[Federal Register Volume 88, Number 72 (Friday, April 14, 2023)]
[Proposed Rules]
[Pages 23276-23322]
[FR Doc No: 2023-06894]

Vol. 88

Friday,

No. 72

April 14, 2023

Part III

Department of Transportation

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National Highway Traffic Safety Administration

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49 CFR Part 513

Implementing the Whistleblower Provisions of the Vehicle Safety Act;
Proposed Rule

Federal Register / Vol. 88 , No. 72 / Friday, April 14, 2023 /
Proposed Rules

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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: Notice of proposed rulemaking (NPRM).

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SUMMARY: Whistleblowers are an important source of information on motor
vehicle safety, as Congress recognized in enacting the Motor Vehicle
Safety Whistleblower Act (Whistleblower Act). NHTSA is proposing rules,
including forms, to implement the Whistleblower Act and seeking comment
from interested stakeholders. 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. The Whistleblower Act also contains protections relating to the
whistleblower's identity. This proposed rule will help to facilitate
the Agency's identification of information provided by whistleblowers
to ensure that whistleblowers receive the protections afforded under
the statute. It also describes those limited situations where
information that could reasonably be expected to reveal the identity of
a whistleblower may be disclosed.

DATES: All comments should be submitted early enough to ensure that the
Department of Transportation Docket Management receives them not later
than June 13, 2023. In compliance with the Paperwork Reduction Act,
NHTSA is also seeking comment on a proposed information collection. See
the Paperwork Reduction Act section under Regulatory Analyses and
Notices below. Please submit all comments relating to the information
collection requirements to NHTSA and to the Office of Management and
Budget (OMB) at the address listed in the ADDRESSES section. Comments
to OMB are most useful if submitted within 30 days of publication. See
the Regulatory Analysis and Notices portion of this document for DOT's
Privacy Act Statement regarding documents submitted to the Agency's
dockets.

ADDRESSES: Interested parties may submit comments to the docket number
identified in the heading of this document by any of the following
methods:
     Federal eRulemaking Portal: go to https://www.regulations.gov. Follow the online instructions for submitting
comments.
     Mail: Docket Management Facility, U.S. Department of
Transportation, 1200 New Jersey Avenue SE, West Building Ground Floor,
Room W12-140, Washington, DC 20590.
     Hand Delivery or Courier: Docket Management Facility, U.S.
Department of Transportation, West Building Ground Floor, Rm. W12-140,
1200 New Jersey Avenue SE, Washington, DC 20590 between 9 a.m. and 5
p.m. ET, Monday through Friday, except Federal holidays. To be sure
someone is there to help you, please call<PHONE_NUMBER> before coming.
     Fax:<PHONE_NUMBER>.
    Comments on the proposed information collection requirements should
be submitted to: Office of Management and Budget at www.reginfo.gov/public/do/PRAMain. To find this particular information collection,
select ``Currently under Review--Open for Public Comment'' or use the
search function. NHTSA also requests that comments sent to the OMB also
be sent to the NHTSA rulemaking docket identified in the heading of
this document.
    Instructions: All submissions received must include the Agency name
and docket number or Regulatory Identification Number (RIN) for this
rulemaking. All documents received will be posted without change to
https://www.regulations.gov, including any personal information
provided. For detailed instructions on submitting comments and
additional information on the rulemaking process, see the Public
Participation heading of the SUPPLEMENTARY INFORMATION section of this
document.
    Docket: For access to the docket to read background documents or
comments received, please visit http://www.regulations.gov, or the
Docket Management Facility at the street address listed above. Follow
the online instructions for accessing the dockets via internet.
    Privacy Act: Please see the Privacy Act heading under Regulatory
Analyses and Notices.
    Confidential Business Information: If you wish to submit any
information under a claim of confidentiality, you should submit your
complete submission, including the information you claim to be
confidential business information (CBI), to NHTSA's Office of the Chief
Counsel. When you send a comment containing CBI, you should include a
cover letter setting forth the information specified in our CBI
regulation.\1\ In addition, you should submit a copy from which you
have deleted the claimed CBI to the docket by one of the methods set
forth above. NHTSA is currently treating electronic submission as an
acceptable method for submitting CBI to NHTSA under 49 CFR part 512. If
you wish to send CBI via email, please contact the attorney in the
Office of the Chief Counsel at the address given below under FOR
FURTHER INFORMATION CONTACT. Likewise, for CBI submissions via a secure
file transfer application, an attorney in the Office of the Chief
Counsel must be set to receive a notification when files are submitted
and have access to retrieve the submitted files. If you wish to send
CBI via a secure file transfer, please contact the attorney identified
in the FOR FURTHER INFORMATION CONTACT section. At this time, regulated
entities should not send a duplicate hardcopy of their electronic CBI
submissions to DOT headquarters. If you have any questions about CBI or
the procedures for claiming CBI, please consult the person identified
in the FOR FURTHER INFORMATION CONTACT section.
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    \1\ See 49 CFR part 512.

FOR FURTHER INFORMATION CONTACT: Kerry Kolodziej, Office of the Chief
Counsel, NCC-100, National Highway Traffic Safety Administration
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(telephone:<PHONE_NUMBER>), email: [email protected].

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Background
II. Description of the Proposed Rules
    A. Proposed Rule Sec.  513.1--General
    B. Proposed Rule Sec.  513.2--Definitions
    C. Proposed Rule Sec.  513.3--Representation
    D. Proposed Rule Sec.  513.4--Procedures for Submitting Original
Information
    E. Proposed Rule Sec.  513.5--Confidentiality
    F. Proposed Rule Sec.  513.6--Prerequisites to the Consideration
of an Award
    G. Proposed Rule Sec.  513.7--Whistleblowers Ineligible for an
Award
    H. Proposed Rule Sec.  513.8--Provision of False Information
    I. Proposed Rule Sec.  513.9--Procedures for Making a Claim for
a Whistleblower Award
    J. Proposed Rule Sec.  513.10--Award Determinations

    K. Proposed Rule Sec.  513.11--Appeals of Award Determinations
    L. Proposed Rule Sec.  513.12--Procedures Applicable to the
Payment of Awards
    M. Proposed Appendix A--Form WB-INFO
    O. Proposed Appendix B--Form WB-RELEASE
    P. Proposed Appendix C--Form WB-AWARD
III. Public Participation
IV. Regulatory Analyses and Notices
    A. Privacy Act
    B. Executive Order 12866, Executive Order 13563, and DOT
Regulatory Policies and Procedures
    C. Regulatory Flexibility Act
    D. National Environmental Policy Act
    E. Executive Order 13132 (Federalism)
    F. Unfunded Mandates Reform Act of 1995
    G. Executive Order 12988 (Civil Justice Reform)
    H. Paperwork Reduction Act

I. Background

    NHTSA relies on a wide variety of sources of information to
identify potential safety issues and violations of law. Whistleblowers
from the motor vehicle industry have particularized knowledge and
access to information and can identify issues that otherwise may not
come to light. Such whistleblowers can and have provided critical
assistance to the Agency in understanding and investigating safety
issues.
    The Fixing America's Surface Transportation (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 (the 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, sections 24351-52,
129 Stat. 1716 (2015) (codifying ``Whistleblower incentives and
protections'' at 49 U.S.C. 30172). The terms ``successful resolution''
and ``covered action'' are defined by statute. The FAST Act also
contains provisions designed to protect a whistleblower's identity. 129
Stat. at 1718-19.\2\
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    \2\ Additional protections for whistleblowers are found in 49
U.S.C. 30171. That program is administered by the Department of
Labor. See 29 CFR part 1988. Specifically, the Department of Labor,
Occupational Safety and Health Administration (OSHA) administers the
whistleblower protection program under 49 U.S.C. 30171. Additional
information can be found at https://www.whistleblowers.gov. Among
other things, those provisions prohibit an employer from discharging
or otherwise discriminating against an employee for providing
information relating to any motor vehicle defect, noncompliance, or
any violation or alleged violation of the Safety Act to NHTSA. This
rulemaking is not intended to implement or otherwise affect 49
U.S.C. 30171.
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    Since the FAST Act was signed into law on December 4, 2015, NHTSA
has received more than 150 whistleblower submissions. The information
NHTSA has learned from whistleblowers has helped the Agency identify
and investigate safety issues and violations of law. In one instance, a
whistleblower's critical assistance to the Agency resulted in two
consent orders with civil penalties totaling $210 million.\3\ Pursuant
to the incentives established by the FAST Act, NHTSA granted the
whistleblower the maximum award authorized under statute for the
significant contributions leading to that enforcement action.\4\
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    \3\ https://www.nhtsa.gov/press-releases/nhtsa-announces-consent-orders-hyundai-and-kia-over-theta-ii-recall.
    \4\ https://www.nhtsa.gov/press-releases/first-whistleblower-award.
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    In addition to the statutory whistleblower protections and
incentives added by the FAST Act, Congress required NHTSA to promulgate
whistleblower regulations.\5\ This proposal effectuates that
requirement and is informed by the Agency's experience working with
whistleblowers over the last several years. While the Agency has
provided certain information to prospective whistleblowers on its
website,\6\ the Agency believes this proposed rule will provide helpful
guidance to whistleblowers and other interested stakeholders on the
interpretation and application of the statutory provisions. This
proposed rule will also help ensure the Agency receives whistleblower
information in a manner that is most useful to its safety mission and
that helps it carry out the legal protections afforded to
whistleblowers.
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    \5\ See 49 U.S.C. 30172(i).
    \6\ https://www.nhtsa.gov/laws-regulations/whistleblower-program.
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    NHTSA is proposing to add 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. As described in
detail below, the proposal defines certain terms critical to the
operation of the whistleblower program, outlines the procedures for
submitting original information to NHTSA and applying for awards,
discusses the Agency's procedures for making decisions on award
applications, and generally explains the scope of the whistleblower
program to the public and potential whistleblowers. The proposed rule
would help to 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.
The Agency requests comment on all aspects of the proposed rule, as
well as comment on the specific provisions and issues highlighted in
the discussion below.
    The provisions that later became part of the Whistleblower Act
appeared in a bill that was introduced in the 113th Congress as S. 2949
on November 20, 2014, the same day that the Senate Committee on
Commerce, Science, and Transportation held a hearing to examine the
Takata air bag recalls.\7\ The then-Chairman discussed in his opening
remarks at the Takata hearing that record fines had been levied against
Toyota, GM, and Hyundai, and that ``with the latest news of problems
with Takata air bags, we are again faced with examining an apparent
failure with serious safety consequences.'' \8\ The then-Chairman
stated his belief that whistleblowers could help identify problems
before injuries or deaths occurred.\9\ The proposed legislation was
modeled in part on other ``existing statutory whistleblower protections
that encourage individuals to share information with the Internal
Revenue Service and the Securities and Exchange Commission.'' \10\
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    \7\ See S. Rep. 114-13, Motor Vehicle Safety Whistleblower Act,
Report of the Committee on Commerce, Science, and Transportation at
3 (2015).
    \8\ Thune Opening Statement at Commerce Hearing on Takata Air
Bag Defects, available at https://www.commerce.senate.gov/public/index.cfm/2014/11/thune-opening-statement-at-commerce-hearing-on-takata-air-bag-defects.
    \9\ Id. See also Thune, Nelson Introduce Legislation to Help
Prevent Auto Injuries, Deaths From Faulty Parts by Incentivizing
Whistleblowers, available at https://www.commerce.senate.gov/public/index.cfm/2014/11/thune-nelson-introduce-legislation-to-help-prevent-auto-injuries-deaths-from-faulty-parts-by-incentivizing-whistleblowers.
    \10\ Thune, Nelson Introduce Legislation to Help Prevent Auto
Injuries, Deaths From Faulty Parts by Incentivizing Whistleblowers,
available at https://www.commerce.senate.gov/public/index.cfm/2014/11/thune-nelson-introduce-legislation-to-help-prevent-auto-injuries-deaths-from-faulty-parts-by-incentivizing-whistleblowers. See also
The Securities Exchange Act of 1934 (15 U.S.C. 78a et seq.), Sec.
21F.

