It provides that notwithstanding paragraph (a), nothing in this section
is intended to limit the ability of the Attorney General to present
such evidence to a grand jury or to share such evidence with potential
witnesses or defendants in the course of an ongoing criminal
investigation.
    Proposed rule Sec.  513.5(c) follows 49 U.S.C. 30172(f)(5), but
replaces the word Secretary with Administrator, as the Secretary has
authorized the NHTSA Administrator to exercise the authority vested in
the Secretary under 49 U.S.C. chapter 301. 49 CFR 1.95(a). It provides
that notwithstanding paragraph (a) of this section, without the loss of
its status as confidential in the hands of the Administrator, all
information referred to in paragraph (a) of this section may, in the
discretion of the Administrator, when determined by the Administrator
to be necessary or appropriate to accomplish the purposes of 49 U.S.C.
chapter 301, be made available to the U.S. Department of Justice or an
appropriate department or agency of the Federal Government, acting
within the scope of its authority, provided that each entity shall
maintain information as confidential in accordance with the
requirements of paragraph (a).
    49 U.S.C. 30172(f)(2) provides that the Secretary, and any officer
or employee of the Department of Transportation, shall take reasonable
measures to not reveal the identity of the whistleblower when
disclosing any information under 49 U.S.C. 30172(f)(1). Since 49 U.S.C.
30172(f)(2) is entitled ``Redaction,'' the Agency is proposing to
interpret this provision in Proposed 513.5(d) as meaning that the
Secretary and any officer or employee of the U.S. Department of
Transportation should take reasonable measures not to reveal the
whistleblower's name, and that the whistleblower's name should be
redacted when information is disclosed under proposed rule Sec.
513.5(a). 49 U.S.C. 30172(f)(1).
    Because 49 U.S.C. 30172(f)(4) and (5) are excepted from the
restrictions in 49 U.S.C. 30172(f)(1) and 49 U.S.C. 30172(f)(5)
provides that information may be made available to government agencies
without losing its status as confidential, our tentative conclusion is
that we are not required to redact the whistleblower's name when
providing information under those subsections. Those provisions allow
information to be disclosed to the U.S. Department of Justice or an
appropriate department or agency of the Federal Government acting
within the scope of its jurisdiction. It seems incongruous to provide
information to the U.S. Department of Justice in support of an
investigation, but not be able to provide the Department with the name
of the whistleblower, the source of such information. The Agency
anticipates that the U.S. Department of Justice would want to speak
with the whistleblower to assess the whistleblower's credibility or get
further information in support of its investigation or analysis.
    Proposed 513.5(e) gives effect to 49 U.S.C. 30172(f)(3). It
provides that the identity of the whistleblower and the information
provided to the Secretary by the whistleblower shall be considered
exempt from disclosure under the provisions of 5 U.S.C. 552 to the
fullest extent permitted by law.
    Proposed 513.5(f) states that the person should identify himself or
herself as a whistleblower at the time he or she first submits original
information relating to any potential motor vehicle defect, potential
noncompliance, or any violation or alleged violation of any
notification or reporting requirements under 49 U.S.C. chapter 301 by
submitting a WB-INFO form. If the person is represented by a legal
representative, that legal representative should identify his or her
client as a whistleblower at the time the legal representative first
submits original information relating to any potential motor vehicle
defect, potential noncompliance, or any violation or alleged violation
of any notification or reporting requirements under 49 U.S.C. chapter
301 on behalf of the legal representative's client in the WB-INFO form.
    The Agency specifically requests comment on whether this
identification should be mandatory at the outset or be permissive given
that certain whistleblowers or their legal representatives may simply
be unaware of the WB-INFO form before contacting the Agency, may first
reach out with questions before submitting a WB-INFO form, or otherwise
may have good cause for not immediately submitting a WB-INFO form.
    The reason for this proposed requirement is programmatic. Unlike
other entities that have a policy and practice to treat all information
obtained during an investigation as confidential and nonpublic,\73\
NHTSA generally makes information on safety-related defect
investigations for which it has not received a request for confidential
treatment under 49 CFR part 512 publicly available. The Agency posts
materials such as Information Requests, Special Orders, and answers
thereto on its website, www.nhtsa.gov.
---------------------------------------------------------------------------

    \73\ The SEC and CFTC both have this practice. See, e.g., Final
Rule, Securities Whistleblower Incentives and Protections, 76 FR
34300, 34332 (June 13, 2011); Final Rule, Whistleblower Incentives
and Protection, 76 FR 53172, 53184 (Aug. 25, 2011).
---------------------------------------------------------------------------

    NHTSA also makes various consumer complaints publicly available,
with Personally Identifiable Information (PII) redacted. NHTSA receives
consumer complaints through a variety of sources, including calls to
its vehicle safety hotline, which are transcribed, and submissions of
Vehicle Owner Questionnaires (VOQs) through its website, www.nhtsa.gov.
    NHTSA relies on information submitted by consumers to assist it in
identifying potential safety issues. For

example, in opening an investigation into a safety-related defect,
NHTSA describes the issue being investigated in an ``Opening Resume,''
which includes a failure report summary. Applicable VOQs are identified
in the failure report summary under the heading ``ODI Complaints.'' The
Opening Resume may include a reference to the identification number(s)
of the counted VOQs. NHTSA often discusses the VOQs with manufacturers
when it is conducting an investigation.
    NHTSA also receives information on potential safety issues through
letters, emails, and phone calls. NHTSA may open an investigation based
on information provided through any of these sources.
    Because NHTSA currently has no required method or form of
submission of information by whistleblowers since rules implementing
the whistleblower program have not yet been enacted, NHTSA has taken a
broad view of what is considered whistleblower information. This
information comes from a variety of sources, such as VOQs, and
information provided by telephone, letter, or email to the Agency. We
have taken this broad view not only to review and track the information
submitted, but also to better protect the confidentiality of those who
have provided whistleblower information to the Agency. As NHTSA has
received information from over 150 potential whistleblowers since
enactment of the FAST Act, and as more whistleblowers are expected to
come forward, the Agency needs a robust way to identify potential
whistleblowers to afford them the protection available in 49 U.S.C.
30172.
    Because 49 U.S.C. 30172 requires the U.S. Department of
Transportation to afford confidential treatment to information ``which
could reasonably be expected to reveal the identity of a
whistleblower'' ``[n]otwithstanding section 30167'' \74\ it is
important to be able to determine whether a person is a
``whistleblower'' at the time he or she submits information to the
Agency. When a person submits a VOQ or other complaint to NHTSA, it may
not be clear at that point whether the person submitting the
information would meet the definition of a ``whistleblower.''
---------------------------------------------------------------------------

    \74\ 49 U.S.C. 30167 relates to disclosure of information by the
Secretary of Transportation.
---------------------------------------------------------------------------

    Therefore, to balance the interest of transparency against the
whistleblower protection afforded by the statute, the Agency proposes
that the person should identify himself or herself as a whistleblower
at the time he or she first submits original information relating to
any potential motor vehicle defect, potential noncompliance, or any
violation or alleged violation of any notification or reporting
requirements under 49 U.S.C. chapter 301 or a regulation thereunder.
Proposed rule Sec.  513.5(f) also requires that if a person is
represented by a legal representative, the person's legal
representative should identify the client as a whistleblower at the
time the legal representative first submits original information
relating to any potential motor vehicle defect, potential
noncompliance, or any violation or alleged violation of any
notification or reporting requirements under 49 U.S.C. chapter 301 or
regulation thereunder on behalf of the legal representative's client.
    The most effective and obvious way for whistleblowers to identify
themselves to the Agency is for the whistleblower to submit his or her
original information on a WB-INFO form. It also may be more beneficial
to the whistleblower to submit the information on the WB-INFO form, as
failure to do so could make the whistleblower ineligible for an award
under proposed rule Sec.  513.6(b). Therefore, the Agency is requesting
comment on whether a person must identify themselves as a whistleblower
through use of the WB-INFO form. The Agency specifically requests
comment on this issue, given the potential impact on whistleblowers
that may not be familiar with NHTSA's regulations, but nevertheless
could readily be identified as a whistleblower. However, the Agency
notes its intention to protect all potential whistleblowers, to the
extent they can be identified, regardless of whether they file a WB-
INFO form.
    Section 30172(f) prohibits disclosure of ``any information,
including information provided by a whistleblower to the Secretary,
which could reasonably be expected to reveal the identity of the
whistleblower'' except in certain situations. The Agency is requesting
comments on whether it should define ``any information . . . which
could reasonably be expected to reveal the identity of a
whistleblower,'' and if so, what the proposed definition should be.
    The Agency recognizes that its investigative function may be
thwarted if it is not able to follow all lines of inquiry, but a very
broad view of ``any information . . . which could reasonably be
expected to reveal the identity of a whistleblower,'' could do just
that by restricting the Agency's ability to conduct follow-up inquiry.
For example, if a whistleblower reveals information known only to a
small group within a company, the Agency's attempts to verify that
information or obtain related information could lead the company to
suspect a particular individual has been in communication with the
Agency. Other than asking the whistleblower to sign a consent form for
disclosure of information in these cases, NHTSA is requesting comments
on how the Agency can most effectively investigate whistleblower
allegations while abiding by the statutory requirements of 49 U.S.C.
30172(f). NHTSA notes that it believes it has been able to effectively
balance these competing interests in the several years since the FAST
Act's enactment, through careful lines of inquiry, by engaging in
investigatory activity without revealing the identity of the
whistleblower. However, we are also interested in input from
stakeholders on this issue.
    NHTSA recognizes that there may be a tension between the statutory
requirement to deny awards to whistleblowers who fail to report or
attempt to report information though an internal reporting mechanism
unless an exception applies (49 U.S.C. 30172(c)(2)(E)) and the mandate
of 49 U.S.C. 30172(f) for NHTSA to protect any information that could
reasonably be expected to reveal the identity of a whistleblower.
    In a hypothetical situation, a whistleblower would report the issue
to the company through the internal reporting mechanism, and therefore
the whistleblower's identity may become known to the company. Even if a
company had a process to allow for anonymous reports, a company may be
able to glean a whistleblower's identity from the facts and
circumstances surrounding the whistleblower's report. If NHTSA were to
send an inquiry to the company, even in a general way, about the
information provided to it by the whistleblower, the company might be
able to discern that the whistleblower also reported the issue to
NHTSA. NHTSA would run the risk of violating section 30172(f)(1) if
such inquiry was deemed a ``disclosure'' of information that could
reasonably be expected to reveal the identity of a whistleblower. NHTSA
does not view such a scenario as a ``disclosure'' of information.
    Additionally, 49 U.S.C. 30171 put in place protections for
employees of motor vehicle manufacturers, part suppliers, and
dealerships to protect the employees from discrimination or discharge
for, among other things, providing to the employer or the Secretary
information relating to any motor vehicle defect, noncompliance, or any
violation or alleged violation of any notification or reporting
requirement of

49 U.S.C. chapter 301. Such employee may file a complaint with the
Secretary of Labor alleging such discharge or discrimination. The
Secretary of Labor is required to notify in writing the person named in
the complaint of the filing of the complaint, of the allegations
contained in the complaint, of the substance of evidence supporting the
complaint, and of the opportunities that will be afforded to such
person. 49 U.S.C. 30171(b). The regulations addressing the procedures
under this statute can be found at 29 CFR part 1988.\75\ Therefore,
under an action brought under 49 U.S.C. 30171, the company should
already be aware of the employee's identity. If that employee provided
information to NHTSA and NHTSA discussed even generally the basis of
the allegations with such company, the company may be able to discern
the potential whistleblower's identity. Again, NHTSA does not view such
a scenario as a ``disclosure'' of information.
---------------------------------------------------------------------------

    \75\ More information about the U.S. Department of Labor's
whistleblower protection program can be found at https://www.whistleblowers.gov.
---------------------------------------------------------------------------

    There may be times where, despite receiving information from a
potential whistleblower, the Agency will still need data or information
from the manufacturer, part supplier, dealership or other entity in
order to properly evaluate whether there is a motor vehicle defect,
noncompliance, or any violation or alleged violation of any
notification or reporting requirement of 49 U.S.C. chapter 301 or a
regulation thereunder, which is likely to cause unreasonable risk of
death or serious physical injury. As illustrated by the above examples,
taking a broad view of ``shall not disclose any information which could
reasonably be expected to reveal the identity of a whistleblower''
might impede NHTSA from following up on certain safety information,
unless it was able to secure written consent from the whistleblower. We
do not believe this is the intended result of the statute. The Agency
requests comments on how to effectively investigate whistleblower
allegations while abiding by the statutory requirements of 49 U.S.C.
30172(f).

