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Summary of Decisions - July 16 - July 20, 2012

July 20, 2012 - 8:53am

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Freedom of Information Act Appeal

On July 19, 2012, OHA issued a decision denying a Freedom of Information Act (FOIA) Appealfiled by the National Security Archive (Appellant). The DOE’s Office of Information Resources(OIR) did not locate any documents responsive to the Appellant’s request. The Appellantrequested documents related to the Tianjin Climate Change Talks held October 4 to 9, 2010. TheAppellant listed three DOE officials who it alleged participated in the conference, CaseyDelhotal, Richard Duke, and Elmer Holt. Dr. Delhotal and Mr. Duke indicated that althoughthey were in Tianjin during the conference, they were there to talk to the National DevelopmentReform Commission, who hosted the Tianjin conference, about Clean Energy Ministerialinitiatives, a program completely separate from the United Nations Framework Commission onClimate Change conference. They were not part of the official US negotiating team. Mr. Holtindicated that he searched his work email account, documents stored on his computer and hardcopy files, papers, and notes in his possession but did not find anything responsive. He did notsearch the Washington Federal Records Center because he has never forwarded any documentsthere. OHA found that OIR conducted a search reasonably calculated to uncover responsiveinformation. OHA therefore denied the Appeal. OHA Case No. FIA-12-0037 (Janet Fishman,H.O.)

Personnel Security (10 CFR Part 710)

On July 19, 2012, an OHA Hearing Officer issued a decision in which she determined that anindividual=s access authorization should be restored. In reaching this determination, the HearingOfficer found that the individual had resolved the security concerns arising from his financialdifficulties. At the hearing, the individual presented evidence showing that he had co-signed fora mortgage for a friend. He had no interest in the house. He had no other financial irregularitieson his credit report. He indicated that there was a sales contract on the house and they expectedit to be sold soon. At that time, he did not expect to have any tax liability or liability to thelender. After considering all the evidence and testimony in the proceeding, the Hearing Officerfound that the individual had mitigated the security concerns raised in the Notification Letterwith regarding his honesty, reliability and trustworthiness. Therefore, the Hearing Officerconcluded that the individual’s access authorization should be restored. OHA Case No. PSH-12-0037 (Janet Fishman, 202-287-1579)

On July 17, 2012, a Hearing Officer determined that an individual’s security clearance should berestored. In reaching this determination, the Hearing Officer found that the individual was not anunlawful user of a controlled substance or an addict within the meaning of the BondAmendment, and that she had successfully addressed the DOE’s security concerns regarding herillegal use of prescription medication. He based these conclusions on his finding that theindividual’s ingestion of four hydrocodone tablets during a suicide gesture was an isolatedincident that was unlikely to be repeated. OHA Case No. PSH-12-0031 (Robert B. Palmer, H.O.)On July 18, 2012, an OHA Hearing Officer issued a decision in which he concluded that anindividual’s security clearance should be restored. A Local Security Office suspended theindividual’s security clearance because the individual admitted using a Schedule IV Drug(lorazepam) not prescribed to her, raising the concern that she was an unlawful user of acontrolled substance in violation of DOE security requirements and barred from holding asecurity clearance under 50 U.S.C. Section 435c (the Bond Amendment). After conducting ahearing and evaluating the documentary and testimonial evidence, the Hearing Officer found thatthe individual had presented sufficient evidence to resolve these security concerns. Specifically,he found that the individual established that her misuse of a prescription drug was confined totwo lorazepam pills provided to her by her sister, only one of which the individual consumed.The Hearing Officer also found that the individual’s sister provided the individual with the pillsto assist her in relieving stress and discomfort associated with a chronic, medical condition.Finally, the Hearing Officer found that the individual’s violation of DOE security requirementswas an inadvertent mistake that was unlikely to recur. He therefore concluded that theindividual had mitigated concerns that she was an abuser of prescription drugs and that the BondAmendment barred her from holding a security clearance. OHA Case No. PSH-12-0049 (KentS. Woods, H.O.)

On July 20, 2012 a Hearing Officer issued a decision in which he determined that an individual’saccess authorization should not be restored. In reaching this determination, the Hearing Officerfound that the individual had not resolved security concerns associated with his repeated failuresto file state and federal income tax returns and his history of financial delinquencies. At thehearing, the individual presented evidence that he had filed all his outstanding tax returns alongwith his plans to address his outstanding financial accounts. He also presented testimony fromfriends and co-workers testifying to his excellent character and security knowledge.Nevertheless, the Hearing Officer found that the individual, in his failure to file tax returns and toresolve his debts, had demonstrated a recent and significant lapse in judgment. Further, theindividual has not been able to demonstrate a substantial history of financial responsibility.Consequently, the Hearing Officer found that the individual had not presented sufficientevidence to resolve the security concerns raised by his recent failure to file tax returns andhistory of financial delinquencies. OHA Case No. PSH-12-0044 (Rich Cronin, H.O.)

