United States Senate PERMANENT SUBCOMMITTEE ON INVESTIGATIONS Committee on Homeland Security and Governmental Affairs Rob Portman, Chairman Tom Carper, Ranking Member Threats to the U.S. Research Enterprise: China’s Talent Recruitment Plans STAFF REPORT PERMANENT SUBCOMMITTEE ON INVESTIGATIONS UNITED STATES SENATE Threats to the U.S. Research Enterprise: China’s Talent Recruitment Plans TABLE OF CONTENTS I.  EXECUTIVE SUMMARY .................................................................................. 1  II.  FINDINGS OF FACT AND RECOMMENDATIONS ................................... 7  III.  BACKGROUND ................................................................................................ 14  A.  China’s Goal to be the Science and Technology Leader by 2050 .................. 14  1.  From Brain Drain to Brain Gain .............................................................. 15  2.  China’s Systematic Targeting of Critical Technologies ........................... 17  3.  China’s Military-Civilian Fusion Strategy .............................................. 18  4.  China’s Strategic Plan for Talent Recruitment ....................................... 20  B.  Congressional Testimony on Chinese Talent Recruitment Plans ................ 30  C.  China Deletes References to the Thousand Talents Plan ............................. 32  D.  After Implementation of Talent Recruitment Plans, More Chinese Students, Researchers, and Scientists are Returning to China .................................... 35  IV.  EFFORTS TO SECURE U.S. RESEARCH .................................................. 37  A.  THE NATIONAL SCIENCE FOUNDATION ............................................... 39  1.  Fundamental Research ............................................................................. 40  2.  The NSF Grant Process ............................................................................ 41  3.  Foreign Support and Affiliation Disclosure ............................................. 42  4.  The NSF is Unprepared to Stop Foreign Talent Recruitment Plan Members From Misappropriating U.S.-Funded Research ...................... 44  5.  Talent Recruitment Plan Members Misappropriated NSF Research .... 48  B.  THE NATIONAL INSTITUTES OF HEALTH ............................................. 50  1.  NIH Grant Process .................................................................................... 51  2.  Disclosure of Foreign Support and Affiliations ....................................... 52  3.  NIH’s Division of Grants Compliance and Oversight ............................. 53  4.  The HHS IG Identified Weaknesses in Tracking and Reporting Foreign Financial Conflicts of Interest .................................................................. 54  i 5.  Weaknesses in NIH’s Internal Controls for Monitoring and Permitting Foreign Access to Sensitive Data ............................................................. 57  6.  TTP Members Misappropriated NIH Research ....................................... 58  C.  THE DEPARTMENT OF ENERGY .............................................................. 65  1.  National Laboratories ............................................................................... 66  2.  Foreign Scientists and the Department of Energy .................................. 67  3.  Department of Energy Financial Assistance Programs .......................... 68  4.  Energy Did Not Implement Policies Prohibiting Involvement in Foreign Talent Recruitment Plans Until 2019 ...................................................... 70  5.  TTP Members Likely Stole Energy Research and Intellectual Property 72  D.  THE DEPARTMENT OF STATE .................................................................. 75  1.  The Nonimmigrant Visa Application Review Process ............................. 75  2.  Security Advisory Opinions ...................................................................... 76  3.  Consular Affairs Has Limited Authority to Deny Visa Applicants on National Security Grounds Related to Intellectual Property Theft ....... 78  4.  Consular Officers Manually Search State’s “Technology Alert List” and Other Supporting Documentation ............................................................ 79  5.  Chinese Visa Applicants Comprise a Majority of Visa Mantis Reviews, But Are Rarely Denied.............................................................................. 80  6.  Ongoing Criminal Prosecution Highlights Problems with State’s Lack of Scrutiny of Research Scholar Visas.......................................................... 81  E.  THE DEPARTMENT OF COMMERCE ........................................................ 83  1.  Deemed Export Licensing ......................................................................... 84  2.  A Majority of Deemed Export Licenses are for Chinese Nationals ........ 87  3.  Commerce Rarely Denies License Applications ...................................... 88  4.  Commerce Issued Deemed Export Licenses for Chinese Nationals Linked to Talent Recruitment Plans and Other Concerning Entities.... 88  F.  THE FEDERAL BUREAU OF INVESTIGATION ....................................... 92  1.  The FBI was Slow to Recognize the Threat ............................................. 93  2.  The FBI Took Nearly Two Years to Disseminate Talent Recruitment Plan Information to Federal Grant-Making Agencies............................. 94  ii 3.  The FBI Disbanded its National Security Higher Education Advisory Board ......................................................................................................... 95  4.  The FBI Continues to Lack a Coordinated National Outreach Program on the Threat from Talent Recruitment Plans ........................................ 97  G.  THE OFFICE OF SCIENCE AND TECHNOLOGY POLICY .................... 100  1.  The National Science and Technology Council ...................................... 100  2.  Joint Committee on the Research Environment ................................... 101  3.  Inconsistent Federal Grant Policies and Outreach Efforts Complicate OSTP’s Ability to Respond to Foreign Talent Recruitment Plans ........ 103  iii I. EXECUTIVE SUMMARY American taxpayers contribute over $150 billion each year to scientific research in the United States. Through entities like the National Science Foundation, the National Institutes of Health and the Department of Energy’s National Labs, taxpayers fund innovations that contribute to our national security and profoundly change the way we live. America built this successful research enterprise on certain values: reciprocity, integrity, merit-based competition, and transparency. These values foster a free exchange of ideas, encourage the most rigorous research results to flourish, and ensure that researchers receive the benefit of their intellectual capital. The open nature of research in America is manifest; we encourage our researchers and scientists to “stand on the shoulders of giants.” In turn, America attracts the best and brightest. Foreign researchers and scholars travel to the United States just to participate in the advancement of science and technology. Some countries, however, seek to exploit America’s openness to advance their own national interests. The most aggressive of them has been China. China primarily does this through its more than 200 talent recruitment plans—the most prominent of which is the Thousand Talents Plan. Launched in 2008, the Thousand Talents Plan incentivizes individuals engaged in research and development in the United States to transmit the knowledge and research they gain here to China in exchange for salaries, research funding, lab space, and other incentives. China unfairly uses the American research and expertise it obtains for its own economic and military gain. In recent years, federal agencies have discovered talent recruitment plan members who downloaded sensitive electronic research files before leaving to return to China, submitted false information when applying for grant funds, and willfully failed to disclose receiving money from the Chinese government on U.S. grant applications. This report exposes how American taxpayer funded research has contributed to China’s global rise over the last 20 years. During that time, China openly recruited U.S.-based researchers, scientists, and experts in the public and private sector to provide China with knowledge and intellectual capital in exchange for monetary gain and other benefits. At the same time, the federal government’s grant-making agencies did little to prevent this from happening, nor did the FBI and other federal agencies develop a coordinated response to mitigate the threat. These failures continue to undermine the integrity of the American research enterprise and endanger our national security. * * * * China aims to be the world’s leader in science and technology (“S&T”) by 2050. To achieve its S&T goals, China has implemented a whole-of-government campaign to recruit talent and foreign experts from around the world. China’s campaign is well financed. According to an analysis by the FBI, China has pledged 1 to spend 15 percent of its gross domestic product on improving human resources from 2008 to 2020. That amounts to an investment of more than $2 trillion. For the Chinese government, international scientific collaboration is not about advancing science, it is to advance China’s national security interests. China’s Talent Recruitment Plans. Foreign trained scientists and experts provide China access to know-how, expertise, and foreign technology—all necessary for China’s economic development and military modernization. While China has created and manages more than 200 talent recruitment plans, this report focuses on the Thousand Talents Plan. China designed the Thousand Talents Plan to recruit 2,000 high-quality overseas talents, including scientists, engineers, entrepreneurs, and finance experts. The plan provides salaries, research funding, lab space, and other incentives to lure experts into researching for China. According to one report, by 2017, China dramatically exceeded its recruitment goal, having recruited more than 7,000 “high-end professionals,” including several Nobel laureates. The Chinese Communist Party (the “Party”) plays a lead role in administering the Thousand Talents Plan. The Party recognized the need to control overseas talent recruitment efforts to ensure the program served its priorities. The Party created a “complex system of administration and oversight to coordinate its recruitment efforts.” The Party is able to “exert exceptional” levels of control over the Thousand Talents Plan and other talent recruitment plans. To ensure control, Thousand Talents Plan members sign legally binding contracts. Contracting with the Chinese Government. Thousand Talent Plan members sign legally binding contracts with Chinese institutions, like universities and research institutions. The contracts can incentivize members to lie on grant applications to U.S. grant-making agencies, set up “shadow labs” in China working on research identical to their U.S. research, and, in some cases, transfer U.S. scientists’ hard-earned intellectual capital. Some of the contracts also contain nondisclosure provisions and require the Chinese government’s permission to terminate the agreement, giving the Chinese government significant leverage over talent recruitment plan members. These provisions are in stark contrast to the U.S. research community’s