F. Proposed Rule Sec.  513.6--Prerequisites to the Consideration of an
Award

    Proposed rule Sec.  513.6 summarizes the general prerequisites for
persons to be considered for the payment of an award, based on the
statutory language of 49 U.S.C. 30172(b)(1) and the definition of a
whistleblower under 49 U.S.C. 30172(a)(6), but adds the word
``potential'' in front of the terms ``motor vehicle defect'' and
``noncompliance.'' Under proposed rule Sec.  513.6(a), subject to the
eligibility requirements in these rules, NHTSA may, but is not required
to, authorize payment of an award to one or more persons who provide a
voluntary submission to the Agency that contains original information
relating to any potential motor vehicle defect, potential
noncompliance, or any violation or alleged violation of any
notification or reporting requirement of 49 U.S.C. chapter 301 or a
regulation thereunder, which is likely to cause unreasonable risk of
death or serious physical injury, and the original information in that
submission leads to the successful resolution of a covered action.
    Paragraph (b) of proposed rule Sec.  513.6 proposes that, to be
eligible, the person must have given the Agency original information in
the form and manner required by proposed rule Sec.  513.4. The proposed
rule also provides that the Agency may waive this requirement for good
cause shown. The Agency specifically requests comment on this issue,
given the potential impact on whistleblowers that may not be familiar
with NHTSA's regulations, but nevertheless could readily be identified
as a whistleblower.
    For those persons who have submitted original information prior to
the effective date of a final rule, proposed rule Sec.  513.4(d) would
allow those persons to be eligible for an award because it could deem
their submission to satisfy the requirements in proposed rule Sec.
513.4(a) and (b).
    The Agency requests comment on whether there should be any other
prerequisites to the consideration of an award.

G. Proposed Rule Sec.  513.7--Whistleblowers Ineligible for an Award

    Proposed rule Sec.  513.7 recites the categories of individuals who
are ineligible for an award. The Agency's proposal is based on
statutory construction as well as the statutory provisions contained in
49 U.S.C. 30172(c)(2) and (g).
    As reflected in proposed rule Sec.  513.7(a), the Agency proposes
to construe the statute to mean that if the amount of monetary
sanctions collected in a covered action does not exceed $1,000,000, the
whistleblower is ineligible for an award. As an example, if the
whistleblower provides original information about a violation that has
resulted in a civil penalty of $600,000, even if the maximum civil
penalty that could have been asserted exceeded $1,000,000, the
whistleblower would not be eligible for an award under the statute. We
believe this is most in line with the award provision at 49 U.S.C.
30172(b) that says the Secretary may pay an award to a whistleblower
``if the original information that a whistleblower provided to the
Secretary leads to successful resolution of a covered action.''
(emphasis added). This interpretation is also in line with the
statutory definition of ``covered action,'' which includes a reference
to ``in the aggregate results in monetary sanctions exceeding
$1,000,000'' and ``monetary sanctions,'' which is defined as ``monies,
including penalties and interest, ordered or agreed to be paid.''
    Another proposed exclusion for whistleblower award eligibility in
proposed rule Sec.  513.7 includes 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 part.
Information regarding such convictions is required in the proposed WB-
AWARD form. The Agency is also proposing to require in its WB-AWARD
form information about whether the whistleblower is currently a subject
or target of a criminal investigation in connection with the
allegations or conduct the whistleblower submitted to NHTSA. While the
Agency understands that a whistleblower may not know if there is an
investigation opened into their conduct, it would be beneficial to the
Agency to be provided with information that they are aware of. The
Agency requests comment on whether it needs to wait to issue a
whistleblower award in such situations until the investigation is
closed or criminal case otherwise adjudicated.
    The Agency also requests comment on whether it should limit the
criminal conviction bar to only those cases decided by a U.S. Federal
or State court or whether it should consider convictions issued by
courts in other countries.
    Other proposed exclusions include any whistleblower who, acting
without direction from an applicable motor vehicle manufacturer, part
supplier, or dealership, or agent thereof, deliberately causes or
substantially contributes to the alleged violation of a requirement of
49 U.S.C. chapter 301 or regulation thereunder; any whistleblower who
submits information to the Agency that is based on the facts underlying
the covered action submitted previously by another whistleblower; any
whistleblower who fails to provide the original information to the
Agency in the form required by Section 513.4, absent good cause; or any
whistleblower who knowingly and intentionally makes any false,
fictitious, or fraudulent

statement or representation, or who makes or uses any false writing or
document knowing the same to contain any false, fictitious, or
fraudulent statement or entry.
    Additionally, if the applicable motor vehicle manufacturer, parts
supplier, or dealership has an internal reporting mechanism in place to
protect employees from retaliation, proposed rule Sec.  513.7 provides
that no award shall be made to any whistleblower who fails to report or
attempt to report the information through such mechanism, unless the
whistleblower reasonably believed that such an internal report would
have resulted in retaliation, notwithstanding 49 U.S.C. 30171(a), the
whistleblower reasonably believed that the information was already
internally reported, was already subject to or part of an internal
inquiry or investigation; or was otherwise already known to the motor
vehicle manufacturer, part supplier, or dealership; or the Agency has
good cause to waive this requirement, as discussed in additional detail
above.

H. Proposed Rule Sec.  513.8--Provision of False Information

    Proposed rule Sec.  513.8 tracks the language of 49 U.S.C.
30172(g), which states that a person who knowingly and intentionally
makes any false, fictitious, or fraudulent statement or representation,
or who makes or uses any false writing or document knowing the same to
contain any false, fictitious, or fraudulent statement or entry, shall
not be entitled to an award under this section and shall be subject to
prosecution under 18 U.S.C. 1001.

I. Proposed Rule Sec.  513.9--Procedures for Making a Claim for a
Whistleblower Award

    Proposed rule Sec.  513.9 describes the steps a whistleblower is
required to follow in order to make an application for an award. The
proposed process would begin with the Agency posting a ``Notice of
Covered Action'' (Notice). The Agency proposes that it publish this
Notice on the Agency's website whenever any administrative or judicial
action, including any related administrative or judicial action,
brought by the U.S. Department of Transportation, Agency, or U.S.
Department of Justice under 49 U.S.C. chapter 301 in the aggregate
results in collected monetary sanctions exceeding $1,000,000. Such
Notice will be published subsequent to a final judgment, order, or
agreement that alone, or in the aggregate, results in collected
monetary sanctions exceeding $1,000,000.
    While the Agency typically posts consent orders or settlement
agreements over $1,000,000 to its website shortly after the agreement
has been executed, the Agency is not proposing that this be the
``Notice.'' Rather the Agency is planning on posting the Notice, titled
``Notice of Covered Action'' once an amount over $1,000,000 has been
collected. In some instances, the Agency has allowed a manufacturer to
pay civil penalties in installments over time, or may require the
payment of deferred penalties under certain circumstances. Posting the
Notice after the money is collected would ensure that there would be a
pot of money from which to pay the whistleblower claim. In the event
that a deferred civil penalty becomes due, which results in additional
collected monetary sanctions exceeding $1,000,000, the Agency plans on
posting another Notice on its website. In that case, the deferred
penalties may come due as a result of a violation related to
information provided by a whistleblower unconnected with the initial
enforcement action. Prospective claimants should monitor the Agency's
website for such Notices. In addition, the Agency will endeavor to
notify a whistleblower of a Notice applicable to information provided
by that whistleblower.
    The Agency proposes that a claimant will have ninety (90) days from
the date of the Notice of Covered Action to file a claim, including any
attachments, for an award based on that action, or the claim will be
barred. The Agency requests comment on whether this is sufficient time
and requests comment on what other time frames for submission would be
appropriate.
    The Agency proposes that the claim is deemed filed on the date that
it is received by the Agency. If the claim is not received by the
Agency on or before the ninetieth calendar day from the date the Notice
of Covered Action is posted, the claim will be barred. The Agency
requests comment on whether there should be exceptions to the proposed
bar. The Agency believes imposing a deadline to file claims is
appropriate. NHTSA requires certainty regarding the claims it needs to
evaluate in order to stay within the statutory requirements of the
award program. The program allows one or more whistleblowers to receive
an award relating to the same covered action. Since these
whistleblowers would be required to share the ``pot'' of money in
accordance with the range specified by statute, the Agency needs to
know all the potential claimants before it can make award
determinations.
    Paragraph (b) of proposed rule Sec.  513.9 describes the procedure
for making a claim for an award. Specifically, a claimant would be
required to submit a WB-AWARD form. The whistleblower must sign this
form as the claimant and submit it to the Agency by email to NHTSA's
Office of the Chief Counsel at [email protected], or by other
such means as the Agency may expressly designate on its website.
    Paragraph (b) further emphasizes that all claim forms, including
any attachments, must be received by the Agency no later than ninety
(90) calendar days from the date of the Notice of Covered Action to be
considered for an award. The Agency interprets the date of the Notice
of Covered Action to be the date that the Notice is posted on the
Agency's website, which the Agency will identify in the Notice, along
with the submission deadline.
    Paragraph (c) includes award application procedures for a claimant
who submitted original information anonymously. Claimants who had
previously submitted information anonymously, but who are now making a
claim for a whistleblower award, are required to disclose their
identities on the WB-AWARD form. The claimant's identity must be
verified in a form and manner that is acceptable to the Agency prior to
the payment of any award to such claimant. One reason for not
permitting anonymous claimants is that requiring identification would
help the Agency ensure that the claimant meets the award eligibility
requirements.
    Nothing in this proposal is intended to prevent claimants from
making a claim for a whistleblower award prior to the effective date of
any final rule on this section. Therefore, the Agency has proposed rule
Sec.  513.9(d) to provide that if a claimant filed a claim for a
whistleblower award after December 4, 2015 (the date of the enactment
of the FAST Act) but before the effective date of these rules, the
claim submission will be deemed to meet the requirements of Sec.
513.9. However, the Agency will only post a Notice of Covered Action
for covered actions that arise after the effective date of the rule.
    The Agency also examined whether foreign nationals could be
eligible for a whistleblower award. It is the Agency's view that 49
U.S.C. 30172 is not unlawfully extraterritorial and that it is
authorized to provide whistleblower awards and protection of identity
for foreign national whistleblowers.
    In the Agency's view, the purpose underlying the statutory award
program is to incentivize employees and contractors of motor vehicle

manufacturers, parts suppliers and dealerships to provide information
about defects, noncompliances and motor vehicle safety reporting
violations to improve automobile safety and to protect the
confidentiality of the whistleblowers, when appropriate. This is
evident through the text and plain meaning of the statute. The
automotive industry is a global industry, and we believe that the
intent of the Whistleblower Act is to help prevent deaths and serious
bodily injury on U.S. roadways as a result of defects, noncompliances
or violations of notification or reporting requirement of 49 U.S.C.
chapter 301 regardless of whether the whistleblower is a U.S. citizen,
legal permanent resident or foreign national.
    Furthermore, the legislative history indicates that the statute
was, at least in part, modeled after the SEC whistleblower award
statute.\76\ The Agency notes that in 2014, the SEC awarded a
whistleblower payment to a foreign resident, and described why the
foreign resident was eligible for an award ``notwithstanding the
existence of certain extraterritorial aspects of Claimant's
application.'' \77\ The SEC stated that in its view, ``there is a
sufficient U.S. territorial nexus whenever a claimant's information
leads to the successful enforcement of a covered action brought in the
United States, concerning violations of the U.S. securities laws, by
the Commission, the U.S. regulatory agency with enforcement authority
for such violations.'' \78\
---------------------------------------------------------------------------

