### 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 / (202) 616-2645 (f) E-mail: antitrust@justice.usdoj.gov Web site: http://www.usdoj.gov



### JAN 

## 2 5 2010

Robert H. Edwards, Jr. Deputy General Counsel for Energy Policy Department ofEnergy Washington, D.C. 20585

DearDeputy General Counsel Edwards:

I am responding to yourNovember 19, 2009 letter seeking the views ofthe Attorney General about the potential impact on competition ofproposed energy conservation standards for small electric motors. Yourrequest was submitted pursuant to Section 325(0)(2)(B)(i)(V) ofthe Energy Policy and Conservation Act, as amended, ("EPCA"), 42 U.S.C. 

### § 6295(0)(B)(i)(V), which requires the Attorney General to make a determination ofthe impact ofany lessening of competition 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 ofa program 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 aproposed standard may lessen competition, for example, by substantially limiting consumer choice, leaving
consumers with fewer competitive alternatives, placing certain manufacturers ofaproduct at an unjustified competitive disadvantage compared to other manufacturers, orby inducing avoidable inefficiencies in production or distribution ofparticularproducts.

We have reviewed the proposed standards contained in the Notice ofProposed Rulemaking ("NOPR")(74 Fed. Reg. 61410) and attended the December 17,2009 public hearing

on the proposed standard.

Based on ourreview ofthe record, the proposed standards for small electric motors could increase costs for consumers who need to replace small electric motors in existing equipment. Proposed Trial Standard Level (TSL) 5 for polyphase small electric motors and TSL 7 for all capacitor-start small electric motors apply to motors sold as replacements as well as to those builtinto original equipment. We understand that compliance with those standards could require manufacturers to increase the size oftheirmotors such that the larger motors will not fit into existing space constrained equipment. In such a case, owners ofexisting equipment with a broken motorwould have to eitherreplace the entire piece ofequipment or attempt to repair the 

### motor. Suchequipmentowners wouldnothave the optionofsimplyreplacingthe existing small electric motor, thus limiting the range ofcompetitive alternatives available to them. This maybe quite onerous to consumers when the motor is only a small component ofthe total cost ofthe item and repairing the motor is difficult or costly. We ask the Department ofEnergy to take this possible impact into account and consider, as is warranted, exempting from the proposed standard the manufacture and marketing ofcertain replacement small electric motors for a limited period in time.

# ~Jt Christine A. Varney Assistant Attorney Generat/