EERE-2006-STD-0125 COMMENT 61

Eric J. Fygi, Deputy General Counsel 

Department of Energy 

Washington, D.C. 20585 

Dear Deputy General Counsel Fygi: 

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 (f) 

E-mail: antitrust@justice.usdoj.gov 

Web site: http://www.usdoj.gov 

July 23, 2009 

I am responding to your May 22, 2009 letter seeking the views of the Attorney General 

about the potential impact on competition of proposed energy conservation standards for Class A 

and Class B refrigerated beverage vending machines ("BVMs"). Your request was submitted 

pursuant to Section 325(0)(2)(B)(i)(V) of the 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 of the impact of any lessening of competition that is likely to result from the 

imposition of proposed energy conservation standards. The Attorney General's responsibility for 

responding to requests from other departments about the effect of a program on competition has 

been delegated to the Assistant Attorney General for the Antitrust Division in 28 CFR § 0.40(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 of a product at an 

unjustified competitive disadvantage compared to other manufacturers, or by inducing avoidable 

inefficiencies in production or distribution of particular products. 

We have reviewed the proposed standard contained in the Notice of Proposed Rulemaking 

("NOPR") (74 Fed. Reg. 26020) and attended the June 17,2009 public hearing on the proposed 

standard. In addition, we have conducted interviews with members of the industry. 

Based on our review of the record and information we have gathered, we do not believe 

the proposed standard for Class B BVMs would likely lead to a lessening of competition. Weare 

concerned, however, that the proposed Trial Standard Level 6 for Class A BVMs could 

potentially lessen competition. BVM manufacture is a highly concentrated industry in the United 

States, and compliance with the proposed Class A standard could require a disproportionate 

investment by some manufacturers, potentially placing them at a disadvantage vis-a-vis others 

and leading to greater concentration. Compliance with a lesser standard does not appear to raise 
EERE-2006-STD-0125 COMMENT 61

similar concerns. 

We ask the Department of Energy to take this possible competitive impact into account. 

We further ask the Department of Energy to ensure that the standard it adopts for Class A BVMs 

will not require access to intellectual property owned by an industry participant, which would 

place other industry participants at a comparative disadvantage. 

4b1~ . stine A. varnei' . ., (J 

Assistant Attorney General 
-----Original Message----- From: Hughes, Angela [mailto:Angela.Hughes@usdoj.gov] Sent: Monday, July 27, 2009 5:06 PM To: Pinto, Francine Subject: DOJ letter on beverage vending machines 

 <<Signed Letter To Doe.pdf>> 

I will also mail a hard copy. 

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EERE-2006-STD-0125 COMMENT 61