    \76\ Commerce Committee Approves Bipartisan Motor Vehicle Safety
Whistleblower Act, Feb. 26, 2015, available at http://www.thune.senate.gov/public/index.cfm/2015/2/commerce-committee-approves-bipartisan-motor-vehicle-safety-whistleblower-act?
    \77\ Order Determining Whistleblower Award Claim, Whistleblower
Award Proceeding, File No 2014-10, available at https://www.sec.gov/rules/other/2014/34-73174.pdf.
    \78\ Id.
---------------------------------------------------------------------------

    The SEC has discussed the global scope of its whistleblower
program.\79\ The Commission has continued to make awards to foreign
nationals, including to those whistleblowers living or residing outside
of the United States.\80\ The Agency also notes that the CFTC has
granted awards to whistleblowers located outside the United States.\81\
---------------------------------------------------------------------------

    \79\ U.S. Securities and Exchange Commission, 2021 Annual Report
to Congress, p. 31 available at https://www.sec.gov/files/2021_OW_AR_508.pdf (``In FY 2021 alone, the Commission received
whistleblower submissions from individuals in 99 foreign
countries.'').
    \80\ U.S. Securities and Exchange Commission, 2015 Annual Report
to Congress on the Dodd-Frank Whistleblower Program, p. 12,
available at https://www.sec.gov/files/owb-annual-report-2015.pdf.
See also U.S. Securities and Exchange Commission, 2020 Annual Report
to Congress, p. 25, available at https://www.sec.gov/files/2020%20Annual%20Report_0.pdf (stating ``Past whistleblower award
recipients hail from several different parts of the United States,
and 19 recipients were foreign nationals or residents of foreign
countries at the time they submitted their tips to the
Commission.'').
    \81\ Commodity Futures Trading Commission, Whistleblower Program
and Customer Education Initiatives, 2020 Annual Report, p. 2 (Oct.
2020), available at https://whistleblower.gov/sites/whistleblower/files/2020-11/FY20%20Report%20to%20Congress.pdf. See also CFTC
Announces First Whistleblower Award to a Foreign Whistleblower, July
16, 2018, available at https://www.cftc.gov/PressRoom/PressReleases/7755-18.
---------------------------------------------------------------------------

    It appears that in the experience of the SEC, information from
individuals outside the United States could be a rich source. The SEC
stated, ``Since the beginning of the whistleblower program, the
Commission has received whistleblower tips from individuals in
approximately 130 countries outside the United States.'' The Agency
anticipates receiving submissions from foreign nationals and that such
submissions may be valuable to protecting automobile safety of the
American motoring public, given the global nature of the automotive
industry. In fact, NHTSA has recognized the importance of information
provided by whistleblowers from non-U.S. companies by granting a
whistleblower award to an employee of a motor vehicle manufacturer in a
foreign country.\82\
---------------------------------------------------------------------------

    \82\ https://www.nhtsa.gov/sites/nhtsa.gov/files/2022-02/whistleblower-decision-letter-RQ17-003-Kia-RQ17-004-Hyundai_web.pdf.
---------------------------------------------------------------------------

    With respect to the global nature of the automotive industry, in
calendar year (CY) 2019, there were approximately 7.8 million motor
vehicle equipment items and motor vehicles declared in the Customs and
Border Patrol (CBP) Automated Commercial Environment (ACE) database.
ACE ``is the system through which the trade community reports imports
and exports and the government determines admissibility.'' \83\
Furthermore, Congress was well aware of the many foreign manufacturers
and suppliers that provide motor vehicles and items of motor vehicle
equipment for the U.S. market. In fact, the situation with exploding
Takata air bags, which were manufactured by a Japanese supplier, was a
major motivation for Section 30172.\84\
---------------------------------------------------------------------------

    \83\ https://www.cbp.gov/trade/automated.
    \84\ See, e.g., 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.
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J. Proposed Rule Sec.  513.10--Award Determinations

    Proposed rule Sec.  513.10 describes the award determination
process. Under the proposed process described in proposed rule Sec.
513.10(a), once the time for filing any appeals of the covered action
(and all related actions) has expired, or where an appeal has been
filed, after all appeals in the covered action and related actions have
concluded, and over $1,000,000 in monetary sanctions have been
collected, the Agency will evaluate all timely whistleblower award
claims submitted on a WB-AWARD form in accordance with the criteria set
forth in this part. In connection with this process, the Agency may
require the claimant to provide additional information relating to the
claimant's eligibility for an award or satisfaction of any of the
conditions for an award, as set forth in part 513.
    Proposed rule Sec.  513.10(b) implements 49 U.S.C. 30172(c), as
delegated to the NHTSA Administrator.\85\ It provides that the
determination of whether, to whom, or in what amount to make an award
shall be in the discretion of the Administrator. We request comment
regarding whether the Agency should limit its discretion and, if so, in
what way.
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    \85\ 49 CFR 1.95(a).
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    We understand the question of the Agency's discretion to be of high
interest to stakeholders. While we are cognizant that the Agency's
ability to exercise discretion to not grant an award to an otherwise
eligible whistleblower could deter some potential whistleblowers, we
tentatively believe that retaining this discretion could be important
in rare and unusual circumstances. For example, it could be contrary to
the public interest for NHTSA to issue a whistleblower award to an
employee of a company that blows the whistle on violations of law by a
competitor company if that employee is engaged in similar violations of
law at his or her own employer. In that case, the disqualifier in 49
U.S.C. 30172(c)(2)(B) would not directly apply (as the ``alleged
violation of a requirement of this chapter'' concerns the competitor).
Likewise, it could be contrary to the public interest for NHTSA to
award money to a whistleblower that commits a crime involving the
Federal government (for example, threatening to assassinate the
President), though that is not a disqualifying crime under 49 U.S.C.
30172(c)(2)(A) (since it is not ``related to the covered action''). We
emphasize that we would not expect to utilize the

discretion to not grant an award; however, we tentatively believe that
the Agency should retain that authority afforded by Congress. We also
note that the Agency's exercise of discretion would not be unbounded
and would still be subject to judicial review.
    The Agency anticipates that the determination of how much to award,
pursuant to proposed rule Sec.  513.10, will involve a highly
individualized review of the circumstances regarding each claim. The
Agency preliminarily believes that the criteria below afford the
Administrator broad discretion to weigh a multitude of considerations
in making the determination. Depending on the facts and circumstances
of each case, some considerations may not be applicable or may deserve
greater weight than others.
    Under proposed rule Sec.  513.10(b), in determining whether to
grant an award to a whistleblower and the amount of an award, the
Administrator shall take into consideration, as appropriate: whether a
whistleblower reported or attempted to report the information
internally to an applicable motor vehicle manufacturer, part supplier,
or dealership; the significance of the original information provided by
the whistleblower to the successful resolution of the covered action;
the degree of assistance provided by the whistleblower and any legal
representative of the whistleblower in the covered action; \86\ the
statutory purpose of incentivizing whistleblowers; and the public
interest or such additional factors as the Administrator considers
relevant.
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    \86\ The degree of assistance provided by the whistleblower and
any legal representative of the whistleblower may include, but is
not limited to, providing explanations and other assistance in order
that the staff may evaluate and use the information the potential
whistleblower submitted and providing an English translation or
explanation of the documents, if the original information is not in
English, to the extent of the whistleblower's capability.
---------------------------------------------------------------------------

    Proposed rule Sec.  513.10(c) implements 49 U.S.C. 30172(b)(1). It
provides that if the Administrator determines that an award is
warranted, the Administrator shall determine the amount of such award
or awards to one or more whistleblowers. Whistleblower awards shall be
in an aggregate amount equal to--(1) not less than 10 percent, in
total, of monetary sanctions collected in the covered action; and (2)
not more than 30 percent, in total, of monetary sanctions collected in
the covered action.
    As an example, if the Agency has collected $100 million in civil
penalties in a covered action, and the Administrator decides that a
whistleblower award is warranted, the total award money that can be
paid out to whistleblowers with respect to that covered action will
have a range of $10 million (10 percent of $100 million) to $30 million
(30 percent of $100 million). If there are two or more whistleblowers
that the Administrator has decided should receive an award in
connection with that covered action, the total range does not change.
The amount awarded to each whistleblower with respect to a covered
action will be decided by the Administrator. In the case where there
are two or more claimants for an award in connection with a specific
covered action, the Agency anticipates that the Administrator will
issue a decision on each claim on or around the same date.
    As set forth in proposed rule Sec.  513.10(d), following the
Administrator's determination, the Agency would send each claimant an
Order setting forth whether the claim is allowed or denied, and if
allowed, setting forth the award amount. The proposal provides that in
no event will the total amount awarded to all whistleblowers in the
aggregate be less than 10 percent or greater than 30 percent of the
amount of monetary sanctions collected in the covered action.
    Other Agencies, such as the SEC \87\ and the CFTC,\88\ post
redacted Final Orders with respect to whistleblower award applications.
NHTSA also has done so and plans to continue doing so.\89\ We request
comment on the extent of the redactions to appropriately balance the
interests in whistleblower confidentiality and transparency.\90\
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    \87\ See Final Orders of the Commission, available at https://www.sec.gov/whistleblower/final-orders-of-the-commission.
    \88\ See Final Orders/Award Determinations, available at https://www.whistleblower.gov/orders/.
    \89\ See Whistleblower Award Decisions, available at https://www.nhtsa.gov/laws-regulations/whistleblower-program.
    \90\ NHTSA notes that other award decisions, such as those of
the SEC are largely redacted. NHTSA has reviewed differences between
the SEC's and NHTSA's statutory provisions regarding
confidentiality. NHTSA's statute, 49 U.S.C. 30172(f)(1)(B) provides
that the whistleblower can provide prior written consent for
information to be disclosed. Even in cases where there is a prior
written waiver, NHTSA anticipates redacting the whistleblower's name
consistent with the purpose of 49 U.S.C. 30172(f)(2).
---------------------------------------------------------------------------

    Finally, proposed rule Sec.  513.10(e) follows 49 U.S.C. 30172(e),
except that it replaces Secretary with Agency. It provides that no
contract with the Agency is necessary for a whistleblower to receive an
award.
    In making a determination of a whistleblower award, the Agency
anticipates reviewing relevant material. This could include the
claimant's WB-INFO form, including any attachments and other related
material provided by the potential whistleblower to assist the Agency
in its investigation or action; the claimant's WB-AWARD form, including
any other filings or submissions from the potential whistleblower in
support of the award application; materials from Agency staff,
including sworn declarations, regarding any matters relevant to the
award determination; any other documents or materials that are received
or obtained by the Agency to assist the Agency to resolve the
claimant's award application, including information related to the
claimant's eligibility; and any other materials that may be relevant to
the determination.
    The Agency may request that a claimant enter into a confidentiality
agreement to review the record. To be clear, the Agency does not intend
to provide claimants or their counsel any privileged materials or other
material that may not be disclosed by law, such as pre-decisional,
attorney-client privilege, attorney work product privilege, or internal
deliberative process materials related to the Agency's determination to
file or settle the covered action, and/or any other privileged material
relating to whether, to whom, and in what amount to make a
whistleblower award.
    The Agency requests comment on whether it should review information
from outside persons, such as the company that was liable for the civil
penalties. It is the Agency's tentative view that outside parties
should not be able to insert themselves into the award process. In
accordance with the confidentiality provisions in the statute, NHTSA
does not comment on individual whistleblower matters. Furthermore, to
the extent there was a whistleblower in a particular matter, the
outside party would not know the degree of assistance that a
whistleblower provided. Additionally, if the Agency considers
confidential submissions from outside parties, the Agency may be
prohibited from sharing the information with the claimant, which seems
to undercut fairness if the claimant does not have an opportunity to
review and comment on the information provided. Furthermore, the Agency
believes the intent of the statute was to incentivize potential
whistleblowers to come forward with their information. If the company,
or another third party, was allowed to interject in the award
proceedings, that may undermine a whistleblower's willingness to come
forward or pursue a claim.

