The National Highway Traffic Safety Administration (NHTSA) has ordered Tesla to prove that Cybercab is legal for sale. The agency issued an official Special Order on September 10, requiring the company to demonstrate, under oath, how a vehicle with no steering wheel, no pedals, and no mirrors complies with federal safety standards written for human drivers.
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Tesla has until September 30 to respond. Failure to respond fully and honestly carries penalties of up to $139 million.
NHTSA opened Audit Query 26002 hours after Tesla launched its commercial Cybercab service in Austin on September 3. This is the escalation from an audit query to a legal claim, supported by the affidavit requirement.
The order includes 21 detailed requests and is signed by NHTSA General Counsel Peter Simshauser. It is addressed directly to Tesla's Chief Legal Officer and Deputy General Counsel for Regulatory Affairs.
The US does not pre-approve vehicle designs. Car manufacturers self-certify that their vehicles comply with all applicable Federal Motor Vehicle Safety Standards (FMVSS), and the NHTSA audits them afterwards. Tesla has certified the Cybercab as compliant with every applicable FMVSS.
However, most of these standards assume the existence of a driver. NHTSA quotes the law back to Tesla: “A person may not issue‘this certification’if, exercising reasonable care, the person has reason to know that the certification is false or materially misleading.” The agency is asking Tesla to defend a certification it suspects is undefendable.
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Tesla has an argument, and NHTSA is expecting it. Request 10 presses the company on which standards it believes do not apply to a driverless car, arguing that rules written for human-operated vehicles were never intended for one that takes on the entire driving task alone. The agency counters that until those rules are officially rewritten, they still apply, and “not applicable” is not a box that a manufacturer can check on their own.
Requirement 19 is particularly pointed. FMVSS No. 135 states: “Service brakes must be foot-operated.” The Cybercab does not have a foot-operated means. NHTSA notes that it has publicly stated that a vehicle manufacturer without a foot-operated service brake could not certify to this standard and asks Tesla to explain how it did exactly that. NHTSA has proposed revising this rule for foot-operated brakes for automated vehicles, but until it is finalized, the foot-operated means requirement still applies and NHTSA is enforcing it on Tesla.
One set of requests focuses on whether the Cybercab can be driven by a human using temporarily attached controls, which Tesla uses, and whether Tesla relied on those temporary controls to certify compliance. If it did, NHTSA wants to know how removing them aligns with the Safety Act’s “rendering inoperative” prohibition. The order defines “subject vehicles” as those that “lack permanently attached, conventional manual controls” — brake pedals, accelerator, steering wheel, mirrors and indicators.
The remaining requests concern specific standards that a car without a driver's seat begins to fail: FMVSS 101 for controls and indicators, 102 for shift position display, 108 for turn signals that self-cancel with steering wheel rotation, 111 for mirrors and rearview images, and 126 for stability control indicators.
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The last request may be the most damaging. NHTSA points to its own 2022 rule, which stated that further changes to the FMVSS will “likely be necessary.”
