From: david.kayes@daimler.com

To: Byron Bunker/AA/USEPA/US@EPA

Cc: brian.burton@daimler.com, donald.keski-hynnila@daimler.com

Date: 03/31/2011 07:48 PM

Subject: EPA and NHTSA regulatory exemptions do not match

Byron:

I know that the official time for submitting comments has passed, but I only recently noticed something 

that is definitely confusing and potentially a problem with the NPRM text: the NHTSA and EPA 

exemptions do not match. I do not know whom at NHTSA to contact (Coralie?), so perhaps you can 

forward this on.

Your regs and NHTSA differ in a significant way. In general, I recommend against any slight textual 

difference between the two agencies' regulations, even if the intended meanings of both regulations are 

the same. There will always be a chance of different interpretations or unintended consequences of 

textual between the regulations. But here, the regulations are quite different, to the point that the NHTSA 

regulation renders invalid the EPA exemption. NHTSA's regulation needs to change in order to allow 

proper industry functioning.

The EPA regulations at 40 CFR §§1036.601 and 1037.601 provide for exemptions, including a test 

exemption like the one that we manufacturers currently use for criteria pollutant exemption on R&D

vehicles. In many cases we build, import, or alter a vehicle for testing in conditions representative of our 

customer-fleets' operations. We sell the vehicle to the customer with a 85 CFR §85.1705 exemption 

covering the introduction into commerce, on conditions including that the customer (1) test the vehicle in 

representative duty and (2) allow us to either (a) upgrade the vehicle and engine to full compliance at the 

end a year or year and a half (sometimes we need to extend the exemption) or (b) get rid of the vehicle if 

we cannot bring it into compliance as a certified configuration. We do this because in-use testing of a 

limited number of vehicles occurs in parallel with final development processes and associated certification 

testing. Stated another way: testing and certifying development-stage hardware is not practical.

The NHTSA regulations in the NPRM do not contain a test exemption for tractors or vocational vehicles. 

Those regulations contain exemptions for off-road vehicles, for small businesses, and for a certain 

percentage of heavy-duty pickup and van sales but not for the types of test vehicles about which I am 

presently concerned. So, if we have a vehicle that is (say) a one-off prototype test tractor or vocational 

vehicle, then we can exempt that vehicle from EPA regulations but not NHTSA's. Specifically, 49 CFR 

§535.8 provides for precertification and end-of-year reports without exemptions for any vehicles. That 

section and §535.9, however, seem to indicate that NHTSA compliance is equivalent to EPA compliance 

(i.e., compliance with 40 CFR §1037.730 reporting requirements and EPA AB&T limits). In turn, we have 

to report to NHTSA the fuel consumption of vehicles that EPA exempts, although those vehicles might not 

count toward NHTSA compliance. (I write "seem to" and "might" because, I admit, I am confused about 

this.) In any case, we still have to report. So there is the difference: NHTSA requires reporting (at the 

least) of fuel consumption of vehicles that EPA exempts.

You might say: if we merely have to report on the vehicles, but we are not responsible for compliance (in 

the sense of AB&T limit compliance), then what is the problem with the difference? The problem is that 

reporting requires testing and/or calculation of Cd*A, and these are resource-intensive processes. Even if 

NTHSA is fine with manufacturers submitting "sand-bagged" Cd*A numbers (i.e., reporting all exempt 

vehicles as Classic-bin vehicles, knowing that the values do not count against AB&T limits), there is a

problem with either (1) requiring manufacturers to expend resources on exempt vehicles or (2) requiring 

us to inaccurately report data under signature of a company official. The only way around this is for us to 
certify all vehicles, rendering the EPA exemptions invalid. These are valuable exemptions from our sake 

and (I think) yours, because they help us develop new vehicles on a reasonable time-frame.

In turn, I recommend that NHTSA adopt the EPA exemptions (either word-for-word or by saying "EPA 

exemptions apply").

Sorry for the long email, but this was not an easy problem to describe. And, as we start preparing our 

test vehicles for 2012 (model year 2013), it is a problem we will need to address.

Regards,

Dave

-------------------------

David Kayes

Compliance and Regulatory Affairs --- Environmental Compliance

Daimler Trucks

(503) 745-9162 Office

(503) 265-9838 Mobile

David.Kayes@Daimler.com

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