1461316/download">https://www.justice.gov/file/1461316/download</a>.
---------------------------------------------------------------------------

(iv) Attorneys will bill on average 15 minutes to complete form WB-
RELEASE.
Based on those assumptions, the Agency estimates that each year the
cost of attorney time for completion of the forms will be $3,325 for
the completion of form WB-RELEASE (($532 x 15 minutes/60) x 25
respondents).

Costs of Submission

The Agency anticipates that the vast majority of potential
whistleblowers will submit the forms using electronic means rather than
mail. Therefore, the expected cost of submission of the forms is $0.00.
Estimated Number of Respondents for Form WB-AWARD:
Each individual who has submitted a form WB-INFO and wishes to be
considered for an award under the program would be required to provide
a WB-AWARD form to the Agency. A claimant could only submit a WB-AWARD
form after there has been a ``Notice of Covered Action'' published on
the Agency's website pursuant to Sec. 513.9. The Agency estimates that
it will post approximately 1-2 such Notices each year. The Agency bases
this estimate by looking at the enforcement actions resulting in civil
penalties exceeding $1,000,000 over the last several years, not
including deferred penalties not collected or performance amounts. In
some years, the Agency did not collect any civil penalties exceeding
$1,000,000. In another year, the Agency had several instances where it
collected more than $1,000,000 in civil penalties in connection with an
enforcement action. The Agency believes that as this whistleblower
program grows, more actionable submissions will be made and, as a
consequence, the Agency will have more actions resulting in collected
monetary sanctions exceeding $1,000,000.
Considering the estimate of the anticipated yearly covered actions,
and the Agency's experience to date, the Agency estimates that it would
receive approximately 2 WB-AWARD forms each year.\38\
---------------------------------------------------------------------------

\38\ While it is unlikely that there will be whistleblower
information provided in connection with every Notice of Covered
Action posted by the Agency, this estimate calculates burden hours
as if there were one claim for each Covered Action.
---------------------------------------------------------------------------

Frequency of Form WB-AWARD:
The Agency expects that the individual will complete one form.
Number of Responses for Form WB-AWARD:
The Agency anticipates there will be approximately 2 individuals
per fiscal year who may wish to file such.
Estimated Total Annual Burden Hours for Form WB-AWARD:
The collection is estimated to involve approximately 10 burden
hours per individual seeking to be considered for an award under the
Agency's whistleblower program. The Agency estimates that the estimated
annual PRA burden of form WB-AWARD is 20 hours per fiscal year (2
respondents x 10 hours).
Estimated Total Annual Burden Cost for Form WB-AWARD:
The Agency estimates the total annual burden cost for the Form WB-
AWARD to be $10,640. The Agency bases the estimate on the following:

Involvement and Cost of Legal Representatives

Under the final rule, a potential whistleblower who discloses their
identity may elect to retain a legal representative, while an anonymous
potential whistleblower is required to retain a legal representative.
The Agency expects that in most of those instances where a legal
representative is retained, the potential whistleblower/claimant's
legal representative will complete or assist in the completion of some
or all of the required forms on the client's behalf. The Agency also
expects that in the vast majority of cases in which a potential
whistleblower/claimant is represented by a legal representative, such
person will enter into a contingency fee arrangement with such legal
representative, providing that the legal representative will provide
representation in exchange for a fixed percentage of any recovery under
the whistleblower award program. Therefore, the Agency believes that
most persons will not incur any direct expenses for legal
representatives' fees for the completion of required forms. The Agency
also anticipates that a very small number of people will enter into
hourly fee arrangements with counsel. However, the Agency does believe
that all individuals submitting a WB-AWARD form will use a legal
representative. The Agency has estimated the cost of using a legal
representative regardless of whether the fee is contingent or hourly.
To estimate those expenses, the Agency makes the following
assumptions:
(i) The Agency will receive approximately 2 WB-AWARD forms
annually;
(ii) Claimants will have a legal representative submit 2 WB-AWARD
forms annually;
(iii) Legal representative cost will be on average $532 \39\ per
hour; and
---------------------------------------------------------------------------

\39\ This amount is based on the U.S Attorney's Office for the
District of Columbia Fees Matrix for 2015-2021, assuming that an
attorney with 11-15 years of experience assists the whistleblower.
See <a href="https://www.justice.gov/file/1461316/download">https://www.justice.gov/file/1461316/download</a>.
---------------------------------------------------------------------------

(iv) Legal representatives will bill on average 10 hours to
complete a form WB-AWARD.
Based on those assumptions, the Agency estimates that each year the
cost of legal representatives' time for completion of the forms will be
$10,640 for the completion of form WB-AWARD (($532 x 10 hours) x 2
respondents).

