CREW

By facsimile: 202-456-6022

I

citizens for responsibility and ethics in washington

May 10, 2012

Office of Science and Technology Policy Attn: FOIA Officer 1650 Pennsylvania Avenue, N.W. Washington, D.C. 20504 Re: Freedom of Information Act Request Dear FOIA Officer: Pursuant to the Freedom oflnformation Act ("FOIA"), 5 U.S.C. § 552, et seq., and Department of Justice regulations, 28 C.F.R. Part 16,1 Citizens for Responsibility and Ethics in Washington ("CREW") makes the following expedited request for records. First, CREW requests copies of all correspondence, memoranda, email, and phone records with, involving, or referencing Jigar Shah and/or representatives of the Coalition for Affordable Solar Energy ("CASE"), SunEdison, Edison International or Edison Southern California from January 1,2008, to April 30, 2012. CREW's request includes, but is not limited to, the Department of Energy' s SunS hot Initiative and its Small Town Energy Program for University Park (STEP-UP). In addition to external and intra-agency communications, CREW's request includes, but is not limited to, correspondence, memoranda, email and phone records with any and all other federal agencies and/or White House individuals or offices. By way of background, Jigar Shah is the founder of SunEdison, reportedly North America's largest solar energy services provider, chairman of CASE, and was an external reviewer of the SunShot Initiative's "Vision Study" published in February 2012. Further, Mr. Shah was a keynote speaker at DOE's Solar America Cities Program Annual Meeting in 2011. Second, CREW requests all documents referencing, concerning, or explaining the relationship between SunEdison and Edison International and/or Edison Southern California. In October 2009, SunEdison was purchased by MEMC Electronic Materials ("MEMC"), but continues to retain its name. Further, although Mr. Shah left SunEdison in 2008, he continues to retain an interest in MEMC. Third, CREW requests all documents referencing, concerning, or explaining the March 20,2012 preliminary decision of the U.S. International Trade Commission to impose import duties on solar panels from China ranging from 2.9% to 4.73%, as well as all documents
1 According to its website, the Office of Science and Technology ("OSTP") does not have its own regulations, but instead follows those of the Department of Justice.

1400 Eye Street, N.W., Suite 450, Washington, D.C. 20005

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202.408.5565

phone

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202.588.5020

fax

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www.citizensforethics.org

'..:e>-,

FOIA Officer May 10,2012 Page Two referencing or concerning the upcoming final decision of the U.S. Department of Commerce on May 16,2012, on whether to impose anti-dumping duties on China. Please search for responsive records regardless of format, medium, or physical characteristics. Where possible, please produce records electronically, in PDF or TIF format on a CD-ROM. We seek records of any kind, including electronic records, audiotapes, videotapes, and photographs. Our request includes any letters, emails, facsimiles, telephone messages, voice mail messages, and transcripts, notes, or minutes of any meetings, telephone conversations, or discussions. Our request also includes any attachments to these records. If it is your position that any portion of the requested records is exempt from disclosure, CREW requests that you provide it with an index of those documents as required under Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), cert. denied, 415 U.S. 977 (1972). As you are aware, a Vaughn index must describe each document claimed as exempt with sufficient specificity "to permit a reasoned judgment as to whether the material is actually exempt under FOIA." Founding Church of Scientology v. Bell, 603 F.2d 945, 949 (D.C. Cir. 1979). Moreover, the Vaughn index must "describe each document or portion thereof withheld, and for each withholding it must discuss the consequences of supplying the sought-after information." King v. Us. Dep 't of Justice, 830 F.2d 210, 223-24 (D.C. Cir. 1987) (emphasis added). Further, "the withholding agency must supply 'a relatively detailed justification, specifically identifying the reasons why a particular exemption is relevant and correlating those claims with the particular part ofa withheld document to which they apply.'" Id at 224 (citing Mead Data Central v. Us. Dep 'f of the Air Force, 566 F.2d 242, 251 (D.C. Cir. 1977)). In the event some portions of the requested records are properly exempt from disclosure, please disclose any reasonably segregable non-exempt portions of the requested records. See 5 U.S.C. § 552(b). If it is your position that a document contains non-exempt segments, but that those non-exempt segments are so dispersed throughout the document as to make segregation impossible, please state what portion of the document is non-exempt, and how the material is dispersed throughout the document. Mead Data Central, 566 F.2d at 261. Claims of nonsegregability must be made with the same degree of detail as required for claims of exemptions in a Vaughn index. If a request is denied in whole, please state specifically that it is not reasonable to segregate portions of the record for release. Finally, CREW welcomes the opportunity to discuss with you whether and to what extent this request can be narrowed or modified to better enable DOE to process it within the FOIA's deadlines. Anne L. Weismann, the CREW attorney handling this matter, can be reached at (202) 408-5565 or aweismann@citizensforethics.org. Fee Waiver Reguest