basic norms, values, and principles. Annexed to this report are Chinese talent recruitment plan contracts that illustrate exactly what talent recruitment plan members agree to when they become members. Case Examples. This report includes selected examples from U.S. grantmaking agencies involving Chinese talent recruitment plan members. For example, talent recruitment plan members removed 30,000 electronic files before leaving for China, submitted false information when applying for grant funds, filed a patent based on U.S. government-funded research, and hired other Chinese talent recruitment plan members to work on U.S. national security topics. One Chinese talent recruitment plan member stole proprietary defense information related to U.S. military jet engines, and others have contractually agreed to give Chinese institutions intellectual property rights that overlapped with research conducted at 2 U.S. institutions. Annexed to this report are case examples provided by several federal agencies. Talent Plans Go Underground. Following public testimony and U.S. government scrutiny, the Chinese government started deleting online references to the Thousand Talents Plan in October 2018. For example, China deleted news articles featuring Thousand Talents Plan members, Chinese universities stopped promoting the program on their websites, and the official Thousand Talent Plan site deleted the names of scientists participating in the program. The Chinese government has also instructed talent recruitment organizations that “the phrase ‘Thousand Talents Plan’ should not appear in written circulars/notices.” Despite this censorship, China’s talent recruitment plans continue. * * * * The Subcommittee reviewed seven federal agencies’ efforts to mitigate the threat that Chinese talent recruitment plans pose to the U.S. research enterprise, including U.S.-funded research. While China has a strategic plan to acquire knowledge and intellectual property from researchers, scientists, and the U.S. private sector, the U.S. government does not have a comprehensive strategy to combat this threat. The National Science Foundation (“NSF”) funds approximately 27 percent of all federally funded basic research at U.S. colleges and universities, leading to 12,000 annual awards to more than 40,000 recipients. In light of Chinese talent recruitment plan members’ misappropriation of NSF funding, NSF has taken several steps—albeit insufficient ones—to mitigate this risk. As of July 2019, NSF policy prohibits federal employees from participating in foreign talent recruitment plans, but the policy does not apply to NSF-funded researchers. These NSF-funded researchers are the individuals mostly likely to be members of foreign talent recruitment plans. The NSF also does not vet grantees before awarding them funding. Instead, NSF relies on sponsoring institutions to vet and conduct due diligence on potential grantees. NSF has no dedicated staff to ensure compliance with NSF grant terms. The National Institutes of Health (“NIH”) invests over $31 billion annually in medical research through 50,000 competitive grants to more than 300,000 researchers. NIH has recently found instances of talent recruitment plan members committing grant fraud and transferring intellectual capital and property. It also found possible malign foreign influence in its peer review process. NIH has attempted to address these issues, but significant gaps in NIH’s grant integrity process remain. Much like the NSF, NIH relies on institutions to solicit and review disclosures of financial conflicts by its employees participating in NIH-funded research. Unlike the NSF, the NIH has a Division of Grants Compliance and Oversight that conducts site visits at institutions to advance compliance and provide oversight. The number of oversight visits to institutions has fallen from 28 3 in 2012 to only three last year. NIH officials remain concerned that China’s talent recruitment plans are more pervasive than what they have uncovered to date. The Department of Energy (“Energy”) is the largest federal sponsor of basic research in the physical sciences. Energy awards $6.6 billion in grants and contracts annually that support over 25,000 researchers at over 300 institutions and National Labs. Energy’s research funding and prominent role in advanced research and development make it particularly attractive to the Chinese government. Energy has recently identified Thousand Talent Plan members working on sensitive research at National Labs and Thousand Talent Plan members with security clearances. Energy has been slow to address vulnerabilities surrounding the openness of its National Labs and its scientific collaboration with the 35,000 foreign nationals who conduct research at the National Labs each year. For example, in December 2018, Energy began requiring all foreign nationals’ curricula vitae be included in Foreign Visits and Assignments requests to Energy facilities as well as in the Foreign Access Central Tracking System database. Despite 30-year old federal regulations prohibiting U.S. government employees from receiving foreign compensation, Energy clarified only this year that employees and contractors are prohibited from participating in foreign talent recruitment plans. The State Department (“State”) issues nonimmigrant visas (“NIV”) to foreign nationals seeking to visit the United States to study, work, or conduct research. It is on the front line in the U.S. government efforts to protect against intellectual property theft and illicit technology transfers. While State has a process to review NIV applicants attempting to violate export control laws, State’s authority to deny visas is limited. State’s review process leads to less than five percent of reviewed applicants being denied a visa. Nor does State systematically track visa applicants linked to China’s talent recruitment plans, even though some applicants linked to Chinese talent recruitment plans have engaged in intellectual property theft. The Department of Commerce’s (“Commerce”) Bureau of Industry and Security conducts assessments of defense-related technologies and “administers export controls of dual-use items which have both military and commercial applications.” Commerce is also responsible for issuing deemed export licenses to firms that employ or host foreign nationals seeking to work on controlled technology projects. The Subcommittee found that Commerce rarely denies an application for a deemed export license. Commerce’s denial rate in 2018 for deemed export licenses was only 1.1 percent. Commerce officials told the Subcommittee that it has not revoked a deemed export license in the past five years, despite the recent listing of new entities on Commerce’s Entity List that require additional scrutiny. Commerce issued deemed export licenses to Chinese nationals who participated in talent recruitment plans, had ties to Huawei, and were affiliated with other concerning entities. 4 The Federal Bureau of Investigation (“FBI”) protects the United States from foreign intelligence operations and espionage. The FBI, however, has recognized that it was “was slow to recognize the threat of the Chinese Talent Plans.” It was not until mid-2018, however, that FBI headquarters in Washington, D.C. took control of the FBI’s response to the threat. Moreover, after collecting information on suspected talent plan participants, the FBI waited nearly two years to coordinate and provide those details to federal grant-making agencies. This delay likely prevented the federal government from identifying talent recruitment plan members who engaged in illegal or unethical grant practices or the unauthorized transfer of technology. The FBI has yet to develop an effective, nationwide strategy to warn universities, government laboratories, and the broader public of the risks of foreign talent recruitment plans. The White House Office of Science and Technology Policy (“OSTP”) has formal authority to convene all research funding agencies on matters of policy through the National Science and Technology Council. OSTP formally established a joint committee in May 2019 to begin a policy review to coordinate efforts to adopt best practices across the federal government to mitigate foreign exploitation of the U.S. open innovation system. This review is intended to develop a longer-term strategy for balancing engagement and risk without stifling innovation. The U.S. government’s vast and varied array of grant-making agencies complicates this policy review. * * * * As American policy makers navigate an increasingly complicated relationship with China, it is not in our national security interest to fund China’s economic and military development with taxpayer dollars. China’s talent recruitment plans, including the Thousand Talents Plan, undermine the integrity of our research enterprise and harm our economic and national security interests. U.S. universities and U.S.-based researchers must take responsibility in addressing this threat. If U.S. universities can vet employees for scientific rigor or allegations of plagiarism, they also can vet for financial conflicts of interests and foreign sources of funding. If U.S. researchers can assess potential collaborators’ research aptitude and their past publications, they should know their collaborators’ affiliations and their research intentions. The U.S. academic community is in the crosshairs of not only foreign competitors contending for the best and brightest, but also of foreign nation states that seek to transfer valuable intellectual capital and steal intellectual property. As the academic community looks to the federal government for guidance and direction on mitigating threats, the U.S. government must provide effective, useful, timely, and specific threat information and tools to counter the threats. Based on this investigation, the Subcommittee finds that the federal government has failed to stop China from acquiring knowledge and intellectual 5 property from U.S. taxpayer funded researchers and scientists. Nor do federal agencies have a comprehensive strategy to combat this threat. The Subcommittee’s Investigations This investigation continues the Subcommittee’s examination of national security issues involving China. During the 115th Congress, the Subcommittee highlighted China’s leading role in the opioid crisis by investigating how illicit opioids like fentanyl are shipped from China to the United States through international mail. The Subcommittee held an initial oversight hearing on May 25, 2017, titled Stopping the Shipment of Synthetic Opioids: Oversight of U.S. Strategy to Combat Illicit Drugs. On January 25, 2018, the Subcommittee held a second hearing and issued a bipartisan report titled Combatting the Opioid Crisis: Exploiting Vulnerabilities in International Mail. On October 24, 2018, the President signed into law the Synthetic Trafficking & Overdose Prevention Act (“STOP Act”), legislation designed to assist law enforcement in identifying and stopping fentanyl being shipped into the United States. In the current 116th Congress, on February 28, 2019, the Subcommittee held a hearing and issued a bipartisan report titled China’s Impact on the U.S. Education System. The Subcommittee examined China’s propaganda efforts at U.S. colleges and universities through Confucius Institutes. The Chinese government funds Confucius Institutes and hires Chinese teachers to teach language and culture classes to students and non-student community members. Confucius Institute funding comes with strings that can compromise academic freedom. The Chinese government approves all teachers, events, and speakers. Some U.S. schools contractually agree that both Chinese and U.S. laws will apply. The Chinese teachers sign contracts with the Chinese government pledging they will not damage Chinese national interests. The Subcommittee found that these limitations export China’s censorship of political debate to the United States and prevent the academic community from discussing topics that the Chinese government believes are politically sensitive. Next, the Subcommittee turned to China’s talent recruitment plans. The Subcommittee focused specifically on China’s most prominent plan, the Thousand Talents Plan. The Subcommittee reviewed documents, received briefings, or interviewed individuals from the following agencies: Office of Director of National Intelligence; Central Intelligence Agency; Department of State; Department of Commerce; Department of Energy; Federal Bureau of Investigation; Department of Health and Human Services; National Science Foundation; and the White House Office of Science and Technology Policy. The Subcommittee also met with members of the academic community, including the American Public and Land Grant Universities, Association of American Universities, the American Council on Education, a Chinese American advocacy group, and the JASON independent scientific advisory group. 