K. Proposed Rule Sec.  513.11--Appeals of Award Determinations

    49 U.S.C. 30172(h)(2) provides appellate rights for any
determination made by the Secretary under section 30172 in the
appropriate court of appeals of the United States not later than 30
days after the determination is issued by the Secretary. This provision
allows a claimant to appeal the Administrator's award eligibility
determinations, including the award amount (if any), which are
contained in the Agency's Order.
    Proposed rule Sec.  513.11(a) follows the statutory language by
stating that a claimant may appeal any determination made by the
Administrator under Sec.  513.10 to an appropriate court of appeals of
the United States not later than 30 days after the Order is issued by
the Administrator. Proposed rule Sec.  513.11(a)(1) provides that if no
claimant files an appeal within 30 days after the Order is issued by
the Administrator, no appeals are permitted with respect to the claim
that is the subject of the Order. In the case where there are two or
more claimants for an award in connection with a specific covered
action, the Agency anticipates that the Administrator will issue his or
her decision on each claim at or near the same time, to prevent
unnecessary complications.
    Proposed rule Sec.  513.11(a)(2) provides that if any claimant
appeals within 30 days after the Order is issued by the Administrator,
no payments with respect to the covered action will be made to any
whistleblower in the action until the appealed award determination
action is concluded. This measure is appropriate because the Agency is
constrained by the statute as to what percentage of the collected
monetary sanctions in a covered action it may award to all
whistleblowers. For example, if the applicable United States court of
appeals finds that the Agency improperly denied a whistleblower an
award, this whistleblower's share in the ``pot'' of money may affect
the amount of money that could be awarded to other whistleblowers who
are sharing in that same ``pot.'' Similarly, if the Court of Appeals
finds that one whistleblower's share of the ``pot'' should be
increased, that decision has the potential to affect another
whistleblower's share of the same ``pot.'' However, the Agency is also
aware that this could deter a whistleblower from exercising legal
rights afforded by statute. We request comment on this issue.
    The Agency believes that if there is more than one claimant for a
covered action, an appeal of an award determination by one may make any
other claimant a necessary party to that appeal as, depending on how
the appeals court rules, other claimants may have their award amount
reduced. However, the Agency is charged with protecting that claimant's
identity. The Agency requests comment on how best to resolve this
potential issue and other potential issues involving two or more
claimants.
    Proposed rule Sec.  513.11(b) explicitly provides that these rules
do not entitle claimants to obtain from the Agency any privileged
materials such as pre-decisional, attorney-client privilege, attorney
work product privilege, or internal deliberative process materials
related to the Administrator's Order, and/or any privileged material
relating to whether, to whom, and in what amount, to make a
whistleblower award.
    Proposed rule Sec.  513.11(c) makes it clear that the record may
contain redactions as necessary, including but not limited to
redactions necessary to comply with statutory restrictions, the
Agency's enforcement and regulatory functions or regulations, and to
comply with requests for confidential treatment from law enforcement,
regulatory authorities, or persons submitting information to the Agency
pursuant to 49 CFR part 512.
    Finally, as specified in 49 U.S.C. 30172(h)(3), proposed rule Sec.
513.11(d) provides that the court shall review the determination made
by the Administrator in accordance with the Administrative Procedure
Act, 5 U.S.C. 706.

L. Proposed Rule Sec.  513.12--Procedures Applicable to the Payment of
Awards

    Proposed rule Sec.  513.12 details procedures applicable to the
payment of awards. Proposed rule Sec.  513.12(a) makes it clear that a
recipient of a whistleblower award is entitled to payment on the award
only to the extent that a monetary sanction upon which the award is
based is collected in the covered action. The Agency's interpretation
is consistent with 49 U.S.C. 30172(b)(1), which refers to paying awards
in a range of ten percent to thirty percent of ``collected monetary
sanctions'' and 30172(b)(2), which states that any amount payable under
30172(b)(1) ``shall be paid from the monetary sanctions collected, and
any monetary sanctions so collected shall be available for such
payment.''
    As discussed above, in prior consent orders, the Agency has allowed
for deferred penalties and monetary amounts to be expended in
connection with compliance and outreach by the company (i.e.,
compliance amounts or performance amounts). Under the proposed rule,
these compliance amounts would generally not be counted toward monetary
sanctions, unless there was an actual payment to the United States
under the terms of the consent order or other agreement. The Agency is
also of the view that any ``deferred'' or abeyance amounts should not
be counted toward monetary sanctions unless and until they are actually
paid and collected.
    Proposed rule Sec.  513.12(b) addresses the timing for payment of
an award made to a whistleblower. It states that payment of a
whistleblower award for a monetary sanction collected in connection
with a covered action shall be made within a reasonable time following
the later of the date on which the monetary sanction totaling over
$1,000,000 is collected or after completion of the appeals process for
all award determinations claims arising from the Administrator's Order
relating to the covered action. The Agency requests comment on whether
a different time frame for payment is appropriate.
    In some instances, the Agency has allowed a manufacturer to pay
civil penalties in installments. The Agency is specifically requesting
comment on whether the Agency should or must wait until all monetary
sanctions are collected, or whether it should provide whistleblowers
portions of the award, as the monetary sanctions are collected. For
example, if a company agrees to pay a civil penalty of $3,000,000 in
two annual installments of $1,500,000, a whistleblower who was awarded
10% of the recovery may receive a payment of $150,000 in the first
year, and another payment of $150,000 in the second year.
Alternatively, the Agency could wait until the entire $3,000,000 is
collected before making the $300,000 award payment to the
whistleblower.
    It is the Agency's tentative view that it need not wait until all
monetary sanctions are collected to authorize a payment to a
whistleblower, but that it must wait until over $1,000,000 is collected
in connection with a covered action before the Agency authorizes any
disbursement of awards. The Agency believes that this proposal would
balance the Agency's need for efficiency and manageability while
providing the whistleblower awardees their award dollars in an
expedient manner.
    With respect to civil penalties that may become due as a result of
collection of deferred penalties or abeyance amounts, the Agency has
tentatively concluded that those actions should be treated as new
Covered Actions. This means that a whistleblower must follow

these regulations to request an award, and that any award will only be
authorized for disbursement after the amount collected under the
deferred amount or abeyance amount exceeds one million dollars
($1,000,000).
    With respect to the provision relating to completion of the appeals
process for all award determination claims arising from the
Administrator's Order relating to the covered action, it is intended to
address those situations where a single action results in multiple
award claims. Under this scenario, if one or more claimants appeals any
award determination, including whether an award claim was denied or the
amount of the award determination, the Agency would not pay any awards
in the action until those appeals have been concluded, because
disposition of the appeal could affect other awards in connection with
that action. With respect to making payments to whistleblowers, the
Agency will follow all applicable Federal laws and regulations.

M. Proposed Appendix A--Form WB-INFO

    The Agency proposes to include form WB-INFO in appendix A to part
513. The use of a standardized form will be an efficient way for the
Agency to review the whistleblower information it receives and will
better allow the Agency to manage and track such information. The
Agency requests comment on whether the form WB-INFO should be
prescribed by regulation, whether it would be better to specify the
content of the form (and not the form itself), or whether the Agency
should take a different approach.
    The proposed form WB-INFO and the instructions thereto are designed
to capture basic information about a potential whistleblower, the
potential whistleblower's legal representative (if applicable), the
motor vehicle manufacturer, part supplier or dealership about whom the
concern is raised, and the individual's current employer and address,
and the potential whistleblower's relationship to the company about
whom the concern is raised.
    It is designed to elicit sufficient information to determine
whether the information is original information and whether the
information has been previously provided to NHTSA. It is also designed
to elicit whether the information may relate to any potential defect,
potential noncompliance, or any violation or alleged violation of any
notification or reporting requirement of chapter 301 or a regulation
thereunder, and if so, asks the potential whistleblower to provide
detailed descriptions related to the allegations and supporting
materials. The form is also designed to elicit whether the information
was obtained in a means or manner that was determined by a United
States Federal court or State court to violate applicable Federal or
State criminal law and whether the information was obtained through a
communication that was subject to the attorney-client privilege or work
product doctrine.
    The WB-INFO form also contains a declaration made under the penalty
of perjury, as well as a legal representative certification (if
applicable). The purpose of these sections is to help deter the
submission of false or misleading information, and the resulting
inefficient use of the Agency's resources. The requirement would also
mitigate the potential harm to motor vehicle manufacturers, part
suppliers, and dealerships resulting from false or misleading
information.
    Specifically, the proposed form WB-INFO would require the potential
whistleblower to declare under penalty of perjury under the laws of the
United States that the information contained in the WB-INFO form is
true and correct to the best of the potential whistleblower's
knowledge, information and belief. Moreover, the statement would
acknowledge the potential whistleblower's understanding that he or she
may be subject to prosecution and ineligible for an award if, in the
potential whistleblower's submission of information, other dealings
with NHTSA, or dealings with another authority in connection with a
related action, the potential whistleblower knowingly and willfully
makes any false, fictitious, or fraudulent statements or
representations, or uses any false writing or document knowing that the
writing or document contains any false, fictitious, or fraudulent
statement or entry. Finally, if the potential whistleblower wanted to
submit the WB-INFO form anonymously and is represented by a legal
representative, the WB-INFO form contains a section for the potential
whistleblower's legal representative's certification that he or she has
reviewed the form for accuracy and that the information contained in
the WB-INFO form is true and correct to the best of the legal
representative's knowledge, information and belief. The legal
representative also certifies that he or she has verified the identity
of the potential whistleblower on whose behalf the form is being
submitted by viewing the potential whistleblower's valid, unexpired
government issued identification and will retain an original signed
copy of the form, with Section F signed by the potential whistleblower.
Finally, the legal representative certifies that he or she has obtained
the potential whistleblower's non-waivable consent to provide NHTSA
with his or her original signed WB-INFO form in the event that NHTSA
requests it.

N. Proposed Appendix B--Form WB-RELEASE

    The Agency is proposing form WB-RELEASE in appendix B for those
whistleblowers who wish to provide prior written consent for the Agency
to disclose information that could reasonably be expected to reveal the
whistleblower's identity. The Agency requests comment on whether the
form WB-RELEASE should be prescribed by regulation, whether it would be
better to specify the content of the form (and not the form itself), or
whether the Agency should take a different approach.
    Due to the way NHTSA investigates, in the course of an inquiry or
analysis surrounding a whistleblower's allegations, it may become
necessary for NHTSA to reveal information that reasonably could be
expected to reveal the whistleblower's identity to persons or their
counsel or agents at the organization or institution against whom such
allegations are made or other entities in order to gather needed
information on the alleged safety issue or misconduct that the
whistleblower has brought to NHTSA's attention. The WB-RELEASE form
provides whistleblowers a way to provide such consent. Consent is
voluntary. The Agency may request that a whistleblower provide such
consent, as such consent may facilitate NHTSA's review of the claim.

