### -----Original Message----- From: O'Neill, Kathleen S [mailto:Kathleen.Oneill@usdoj.gov] Sent: Friday, June 12, 2009 4:40 PM To: rulemaking, fluorescent_and_incandescent_lamps Cc: Stallings, William Subject: DOJ's Comments re: EE-2006-STD-0131 and RIN 1904-AA92
The Department of Justice intends to file comments in the above-referenced proceeding. Due to internal scheduling conf licts the Department is not in a position to make its filing today. We will file on Monday, June 15. We appreciate the Department of Energy's understanding withrespect to this minor delay. If there any questions, please feel free to contact me orWilliam Stallings (202) 514-9323. Thank you
Kathleen S. O'Neill Department of Justice, Antitrust Division Transportation, Energy & Agriculture Section 450 5th Street, N.W. Washington, D.C. 20001 Phone (202) 307-2931 Fax (202) 307-2784 kathleen.oneill@usdoj.gov

### From: Stallings, William [mailto:William.Stallings@usdoj.gov] Sent: Monday, June 15, 2009 5:13 PM To: rulemaking, fluorescent_and_incandescent_lamps Cc: Stas, Eric; O'Neill, Kathleen S; Raymond, Kristen Subject: DOJ's Comments re: EE-2006-STD-0131 and RIN 1904-AA92

Please find attached DOJ's comments. Feel free to call me at 202-514-9323 if there are any questions.
Thank you.
<<DOE -- Belmar.pdf>>

### DEPARTMENT OF JUSTICE Antitrust Division


### CHRISTINE A. VARNEY Assistant Attorney General

Main Justice Building 950 Pennsylvania Avenue, N.W. Washington, D.C. 20530-0001 (202) 514-2401 1(202) 616-2645 (Fax) E-mail: antitrusLatr@usdoj.gov Web site: hltp:!/www.usdoj.gov/atr

June 15,2009

Warren Belmar Deputy General Counsel for Energy Policy Department ofEnergy Washington, DC 20585

Dear Deputy General Counsel Belmar:

I am responding to your letter seeking the views ofthe Attorney General about the potential impact on competition ofproposed amended energy conservation standards for general service fluorescent lamps ("GSFL") and incandescent reflector lamps ("IRL"). Your request was submitted pursuant to Section 325(0)(2)(B)(i)(V) ofthe Energy Policy and Conservation Act, as amended, ("ECPA"), 42 

### V.S.c. § 6295(o)(B)(i)(V), which requires the Attorney General to make
a detennination ofthe impact ofany lessening ofcompetition that is likely to result from the imposition ofproposed energy conservation standards. The Attorney General's responsibility for responding to requests from other departments about the effect ofaprogram on competition has been delegated to the Assistant Attorney General for the Antitrust Division in 28 CFR § OAO(g).

In conducting its analysis the Antitrust Division examines whether a proposed standard may lessen competition, for example, by substantially limiting consumer choice, leaving
consumers with fewer competitive alternatives, placing certain manufacturers ofa product at an unjustified competitive disadvantage compared to other manufacturers, or by inducing avoidable inefficiencies in production or distribution ofparticular products.

We have reviewed the proposed standards contained in the Notice ofProposed Rulemaking ("NOPR") (74 Fed. Reg. 16920, April 13,2009) and the supplementary infonnation submitted to the Attorney General, and attended the February 3,2009 public hearing on the proposed standards.

Based on this review, the Department ofJustice does not believe that the proposed standard for GSFLs would likely lead to a lessening ofcompetition. Our review has focused upon the standards DOE has proposed adopting; we have not detennined the impact on competition ofmore stringent standards than those proposed in the NOPR.

With respect to IRLs, the Department is concerned that the proposed Trial Standard Level 4 could adversely affect competition. The NOPR would increase the minimum efficiency levels for IRLs to the second highest level under consideration in this rulemaking. The IRL market isWarren Belmar, Deputy General Counsel for Energy Policy June 15,2009 Page 2

highly concentrated, with three domestic manufacturers. Based on our review, it appears that only two ofthese finns may currently manufacture IRLs that would meet the new standard. It is
our understanding thatthese fim1s produce only limited quantities ofsuch products for high-end applications. The current producers may not have the capacity to meet demand. In addition, one ofthese manufacturers uses proprietary technology currently unavailable to othermanufacturers.

Given the capital investments new entrants or providers would be required to make, and the potential that manufacturers may have to obtain proprietary technology, there is a risk that
one ormore IRL manufacturers will not produce products that meet the proposed standard.

We request that the Department ofEnergy consider the possibility ofnew technology in this area as it settles on standards in this field.