Application for Exception

On July 20, 2012, OHA issued a decision granting an Application for Exception filed byLitetronics International, Inc. (Litetronics) for relief from the provisions of 10 C.F.R. Part 430,Energy Conservation Program: Energy Conservation Standards and Test Procedures for GeneralService Fluorescent Lamps and Incandescent Reflector Lamps (Lighting Efficiency Standards).In its exception request, Litetronics asserted that it will suffer a serious hardship, gross inequityand an unfair distribution of burdens if required to adhere to the new Lighting EfficiencyStandards, effective July 14, 2012 (2009 Final Rule), with respect to its 700 series T8 GeneralService Fluorescent Lamps (GSFL). Specifically, Litetronics cited previous requests forexception relief filed by Philips Lighting Company (Philips), GE Lighting (GE), OSRAMSYLVANIA, Inc. (OSI), Ushio America, Inc. (Ushio), and Halco Lighting Technologies(Halco), and maintained that Litetronics will be at an unfair competitive disadvantage if relief isgranted to Philips, GE, OSI, Ushio, and Halco, but not to Litetronics. In this case, OHAdetermined that the rare earth market remains volatile, and, as a result, domestic manufacturersremain subject to fluctuations in rare earth supply and prices for the foreseeable future. OHAfurther concluded that these circumstances, which compelled its approval of exception relief forPhilips, GE, OSI, Ushio, and Halco, have by consequence created a gross inequity for domesticmanufacturers like Litetronics because the four companies may continue to market 700 series T8GSFLs for a period of two years while other manufacturers may not do so. This would givethose companies an additional competitive advantage over smaller domestic manufacturers, anunintended consequence of both the existing regulations and of our subsequent exception relief.Therefore, OHA determined that granting Litetronics exception relief was warranted in order toprevent inequities among the domestic lighting manufacturers. Accordingly, OHA grantedexception relief to the Applicant authorizing it to continue to manufacture 700 series T8 GSFLssubject to the currently applicable efficiency standards for a period of two years, until July 14,2014. OHA Case No. EXC-12-0008 (David M. Petrush, 202-287-1887)

On July 20, 2012, OHA issued a decision granting an Application for Exception filed by SatcoProducts, Inc. (Satco) for relief from the provisions of 10 C.F.R. Part 430, Energy ConservationProgram: Energy Conservation Standards and Test Procedures for General Service FluorescentLamps and Incandescent Reflector Lamps (Lighting Efficiency Standards). In its exceptionrequest, Satco asserted that it will suffer a serious hardship, gross inequity and an unfairdistribution of burdens if required to adhere to the new Lighting Efficiency Standards, effectiveJuly 14, 2012 (2009 Final Rule), with respect to its 700 series T8 General Service FluorescentLamps (GSFL). Specifically, Satco cited a previous OHA decision in which OHA grantedexception relief to Philips Lighting Company (Philips), GE Lighting (GE) and OSRAMSYLVANIA, Inc. (OSI), and maintained that Satco will be at an unfair competitive disadvantageif relief is granted to Philips, GE, and OSI, but not to Satco. In this case, OHA determined thatthe rare earth market remains volatile, and, as a result, domestic manufacturers remain subject tofluctuations in rare earth supply and prices for the foreseeable future. OHA further concludedthat these circumstances, which compelled its approval of exception relief for Philips, GE, andOSI, have by consequence created a gross inequity for domestic manufacturers like Satcobecause the three companies may continue to market 700 series T8 GSFLs for a period of twoyears while other manufacturers may not do so. This would give Philips, GE, and OSI anadditional competitive advantage over smaller domestic manufacturers, an unintendedconsequence of both the existing regulations and of our subsequent exception relief to the threecompanies. Therefore, OHA determined that granting Satco exception relief was warranted inorder to prevent inequities among the domestic lighting manufacturers. Accordingly, OHAgranted exception relief to the Applicant authorizing it to continue to manufacture 700 series T8GSFLs subject to the currently applicable efficiency standards for a period of two years, untilJuly 14, 2014. OHA Case No. EXC-12-0009

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