April 24, 2017

Brian G. Soublet
Deputy Director and Chief Counsel
California Department of Motor Vehicles
Legal Affairs Division
P.O. Box 932382, MS C-244
Sacramento, CA 94232-3820
Re: Tesla, Inc.’s Comments on the Proposed Rulemaking Action to Amend and Add Regulations
Related to the Testing and Deployment of Autonomous Vehicles

Dear Mr. Soublet:
Tesla, Inc. (“Tesla” or the “Company”) is pleased to submit written comments to the California
Department of Motor Vehicles (the “DMV” or the “Department”) in response to the DMV’s proposed
rulemaking action to amend Article 3.7 related to the testing of an autonomous vehicle (“AV”) and to
add Article 3.8 related to the deployment of an AV (the “Rulemaking”).1 We commend the DMV for
their work to implement the rules required by Senate Bill 1298 (Chapter 570; Statutes of 2012).

I.

Background

Tesla is the world’s leading manufacturer of electric vehicles and is the largest manufacturing
employer in California. All Tesla vehicles sold today come standard with advanced driver assistance
safety features including automatic emergency braking, forward collision warning, and side collision
warning. Tesla also offers optional Autopilot convenience features, including Traffic-Aware Cruise
Control and Autosteer lane-keeping assistance. These features currently require the driver to remain
engaged with the driving task, and are an example of SAE International (“SAE”) Level 2 automation.
All Tesla vehicles produced since October 2016 come standard with the sensing and computational
hardware necessary for full self-driving capability. The Company will enable its vehicles’ self-driving
functionalities via over-the-air updates as we validate the features and receive any required regulatory
approvals.

1

California Department of Motor Vehicles, Notice of Proposed Regulatory Action (March 10, 2017), https://www.dmv.ca.gov/por
tal/wcm/connect/ac06ef6c-4704-43a4-999f-e92a08376828/avnoticeofproposedaction_31017.pdf?MOD=AJPERES; Initial
Statement of Reasons (March 10, 2017), https://www.dmv.ca.gov/portal/wcm/connect/7342a60f-4953-48e4-9372-51abe905913
f/avinitialstatementofreasons_31017.pdf?MOD=AJPERES; and Express Terms (March 10, 2017), https://www.dmv.ca.gov/port
al/wcm/connect/caa2f466-fe0f-454a-a461-f5d7a079de49/avexpressterms_31017.pdf?MOD=AJPERES (the “Express Terms”).

Tesla, Inc.
3500 Deer Creek Road, Palo Alto, CA 94304

 II.

Comments

Tesla offers the following four comments on the DMV’s Rulemaking, which will be elaborated upon:
(1) Tesla supports the DMV’s efforts to update and improve regulations related to AVs; (2) The DMV
should remove the blanket prohibition against heavy AVs from the Rulemaking; (3) the Rulemaking
should not mandate NHTSA’s voluntary Safety Assessment; and (4) the DMV should not prohibit the
sale of a production, non-autonomous vehicle on the basis of previous use as an autonomous test
vehicle.
1. Tesla supports the DMV’s efforts to update and improve regulations related to AVs.
The DMV’s Rulemaking greatly improves upon the current Article 3.7 related to the testing of AVs, as
well as draft deployment proposals that the DMV released in December 2015 and September 2016.
While Tesla prefers uniform federal oversight of AVs over patchwork state-by-state regulations, the
Company recognizes that the DMV is required by state law to regulate the testing and deployment of
AVs.2 We also appreciate that the DMV’s task in amending and adding to its current regulations was
very difficult. With no precedent available anywhere, the DMV had to ensure that manufacturers
tested and deployed AVs safely without stifling innovation. The Rulemaking clarifies definitional
language, streamlines requirements for testing and deployment, and lays the framework that AVs will
use to operate without a driver and one day serve citizens of communities who otherwise cannot drive
themselves. In drafting this Rulemaking, the DMV also needed to reassure the public that
manufacturers’ testing and deployment of AVs will not compromise or otherwise endanger their
safety. Tesla recognizes the progress that the DMV has made in amending and adding to its current
regulations, and aims the rest of these comments at specific ways to further clarify and improve this
Rulemaking.

2. The DMV should remove the blanket prohibition against heavy AVs from the
Rulemaking.

In the Express Terms, Section 227.28 preserves a blanket exclusion of all vehicles with a gross
vehicle weight rating of more than 10,000 pounds from being approved for testing or deployment as
AVs on public roads.3 The DMV should remove this prohibition from the Rulemaking because it
amounts to an indefinite statewide ban on any testing or deployment of heavy AVs, runs contrary to
state legislative and federal intentions, does not promote safety, and stifles innovation.

2
3

CAL. VEH. CODE § 38750.
Express Terms at § 227.28(a)(4).