FOIA Officer May 10,2012 Page Three In accordance with 5 U.S.C. § 552(a)(4)(A)(iii) and 28 C.F.R. § 16.11(k), CREW requests a waiver of fees associated with processing this request for records. The subject of this request concerns the operations of the federal government and expenditures, and the disclosures will likely contribute to a better understanding of relevant government procedures by CREW and the general public in a significant way. Moreover, the request is primarily and fundamentally for non-commercial purposes. 5 U.S.C. § 552(a)(4)(A)(iii). See, e.g., McClellan Ecological v. Carlucci, 835 F.2d 1282, 1285 (9th Cir. 1987). Specifically, the requested records are likely to contribute to greater public awareness of the role Jigar Shah and CASE may have played in the development of U.S. solar energy policy, and the decision of the U.S. International Trade Commission in March 2012 to impose duties of 2.9% to 4.73% on solar panels exported by Chinese solar manufacturers. That decision, issued at a critical time in U.S.-China relationships, has been widely criticized as imposing tariffs that are too low and failing to protect U.S. interests at home in the production of solar panels. CREW is a non-profit corporation, organized under section 501(c)(3) of the Internal Revenue Code. CREW is committed to protecting the public's right to be aware of the activities of government officials and to ensuring the integrity of those officials. CREW uses a combination of research, litigation, and advocacy to advance its mission. The release of information garnered through this request is not in CREW's financial interest. CREW will analyze the information responsive to this request, and will share its analysis with the public, either through memoranda, reports, or press releases. In addition, CREW will disseminate any documents it acquires from this request to the public through its website, www .citizensforethics.or~, which also includes links to thousands of pages of documents CREW acquired through its multiple FOIA requests as well as documents related to CREW's litigation and agency complaints, and through www.scribd.com. Under these circumstances, CREW satisfies fully the criteria for a fee waiver. News Media Fee Waiver Request CREW also asks that it not be charged search or review fees for this request because CREW qualifies as a "representative of the news media" pursuant to the FOIA. In Nat 'I Sec. Archive v. Us. Dep't of Defense, 880 F.2d 1381, 1386 (D.C. Cir. 1989), the Court of Appeals for the District of Columbia Circuit found the National Security Archive was a representative of the news media under the FOIA, relying on the FOIA's legislative history, which indicates the phrase "representative of the news media" is to be interpreted broadly; "it is critical that the phrase 'representative of the news media' be broadly interpreted if the act is to work as expected .... In fact, any person or organization which regularly publishes or disseminates information to the public ... should qualify for waivers as a 'representative of the news media. '" 132 Congo Rec. S14298 (daily ed. Sept. 30, 1986), cited in id.

FOIA Officer May 10,2012 Page Four CREW routinely and systematically disseminates information to the public in several ways. First, CREW maintains a frequently visited website, www.citizensforethics.org, that received 39,474 visits in April 2012. In addition, CREW posts all of the documents it receives under the FOIA on www.scribd.com. and that site has received 1,919,883 visits to CREW's documents since April 14, 2010. Second, since May 2007 CREW has published an online newsletter, CREWCuts, that currently has 16,553 subscribers. CREWCuts provides subscribers with regular updates regarding CREW's activities and information the organization has received from government entities. A complete archive of past CREWCuts is available at http://www.citizensforethics.orWnewsletter. Third, CREW publishes a blog, Citizens blogging for responsibility and ethics in Washington, that reports on and analyzes newsworthy developments regarding government ethics and corruption. The blog, located at http://www.citiznesforethics.orglblog, also provides links that direct readers to other news articles and commentary on these issues. CREW's blog had 5,411 page views in April 2012. Finally, CREW has published numerous reports to educate the public about government ethics and corruption. See The Revolving Door, a comprehensive look into the post-government activities of24 former members of President Bush's cabinet; Record Chaos, which examines agency compliance with electronic record keeping responsibilities; and Those Who Dared: 30 Officials Who Stood Up For Our Country. These and all other CREW's reports are available at http://www.citizensforethics.org/reports. Based on these extensive publication activities, CREW qualifies for a fee waiver as a "representative of the news media" under the FOIA and agency regulations. Request for Expedition Pursuant to 5 U.S.C. § 552(a)(6)(E)(I), CREW requests that OSTP expedite the processing of this request in light of the compelling need for the requested information. CREW is a non-profit corporation engaged primarily in disseminating information it gathers from a variety of sources, including the FOIA, and seeks the information requested in this FOIA request for the express purpose of disseminating it to the public. As discussed above, CREW's website contains numerous examples of its efforts in this regard. It is CREW's hope that by disseminating this type of information, the public will be better able to evaluate the actions of public officials and will have a more effective voice.

