By facsimile: 202-395-9458 FOIA Officer Office of U.S. Trade Representative 600 17thStreet, N.W. Washington, D.C. 20508
citizens for responsibility and ethics in washington
Re: Freedom of Information Dear FOIA Officer:
Pursuant to the Freedom oflnformation Act ("FOIA"), 5 U.S.C. § 552, et seq., and U.S. Trade Representative ("USTR") regulations, 15 C.F.R. § 2004, 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 SunShot 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 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.
1400 Eye Street, N.W., Suite 450, Washington, D.C. 20005
FOIA Officer May 10,2012 Page Two 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't 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). Ifit 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 firstname.lastname@example.org. Fee Waiver Request In accordance with 5 U.S.C. § 552(a)(4)(A)(iii) and 15 C.F.R. § 2004.11, 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
FOIA Officer May 10,2012 Page Three 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 50 1(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.org, 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 and USTR regulation 15 C.F.R. §2004.9(c). In Nat'l 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. S 14298 (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.ore, 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.org/newsletter. 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.org/blog, 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) and 15 C.F.R. § 2004.6(c)(2)(i)(B), CREW requests that USTR 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, MarketWatch, 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. I hereby certify this statement is true and correct to the best of my knowledge and belief. 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 email@example.com. Sincerely,
e L. Weismann Chief Counsel Enclosure
See ACLU v. Us. Dep't of Justice, 321 F.Supp.2d 24,30 (D.D.C. 2004); EPIC v. Dep 'f of Defense , 241 F. Supp 2d 5,11 (D.D.C. 2003).
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Page 1 of 3
Catxin Online April 5 2012,1008 P m EDT
Sun spots: Symbolic U.S.-China solar standoff
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, along with the 100,000 American workers that the but the Obama administration has made good
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
ABOUT CAIXIN Caixin is a Beijing-based group dedicated quality and authoritative through periodicals, media financial to providing high-
of receiving illegal Chinese government loans, subsidized
the form of preferential
land and similar
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.
C6-7F89-11 E 1-92BD-00212...
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)
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)
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
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. remains a perennial complaint from Washington, though it More recently, the U.S. has filed disputes about Chinese export
of the yuan (ICAPC:USDCNY)
seems to have been pushed to the background.
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
C6- 7F89-11 E 1-92BD-00212...
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Page 1 of2
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Discover how businesses are adopting new techniques and how they apply to you
Hume Pohcy &
a Business Spectator publication
Saareh Cllmale Spttl.ltor
Testing US-China solar bonds
BIOOI11I)erg New Energy Finance
7:74 AM, 29 Mar 2072
Tags solar energy, Science, China, Policy &
last week saw the US Department preliminary countervailing The decision was widely anticipated
duties on Chinese
cells and modules, the
but the lower-than-expected
duties caused the share price of China's JA Solar Holdings, - the day of the announcement.
world's largest solar cell maker, to surge 4.4 per cent on March 20
login or regisler to post comments SHARE (ll:; C;]~
set duties ranging from 2,9 per cent to 4,7 per cent crystalline silicon cells and modules
Natural Gas. Australia's energy future.
from late December,
The market impact of this move is likely to be fairly limited given that per cent cheaper than non The 3,59 per cent duty on
the spot price of Chinese modules was $USO.93 per Watt on March 12 -12 modules - according to Bloomberg New Energy Finance analysts 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 higher than countervailing duties
could face a bigger obstacle
to impose anb-dumping
duties, These are typically
The impact of these measures remains energy companies Chinese companies
on the wider trade equation to investigate
of the world's two largest economies support of its renewable
to be seen. China has threatened
the US government's
and it could retaliate by imposing like Trina Solar, meanwhile,
duties against US-made polysilicon.
have already started talking about locating costs, "We're evaluating officer of the company possibilities said in an to
facilities in the US to escape last week.
build a production
plant in the US," Gao Jifan, chief executive
The US action is the result of a complaint manufacturers, including
America and six other US
Helios 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
drop in prices, Germany's
for instance reported a loss of €299 million solar market conditions.
Envlro-markets (Spot PIi<:f'S)
for 2011, and said that it could not forecast in the country,
hke Q-Cells and Conergy, industry will disappear Maubach, announced
are also struggling, within five years because of competition board close its 300MW monofrom
solar manufacturing Energy Corporation
i lGC f-
a member of E.ON's management
that it would permanently
Frices pro'.JltJ6d by NAS
wafer plant in Norway after failing to cut costs enough to make it profitable,
Most read Most commenled
in China also have their share of troubles. its audited earnmgs
lDK Solar reported fourth-quarter
1, The end of nuclear 2, 3 4, 5 Swan's surplus sorcery? FEDERAL BUDGET 2012 Expenditure deferral should get Hunt's attenllon Wny Gillard can't afford to drop the floor price of Ihe end fOI Heartland - the beginning climate denial? When Wrighl Thinking reactors Mining Banking Crunchlllg is wrong solar panels by solar? pnce numbers and nuclear 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
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
6, 7, 8.
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 too, if
may be betting on a niche market for 'Made in Europe' panels which could be price-competitive
on the solar PV leaSing modet
Engineering stop-gap politics