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Summary of Decisions - July 9 - 13, 2012

July 13, 2012 - 2:14pm


Decisions Issued:

OHA issued the following decisions during the noted period:

Freedom of Information Act Appeal

On July 9, 2012, OHA issued a decision granting in part an appeal from a Freedom of Information Act (FOIA) determination issued by the Office of Information Resources (OIR). The National Security Archive (NSA) filed a FOIA request for documents relating to the Bonn Climate Change talks in August 2010. OIR conducted a search and located one responsive document. NSA challenged the adequacy of the search and the OIR agreed to search the retired records at the Washington National Records Center.  Consequently, OHA remanded this matter to OIR so that a search of those records could be performed.  OHA Case No. FIA-12-0034

Personnel Security (10 CFR Part 710)

On July 11, 2012, an OHA Hearing Officer issued a decision in which he determined that an individual had not successfully addressed the DOE’s security concerns and that the individual’s access authorization should therefore not be restored. During a routine reinvestigation of the individual, derogatory information was discovered regarding the individual’s finances and personal conduct. Specifically, she had a number of collection accounts, had failed to file state and federal income tax returns for 2008 and 2009, had improperly used funds disbursed to her by the federal government for personal needs rather than to pay her government credit card bill, had amassed 13 violations for traffic-related offenses over a three-year period, and had omitted or misrepresented significant information from a Questionnaire for National Security Positions. At the hearing, the individual mitigated the DOE’s security concerns regarding her finances, but the Hearing Officer concluded that the failure to file the tax returns in a timely manner, the 13 violations, and the misuse of funds intended to pay her government credit card bill constituted a pattern of illegal or inappropriate behavior that demonstrated a disturbing willingness to violate applicable laws, rules and regulations. Also, because of certain inconsistencies between the individual’s testimony at the hearing and her 2011 Personnel Security Interview, the Hearing Officer found that substantial doubts remained regarding the individual’s honesty. The Hearing Officer therefore concluded that the individual’s access authorization should not be restored.  OHA Case No. PSH-12-0019 (Robert B. Palmer, H.O.)

Application for Exception

On July 10, 2012, OHA issued a decision granting an Application for Exception filed by Halco Lighting Technologies (Halco) 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, Halco 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 700 series T8 General Service Fluorescent Lamps (GSFL).  Specifically, Halco cited previous requests for exception relief filed by Philips Lighting Company (Philips), GE Lighting (GE), OSRAM SYLVANIA, Inc. (OSI), and Ushio America, Inc. (Ushio), and maintained that Halco will be at an unfair competitive disadvantage if relief is granted to Philips, GE, OSI, and Ushio, but not to Halco.  In this case, OHA determined that the rare earth market remains volatile, and, as a result, domestic manufacturers remain subject to fluctuations in rare earth supply and prices for the foreseeable future.  OHA further concluded that these circumstances, which compelled our approval of exception relief for Philips, GE, OSI, and Ushio, have by consequence created a gross inequity for domestic manufacturers like Halco because the four companies may continue to market 700 series T8 GSFLs for a period of two years while other manufacturers may not do so. This would give those companies an additional competitive advantage over smaller domestic manufacturers, an unintended consequence of both the existing regulations and of our subsequent exception relief. Therefore, OHA determined that grating Halco exception relief was warranted in order to prevent inequities among the domestic lighting manufacturers.  Accordingly, OHA granted exception relief to the Applicant authorizing it to continue to manufacture 700 series T8 GSFLs subject to the currently applicable efficiency standards for a period of two years, until July 14, 2014.  OHA Case No. EXC-12-0005