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    In proposing these rules, NHTSA has considered other Federal
whistleblower programs, including the Securities and Exchange
Commission's (SEC) rules to implement section 21F of the Securities
Exchange Act of 1934 at 17 CFR 240.21F-1 through 240.21F-17 \11\ and
the Commodities Future Trading Commission's (CFTC) rules to implement
section 23 of the Commodity Exchange Act at 17 CFR part 165.\12\ NHTSA
has also reviewed certain amendments to those rules, including recent
amendments to the SEC's Whistleblower Program Rules \13\ and 2017
amendments to the CFTC's whistleblower process \14\ and has had
discussions with Commission staffs regarding their whistleblower
programs.\15\
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    \11\ See Proposed Rules for Implementing the Whistleblower
Provisions of Section 21 F of the Securities Exchange Act of 1934,
75 FR 70488 (Nov. 17, 2010) and Securities Whistleblower Incentives
and Protections, 76 FR 34300 (June 13, 2011).
    \12\ See Implementing the Whistleblower Provisions of Section 23
of the Commodity Exchange Act, 75 FR 75728 (Dec. 6, 2010) and
Whistleblower Incentives and Protection, 76 FR 53172 (Aug. 25,
2011).
    \13\ See Whistleblower Program Rules, 85 FR 70898 (Nov. 5,
2020).
    \14\ See Whistleblower Awards Process, 82 FR 24487 (May 30,
2017).
    \15\ More information regarding the SEC's Whistleblower Program
may be found at https://www.sec.gov/whistleblower. More information
regarding the CFTC's whistleblower program may be found at https://www.whistleblower.gov/.
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    The Agency has reviewed the U.S. Department of the Treasury's
Internal Revenue Service (IRS) program for awards for information
relating to detecting underpayments of tax or violations of the
Internal Revenue laws.\16\ The Agency also had discussions with the
U.S. Department of Justice, Civil Division, Fraud Section staff
regarding qui tam proceedings.\17\
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    \16\ See Awards for Information Relating to Detecting
Underpayments of Tax or Violations of the Internal Revenue Laws, 77
FR 74758 (Dec. 18, 2012) and Awards for Information Relating to
Detecting Underpayments of Tax or Violations of the Internal Revenue
Laws, 79 FR 47246 (Aug. 12, 2014). For more information on the IRS
whistleblower program, please see https://www.irs.gov/compliance/whistleblower-office.
    \17\ Qui tam actions are filed under the False Claims Act, 31
U.S.C. 3729 to 3733. Relators in successful actions are entitled to
receive a percentage of any settlement or judgment the government
recovers. Award percentage ranges depend on whether the government
participated in the action. See 31 U.S.C. 3730(d). If the government
intervenes, the relator generally receives ``at least 15 percent but
not more than 25 percent of the proceeds of the action or settlement
of the claim, depending upon the extent to which the person
substantially contributed to the prosecution of the action.'' 31
U.S.C. 3730(d)(1). If the government does not intervene, generally
``the person bringing the action or settling the claim shall receive
an amount which the court decides is reasonable for collecting the
civil penalty and damages. The amount shall be not less than 25
percent and not more than 30 percent of the proceeds of the action
or settlement and shall be paid out of such proceeds.'' 31 U.S.C.
3730(d)(2).
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    These whistleblower program examples have informed NHTSA's
proposal; however, there are also several important distinctions
between the statutory authority and scope of these programs as compared
to the statutory authority and scope of NHTSA's whistleblower program.
As such, NHTSA's proposed rules are tailored to its statutory authority
and programmatic considerations. The following examples of the
differences between other whistleblower programs and NHTSA's authority
for its whistleblower program are intended to be illustrative and not
exhaustive.
    One major difference is that the statutory definition of a
``whistleblower'' is narrower under the Whistleblower Act than in some
other contexts. Under 49 U.S.C. 30172(a)(6), a whistleblower must be an
employee or contractor of a motor vehicle manufacturer, part supplier,
or dealership, whereas the definition of a whistleblower under the
Securities and Exchange Commission (SEC) and the Commodity Futures
Trading Commission (CTFC) programs includes ``any individual.'' \18\
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    \18\ See 7 U.S.C. 26(a)(7), Securities Exchange Act of 1934, 15
U.S.C. 78u-6(a)(6). See also Final Rule, Awards for Information
Relating to Detecting Underpayments of Tax or Violations of the
Internal Revenue Service Laws, 79 FR 47246, 47248 (Aug. 12, 2014)
(discussing how in some instances the final regulation uses the word
individual instead of whistleblower to mimic the statute).
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    Furthermore, under the Whistleblower Act, the whistleblower must
provide ``original information relating to any motor vehicle defect,
noncompliance, or violation or alleged violation of any notification or
reporting requirement of [Chapter 301], which is likely to cause
unreasonable risk of death or serious physical injury,'' \19\ whereas a
whistleblower under the SEC authority is an individual who provides
``information relating to a violation of the securities laws . . . .''
\20\
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    \19\ 49 U.S.C. 30172(a)(6).
    \20\ Securities Exchange Act of 1934, 15 U.S.C. 78u-6(a)(6).
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    Additionally, 49 U.S.C. 30172 requires reporting to the company's
internal reporting mechanism (if the company has one), except in
certain circumstances, to be eligible for an award, whereas internal
reporting is not required by statute under the SEC and CFTC's programs.
Rather, the rulemakings by both the CFTC and SEC appear to consider
such reporting in other ways.21 22
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    \21\ See, e.g., Securities Whistleblower Incentives and
Protections, 76 FR 34360 (``The final rules provide that a
whistleblower who reports internally can collect a whistleblower
award from the Commission if his internal report to the company or
entity results in a successful covered action. In addition, the
final rules provide that when determining the amount of an award,
the Commission will consider as a plus-factor the whistleblower's
participation in an entity's internal compliance procedures.'').
    \22\ See Whistleblower Incentives and Protections, 76 FR 53173
(``With respect to the criteria for determining the amount of an
award, the Final Rules provide that while the amount of an award is
within the Commission's discretion, the Commission will consider (i)
a whistleblower's report of information internally to an entity's
whistleblower, compliance or legal system as a factor that
potentially can increase the amount of an award; and (ii) a
whistleblower's interference with such internal systems is a factor
that can potentially decrease the amount of an award. Rule
165.9(b)(4), (c)(3). A whistleblower may be eligible for an award
for reporting original information to an entity's internal
compliance and reporting systems if the entity later reports
information to the Commission that leads to a successful Commission
action or related action. Under this provision, all of the
information provided by the entity to the Commission will be
attributed to the whistleblower, which means the whistleblower will
get credit--and potentially a greater award--for any information
provided by the entity to the Commission in addition to the original
information reported by the whistleblower. Rule 165.2(i)(3).''
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    While this rulemaking is in progress, it is important to make clear
that the whistleblower protection and award provisions are statutory
and not contingent on a rule being in place. NHTSA has an active,
ongoing whistleblower program. During the pendency of this rulemaking,
the Agency encourages whistleblowers to continue to submit information
to the Agency, and notes that whistleblowers are afforded the
protections contained in 49 U.S.C. 30172(f). Furthermore, a
whistleblower may receive an award prior to the promulgation of the
regulations, and the Agency has already issued one such award as noted
above. A copy of the Agency's decision granting the award and
additional information on NHTSA's whistleblower program is available on
the Agency's website at https://www.nhtsa.gov/laws-regulations/whistleblower-program.
    Since enactment of the statutory whistleblower provisions, the
Agency has received inquiries from interested persons regarding the
statute and how to submit whistleblower information or an award
request. Prior to issuing a final rule, NHTSA has explained that there
is no required form of submission. In the absence of rules, NHTSA has
advised potential whistleblowers that any submission should consider
the statutory provisions and that they may submit materials to NHTSA's
Office of the Chief Counsel. NHTSA's Office of the Chief Counsel
coordinates the Agency's whistleblower program. NHTSA has specifically
encouraged

