`[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 [www.gpo.gov]
[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: [email protected]; or Daniel Rabinovitz, 
Office of the Chief Counsel, National Highway Traffic Safety 
Administration (telephone: (202) 366-5263), email: 
[email protected]. 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\ https://www.regulations.gov/document/NHTSA-2023-0014-0001.
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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, https://www.nhtsa.gov/laws-regulations/whistleblower-program, 
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 https://www.nhtsa.gov/sites/nhtsa.dot.gov/files/documents/rq17-004_hyundai_consent_order_executed_11272020.pdf 
(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 https://www.nhtsa.gov/sites/nhtsa.dot.gov/files/documents/aq18-002_consent_order_executed.pdf (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 https://www.nhtsa.gov/sites/nhtsa.dot.gov/files/documents/rq17-003_kia_consent_order_executed_11272020.pdf.
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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 https://www.nhtsa.gov/sites/nhtsa.gov/files/2022-02/whistleblower-decision-letter-RQ17-003-Kia-RQ17-004-Hyundai_web.pdf.
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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, https://www.reuters.com/business/autos-transportation/hyundai-motor-whistleblower-24-mln-hand-plans-help-others-speak-up-2021-11-12/; 
see also NHTSA Makes Its First Ever Whistleblower Award, Nov. 9, 
2021, https://www.nhtsa.gov/press-releases/first-whistleblower-award.
---------------------------------------------------------------------------

    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 ([email protected]), 
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, www.nhtsa.gov. 
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 https://www.dol.gov/general/topics/whistleblower.
    \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 https://www.nhtsa.gov/laws-regulations/civil-penalty-settlements.
---------------------------------------------------------------------------

    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 https://www.justice.gov/file/1461316/download.
---------------------------------------------------------------------------

    (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 https://www.justice.gov/file/1461316/download.
---------------------------------------------------------------------------

    (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 https://www.justice.gov/file/1461316/download.
---------------------------------------------------------------------------

    (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 [email protected]. 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 
[email protected] 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 [email protected] 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

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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

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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]
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