6 II. FINDINGS OF FACT AND RECOMMENDATIONS Findings of Fact 1) China seeks to become a science and technology (“S&T”) world leader by 2050. The Chinese government elevated the importance of S&T as a key national strategic goal in 2006. China seeks to become an “innovative country” by 2020 and an S&T world leader by 2050. To accomplish its goals, China systematically targets critical technologies and advanced S&T capabilities as a way to enhance national strength and achieve Chairman Xi Jinping’s goal of “national rejuvenation.” 2) China prioritizes military-civilian fusion as a national goal. In 2016, Chairman Xi designated a policy known as Military-Civilian Fusion (“MCF”) as a national strategy. MCF seeks to pool talent and financial resources to jointly develop technologies, conduct research, and attract talent that mutually reinforces both the military and civilian sectors. MCF blurs the lines between China’s defense and civilian sectors, enabling China to continue international scientific collaboration while obfuscating that this collaboration also assists in modernizing China’s military. 3) China aggressively recruits overseas researchers and scientists. China has a coordinated global campaign to recruit overseas S&T experts as part of its S&T strategy. These experts provide access to know-how, expertise, and foreign technology—all necessary for China’s economic development and military modernization. Chinese recruitment efforts also have begun to reverse China’s brain drain, as more Chinese students than before are returning to China after studying abroad. 4) The Thousand Talents Plan (“TTP”) is China’s most prominent talent recruitment plan. Launched in 2008 and controlled by the Chinese Communist Party, the TTP recruits thousands of high-quality overseas talents. As of 2017, China reportedly has recruited 7,000 researchers and scientists. The TTP targets U.S.-based researchers and scientists, regardless of ethnicity or citizenship, who focus on or have access to cutting-edge research and technology. The TTP is just one of over 200 Chinese talent recruitment plans over which the Chinese Communist Party is able to “exert exceptional” levels of control. In response to U.S. government scrutiny, China has attempted to delete online references to its talent recruitment plans and reportedly instructed Chinese institutions on how to avoid additional U.S. scrutiny. 7 5) TTP employment contracts violate U.S. research values. TTP members sign legally binding contracts with Chinese institutions that contain provisions that violate U.S. research values, including non-disclosure provisions related to their research and employment with Chinese institutions. The contracts require TTP members to undermine fundamental U.S. scientific norms of transparency, reciprocity, merit-based competition, and integrity. Fundamentally, these contracts incentivize TTP members to put China’s interests ahead of U.S. institutions. 6) Chinese talent plans target unrestricted, basic research. China seeks access to non-public fundamental research to accelerate its technological capabilities at the U.S. taxpayer’s expense. The U.S. government may restrict some research for proprietary or national security reasons but as fundamental research is generally designed to be openly shared, federal law enforcement agencies have limited means to thwart China’s extralegal activities. 7) TTP members have willfully failed to disclose their TTP membership. Some TTP members willfully failed to disclose their affiliation with China’s talent recruitment plans to U.S. institutions and U.S. grantmaking agencies. In some cases, TTP members received both U.S. grants and Chinese grants for similar research, established “shadow labs” in China to conduct parallel research, and stole intellectual capital and property. U.S. government agencies also discovered that some TTP members used their access to research information to provide their Chinese employer with important information on early stage research. 8) Federal agencies are not prepared to prevent China from transferring taxpayer funded research and stealing intellectual property. The U.S. government was slow to address the threat of China’s talent recruitment plans, leading to U.S. government grant dollars and private sector technologies being repurposed to support China’s economic and military goals. Though some federal agencies have begun to take action, the federal government lacks an effective interagency strategy and continues to have shortfalls in its processes to mitigate the threat that Chinese talent recruitment plans pose. 9) Federal grant-making agencies lack standards and coordination. U.S. grant-making agencies, such as the National Science Foundation (“NSF”) and the National Institutes of Health (“NIH”), each require grant applicants to use different forms and processes to apply for federally funded research grants. This increases administrative burdens on researchers applying for grants from multiple federal agencies. It also complicates 8 effective grant oversight of the more than $150 billion in U.S. funding awarded annually for research and development. 10) U.S. grant-making agencies’ policies on foreign talent recruitment plans differ. For example, the Department of Energy’s new policy effectively bans both employee and contractor participation in foreign talent recruitment plans. The NSF’s new policy, however, only applies to NSF employees, but not researchers. These differences can complicate the research community’s understanding of the scope and scale of the problem. 11) The NSF does not have a compliance office to perform grant oversight functions. Instead, the NSF relies on the institutions submitting grant applications and the NSF Inspector General to conduct due diligence, vetting, and oversight. The NSF’s policy on participation in foreign talent recruitment plans does not extend to the more than 40,000 researchers and scientists that receive U.S. funding for research and development. 12) The NIH awards over $31 billion annually in medical research in 50,000 competitive grants to more than 300,000 researchers. The NIH has not issued new policies addressing talent recruitment programs. Instead, it relies on existing policies regarding conflict of interest, conflict of commitment, and disclosure of outside support. The NIH is conducting additional oversight of potential links between federal funding and foreign talent recruitment plans. As part of that process, it identified at least 75 individuals potentially linked to foreign talent recruitment plans that also served as peer reviewers. 13) The Department of Energy (“Energy”) is the largest federal sponsor of basic research in the physical sciences, funding $6.6 billion in grants and contracts that support over 25,000 researchers at over 300 institutions and National Labs. Energy’s research funding and prominent role in advanced research and development make it particularly attractive to the Chinese government. Despite 30-year old federal regulations prohibiting U.S. government employees from receiving foreign compensation that conflicts with their official duties, Energy clarified only this year that employees and contractors are prohibited from participating in foreign talent plans. 14) The Commerce Department (“Commerce”) granted deemed export licenses to Chinese nationals associated with talent recruitment plans, Chinese military affiliated universities, and other entities on Commerce’s entity list. The entity list includes individuals and entities “who have engaged in activities that could result in an increased risk of the diversion of exported, re-exported, and transferred items to weapons of mass 9 destruction programs.” The list also includes “activities contrary to U.S. national security and/or foreign policy interests.” Commerce is responsible for issuing deemed export licenses to U.S. firms that employ or host foreign nationals seeking to work on controlled technology projects. Commerce rarely denies deemed export license applications, denying only 1.3 percent in 2018. 15) The FBI recognized that it and other federal agencies were “slow to recognize the threat of the Chinese talent [recruitment] plans” until recently. Despite the Chinese government publicly announcing in 2008 its intent to recruit overseas researchers with access to advanced research and technology, FBI’s headquarters in Washington D.C. did take control of the response to the threat until mid-2018. The FBI took nearly two years to coordinate the dissemination of information identifying potential talent recruitment plan participants to federal grant-making agencies. The FBI has yet to develop an effective, nationwide strategy to warn universities, government laboratories, and the broader public of the risks of foreign talent recruitment plans. 16) The State Department is on the frontline in the U.S. government effort to protect against intellectual property theft and illicit technology transfers. While State has a process to screen for nonimmigrant visa applicants attempting to steal sensitive technologies or intellectual property, State’s authority to deny visas is limited. This results in a denial rate of less than five percent of all visa applicants reviewed. State also does not make available visa applicant files and supporting documentation to U.S. law enforcement in easily accessible formats to assist national security investigations. 17) The White House’s OSTP launched an effort in May 2019 to coordinate interagency work related to improving the safety, integrity, and productivity of research settings. Currently, federal grant-making agencies’ policies and processes are not standardized or uniform. These differences complicate the grant process for applicants, stifle U.S. law enforcement’s ability to investigate grant-related crimes, and frustrate the federal government’s ability to comprehensively understand grant spending. 