More than two months after President Donald Trump’s inauguration, the automotive industry continues to face substantial uncertainty regarding the direction and priorities of the National Highway Traffic Safety Administration (NHTSA) over the next few years. For now, we can only guess. The new Transportation Secretary, Elaine Chao, was confirmed January 31. She takes over a NHTSA that had been working hard to keep up with emerging technologies – while acting increasingly muscular in its fines and other punishments under the prior administration.
For some safety agencies, it is much easier to read the tea leaves under the new administration. For example, at the Consumer Product Safety Commission, for example, we know that there is a new Republican Acting Chair (Ann Marie Buerkle), and that the five commissioners will remain 3-2 in favor of Democrats until at least October 2017 when Democratic Commissioner Marietta Robinson’s term on the Commission expires. See prior article here. And, following Acting Chair Buerkle’s public remarks last month at the annual conference of the International Consumer Product Health and Safety Organization (ICPHSO), we know that her top three priorities include: (1) collaborating with all product safety stakeholders; (2) taking a balanced and reasonable approach to regulation; and (3) expanding product safety education and awareness for consumers. See prior article here.
In contrast, at NHTSA, the top half of the organization chart is largely empty. Important positions like the Administrator, Deputy Administrator, and Chief Counsel remain “vacant.” While Executive Director Jack Danielson now serves as the Acting Deputy Administrator, these top positions need to be filled, which we predict is likely to occur after the Supreme Court confirmation process and most likely the tax reform issue. Those positions would still need to be vetted and confirmed.
In the meantime, this creates substantial uncertainty for automobile manufacturers and equipment manufacturers that are regulated by NHTSA. Pursuant to NHTSA’s regulations, certain decisions and authority are specifically proscribed for some of these vacant positions. From a practical perspective, many important agency decisions are likely to be delayed until these positions are filled. For example, when a company is required to provide to NHTSA documents or materials that it wants to keep confidential, such as sensitive business information, at the agency level a determination of confidentiality ultimately rests with the Chief Counsel. It is unclear in the current state of things how a situation would play out involving a significant or controversial confidentiality request.
Once the vacant positions are filled, it is unclear how NHTSA will approach important issues or what will become of NHTSA’s priorities. For example, how will the agency under the new Administration address autonomous technology issues and development? In a few public comments, Secretary Chao has supported the technology and urged industry to step up and educate the public about it, while also stating that the new administration is “reevaluating” the guidance that NHTSA issued last September. However, many important questions remain.
Similar questions and unknowns swirl around other recent NHTSA priorities, such as enforcement and penalties, fuel economy, and safe driving programs. As with the CPSC, we can expect the Agency to continue pushing safety in those areas where safety has been pushed before. On the other hand, in the areas of new and emerging technologies, testing methods, and data, or where states’ rights may intertwine (or not) with industry interest, the future remains to be seen.