O. Proposed Appendix C--Form WB-AWARD

    The Agency proposes to include form WB-AWARD in appendix C to part
513. Use of a standardized form will be an efficient way for the Agency
to review whistleblower award claims. The Agency requests comment on
whether the form WB-AWARD should be prescribed by regulation, whether
it would be better to specify the content of the form (and not the form
itself), or whether the Agency should take a different approach.
    Proposed form WB-AWARD, and the instructions thereto, would request
basic information about a claimant and his or her legal representative
(if applicable). The form would also request information on the issue/
information submitted by the claimant, information regarding the Notice
of Covered Action, information on how the

claimant acquired the original information, as well as other
information relevant to the claimant's eligibility for an award.
    The WB-AWARD form also provides an opportunity for the claimant to
explain why they should receive an award, and any other information
that may be relevant in light of the criteria for determining the
amount of an award.
    The WB-AWARD form also would require the claimant to declare under
the penalty of perjury under the laws of the United States that the
information contained in the WB-AWARD form is true and correct to the
best of the claimant's knowledge, information and belief. Moreover, the
statement would acknowledge the claimant's understanding that he or she
may be subject to prosecution and ineligible for an award if, in the
claimant's submission of information, other dealings with NHTSA, or
dealings with another authority in connection with a related action,
the claimant knowingly and willfully makes any false, fictitious, or
fraudulent statements or representations, or uses any false writing or
document knowing that the writing or document contains any false,
fictitious or fraudulent statement or entry.

III. Public Participation

    This section describes how you can participate in the commenting
process.

(1) How do I prepare and submit comments?

    Your comments must be written. To ensure that your comments are
correctly filed in the docket, please include the docket number NHTSA-
2022-0098 in your comments. If you are submitting comments
electronically as a PDF (Adobe) file, we ask that the documents
submitted be scanned using the Optical Character Recognition (OCR)
process, thus allowing NHTSA to search and copy certain portions of
your submissions. Please note that pursuant to the Data Quality Act, in
order for the substantive data to be relied upon and used by NHTSA, it
must meet the information quality standards set forth in the Office of
Management and Budget (OMB) and Department of Transportation (DOT) Data
Quality Act guidelines. Accordingly, we encourage you to consult the
guidelines in preparing your comments. OMB's guidelines may be accessed
at https://www.whitehouse.gov/omb/information-regulatory-affairs/information-policy/. DOT's guidelines may be accessed at https://www.transportation.gov/dotinformation-dissemination-quality-guidelines.

(2) Tips for Preparing Your Comments

    When submitting comments, please remember to:
     Identify the rulemaking by docket number and other
identifying information (subject heading, Federal Register date and
page number).
     Explain why you agree or disagree, suggest alternatives,
and substitute language for your requested changes.
     Describe any assumptions and provide any technical
information and/or data that you used.
     If you estimate potential costs or burdens, explain how
you arrived at your estimate in sufficient detail to allow for it to be
reproduced.
     Provide specific examples to illustrate your concerns, and
suggest alternatives.
     Explain your views as clearly as possible, avoiding the
use of profanity or personal threats.
     Make sure to submit your comments by the comment period
deadline identified in the DATES section above.

(3) How can I be sure that my comments were received?

    If you submit your comments by mail and wish Docket Management to
notify you upon its receipt of your comments, enclose a self-addressed,
stamped postcard in the envelope containing your comments. Upon
receiving your comments, Docket Management will return the postcard by
mail. If you submit information through email under a claim of
confidentiality, as discussed below, you may request a delivery
receipt.

(4) How do I submit 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.\91\ 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.
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    \91\ See 49 CFR part 512.
---------------------------------------------------------------------------

    NHTSA is currently treating electronic submission as an acceptable
method for submitting CBI to NHTSA under 49 CFR part 512. Any CBI
submissions sent via email should be sent to an attorney in the Office
of the Chief Counsel at the address given above 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. 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.

(5) Will the Agency consider late comments?

    We will consider all comments that Docket Management receives
before the close of business on the comment closing date indicated
above under DATES. To the extent possible, we will also consider
comments that Docket Management receives after that date. If Docket
Management receives a comment too late for us to consider in developing
a final rule, we will consider that comment as an informal suggestion
for future rulemaking action.

(6) How can I read the comments submitted by other people?

    You may read the materials placed in the docket for this document
(e.g., the comments submitted in response to this document by other
interested persons) at any time by going to https://www.regulations.gov. Follow the online instructions for accessing the
dockets. You may also read the comments received by Docket Management
at the address given above under ADDRESSES. The hours of the Docket are
indicated above in the same location.
    Please note that, even after the comment closing date, we will
continue to file relevant information in the Docket as it becomes
available. Further, some people may submit late comments. Accordingly,
we recommend that you periodically check the Docket for new material.

IV. Regulatory Analyses and Notices

Privacy Act Statement

    Anyone is able to search the electronic form of all comments
received into any of our dockets by the name of the individual
submitting the comment (or signing the comment, if submitted on behalf
of an association, business, labor union, etc.). You may review DOT's
complete Privacy Act Statement in the Federal Register published on
April 11, 2000 (65 FR 19477-78).

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

    NHTSA has considered the impact of this rulemaking action under
Executive Order 12866, Executive Order 13563, and the Department of
Transportation's regulatory policies and procedures. This rulemaking
document was not reviewed under Executive Order 12866 or Executive
Order 13563.
    This action would add part 513 to implement the whistleblower
program. It has been determined that this rulemaking is not a
significant regulatory action as defined in Executive Order 12866, as
supplemented by Executive Order 13563. Therefore, a regulatory
assessment is not required.

Regulatory Flexibility Act

    Section 603(a) of the Regulatory Flexibility Act \92\ requires the
Agency to undertake an initial regulatory flexibility analysis of the
proposed rule on small entities, unless the Agency certifies that the
rule, if adopted, would not have a significant economic impact on a
substantial number of small entities.\93\
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    \92\ 5 U.S.C. 601 et seq.
    \93\ 5 U.S.C. 605(b).
---------------------------------------------------------------------------

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

National Environmental Policy Act

    NHTSA has analyzed this proposed rule for the purposes of the
National Environmental Policy Act and determined that it will not have
any significant impact on the quality of the human environment.

Executive Order 13132 (Federalism)

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

Unfunded Mandates Reform Act

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

Executive Order 12988 (Civil Justice Reform)

    With respect to the review of the promulgation of a new regulation,
section 3(b) of Executive Order 12988, ``Civil Justice Reform'' (61 FR
4729, February 7, 1996), requires that Executive agencies make every
reasonable effort to ensure that the regulation: (1) clearly specifies
the preemptive effect, if any; (2) clearly specifies any effect on
existing Federal law or regulation; (3) provides a clear legal standard
for affected conduct while promoting simplification and burden
reduction; (4) specifies the retroactive effect, if any; (5) adequately
defines key terms; and (6) addresses other important issues affecting
clarity and general draftsmanship under any guidelines issued by the
Attorney General.
    Pursuant to this Order, NHTSA notes as follows: This proposed rule
would implement the whistleblower program, including outlining the
procedures for submitting original information, applying for awards,
the Agency's procedures for making decisions on the claims, appeals of
such decisions, and payment of the award. It discusses communications
with individuals reporting safety information and protections afforded
related to the whistleblowers' identity. The statute was effective upon
enactment.
    The rule would not have retroactive effect. Under the rule of
construction contained in section 24352(b) of the FAST Act, information
submitted by a whistleblower in accordance with the requirements at 49
U.S.C. 30172 does not lose its status as original information solely
because the whistleblower submitted the information prior to the
effective date of these regulations if that information was submitted
after the date of enactment of the FAST Act. Thus, information
submitted prior to the enactment of the FAST Act would not qualify as
original information, and therefore cannot form the basis of an award.

Paperwork Reduction Act

    Under the procedures established by the Paperwork Reduction Act of
1995 (PRA) (44 U.S.C. 3501, et seq.), Federal agencies must obtain
approval from the Office of Management and Budget (OMB) for each
collection of information they conduct, sponsor, or require through
regulations. A person is not required to respond to a collection of
information by a Federal agency unless the collection displays a valid
OMB control number. The Information Collection Request (ICR) for a
proposed new information collection described below has been forwarded
to OMB for review and comment. In compliance with these requirements,
NHTSA asks for public comments on the following proposed collection of
information for which the agency is seeking approval from OMB.
    The titles for the collection of information are forms: (1) WB-
INFO, (2) WB-RELEASE, and (3) WB-AWARD. Under proposed rules Sec. Sec.
513.4 and 513.9, these proposed forms would be necessary to implement
section 30172 of the Safety Act.
    The WB-INFO form allows a whistleblower to provide information to
the Agency and its staff relating to general information about the
whistleblower, information about the motor vehicle manufacturer, part
supplier, or dealership about whom the concern is raised, the type and
source of information being reported, the individual's legal
representative (if applicable), the information about any