2

 a. Section 227.28 creates an indefinite statewide ban on any testing or deployment of heavy
AVs.
The first reference to an AV weight restriction appeared in May 2014 in the DMV’s initial adoption of
regulations related to testing AVs.4 In response to public comments, the DMV explained that “the
testing of commercial vehicles on public roads raises heightened safety and driver training and
qualification issues that should be addressed by a separate rulemaking proceeding.” 5 To date, the
DMV has not expounded upon its concerns over safety, driver training, or qualification issues, other
than to vaguely reference the “size and unique considerations” of heavy vehicles and to offer the
promise that “the department will identify rules for these vehicles in a future regulatory package.”6
Three years have passed since the DMV’s introduction of weight restrictions. Despite promises of a
separate rulemaking regarding commercial vehicles, the Department has not produced a first draft of
such rulemaking and the blanket prohibition against heavy AVs still exists in the current regulations.
As a result, the blanket prohibition on heavy AVs in the DMV’s currently proposed Rulemaking
amounts to an indefinite ban on any testing or deployment of heavy AVs in the state of California.
Rather than unnecessarily create a separate rulemaking process, the DMV should remove the
prohibition against heavy AVs from the Rulemaking.

b. No regulatory reason exists for banning AV testing or deployment based on gross vehicle
weight rating.

Tesla believes the restriction is inappropriate and is not in line with the intentions of the California
State Legislature or NHTSA. Senate Bill 1298 enacted California Vehicle Code § 38750, the law
which authorizes the DMV to issues regulations related to AVs. This law does not make mention of
any weight restrictions or other special restrictions against commercial vehicles, or otherwise require
the DMV to establish such restrictions. Similarly, the National Highway Traffic Safety Administration
(“NHTSA” or the “Agency”) avoided placing special restrictions on heavy trucks in the Model State
Policy section of the Agency’s recent Federal Automated Vehicles Policy (the “Policy”).7 The
Rulemaking’s discrimination against heavy AVs does not reflect legislative intent or federal policy to
promote safe and rapid development and deployment of AVs.

See CAL. CODE REGS., tit. 13, § 227.52(a)(4) (2014) (excludes from approval for testing “a vehicle with a gross weight rating of
10,001 or more pounds”).
5
California Department of Motor Vehicles, Final Statement of Reasons (May 19, 2014), at 26-27, https://www.dmv.ca.gov/portal
/wcm/connect/70791ede-d798-4628-b3a9-764acebcb881/final_sor.pdf?MOD=AJPERES (the “FSR”); see also FSR at 11, 21.
6
California Department of Motor Vehicles, Invitation to Pre-Notice Public Discussions on Proposed Regulations: Autonomous
Vehicles (September 30, 2016), at 2, https://www.dmv.ca.gov/portal/wcm/connect/e12bbed6-f168-4fa3-bc09-4ca244c56ad0/av
workshopnotice_10192016.pdf?MOD=AJPERES.
7
National Highway Traffic Safety Administration, Request for Comment on “Federal Automated Vehicles Policy,” 81 Fed. Reg.
65703 (Sept. 23, 2016) (the “Policy”).
4

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 c.

Banning AVs based on gross vehicle weight rating does not increase safety and stifles
innovation.

In its current form, the Rulemaking creates an unnecessary double-standard for heavy vehicles.
Neither an outright restriction nor a separate rulemaking for heavy vehicles is necessary or otherwise
in the interest of safety and innovation. The Rulemaking proposes an extensive set of requirements
related to testing, test drivers, and the deployment of AVs. Furthermore, concerns about hazardous
cargo in AVs are already addressed in Section 227.28’s restriction against vehicles described in
Vehicle Code § 31309.8 Tesla therefore finds no reason why this Rulemaking can safely and
sufficiently regulate light-duty vehicles and their drivers, but not do the same for heavy vehicles and
their drivers. The Rulemaking will allow a manufacturer to test and deploy an AV in virtually any
operational design domain in the state, but will prohibit even the most mundane operations involving
heavy vehicles, creating a double standard not supported by any facts.

As an example of how the blanket ban unnecessarily stifles innovation, consider the case of a partscarrying heavy AV operating at a factory. Under the proposed Rulemaking, a company can test and
operate a heavy AV to transport parts around a factory provided that the vehicle’s route is entirely on
private property. However, if the manufacturer’s factory operations are located such that the heavy
AV’s route requires traveling on or crossing over a single public street, the heavy AV would no longer
be able to be used, even with the full endorsement of local authorities.
Tesla firmly believes that the dynamic driving tasks and other “unique considerations” 9 for commercial
vehicles are no more unique than the considerations and circumstances associated with the myriad of
possible permitted uses of light AVs. In the absence of parity, this Rulemaking stifles the application
of an important safety innovation to a broad class of California vehicles, and will force innovators in
this space to leave the state. Instead, Tesla strongly encourages the DMV to assert its leadership on
AVs and update the Rulemaking to remove the blanket ban on heavy AVs.
3. The Rulemaking should not mandate NHTSA’s voluntary Safety Assessment.
NHTSA’s Policy explicitly states that the Safety Assessment requested in the Vehicle Performance
Guidance is a voluntary submission that is not a necessary precursor to testing AVs on public roads
or as part of a state’s test program.10 Notwithstanding, the DMV’s Rulemaking requires manufacturers
to submit a copy of their Safety Assessment to NHTSA as part of their application to test AVs that do

