Tesla Needs To Answer 21 Questions About The Cybercab Or Pay The Government A $139,356,994 Fine

The National Highway Traffic Safety Administration (NHTSA) needs an answer to a question a lot of people have: How the heck is the Tesla Cybercab street legal?

Actually, it needs answers to 21 questions. The safety agency has sent Tesla a special order asking it to explain why it thinks the fully autonomous car is allowable under current federal law.

Automakers typically self-certify their vehicles based on the regulations set out in the Federal Motor Vehicle Safety Standards, or FMVSS, but NHTSA will do an audit if it thinks there are issues.

The production version of the Cybercab was revealed on Sept. 3 and put into service in Tesla’s Robotaxi fleet in Austin, but is not yet available for sale to third parties. The vehicle is not equipped with a steering wheel, pedals or mirrors.

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The order asks if it has any of those things and also if it can be equipped with temporary manual controls, or if it has a way to control it using the touchscreen interface. While Tesla did not mention it at the vehicle’s reveal, one rider posted a video to social media showing a screen that appears to allow a person to control the vehicle by swiping icons, but it did not respond when they tried to use it.

According to the order, “a person may not manufacture for sale, sell, offer for sale, introduce or deliver for introduction in interstate commerce, or import into the United States, any motor vehicle . . . unless the vehicle . . . complies with [all applicable FMVSS] and is covered by a certification issued under section 30115 of this title.” Adding that, ‘a person may not issue’ that self-certification of compliance with the FMVSS ‘if, in exercising reasonable care, the person has reason to know the certificate is false or misleading in a material respect.'”

Tesla has until Sept. 30th to provide a response under oath and is subject to a fine of $27,874 daily, up to a maximum penalty of $139,356,994, if it fails to do so on time or truthfully.

It’s possible to get an exemption to these rules, which the Zoox autonomous ride hailing company did for a limited number of vehicles, but Tesla did not seek one.

Here is the full text of the 21 points Tesla must address.