Costs of Submission

The Agency anticipates that the vast majority of claimants will
submit the

[[Page 101972]]

forms using electronic means rather than mail. Therefore, the expected
cost of submission of the forms is $0.00.
Mandatory Collection of Information
As proposed in the NPRM, a person will be required to complete and
submit a WB-INFO form and to submit a WB-AWARD form to qualify for a
whistleblower award.
Optional Annual Burden Cost Associated With Collection of a WB-INFO
Form
Consulting with private counsel about a nonbinding disclosure
agreement is a voluntary, optional burden cost; however, it is a
voluntary burden cost that some potential whistleblowers might need to
take prior to submitting a WB-INFO form to NHTSA.
As discussed above, NHTSA received a comment from Kohn that
disagreed with NHTSA's suggestion in the NPRM that potential
whistleblowers under binding nondisclosure agreements consult private
counsel before submitting a WB-INFO form to NHTSA. As noted above,
NHTSA is obligated to adhere to and support a whistleblower's statutory
protections, but NHTSA's attorneys do not represent whistleblowers.
Therefore, if a whistleblower needs legal advice, they should obtain
their own private legal counsel.
Estimated Number of Respondents Consulting Private Counsel About a
Binding Nondisclosure Agreement:
The Agency estimates that five potential whistleblowers per year
will consult private counsel about a binding nondisclosure agreement
with their employer. This estimate is based on the approximately 50
individuals per year who may submit whistleblower information to the
Agency. This estimate is also based on potential whistleblowers who
consider submitting information to the Agency but choose not to submit
information to the Agency after consulting with private counsel about a
binding nondisclosure agreement with their employer.
Estimated Total Annual Burden Hours for Respondents Consulting
Private Counsel About a Binding Nondisclosure Agreement:
The Agency estimates that each private counsel will take
approximately two hours to review a binding nondisclosure agreement,
and the Agency estimates that five potential whistleblowers may consult
with private counsel about a binding nondisclosure agreement per year.
Thus, the Agency estimates that the estimated annual PRA burden of
consulting with private counsel about a binding nondisclosure agreement
is 10 hours per fiscal year (five respondents x two hours).
Estimated Annual Cost of Respondents Consulting Private Counsel
About a Binding Nondisclosure Agreement:
NHTSA estimates the total annual burden cost for respondents
consulting with private counsel about a binding nondisclosure agreement
to be $5,320. The Agency bases the estimate on the following:
Involvement and Cost of Legal Representatives:
To estimate those expenses, the Agency makes the following
assumptions:
(i) The Agency will receive 50 whistleblower submissions annually;
(ii) Five potential whistleblowers will consult with private
counsel about a binding nondisclosure agreement annually;
(iii) Attorney costs will be on average $532 per hour; and
(iv) Attorneys will bill on average two hours to review a binding
nondisclosure agreement.
Based on those assumptions, the Agency estimates that each year the
cost of attorney time for consultation about a binding nondisclosure
agreement will be $5,320 (($532 x two hours) x five respondents).

List of Subjects in 49 CFR Part 513

Administrative procedure and practice, Appeal procedures, Claims,
Investigations, Imports, Lawyers, Motor vehicle safety, Privacy,
Reporting and record keeping requirements, Tires, Whistleblowing.

0
For the reasons discussed in the preamble, NHTSA adds 49 CFR part 513
to read as follows:

PART 513--WHISTLEBLOWER PROGRAM

Sec.
513.1 General.
513.2 Definitions
513.3 Representation.
513.4 Procedures for submitting original information.
513.5 Confidentiality.
513.6 Prerequisites to the consideration of an award.
513.7 Whistleblowers ineligible for an award.
513.8 Provision of false information.
513.9 Procedures for making a claim for a whistleblower award.
513.10 Award determinations.
513.11 Appeals of award determinations.
513.12 Procedures applicable to the payment of awards.
Appendix A to Part 513--Form WB-INFO
Appendix B to Part 513--Form WB-RELEASE
Appendix C to Part 513--Form WB-AWARD

Authority: 49 U.S.C. 322 and 49 U.S.C. 30172; delegation of
authority at 49 CFR 1.95.