10 Recommendations 1) Federal agencies must develop a comprehensive strategy to combat both illegal and extralegal transfers of U.S. intellectual capital. China uses illegal and extralegal mechanisms to acquire U.S. intellectual property, research, and sensitive technologies. Federal agencies should work with the U.S. research community to balance the need for international collaboration while securing U.S.-government funded research. 2) Federal agencies should declassify and disseminate more information on foreign talent recruitment plans. Additional information from the U.S. intelligence community, federal law enforcement, and federal grant-making agencies will help define the scope and scale of the problem so that U.S. research institutions can effectively mitigate risks associated with foreign talent recruitment plans. 3) While taking steps to better protect research and intellectual property, Congress and the Executive Branch should reaffirm the critical importance of foreign students and researchers in the United States and the importance of international research collaboration. Congress should provide stable and sustained funding for scientific research sponsored by federal agencies and support programs aimed at keeping scientists and their work in the United States. 4) Federal law enforcement agencies and members of the intelligence community must better tailor engagement with the U.S. research community to ensure that threat information is accessible and actionable. The FBI should develop a cohesive strategy to ensure outreach by its headquarters and 56 field offices is effective, consistent, and timely. 5) U.S. grant-making agencies should harmonize the grant proposal process and standardize reporting requirements for disclosing all foreign conflicts of interest, conflicts of commitment, and all outside and foreign support. Standardization and harmonization will reduce the administrative burden on research institutions applying for federal research funding and promote data sharing across the U.S. research enterprise. A government-wide standard should require documents be machine readable to encourage automation to assist with identifying grant fraud. 6) The U.S. research community should establish a “Know Your Collaborator” culture. U.S. research institutions should establish best practices in monitoring scientific and research collaboration with foreign nationals and determining whether such collaboration adheres to U.S. scientific research values, especially in the area of research integrity. U.S. 11 research institutions also should investigate and adjudicate allegations of failures to disclose conflicts of interest, commitment, or other outside support. 7) U.S. grant-making agencies should implement a compliance and auditing program to ensure grantees accurately report conflicts of interest and conflicts of commitment. Congress should provide adequate resources to support agency compliance programs and inspectors general. 8) U.S. grant-making agencies conducting or funding U.S. government research should share information regarding grant recipients with access to U.S. government funding and research facilities. This information should be made available as appropriate to foster scientific collaboration and used by funding agencies to assess the qualifications of researchers. 9) The Commerce Department should ensure its interagency process for identifying emerging and foundational technologies that are essential to the national security of the United States includes a review of fundamental research. As appropriate and necessary, the Commerce Department should add foundational technologies and areas of fundamental research to its export control lists. 10) The State Department should identify any additional authorities needed to deny non-immigrant visas for individuals suspected of engaging in illegal or extralegal transfers of technology, intellectual property, and fundamental research. State also should include additional security related questions designed to detect foreign government sponsorship of research conducted in the United States and whether the visa applicant intends to legally or illegally transfer research and technology back to their home country on visa applications. State should automate security reviews of visa applicants for illicit transfers of technology, intellectual property, and fundamental research. 11) The administration should consider updating NSDD-189 and implement additional, limited restrictions on U.S. government funded fundamental research. NSDD-189 was issued in 1985 and established the national policy that products of fundamental research are to remain unrestricted to the maximum extent possible. Federal agencies must not only combat illegal transfers of controlled or classified research, but assess whether openly sharing some types of fundamental research is in the nation’s interest. 12 12) Federal law enforcement and other relevant agencies should identify U.S.-based entities that serve as recruitment networks, platforms, or foreign government proxies that facilitate or broker in statesponsored talent recruitment. Additional investigations and publications are needed to fully understand the impact of foreign talent recruitment efforts in the United States. Federal law enforcement and other relevant agencies should examine the extent of foreign talent recruitment activity in the private sector for foreign talent recruitment-related programs, including venture capital contests and entrepreneurial programs. 13) U.S. grant-making agencies should work with research institutions to ensure they have the necessary cybersecurity practices in place to reduce the risk of research data misappropriation. Universities, research institutions, and other recipients of federal research funding should periodically demonstrate that they are adhering to cybersecurity best practices. 14) Grant-making agencies should not award U.S. funding to participants of foreign talent recruitment programs absent full disclosure of the terms and conditions of membership in any talent recruitment program. 13 III. BACKGROUND This section discusses China’s goal to be the leader in science and technology (“S&T”) by 2050. To achieve that goal, China is executing a coordinated global campaign to recruit S&T experts and foreign talent. These experts provide access to know-how, expertise, and foreign technology—all necessary for China’s economic development and military modernization. While the Chinese government manages more than 200 talent recruitment plans, this section discusses the most prominent plan—the Thousand Talents Plan—and details the plan’s centrally managed structure and contracts. Finally, this section highlights recent congressional testimony by U.S. intelligence and law enforcement officials concerning the threats posed by foreign talent recruitment plans. A. China’s Goal to be the Science and Technology Leader by 2050 In 2006, the Chinese government’s State Council released the National Medium and Long-Term Program for Science and Technology Development (“MLP”), elevating the importance of S&T development as a key Chinese strategic goal.1 First commissioned by the 16th National Congress of the Communist Party of China (“CPC”) in 2002, Chinese leadership fully endorsed the MLP during the 17th Party Congress in October 2007.2 Former Chinese Chairman Hu Jintao remarked in his 17th Party Congress address that China would implement the MLP to make China an innovative country and enhance national strength.3 China aimed to become an “innovation-oriented country” by 2020 and an S&T world leader by 2050.4 At that time, China’s goals under the MLP were ambitious. China was known more as the workshop of the world than as a source of innovative research and technology. In 2007, for example, China filed only a little over 245,000 patents—roughly half the number of patents filed in the United States.5 China also had a weak domestic base for conducting innovative research and developing cutting-edge technologies. Only 14 Chinese universities were among the top 500 China’s Program for Sci. and Tech. Modernization: Implications for American Competitiveness, U.S.−CHINA ECON. AND SECURITY REV. COMMISSION, 17 (Jan. 2011), https://www.uscc.gov/sites/ default/files/Research/USCC_REPORT_China%27s_Program_forScience_and_Technology_Moderniz ation.pdf [hereinafter SECURITY COMMISSION REPORT (Jan. 2011)]. 2 Promoting Sound and Rapid Development of the National Economy, CHINA DAILY (Oct. 24, 2007), http://www.chinadaily.com.cn/china/2007-10/24/content_6204564_6.htm. 3 Id. 4 JAMES MCGREGOR, U.S. CHAMBER OF COMMERCE, CHINA’S DRIVE FOR ‘INDIGENOUS INNOVATION’: A WEB OF INDUS. POLICIES, 6 (2010), https://www.uschamber.com/sites/default/files/documents/ files/100728chinareport_0_0.pdf. 5 WIPO IP Statistics Data Center, WORLD INTELLECTUAL PROPERTY ORG., https://www3.wipo.int/ ipstats. 1 14 universities in the world.6 And China’s highest ranked university, Tsinghua University, failed to crack the top 150.7 Compounding these problems, some of China’s best talent and experts were overseas. More than 1.2 million Chinese nationals left the country to study and conduct research between 1978 and 2007, but only a quarter had ever returned to China.8 1. From Brain Drain to Brain Gain Though the Chinese government had initiated several plans designed to recruit and retain S&T talent in the 1990s, it mainly issued awards to individuals in China with limited foreign experience.9 As such, those plans failed to attract the caliber of talent the Chinese government sought in fields deemed critical to strengthening China.10 For a short period, the Chinese government also attempted to retain talent by imposing a “service period” on students pursuing overseas studies.11 Deng Xiaoping, the former paramount leader of China, however, ended this policy after 1992, recognizing that China would be better served even if it succeeded in convincing only half of overseas Chinese students to return.12 By the early 2000s, China’s strategy to recruit S&T talent underwent a paradigm shift. As former CPC General Secretary Zhao Ziyang suggested years earlier, China was not losing brainpower, but rather it was storing its talent overseas to tap later.13 Chinese leaders, therefore, determined that it could be more Academic Ranking of World Universities 2007, ACADEMIC RANKING OF WORLD U., http://www.shanghairanking.com/World-University-Rankings-2007/China.html. 7 Id. 8 In 2007, for example, 80,000 Chinese nationals were studying in the United States. Approximately 66 percent of them were pursuing graduate studies, and approximately another 10 percent were putting their U.S. acquired skills and knowledge to use under the Optional Practical Training. See Academic Level and Place of Origin: Previous Years, INSTITUTE OF INT’L EDUC., https://www.iie.org/Research-and-Insights/Open-Doors/Data/International-Students/Places-ofOrigin/Academic-Level-and-Place-of-Origin/2007-08; Cong Cao, China’s Brain Drain at the High End: Why Government Policies Have Failed to Attract First-Rate Academics to Return, 4 ASIAN POPULATION STUD. 331 (2008) (https://www.researchgate.net/publication/240534512). 9 Cong Cao, U. OF NOTTINGHAM, NINGBO. CHINA, China’s Approaches to Attract and Nurture Young Biomedical Researchers, 6 (2018), http://sites.nationalacademies.org/cs/groups/pgasite/documents/ webpage/pga_184821.pdf. 10 Id. at 8. 11 See Cong Cao, China’s Brain Drain at the High End: Why Government Policies Have Failed to Attract First-Rate Academics to Return, 4 ASIAN POPULATION STUD. 331, 333 (2008), https://www.researchgate.net/publication/240534512. (Undergraduate students and graduate students were required to work in China for 5 years and 2 years respectively before pursuing overseas studies). 