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Summary of Decisions - July 23 – July 27, 2012

August 27, 2012 - 3:05pm


Personnel Security (10 CFR Part 710)

On July 27, 2012, a Hearing Officer issued a decision concluding that the DOE should not grantan individual an access authorization. A DOE-consultant psychologist had found that theindividual had antisocial tendencies, a mental condition that can affect judgment and reliability.In addition, the individual had raised security concerns by omitting or misrepresentingderogatory information on his Questionnaire for National Security Positions (QNSP) and at hisPersonnel Security Interview (PSI). Finally, the individual had a police record of chargesbeginning when he was a juvenile that indicated that he may not be reliable and trustworthy. Theindividual admitted that he engaged in an act of theft in 2010, and that he misrepresented hisreasons for committing the theft to the DOE. However, he contested the finding of antisocialtendencies, arguing that he was basically honest, that his lengthy police record consisted ofminor legal infractions, and that his other omissions and misrepresentations to the DOE had beeninadvertent. After considering all of the evidence and testimony in the proceeding, the HearingOfficer agreed with the DOE-consultant psychologist that the individual continued tomisrepresent his past actions at the hearing, that his police record indicated that the individualwas challenged to behave responsibly, and that the individual had not demonstrated that hisintentional omissions and misrepresentations to the DOE were limited to the 2010 arrest fortheft. Accordingly, the Hearing Officer found that the individual had antisocial tendencies thatraised security concerns which have not been mitigated. He also found that the individual hadnot yet mitigated the security concerns arising from his false statements to the DOE or from hispast failures to obey the law. OHA Case No. PSH-12-0050 (Kent S. Woods, H.O.)

Application for Exception

On July 27, 2012, OHA issued a decision granting an Application for Exception filed byPremium Quality Lighting, Inc. (PQL) 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, PQL asserted that it will suffer a serious hardship, gross inequity and anunfair distribution of burdens if required to adhere to the new Lighting Efficiency Standards,effective July 14, 2012 (2009 Final Rule), with respect to its 700 series T8 General ServiceFluorescent Lamps (GSFL). Specifically, PQL cited a previous OHA decision in which OHAgranted exception relief to Philips Lighting Company (Philips), GE Lighting (GE) and OSRAMSYLVANIA, Inc. (OSI), and maintained that PQL will be at an unfair competitive disadvantageif relief is granted to Philips, GE, and OSI, but not to PQL. Finding this case virtuallyindistinguishable from prior decisions, OHA held that the rare earth market remains volatile, and,as a result, domestic manufacturers remain subject to fluctuations in rare earth supply and pricesfor the foreseeable future. OHA further concluded that these circumstances, which compelled ourapproval of exception relief for Philips, GE, and OSI, have by consequence created a grossinequity for domestic manufacturers like PQL because the three companies may continue tomarket 700 series T8 GSFLs for a period of two years while other manufacturers may not do so.This would give Philips, GE, and OSI an additional competitive advantage over smaller domesticmanufacturers, an unintended consequence of both the existing regulations and of our subsequentexception relief to the three companies. Therefore, OHA determined that granting PQLexception relief was warranted in order to prevent inequities among the domestic lightingmanufacturers. Accordingly, OHA granted exception relief to the Applicant authorizing it tocontinue to manufacture 700 series T8 GSFLs subject to the currently applicable efficiencystandards for a period of two years, until July 14, 2014. OHA Case No. EXC-12-0006 (DianeDeMoura, H.O.)