Sec. 513.1 General.

This part 513 describes the whistleblower program established by
the Agency to implement the Motor Vehicle Safety Whistleblower Act, 49
U.S.C. 30172, explains procedures that a potential whistleblower must
follow to be eligible for an award, and the circumstances under which
information that may reasonably be expected to reveal the identity of a
whistleblower may be disclosed by the National Highway Traffic Safety
Administration (NHTSA). Potential whistleblowers should read these
procedures carefully because failure to take required steps in a timely
fashion in conformance with these rules may result in disqualification
from receiving an award. Questions about the whistleblower program or
these rules should be directed to the NHTSA Office of the Chief Counsel
at <a href="/cdn-cgi/l/email-protection#f8b6b0acabb9af90918b8c949d9a94978f9d8ab89c978cd69f978e">[email&#160;protected]</a>. Unless expressly provided for in this
part, no person is authorized to make any offer or promise, or
otherwise bind the Agency with respect to the payment of any award or
the amount thereof, and any such offer or promise will not be honored.

Sec. 513.2 Definitions.

(a) Statutory definitions. All terms used in this part have the
same meaning as in 49 U.S.C. 30102(a) or (b), unless otherwise defined
in this part.
(b) Other terms. As used in this part:
Administrative action. The term ``administrative action'' means all
or a portion of an action, other than a judicial action, brought by the
NHTSA or the U.S. Department of Transportation under 49 U.S.C. Chapter
301 that may result in civil penalties or other monetary payment paid
to and collected by the United States government. It specifically
includes settlement agreements and consent orders that are entered into
by the Agency.
Agency. The term ``Agency'' refers to the National Highway Traffic
Safety Administration (NHTSA).
Collected monetary sanctions. The term ``collected monetary
sanctions'' means monies, including penalties and interest, ordered or
agreed to be paid and that have been collected by the United States,
pursuant to the authority in 49 U.S.C. 30165 or under the authority of
49 U.S.C. 30170.
Contractor. The term ``contractor'' means an individual presently
or formerly providing goods or services to

[[Page 101973]]