12 Id. 13 Id.; David Zweig & Stanley Rosen, How China Trained a New Generation Abroad, SCIDEVNET (May 22, 2003), https://www.scidev.net/global/migration/feature/how-china-trained-a-newgeneration-abroad.html. 6 15 efficient to allow its nationals to learn how to conduct research and develop cuttingedge technologies overseas and later find ways for these nationals to assist China.14 The CPC soon changed its approach towards overseas Chinese nationals, emphasizing their role in China’s development.15 Chinese officials even reportedly changed a political slogan referring to overseas Chinese nationals from “returning and serving the country” (回国服务) to simply “serve the country” (为国服务).16 Chinese officials began actively encouraging overseas Chinese nationals to “serve the country overseas” (海外人才为国服务) through investment, giving lectures, starting businesses, and transferring technology back to China.17 The MLP reflected this dramatic shift, noting the Chinese government must “attract high caliber talents from overseas” with a priority on areas where China is particularly weak.18 The MLP called for the government to formulate plans to attract overseas talents to return to China to “serve the country,” establish talent recruitment organizations taking into account the “characteristics” of overseas talents, increase financial incentives for overseas talents to return to China, and “establish policy mechanisms for overseas talents to serve the country.”19 According to the MLP, such “policy mechanisms” would focus on getting overseas talents and their teams to return to China to work.20 Id. THE STATE COUNCIL THE PEOPLE’S REPUBLIC OF CHINA, CPC Central Committee and the State Council Decision on Further Strengthening Talent Work (Dec. 26, 20103), http://www.gov.cn/test/ 2005-07/01/content_11547.htm. 16 Cong Cao, China’s Brain Drain at the High End: Why Government Policies Have Failed to Attract First-Rate Academics to Return, 4 ASIAN POPULATION STUD. 331 (2008), https://www.researchgate.net/publication/240534512. 17 Overseas Talents for the Country’s Service Plan, CHINAQW, http://www.chinaqw.com/node2/ node2796/node2880/node2920/node2989/userobject6ai241511.html. See also David Zweig & Stanley Rosen, How China Trained a New Generation Abroad, SCIDEVNET (May 22, 2003), https://www.scidev.net/global/migration/feature/how-china-trained-a-new-generation-abroad.html; He Finland, “Overseas Talents for the Country's Service Plan” Will Start Next Year, MOFCOM (Sept. 8, 2019), http://www.mofcom.gov.cn/article/bi/200409/20040900276042.shtml. 18 THE STATE COUNCIL THE PEOPLE’S REPUBLIC OF CHINA, The National Medium-and Long-Term Program for Science and Technology Development (2006-2020): An Outline, https://www.itu.int/ en/ITUD/Cybersecurity/Documents/National_Strategies_Repository/China_2006.pdf [hereinafter MLP S&T STRATEGY]. See also James McGregor, China’s Drive for ‘Indigenous Innovation’: A Web of Industrial Policies U.S. CHAMBER OF COMMERCE (2010), https://www.uschamber.com/sites/default/ files/documents/files/100728chinareport_0_0.pdf. See also CONG CAO, U. OF NOTTINGHAM, NINGBO. CHINA, China’s Approaches to Attract and Nurture Young Biomedical Researchers (2018), http://sites.nationalacademies.org/cs/groups/pgasite/documents/webpage/pga_184821.pdf. 19 Xinhua News Agency, Ten, The Construction of Talent Team, CHINESE GOVERNMENT PORTAL (Feb. 9, 2006), http://www.gov.cn/jrzg/2006-02/09/content_183787_10.htm. See MLP S&T STRATEGY. 20 See MLP S&T STRATEGY. 14 15 16 2. China’s Systematic Targeting of Critical Technologies For the Chinese government, the main purpose of international scientific collaboration is to advance China’s national security interests, not solely to advance science. According to China’s Ministry of Science and Technology21 (“MOST”), China’s participation in international S&T cooperation projects strives for a “winwin and mutually beneficial outcome,” but prioritizes Chinese interests under the premise of safeguarding national security.22 MOST formulates and facilitates the “implementation of strategies and policies for innovation-driven development, and plans and policies for S&T development and the attraction of foreign talent.”23 MOST also “coordinates the development of the national innovation system and the reform of the national S&T management system, and works with relevant government departments to improve incentive mechanisms for technological innovation.”24 MOST is responsible for identifying and supporting international S&T cooperation projects in selected target areas.25 These target areas are publicly well documented. MOST outlined more than a dozen major S&T projects in the MLP.26 These “National Major S&T Projects” identify China’s top priorities and focus on strategic technologies and engineering projects with the goal of achieving significant technological advances.27 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. Core Electronic Devices, High-End Chips, and Basic Software Parts Large-Scale Integrated Circuit Manufacturing Next Generation Broadband Wireless Mobile Communications High-End Machine Tools and Manufacturing Equipment Large-Scale Oil and Gas Fields Development Large-Scale Advanced Pressurized Water Reactor Water Pollution and Control Genetically Modified Organisms Major New Drug Development Major Infectious Disease Prevention and Cure SECURITY COMMISSION REPORT, 22 (Jan. 2011) (MOST “plays a leading role in developing national science policy and in designing and implementing many of the national funding programs.”). 22 Key International S&T Cooperation Projects, MINISTRY OF SCI. AND TECH., http://www.most.gov.cn/ eng/cooperation/200610/t20061008_36195.htm. 23 Missions of the Ministry of Science and Technology, MINISTRY OF SCI. AND TECH., http://www.most.gov.cn/eng/organization. 24 Id. 25 Key International S&T Cooperation Projects, MINISTRY OF SCI. AND TECH., http://www.most.gov.cn/ eng/cooperation/200610/t20061008_36195.htm. 26 Id. 27 JAMES MCGREGOR, U.S. CHAMBER OF COMMERCE, CHINA’S DRIVE FOR ‘INDIGENOUS INNOVATION’: A WEB OF INDUS. POLICIES, 40−42 (2010), https://www.uschamber.com/sites/default/files/documents/ files/100728chinareport_0_0.pdf. 21 17 11. Large-Scale Airplanes 12. High Resolution Earth Observation Technology 13. Manned Spaceflight China has additional blueprints aimed at transforming the country into a global S&T leader, including the “Made in China 2025 (“MIC 2025”) plan.28 According to a U.S. Chamber of Commerce report on MIC 2025’s goals, the program targets ten strategic industries—including next-generation information technology, aviation, rail, new energy vehicles, and agricultural machinery—that are critical to China’s economic competitiveness and high-tech growth.29 MIC 2025 “appears to provide preferential access to capital to domestic companies in order to promote their indigenous research and development capabilities, support their ability to acquire technology from abroad, and enhance their overall competitiveness.”30 The U.S. Chamber also found that in concert with China’s state-led development plans, including the MLP, MIC 2025 constitutes a “broader strategy to use state resources to alter and create comparative advantage[s] in these sectors on a global scale.”31 3. China’s Military-Civilian Fusion Strategy China’s efforts to improve its S&T base and leapfrog ahead of the United States have significant implications for U.S. national security beyond economic and scientific competition. Since 2013, Chairman Xi Jinping has emphasized MilitaryCivilian Fusion” (“MCF”) (军民融合) as critical to the nation’s economic development and national security.32 In 2016, he elevated the importance of MCF as one of the pillars of China’s military modernization and made it a national strategy.33 Unlike prior Chinese military-industrial policies such as Civilian-Military Integration (军民结合), MCF seeks to move beyond integrating civilian technologies and management expertise into China’s military industrial complex.34 Now, MCF See U.S. CHAMBER OF COMMERCE, MADE IN CHINA 2025: GLOBAL AMBITIONS BUILT ON LOCAL PROTECTIONS (2017), https://www.uschamber.com/sites/default/files/final_made_in_china_ 2025_report_full.pdf. 29 Id. 30 Id. at 6. 31 Id. 32 Brian Lafferty, Civil-Military Integration and PLA Reforms, in CHAIRMAN XI REMAKES THE PLA: ASSESSING CHINESE MILITARY REFORMS (Phillip C. Saunders et al eds., 2019), https://ndupress.ndu.edu/Portals/68/Documents/Books/Chairman-Xi/Chairman-Xi_Chapter16.pdf?ver=2019-02-08-112005-803. 33 Xi Jinping Talks about the Integration of Military and Civilian: About National Security and Development, QIUSHI JOURNAL (October 16, 2018), http://www.qstheory.cn/zhuanqu/rdjj/201810/16/c_1123565364.htm. 34 Elsa B. Kania, In Military-Civil Fusion, China is Learning Lessons from the United States and Starting to Innovate, REAL CLEAR DEFENSE (August 27, 2019), https://www.realcleardefense.com/ articles/2019/08/27/in_military-civil_fusion_china_is_learning_lessons_from_the_united_states_ and_starting_to_innovate_114699.html. 28 18 calls for the seamless “fusing” of the military and civilian sectors with resources, technologies, information, and people.35 This allows China to pool its talent and resources from the two sectors to jointly develop technologies, conduct research, and attract talent that mutually reinforces both the military and civilian sector. MCF significantly blurs the lines between China’s defense and civilian sectors, enabling China to continue international collaboration with scientists while not disclosing that such collaboration may be for modernizing China’s military.36 In 2017, the State Council published a MCF policy document detailing how China planned to promote defense-related science and technology fusion.37 In its document, the State Council calls for the Chinese military to declassify National Defense Patents for the civilian sector’s use, the sharing of military and civilian research centers, including facilities at the China Academy of Sciences and universities, and the coordination of research efforts.38 The document also calls for China’s military and its defense industry to rely on higher education institutions to establish defense research and civilian research institutions as well as a talent recruitment plan to recruit personnel to work in the defense sector.39 Another key provision calls for establishing an information sharing platform between civilian and military research institutions to collect information on frontier and advanced technologies.40 Chairman Xi’s elevation of MCF as a national strategy encourages China’s military industrial complex to implement its own “going out” strategy (走出去) to acquire overseas companies, establish research and development centers, and attract overseas talent.41 For example, in 2013 China’s Aviation Industry Corporation (“AVIC”), a Chinese aerospace and defense conglomerate, purchased the German aircraft engine manufacturer Thielert Aircraft—which makes engines Id. Id. 37 See OFFICE OF THE STATE COUNCIL, GUO BAN FA NO. 91, THE GENERAL OFFICE OF THE STATE COUNCIL PROMOTES THE NAT’L DEFENSE SCI. AND TECH. INDUS. (Dec. 4, 2017), http://www.gov.cn/ zhengce/content/2017-12/04/content_5244373.htm. 38 Id. 39 Id. 40 Id. 41 Chinese Military Innovation in Artificial Intelligence: Hearing On Tech., Trade, And Military-Civil Fusion—China’s Pursuit Of Artificial Intelligence, New Materials, And New Energy Before the U.S.China