FOIA Officer May 10,2012 Page Five As with the Electronic Privacy Information Center and the ACLU, two organizations the courts have found satisfy the criteria necessary to qualify for expedition,' CREW '''gathers information of potential interest to a segment of the public, uses its editorial skills to tum the raw material into a distinct work, and distributes that work to an audience." ACLU, 321 F. Supp.2d at 30 n.5 (quoting EPIC, 241 F. Supp.2d at 11). There is a compelling need for the requested records in light of the upcoming decision by the U.S. Commerce Department on May 16,2012, on whether to impose anti-dumping duties on China. Its preliminary decision to impose import duties on solar panels from China ranging from 2.9% to 4.73% already has come under heavy criticism, with concerns raised that the U.S. is trying to protect its relationship with China to the detriment of U.S. manufacturers of solar panels. The upcoming action may have a significant economic impact, especially given the pressure to develop more clean energy alternatives like solar panels. See, e.g., Mark Clifford, Sun spots: Symbolic US-China solar standoff, Market Watch , April 5, 2012; Testing US-China solar bonds, Bloomberg New Energy Finance, Climate Spectator, March 29,2012 (both attached as Exhibit A). Accordingly, CREW requests that this request be expedited. Conclusion If you have any questions about this request or foresee any problems in releasing fully the requested records please contact me at (202) 408-5565. Also, if CREW's request for a fee waiver is not granted in full, please contact our office immediately upon making such a determination. Please send the requested records to Anne L. Weismann, Citizens for Responsibility and Ethics in Washington, 1400 Eye Street, N.W., Suite 450, Washington, D.C. 20005, or aweismann@citizensforethics.org.

e L. Weismann Chief Counsel Enclosure

2 See ACLU v. Us. Dep't of Justice, 321 F.Supp.2d 24,30 (D.D.C. 2004); EPIC v. Dep 't of Defense, 241 F. Supp 2d 5, 11 (D.D.C. 2003).

EXHIBIT A

Sun spots: Symbolic U.S.-China solar standoff - MarketWatch

Page 1 of3

MarketWatch
Caixrn Online

April 5 2012,1008

P m. EDT

Sun spots: Symbolic U.S.-China solar standoff
Commentary:
By Mark Clifford

There is need

to keep the renewable energy field open

BEIJING ( Caixin Online) - Solar panels are ugly, they are expensive and the power they produce is almost meaningless in the overall energy mix of the world's two largest economies, the United States and China. Yet the unsightly black photovoltaic leadership in the clean-tech (PV) panels are now a symbol of innovation. holding the promise of green jobs and

economy. of U.S. President Barack Obama finds itself balancing the demands of U.S. at bay against the desire to avoid increasing trade tensions with China, has made good along with the 100,000 American workers that the but the Obama administration

Little wonder that the administration while keeping U.S. consumers decisions.

producers to keep their Chinese competitors solar support industry claims to employ -

who want cheap Chinese panels -

happy. It's a big challenge,

U.S. solar producers

in October filed suit accusing Chinese support in loans, subsidized land and similar

mtifflffl

ABOUT CA1XIN Caixin is a Beijing-based group dedicated quality and authoritative through periodicals, media financial to providing high-

manufacturers

of receiving illegal Chinese government

the form of preferential

Oaixin online
onqlisb.cainq.com

benefits. U.S. imports of Chinese solar panels have skyrocketed in recent years, from $640 million in 2009 to $3.1 billion in 2011, according to U.S. Department producers out. But this case was never just about solar panels. Washington of Commerce data. U.S. producers want stiff tariffs and duties to keep Chinese solar

and business news and information online and TV/video programs. • Get the Caixin e-newsletter

missed its first deadline for announcing made his trip to Washington. Investors in the Chinese companies rallied more than 12% on the news.