a motor vehicle manufacturer, part supplier, or dealership pursuant to
a contract.
Covered action. The term ``covered action'' means any
administrative or judicial action, including any related administrative
or judicial action brought by the Secretary, NHTSA, or the Attorney
General under 49 U.S.C. Chapter 301, or a regulation thereunder, that
in the aggregate results in monetary sanctions exceeding $1,000,000.
The over $1,000,000 threshold can be satisfied if the total amount of
monetary sanctions paid by multiple defendants or parties and collected
by the United States totals more than $1,000,000 in the covered action.
Dealership. The term ``dealership'' means a person selling and
distributing motor vehicles or motor vehicle equipment primarily to
purchasers that in good faith purchase the vehicles or equipment other
than for resale.
Employee. The term ``employee'' means an individual presently or
formerly employed by a motor vehicle manufacturer, part supplier, or
dealership.
Independent knowledge or analysis. The term ``knowledge'' as used
in this part means factual information in the potential whistleblower's
possession that is not generally known or available to the public and
is not already known to NHTSA. The potential whistleblower may gain
independent knowledge from the potential whistleblower's experiences,
communications, and observations in the potential whistleblower's
business or social interactions. As used in this part, ``analysis''
means the potential whistleblower's examination and evaluation of
information that may be generally or publicly available, but which
reveals information that is not generally known or available to the
public. This analysis must be the potential whistleblower's own
analysis, whether done alone or in combination with others.
NHTSA will not consider the potential whistleblower's information
to be derived from the potential whistleblower's independent knowledge
or analysis if the potential whistleblower obtained the information:
(i) Solely through a communication that was subject to the
attorney-client privilege or work product doctrine; or
(ii) By a means or in a manner that has been determined by a United
States federal court or state court to violate applicable federal or
state criminal law.
Motor vehicle defect. The term ``motor vehicle defect'' means a
defect in a motor vehicle or item of motor vehicle equipment.
Noncompliance. A ``noncompliance'' occurs when a motor vehicle or
item of motor vehicle equipment does not comply with an applicable
Federal Motor Vehicle Safety Standard.
Original information. The term ``original information'' means
information that--
(i) Is derived from the independent knowledge or analysis of an
individual;
(ii) Is not known to the Secretary or Agency from any other source,
unless the individual is the original source of the information;
(iii) Is not exclusively derived from an allegation made in a
judicial or an administrative action, in a governmental report, a
hearing, an audit, or an investigation, or from the news media, unless
the individual is a source of the information; and
(iv) Is provided to the Agency for the first time after December 4,
2015.
Original information that leads to a successful resolution. The
Agency will consider that the potential whistleblower provided original
information that ``leads to'' a successful resolution of a covered
action in the following circumstances:
(i) The potential whistleblower gave the Agency original
information that was sufficiently specific, credible and timely to
cause the Agency to open an investigation, reopen an investigation that
the Agency had closed, continue an investigation the Agency would not
have continued but for the information, or to inquire concerning a
different potential violation of Chapter 301, or a regulation
thereunder, as part of a current investigation, and the U.S. Department
of Transportation, Agency, or U.S Department of Justice brought a
successful judicial or administrative action based in whole or in part
on conduct that was the subject of the potential whistleblower's
original information; or
(ii) The potential whistleblower gave the Agency original
information about conduct that was already under investigation by the
Agency and the potential whistleblower's information significantly
contributed to the success of the covered action and the U.S.
Department of Transportation, Agency, or U.S. Department of Justice
brought a judicial or administrative action that achieves a successful
resolution based in whole or in part on conduct that was the subject of
the potential whistleblower's original information.
Part supplier. The term ``part supplier'' means a manufacturer of
motor vehicle equipment.
Potential whistleblower. The term ``potential whistleblower''
refers to an employee or contractor of a motor vehicle manufacturer,
part supplier, or dealership submitting information to the Agency in
accordance with and pursuant to this part.
Related administrative or judicial action. The term ``related
administrative or judicial action'' means an action that was brought
under 49 U.S.C. Chapter 301 by the U.S. Department of Justice, the U.S
Department of Transportation, or the Agency and is based on the
original information provided by the whistleblower.
Secretary. The term ``Secretary'' means the Secretary of
Transportation.
Successful resolution. A successful resolution, when referring to
any administrative or judicial action brought by the Secretary, Agency,
or the Attorney General relating to any potential motor vehicle defect,
potential noncompliance, or any violation or alleged violation of any
notification or reporting requirement under 49 U.S.C. Chapter 301, or a
regulation thereunder, which is likely to cause unreasonable risk of
death or serious physical injury, includes any settlement of the action
by the U.S. Department of Transportation, Agency or the U.S. Department
of Justice or final decision or judgment in whole or in partial favor
of the Agency, the U.S. Department of Transportation, or the U.S.
Department of Justice.
Whistleblower. The term ``whistleblower'' means any employee or
contractor of a motor vehicle manufacturer, part supplier, or
dealership who voluntarily provides to the Agency original information
relating to any motor vehicle defect, noncompliance, or any violation
or alleged violation of any notification or reporting requirement of 49
U.S.C. Chapter 301, or a regulation thereunder, which is likely to
cause unreasonable risk of death or serious physical injury.

Sec. 513.3 Representation.

A whistleblower or potential whistleblower may be represented by a
legal representative.

Sec. 513.4 Procedures for submitting original information.

(a) A potential whistleblower's submission must be made by
completing a WB-INFO form and submitting it to the Office of the Chief
Counsel, National Highway Traffic Safety Administration, by email to
<a href="/cdn-cgi/l/email-protection#743a3c202735231c1d0700181116181b03110634101b005a131b02">[email&#160;protected]</a> or other submission method expressly
designated on NHTSA's website for such submissions.
(b) By completing the WB-INFO form, the potential whistleblower
must declare under penalty of perjury at the time the whistleblower
submits