Econ. and Security Review Commission, 116th Cong. (2019) (statement of Elsa B. Kania, Adjunct Senior Fellow, Tech. and Nat’l Security Program, Center for a New American Security Research Fellow, Center for Security and Emerging Tech., Georgetown U.); GREG LEVESQUE & MARK STOKES, POINTE BELLO, BLURRED LINES: MILITARY-CIVIL FUSION AND THE “GOING OUT” OF CHINA’S DEFENSE STRATEGY, 6–7 (December 2016), https://static1.squarespace.com/static/ 569925bfe0327c837e2e9a94/t/593dad0320099e64e1ca92a5/1497214574912/062017_Pointe+Bello_Mil itary+Civil+Fusion+Report.pdf. 35 36 19 for large unmanned aerial vehicles.42 AVIC also established the AVIC Centre for Structural Design and Manufacture at the Imperial College of London to research aircraft design and manufacturing technologies.43 Through such research collaborations, China’s military industrial complex is able to “exploit the openness of the scientific community” and western academic norms that encourage research collaborations.44 4. China’s Strategic Plan for Talent Recruitment Over the past decade, the Chinese government has refined its centrally organized foreign talent recruitment plans into a strategy to “use talent to strengthen the country” by targeting the specific technology sectors previously discussed.45 These plans help facilitate technology transfer and typically include people-to-people exchanges, international S&T cooperation projects, and the recruitment and repatriation of S&T experts on a temporary or permanent basis.46 China’s most prominent national talent recruitment plan is the “Recruitment Program of Global Experts,” more commonly known as the Thousand Talents Plan (“TTP”).47 Launched in 2008, a year after the adoption of the MLP, China designed the TTP to recruit 2,000 high-quality overseas talents within five to ten years.48 By 2017, according to one report, China recruited more than 7,000 “high-end professionals” under the TTP.49 GREG LEVESQUE & MARK STOKES, POINTE BELLO, BLURRED LINES: MILITARY-CIVIL FUSION AND THE “GOING OUT” OF CHINA’S DEFENSE STRATEGY, 36 (December 2016) (https://static1.squarespace.com/ static/569925bfe0327c837e2e9a94/t/593dad0320099e64e1ca92a5/1497214574912/062017_Pointe+Bel lo_Military+Civil+Fusion+Report.pdf). 43 AVIC Centre for Structural Design and Manufacture, IMPERIAL LONDON COLLEGE, http://www.imperial.ac.uk/avic-design/. 44 Elsa B. Kania, In Military-Civil Fusion, China is Learning Lessons from the United States and Starting to Innovate, REAL CLEAR DEFENSE (August 27, 2019), https://www.realcleardefense.com/ articles/2019/08/27/in_military-civil_fusion_china_is_learning_lessons_from_the_united_states_ and_starting_to_innovate_114699.html. 45 Implementing the Talent Strategy to Strengthen the Country, THE CENTRAL PEOPLE’S GOVERNMENT OF THE PEOPLE’S REPUBLIC OF CHINA (Mar. 20, 2007), http://www.gov.cn/ztzl/2007zfgzbgjd/ content_555796.htm. 46 WHITE HOUSE, How China’s Economic Aggression Threatens the Technologies and Intellectual Property of the United States and the World, 14, (June 18, 2018), https://www.whitehouse.gov/wpcontent/uploads/2018/06/FINAL-China-Technology-Report-6.18.18-PDF.pdf. 47 U.S. FED. BUREAU OF INVESTIGATION, Counter Intelligence, Strategic Partnership Intelligence Note (SPIN), Chinese Talent Programs, SPIN: 15-007 (Sept. 2015), https://info.publicintelligence.net/FBIChineseTalentPrograms.pdf. 48 The Recruitment Program of Global Experts, THOUSAND PEOPLE PLAN, http://www.1000plan.org/ qrjh/section/2?m=rcrd. 49 Su Zhou, Returnees finding big opportunities, CHINA DAILY (Feb. 26, 2017), http://www.chinadaily.com.cn/china/2017-02/25/content_28345785.htm. 42 20 Where do the ?1,000 Talent Plan" experts go? Since 2008. more than 6.000 overseas experts have been recruited by the "1.000 Talent Plan". among which more than 70 are Nobel Prize laureates or academicians from the United States and Europe. WH ERE THEY ARE EMPLOYED Universities: Enterprises 3.380 or people 5 starting their own 6.089 business: t:-I:l 1,791 Other: 41 Scienti?c Financial research institutions: 3 institutes: 48 . 2 2 329 Sour-:9: Is' rihua News Agency CH NA mm The TTP is just one of China?s more than 200 talent recruitment plans.50 For example, another popular Chinese talent recruitment plan is the Changjiang Scholars program. Started in 1998, the Changjiang Scholars program is run by the Ministry of Education and recruits individuals both in China and abroad to work in Chinese universities and research institutions.51 According to one public report, as of June 2014, a total of 2,251 Changjiang Scholars had been appointed, including 1,546 distinguished professors and 705 visiting professors.52 China?s talent recruitment plans do not only target U.S. universities or researchers; there are 5? Timothy Puko and Kate O?Keefe. Energy Department to Ban Foreign Talent- Recruitment Programs. WALL STREET J. (Feb. 1, 2019), 1 1 549052674. 51 The People?s Daily, The Ministry of Education Implemented the Yangtze River Scholars Program for 16 Years, NATIONAL DEGREE AND GRADUATE EDUCATION DATA CENTER (June 9. 2014). (Internet Archive Wayback Machine reproduction). 52 Hepeng Jia. How to find a job in China, NATURE (Jan. 17, 2018), d41586-018-00537-0. 21 venture capital recruitment plans and talent recruitment competitions that engage entrepreneurs and the private sector directly.53 The Chinese government is investing significant resources in its talent recruitment plans. According to one 2015 FBI analysis, China pledged to spend 15 percent of the country’s gross domestic product on human resources during the period covered by the plan, potentially more than $2 trillion.54 i. Administration In contrast to other previous talent recruitment plans, the Party, specifically through the Central Committee’s Organization Department, plays a lead role in implementing the TTP.55 The Organization Department is one of the most powerful CPC departments, controlling more than 90 million Party officials’ assignments at all levels of the Chinese government.56 The CPC recognized the need to control overseas talent recruitment efforts “to ensure they were in line with Party priorities, so it created a complex system of administration and oversight to coordinate its recruitment efforts.”57 This coordination allows the CPC to “exert exceptional” levels of control over the TTP and other talent recruitment plans.58 North American leg of the 7th 1000 Talents Plan Startup Contest Concludes, Venture Capital Community, Association of Thousand Talents Program (Aug. 15, 2018), http://1000.sandlake.com/ English/News/2018-08-15/314.html. Rolfe Winkler, Chinese Cash That Powered Silicon Valley Is Suddenly Toxic, Wall Street J. (June, 11, 2019), https://www.wsj.com/articles/chinese-cash-issuddenly-toxic-in-silicon-valley-following-u-s-pressure-campaign-11560263302. Press Release, U.S. DEP’T OF JUSTICE, One American and One Chinese National Indicted in Tennessee for Conspiracy to Commit Theft of Trade Secrets and Wire Fraud (Feb. 14, 2019), https://www.justice.gov/opa/pr/oneamerican-and-one-chinese-national-indicted-tennessee-conspiracy-commit-theft-trade. 54 U.S. FED. BUREAU OF INVESTIGATION, Counter Intelligence, Strategic Partnership Intelligence Note (SPIN), Chinese Talent Programs, SPIN: 15-007 (Sept. 2015), https://info.publicintelligence.net/FBIChineseTalentPrograms.pdf. 55 Fed. Bureau of Investigation production, 10 (Oct. 12, 2018). 56 Eleanor Albert and Beina Xu, The Chinese Communist Party, COUNCIL ON FOREIGN REL. (Sept. 27, 2019), https://www.cfr.org/backgrounder/chinese-communist-party. 57 Fed. Bureau of Investigation production, 10 (Oct. 12, 2018). 58 Id. 53 22 Government Agencies Chinese Academy of Sciences Chinese Academy of Engineering National Natural Science Foundation China Association for Science and Technology Ministry of Education Ministry of Science and Technology Foreign Experts Bureau Talent Work Coordination Small Group (aiRAifIf?Fih?lNE) Economic Planning and Financing Agencies National Developmentand Reform Commission Ministry of Industry and Information Technology Ministry of Human Resources and SocialSecurity Overseas High-Level Talent Introduction Small Group State-owned Assets Supervision and Administration Commission (an-mamas 3:17:32: 22:2? Foroim end Folded Affairs/Security Policy Input United Work Front Department Communist Youth League of China Ministry of Foreign Affairs Imam Public Security The Organization Department oversees the Talent Work Coordination Small Group the Overseas High-Level Talent Recruitment Working Small Group, and the Overseas High-Level Talent Recruitment Work Special Office (?Special The Organization Department?s director and deputy director chair the which is comprised of 18 government agencies, CPC affiliated entities including the Organization Department, and academic entities. 60 In 2008, the Chinese government issued two policy documents detailing the administration and implementation of the TTP. On December 23, 2008 the ?General Of?ce of the CPC Central Committee? published the ?Central Committee Talent Work Coordination Small Group?s Advice for Implementing the This document provides initial guidance and organizing infrastructure, including by creating leadership positions, de?ning roles and responsibilities, and creating smaller working groups charged with more discrete tasks.62 The policy document also created the ?Overseas High-Level Talent Introduction Small Group.? This group published an ?Interim Measures? guidance 59 Interim Measures for the Introduction of High-Level Overseas Talent, Organization Department Document No. 28, IVIINISTRY OF NAT. RESOURCES (2008), 5? Id. 61 Li Fang Quanjuan, Notice of the General Office of the Central Committee of the Communist Party of China on Forwarding the Opinions of the Central Talent Work Coordination Group on Implementing the Overseas High-Level Talents Introduction Program, CHINA COMMUNIST PARTY NEWS NETWORK (June 20, 2012), 52 Id. (The ?General Of?ce of the CPC Central Committee? published the ?Central Committee Talent Work Coordination Small Group?s Advice for Implementing the 23 document designed to implement the overseas high-level talent recruitment plans, including the TTP.63 The Interim Measures stated TTP’s goals were as follows: [The TTP] focuses on the national development strategy. Starting from 2008, it will take 5-10 years to focus on national key innovation projects, key disciplines and key laboratories, central enterprises and stateowned commercial financial institutions, and high-tech industries. Various types of parks, mainly in the development zone, have introduced and focused on supporting 2,000 overseas high-level talents to return to China for innovation and entrepreneurship.64 The TWCSG also develops strategic plans, conducts policy research, and coordinates 18 participating government agencies, CPC affiliated entities, and academic entities. These 18 entities and agencies include:65                  CPC Central Committee Organization Department Chinese Academy of Sciences (“CAS”) Chinese Academy of Engineering (“CAE”) National Natural Science Foundation (“NSFC”) China Association for Science and Technology (“CAST”) Ministry of Education (“MOE”) Ministry of Science and Technology (“MOST”) Foreign Experts Bureau66 Ministry of Industry and Information Technology (“MIIT”) National Development and Reform Commission Ministry of Human Resources and Social Security (“MHRSS”) State-owned Assets Supervision and Administration Commission (“SASAC”) People’s Bank of China Ministry of Finance United Work Front Department Communist Youth League of China (“CYLC”) Ministry of Foreign Affairs Central Organization Department: Interim Measures for Introducing Overseas High-level Talents, SCHOOL OF OPTICAL AND ELECTRONIC INFO. HUST (Mar. 14, 2014), https://web.archive.org/web/ 20140323045245/http://oei.hust.edu.cn/Discipline/1/2012-11-09/183257640.html (Internet Archive Wayback Machine reproduction). 