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Summary of Decisions - March 18, 2013 - March 22, 2013

March 22, 2013 - 2:09pm

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Personnel Security Hearing (10 CFR Part 710)

On March 22, 2013, an OHA Hearing Officer issued a decision in which she concluded that an individual’s security clearance should not be restored.  A Local Security Office conducted a Personnel Security Interview of the individual to address concerns about his pattern of criminal conduct.  After conducting a hearing and evaluating the documentary and testimonial evidence, the Hearing Officer found that the individual did not present sufficient evidence to resolve the security concerns associated with his May 2012 arrest for  Felony Battery.  OHA Case No. PSH-12-0142 (Kimberly Jenkins-Chapman, H.O.)

On March 18, 2013, an OHA Hearing Officer issued a decision in which he determined that an individual’s DOE access authorization should not be restored.  The individual had a history of three arrests, two of which was alcohol-related.  A DOE psychologist opined that the individual has the tendency to minimize his responsibility and misrepresent facts when they could reflect badly on him.  The Hearing Officer found that the individual had mitigated the security concerns arising from the DOE psychologist’s assessment.  However, the Hearing Officer found that the individual had failed to mitigate the security concerns raised by his conduct resulting in three arrests, two of which involved his use of alcohol.  OHA Case No. PSH-12-0125 (Steven L. Fine, H.O.)

Freedom of Information Act Appeals

On March 18, 2013, OHA issued a decision denying a FOIA Appeal filed by the Sierra Club (Appellant) of a determination issued by the DOE Office of Information Resources (OIR).  In its determination, OIR denied the Appellant’s request for expedited processing.  The FOIA provides that expedited processing is to be offered only when the requester demonstrates a “compelling need,” or when otherwise determined by the agency. The Appellant contends that its FOIA request concerns a time-sensitive matter because the requested information is required to develop a full analysis of the NERA study.  However, the Appellant noted in its request that comments regarding the study were due to DOE on February 25, 2013.  With the closing of the comment period, OHA did not see this request as a matter of exigency to the American public to warrant expedited processing. OHA Case No. FIA-13-0009

On March 20, 2013, OHA issued a decision remanding an appeal (Appeal) from a Freedom of Information Act (FOIA) determination issued by the DOE Office of Fossil Energy (FE).  The Appellant appealed the FE’s decision to withhold information in the released document pursuant to FOIA Exemption 5.  OHA concluded that the FE and the Office of Information Resources, which also redacted material in the released document, did not properly support their justifications for invoking Exemption 5, and accordingly OHA remanded the Appeal to both Offices. OHA Case No. FIA-13-0010

Application for Exception

On March 18, 2013, OHA issued a decision denying an Application for Exception filed by W. W. Grainger, Inc. (Grainger) for relief from the provisions of 10 C.F.R. Part 430, Energy Conservation Program: Energy Conservation Standards and Test Procedures for General Service Fluorescent Lamps and Incandescent Reflector Lamps (Lighting Efficiency Standards).  In its exception request, Grainger asserted that it will suffer a serious hardship, gross inequity and an unfair distribution of burdens if required to adhere to the new Lighting Efficiency Standards, effective July 14, 2012 (2009 Final Rule), with respect to its LumaPro brand 700 series T8 General Service Fluorescent Lamps (GSFL).  Specifically, Grainger cited a previous OHA decision in which OHA granted exception relief to Philips Lighting Company (Philips), GE Lighting (GE) and Osram Sylvania, Inc. (OSI), as well as several subsequent cases granting similar relief to other manufacturers, and maintained that Grainger will be at an unfair competitive disadvantage if relief is granted to Philips, GE, and OSI, and other manufacturers, but not to Grainger.  In this case, OHA concluded that Grainger was not subject to the same challenges and constraints faced by the other companies for which OHA previously granted exception relief, as much of Grainger’s revenue from the 700 series T8 GSFLs is derived from other brands.  Moreover, OHA concluded that as Grainger began selling its product after DOE promulgated the 2009 Final Rule, the burdens that it seeks to alleviate through exception relief would be attributable to its discretionary business decision, rather than the impact of DOE regulations. Accordingly, OHA denied exception relief to Grainger.  OHA Case No. EXC-13-0003

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