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Summary of Decisions - November 4, 2013 – November 8, 2013

November 8, 2013 - 2:57pm

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Personnel Security Hearing (10 CFR Part 710)

On November 5, 2013, an OHA Hearing Officer issued a decision in which she concluded that an individual’s security clearance should not be restored.  In April 2013, as part of a background investigation, the local security office (LSO) conducted a Personnel Security Interview (PSI) of the individual to address concerns about his alcohol use.  During that PSI, the individual was referred to a DOE consultant psychologist (DOE psychologist) for an agency-sponsored evaluation who concluded that the individual suffers from Alcohol Dependence. After conducting a hearing and evaluating the documentary and testimonial evidence, the Hearing Officer found that the individual had not yet demonstrated adequate evidence of rehabilitation from his Alcohol Dependence, and thus had not sufficiently mitigated the DOE’s security concerns.  OHA Case No. PSH-13-0094 (Kimberly Jenkins-Chapman)

On November 6, 2013, a Hearing Officer determined that an individual’s security clearance should not be restored. In reaching this determination, the Hearing Officer found that the individual had successfully addressed the DOE’s security concerns that the individual had a mental condition that significantly affected his judgment and reliability, but had not addressed the security concerns with his behavior. Specifically, the Hearing Officer concluded that, given the sexual dysfunction in the individual’s marriage, the chances of his returning to his previous behavioral pattern of frequenting prostitutes, using government-owned equipment to make appointments with exotic dancers, and storing sexually provocative pictures on his government computer were unacceptably high.  The Hearing Officer also found that this behavior could potentially render the individual to blackmail and coercion.  OHA Case No. PSH-13-0072 (Robert B. Palmer)

On November 8, 2013, a Hearing Officer determined that an individual’s security clearance should be restored. In reaching this determination, the Hearing Officer found that the individual had successfully addressed the DOE’s security concerns relating to his use of alcohol. Specifically, the Hearing Officer concluded that the individual had demonstrated rehabilitation from Alcohol-Related Disorder NOS, and that he was no longer a user of alcohol habitually to excess in light of his six months of abstinence as recommended by the DOE consultant psychologist, followed by responsible, infrequent alcohol use.  The Hearing Officer also concluded that the individual had mitigated the DOE’s concerns regarding criminal activity, specifically, his failure to renew his handgun to carry license.  OHA Case No. PSH-13-0093 (William M. Schwartz)

On November 7, 2013, an OHA Hearing Officer issued a decision in which she concluded that the DOE should not restore an individual’s suspended DOE access authorization.  A DOE Operations Office referred the individual to administrative review, citing as security concerns issues pertaining to the individual’s November 2012 arrest and subsequent felony charges of False Voting and Forgery.  After conducting a hearing and evaluating the documentary and testimonial evidence, the Hearing Officer determined that the individual did not present sufficient evidence to mitigate the security concerns at issue in the proceeding.   Specifically, the Hearing Officer concluded that, although the individual presented evidence of his excellent work record and community involvement, readily admitted that he committed the criminal offense, accepted responsibility for his behavior, and demonstrated sincere remorse, these positive factors were insufficient to fully resolve the security concerns raised by his recent criminal behavior.  The Hearing Officer noted that, despite his awareness that such conduct was illegal, the individual planned in advance to deceptively vote for his son in the 2012 Presidential Election because his son was unavailable to vote for himself.  The Hearing Officer concluded that the individual, a highly-educated professional, exercised inexcusably poor judgment in voting for his son, noting that the individual remains on probation for this offense.  Consequently, the Hearing Officer found that the individual had not demonstrated that the criminal behavior at issue is unlikely to recur or does not cast doubt on the individual’s reliability, trustworthiness, or good judgment.  OHA Case No. PSH-13-0099 (Diane DeMoura)

Privacy and Freedom of Information Act Appeals

On November 6, 2013, OHA issued a decision denying an appeal (Appeal) of a Privacy Act determination issued by the DOE’s Oak Ridge Office (ORO). The Appellant, Clarence Dorsey, appealed ORO’s determination that it could not locate any responsive records.  ORO explained to OHA that a search was conducted by the Records Holding Area (RHA) and the Oak Ridge Associated Universities (ORAU).  Based on the descriptions of the searches provided by both RHA and ORAU, OHA concluded that the search conducted was adequate and denied the Appeal.  OHA Case No. FIA-13-0068

On November 4, 2013, OHA issued a decision denying an appeal (Appeal) from a Freedom of Information Act (FOIA) determination issued by the Department’s Office of Information Resources (OIR) and Office of Electricity Delivery and Energy Reliability (OE). The Appellants, the Protect Our Communities Foundation, Backcountry Against Dumps, and Donna Tisdale, contested the adequacy of the search of documents responsive their FOIA request.  The OHA reviewed OE’s description of its search, indicating that a search of emails of an SME was conducted, and the OHA determined that OE conducted an adequate search for responsive documents. Moreover, OIR informed the OHA that it was also transferring the Appellants’ FOIA Request to the Office of Indian Energy Policy and Programs to conduct another search for responsive documents.  Accordingly, as to the new search for documents, the OHA denied the Appeal as moot, and as to OE’s search for documents, the OHA denied the Appeal.  OHA Case No. FIA-13-0066

Application for Exception

On November 6, 2013, OHA issued a decision granting an Application for Exception filed by Liebherr Canada Ltd. (Liebherr).  In its Application, Liebherr sought relief from the provisions of 10 C.F.R. Part 430, Energy Conservation Program for Consumer Products: Energy Conservation Standards for Refrigerators, Refrigerator-Freezers and Freezers (Refrigerator Efficiency Standards).  Liebherr requested relief for its built-in automatic defrost upright freezer with through-the-door ice service.  Liebherr noted that neither the current applicable energy efficiency standard for automatic defrost upright freezers (Class 9) nor the standard for built-in automatic defrost upright freezers with an automatic icemaker, which will take effect on September 15, 2014, accounts for through-the-door ice service and its inherent energy loss.  Liebherr argued that its new product could not meet either standard and, therefore, would suffer a serious inequity in the absence of exception relief.  OHA agreed, stating that such a result was an unintended consequence of the existing regulations, which were not intended to stifle innovation and new product development.  Accordingly, OHA determined that Liebherr was entitled to exception relief in the form of revised standards that account for the energy loss associated with through-the-door ice service.  OHA Case No. EXC-13-0004

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