64 Id. 65 Interim Measures for the Introduction of High-Level Overseas Talent, Organization Department Document No. 28, MINISTRY OF NAT. RESOURCES (2008), http://www.mnr.gov.cn/zt/kj/kjfz/ kjrc/gjkjrcjh/201811/t20181129_2370185.html. 66 The Foreign Experts Bureau is now part of MOST. See Kristin Huang & Alice Yan, New Immigration Bureau Set Up to Handle Growing Number of Foreigners in China, SOUTH CHINA MORNING POST (Mar. 13, 2018), https://www.scmp.com/news/china/policiespolitics/article/ 2137058/new-immigration-bureau-set-handle-growing-number. 63 24  Ministry of Public Security The participating agencies and entities each fulfill an important role in the process for targeting, recruiting, financing, and absorption of TTP members’ scientific research and technology as well as identifying China’s scientific, technological, and industrial needs.67 The Special Office collects information from these agencies, decides China’s priority technical areas, and approves the TTP finalists.68 ii. Application Process Applicants work through a three-phase application process to be admitted into the TTP.69 First, the applicant’s future Chinese employer submits an application to one of the platforms discussed below.70 At this stage, the applicant must provide documents detailing his or her credentials and scientific achievements.71 In some cases, U.S.-based applicants have submitted significant amounts of sensitive information from their institutions to bolster their credentials.72 Second, the lead organization for the platform evaluates the application and makes a recommendation.73 Third, the Thousand Talent’s Special Office, in conjunction with the Overseas High-Level Talent Introduction Small Group, makes an application decision.74 All TTP applications for the national-level plans, however, “are ultimately reviewed by the Communist Party’s Organization Department, which decides whether or not to officially recruit the foreign expert.”75 Interim Measures for the introduction of high-level overseas talent, Organization Department Document No. 28, MINISTRY OF NAT. RESOURCES (2008), http://www.mnr.gov.cn/zt/kj/kjfz/kjrc/ gjkjrcjh/201811/t20181129_2370185.html. 68 Id. 69 The Recruitment Program of Global Experts, THOUSAND PEOPLE PLAN, (Jan. 19, 2012), https://web.archive.org/web/20141208104715/http://www.1000plan.org/qrjh/article/18582 (Internet Archive Wayback Machine reproduction). 70 General Procedure for Reporting Thousands of People, THOUSAND PEOPLE PLAN, http://www.1000plan.org.cn/qrjh/section/2?m=rcrd. 71 Id. 72 See Transcript of Detention Hearing at 18, United States of America v. You, et al (E.D. Tenn. April 24, 2019) (No. 2:19-CR-00014); Fed. Bureau of Investigation production, 10 (Oct. 12, 2018) (Dr. Long Yu, a Chinese citizen stole “materials included design information for the F-22 and JSF-35 military jet engines. Dr. Long later admitted he had taken this information to China in support of his Chinese Talent Plan position at a Chinese government laboratory.”). 73 General Procedure for Reporting Thousands of People, THOUSAND PEOPLE PLAN, http://www.1000plan.org.cn/qrjh/section/2?m=rcrd. 74 Id. 75 Fed. Bureau of Investigation production, 10 (Oct. 12, 2018). 67 25 iii. Implementation The Chinese government relies on four major platforms for implementing the TTP.76 These four platforms provide the systematic guidance and structure to recruit overseas experts for Chinese universities, research labs, business development parks, and other state-owned enterprises, all with the aim of modernizing China’s indigenous innovation capabilities.77 1) National Key Innovation Projects Platform. The National Key Innovation Projects Platform recruits overseas high-level S&T talent as defined and required under the MLP.78 2) Key Disciplines and Key Laboratories Platform. The Key Disciplines and Key Laboratories Platform recruits overseas high-level talent for China’s domestic education system, including universities.79 The Chinese government intended this platform to increase its research capabilities, serve as an “important base for training innovative talents and developing scientific research,” and occupy the “backbone and leading position within the higher education disciplines system.”80 3) Central Enterprises and State-Owned Commercial and Financial Organizations Platform. The Central Enterprises and State-Owned Commercial and Financial Organizations Platform aims to attract overseas high-level talent for state-owned financial institutions.81 4) Parks or Zones Based at High-Tech Industrial Development Zones Platform. The Parks or Zones Based at High-Tech Industrial Development Zones platform aims to attract overseas high-level talents to return and create or operate businesses in China’s business development parks.82 The Recruitment Program of Global Experts, THOUSAND PEOPLE PLAN, (Jan. 19, 2012), https://web.archive.org/web/20141208104715/http://www.1000plan.org/qrjh/article/18582 (Internet Archive Wayback Machine reproduction). 77 Id. 78 Four Platforms and Specific Requirements, THOUSAND PEOPLE PLAN, http://www.1000plan.org.cn/ qrjh/section/2?m=rcrd. 79 The Recruitment Program of Global Experts, THOUSAND PEOPLE PLAN, http://www.1000plan.org/qrjh/section/2?m=rcrd. 80 Four Platforms and Specific Requirements, THOUSAND PEOPLE PLAN, http://www.1000plan.org.cn/ qrjh/section/2?m=rcrd; China Academic Degrees and Graduate Information, Introduction to National Key Disciplines Project, THOUSAND PEOPLE PLAN (2008), http://www.chinadegrees.cn/xwyyjsjyxx/zlpj/zdxkps/257697.shtml. 81 Four Platforms and Specific Requirements, THOUSAND PEOPLE PLAN, http://www.1000plan.org.cn/ qrjh/section/2?m=rcrd. 82 Id. 76 26 These four programs assist China in accomplishing its national S&T goals by strengthening research in fundamental and cutting-edge technologies and drastically improving the quality of Chinese universities and research laboratories. iv. Chinese Talent Recruitment Contracts Violate U.S. Standards on Research Integrity After selection, TTP members sign contracts or “letter of intent to work” agreements with Chinese institutions.83 The Subcommittee obtained several of these contracts and one of the Chinese government’s template contracts. The contracts include provisions that violate U.S. standards of research integrity, place TTP members in compromising legal and ethical positions, and undermine fundamental U.S. scientific norms of transparency, reciprocity, and integrity. The FBI has concluded that TTP members are “usually contractually obligated to essentially use the knowledge they have obtained from their foreign employers to successfully fulfill the terms of their contract.”84 U.S. institutions and U.S. grantmaking agencies must be fully aware of such contractual obligations as they could limit the ability to protect and retain intellectual capital here in the United States. China’s State Administration of Foreign Experts Affairs (“SAFEA”) created a template contract on which TTP contracts reviewed by the Subcommittee are based.85 In addition to basic information such as salary and benefits, the template includes intellectual property ownership provisions and non-disclosure clauses related to research and intellectual property developed in China, underscoring the Chinese government’s focus on technology acquisition.86 The template also encourages entities in China that employ TTP members to incorporate additional non-disclosure requirements and intellectual property agreements.87 Provisions in some TTP contracts control ownership of intellectual property created during the performance of the contract, including intellectual property created in the United States, at U.S. institutions, and with U.S. funds. Though provisions among the reviewed contracts varied, every contract contained clauses that gave Chinese institutions at least some rights in any intellectual property created by the TTP member in the United States. For example, one contract states, “The intellectual property rights obtained by [the TTP member] during the work of [the Chinese institution], including copyright, patent rights, trademark rights, etc., are owned by the [Chinese institution].”88 The contract permits some sharing of the intellectual property, but only with the TTP member: “According to the definition of Fed. Bureau of Investigation production, 11 (Oct. 12, 2018). Id. 85 Contract of Employment/Letter of Intent, STATE ADMIN. OF FOREIGN EXPERTS AFF., https://wenku.baidu.com/view/b6ed88102a160b4e767f5acfa1c7aa00b42a9d5e.html?rec_flag=default. 86 Id. 87 Id. 88 Documents on file with the Subcommittee (Sept. 10, 2019). 83 84 27 intellectual property rights between the two parties, [the talent recruitment plan member] has certain sharing rights within the defined scope.”89 The contract did not mention the rights of the U.S. institution. This contract also requires that the TTP member will “apply for more than 2 invention patents” during the course of the grant and also included non-disclosure and confidentiality provisions.90 Another contract references the possibility that the U.S. institution where the TTP member works could retain some ownership of any intellectual property created during the grant, yet that ownership would be “joint” with the Chinese institution. The U.S. institutions, however, are not parties to the TTP contracts. This particular contract provides: Should Chinese scientists contribute to your discoveries in China, as we anticipate, [the U.S. institution] and our institutions will jointly own, protect, and manage the commercialization of these jointly-made discoveries.91 That same contract also states that, “In any publication describing research that was primarily conducted in China, you will list our institution as your primary, and [the U.S. institution] as your secondary, site of academic appointment.”92 The scope of work described in TTP contracts also raises concerns. In many cases, the contracts detail specific expectations regarding research the TTP member will perform or the business he or she will develop in China.93 This research could resemble or replicate the work the TTP applicant performs or has performed for his or her U.S.-based employer. For example, one contract stated, “We recognize that your research in China will relate closely to your ongoing work at the [U.S. institution], and that it may be difficult to avoid comingling the results of your work.”94 In other cases, the Chinese institution has asked the TTP member to continue operating labs in China characterized as “shadow labs.”95 Another letter agreement between a TTP member and Chinese institution stated, “We anticipate that you will make several trips to China each year during the term of your engagement, but will perform much of your work remotely. [ ] When you are not in China, your laboratory here will be overseen by [REDACTED].”96 Some contracts explicitly require TTP members to train or recruit additional students to work for them in the United States. This recruitment model enables Id. Id. 91 PorCTP-0000652. 92 Id. 93 Fed. Bureau of Investigation production, 11 (Oct. 12, 2018). 94 PorCTP-0000627; PorCTP-0000651. 