The U.S. Department of Transportation (DOT) is in violation of a mandatory Congressional requirement to enact rules to protect auto safety whistleblowers.
The Fixing America’s Surface Transportation Act (FAST Act), signed into law January 6, 2015, required DOT to approve and publish regulations setting forth how auto safety whistleblowers can anonymously file safety reports with DOT, rules ensuring the full protection of whistleblower confidentiality, and the requirements for qualifying for monetary whistleblower rewards.
The FAST Act required DOT to approve and publish these regulations implementing their whistleblower program on or before July 6, 2016. In a statement provided to Whistleblower Network News, DOT confirmed that the agency has failed to even publish proposed rules, but simply stated that they are “working” on such rules.
“The Department of Transportation has violated the Auto Safety Whistleblower law. It has grossly and willfully ignored its mandatory obligations under the law,” said Stephen M. Kohn, whistleblower attorney for qui tam law firm Kohn, Kohn and Colapinto and Chairman of the Board of Directors of the National Whistleblower Center.
“We approached DOT in 2016, requesting that they implement regulations ensuring the confidentiality of whistleblowers and explaining the reward procedures. DOT ignored this request. The Department’s failure to follow the law threatens auto safety, undermines whistleblower protections, and demonstrates contempt for the law. It places citizens at unnecessary risk for injury or death due to correctable motor vehicle safety issues,” Kohn added.
“Congress should demand that the incoming Biden administration make approving whistleblower rules a high priority, if such rules are not published by January 20, 2021. Any officials who willfully failed to institute protections for whistleblowers should be held accountable,” Kohn added.
In February 2016, the National Whistleblower Center (NWC) sent a letter to DOT informing it of the 18-month deadline, recommending the creation of a whistleblower office similar to the SEC Office of the Whistleblower, and requesting a meeting to discuss the rules for the rewards program.
In June 2016 the NWC sent a second letter to DOT with detailed recommendations for rules based upon the rules for the SEC’s whistleblower program. These rules cover every aspect of the rewards program. The recommendations included provisions for protecting the confidentiality of whistleblowers, explaining the steps whistleblowers must make in order to be eligible for a whistleblower award, including how to properly file a whistleblower disclosure and how to file a whistleblower award claim. The proposal also recommended the factors DOT should weigh in determining the exact amount of a whistleblower award.
In May 2017, DOT finally responded to the NWC’s inquiries with an email that stated: “We are conscious of the statutory deadline for promulgating regulations, which have not yet been issued. At this time, we cannot provide a specific date by which a rule will be published.”
The FAST Act contains a reward law for auto-manufacturing whistleblowers, the Motor Vehicle Safety Whistleblower Act (MVSWA). According to a 2019 Automotive Defect and Recall Report, more than 1 out of 5 cars in the U.S. had an open recall in 2018. In October, 2020 the seventeenth American was killed due to a recalled faulty Takata airbag.
The FAST Act and MVSWA were enacted in response to several high-profile automobile safety issues, including the Volkswagen emissions scandal and the Takata airbag recall. The MVSWA is a whistleblower reward law designed to incentivize employees from the automotive sector to voluntarily provide information about life-threatening automobile safety issues to DOT. The law was modeled on the highly successful whistleblower reward programs of the SEC and IRS. Like the reward programs for IRS and SEC whistleblowers, the MVSWA stipulates that individuals who voluntarily provide DOT with original information, which leads to a successful enforcement action, are entitled to a monetary award ranging from 10 to 30 percent of the funds recovered by the government.
However, despite the proven efficacy of the IRS and SEC whistleblower reward programs (whistleblower tips have led to the recoupment of over $2.7 billion by the SEC), DOT has failed to establish a rewards program. “DOT has dropped the ball and rendered its whistleblower program completely ineffective by failing to craft and publish rules,” Kohn added.
In response to inquiries by Whistleblower Network News in August 2020, the National Highway Traffic Safety Administration (NHTSA) confirmed that the agency still has not even published proposed rules for public comment. According to the statement from the NHTSA, the agency is “currently working on a Notice of Proposed Rulemaking for regulations to meet the FAST Act requirements.”
“This statement is completely unacceptable. DOT fails to explain why they are over four years late in publishing rules, and provided no deadline or other information about the status of any rules the agency is ‘currently working on,’” Kohn stated.
Rewards can be paid in the absence of any rules, but according to the statement from DOT, the agency apparently has not paid any awards for over five years. However, DOT confirmed that whistleblowers had in fact requested awards, stating “we have received information and claims pursuant to the statute, which we are actively considering.” However, NHTSA failed to answer specific questions about why the rules have been delayed and when they will be made public. DOT also could not explain how the agency could decide on the merits of any of the pending cases without having rules in place to determine whether or not the whistleblower was qualified and the amount of an award, if any.
By failing to publish rules for the whistleblower reward program, DOT continues to render the MVSWA effectively moot despite immense public support for stronger protections for corporate whistleblowers. According to a Marist poll recently published by Whistleblower Network News, 82% of American adults believe Congress should prioritize passing stronger corporate whistleblower laws. In the case of the MVSWA, Congress did their part by passing the legislation, but DOT has failed to follow the mandates of the law.
Information on the status of the rulemaking is available here.
The MVWSA is linked here.
The 2020 correspondence with DOT is linked here.