prospective whistleblowers to contact the Agency via
[email protected]. That email account is monitored by NHTSA's
Office of the Chief Counsel and helps the Agency ensure confidentiality
and route the submission to the appropriate Agency personnel for
consideration. NHTSA intends to follow these same practices until a
final rule is issued, which may provide more specific submission
requirements as proposed.
    The submission requirements contained in this proposal are designed
to assist the Agency in effectively administering the whistleblower
program. However, the Agency recognizes that there are trade-offs in
adopting more formalized submission requirements, particularly for
prospective whistleblowers that are not represented by counsel. The
Agency specifically invites comments regarding this issue.
    Pending the completion of the rulemaking process, NHTSA has been
reviewing information provided by whistleblowers and award requests and
is taking action as warranted. Much of this proposal is informed by the
Agency's experience to date with its whistleblower program. In
addition, the Agency received several pre-docket submissions from
stakeholders, which NHTSA has taken into consideration in crafting this
proposal.
    Specifically, the National Whistleblower Center provided a proposal
that was modeled on the SEC's and IRS's whistleblower reward laws. A
copy of this submission is included in the docket.
    The law firm Constantine Cannon LLP also provided submissions
related to other governmental whistleblower programs and made
recommendations for NHTSA's program, including its views on how to
interpret certain provisions of the Whistleblower Act. A copy of these
submissions will be included in the docket. Constantine Cannon had a
discussion with NHTSA in April 2021 and provided written material in
May 2021 regarding its thoughts on NHTSA's whistleblower program.
Constantine Cannon emphasized the need for NHTSA's whistleblower
program to be carefully conceived and implemented and provided several
principles that should guide NHTSA as it develops rules for the
program. The first principle is that NHTSA should maximize the pool of
people who can be whistleblowers and not impose impediments to award
eligibility. Examples of this would include defining both current and
former employees and contractors under the term ``whistleblower,'' that
the whistleblower does not need to be an employee or contractor of the
entity against which NHTSA brings an enforcement action, that the rules
should consider a whistleblower the ``original source'' of the
information if it materially adds to the information that NHTSA
possesses, and that monetary sanctions should not be limited to just
funds paid to the Treasury. Constantine Cannon also stated that NHTSA
should interpret the internal-reporting requirement narrowly and in a
manner that reflects practical workplace realities.
    The next principle articulated by Constantine Cannon is that NHTSA
should articulate a presumption of award entitlement to whistleblowers
who meet established requirements and describe the specific
circumstances in which that presumption will be overcome.
    The final principle stated by Constantine Cannon is that NHTSA and
DOT leadership must demonstrate that whistleblowers play a key role in
the Agency's enforcement work, including making it simple for potential
whistleblowers to make a report, and consider creating a dedicated
whistleblower office or at least dedicating staff to the whistleblower
program. Constantine Cannon recommended that leadership publicly
support the whistleblower program and seek opportunities to publicize
the program. Constantine Cannon also stated that NHTSA should rely to
the maximum extent possible on the knowledge and resources
whistleblowers have to offer, which includes collaborating with the
whistleblower in the investigation and prosecution of legal violations.
Additionally, Constantine Cannon states that NHTSA should leverage the
resources of the specialized whistleblower bar.
    In late 2021, NHTSA also met with Hyundai Motor America Inc.'s
(Hyundai) counsel and outside counsel, Covington and Burling LLP
(Covington) regarding their thoughts on the rulemaking to implement 49
U.S.C. 30172. The stakeholders provided a presentation regarding
building an effective whistleblower program. A copy of the presentation
will be included in the docket.
    The presentation noted that the NHTSA program was modeled on the
Dodd-Frank Wall Street and Consumer Protection Act (Dodd-Frank). They
noted that while Dodd-Frank is useful, the Whistleblower Act is unique
and mentioned some differences between the SEC's program and NHTSA's.
They stated that NHTSA must promulgate clear and specific regulations
to initiate and implement a successful whistleblower program.
    They highlighted that the procedures that the SEC uses for
submitting whistleblower award applications and appeared to suggest
this as a model for NHTSA to consider. They mentioned that when
determining an award, the most important element to consider is if the
whistleblower added value. They cautioned that there is a risk that a
prospective whistleblower will just utilize information in the public
domain to make an award application. They also argued that the term
``voluntary'' should not include people who have been subpoenaed,
highlighted that certain terms warrant additional enumeration in the
rules and need to be carefully defined, and specifically suggested that
that NHTSA should define ``leads to.'' The stakeholders also expressed
their position regarding disqualification criteria and suggested that
convictions in any tribunal related to the covered action should
disqualify a whistleblower from an award. They also indicated that a
whistleblower must show by clear and convincing evidence that the
company made them commit the alleged violation if that is a defense to
disqualification.
    Additionally, the stakeholders noted that the internal reporting
requirement is critical to the mandatory reporting requirements of the
Safety Act, that NHTSA needs to incentivize the whistleblower to report
to the company first, and that NHTSA should define the exception to the
internal reporting requirement narrowly. Finally, they provided their
thoughts that awards should be based only on amounts collected.
    While the descriptions above are not exhaustive, we appreciate the
engagement from stakeholders on this important issue and look forward
to receiving additional public input on this proposal.

II. Description of the Proposed Rules

Part 513--Whistleblower Program

    This proposal would establish a new part 513, within title 49 of
the Code of Federal Regulations, to house NHTSA's whistleblower rules.

A. Proposed Rule Sec.  513.1--General

    Proposed rule Sec.  513.1 provides a general description of NHTSA's
whistleblower program. Specifically, it states 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; explains
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 cautions potential
whistleblowers to read the procedures carefully because failure to take
required steps within the time frames described may result in
disqualification from receiving an award. The proposed rule provides
contact information for NHTSA's Office of the Chief Counsel at
[email protected]. It also states that, unless expressly
provided for in the rules, no person is authorized to make any offer or
promise, or otherwise bind the Agency, with respect to the payment of
an award or the amount thereof, and makes clear that any such offer or
promise will not be honored.

B. Proposed Rule Sec.  513.2--Definitions

1. Proposed Rule Sec.  513.2(a) Statutory Definitions
    Proposed rule Sec.  513.2(a) proposes that all terms used in this
part have the same meaning as those defined in 49 U.S.C. 30102(a) or
(b), unless otherwise defined in part 513. For example, a
``manufacturer'' under part 513 would mean those persons manufacturing
or assembling motor vehicles or motor vehicle equipment or importing
motor vehicles or motor vehicle equipment for resale. See 49 U.S.C.
30102(a)(6). NHTSA notes that manufacturers encompass a number of
different businesses that often are situated differently. It includes,
for example, the original assembler or producer of a motor vehicle,
which may be a foreign corporation operating in a foreign country or a
domestic corporation. It also includes importers, which may be
independent corporations domiciled in the United States or U.S.
subsidiaries of foreign companies such as vehicle manufacturers. It
also includes registered importers.\23\
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    \23\ NHTSA authorizes registered importers to import
noncompliant vehicles and then bring the vehicles into compliance,
repair and open recalls, certify them as compliant and hold them for
a mandatory waiting period before releasing them for sale. For more
information on registered importers, see e.g. 49 U.S.C. 30141 and 49
CFR part 592.
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2. Proposed Rule Sec.  513.2(b) Other Terms
    49 U.S.C. 30172 defines several terms. The Agency has incorporated
these definitions in proposed rule Sec.  513.2(b) but has clarified or
modified the definitions where necessary to effectuate the purposes of
the statute. Proposed rule Sec.  513.2(b) also defines additional
terms, described below, that are relevant to understanding the scope of
the whistleblower award program and to provide greater clarity about
the operation of the program. The Agency requests comment on whether
other terms should be defined, and if so, the Agency requests that the
commenter provide proposed definitions for such other terms.
a. Proposed Rule Sec.  513.2(b), Administrative Action
    The Agency is proposing a definition of administrative action
because it is a term used in the statutory definition of ``covered
action.'' 49 U.S.C. 30172(a)(1). Proposed rule Sec.  513.2(b) defines
the term ``administrative action'' as meaning all or a portion of an
action, other than a judicial action, brought by 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.\24\ It specifically includes
settlement agreements and consent orders that are entered into by the
Agency.
---------------------------------------------------------------------------

    \23\ As discussed further below, it is our view that civil
penalties, interest, or other monetary payment referenced in the
statute only refers to those monies that are payable to the United
States and that are actually collected by the United States.
---------------------------------------------------------------------------

    NHTSA is proposing to include a definition of the term
``administrative action'' because the definition of ``covered action''
contained in 49 U.S.C. 30172 encompasses actions by parties other than
the Secretary. The Agency proposes to define such administrative
actions to include those actions brought by NHTSA or the U.S.
Department of Transportation, which both have jurisdiction to bring
administrative actions under the Safety Act. The statutory definition
of ``covered action'' contained in section 30172 refers to
administrative or judicial actions brought by the Secretary or the
Attorney General under 49 U.S.C. chapter 301. The Attorney General
would bring judicial actions under 49 U.S.C. chapter 301, but any
administrative actions brought under that chapter would be brought by
NHTSA or the U.S. Department of Transportation.\25\
---------------------------------------------------------------------------

    \25\ See 49 U.S.C. 30163 (focusing on civil actions).
---------------------------------------------------------------------------

    Consent orders issued by NHTSA,\26\ settlement agreements entered
into by the Agency,\27\ and other such agreements that the Agency is a
party to in order to administratively resolve claims for civil
penalties would be considered administrative actions.\28\
Administrative actions could also include other final agency actions,
such as determination letters that a deferred penalty agreed to under a
consent order is due. The Agency believes that this will best
effectuate the intent of Congress to incentivize whistleblowers to come
forward with information that may lead to an award, as these types of
agreements have most often been the basis of civil penalties exceeding
$1,000,000.
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    \26\ See, e.g., https://www.nhtsa.gov/press-releases/nhtsa-announces-consent-orders-hyundai-and-kia-over-theta-ii-recall;
https://www.nhtsa.gov/press-releases/nhtsa-announces-consent-order-daimler-trucks-north-america.
    \27\ Although these settlement agreements did not result in
collected monetary sanctions of over one million dollars, these are
examples of settlement agreements entered into by the Agency
recently: In re Northwest Chrysler Jeep Dodge Ram, AQ17-004
Settlement Agreement, available at https://www.nhtsa.gov/sites/nhtsa.gov/files/2021-11/AQ17-004-Northwest-Settlement-Agreement-08-19-2020-tag.pdf; and In Re Navistar Recalls 18V-315, 18V-316
Settlement Agreement, available at https://www.nhtsa.gov/sites/nhtsa.gov/files/documents/navistar_settlement_agreement_2019-12-18.pdf.
    \28\ These could encompass such things as amended consent orders
requiring additional civil penalties. See In re FCA US LLC AQ14-003,
Amendment to July 25, 2015 Consent Order, available at https://www.nhtsa.gov/sites/nhtsa.gov/files/2021-11/AQ14-003X-FCA-Consent-Order-Amendment-EWR-12-8-2015-tag.pdf.
---------------------------------------------------------------------------

    Furthermore, unlike the SEC,\29\ NHTSA does not have administrative
law judges who issue initial decisions that include findings of fact
and legal conclusions. Therefore, it is NHTSA's belief that Congress
did not mean ``administrative action'' in the sense of a formal
administrative proceeding, such as a proceeding subject to 5 U.S.C.
554. NHTSA's main method of resolving actions that result in a payment
of a civil penalty has been through consent orders and settlement
agreements, and thus it makes sense for those actions to be included in
the types of actions that may form the basis for a whistleblower award.
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    \29\ See, e.g., How Investigations Work, available at https://www.sec.gov/enforce/how-investigations-work.html.
---------------------------------------------------------------------------

b. Proposed Rule Sec.  513.2(b), Agency
    Proposed Rule Sec.  513.2(b) defines the term ``Agency'' as
referring to NHTSA.
c. Proposed Rule Sec.  513.2(b), Collected Monetary Sanctions
    ``Monetary sanctions'' is defined in section 30172(a)(2), but
whistleblower awards can only be paid from ``collected monetary
sanctions'' under section 30172(b)(1). This proposed definition
clarifies 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 is consistent 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).
    The Agency is aware that some stakeholders have advocated for the
position that restitution to parties other than the United States
ordered in cases should be considered monetary sanctions. The Agency
believes 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).
    Likewise, in some of the Agency's settlements, companies agree to
pay a certain amount toward performance obligations, such as investing
in safety data analytics \30\ or development of a testing
laboratory.\31\ NHTSA does not view these performance obligations as
constituting a ``collected'' monetary sanction. In those situations
where the agreement allows for collection of the performance obligation
amounts in the form of a monetary payment to the United States
government as a consequence of the violation of the consent order, and
the violating company does pay that sum to the United States, the
Agency's view is that if all of these conditions are met, such amount
could be 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 cash payment to
NHTSA for the balance of the unspent portion,\32\ and the company pays
such amount to NHTSA, that could be considered a collected monetary
sanction.
---------------------------------------------------------------------------

    \30\ See 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.
    \31\ 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.
    \32\ 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.
---------------------------------------------------------------------------