potential motor vehicle defect, potential noncompliance, or violation
or alleged violation of any notification or reporting requirement of
chapter 301 or regulation thereunder, which is likely to cause
unreasonable risk of death or serious physical injury, and additional
information.
    Form WB-RELEASE provides a means for a whistleblower to provide
prior written consent for the Agency to disclose information which
could reasonably be expected to reveal the whistleblower's identity.
    The WB-AWARD form allows the claimant to provide information
related to the claimant's eligibility for an award.
    In compliance with the PRA, we announce that NHTSA is seeking
comment on a new collection.
    Agency: National Highway Traffic Safety Administration (NHTSA).
    Title: 49 CFR part 513, Whistleblower Program.
    OMB Control Number: New.
    Form Number(s): WB-INFO, WB-RELEASE, and WB-AWARD.
    Type of Request: Approval of a new collection.
    Type of Review Requested: Regular.
    Requested Expiration Date of Approval: Three years from the date of
approval.
    Summary of the Collection of Information:
    Proposed form WB-INFO, which would be submitted pursuant to
proposed rule Sec.  513.4 would request the following information:
    (1) Background information regarding the person submitting the
form, including the person's name, contact information and occupation
and the person's relationship to the company about whom the concern is
raised;
    (2) Information about the motor vehicle manufacturer, part supplier
or dealership about whom the concern is raised;
    (3) If the person is represented by a legal representative, the
name and contact information for the person's legal representative (in
cases of anonymous submissions the person must be represented by a
legal representative);
    (4) Information regarding the issue involving a motor vehicle
manufacturer, part supplier, or dealership, including the date of the
alleged issue, whether the conduct is on-going, and whether the person
or their counsel had any prior communication with NHTSA;
    (5) Whether the allegation is related to a potential safety-related
defect or noncompliance with an applicable FMVSS, and if so a detailed
description of the allegation and how the allegation affects vehicle/
system/component performance and/or compliance, and the make, model,
model year, part number, component number, etc. if known;
    (6) Whether the allegation is related to any violation or alleged
violation of any notification or reporting requirement of the Safety
Act, and if so, a description of the notification or reporting issue,
including all facts pertinent to the alleged violation;
    (7) A description of supporting materials in the whistleblower's
possession and the availability and location of other additional
supporting materials;
    (8) A description of how the person learned about or obtained the
information submitted, and, if any information was obtained from a
public source, a description of that source;
    (9) Identification of documents or other information in the
submission that the person believes could reasonably be expected to
reveal the person's identity and the basis for that belief;
    (10) Whether the person or his or her legal representative has
taken any other action regarding the issue, and if so, a description;
    (11) Whether the person acquired the information through a means or
manner that has been determined by a United States Federal court or a
State court to violate applicable Federal or State criminal law, and if
so, details regarding that determination;
    (12) Whether the person acquired the information that he or she is
submitting to NHTSA solely through a communication that was subject to
a privilege, such as the attorney-client privilege or attorney work
product doctrine;
    (13) Any other relevant information;
    (14) A declaration, signed under penalty of perjury under the laws
of the United States that the information provided to NHTSA is true and
correct to the best of the person's knowledge, information and belief
and acknowledgement from the person that they may be subject to
prosecution and ineligible for a whistleblower award if, in their
submission of information, their other dealings with the National
Highway Traffic Safety Administration, or their dealings with another
authority in connection with a related action, they knowingly and
willfully make any false, fictitious or fraudulent statements or
representations, or use any false writing or document knowing that the
writing or document contains any false, fictitious or fraudulent
statement or entry; and
    (15) If represented by a legal representative, the legal
representative's certification certifying that the legal representative
has verified the identity of the individual who completed form WB-INFO
by viewing that individual's valid, unexpired government issued
identification, reviewed the individual's WB-INFO form for accuracy,
and that the information contained therein is true and correct to the
best of the legal representative's knowledge, information and belief;
the legal representative will retain an original, signed copy of the
form with section F filled out by their client in their file; and that
the legal representative has obtained the whistleblower's non-waivable
consent to provide the National Highway Traffic Safety Administration
with the whistleblower's original signed WB-INFO form in the event that
NHTSA requests it.
    Proposed form WB-RELEASE would request the following information:
    (1) Background information regarding the whistleblower submitting
the WB-RELEASE form, including the person's name and address;
    (2) The name of the motor vehicle manufacturer, part supplier and/
or dealership to which the whistleblower's issue or information
relates;
    (3) An acknowledgment that the person consents to disclosure of
information that could reasonably be expected to reveal the person's
identity; and
    (4) Signature of the whistleblower and date.
    Proposed form WB-AWARD, which would be submitted pursuant to
proposed rule Sec.  513.9 would require the following information:
    (1) The claimant's name, address and contact information;
    (2) If the person is represented by a legal representative, the
name and contact information for the legal representative;
    (3) Details concerning the issue, including the manner in which the
information was submitted to NHTSA, the date when the information was
submitted, the form in which it was submitted, and the name of the
motor vehicle manufacturer, part supplier and/or dealership to which
the issue or information relates.
    (4) Information concerning the Notice of Covered Action to which
the claim relates, including the date of the Notice, the Notice Number,
and the Case name and number; and information regarding related
actions, if applicable;
    (5) Information relating to the claimant's eligibility for an
award, including whether the person acquired the information solely
through a communication that was subject to the attorney-client
privilege or attorney work product doctrine; whether the

person acquired the original information by a means or manner that was
determined by a United States Federal court or State court to violate
applicable Federal or State criminal law; and whether the person is
currently a subject or target of a criminal investigation or convicted
of a criminal violation in connection with the allegations or conduct
the person submitted to NHTSA. If any of the circumstances noted above
were applicable, the person is requested to provide an explanation.
    (6) An explanation of the reasons that the person believes that he
or she should receive an award in connection with the person's
submission of information to NHTSA, including any information that
might be relevant in light of the criteria for determining the amount
of an award set forth in 49 U.S.C. 30172 and proposed 49 CFR part 513;
and
    (7) A declaration by the claimant under penalty of perjury under
the laws of the United States that the information provided in the WB-
AWARD form is true and correct to the best of the person's knowledge,
information and belief and acknowledgement from the person that they
may be subject to prosecution and ineligible for a whistleblower award
if, in their submission of information, their other dealings with the
National Highway Traffic Safety Administration, or their dealings with
another authority in connection with a related action, they knowingly
and willfully make any false, fictitious or fraudulent statements or
representations, or use any false writing or document knowing that the
writing or document contains any false, fictitious or fraudulent
statement or entry.
    Description of the Need for the Information and Use of the
Information:
    The collection of information on proposed form WB-INFO would be
used to permit the Agency and its staff to collect information from
whistleblowers regarding any potential motor vehicle defect, potential
noncompliance, or any violation or alleged violation of any
notification or reporting requirement of the Safety Act or regulation
thereunder for which NHTSA has enforcement authority. NHTSA
investigators consider information provided by whistleblowers, which
may lead to formal actions like an investigation, recall, or civil
penalty enforcement action. If this information leads to a successful
resolution of a covered action resulting in monetary sanctions
collected by the United States in excess of $1,000,000, a whistleblower
would be eligible for an award.
    The WB-RELEASE form would provide a means for the whistleblower to
provide consent for the Agency to disclose information which could
reasonably be expected to reveal the identity of the whistleblower.
Being able to disclose this information may allow the Agency to open a
public investigation or proceed more efficiently with an investigation
into the whistleblower's allegations.
    The WB-AWARD form would permit the Agency to collect information
relating to a claimant's eligibility for an award, the claimant's
position on why they should receive an award, and the claimant's view
on the criteria for determining the amount of an award. This would
allow the Administrator to determine claims for whistleblower awards.
    Affected Public:
    The likely respondents to proposed form WB-INFO would be those
employees or contractors of motor vehicle manufacturers, part
suppliers, and dealerships who wish to provide the Agency staff with
information relating to any potential motor vehicle defect, potential
noncompliance, or any violation or alleged violation of any
notification or reporting requirement of the Safety Act or regulation
thereunder, which is likely to cause unreasonable risk of death or
serious physical injury.
    The likely respondents to proposed form WB-RELEASE would be those
individuals who wish to provide prior written consent to NHTSA for
disclosure of information that could reasonably be expected to reveal
that individual's identity.
    The likely respondents to proposed form WB-AWARD would be those
individuals who have provided the Agency with original information by
filing a WB-INFO form, and who believe they are eligible for an award
under 49 CFR part 513.
    Estimated Number of Respondents for Proposed Form WB-INFO:
    In the time since the enactment of the FAST Act in 2015, NHTSA has
received over 150 submissions that it has considered potential
whistleblower submissions.\94\ The Agency estimates that there will be
approximately 50 individuals per fiscal year who may wish to file such
form. The Agency estimated the number of individuals based on the
current number of whistleblower submissions and the Agency's view that
submissions will increase once the whistleblower reward program is more
widely known, after the rules are promulgated and additional
whistleblower awards are made.
---------------------------------------------------------------------------

    \94\ Because there is no required method or form of submission,
NHTSA has taken a broad view of what is considered whistleblower
information. Such information comes from a variety of sources, such
as Vehicle Owner Questionnaires (``VOQ''), information provided by
telephone, and information submitted by letter or email to the
Agency. We have taken this broad view not only to review and track
the information submitted, but also to better protect the
confidentiality of those who have provided whistleblower information
to the Agency.
---------------------------------------------------------------------------

    Frequency for Proposed Form WB-INFO:
    The Agency expects that the individual will complete one form
detailing all potential issues they are aware of.
    Number of Responses for Proposed Form WB-INFO: The Agency
anticipates there will be approximately 50 individuals per fiscal year
who may wish to file such form. NHTSA assumes half of this number will
have a legal representative.
    Estimated Total Annual Burden Hours for Proposed Form WB-INFO:
    The proposed collection is estimated to involve approximately an
average of 10 burden hours per individual who completes the WB-INFO
form, and 20 hours per individual who has a legal representative
complete the WB-INFO form. The completion time will depend largely on
the complexity of the alleged violation and the amount of information
the whistleblower possesses in support of the allegations. The Agency
estimates that the total annual PRA burden of form WB-INFO is 750 hours
per year (25 respondents who use a legal representative x 20 hours)
plus (25 respondents who fill out their own form x 10 hours). The
Agency invites public comment on the accuracy of its estimates.
    Estimated Total Annual Burden Cost for Proposed Form WB-INFO:
    We estimate the total annual burden cost for the Proposed Form WB-
INFO to be $266,000. We base the estimate on the following:
    Costs for Legal Representatives to Fill out the Proposed Form WB-
INFO:
    Under the proposed rules, a potential whistleblower who discloses
their identity may elect to retain a legal representative to represent
them, while an anonymous potential whistleblower is required to retain
a legal representative to represent them. The Agency expects that in
most of those instances where a legal representative is retained, the
whistleblower's/claimant's legal representative will complete or assist
in the completion of some or all of the required forms on the client's
behalf. The Agency also expects that in the vast majority of cases in
which a

whistleblower/claimant is represented by a legal representative, such
person will enter into a contingency fee arrangement with such legal
representative, providing that the legal representative will provide
representation in exchange for a fixed percentage of any recovery under
the whistleblower award program. Therefore, the Agency believes that
most persons will not incur any direct expenses for attorneys' fees for
the completion of required forms. The Agency also anticipates that a
very small number of people will enter into hourly fee arrangements
with counsel. However, the Agency does believe that approximately half
of potential whistleblowers will have a legal representative submit the
forms. The Agency requests comment on this estimate. The Agency has
estimated the cost of using a legal representative regardless of
whether the fee is contingent or hourly.
    To estimate those expenses, the Agency makes the following
assumptions:
    (i) The Agency will receive approximately 50 WB-INFO forms;
    (ii) Of these approximate 50 WB-INFO forms, potential
whistleblowers will have a legal representative submit approximately 25
WB-INFO forms;
    (iii) Legal representative cost will be on average $532 \95\ per
hour; and
---------------------------------------------------------------------------

    \95\ This amount is based on the U.S. Attorney's Office for the
District of Columbia Fees Matrix for 2015-2021, assuming that an
attorney with 11-15 years of experience assists the whistleblower.
See https://www.justice.gov/file/1461316/download.
---------------------------------------------------------------------------

    (iv) Legal representatives will bill on average 20 hours to review
materials and complete form WB-INFO.\96\
---------------------------------------------------------------------------

    \96\ The Agency expects that counsel will need to expend
additional time to gather information from the whistleblower or
review sources of information needed to complete the forms, which is
why this estimate is higher than the estimate to just complete the
form.
---------------------------------------------------------------------------

    Based on those assumptions, the Agency estimates that each year the
cost of legal representative time for completion of the forms will be
$266,000 for the completion of form WB-INFO (($532 x 20 hours) x 25
respondents). The Agency invites public comment on the accuracy of its
estimate requirements that would result from the proposed regulations.