1. For each subject vehicle, by make and model, provide the following: a. The SAE Automation Level of the vehicle (see SAE J3016 APR2021); b. A representative photograph of the certification label as affixed to a representative subject vehicle; c. The total number of subject vehicles; d. All locations in which the subject vehicles are commercially operating or where Tesla currently anticipates commercially operating the subject vehicles; and e. A description of any Operational Design Domain applicable to such locations (e.g., maximum speed, road type/geometries, geographical limits, time-of-day restrictions, operating or environmental conditions, etc.).
2. Describe any planned approach for scaling commercial operations to subject vehicles and locations beyond those identified in response to Request 1.
3. List each FMVSS that applies to the subject vehicles and with which Tesla certified the subject vehicles to be compliant.
4. Describe in detail how Tesla determined which FMVSS (or parts thereof) were applicable to the subject vehicles.
5. Confirm whether the subject vehicles are capable of being driven by a human driver using temporarily attached human driver controls.
6. State whether temporarily installed human driver controls or other equipment for use by a human driver were a part of Tesla’s basis for certifying compliance with any FMVSS. If so, describe the human driver controls and list the FMVSS for which the human driver controls were used as a part of Tesla’s basis for certifying compliance.
7. Explain how Tesla’s removal of any temporarily installed human driver controls or other equipment for use by a human driver from a subject vehicle comports with the Safety Act’s make inoperative prohibition in 49 U.S.C. § 30122(b).
8. For each FMVSS listed in response to Request 3, explain specifically how Tesla determined that the subject vehicles complied with each standard. To the extent that a FMVSS allows for certification under more than one method or subpart, specifically identify the subpart to which the subject vehicle was certified. Specifically state whether Tesla performed engineering analyses, physical tests, simulations, or other means to determine compliance.
9. Provide any information or documentation indicating the subject vehicles do not comply with an applicable FMVSS, regardless of whether a test, analysis, or other means to evaluate compliance with an applicable FMVSS was considered a non-test, a failure, or otherwise invalid.
10. List any FMVSS or aspect of an FMVSS that 49 CFR Part 571 states applies to passenger cars that Tesla contends does not apply to the subject vehicles (including but not limited to on the claimed basis that such FMVSS or aspect embodies standards developed for vehicles operated by human drivers and did not when promulgated contemplate vehicles designed to perform the entire dynamic driving task without any human driver intervention); describe fully the entire basis of each of your contentions of inapplicability; and explain whether, for each such FMVSS or aspect, Tesla’s certification is based upon its claim of inapplicability, or whether Tesla’s certification is based upon other facts or circumstances, and if so specify them.
11. State whether and, if so, how the subject vehicles are equipped with controls, telltales, and indicators meeting the requirements in FMVSS No. 101 (49 CFR § 571.101) S5.1.1, S5.1.2, and S5.2.6. If your answer differs depending on whether any human driver control or other equipment for use by a human driver is temporarily installed in the vehicle, describe in detail how it differs.
12. State whether and, if so, how the subject vehicles display the vehicle’s shift position under the requirements in FMVSS No. 102 (49 CFR 571.102). If your answer differs depending on whether any human driver control or other equipment for use by a human driver is temporarily installed in the vehicle, describe in detail how it differs.
13. State whether the subject vehicles have a turn signal operative unit that is self-canceling by steering wheel rotation. Also state whether the subject vehicles have a manually operated control of a turn signal operating unit. If the answer to any of the previous statements is no, provide in detail how Tesla determined that the subject vehicles complied with FMVSS No. 108 (49 CFR § 571.108) S9.1.1. If your answer differs depending on whether any human driver control or other equipment for use by a human driver is temporarily installed in the vehicle, describe in detail how it differs.
14. State whether Tesla determined any or all parts of FMVSS No. 111 (49 CFR § 571.111) S5 do not apply to the subject vehicles and provide the justification for such a determination. If your answer differs depending on whether any human driver control or other equipment for use by a human driver is temporarily installed in the vehicle, describe in detail how it differs.
15. State whether the subject vehicles have an inside rearview mirror of unit magnification. If yes, please describe it in detail and provide a drawing demonstrating its location in the subject vehicle. If your answer differs depending on whether any human driver control or other equipment for use by a human driver is temporarily installed in the vehicle, describe in detail how it differs.
16. State whether the subject vehicles have an outside mirror(s) of unit magnification. If yes, please describe in detail and provide a drawing demonstrating its location(s) on the subject vehicle. If your answer differs depending on whether any human driver control or other equipment for use by a human driver is temporarily installed in the vehicle, describe in detail how it differs.
17. State whether the subject vehicles have a rearview image meeting the requirements of FMVSS No. 111 S5.5.1 through S5.5.7. If yes, please describe it in detail and provide a drawing demonstrating its location in the subject vehicle. If your answer differs depending on whether any human driver control or other equipment for use by a human driver is temporarily installed in the vehicle, describe in detail how it differs.
18. State whether the subject vehicles are equipped with electronic stability control (ESC) telltales under the requirements in FMVSS No. 126 (49 CFR § 571.104) S5.3 and S5.5. If your answer differs depending on whether any human driver control or other equipment for use by a human driver is temporarily installed in the vehicle, describe in detail how it differs.
19. Given the Agency’s public statements that manufacturers are not permitted to certify vehicles as compliant if they do not meet all applicable performance standards (including any particular section of a performance standard or subcomponent thereof) and that a manufacturer of a vehicle without a service brake activated by means of a foot control could not certify to FMVSS No. 135 (49 CFR § 571.135) S5.3.1, provide in detail how Tesla determined that the subject vehicles comply with the requirement in the first sentence of FMVSS No. 135 S5.3.1 (“The service brakes shall be activated by means of a foot control.”).
20. State whether the subject vehicles provide any controls in the vehicle touchscreen by which a vehicle occupant can move the vehicle. If they do, describe the controls, the circumstances under which they are available to vehicle occupants, and any limitations or restrictions placed on the vehicle’s movement under such controls.
21. In light of the Agency’s stated position in Final Rule, Occupant Protection for Vehicles with Automated Driving Systems, 87 Fed. Reg. 18560, 18567 n.29 (Mar. 30, 2022) that other regulatory changes to the FMVSS not impacted by the rulemaking (e.g., with regard to the 100-Series FMVSSs) would likely be necessary to permit a vehicle solely operated by an ADS to be manufactured for sale (absent an exemption to the FMVSS under 49 CFR Part 555), and in light of the Agency’s publicly-announced plans to modernize the FMVSS, provide a detailed explanation of how the subject vehicles comply without any exemption under 49 CFR Part 555.