    NHTSA has also used ``deferred penalties'' or ``abeyance amounts''
in several of its consent orders.\33\ These generally are agreed
amounts to be paid as a monetary penalty in the event that the company
violates the consent order, the Safety Act, or the regulations
thereunder. It is NHTSA's view that these sums only become ``collected
monetary sanctions'' if and when the deferred penalty or abeyance
amount is actually paid to the United States government.
---------------------------------------------------------------------------

    \33\ See, e.g., In Re Daimler Trucks North America LLC, AQ18-002
Consent Order, Para. 12(b), available at https://www.nhtsa.gov/sites/nhtsa.dot.gov/files/documents/aq18-002_consent_order_executed.pdf.
---------------------------------------------------------------------------

    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.''
    The Agency anticipates that in circumstances where deferred amounts
or unspent performance obligation balances become due and are collected
by the United States, NHTSA will post a notice on its website if such
action occurs.
d. Proposed Rule Sec.  513.2(b), Contractor
    Consistent with 49 U.S.C. 30172(a)(6), proposed rule Sec.  513.2(b)
defines ``contractor'' as an individual presently or formerly providing
goods or services to a motor vehicle manufacturer, part supplier, or
dealership pursuant to a contract. The Agency believes that the
definition must include both present and former contractors to maximize
the reach and effectiveness of the whistleblower program. For example,
if a contractor were terminated by his or her company after reporting
safety issues, it would not serve the purpose of the Whistleblower Act
to bar such a contractor from an award simply because he or she no
longer works for the company.
e. Proposed Rule Sec.  513.2(b), Covered Action
    Under the statute, the term ``covered action'' means ``any
administrative or judicial action, including any related administrative
or judicial action, brought by the Secretary or the Attorney General
under this chapter that in the aggregate results in monetary sanctions
exceeding $1,000,000.'' Proposed rule Sec.  513.2(b) is based on the
definition of covered action from section 30172(a)(1) and clarifies how
the above $1,000,000 threshold can be met.
    The Agency tentatively believes that since the statute specifies
that the 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. The Agency tentatively believes that the plain language of the
statute is clear, and that it 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. One could argue
that the phrase ``including any related administrative and judicial
action'' could be read as referring to actions outside of chapter 301
of title 49, United States Code. However, the Agency tentatively
believes that its proposal to limit ``covered actions'' to chapter 301
or regulations thereunder is compelled by the statute.\34\
---------------------------------------------------------------------------

    \34\ In the event a court found ambiguity in the statute, we
believe that our interpretation is the clearest reading of the
statute and makes the most sense for the reasons described in this
proposal.
---------------------------------------------------------------------------

    ``[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.\35\ If the monetary sanctions
collected for those two actions exceeded one million dollars in
aggregate, the two actions together would be considered a ``covered
action.''
---------------------------------------------------------------------------

    \35\ In fact, NHTSA's first whistleblower award came in the
context of enforcement actions resulting in consent orders with two
companies (Hyundai and Kia). See https://www.nhtsa.gov/sites/nhtsa.gov/files/2022-02/whistleblower-decision-letter-RQ17-003-Kia-RQ17-004-Hyundai_web.pdf.
---------------------------------------------------------------------------

    The purpose of 49 U.S.C. chapter 301 is ``to reduce traffic
accidents and deaths and injuries resulting from traffic accidents.''
49 U.S.C. 30101. The whistleblower program was designed to reward
employees or contractors who ``blow the whistle'' on motor vehicle
defects, noncompliance, or violations or alleged violations of any
notification or reporting requirement of the chapter which is likely to
cause an unreasonable risk of death or serious physical injury, and
thus is closely aligned with the purposes of 49 U.S.C. chapter 301.
    While section 30172(c)(2)(A) generally provides 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 otherwise could receive an award under this
section, NHTSA tentatively does not believe that the use of the word
``related'' in that context can be extrapolated to the meaning of
``related'' in 49 U.S.C. 30172(a)(1). That is, it is the Agency's
tentative view that the 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, the Agency tentatively believes a
criminal action brought under 49 U.S.C. 30170, the criminal penalties
provision of the Safety Act, would be a covered action under the
Whistleblower Act.\36\
---------------------------------------------------------------------------

    \36\ Section 30170(a)(1) provides for criminal liability for
falsifying or withholding information. It states, ``A person who
violates [18 U.S.C. 1001] 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.''
---------------------------------------------------------------------------

    Unlike the SEC \37\ or CFTC,\38\ NHTSA does not have a fund set
aside from which to pay awards. Rather, it appears that the money to
pay whistleblowers was intended to come from the entity that paid the
penalty. 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 30165 of title 49, United States Code, 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 (emphasis added). In addition, 49
U.S.C. 30172(b)(2) explicitly 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.'' Based on this, it is our view that whistleblowers
are paid out of the money collected from the entity that paid a Safety
Act penalty or fine.\39\ The Agency recognizes that actions under 49
U.S.C. 30170 are not civil penalty actions brought under 49 U.S.C.
30165 and the mechanism for funding whistleblower awards under 49
U.S.C. 30170 does not appear to be defined by statute. The Agency
therefore requests comment on its interpretation of including actions
under 49 U.S.C. 30170 as an action ``under this chapter.''
---------------------------------------------------------------------------

    \37\ See 15 U.S.C. 78u-6(b)(2) (stating that any whistleblower
award shall be paid from the ``Fund'') and 15 U.S.C. 78u-6(a)(2)
(defining the ``Fund'' as the Securities and Exchange Commission
Investor Protection Fund.'').
    \38\ See 7 U.S.C. 26(g)(2) (establishing a revolving fund to be
known as the ``Commodity Futures Trading Commission Customer
Protection Fund'').
    \39\ The Agency's position is also supported by the cost
estimate prepared by the Congressional Budget Office included in S.
Rep. 114-13, Motor Vehicle Safety Whistleblower Act, Report of the
Committee on Commerce, Science, and Transportation, p. 4 (2015),
which stated, ``Basis of estimate: S. 304 would authorize the
Secretary of Transportation at his discretion, to award to a
whistleblower up to 30 percent of any civil penalty that exceeds $1
million and is collected from a company that manufactures motor
vehicles or parts with serious defects or that violates certain
safety laws.''
---------------------------------------------------------------------------

    As a practical matter, NHTSA also does not have ready access to the
information that would be needed to make a decision about an award
sought for monies collected from an action brought under a statute
other than the Safety Act. For example, NHTSA may be unable to evaluate
the significance of the original information provided by the
whistleblower to the successful resolution of a criminal action for
wire fraud or other statute outside NHTSA's jurisdiction and expertise.
Likewise, NHTSA may be unaware of ``the degree of assistance provided
by the whistleblower and any legal representative of the whistleblower
in'' an action brought under statutes outside NHTSA's jurisdiction.
NHTSA may have limited or no involvement in such an action. Therefore,
NHTSA's ability to make an award determination may have to rely on the
Department of Justice to reveal information regarding its internal
processes and other information that it ordinarily keeps confidential,
over which release NHTSA does not have control. These practical
considerations support the plain language reading of the statute as
limited to actions under the Safety Act.
    In sum, the Agency tentatively does not believe that a covered
action includes any action brought by the U.S. Department of Justice
under any statute other than those contained in 49 U.S.C. chapter 301
or regulation issued thereunder. We are cognizant that this issue is of
particular interest given the potential implications on the amount of a
whistleblower award, or whether any award is available in some cases,
and we invite comments on our views.
    Additionally, the definition of ``covered action'' in proposed rule
Sec.  513.2(b) clarifies that NHTSA can bring an action, since the
Secretary's authority under 49 U.S.C. chapter 301 has been delegated to
the Administrator of NHTSA. 49 CFR 1.95(a). In practice, civil penalty
actions for violations of the Safety Act and regulations thereunder
resulting in monetary sanctions exceeding $1,000,000 are generally
accomplished by settlement agreements with NHTSA or consent orders
issued by the NHTSA Administrator.\40\
---------------------------------------------------------------------------

    \40\ See, e.g., http://www.nhtsa.gov/Laws-&-Regulations/Civil-Penalty-Settlement-Amounts.
---------------------------------------------------------------------------

    The definition of ``covered action'' in proposed rule Sec.
513.2(b) also clarifies that an action under 49 U.S.C. chapter 301
includes actions for violations of regulations promulgated under 49
U.S.C. chapter 301. Including these clarifications in the definition of
``covered action'' would better effectuate the purposes of the Motor
Vehicle Safety Whistleblower Act.
    The proposed definition of ``covered action'' also clarifies that
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.
That is, the Agency proposes that multiple smaller sanctions paid by
different parties in the same action could be added up to exceed the
more than $1,000,000 threshold. Similarly, the Agency also believes
that multiple smaller sanctions paid by different parties in the
related actions (or the same party, such as in the case of an amended
consent order that requires payment of additional penalties or later
payment of penalties held in abeyance) could be included to exceed the
more than $1,000,000 threshold.\41\ The Agency does not want to
foreclose a whistleblower's eligibility for an award in these
situations.
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    \41\ The Agency believes that in order for these amounts to be
counted to exceed the more than $1,000,000 threshold, those amounts
need to be connected to the original information provided by the
whistleblower. For example, if there was a whistleblower who
received an award in connection with the initial civil penalty
action, it is our tentative view that such whistleblower would not
be eligible for an award percentage of any amount collected from the
deferred/abeyance amounts, unless the whistleblower provided
original information that led to the Agency determining the deferred
penalty payment was required.
---------------------------------------------------------------------------

f. Proposed Rule Sec.  513.2(b), Dealership
    The Agency is proposing a definition of ``dealership'' because it
is a term used in the statutory definition of

whistleblower. 49 U.S.C. 30172(a)(6). The term ``dealership'' appears
only in 49 U.S.C. 30172 and does not appear in any other provision of
49 U.S.C. chapter 301. Given the purpose of the whistleblower
provisions, the Agency proposes to define ``dealership'' using a
broader definition than the statutory definition of ``dealer'' found in
49 U.S.C. 30102(a)(2). Under this proposal, 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 is 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. The Agency believes it is
appropriate to include used car dealerships within the scope of the
whistleblower provisions to best effectuate the incentives and
protections of the statute.
g. Proposed Rule Sec.  513.2(b), Employee
    The Agency is proposing a definition of ``employee'' because it is
a term used in the statutory definition of whistleblower. 49 U.S.C.
30172(a)(6). Proposed rule Sec.  513.2(b) defines ``employee'' as an
individual presently or formerly employed by a motor vehicle
manufacturer, part supplier, or dealership. The Agency believes that
the definition should include both present and former employees to
maximize the reach and effectiveness of the whistleblower program. 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 Agency requests comment on whether an owner of a motor vehicle
manufacturer, part supplier, or dealership should be considered an
``employee'' of such entity, and if so, in what situations it would be
appropriate to consider such person as an ``employee.'' Relevant
considerations include the ability of an owner to address potential
safety issues and violations of law within that entity, and the
potential for an owner to have information regarding a different
entity. For example, an owner of a dealership may have information
regarding safety-related defects or noncompliances with applicable
Federal Motor Vehicle Safety Standard (``FMVSS'') in vehicles for
vehicles provided to it by a vehicle manufacturer. Another example is
that an owner of a registered importer may have information about
potential Safety Act violations committed by another registered
importer.
h. Proposed Rule Sec.  513.2(b), Independent Knowledge or Analysis
    Section 30172(a)(3) contains a definition of original information.
Section 30172(a)(3)(A) states that original information is information
that ``is derived from independent knowledge or analysis of an
individual.''
    The Agency considered the definitions of independent knowledge
contained in the SEC's and CFTC's whistleblower regulations in crafting
its proposed definition.\42\ Proposed rule Sec.  513.2(b) 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.
---------------------------------------------------------------------------