tariffs for Chinese solar panels in February -

the same month that Xi Jinping

When the decision to impose tariffs came in late March, the penalties were only symbolic. cheered the light penalties: Stocks of three leading Chinese solar companies

The tariffs which range from 2.9% to 4.73% have little but nuisance value. The head of one U.S. solar company that uses Chinese panels to assemble full systems told The New York Times that the tariffs would only push the price of a $600 solar system to $610, in other words, the tariffs will add about the price of two cups of coffee at Starbucks. The tariffs imposed by the commerce summer could be higher especially department allow the Obama administration heats up. to say that it is standing up to China in the

but they don't put any real barriers to trade. This is a preliminary if the political temperature

ruling and the final penalties announced

The impact is clear: Even in an election year in which China is emerging as an important issue, the U.S. is still open to business for Chinese solar manufacturers. The mild penalties announced by the U.S. shouldn't obscure the fact that China's industry has some serious problems.

http://www.marketwatch.comlStory/story/print?guid=97F911

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5/10/2012

Sun spots: ~ymbOIIC u.x-Cnma solar standoff'- MarketWatch

Page 2 of3

Savage competition spectacular

among Chinese domestic players has resulted in

price falls. The spot price of polysilicon, the key

ingredient in PV panels, has fallen more than 90% since 2008. Prices of silicon panels fell about half last year. Chinese solar makers are burning through cash and many are posting significant losses. Chinese banks potentially have a lot to lose as well. According to data sourced to Mercom Capital Group, in 2010 China

Stranded whale shark dies in China
A 3,000 kilogram whale shark dies after becoming stranded in southern China. (Video: Reuters/Photo: AP)

Development

Bank promised to lend almost $32 billion to five The $31.8 billion in credits made up the

Chinese solar companies.

top five debt deals in the world for the solar industry that year. Viewed from the perspective of the companies that brought the anti-

dumping suit against the Chinese manufacturers,

subsidized finance and a variety of other Chinese government favors driving some companies out of

and incentives have been a disaster for the industry. Profitability has been destroyed, business and making it difficult for others to fund innovation. From another perspective, conventional Zhengrong

the steep decline in prices has brought forward the time in which solar is competitive with such as Suntech Power's (NYSE:STP) power in many places. subsidies. This Chief Executive Shi with conventional

forms of power. In fact, solar advocates claim that solar is already competitive

Important as the trade dispute is, there are other tremors shaking the industry. Germany is eliminating phasing out of feed-in tariffs (which have guaranteed a subsidized electricity into the grid) is hurting prospects for what has been one of the world's largest solar markets. The largest U.S. solar company,

price for solar power producers who sell their

First Solar (NASDAQ:FSLR)

, has

responded to the cutback in German subsidies by idling production lines in Germany and canceling expansion projects, including a new solar factory in Vietnam. The company, which says that these cutbacks will result in a $100 million charge this year, said on a recent conference call to analysts that solar has never been deployed without large subsidies. The solar dispute reflects deep frustration among many Americans

Sales of German luxury car maker Mercedes soar
Germany's luxury car makers reported further sales increases. fueled by demand in China, and surprisingly the U.S. where new figures showed an accelerating recovery in the world's biggest auto market. Photo: AP

that China's rise seems to reflect not just hard work and lower costs but a variety of unfair advantages by not playing by the same rules. It is an easy election year issue, especially given the fact that the U.S. trade deficit with China jumped to $295 billion last year, according to U.S. data. China has signaled that it will not be a passive punching bag. In a

move that reflects China's increasingly including California. investigation

assertive

policies, Beijing responded

to the initial U.S. solar industry complaint

by saying in November that it would begin its own investigation will quietly fade away.

into several U.S. states' support for clean energy,

If the modest penalties on Chinese solar panels stand, it is a good bet that the Chinese

Still, there are a number of other outstanding The alleged under-valuation policies on rare earths. At a time when both countries economics

trade and economic

issues causing tension between China and the U.S. though it

of the yuan (ICAPC:USDCNY)

remains a perennial complaint from Washington,

seems to have been pushed to the background.

More recently, the U.S. has filed disputes about Chinese export

are going through potential leadership

changes, anyone

of these issues has the chance

to flare up. But the apparent fading of the solar dispute appears for now to be a triumph of common sense, good and good energy policy. on Caixin Online.