Costs of Submission

    The Agency anticipates that the vast majority of whistleblowers/
claimants will submit the forms using electronic means rather than
mail. Therefore, the expected cost of submission of the forms is $0.00.
The Agency invites public comment on the accuracy of its estimate
requirements that would result from the proposed regulations.
    Estimated Number of Respondents for Proposed Form WB-RELEASE:
    The Agency estimates that it would receive 45 WB-RELEASE forms per
year.
    Frequency for Proposed Form WB-RELEASE:
    The Agency expects that the individual will complete one form per
year.
    Number of Responses for Proposed Form WB-RELEASE: The Agency
anticipates there will be approximately 45 individuals per fiscal year
who may wish to file a form WB-RELEASE.
    Estimated Total Annual Burden Hours for Proposed Form WB-RELEASE:
    The Agency estimates that it will take 15 minutes per individual to
complete the form, and the Agency estimates that it would receive 45
WB-RELEASE forms per year. The Agency anticipates that potential
whistleblowers will complete and submit for themselves 20 WB-RELEASE
forms annually and that legal representatives will submit on their
client's behalf 25 WB-RELEASE forms annually. Thus, the Agency
estimates that that estimated annual PRA burden of form WB-RELEASE is
11.25 hours per fiscal year (45 respondents x 15 minutes/60).
    Estimated Total Annual Burden Cost for Proposed Form WB-RELEASE:
    We estimate the total annual burden cost for the Proposed Form WB-
RELEASE to be $3,325. We base the estimate on the following:
    Involvement and Cost of Legal representatives:
    Under the proposed rules, a potential whistleblower who discloses
their identity may elect to retain a legal representative to represent
them, while an anonymous potential whistleblower is required to retain
a legal representative to represent them. The Agency expects that in
most of those instances where a legal representative is retained, the
potential whistleblower's legal representative will complete or assist
in the completion of some or all of the required forms on the client's
behalf. The Agency also expects that in the vast majority of cases in
which a potential whistleblower is represented by a legal
representative, such person will enter into a contingency fee
arrangement with such legal representative, providing that the legal
representative will provide representation in exchange for a fixed
percentage of any recovery under the whistleblower award program.
Therefore, the Agency believes that most persons will not incur any
direct expenses for attorneys' fees for the completion of required
forms. The Agency also anticipates that a very small number of people
will enter into hourly fee arrangements with counsel. The Agency
requests comment on this estimate. The Agency has estimated the cost of
using a legal representative regardless of whether the fee is
contingent or hourly.
    To estimate those expenses, the Agency makes the following
assumptions:
    (i) The Agency will receive 45 WB-RELEASE forms annually;
    (v) Potential whistleblowers will have a legal representative
submit approximately 25 WB-RELEASE forms annually;
    (vi) Attorney cost will be on average $532 \97\ per hour; and
---------------------------------------------------------------------------

    \97\ This amount is based on the U.S. Attorney's Office for the
District of Columbia Fees Matrix for 2015-2021, assuming that an
attorney with 11-15 years of experience assists the whistleblower.
See https://www.justice.gov/file/1461316/download.
---------------------------------------------------------------------------

    (vii) Attorneys will bill on average 15 minutes to complete form
WB-RELEASE.
    Based on those assumptions, the Agency estimates that each year the
cost of attorney time for completion of the forms will be $3,325 for
the completion of form WB-RELEASE (($532 x 15 minutes/60) x 25
respondents). The Agency invites public comment on the accuracy of its
estimate requirements that would result from the proposed regulations.

Costs of Submission

    The Agency anticipates that the vast majority of potential
whistleblowers will submit the forms using electronic means rather than
mail. Therefore, the expected cost of submission of the forms is $0.00.
The Agency invites public comment on the accuracy of its estimate
requirements that would result from the proposed regulations.
    Estimated Number of Respondents for Proposed Form WB-AWARD:
    Each individual who has submitted a form WB-INFO and wishes to be
considered for an award under the program would be required to provide
a WB-AWARD form to the Agency. A claimant could only submit a WB-AWARD
form after there has been a ``Notice of Covered Action'' published on
the Agency's website pursuant to proposed rule Sec.  513.9. The Agency
estimates that it will post approximately 1-2 such Notices each year.
The Agency bases this estimate by looking at the enforcement actions
resulting in civil penalties exceeding $1,000,000 over the last several
years, not including deferred penalties not collected or performance
amounts. In some years, the Agency had

not collected any civil penalties exceeding $1,000,000. In another
year, the Agency had several instances where it collected more than
$1,000,000 in civil penalties in connection with an enforcement action.
The Agency believes that as this whistleblower program grows, more
actionable submissions will be made and, as a consequence, the Agency
will have more actions resulting in collected monetary sanctions
exceeding $1,000,000.
    Considering the estimate of the anticipated yearly covered actions,
and the Agency's experience to date, the Agency estimates that it would
receive approximately 2 WB-AWARD forms each year.\98\
---------------------------------------------------------------------------

    \98\ While it is unlikely that there will be whistleblower
information provided in connection with every Notice of Covered
Action posted by the Agency, this estimate calculates burden hours
as if there were one claim for each Covered Action.
---------------------------------------------------------------------------

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

Involvement and Cost of Legal Representatives

    Under the proposed rules, a potential whistleblower who discloses
their identity may elect to retain a legal representative to represent
them, while an anonymous potential whistleblower is required to retain
a legal representative to represent them. The Agency expects that in
most of those instances where a legal representative is retained, the
potential whistleblower's/claimant's legal representative will complete
or assist in the completion of some or all of the required forms on the
client's behalf. The Agency also expects that in the vast majority of
cases in which a potential whistleblower/claimant is represented by a
legal representative, such person will enter into a contingency fee
arrangement with such legal representative, providing that the legal
representative will provide representation in exchange for a fixed
percentage of any recovery under the whistleblower award program.
Therefore, the Agency believes that most persons will not incur any
direct expenses for legal representatives' fees for the completion of
required forms. The Agency also anticipates that a very small number of
people will enter into hourly fee arrangements with counsel. However,
the Agency does believe that all individuals submitting a WB-AWARD form
will use a legal representative. The Agency requests comment on this
estimate. The Agency has estimated the cost of using a legal
representative regardless of whether the fee is contingent or hourly.
    To estimate those expenses, the Agency makes the following
assumptions:
    (i) The Agency will receive approximately 2 WB-AWARD forms
annually;
    (ii) Claimants will have a legal representative submit 2 WB-AWARD
forms annually;
    (iii) Legal representative cost will be on average $532 \99\ per
hour; and
---------------------------------------------------------------------------

    \99\ This amount is based on the U.S. Attorney's Office for the
District of Columbia Fees Matrix for 2015-2021, assuming that an
attorney with 11-15 years of experience assists the whistleblower.
See https://www.justice.gov/file/1461316/download.
---------------------------------------------------------------------------

    (iv) Legal representatives will bill on average 10 hours to
complete a form WB-AWARD.
    Based on those assumptions, the Agency estimates that each year the
cost of legal representatives' time for completion of the forms will be
$10,640 for the completion of form WB-AWARD (($532 x 10 hours) x 2
respondents). The Agency invites public comment on the accuracy of its
estimate requirements that would result from the proposed regulations.

Costs of Submission

    The Agency anticipates that the vast majority of claimants will
submit the forms using electronic means rather than mail. Therefore,
the expected cost of submission of the forms is $0.00. The Agency
invites public comment on the accuracy of its estimate requirements
that would result from the proposed regulations.
Mandatory Collection of Information
    A person would be required to complete and submit a WB-INFO form
and to submit a WB-AWARD form in order to qualify for a whistleblower
award.
    Public Comments Invited:
    Pursuant to 44 U.S.C. 3506(c)(2)(B), the Agency requests comments
in order to:
     Evaluate whether the proposed collection of information is
necessary for the proper performance of the functions of the Agency,
including whether the information will have practical utility;
     Evaluate the accuracy of the Agency's estimate of burden
of the proposed collections of information;
     Determine whether there are ways to enhance the quality,
utility, and clarity of the information to be collected; and
     Evaluate whether there are ways to minimize the burden of
the collection of information on those who are to respond, including
through the use of automated collection techniques or other forms of
information technology.
    The Agency requests comment and supporting empirical data on the
burden and cost estimates for the proposed rule, including the costs
that whistleblowers/claimants may incur.
    A comment to OMB is most effective if OMB receives it within 30
days of publication. Comments on the proposed information requirements
should be submitted to: Office of Management and Budget at
www.reginfo.gov/public/do/PRAMain. To find this particular information
collection, select ``Current under Review--Open for Public Comment'' or
use the search function. PRA comments are due within 30 days following
publication of this document in the Federal Register.
    The Agency recognizes that the collection of information contained
in today's proposed rule may be subject to revision in response to
public comments.

Regulation Identifier Number (RIN)

    The Department of Transportation assigns a regulation identifier
number (RIN) to each regulatory action listed in the Unified Agenda of
Federal Regulations. You may use the RIN contained in the heading at
the beginning of this document to find this action in the Unified
Agenda.

Plain Language

    Executive Order 12866 requires each agency to write all rules in
plain language. Application of the principles of plain language
includes consideration of the following questions:
     Have we organized the material to suit the public's needs?
     Are the requirements in the rule clearly stated?

     Does the rule contain technical language or jargon that
isn't clear?
     Would a different format (grouping and order of sections,
use of headings, paragraphing) make the rule easier to understand?
     Would more (but shorter) sections be better?
     Could we improve clarity by adding tables, lists, or
diagrams?
     What else could we do to make the rule easier to
understand?
    If you have any responses to these questions, please include them
in your comments on this proposal.

List of Subjects in 49 CFR Part 513

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

Proposed Regulatory Text

0
For the reasons stated in the preamble, the National Highway Traffic
Safety Administration proposes to add 49 CFR part 513 to read as
follows:

PART 513--WHISTLEBLOWER PROGRAM

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

    Authority:  49 U.S.C. 322, 49 U.S.C. 30172; 44 U.S.C. chapter
35, as amended; 49 CFR 1.49; and DOT Order 1351.29.

Sec.  513.1  General.

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

Sec.  513.2  Definitions.

    (a) Statutory definitions. All terms used in this part have the
same meaning as in 49 U.S.C. 30102(a) or (b), unless otherwise defined
in this part.
    (b) Other terms. As used in this part:
    Administrative action. The term ``administrative action'' means all
or a portion of an action, other than a judicial action, brought by
NHTSA or the U.S. Department of Transportation under 49 U.S.C. chapter
301 that may result in civil penalties or other monetary payment paid
to and collected by the United States government. It specifically
includes settlement agreements and consent orders that are entered into
by the Agency.
    Agency. The term ``Agency'' refers to the National Highway Traffic
Safety Administration (NHTSA).
    Collected monetary sanctions. The term ``collected monetary
sanctions'' means monies, including penalties and interest, ordered or
agreed to be paid and that have been collected by the United States,
pursuant to the authority in 49 U.S.C. 30165 or under the authority of
49 U.S.C. 30170.
    Contractor. The term ``contractor'' means an individual presently
or formerly providing goods or services to a motor vehicle
manufacturer, part supplier, or dealership pursuant to a contract.
    Covered action. The term ``covered action'' means any
administrative or judicial action, including any related administrative
or judicial action brought by the Secretary, NHTSA, or the Attorney
General under 49 U.S.C. chapter 301, or the regulations in this chapter
that in the aggregate results in monetary sanctions exceeding
$1,000,000. The over $1,000,000 threshold can be satisfied if the total
amount of monetary sanctions paid by multiple defendants or parties and
collected by the United States totals more than $1,000,000 in the
covered action.
    Dealership. The term ``dealership'' means a person selling and
distributing motor vehicles or motor vehicle equipment primarily to
purchasers that in good faith purchase the vehicles or equipment other
than for resale.
    Employee. The term ``employee'' means an individual presently or
formerly employed by a motor vehicle manufacturer, part supplier, or
dealership.
    Independent knowledge or analysis. The term ``knowledge'' as used
in this part means factual information in the potential whistleblower's
possession that is not generally known or available to the public and
is not already known to NHTSA. The potential whistleblower may gain
independent knowledge from the potential whistleblower's experiences,
communications, and observations in the potential whistleblower's
business or social interactions. As used in this part, ``analysis''
means the potential whistleblower's examination and evaluation of
information that may be generally or publicly available, but which
reveals information that is not generally known or available to the
public. This analysis must be the potential whistleblower's own
analysis, whether done alone or in combination with others.
    (i) NHTSA will not consider the potential whistleblower's
information to be derived from the potential whistleblower's
independent knowledge or analysis if the potential whistleblower
obtained the information:
    (A) Solely through a communication that was subject to the
attorney-client privilege or work product doctrine; or
    (B) By a means or in a manner that has been determined by a United
States Federal court or State court to violate applicable Federal or
State criminal law.
    (ii) [Reserved]
    Motor vehicle defect. The term ``motor vehicle defect'' means a
defect in a motor vehicle or item of motor vehicle equipment.
    Noncompliance. A ``noncompliance'' occurs when a motor vehicle or
item of motor vehicle equipment does not comply with an applicable
Federal motor vehicle safety standard.
    Original information. The term ``original information'' means
information that:
    (i) Is derived from the independent knowledge or analysis of an
individual;
    (ii) Is not known to the Secretary or Agency from any other source,
unless the individual is the original source of the information;
    (iii) Is not exclusively derived from an allegation made in a
judicial or an administrative action, in a governmental