[[Page 101974]]

information pursuant to paragraph (a) of this section that the
information is true and correct to the best of the potential
whistleblower's knowledge and belief.
(c) A potential whistleblower may provide original information to
the Agency anonymously through use of a legal representative. The legal
representative must submit the information on behalf of the potential
whistleblower pursuant to the procedures specified in paragraph (a) of
this section. Prior to the legal representative's submission, the
potential whistleblower must provide the legal representative with a
completed WB-INFO form that the potential whistleblower has signed
under the penalty of perjury. When the legal representative makes the
submission on behalf of the potential whistleblower, the legal
representative must certify that the legal representative:
(1) Has verified the potential whistleblower's identity;
(2) Has verified that the potential whistleblower is an employee or
contractor of a motor vehicle manufacturer, part supplier, or
dealership;
(3) Has reviewed the potential whistleblower's signed WB-INFO form
for accuracy and that the information contained therein is true and
correct to the best of the legal representative's knowledge,
information and belief; and
(4) Has obtained the potential whistleblower's non-waivable consent
to provide the Agency with the original WB-INFO form for the potential
whistleblower in the event that the Agency requests it.
(d) If a potential whistleblower submitted original information to
the Agency after December 4, 2015 but before January 16, 2025, the
submission will be deemed to satisfy the requirements set forth in
paragraphs (a) and (b) of this section.

Sec. 513.5 Confidentiality.

(a) In General. Notwithstanding 49 U.S.C. 30167, the Secretary and
any officer or employee of the U.S. Department of Transportation shall
not disclose any information, including information provided by a
whistleblower to the Secretary, that could reasonably be expected to
reveal the identity of a whistleblower, except in accordance with the
provisions of 5 U.S.C. 552a, unless:
(1) Disclosure is required to a defendant or respondent in
connection with a public proceeding instituted by the Secretary, the
Agency, or any entity described in paragraph (c);
(2) The whistleblower provides prior written consent for the
information to be disclosed; or
(3) The Secretary, or other officer or employee of the U.S.
Department of Transportation, receives the information through another
source, such as during an inspection or investigation under 49 U.S.C.
30166, and has the authority under other law to release the
information.
(b) Use by Attorney General. Notwithstanding paragraph (a) of this
section, nothing in this section is intended to limit the ability of
the Attorney General to present such evidence to a grand jury or to
share such evidence with potential witnesses or defendants in the
course of an ongoing criminal investigation.
(c) Availability to Federal Government Agencies. Notwithstanding
paragraph (a) of this section, without the loss of its status as
confidential in the hands of the Administrator, all information
referred to in paragraph (a) of this section may, in the discretion of
the Administrator, when determined by the Administrator to be necessary
or appropriate to accomplish the purposes of 49 U.S.C. Chapter 301, be
made available to the U.S. Department of Justice or an appropriate
department or agency of the federal government, acting within the scope
of its jurisdiction, provided that each entity shall maintain
information as confidential in accordance with the requirements of
paragraph (a).
(d) Redaction. When disclosing any information under paragraph (a)
of this section, the Secretary and any officer or employee of the U.S.
Department of Transportation shall take reasonable measures not to
reveal the identity of the whistleblower by taking measures not to
reveal the whistleblower's name, and redacting the whistleblower's name
when information is disclosed under paragraph (a).
(e) Section 552(b)(3)(B). The identity of the whistleblower and the
information provided to Secretary by the whistleblower shall be
considered exempt from disclosure under the provisions of 5 U.S.C. 552
to the fullest extent permitted by law.
(f) The whistleblower. The person should self-identify as a
whistleblower at the time the person first submits original information
relating to any potential motor vehicle defect, potential
noncompliance, or any violation or alleged violation of any
notification or reporting requirements under 49 U.S.C. Chapter 301 or a
regulation thereunder by submitting a WB-INFO form. If the person is
represented by a legal representative, that legal representative should
identify the client as a whistleblower at the time the legal
representative first submits original information relating to any
potential motor vehicle defect, potential noncompliance, or any
violation or alleged violation of any notification or reporting
requirements under 49 U.S.C. Chapter 301 or regulation thereunder on
behalf of the legal representative's client in the WB-INFO form.

Sec. 513.6 Prerequisites to the consideration of an award.

