The U.S. Department of Transportation’s (DOT) National Highway Traffic Safety Administration (NHTSA) has created a webpage for its auto safety whistleblower reward program. Despite pressure from whistleblower advocates, the NHTSA has been extremely slow in setting up the program. While the webpage is a positive sign for the program’s eventual implementation, the NHTSA has still yet to release rules and regulations for the program. The Congressionally-mandated deadline for publishing the rules was July 6, 2016.
The auto safety whistleblower program was established in January 2015 with the passage of the Motor Vehicle Safety Whistleblower Act (MVSWA). The MVSWA was enacted in response to a number of high-profile auto recalls and aims to increase public safety on roadways by incentivizing auto-manufacturer insiders to blow the whistle on safety issues. Modeled off the Dodd-Frank Act, which established the highly successful SEC Whistleblower Program, the MVSWA entitles qualified whistleblowers to a monetary award of 10-30% of funds recovered by the government in an enforcement action stemming from their disclosure.
The MVSWA required the NHTSA to approve and publish regulations setting forth how auto safety whistleblowers can anonymously file disclosures, rules ensuring the full protection of whistleblower confidentiality, and the requirements for qualifying for monetary whistleblower rewards. The deadline for the publication of the final rules passed almost five years ago. Whistleblower advocates argue that without clear rules, the program will be ineffective and whistleblowers will not come forward to protect the American public for auto safety issues.
“Years ago we provided the NHTSA with draft rules modelled on the highly successful SEC Whistleblower Program,” said whistleblower attorney Stephen M. Kohn, founding partner of Kohn, Kohn & Colapinto and Chairman of the Board of the National Whistleblower Center (NWC). “It is time to stop horsing around and get the job done!”
As Kohn notes, in June 2016, NWC sent a letter to the NHTSA 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 and explained the steps whistleblowers must make in order to be eligible for a whistleblower award. This explanation included information on how to properly file a whistleblower disclosure and how to file a whistleblower award claim. The proposal also recommended the factors the NHTSA should weigh in determining the exact amount of a whistleblower award.
Despite preexisting models of rules for successful whistleblower programs and the offers of assistance by whistleblower advocacy groups like NWC, the NHTSA has still failed to publish even proposed rules, let alone a final version.
The new webpage states that “NHTSA does not yet have regulations in place. However, it is important to note that whistleblowers are protected by law, without need for regulations. NHTSA may also make monetary awards to whistleblowers before it issues regulations.”
However, the NHTSA does not clarify how it will determine a whistleblower’s award eligibility. The webpage also notes that there is no official form for making whistleblower disclosures at this time.
In March, Senators Richard Blumenthal (D-CT) and Edward Markey (D-MA) sent a letter to Transportation Secretary Pete Buttigieg demanding that the DOT immediately implement the whistleblower program.
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