report, a hearing, an audit, or an investigation, or from the news
media, unless the individual is a source of the information; and
    (iv) Is provided to the Agency for the first time after December 4,
2015.
    Original Information that leads to a successful resolution. The
Agency will consider that the potential whistleblower provided original
information that ``leads to'' a successful resolution of a covered
action in the following circumstances:
    (i) The potential whistleblower gave the Agency original
information that was sufficiently specific, credible and timely to
cause the Agency to open an investigation, reopen an investigation that
the Agency had closed, continue an investigation the Agency would not
have continued but for the information, or to inquire concerning a
different potential violation of chapter 301, or the regulations in
this chapter as part of a current investigation, and the U.S.
Department of Transportation, Agency, or U.S Department of Justice
brought a successful judicial or administrative action based in whole
or in part on conduct that was the subject of the potential
whistleblower's original information; or
    (ii) The potential whistleblower gave the Agency original
information about conduct that was already under investigation by the
Agency and the potential whistleblower's information significantly
contributed to the success of the covered action and the U.S.
Department of Transportation, Agency, or U.S. Department of Justice
brought a successful judicial or administrative action based in whole
or in part on conduct that was the subject of the potential
whistleblower's original information.
    Part supplier. The term ``part supplier'' means a manufacturer of
motor vehicle equipment.
    Potential whistleblower. The term ``potential whistleblower''
refers to an employee or contractor of a motor vehicle manufacturer,
part supplier, or dealership submitting information to the Agency in
accordance with and pursuant to this part.
    Related administrative or judicial action. The term ``related
administrative or judicial action'' means an action that was brought
under 49 U.S.C. chapter 301 by the U.S. Department of Justice, the U.S
Department of Transportation, or the Agency and is based on the
original information provided by the whistleblower.
    Secretary. The term ``Secretary'' means the Secretary of
Transportation.
    Successful resolution. A successful resolution, when referring to
any administrative or judicial action brought by the Secretary, Agency,
or the Attorney General relating to any potential motor vehicle defect,
potential noncompliance, or any violation or alleged violation of any
notification or reporting requirement under 49 U.S.C. chapter 301, or
the regulations in this chapter, which is likely to cause unreasonable
risk of death or serious physical injury, includes any settlement of
the action by the U.S. Department of Transportation, Agency or the U.S.
Department of Justice or final decision or judgment in whole or in
partial favor of the Agency, the U.S. Department of Transportation, or
the U.S. Department of Justice.
    Whistleblower. The term ``whistleblower'' means any employee or
contractor of a motor vehicle manufacturer, part supplier, or
dealership who voluntarily provides to the Agency original information
relating to any motor vehicle defect, noncompliance, or any violation
or alleged violation of any notification or reporting requirement of 49
U.S.C. chapter 301, or the regulations in this chapter, which is likely
to cause unreasonable risk of death or serious physical injury.

Sec.  513.3  Representation.

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

Sec.  513.4  Procedures for submitting original information.

    (a) A potential whistleblower's submission must be made by
completing a WB-INFO form and submitting it to the Office of the Chief
Counsel, National Highway Traffic Safety Administration, by email to
[email protected] or other submission method expressly
designated on NHTSA's website for such submissions.
    (b) By completing the WB-INFO form, the potential whistleblower
must declare under penalty of perjury at the time the whistleblower
submits information pursuant to paragraph (a) of this section that the
information is true and correct to the best of the potential
whistleblower's knowledge and belief.
    (c) A potential whistleblower may provide original information to
the Agency anonymously through use of a legal representative. The legal
representative must submit the information on behalf of the potential
whistleblower pursuant to the procedures specified in paragraph (a) of
this section. Prior to the legal representative's submission, the
potential whistleblower must provide the legal representative with a
completed WB-INFO form that the potential whistleblower has signed
under the penalty of perjury. When the legal representative makes the
submission on behalf of the potential whistleblower, the legal
representative must certify that the legal representative:
    (1) Has verified the potential whistleblower's identity;
    (2) Has verified that the potential whistleblower is an employee or
contractor of a motor vehicle manufacturer, part supplier, or
dealership; 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
    (3) Has obtained the potential whistleblower's non-waivable consent
to provide the Agency with the original WB-INFO form for the potential
whistleblower in the event that the Agency requests it.
    (d) If a potential whistleblower submitted original information to
the Agency after December 4, 2015, but before [effective date of final
rule], the submission will be deemed to satisfy the requirements set
forth in paragraphs (a) and (b) of this section.

Sec.  513.5  Confidentiality.

    (a) In general. Notwithstanding 49 U.S.C. 30167, the Secretary and
any officer or employee of the U.S. Department of Transportation shall
not disclose any information, including information provided by a
whistleblower to the Secretary, that could reasonably be expected to
reveal the identity of a whistleblower, except in accordance with the
provisions of 5 U.S.C. 552a, unless:
    (1) Disclosure is required to a defendant or respondent in
connection with a public proceeding instituted by the Secretary, the
Agency, or any entity described in paragraph (c) of this section;
    (2) The whistleblower provides prior written consent for the
information to be disclosed; or
    (3) The Secretary, or other officer or employee of the U.S.
Department of Transportation, receives the information through another
source, such as during an inspection or investigation under 49 U.S.C.
30166, and has the authority under other law to release the
information.
    (b) Use by Attorney General. Notwithstanding paragraph (a) of this
section, nothing in this section is intended to limit the ability of
the Attorney General to present such

evidence to a grand jury or to share such evidence with potential
witnesses or defendants in the course of an ongoing criminal
investigation.
    (c) Availability to Federal Government agencies. Notwithstanding
paragraph (a) of this section, without the loss of its status as
confidential in the hands of the Administrator, all information
referred to in paragraph (a) of this section may, in the discretion of
the Administrator, when determined by the Administrator to be necessary
or appropriate to accomplish the purposes of 49 U.S.C. chapter 301, be
made available to the U.S. Department of Justice or an appropriate
department or agency of the Federal Government, acting within the scope
of its jurisdiction, provided that each entity shall maintain
information as confidential in accordance with the requirements of
paragraph (a) of this section.
    (d) Redaction. When disclosing any information under paragraph (a)
of this section, the Secretary and any officer or employee of the U.S.
Department of Transportation shall take reasonable measures not to
reveal the identity of the whistleblower by taking measures not to
reveal the whistleblower's name, and redacting the whistleblower's name
when information is disclosed under paragraph (a) of this section.
    (e) Section 552(b)(3)(B). The identity of the whistleblower and the
information provided to Secretary by the whistleblower shall be
considered exempt from disclosure under the provisions of 5 U.S.C. 552
to the fullest extent permitted by law.
    (f) The whistleblower. The person should self-identify as a
whistleblower at the time the person first submits original information
relating to any potential motor vehicle defect, potential
noncompliance, or any violation or alleged violation of any
notification or reporting requirements under 49 U.S.C. chapter 301, or
the regulations in this chapter, by submitting a WB-INFO form. If the
person is represented by a legal representative, that legal
representative should identify the client as a whistleblower at the
time the legal representative first submits original information
relating to any potential motor vehicle defect, potential
noncompliance, or any violation or alleged violation of any
notification or reporting requirements under 49 U.S.C. chapter 301, or
the regulations in this chapter, on behalf of the legal
representative's client in the WB-INFO form.

Sec.  513.6  Prerequisites to the consideration of an award.

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

Sec.  513.7  Whistleblowers ineligible for an award.

    No award under Sec.  513.10 shall be made:
    (a) If the amount of monetary sanctions collected in a covered
action does not exceed $1,000,000;
    (b) To any whistleblower who is convicted of a criminal violation
related to the covered action for which the whistleblower otherwise
could receive an award under this part;
    (c) To any whistleblower who, acting without direction from an
applicable motor vehicle manufacturer, part supplier, or dealership, or
agent thereof, deliberately causes or substantially contributes to the
alleged violation of a requirement of 49 U.S.C. chapter 301, or the
regulations in this chapter;
    (d) To any whistleblower who submits information to the Agency that
is based on the facts underlying the covered action submitted
previously by another whistleblower;
    (e) To any whistleblower who fails to provide the original
information to the Agency in the form required by Sec.  513.4 without
good cause shown;
    (f) To any whistleblower who knowingly and intentionally makes any
false, fictitious, or fraudulent statement or representation, or who
makes or uses any false writing or document knowing the same to contain
any false, fictitious, or fraudulent statement or entry; or
    (g) If the applicable motor vehicle manufacturer, parts supplier,
or dealership has an internal reporting mechanism in place to protect
employees from retaliation to any whistleblower who fails to report or
attempt to report the information through such mechanism, unless:
    (1) The whistleblower reasonably believed that such an internal
report would have resulted in retaliation, notwithstanding 49 U.S.C.
30171(a);
    (2) The whistleblower reasonably believed that the information:
    (i) Was already internally reported;
    (ii) Was already subject to or part of an internal inquiry or
investigation; or
    (iii) Was otherwise already known to the motor vehicle
manufacturer, part supplier, or dealership; or
    (3) The Agency has good cause to waive this requirement in this
paragraph (g).

Sec.  513.8  Provision of false information.

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

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

    Whenever any administrative or judicial action, including any
related administrative or judicial action, brought by the U.S.
Department of Transportation, Agency, or U.S. Department of Justice
under 49 U.S.C. chapter 301 in the aggregate results in collected
monetary sanctions exceeding $1,000,000, the Agency will publish on the
Agency's website a ``Notice of Covered Action.'' Such Notice will be
published subsequent to a final judgment, order, or agreement that
alone, or in the aggregate, results in collected monetary sanctions
exceeding $1,000,000. A claimant will have ninety (90) days from the
date of the Notice of Covered Action to file a claim, including any
attachments, for an award based on that action, or the claim will be
barred. The claim is deemed filed on the date that it is received by
the Agency.
    (a) To file a claim for a whistleblower award, the claimant must
complete the WB-AWARD form and submit it no later than ninety (90)
calendar days from the date of the Notice of Covered Action to NHTSA's
Office of the Chief Counsel by email to [email protected] or
another method expressly designated on NHTSA's website.
    (b) If the claimant provided original information anonymously
pursuant to

Sec.  513.4, the claimant must disclose the claimant's identity on the
WB-AWARD form and the claimant's identity must be verified in a form
and manner that is acceptable to the Agency prior to the authorization
of payment of any award to such claimant.
    (c) If a claimant filed a claim for a whistleblower award after
December 4, 2015 (the date of the enactment of the Fixing America's
Surface Transportation (FAST) Act, but before [effective date of final
rule], the claim submission will be deemed to meet the requirements of
Sec.  513.9.

Sec.  513.10  Award determinations.

    Once the time for filing any appeals of the covered action (and all
related actions) has expired, or where an appeal has been filed, after
all appeals in the covered action and related actions have concluded,
and over $1,000,000 in monetary sanctions have been collected, the
Agency will evaluate all timely whistleblower award claims submitted on
a WB-AWARD form in accordance with the criteria set forth in this part.
The Agency may require the claimant to provide additional information