    \42\ See 17 CFR 165.2(g) and 17 CFR 240.21F-4(b)(2).
---------------------------------------------------------------------------

    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. Thus, for
example, under proposed rule Sec.  513.2(b), a potential whistleblower
may have ``independent knowledge'' of information even if that
knowledge derives from facts or other information that has been
conveyed to the potential whistleblower by third parties. The Agency
preliminarily believes that defining ``independent knowledge'' in this
way best effectuates the purpose of the Whistleblower Act, as an
employee or contractor may learn about potential violations of the
Safety Act without being personally involved in the conduct and the
information would not otherwise come to NHTSA's attention.
    The Agency has also proposed rule Sec.  513.2(b) to define the
phrase ``analysis'' to mean 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. The proposed definition of ``analysis'' is
similar to that used in the SEC's whistleblower regulations as well as
the CFTC's whistleblower regulations.\43\ This proposed definition
recognizes that potential whistleblowers could review publicly
available information and, through their individual evaluation and
examination, provide assistance to the Agency in uncovering violations
of the Safety Act.
---------------------------------------------------------------------------

    \43\ See 17 CFR 240-21F-4(b)(3) and 17 CFR 165.2(c) (defining
analysis as the whistleblower's ``examination and evaluation of
information that may be publicly available, but which reveals
information that is not generally known or available to the
public.'').
---------------------------------------------------------------------------

    In 2020, the SEC issued final interpretive guidance regarding the
term ``analysis,'' specifically with respect to publicly available
information.\44\ The SEC stated, ``the evaluation of publicly available
information reveals information that is `not generally known or
available to the public'--and therefore is `analysis'. . . where ``(1)
The whistleblower's conclusion of possible securities violations
derives from multiple sources, including sources that, though publicly
available are not readily identified and accessed by a member of the
public without specialized knowledge, unusual effort, or substantial
cost; and (2) these sources collectively raise a strong inference of
potential securities law violation that is not reasonably inferable by
the Commission from any of the sources individually.''
---------------------------------------------------------------------------

    \44\ Whistleblower Program Rules, 85 FR 70898, 70929-31 (Nov. 5,
2020).
---------------------------------------------------------------------------

    Like the SEC, NHTSA believes that ``analysis'' requires the
potential whistleblower to do more than merely point the Agency to
public information assembled by the potential whistleblower. The
potential whistleblower must bring forth some additional evaluation,
assessment or insight, as the ``analysis'' must reveal information that
is not generally known or available to the public. NHTSA may determine
that a whistleblower's examination and evaluation of publicly available
information reveals information that is ``not generally known or
available to the public'' and therefore is ``analysis'' where: (1) The
whistleblower's conclusion of 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, derives from multiple sources,
including sources that, although publicly available, are not

readily identified and accessed by a member of the public without
specialized knowledge, unusual effort, or substantial cost; and (2)
these sources collectively raise a strong inference of an existence of
a motor vehicle defect, noncompliance, or any violation of a
notification or reporting requirement that is likely to cause
unreasonable risk of death or serious physical injury that is not
reasonably inferable by the Agency from any of the sources
individually.
    The proposed rule makes it clear that the analysis must be the
potential whistleblower's own analysis, whether done alone or in
combination with others.\45\ The proposed rule recognizes that analysis
is often the product of collaboration among two or more individuals.
However, the Agency believes that 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.
---------------------------------------------------------------------------

    \45\ The CFTC has defined ``independent analysis'' in a similar
manner, 17 CFR 165.2(h), as has the SEC, 17 CFR 240.21F-4(b)(3).
---------------------------------------------------------------------------

    The definition of ``independent knowledge or analysis'' in proposed
rule Sec.  513.2(b) further provides that information will not be
considered to derive from an individual's ``independent knowledge or
analysis'' in some situations. The Agency requests comment on whether
these are appropriate exclusions and whether additional exclusions
should be added.
    The first proposed exclusion is for information that was obtained
solely through a communication that is subject to the attorney-client
privilege \46\ or work product doctrine.\47\ The Agency recognizes that
the both the SEC and CFTC whistleblower programs would not exclude the
disclosure if it was authorized by the applicable Federal or State
attorney conduct rules,\48\ and requests comment on whether it should
include a similar carve-out in its regulations.
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    \46\ This term refers to the protection that applicable law
provides for confidential attorney-client communications.
    \47\ This term refers to the protection that applicable law
provides for material prepared in anticipation of litigation or for
trial.
    \48\ 17 CFR 240.21F-4(i), (ii) and 17 CFR 165.2(g)(2), (3).
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    The Agency recognizes that there are some exceptions to these
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. However, the Agency has concerns that it will not be
able to tell whether an exception would apply at the outset.
Furthermore, NHTSA anticipates that attorneys in its Office of the
Chief Counsel, in conjunction with engineers or others from the program
office, will be reviewing submissions made by potential whistleblowers.
The rule as proposed would help implement 49 U.S.C. 30172 in a manner
consistent with the State bar ethics rules governing the professional
responsibilities of lawyers. At this time, NHTSA has determined that we
cannot review materials protected by attorney-client privilege pursuant
to the District of Columbia Rules of Professional Conduct. This
determination is based on our understanding of the District of Columbia
Bar's Ethics Opinion 318: Disclosure of Privileged Material by Third
Party.
    Additionally, compliance with 49 U.S.C. chapter 301 and regulations
thereunder is promoted when individuals, corporate officers, and others
consult with counsel about potential issues. This important benefit
could be undermined if an employee or contractor was able to disclose
the company's attorney-client privileged information or attorney work
product to the Agency.
    The proposed 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
would prohibit an employee or contractor from revealing attorney-client
privileged or work product information that they learned of solely
through a privileged communication.
    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. The Agency recognizes that it is likely that a violation
determination would not yet have been made at the time a whistleblower
submits documents or other information to NHTSA, and the Agency
specifically requests comment on this proposal. As one measure, the
Agency could caution the whistleblower against submission of this
information if there is reason to believe that the information might be
determined to violate applicable Federal or State criminal law.
    One rationale for the exclusion is that a potential whistleblower
should not be rewarded for violating a Federal or State criminal law.
On the other hand, it is possible that companies could threaten
potential whistleblowers with criminal prosecution for theft,
blackmail, extortion, or other such actions if the whistleblower
provides or attempts to provide information to NHTSA. Threats of
criminal prosecution would likely deter a whistleblower from reporting
violations to NHTSA and such deterrence may be contrary to public
policy.
    NHTSA is not proposing to categorically exclude information that
may be provided to it in possible violation of judicial or
administrative orders, such as protective orders in private litigation.
As explained in a NHTSA Enforcement Guidance Bulletin, ``To the extent
protective orders, settlement agreements, or other confidentiality
provisions prohibit information obtained in private litigation from
being transmitted to NHTSA, such limitations are contrary to Rule 26 of
the Federal Rules of Civil Procedure, its state corollaries, and sound
principles of public policy.'' \49\ However, potential whistleblowers
must exercise caution to avoid violating a legally binding order, and
may wish to consult with private counsel before providing NHTSA with
information covered by any such order. In the event of uncertainty
(such as in the absence of a protective order provision authorizing
disclosure to relevant regulatory authorities), NHTSA suggests that
potential whistleblowers who are aware of material protected by a
protective order not provide the documents subject to the order, but
rather disclose the existence of such documents without revealing the
substance of the material under the protective order.
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    \49\ NHTSA Enforcement Guidance Bulletin 2015-01: Recommended
Best Practices for Protective Orders and Settlement Agreements in
Civil Litigation, 81 FR 13026 (Mar. 11, 2016).
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    The Agency is also aware that companies may try to use
confidentiality agreements to prevent whistleblowers from making
disclosures to NHTSA, which would also appear to be contrary to public
policy.\50\ In such

