National Highway Traffic Safety Administration September 21, 2015 – Federal Register Recent Federal Regulation Documents
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Request for Public Comments on NHTSA Enforcement Guidance Bulletin 2015-01: Recommended Best Practices for Protective Orders and Settlement Agreements in Civil Litigation
NHTSA's ability to identify and define safety-related motor vehicle defects relies in large part on manufacturers' self-reporting. However, although federal regulations may require them to report certain information to NHTSA, manufacturers do not always do so, or do not do so in a timely manner. Additionally, the information a manufacturer is required to report varies greatly depending on the product and company size and purpose. Given these constraints, safety- related information developed or discovered in private litigation is an important resource for NHTSA. This proposed Enforcement Guidance Bulletin sets forth NHTSA's current thinking on this topic, and guiding principles and best practices to be utilized in the context of private litigation. To the extent protective orders, settlement agreements, or other confidentiality provisions prohibit information obtained in private litigation from being transmitted to NHTSA, such limitations are contrary to Rule 26 of the Federal Rules of Civil Procedure, its state corollaries, and sound principles of public policy. Although such restrictions are generally prohibited by applicable rules and law, the Agency recommends that litigants include a specific provision in any protective order or settlement agreement that provides for disclosure of relevant motor vehicle safety information to NHTSA, regardless of any other restrictions on the disclosure or dissemination of such information. This notice solicits comments from the public, from counsel, and from other interested parties concerning this proposed enforcement guidance, and best practices to be followed by litigants in private litigation regarding protective orders and settlement agreements that contain confidentiality provisions limiting disclosure of safety- related information.
Civil Penalty Procedures and Factors
NHTSA is proposing a rule prescribing procedures for the assessment of civil penalties and for interpreting the factors for determining the amount of a civil penalty or the amount of a compromise under the National Traffic and Motor Vehicle Safety Act (Safety Act), to implement the Moving Ahead for Progress in the 21st Century Act (MAP-21). MAP-21 states that the Secretary of Transportation shall determine the amount of civil penalty or compromise under the Safety Act. MAP-21 identifies mandatory factors that the Secretary must consider and discretionary factors for the Secretary to consider as appropriate in making such determinations. MAP-21 further directs NHTSA to issue a rule providing an interpretation of these penalty factors. NHTSA is also proposing to update our regulations to conform it to the statutory civil penalty maximums enacted in MAP-21, the increased penalties and damages for odometer fraud, and the statutory penalty for knowingly and willfully submitting materially false or misleading information to the Secretary after certifying the same information as accurate.