Eric J. Fygi, Deputy General Counsel Department ofEnergy 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 ofthe Attorney General about the potential impact on competition ofproposed 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) 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 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 ofa 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 ofa product at an unjustified competitive disadvantage compared to other manufacturers, or by inducing avoidable inefficiencies inproduction or distribution ofparticular products.

We have reviewed the proposed standard contained in the Notice ofProposed 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 ofthe industry.

Based on our review ofthe record and information we have gathered, we do not believe the proposed standard for Class B BVMs would likely lead to a lessening ofcompetition. 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, potentiallyplacing them at a disadvantage vis-a-vis others and leading to greater concentration. Compliance with a lesser standard does not appear to raisesimilar concerns.

We ask the Department ofEnergy to take this possible competitive impact into account. We further ask the Department ofEnergy to ensure that the standard it adopts for Class A BVMs will not require access to intellectual property owned by an industryparticipant, which would place other industryparticipants at a comparative disadvantage.

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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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