On December 12, the Department of Transportation’s (DOT) National Highway Traffic Safety Administration (NHTSA) published final rules for its Auto Safety Whistleblower Program, over eight years past a Congressionally-set deadline to do so.

“The regulations are an important step forward. They provide whistleblowers with the guidance needed to effectively report auto safety defects,” says leading whistleblower attorney Stephen M. Kohn of Kohn, Kohn & Colapinto (KKC), who has advocated for effective rules for years and provided comments on the NHSTA’s proposed rules which are discussed in detail in the agency’s final rule.

“We remain very concerned about the discretionary nature of this program,” adds Kohn, who also serves as Chairman of the Board of the National Whistleblower Center (NWC). “But these rules were badly needed.”

Overall, the final rules largely mirror those of the SEC Whistleblower Program as auto safety program’s statute was largely modeled off the Dodd-Frank Act. In its proposed rules, released in April 2023, the NHSTA diverged from the SEC model in a number of key ways, which advocates including KKC highlighted as harmful towards whistleblowers.

In its final rules, the NHTSA agreed with many of KKC and NWC’s comments, including loosening technical filing requirements which could disqualify otherwise fully qualified whistleblowers. “NHTSA agrees with Kohn and will not require the timing of the WB-INFO form to be determinative of qualification for an award, subject to other provisions of the statute and regulations,” the final rules state.

However, despite whistleblower advocates pointing to the repeated failure of discretionary whistleblower award programs, the NHTSA decided to retain its discretion to award or deny whistleblowers.

The Auto Safety Whistleblower Program was established by the Motor Vehicle Safety Whistleblower Act (MVSWA) which was passed in 2015 in response to a number of high-profile auto safety scandals. The Act required the DOT to approve and publish regulations implementing its whistleblower program on or before July 6, 2016. Despite pressure from advocates and members of Congress, the agency delayed its rulemaking process for over 8 years.

Under the Auto Safety Whistleblower Program, individuals who voluntarily provide original information about potential vehicle safety problems and violations of law which leads to a successful enforcement action are eligible to receive monetary awards of 10-30% of the sanctions collected by the government. In 2021, the NHTSA issued its first and only whistleblower award, a $24 million award to a whistleblower who provided information about the untimely recalls for Theta II engines by Hyundai and Kia.