(a) Subject to the eligibility requirements described in this part,
NHTSA may, but is not required to, authorize payment of an award to one
or more persons who:
(1) Provide a voluntary submission to the Agency;
(2) Provide in that submission original information relating to any
potential motor vehicle defect, potential noncompliance, or any
violation or alleged violation of any notification or reporting
requirement of 49 U.S.C. Chapter 301 or a regulation thereunder, which
is likely to cause unreasonable risk of death or serious physical
injury; and
(3) The original information provided in that submission leads to
the successful resolution of a covered action.
(b) To be eligible, the person must have given the Agency original
information in the form and manner that the Agency requires in Sec.
513.4. The Agency may, for good cause, waive this requirement.

Sec. 513.7 Whistleblowers ineligible for an award.

No award under Sec. 513.10 shall be made:
(a) If the amount of monetary sanctions collected in a covered
action does not exceed $1,000,000;
(b) To any whistleblower who is convicted of a criminal violation
by a United States federal or state court related to the covered action
for which the whistleblower otherwise could receive an award under this
part;
(c) To any whistleblower who, acting without direction from an
applicable motor vehicle manufacturer, part supplier, or dealership, or
agent thereof, deliberately causes or substantially contributes to the
alleged violation of a requirement of 49 U.S.C. Chapter 301 or a
regulation thereunder;
(d) To any whistleblower who submits information to the Agency that
is based on the facts underlying the covered action submitted
previously by another whistleblower;
(e) To any whistleblower who fails to provide the original
information to the

[[Page 101975]]

Agency in the form required by Sec. 513.4 without good cause shown;
(f) To any whistleblower who knowingly and intentionally makes any
false, fictitious, or fraudulent statement or representation, or who
makes or uses any false writing or document knowing the same to contain
any false, fictitious, or fraudulent statement or entry; or
(g) If the applicable motor vehicle manufacturer, parts supplier,
or dealership has an internal reporting mechanism in place to protect
employees from retaliation, to any whistleblower who fails to report or
attempt to report the information through such mechanism, unless:
(1) The whistleblower reasonably believed that such an internal
report would have resulted in retaliation, notwithstanding 49 U.S.C.
30171(a);
(2) The whistleblower reasonably believed that the information:
(A) was already internally reported;
(B) was already subject to or part of an internal inquiry or
investigation; or
(C) was otherwise already known to the motor vehicle manufacturer,
part supplier, or dealership; or
(3) The Agency has good cause to waive this requirement.

Sec. 513.8 Provision of false information.

A person who knowingly and intentionally makes any false,
fictitious, or fraudulent statement or representation, or who makes or
uses any false writing or document knowing the same to contain any
false, fictitious, or fraudulent statement or entry, shall not be
entitled to an award under this section and shall be subject to
prosecution under section 1001 of title 18.

Sec. 513.9 Procedures for making a claim for a whistleblower award.

(a) Whenever any administrative or judicial action, including any
related administrative or judicial action, brought by the U.S.
Department of Transportation, Agency, or U.S. Department of Justice
under 49 U.S.C. Chapter 301 in the aggregate results in collected
monetary sanctions exceeding $1,000,000, the Agency will publish on the
Agency's website a ``Notice of Covered Action.'' Such Notice will be
published subsequent to a final judgment, order, or agreement that
alone, or in the aggregate, results in collected monetary sanctions
exceeding $1,000,000. A claimant will have ninety (90) days from the
date of the Notice of Covered Action to file a claim, including any
attachments, for an award based on that action, or the claim will be
barred. The claim is deemed filed on the date that it is received by
the Agency.
(b) To file a claim for a whistleblower award, the claimant must
complete the WB-AWARD form and submit it no later than ninety (90)
calendar days from the date of the Notice of Covered Action to NHTSA's
Office of the Chief Counsel by email to <a href="/cdn-cgi/l/email-protection#216f6975726076494852554d44434d4e56445361454e550f464e57">[email&#160;protected]</a> or
another method expressly designated on NHTSA's website. If the
ninetieth day falls on a weekend or federal holiday, the claim deadline
is the next business day.
(c) If the claimant provided original information anonymously
pursuant to Sec. 513.4, the claimant must disclose the claimant's
identity on the WB-AWARD form and the claimant's identity must be
verified in a form and manner that is acceptable to the Agency prior to
the authorization of payment of any award to such claimant.
(d) If a claimant filed a claim for a whistleblower award after
December 4, 2015 (the date of the enactment of the FAST Act) but before
January 16, 2025, the claim submission will be deemed to meet the
requirements of Sec. 513.9.

Sec. 513.10 Award determinations.