8

Express Terms at § 227.28(5).
See supra note 6 and accompanying text.
10
Policy, supra note 8, at 11: “This Guidance highlights important areas that manufacturers and other entities designing HAV
systems should be considering and addressing as they design, test, and deploy HAVs. This Guidance is not mandatory. [. . .]
This Guidance is not intended for States to codify as legal requirements for the development, design, manufacture, testing, and
operation of automated vehicles.”
9

4

 not require a human driver11 as well as their application to deploy AVs on public roads.12 In doing so,
the DMV inappropriately transfers federal regulatory authority to itself and contravenes the spirit of
voluntary cooperation that NHTSA intended for with the Safety Assessment. Tesla instead believes
that the DMV should strive for consistency with NHTSA’s Policy and the Rulemaking should instead
request (without imposing a requirement) for manufacturers to submit a Safety Assessment.
Tesla supports NHTSA’s intent behind the Safety Assessment as an aid to monitor AVs, 13 and intends
to submit a Safety Assessment to NHTSA. Tesla’s comments to the DMV are therefore not a means
of avoiding preparing and submitting a Safety Assessment. Rather, this is an issue of consistency
between federal and state requirements and we do not believe states should contradict the spirit of
cooperation on which NHTSA firmly established the Safety Assessment, particularly at this early stage
of AV regulation and adoption.

4. The DMV should not prohibit the sale of a production, non-autonomous vehicle on the
basis of previous use as an autonomous test vehicle.

Section 227.54 prohibits manufacturers from selling, transferring or disposing of an AV if the
manufacturer used it for test purposes on public roads. 14 The manufacturer is only exempt if it sells
the test AV to another manufacturer with a permit to test AVs in the state or obtains a non-repairable
certificate and transfers the test AV to a salvager or institution for display or study. 15 This prohibition is
presumably designed to protect consumers from purchasing vehicles that have prototype or nonproduction hardware and/or software.

This prohibition appears to have been written without consideration for vehicles that were used as
autonomous test vehicles but contain only production hardware and, once loaded with production
software, are indistinguishable from production vehicles. This is the case with many Tesla
autonomous test vehicles. Because current Tesla vehicles come standard with the sensing and
computational hardware necessary for full self-driving capability, Tesla only has to load software on
the vehicles in order to make them capable of autonomous testing. Tesla can then return the vehicles
to production condition by re-loading production software. However, if such a vehicle has participated
in any AV testing on public roads in California, the Rulemaking would prevent Tesla from ever being
able to re-sell the vehicle. This prohibition imposes a significant financial penalty for conducting AV
testing in California equal to the full cost of the test vehicle, and therefore incentivizes Tesla and other
auto manufacturers in the same situation to invest AV testing resources outside of California.

11

Express Terms at § 227.38(g).
Id. at § 228.06(d).
13
See Policy, supra note 8, at 15.
14
CAL. CODE REGS., tit. 13, § 227.50 (2014).
15
Id. at § 227.50(a)-(c).
12

5

 In order to correct this oversight, we believe the DMV should either eliminate Section 227.54 from the
Rulemaking or add another exemption to the section that will allow a manufacturer to sell former test
AVs to consumers if, when sold, the vehicle’s hardware and software are equivalent to a production
vehicle. Specifically, we propose adding the following subsection (d) to Section 227.54, as shown
below, or a similar exemption that reflects the same spirit:

§227.54. Transfers of Interest or Title for an Autonomous Test Vehicle.
No person shall offer for sale, sell, transfer, or dispose of an autonomous test vehicle,
or major component parts for such a vehicle that has been used for testing purposes
on public roads except as follows:
(a) To a manufacturer holding a valid autonomous vehicle Manufacturer’s Testing
Permit or a Manufacturer’s Testing Permit – Driverless Vehicles.
(b) The manufacturer disposing of the vehicle has obtained a Nonrepairable Vehicle
Certificate ensuring that the vehicle is not retitled or resold, and ownership of the
vehicle is transferred to an auto dismantler.
(c) Transfer of ownership to an educational or research institution or a museum
where it would be appropriate for display or study.
(d) At the point of sale, transfer, or disposal, the manufacturer’s vehicle is equipped
with hardware and software that are equivalent to hardware and software the
manufacturer equipped on motor vehicles sold to the general public.
*

*

*

Tesla appreciates this opportunity to share our comments on the proposed Rulemaking. If the DMV
has any questions or comments regarding this submission, please feel free to contact me at
650.681.5590 or at mschwall@tesla.com.

Sincerely,

Matthew L. Schwall, Ph.D.
Director, Field Performance Engineering

6