NHTSA has ordered Tesla to prove that its Cybercab is even legal to sell. The agency issued a formal Special Order on September 10 demanding that the company show, under oath, how a vehicle with no steering wheel, no pedals, and no mirrors complies with federal safety standards written for human drivers.
Tesla has until September 30 to respond. Failing to answer fully and truthfully carries penalties of up to $139 million.
We reported on September 4 that NHTSA opened Audit Query 26002 hours after Tesla began commercial Cybercab service in Austin on September 3. This is the escalation. An audit query is a request. A Special Order is a legal demand, backed by a sworn-affidavit requirement and the kind of penalties that get a general counsel’s attention.
The order runs to 21 detailed requests and is signed by NHTSA Chief Counsel Peter Simshauser. It’s addressed directly to Tesla’s head of litigation and its associate general counsel for regulatory affairs.
Self-certification is the whole problem
The US doesn’t pre-approve vehicle designs. Automakers self-certify that their vehicles comply with all applicable Federal Motor Vehicle Safety Standards, and NHTSA checks after the fact. Tesla certified the Cybercab as compliant with every applicable FMVSS.
But most of those standards assume a driver. NHTSA quotes the law back at Tesla in the order: “A person may not issue” that certification “if, in exercising reasonable care, the person has reason to know the certificate is false or misleading in a material respect.”
In plain terms, the agency is asking Tesla to defend a certification it suspects can’t be defended.
Tesla does have an argument, and NHTSA clearly anticipates it. Request 10 presses the company on which standards it thinks don’t apply to a car with no driver, on the theory that rules written for human-operated vehicles were never meant for one that handles the entire driving task itself. That’s the core of Tesla’s likely defense: you can’t hold a robotaxi to a mirror-adjustment or turn-signal rule built around a person who isn’t in the seat. The agency’s counter is blunt. Until those rules are formally rewritten, they still apply, and “inapplicable” isn’t a box a manufacturer gets to check for itself.
The foot-brake problem
Request 19 is the sharpest one. FMVSS No. 135 says it about as plainly as a regulation can: “The service brakes shall be activated by means of a foot control.” The Cybercab has no foot control.
NHTSA notes it has publicly stated that a manufacturer of a vehicle without a foot-activated service brake could not certify to that standard. Then it asks Tesla to explain, in detail, how it did exactly that.
NHTSA has actually proposed rewriting that foot-brake rule for automated vehicles. It floated an amendment to FMVSS 135 back in June. But a proposal isn’t law. Until it’s finalized, the foot-control requirement still applies, and NHTSA is enforcing it against Tesla right now.
The ‘make inoperative’ trap
A cluster of requests targets whether the Cybercab can be driven by a human using temporarily attached controls, which we know Tesla uses, and whether Tesla leaned on those temporary controls to certify compliance in the first place.
If it did, NHTSA wants to know how stripping them back out squares with the Safety Act’s “make inoperative” prohibition. You can’t certify a car with the required safety equipment installed and then remove it before delivery. The order defines its “subject vehicles” as those “lacking permanently attached, conventional manual controls” — brake pedal, accelerator, steering wheel, mirrors, and telltales.
The rest of the requests walk through the specific standards a car without a driver’s seat starts to fail: FMVSS 101 on controls and telltales, 102 on shift-position display, 108 on turn signals that self-cancel by steering-wheel rotation, 111 on mirrors and rearview images, and 126 on stability-control telltales.
No exemption
The last request may be the most damaging. NHTSA points to its own 2022 rule, which stated that further FMVSS changes would “likely be necessary” before a vehicle operated solely by an automated driving system could be manufactured for sale — unless the automaker holds an exemption under Part 555.
Tesla doesn’t have a Part 555 exemption. NHTSA is asking how the Cybercab is legal to sell without one.
Zoox did it the other way
Tesla isn’t the first company to build a purpose-built robotaxi with no steering wheel. It’s the first to try putting one into commercial service by self-certifying, rather than asking permission.
In July, NHTSA granted Amazon’s Zoox a temporary Part 555 exemption covering eight federal standards, including the foot-brake rule (No. 135) and the mirror rules (No. 111) the agency is now pressing Tesla on. The exemption lets Zoox charge for rides in its no-controls pods, caps it at 2,500 vehicles a year, and runs through 2028. Zoox had to apply, make its safety case, and wait. It won a demonstration exemption first, then the commercial one.
Tesla built the same kind of vehicle and took the opposite route. It certified the Cybercab as already compliant and started charging for rides on September 3. No application, no exemption, no cap.
That’s the contrast NHTSA is drawing without spelling it out. There’s a legal path for a car like this, a direct competitor just walked it, and Tesla went around it.
Tesla’s response to the order has to be signed under oath by a responsible officer. Falsifying or withholding information can bring criminal penalties: a fine, or up to 15 years in prison.
Electrek’s Take
We’ve been saying for more than a year that Tesla was mass-producing a vehicle it isn’t cleared to sell or drive itself. It rolled the first steering-wheel-less Cybercab off the line back in February, long before it had answers on either autonomy or homologation. Now the regulator is asking the question out loud.
Until this is figured out, Tesla’s Cybercab will be limited to the small geo-fenced Robotaxi service areas, taking routes at lower speeds and avoiding railroad crossings.
NHTSA isn’t hostile to driverless cars, either. This is the same agency that proposed scrapping the foot-brake mandate for automated vehicles in June, pulled back its AV STEP oversight program, and keeps saying it wants to modernize the standards for exactly these kinds of vehicles. The message to Tesla is narrower: wanting the rules to change isn’t the same as the rules having changed.
In short, Tesla is getting ahead of the rules because it doesn’t really believe that they will be enforced. It wouldn’t be the first time that Elon has seen himself above the law, and after spending $250 million to get Trump elected, he seems to be right. Unfortunately.
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