situations, the potential whistleblower may wish to consult with
private counsel. NHTSA does not believe that a potential violation of a
confidentiality agreement by the whistleblower should act as an
exclusion under this proposed rule.\51\
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    \50\ NHTSA notes that the SEC's Exchange Act Rule 21F-17(a)
prohibits any person from taking any action to prevent an individual
from contacting the SEC directly to report a possible securities law
violation. The rule states that ``[n]o person may take any action to
impede an individual from communicating directly with the Commission
staff about a possible securities law violation, including
enforcing, or threatening to enforce, a confidentiality agreement .
. . with respect to such communications.'' According to the SEC's
2021 Report, the Commission has brought 14 enforcement actions or
administrative proceedings involving violations of Rule 21F-17. U.S.
Securities and Exchange Commission, 2021 Annual Report to Congress,
Whistleblower Program, p. 26, available at https://www.sec.gov/files/owb-2021-annual-report.pdf. See also SEC v. Collector's
Coffee, Inc., 2021 WL 3082209, *3 (S.D.N.Y. July 21, 2021) (noting
that certain contractual confidentiality provisions would be
illegal, and therefore unenforceable). The Agency requests comment
on whether it should issue a rule similar to that of Rule 21F-17.
    \51\ The SEC's rationale for Rule 21F-17 was that it was
necessary and appropriate because efforts to impede an individual's
direct communications with Commission staff about a possible
securities law violation would conflict with the statutory purpose
of encouraging whistleblowers to report to the Commission. See
Securities Whistleblower Incentives and Protections, 76 FR 34300,
34252 (June 13, 2011).
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    NHTSA is requesting comment on whether there should be other
proposed exclusions, including exclusions similar to those contained
under ``independent knowledge'' and/or ``independent analysis'' in the
whistleblower programs of the SEC \52\ and CFTC.\53\
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    \52\ 17 CFR 240.21F-4(b)(4).
    \53\ 17 CFR 165.2(g).
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    For example, it is the Agency's tentative view that it will not
exclude potential whistleblowers where the potential whistleblower
obtained the information solely because the potential whistleblower was
or is an officer, director, trustee or partner of an entity and another
person informed the potential whistleblower of allegations 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 regulation thereunder. The SEC and the CFTC have an
exception for the exclusion where the person had a reasonable basis to
believe that disclosure of the information to the Commission is
necessary to prevent the relevant entity from engaging in conduct that
is likely to cause substantial injury to the financial interest or
property of the entity or investors.\54\ For whistleblower disclosures
made under the Whistleblower Act, in light of potential risks to
safety, the Agency believes that encouraging disclosure to the Agency
as soon as possible would be the better course. The Agency recognizes
that such individuals may have ready access to significant information
relevant to these issues and does not want to discourage would-be
whistleblowers from reporting out of concern that this exclusion might
apply. We note that a person in such a position often may be able to
piece together information in a unique way or provide additional
relevant information and may not just simply be a conduit for passing
on information obtained from another person.
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    \54\ 17 CFR 240.21F-4(b)(4)(v)(A) and 17 CFR 165.2(g)(7)(i).
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    We are also considering whether there should be an exclusion for
situations in which the potential whistleblower learned the information
by participating in or observing established processes of the motor
vehicle manufacturer, part supplier, or dealership to identify, report,
and address possible violations of 49 U.S.C. chapter 301 or a
regulation thereunder. The Agency specifically requests comment on this
issue.
    Unlike the whistleblower programs of the SEC and CFTC, Congress
evidenced an intent in the Whistleblower Act for internal reporting to
be an important prerequisite to award eligibility, except in
circumstances where reporting may not be appropriate.\55\ The Agency
recognizes that companies may view allowing information learned from
participating in or observing established processes to be considered
``independent knowledge or analysis'' as circumventing or undermining
the proper operation of the company's internal processes for
investigating and responding to potential violations of law. However,
it is critical that the Agency learn important safety information as
quickly as it can.\56\ We also note that a company's efforts to come
into future compliance does not negate prior violations of law. We
encourage comments on this issue.
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    \55\ S. Rep. 114-13, Motor Vehicle Safety Whistleblower Act,
Report of the Committee on Commerce, Science, and Transportation at
7 (2015).
    \56\ Even the SEC and CFTC allow this type of information to be
excepted from exclusion if at least 120 days have elapsed since the
whistleblower provided the information to the relevant entity's
audit committee, chief legal officer, chief compliance officer (or
their equivalents), or the whistleblower's supervisor, or since the
whistleblower received the information, if the whistleblower
received it under circumstances indicating that the entity's audit
committee, chief legal officer, chief compliance officer (or their
equivalents), or the whistleblower's supervisor was already aware of
the information. See, e.g., 17 CFR 240.21F-4(b)(4)(v)(C) and 17 CFR
165.2(g)(7)(iii).
    The Agency does not think it prudent to have a 4-month waiting
period for this type of information for a whistleblower report to
become eligible, especially since the issues under the Whistleblower
Act may relate to unreasonable risk of death or serious physical
injury.
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i. Proposed Rule Sec.  513.2(b), Motor Vehicle Defect
    NHTSA is proposing a definition of ``motor vehicle defect'' because
it is a term that is included in the statutory definition of
whistleblower. 49 U.S.C. 30172(a)(6). Proposed rule Sec.  513.2(b)
defines ``motor vehicle defect'' as a defect in a motor vehicle or item
of motor vehicle equipment.
    Under proposed rule Sec.  513.2(a), the term ``defect'' would have
the same meaning as that contained in 49 U.S.C. 30102(a)(3), which is
that a defect includes any defect in performance, construction, a
component, or material of a motor vehicle or motor vehicle equipment;
``motor vehicle'' would have the same definition as in 49 U.S.C.
30102(a)(7), which states that a motor vehicle ``means a vehicle driven
or drawn by mechanical power and manufactured primarily for use on
public streets, roads, and highways, but does not include a vehicle
operated only on a rail line;'' and ``motor vehicle equipment'' would
have the same meaning as defined in 49 U.S.C. 30102(a)(8), which
defines motor vehicle equipment as ``(A) any system, part, or component
of a motor vehicle as originally manufactured; (B) any similar part or
component manufactured or sold for replacement or improvement of a
system, part, or component, or as an accessory or addition to a motor
vehicle; or (C) any device or an article or apparel, including a
motorcycle helmet and excluding medicine or eyeglasses prescribed by a
licensed practitioner, that--(i) is not a system, part, or component of
a motor vehicle; and (ii) is manufactured, sold, delivered, or offered
to be sold for use on public streets, roads, and highways with the
apparent purpose of safeguarding users of motor vehicles against risk
of accident, injury, or death.'' The Agency has also proposed this
definition to make it clear that the term ``motor vehicle defect'' also
encompasses defects in all motor vehicle equipment. NHTSA's authority
over motor vehicle equipment, in its many forms, is expressed
unequivocally in the Safety Act. 49 U.S.C. 30102(a)-(b).
    There are several reasons why the Agency believes the term ``motor
vehicle defect'' should be defined as including defects in motor
vehicle equipment. First, if the Agency were to interpret the term
strictly as a ``defect in a motor vehicle,'' one could argue that
``replacement equipment'' \57\ is not covered, since this type of motor
vehicle equipment was not installed in or on a motor vehicle at the
time of delivery to the first purchaser. We believe that Congress
intended to provide whistleblower protection and award eligibility not
only to those

whistleblowers who provide original information concerning defects or
noncompliances of ``original equipment,'' \58\ but also replacement
motor vehicle equipment. Congress has provided that a whistleblower can
be an employee or contractor of a part supplier, which was defined by
the statute as a ``manufacturer of motor vehicle equipment.'' Both
original equipment items and replacement equipment items are motor
vehicle equipment. It does not seem to follow that a whistleblower's
potential eligibility for an award and statutory identity protection
depends on where a particular motor vehicle equipment item, such as an
air bag, goes. For example, the same defective air bag could be placed
in a motor vehicle, or it could be sold as a replacement part.
Furthermore, there are other types of motor vehicle equipment, such as
motorcycle helmets, that are not systems, parts, or components of motor
vehicles, but nevertheless are motor vehicle equipment. For these
reasons, the Agency believes that the proposed definition of ``motor
vehicle defect,'' which would encompass defects in both motor vehicles
and motor vehicle equipment, better effectuates the statute.
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    \57\ ``Replacement equipment'' is defined as ``motor vehicle
equipment that is not original equipment.'' 49 U.S.C.
30102(b)(1)(D).
    \58\ ``Original equipment'' means ``motor vehicle equipment
(including a tire) installed in or on a motor vehicle at the time of
delivery to the first purchaser.'' 49 U.S.C. 30102(b)(1)(C). Under a
statutory definition, a defect in original equipment or a
noncompliance of original equipment with an applicable motor vehicle
safety standard ``is deemed to be a defect or noncompliance of the
motor vehicle in or on which the equipment was installed at the time
of delivery to the first purchaser.'' 49 U.S.C. 30102(b)(1)(F)
(emphasis added).
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j. Proposed Rule Sec.  513.2(b), Noncompliance
    We are proposing a definition of ``noncompliance'' as it is a term
that is included in the statutory definition of whistleblower. Proposed
rule Sec.  513.2(b) states that noncompliance occurs when a motor
vehicle or item of motor vehicle equipment does not comply with an
applicable motor vehicle safety standard. This definition aligns with
the term noncompliance as it is used in sections 30118-30120 of the
Safety Act.
k. Proposed Rule Sec.  513.2(b), Original Information
    Proposed rule Sec.  513.2(b) begins with the definition of
``original information'' in section 30172(a)(3) but adds the word
``Agency'' for the purposes of clarity. Proposed rule Sec.  513.2(b)
defines ``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.
    Some definitions of the constituent terms in the definition of
original information, such as ``independent knowledge or analysis,''
have been proposed in proposed rule Sec.  513.2(b) so as to further
describe when an individual provides ``original information.''
    Proposed rule Sec.  513.2(b) also adds the requirement that the
original information be provided to the Agency for the first time after
December 4, 2015. December 4, 2015 is the date of enactment of the FAST
Act. This limitation is based on the rule of construction contained in
section 24352(b) of the FAST Act.
    Although the FAST Act authorizes the Secretary to pay whistleblower
awards on the basis of original information that is submitted to the
Secretary prior to the promulgation of rules implementing section 30172
(assuming all other requirements for an award are met),\59\ it is our
tentative conclusion that section 30172 does not authorize the
Secretary to retroactively pay awards based on information submitted
before the effective date of the statute. Section 24352(b)(1) of the
FAST Act, Public Law 114-94, provides that ``Information submitted to
the Secretary of Transportation by a whistleblower in accordance with
the requirements of section 30172 of title 49, United States Code,
shall not lose its status as original information solely because the
whistleblower submitted the information prior to the effective date of
the regulations issued under subsection (i) of that section if that
information was submitted after the date of enactment of this Act.''
(emphasis added). The Agency tentatively construes this language as
excluding information that was submitted to the Agency prior to
December 5, 2015, from the definition of ``original information'' and
has included such exclusion in proposed rule Sec.  513.2(b) for the
purposes of clarity.\60\ To give meaning to the phrase ``submitted
after the date of enactment of this Act,'' it appears that a
whistleblower award is not permitted for information submitted prior to
that date.\61\
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    \59\ See Section 24352(b)(2) of the FAST Act, Public Law 114-94
(stating that a whistleblower may receive an award prior to the
Secretary promulgating the regulations under subsection (i)).
    \60\ However, the statute is clear that a whistleblower may
receive an award regardless of whether the violation underlying the
covered action occurred prior to the Act's date of enactment. Thus,
if a whistleblower has submitted original information after December
5, 2015, about a violation that occurred on or prior to December 5,
2015, the whistleblower may be eligible for an award, assuming that
all other conditions are met. These timing provisions are consistent
with the purpose of the Whistleblower Act of incentivizing
whistleblowers to bring information to the Agency.
    \61\ This interpretation is consistent with language contained
with language contained in Senate Report 114-13. See S. Rep. 114-13,
Motor Vehicle Safety Whistleblower Act, Report of the Committee on
commerce, Science, and Transportation at 7 (2015) (``Nevertheless,
since this section this section limits the application of the
[Whistleblower] Act to information submitted after the date of
enactment, the secretary may not issue an award under this act for
information previously submitted or for penalties already assessed
prior to the date of enactment.'')
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    The Agency notes that this proposed approach is similar to that
taken by the SEC and affirmed by the Second Circuit. In Stryker v.
Securities and Exchange Commission, 780 F.3d 163 (2d. Cir 2015), the
petitioner sought review of an SEC order denying his claim for a
whistleblower award. In this case, the petitioner provided information
that the SEC relied upon in a successful enforcement action, but the
claim was denied because the information was submitted before the
enactment of Dodd-Frank. The Court noted that the SEC had adopted a
rule that provided that whistleblower awards may be made only for
information provided to the Commission for the first time after July
21, 2010, and that the ``sole basis for petitioner's claim is section
21F, which was not enacted until after he took the actions that are the
grounds for the award sought. If the purpose of Dodd-Frank was to
encourage whistleblower activity, already completed actions would
arguably not qualify.'' Id. at 166. The Court held, ``We need not,
however, decide if Congress clearly intended to bar a whistleblower
award to petitioner at Chevron Step 1 because even if Dodd-Frank is
ambiguous, we defer to the SEC's interpretation of Dodd-Frank at Step
2.'' Id. It is the Agency's tentative position that it should follow
the SEC's practice and not permit whistleblower awards for provision of
information that predated the Whistleblower Act.\62\
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    \62\ See also Ross v. Securities and Exchange Comm'n, 34 F.4th
1114, 1122 (D.C. Cir. 2022) (interpreting the provision in 15 U.S.C.
78u-7(b) stating that ``Information provided to the Commission in
writing by a whistleblower shall not lose the status of original
information (as defined in section 78u-6(a)(3) of this title, as
added by this subtitle) solely because the whistleblower provided
the information prior to the effective date of the regulations, if
the information is provided by the whistleblower after July 21,
2010'' as specifically requiring exclusion of this category of
submissions from being considered ``original information'' such that
the Court could conclude that under ``Chevron Step 1 that the
Congress has indeed spoken directly and unambiguously to the precise
question at issue and the SEC followed this directive to the
letter.'').