Read this commentary

http://www.marketwatch.comlStory/story/print?guid=97F911

C6-7F89-11 E 1-92BD-00212...

5/10/2012

Testing US-China solar bonds

I Climate

Spectator

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Discover how businesses are adopting new techniques and how they apply to you
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Testing US-China solar bonds
8Joom!)erg New Energy Finance
PubhsIJed 714 AM. 29 Mar 2012 Tags solar energy, Science, China, Policy &

\

Last week saw the US Department preliminary countervailing The decision was widely anticipated

of Commerce

impose

duties on Chinese

cells and modules

but the lower-than-expected

Smart Energy,

Uniled Stales

duties caused the share price of China's JA Solar Holdings, the world's largest solar cell maker, to surge 4.4 per cent on March 20 - the day of the announcement.
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to post comments
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The department retroactively -Chinese

set duties ranging from 2.9 per cent to 4 7 per cent crystalline silicon cells and modules

a

fl !: !.'OJ

Natural Gas. Australia's energy future.

on Chinese-manufactured

from late December.

The market impact of this move is likely to be fairly limited given that New Energy Finance analysts The 3.59 per cent duty on

the spot price of Chinese modules was $USO.93 per Watt on March 12 - 12 per cent cheaper than non modules - according to Bloomberg most of the Chinese modules would increase Chinese manufacturers current prices to no more than $USO.94 per Watt. on May 16, however, when the department duties.

could face a bigger obstacle

decides whether to impose anti-dumping The impact of these measures remains energy companies Chinese companies

duties. These are typically higher than countervailing of the world's two largest economies

on the wider trade equation to investigate

to be seen. China has threatened

the US government's

support of its renewable polysilicon.

and it could retaliate by imposing like Trina Solar, meanwhile.

duties against US-made

have already started talking about locating costs. "We're evaluating Officer of the company possibilities said in an to

manufacturing

facilities in the US to escape these additional plant in the US," Gao Jifan, chief executive last week. by Solarworld

build a production

Interview in Shanghai

The US action is the result of a complaint manufacturers. including

Industries

America and six other US

Hellos Solar and MX Solar. in the US and Europe have been hit by the oversupply Solarworld 2012 sales due to uncertain in the market Other

Solar manufacturing and the consequent manufacturers Germany's Chinese crystalline Renewable

companies

drop in prices. Germany's

for instance reported a loss of €299 million solar market conditions.
Enviro-rnarkets (spo: prices)

for 2011, and said that it could not forecast in the country,

like Q-Cells and Conergy, industry will disappear Maubach, announced

are also stnuggling. LGC $A3780 €7.45
1

CER NZU

€385 $NZ6.85

solar manufacturing Energy Corporation

within five years because of competition close its 300MW mono-

from

companies,

said Klaus-Dieter

a member of E.ON's management

board. Norway's

EUA

that it would penmanently

wafer plant in Norway after failing to cut costs enough to make it profitable.
Most read Most

commented

Solar companies

in China also have their share of troubles. its audited earnings

LDK Solar reported fourth-quarter

sales at
1. The end of nuclear 2. 3 4. 5. Swan's surplus sorcery? FEDERAL BUDGET 2012 Expenditure deferral should get Hunt's allenhon Why Gillard can't afford to drop the floor price beginning of the end fa! Heartland -the climate denial? beyond powered

the bottom end of its forecast and less than half the $US921 slated to announce Countries industry,

million reported the year earlier. It is

next month and may post a negative gross margin. reviewing and reducing subsidy support for the solar for April.

from the UK to Germany

are constantly

putting it under further pressure.

The next round of cuts is scheduled Signals emerging.

Amid the gloom, there were also contrarian

The solar unit of car parts supplier too, if

Robert Bosch opened a module manufacturing built with cells imported from Asia.
Tags: solar energy. China, Policy & SCience, Smart

plant in France with an annual capacity of 150MW. It

G. When Wright is wrong
7. Thinking solar panels by solar? price numbers model and nuclear

may be betting on a niche market for 'Made in Europe' panels which could be price-competitive

reactors
6. Mining Banking 9. 10. Crunclunq the carbon

Energy,

United

States

on the solar PV leasinq

R~lated

Articles

Engineering stop-gap politics

http://www.climatespectator.com.auicornmentary/testing-us-china-solar-bonds

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