By Eric B. Krauss on February 8, 2017

car GPSLast autumn President Obama revealed his administration’s plan for autonomous driving technology. The National Highway Traffic Safety Administration (“NHTSA”) published fifteen guidelines in September, 2016, that were almost widely lauded as striking the right balance between safety and technological progress.   Consumer, automotive and technology interests—with the notable exception of Apple—seemed pleased that the government espoused policies that did not overregulate and stifle innovation, yet provided enough potential federal oversight to prevent a state law quagmire.  Transportation Secretary Anthony Foxx recognized that the emerging technology faced tremendous burdens, and federal guidelines would bring some uniformity to the fifty states’ differing regulations.  Support for the Obama administration guidelines was near-universal and cost to the industry was minimal.

Many assumed the election of Hillary Clinton to be a fait accompli, and that Clinton would continue this policy inherited from her Democratic predecessor.  However, when Donald Trump took office and directed Federal agencies to delete two regulations for each one new promulgated, the future of the Obama-era NHTSA guidelines was thrown into question.

Elaine Chao, the new Secretary of Transportation (and Senate Majority Leader Mitch McConnell’s wife), is not friendly to regulations. Her record as Deputy Secretary of Transportation under President George H. W. Bush and as Secretary of Labor under George W. Bush reflected a general “hands-off” approach to vehicle and workplace safety.  It would be presumptuous to presume that she shares her husband’s disdain for positions advanced by the former Obama Administration, and fears about the NHTSA guidelines under Secretary Chao may prove unfounded.  The guidelines are not regulations, and were never made final.  Rather than a regulatory framework, the guidelines provide an aspirational framework for public comment and eventual rulemaking during the Chao regime.  Her relaxed approach to regulation is not necessarily at odds with the Obama administration’s concept.

The new Secretary breezed through confirmation with broad bipartisan support. During her January 11, 2017, confirmation hearing, Chao displayed keen interest in autonomous technology and driverless cars.  She recognized that supporting innovation and technology must be balanced with concern for public safety.  Her comments suggested support for the policies formulated under the Obama administration, stating it was important not to “dampen” technological progress with stifling regulations, and supporting rapid construction of driverless vehicle testing facilities.  Chao also warned against the danger of a “patchwork” of state regulations.  Her recognition of a role for federal government regulation does not necessarily belie her reputation as an administrator with a light hand.  Significantly, autonomous vehicle trade groups and lobbying organizations such as the Consumer Technology Association, Self-Driving Coalition for Safer Streets, and the Alliance for Transportation Innovation, have all joined in supporting her stated positions.

Mark Rosekind, the current NHTSA administrator and an Obama appointee, did not issue self-driving car safety regulations during his tenure, wisely leaving this to his successor. He limited action to issuing the proposed guidelines which afford a nonbinding policy framework.  Will their development continue in the new administration?

A new NHTSA Administrator has yet to be named. Rosekind had acquired the reputation of an aggressive consumer safety advocate, causing some automotive industry concern, and seems unlikely to survive.  However, the spirit of Obama, Foxx, and the guidelines may live on.