(a) Once the time for filing any appeals of the covered action (and
all related actions) has expired, or where an appeal has been filed,
after all appeals in the covered action and related actions have
concluded, and over $1,000,000 in monetary sanctions have been
collected, the Agency will evaluate all timely whistleblower award
claims submitted on a WB-AWARD form in accordance with the criteria set
forth in this part. The Agency may require the claimant to provide
additional information relating to the claimant's eligibility for an
award or satisfaction of any of the conditions for an award.
(b) The determination of whether, to whom, or in what amount to
make an award shall be in the discretion of the Administrator. In
determining whether to grant an award to a whistleblower eligible for
an award and the amount of an award, the Administrator shall take into
consideration, as appropriate:
(1) Whether a whistleblower reported or attempted to report the
information internally to an applicable motor vehicle manufacturer,
part supplier, or dealership;
(2) The significance of the original information provided by the
whistleblower to the successful resolution of the covered action;
(3) The degree of assistance provided by the whistleblower and any
legal representative of the whistleblower in the covered action;
(4) The statutory purpose of incentivizing whistleblowers; and
(5) The public interest or such additional factors as the
Administrator considers relevant.
(c) If the Administrator determines that an award is warranted, the
Administrator shall determine the amount of such award or awards to one
or more whistleblowers. Whistleblower awards shall be in an aggregate
amount equal to--
(1) Not less than 10 percent, in total, of monetary sanctions
collected in the covered action; and
(2) Not more than 30 percent, in total, of monetary sanctions
collected in the covered action.
(d) Following the Administrator's determination, the Agency will
send each whistleblower claimant an Order setting forth whether the
claim is granted or denied, and if granted, setting forth the award
amount. If the Administrator determines that an award is warranted, in
no event will the total amount awarded to all whistleblowers in the
aggregate be less than 10 percent or greater than 30 percent of the
amount of monetary sanctions collected in the covered action.
(e) No contract with the Agency is necessary for a whistleblower to
receive an award.

Sec. 513.11 Appeals of award determinations.

(a) A claimant may appeal any determination made by the
Administrator under Sec. 513.10 to an appropriate court of appeals of
the United States not later than 30 days after the Order is issued by
the Administrator.
(1) If no claimant files an appeal within 30 days after the Order
is issued by the Administrator, no appeals are permitted with respect
to the claim that is the subject of the Order.
(2) If any claimant appeals within 30 days after the Order is
issued by the Administrator, no payments with respect to the covered
action will be made until the appealed award determination action is
concluded.
(b) These rules do not entitle claimants to obtain from the Agency
any privileged materials such as pre-decisional, attorney-client
privileged, attorney work product privileged, or internal deliberative
process materials related to the Administrator's Order and/or any
privileged material relating to whether, to whom, and in what amount to
make a whistleblower award.
(c) The Agency may make redactions to the materials constituting
the record as necessary, including but not limited to making redactions
to comply with statutory restrictions, the Agency's enforcement and
regulatory functions and regulations, and to comply with

[[Page 101976]]

requests for confidential treatment from law enforcement, regulatory
authorities, or persons submitting information to the Agency pursuant
to 49 CFR part 512.
(d) Pursuant to 49 U.S.C. 30172(h)(3), the court shall review the
determination made by the Administrator in accordance with 5 U.S.C.
706.

Sec. 513.12 Procedures applicable to the payment of awards.

(a) A recipient of a whistleblower award is entitled to payment on
the award only to the extent that a monetary sanction upon which the
award is based is collected in the covered action.
(b) Payment of a whistleblower award for a monetary sanction
collected in connection with a covered action shall be made within a
reasonable time following the later of:
(1) The date on which the monetary sanction totaling over
$1,000,000 is collected; or
(2) The completion of the appeals process for all award
determination claims arising from the Administrator's Order relating to
the covered action.

Appendix A to Part 513--Form WB-INFO

BILLING CODE 4910-59-P
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Appendix B to Part 513--Form WB-RELEASE
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Appendix C to Part 513--Form WB-AWARD
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Issued under authority delegated in 49 CFR 1.95 and 501.5.
Sophie Shulman,
Deputy Administrator.
[FR Doc. 2024-29268 Filed 12-16-24; 8:45 am]
BILLING CODE 4910-59-P

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