We found that Viking was incurring design and retooling costs and would continue to do so during the period of relief. We question the logic of arguments advanced in support of the asserted cost advantage. The first argument is that Viking was able to devote resources to product development, thereby gaining an advantage, while other firms were devoting resources to compliance. Assuming arguendo that that statement is accurate, it follows that Viking must now devote resources to compliance while other firms can devote resources to product development. The second argument is that Viking will not pass through its design and retooling cost during the relief period.
Firms pass through costs unless precluded by market conditions or a desire to increase market share.
The exception relief will not change market conditions, which will apply to all the manufacturers of built-in refrigerators. As we have advised the parties, we are giving serious consideration to limiting the exception relief to preclude the use of relief to increase market share. Sub-Zero's request for an evidentiary hearing on the second and fourth issues is denied. If Sub-Zero elects to proceed with an evidentiary hearing on any of the three identified issues, GE, Whirlpool, and Viking will be permitted, but not required, to submit evidence on the issue.