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l. Proposed Rule Sec.  513.2(b), Original Information That Leads to a
Successful Resolution
    Under section 30172(b), a whistleblower's eligibility for an award
depends in part on whether the whistleblower's original information
``leads to'' the successful resolution of a covered action. Proposed
rule Sec.  513.2(b) defines two situations when the Agency will
consider the potential whistleblower to have provided original
information that ``leads to'' a successful resolution.
    Some of NHTSA's proposal is based on the approach taken by the SEC
and the CFTC in their whistleblower regulations.\63\ The first
situation in which the Agency will consider the potential whistleblower
to have provided original information that ``leads to'' a successful
resolution is when 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 49 U.S.C. chapter 301 or a regulation
thereunder as part of a current investigation, and the U.S. Department
of Transportation, Agency or the 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.
---------------------------------------------------------------------------

    \63\ See 17 CFR 240.2F-4(c) and 17 CFR 165.2(i).
---------------------------------------------------------------------------

    The second situation that the Agency will consider the potential
whistleblower to have provided information that ``leads to'' a
successful resolution is, under circumstances delineated below, where
the potential whistleblower gave the Agency original information about
conduct that was already under investigation by the Agency. In these
cases, the proposal would find the information to have ``led to'' the
successful resolution of the covered action when 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 successful judicial or
administrative action based in whole or in part on conduct that was the
subject of the potential whistleblower's original information.
    In evaluating whether the information ``significantly contributed''
to the success, the Agency anticipates it will proceed on a case-by-
case basis to provide flexibility to address all potential scenarios.
The Agency may consider such things as whether the information allowed
the Agency to bring a successful action in significantly less time or
with significantly fewer resources or whether it was able to bring
additional successful claims against additional individuals or
entities.
m. Proposed Rule Sec.  513.2(b), Part Supplier
    The statutory definition of ``part supplier'' means a
``manufacturer of motor vehicle equipment.'' There is a statutory
definition of ``motor vehicle equipment'' found at 49 U.S.C.
30102(a)(8). To avoid confusion, the Agency wants to make it clear that
its interpretation covers all motor vehicle equipment, regardless of
whether it is original equipment or replacement equipment, as those
terms are defined in 49 U.S.C. 30102(b)(1)(C) and (D).
n. Proposed Rule Sec.  513.2(b), Potential Whistleblower
    Since there is a specific statutory definition of ``whistleblower''
that contains a number of prerequisites that need to be met to fall
under the definition, the Agency proposes to use the term ``potential
whistleblower'' for the sake of clarity, as the Agency 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. Therefore, the Agency proposes that the term ``potential
whistleblower'' refer 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.
    It is important to note that the Agency will treat potential
whistleblowers as subject to the protections in 49 U.S.C. 30172(f).
o. Proposed Rule Sec.  513.2(b), Related Administrative or Judicial
Action
    The Agency proposes the term ``related administrative or judicial
action,'' as used in the definition of covered action, to refer to 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. For example, under this interpretation, if the
whistleblower's submission leads to two separate but related
enforcement actions, each with a monetary sanction of $600,000, those
two amounts can be added together to overcome the $1,000,000 threshold
for a whistleblower award. The Agency believes that under principals of
statutory construction ``related actions'' are limited to only those
actions brought under 49 U.S.C. chapter 301. The term ``covered
action'' is defined in 49 U.S.C. 30172(a)(1) as ``any administrative or
judicial action, including any related administrative or judicial
action, brought by the Secretary or the Attorney General under this
chapter that in the aggregate results in monetary sanctions exceeding
$1,000,000.'' The Agency believes that the use of the word
``including'', and the placement of commas makes it clear that
``related'' actions are a subset of any administrative or judicial
actions brought under 49 U.S.C. chapter 301, rather than referring to
actions brought under other statutes. This would mean that deferred
prosecution agreements and the like entered into by the U.S. Department
of Justice with companies for violations of criminal laws generally
would not be considered a ``related'' action, as those actions are not
brought under 49 U.S.C. chapter 301. Thus, any money collected by the
government in connection with that deferred prosecution agreement or
the like would not be compensable to a whistleblower under 49 U.S.C.
30172.
    As discussed elsewhere in this document, this interpretation also
makes the most sense with respect to where the money for a
whistleblower award would come from. Unlike the SEC and CFTC, the
Agency does not have a separate fund to draw from in making award
payments. Rather, the Agency anticipates that the ``pot of money'' from
which to pay the award will come from penalties and additional monetary
sanctions the manufacturer or other entity that violated the Safety Act
or the regulations thereunder paid to the United States.
    The Agency also wants to clarify ``related action'' as it may
pertain to additional actions stemming out of a consent order. For
example, several consent orders issued by NHTSA contain clauses for
deferred penalties or abeyance amounts. Generally, under these clauses,
the company under the consent order stipulates that it will pay a
certain monetary amount if there is another violation of the consent
order, the Safety Act, or the regulations thereunder by it. These
amounts are tied to a yet undetermined violation at the time of the
execution of the consent

order. It is the Agency's tentative view that any amounts that come due
under a deferred or abeyance amount would not be considered part of the
initial civil penalty action that resulted in the consent order, nor
would it be considered a ``related'' action. If a whistleblower
received an award in connection with the initial civil penalty action,
it is our tentative view that such whistleblower would not be eligible
for an award percentage of any amount collected from the deferred/
abeyance amounts, unless the whistleblower provided original
information that led to the Agency determining the deferred penalty
payment was required. We request comments on this interpretation.
    If a whistleblower provided information that resulted in a deferred
penalty or abeyance amount coming due under a consent order, it is our
tentative view that this would be a successful resolution. Any
determination letter by NHTSA that a penalty was owed could be
considered a ``covered action'' if the original information provided by
the whistleblower led to the collection of more than $1,000,000 of the
deferred penalty or abeyance amounts. It is our tentative view that
such whistleblower would be eligible for an award under these
circumstances.
    In some cases, a performance obligation amount would become due
under a consent order if the company did not meet its spending
requirements. In that case, the performance obligation amount relates
to a fixed expenditure obligation arising out of the initial violation
of law that led to the consent order. It is the Agency's view that if
any of the performance obligation amounts come due under the consent
order as money paid to the United States, a whistleblower that was
eligible to receive an award for that consent order may also be
eligible for an award of ten (10) to thirty (30) percent of any
performance obligation amount collected by the United States.\64\
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    \64\ The Agency also anticipates that if the performance
obligation spend requirement is collected under the terms of the
consent order, any such amount could be added to the amounts already
collected by the United States to reach the over one-million-dollar
threshold needed to be a ``covered action'' for which an award may
be paid.
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p. Proposed Rule Sec.  513.2(b), Secretary
    Proposed rule Sec.  513.2(b) clarifies that the term Secretary
means the Secretary of Transportation.\65\
---------------------------------------------------------------------------

    \65\ NHTSA notes that in section 30171, Protection of employees
providing motor vehicle safety information, the term Secretary
generally refers to the Secretary of Labor.
---------------------------------------------------------------------------

q. Proposed Rule Sec.  513.2(b), Successful Resolution
    The definition of ``successful resolution'' in proposed rule Sec.
513.2(b) provides additional clarification of what a successful
resolution includes. Under the proposal, 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 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, the
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.
    Under this definition, a successful resolution can include, but is
not limited to, a consent order that is issued by the Agency, a
decision letter issued by the Agency, a consent decree that is entered
by a Court, a settlement agreement, or a judicial order in whole or in
part in the Agency's favor.
r. Proposed Rule Sec.  513.2(b), Whistleblower
    The term ``whistleblower'' is defined in section 30172(a)(6). The
proposed definition tracks the statutory definition of whistleblower,
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 the purposes of clarity.
    Proposed rule Sec.  513.2(b) defines ``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 of 49 U.S.C. chapter 301 or regulation thereunder, which is
likely to cause unreasonable risk of death or serious physical injury.
    Because the statute requires that that a whistleblower provide
information to the Secretary and that the submission be voluntary, it
is the Agency's tentative view that the whistleblower or the
whistleblower's legal representative must be the one to directly
provide the information to NHTSA. For example, it is the Agency's
tentative view that if a whistleblower provides information to an
advocacy group, reporter, or some other third-party and that third-
party provides the information to NHTSA, such a submission would not
comport with the requirement to voluntarily provide original
information to the Secretary. To the extent the whistleblower is
concerned about revealing their identity, the Agency believes that the
proposed anonymous submission procedure should help to mitigate the
concerns. When a whistleblower provides information directly to the
Agency (including through a legal representative), the Agency has the
ability to follow-up and obtain additional information or
clarification.
    The Agency requests comment on whether it should add the word
``potential'' in front of the term ``motor vehicle defect'' and
``noncompliance'' as the terms ``safety-related defect'' and
``noncompliance'' are understood to have specific meaning in the
context of the recall and remedy portions of the Safety Act,\66\ and
the Agency is careful to use those terms only when it is determined
that there is an actual safety-related defect or noncompliance with an
applicable FMVSS, not just a potential or apparent safety-related
defect or noncompliance.
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    \66\ 49 U.S.C.<PHONE_NUMBER>0.
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    A manufacturer may file a notice of safety-related defect or
noncompliance with the FMVSS pursuant to 49 CFR part 573, or the Agency
may follow an administrative process to determine that a safety-related
defect or noncompliance with an applicable FMVSS exists. In cases where
a manufacturer has not determined that there is a safety-related defect
or a noncompliance with an applicable FMVSS in a motor vehicle or item
of motor vehicle equipment, the Safety Act and regulations thereunder
prescribe a process for the Agency to make such a decision. The steps
include the Agency making an initial decision, providing to the
manufacturer all information on which the decision was based, having a
public meeting on the issue, and making a final decision.\67\
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    \67\ 49 U.S.C. 30118(b), 49 CFR 554.10, 554.11.
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    The Agency has provided further clarity to the phrase ``any
violation or alleged violation of any notification or reporting
requirements of this chapter'' by specifying that the phrase refers to
49 U.S.C. chapter 301 and regulations promulgated thereunder.
    The Agency is specifically requesting comment on whether a
whistleblower has to 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).
    One view is that because the statute has an emphasis on internal
reporting, that Congress may have intended that only employees and
contractors providing information on the motor vehicle manufacturer,
part supplier, or dealership that employed them or contracted with them
could be whistleblowers. However, the statute also provides that the
Secretary may have good cause to waive the internal reporting
requirement,\68\ which provides a statutory way to exclude employees or
contractors of other corporate entities (such as competitors) from
needing to report to be eligible for an award.
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    \68\ 49 U.S.C. 30172(c)(2)(E)(iii).
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    The Agency believes that competitors, partners, employees of
another separate corporate entity, and the like often have insight into
the automotive market and is proposing to allow them to receive
whistleblower awards. The Agency specifically requests comment on
whether such employees or contractors of other motor vehicle
manufacturers, parts suppliers, or dealerships should be considered
potential whistleblowers. The Agency has provided examples below for
consideration:
    1. Employee of Tire Manufacturer A has original information that
Tire Manufacturer B has been falsely certifying its tires as compliant
with all applicable FMVSS.
    2. Employee of Motor Vehicle Manufacturer C has original
information that Motor Vehicle Manufacturer D did not report deaths as
required by Early Warning Reporting (``EWR'') requirements.
    3. Employee of Dealership E has original information that
Dealership F has been selling new vehicles that have open recalls.
    4. Employee of Motor Vehicle Manufacturer G has original
information that Dealership G has been selling new vehicles that have
open recalls.
    5. Employee of Motor Vehicle Equipment Manufacturer H has original
information that Motor Vehicle Manufacturer I did not timely recall
vehicles with a safety-related defect.
    6. Employee of parent company Motor Vehicle Manufacturer J has
information that subsidiary company Motor Vehicle Manufacturer K did
not timely recall vehicles with a safety-related defect.
    7. An employee of company L that has served as a subcontractor to
Registered Importer M is aware that Registered Importer M submitted
false or misleading certificates of conformance to NHTSA.
    The Agency is aware that employees and contractors in the motor
vehicle industry often have knowledge regarding other corporate
entities. This often includes companies with a relationship, such as a
motor vehicle manufacturer and its dealers, a parts supplier and the
companies that purchase its parts, a related corporate entity (for
example, a parent and subsidiary) or a partner company. The Agency also
believes that competitors often have valuable insight into their
competitors' actions in the market. For example, a company that has
been undercut on price because its competitor improperly certifies its
products as complying with applicable FMVSS certainly may have valuable
information for the Agency and may be further incentivized to inform
the Agency if a whistleblower award may be possible. In some cases,
competitors may conduct ``tear downs,'' or other investigations of a
product as part of their normal business practices, which may lead to
their conclusion that the competitor's product may contain a safety-
related defect or noncompliance with an applicable FMVSS. NHTSA
believes that competitor-provided information could be a rich source of
data. However, based on the language of the statute, it appears that
the company could not make the claim on its own behalf and be
considered a ``whistleblower.'' It does appear that an employee or
contractor of the competitor company could make the report and still
qualify under the statutory definition of ``whistleblower.'' The Agency
requests comment on this interpretation.
    The Agency is also requesting comment on whether employees of motor
vehicle industry related trade groups could be considered
whistleblowers. The Agency's tentative conclusion is that while trade
groups themselves cannot be whistleblowers, the employees or
contractors with the companies within the trade group's membership can
be whistleblowers, provided they fall into the definition of motor
vehicle manufacturer, part supplier, or dealership. This best
effectuates the purpose of the statute in incentivizing those with
access to information on safety issues and violations of law to bring
them to the Agency's attention.
    The Agency does have some concerns that some unscrupulous actors
may anonymously or improperly provide information to the Agency not
because they think there is a safety-problem, but rather with the
motive to harm the competitor or entity by making false or inaccurate
allegations. However, this concern may be mitigated by 49 U.S.C.
30172(g) and proposed rule Sec.  513.8.
    Under 49 U.S.C. 30172(c)(2)(E)(iii), the Secretary may, for good
cause, waive the requirement to report or attempt to report the
information through the internal reporting mechanism. This authority
has been delegated to NHTSA. The Agency anticipates making such
decisions on a case-by-case basis. However, NHTSA is requesting comment
on whether it should consider an interpretation or rule that claims
made by employees or contractors of other motor vehicle manufacturers,
part suppliers, or dealerships as automatically exempt for good cause
from the requirements to report it to the internal reporting mechanism
of the motor vehicle manufacturer, part supplier, or dealership about
which the whistleblower is providing information or other internal
reporting.\69\
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    \69\ The Agency does not think it makes sense to require such
employee or contractor to make a report to the internal reporting
mechanism of its motor vehicle manufacturer, part supplier, or
dealership in those situations where the conduct involved is
unrelated to the actions of its employing or contracting entity. The
Agency therefore would not require this type of internal reporting
should the rule allow for whistleblowers to receive awards for
reporting conduct of entities that did not employ or contract with
them, as is proposed.
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C. Proposed Rule Sec.  513.3--Representation

    Proposed rule Sec.  513.3 tracks the language of 49 U.S.C.
30172(d), which provides that a whistleblower may be represented by
counsel, and also adds the term ``potential whistleblower'' for
clarity.

D. Proposed Rule Sec.  513.4--Procedures for Submitting Original
Information

    The Agency proposes that the potential whistleblower submit
information on a standardized form, WB-INFO. A proposed draft of the
WB-INFO form is contained in Appendix A to this proposed rule.
    In addition to other benefits, the use of a standardized form (WB-
INFO) will assist the Agency in managing and tracking the whistleblower
information it receives. This will also better enable the Agency to
connect whistleblower information to requests for award payment under
the whistleblower provisions.

    Proposed rule Sec.  513.4(a) proposes that the standard form must
be submitted either by email to NHTSA's established account
([email protected]), which is monitored by the Office of the
Chief Counsel, or by any such method that the Agency may expressly
designate on its website.
    Proposed rule Sec.  513.4(b) would provide that the 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. The purpose of requiring a sworn
declaration on the WB-INFO form is to help deter the submission of
false and misleading information, which undermines the efficient use of
the Agency's resources. The requirement may also mitigate the potential
harm to companies and individuals that may be caused by false or
spurious allegations of wrongdoing.
    Proposed rule Sec.  513.4(c) would provide that 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 Sec.  513.4(a).
Prior to the legal representative's submission, the potential
whistleblower must provide his or her legal representative with a
completed WB-INFO form that he or she 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 he or she: (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 from the potential whistleblower in the event
that the Agency requests it.
    The Agency requests comments on whether it should allow non-
attorneys to submit information on behalf of a potential whistleblower.
    Because many potential whistleblowers may wish to provide
information anonymously, the Agency believes the proposed rule strikes
an appropriate balance between the Agency's interest in deterring false
and misleading information while permitting anonymous submissions with
certain specified conditions. Anonymous potential whistleblowers will
have the same rights and responsibilities as other potential
whistleblowers unless expressly exempted. This includes the
restrictions on providing false information, as addressed in proposed
rule Sec.  513.8.
    Finally, proposed rule Sec.  513.4(d) follows section 24352(b) of
the FAST Act by providing that if a potential whistleblower submitted
original information to the Agency after December 4, 2015 (the date of
the enactment of the FAST Act) but before the effective date of these
rules, the submission will be deemed to satisfy the requirements set
forth in Sec.  513.5(a) and (b).

E. Proposed Rule Sec.  513.5--Confidentiality

    49 U.S.C. 30172(f) provides for protection of whistleblowers.
Consistent with this section, proposed rule Sec.  513.5(a) explains
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 unless it falls under one of the circumstances described in
the statute.
    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 afford potential whistleblowers, that is, those
persons who submit information to the Agency in accordance with this
part, confidential protections indefinitely, unless otherwise waived or
permitted.\70\ NHTSA recognizes that potential whistleblowers often put
themselves at risk of significant consequences, and thus maintaining
their confidentiality is of the utmost importance.
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    \70\ For those persons who submit information prior to the
effective date of the final rule on this section, it is the Agency's
intent to accord them confidential protection, unless otherwise
waived or otherwise permitted.
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    An important part of maintaining confidentiality of whistleblowers
relates to the Agency's ability to communicate directly with
whistleblowers. Therefore, the Agency wants to make it clear that the
Agency's staff, including its lawyers, may communicate directly with
potential whistleblowers, including directors, officers, members,
contractors, or employees of any entity that has counsel, without
seeking consent of the entity's counsel. 49 U.S.C. 30172 demonstrates a
strong Congressional policy to encourage disclosure to the Agency
relating to certain safety information while protecting the identity of
those who do so. This policy would be significantly impaired if the
Agency were required to seek the consent of the entity's counsel before
speaking with an individual who contacts it and who is a director,
officer, member, contractor, or employee of any entity that has
counsel. The Agency believes that, in accordance with American Bar
Association Model Rule 4.2, an attorney on behalf of NHTSA is
authorized by law to make these communications.\71\ Thus, Agency staff
(including its attorneys) could meet with the individual privately,
without the consent, knowledge or presence of counsel of the entity.
The Agency requests comment on whether it should put this position in a
rule, similar to that of the 17 CFR 240.21F-17(b).\72\
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    \71\ American Bar Association Model Rule 4.2 provides, ``In
representing a client, a lawyer shall not communicate about the
subject of the representation with a person the lawyer knows to be
represented by another lawyer in the matter, unless the lawyer has
the consent of the other lawyer or is authorized to do so by law or
a court order.'' See Model Rules of Prof'l Conduct, R. 4.2,
Communications with Persons Represented by Counsel, available at
http://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_4_2_communication_with_person_represented_by_counsel.html.
    \72\ See SEC's Rule 21F-17(b).
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    As explained in more detail below, the Agency needs to be able to
distinguish which information is from a whistleblower or potential
whistleblower and which information is from a member of the general
public in order to properly follow the whistleblower requirements
contained in 49 U.S.C. 30172(f) while not impeding its mission to save
lives, prevent injuries and reduce economic costs due to road traffic
crashes, through education, research, safety standards and enforcement
activity. For example, if the Agency receives a call from a consumer,
and that consumer is not an employee or contractor of a motor vehicle
manufacturer, part supplier, or dealership, that person is not a
whistleblower and is therefore not entitled to the protections under 49
U.S.C. 30172(f).
    As another example, even if the individual is an employee or
contractor of a motor vehicle manufacturer, if the

information they are disclosing relating to a motor vehicle defect,
noncompliance, or violation of notification or reporting requirement 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.
    The provisions in proposed Sec.  513.5(a) are based on the
statutory provisions at 49 U.S.C. 30172(f)(1)(A)-(C). Paragraph (a)(1)
of proposed rule Sec.  513.5 would authorize disclosure of information
that could reasonably be expected to reveal the identity of a
whistleblower when 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 proposed rule Sec.  513.5(c), which
includes the U.S. Department of Justice and any appropriate department
or agency of the Federal Government acting within the scope of its
jurisdiction.
    Paragraph (a)(2) would authorize disclosure if the whistleblower
provides prior written consent for the information to be disclosed. An
example of prior written consent would be if the whistleblower gave
such consent, such as through the release contained at proposed form
WB-RELEASE. Even when a release is signed, the Agency endeavors not to
release information that could reasonably be expected to reveal the
identity of a whistleblower unless necessary. We believe this practice
helps reassure prospective whistleblowers that the Agency takes the
protection of whistleblowers seriously.
    Paragraph (a)(3) would authorize disclosure when 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 section 30166 and has the authority
under other law to release the information.
    Proposed rule Sec.  513.5(b) gives effect to 49 U.S.C. 30172(f)(4).