95 PorCTP-0000627; PorCTP-0001128. See also Kelvin K. Droegemeier, Director, Letter to the United States Research Community, OFF. SCIENCE AND TECH. POLICY (Sept. 16, 2019). 96 PorCTP-0000627; PorCTP-0000615. 89 90 28 Chinese officials to place additional talent recruitment plan members under the supervision of current members already in the United States. As the recruits develop expertise and access, they are more desirable as TTP members and this encourages rapid program growth. For example, one contract’s recruitment clause required the talent recruitment plan member to build and train a team of 8 to 10 post-doctoral students.97 Another contract provides more detail, stating the Chinese institution will provide the TTP member with a list of doctoral and graduate students from which the TTP member should recruit 1 to 2 post-doctoral students each year.98 One federal agency provided the Subcommittee with a case study detailing how TTP recruitment can also serve as a way to circumvent export controls.99 A professor at a U.S. university specialized in a critical, dual-use science, technology, engineering, and mathematics (“STEM”) field.100 He received numerous U.S. government research grants and was also a member of several Chinese talent recruitment plans.101 The professor also directed a China-based laboratory performing applied military research and development.102 Instead of traveling to China for this work, the professor sponsored visiting students from the Chinese laboratory to study under him in the United States.103 “This technique, commonly seen throughout the United States with talent recruitment plan selectees, allowed the professor to pass dual-use research, and potentially export-controlled research, to China via the visiting students and scholars without having to physically leave the United States.”104 In this case, many of the visiting students were “directly affiliated with research and development organizations involved in China’s military modernization efforts.”105 The contracts also place TTP members in compromising legal and ethical positions. Some contract provisions reflect an intent to keep the TTP members’ work in China secret. For example, one contract said “Party A and B shall keep the contents of the contract confidential. Neither party may disclose it to unrelated parties without consent from the other party.”106 Several contracts noted that the TTP member could not cancel their contracts unless their Chinese employer consented, providing Chinese officials with significant leverage over the TTP Documents on file with the Subcommittee (Sept. 10, 2019). PorCTP-0000247. 99 Documents on file with the Subcommittee (Oct. 25, 2019). 100 Id. 101 Id. 102 Id. 103 Id. 104 Id. 105 Id. 106 Documents on file with the Subcommittee (Sept. 10, 2019). 97 98 29 member.107 Given these obligations, U.S. institutions should be aware that TTP members may not voluntarily disclose their other affiliations or external funding during routine requests for disclosures. Though TTP members were known to be working for U.S. institutions, some contracts state that the member cannot “take on any substantive part-time work in other organizations or institutions” or “conduct any part-time job assigned by any other party.”108 Yet another contract explicitly recognizes the TTP member’s employment outside China, but requires he or she to work nine months of the year for their Chinese employer, raising potential conflicts of commitment.109 The same contract also requires the member to resign from his or her U.S. position within four years of the start of the TTP contract.110 B. Congressional Testimony on Chinese Talent Recruitment Plans Recent hearings in the Senate and the House have highlighted Chinese efforts to use the TTP and other talent recruitment plans to leverage U.S. research spending for their own goals. In July 2019, FBI Director Christopher Wray expressed concern over the “abuse” of Chinese talent recruitment plans such as the TTP at a Senate Judiciary Committee hearing.111 Director Wray stated: The Chinese government and the Chinese Communist Party have a number of so-called talent plans so you hear about the thousand talent plans and there is nothing inherently unlawful about the talent plans themselves. However we have seen through lots of investigations of abuse of those talent plans and essentially we have situations where it has created a pipeline in some cases at major universities especially at the graduate level more so than at the undergraduate level of key intellectual properties sometimes that has dual use potential flowing back to China for the advancement of its various strategic plans and the irony is that the U.S. is essentially funding that economic resurgence through various money that it provides through grants, etc.112 He also warned of the potential implications that may arise through the TTP: PorCTP-00001114; PorCTP-00001140. Other TTP contracts permitted TTP members to terminate the agreement with 30 days written notice. This shows that “mutual consent” to terminate a contract is not necessarily a requirement under Chinese labor law. See PorCTP-00001127. 108 PorCTP-00001108. PorCTP-00001140. 109 HHS PorCTP-00001138. 110 HHS PorCTP-00001140. 111 Oversight of the Fed. Bureau of Investigation: Hearing Before the S. Comm. on Judiciary, 116th Cong. (July 23, 2019) (testimony of Christopher Wray, Dir., Fed. Bureau of Investigation). 112 Id. 107 30 So I think we do have to be a little bit careful that we don’t find ourselves in a situation where essentially U.S. taxpayer money has been misappropriated for the advancement of China’s achievements of economic dominance over us. There are a lot of cases where those plans become violations of U.S. law or at the very least violate non-competes and things like that that might exist and I think universities need to be more and more aware of who it is they are inviting over and what safeguards they can put in place.113 At a December 2018 Senate Judiciary Committee hearing, Bill Priestap, the former Assistant Director of the FBI’s Counterintelligence Division, stated that China’s talent recruitment plans are effectively “brain gain programs” that “encourage theft of intellectual property from U.S. institutions.”114 Priestap continued, “For example, China’s talent recruitment plans, such as the Thousand Talents Program, offer competitive salaries, state-of-the-art research facilities, and honorific titles, luring both Chinese overseas talent and foreign experts alike to bring their knowledge and experience to China, even if that means stealing proprietary information or violating export controls to do so.”115 In April 2018, the House Science, Space, and Technology Committee’s Subcommittee on Research and Technology and Subcommittee on Oversight held a joint hearing titled “Foreign Plots Targeting Research and Development.” Michael Wessel, Commissioner of the U.S.-China Economic and Security Review Commission, emphasized key threats posed by talent recruitment plans such as the TTP. Commissioner Wessel referenced a 2011 FBI report that stated: Chinese talent programs pose a serious threat to U.S. businesses and universities through economic espionage and theft of intellectual property. The different programs focus on specific fields deemed critical to China, to boost China’s national capability in [science and technology] fields. These subject matter experts often are not required to sign nondisclosure agreements with U.S. entities, which could result in loss of unprotected information. … One of the greatest threats toward these experts is transferring or transporting proprietary, classified, or export Id. China’s Non-Traditional Espionage Against the United States: Hearing on The Threat and Potential Policy Responses Before the S. Comm. on the Judiciary, 115th Cong. (Dec. 12, 2018) (testimony of E.W. “Bill” Priestap, Assistant Director, Counterintelligence Division, Fed. Bureau of Investigation). 115 Id. 113 114 31 controlled information, or intellectual property, which can lead to criminal charges.116 In a July 2018 House Permanent Select Committee on Intelligence hearing titled, “China’s Threat to U.S. Research/Innovation Leadership,” Michael Brown, a Presidential Innovation Fellow who focuses on Chinese S&T policy issues, explained how the Chinese government engages in technology transfers through talent recruitment plans. According to Brown, China has been able to conduct technology transfers by “sponsoring professional organizations to target talent and using Chinese students by placing them in sensitive areas of U.S. research.”117 C. China Deletes References to the Thousand Talents Plan Following public testimony and other U.S. government scrutiny, some Chinese government websites deleted online references to the Thousand Talents Plan, according to several U.S. and foreign media reports even though the talent recruitment plans continue. Some Chinese universities also stopped promoting the program, and the official TTP site removed a post containing a list of the names of participating scientists.118 According to one U.S.-based news outlet, China’s selfcensorship followed the August 2018 high-profile arrest of a TTP member who worked for General Electric and was alleged to have stolen technology secrets from the company.119 One Chinese language news outlet reported that Chinese authorities had ordered media outlets to suspend reporting on the TTP.120 That report continued: An official document, with signatures of the Thousand Talents Plan’s Youth Program Review Team and the seal of the Representative of the National Natural Science Foundation of China, has been circulated online recently. The document shows the team has listed precautionary measures, asking that for the sake of ensuring the safety of overseas Foreign Plots Targeting Research and Development: Hearing Before the H. Subcomm. on Research and Technology and H. Subcomm. on Oversight of the H. Comm. on Science, Space and Technology, 115th Cong. (Apr. 11, 2018) (testimony of Michael Wessel, Comm’r of the U.S. China Econ and Sec Review Commission). 117 China’s Threat to U.S. Research/Innovation Leadership: Hearing Before the H. Perm. Select Comm on Intelligence, 115th Cong. (July 19, 2018) (testimony of Michael A. Brown, Presidential Innovation Fellow). 118 Meng Jeng, China Mutes Volume on Thousand Talents Plan as US Spy Concerns Rise But Scientists Still Covet Funding, SOUTH CHINA MORNING POST (Dec. 8, 2018), https://www.scmp.com/ tech/science-research/article/2176897/china-mutes-volume-thousand-talents-plan-us-spy-concernsrise. 119 Spy Fears Prompt China to Censor Its Own Recruitment Drive, BLOOMBERG (Sept. 19, 2018), https://www.bloomberg.com/news/articles/2018-09-19/china-censors-mentions-of-thousand-talents-asspy-fears-grow. 120 Id. 116 32 talents, all work units should use phones or fax instead of emails when sending interview notifications, and that notices should be sent as invitations to attend academic conferences or forums in China.121 In the most specific decree from the Chinese government on limiting references to the TTP, “[t]he official document clearly requests that the phrase ‘Thousand Talents Plan’ should not appear in written circulars/notices.”122 And, finally, according to one news outlet, one TTP member “was asked to delete anything related to the Thousand Talents Plan from [his or her] homepage.”123 The Subcommittee examined Chinese websites that previously provided information on talent recruitment plans that were no longer available. For example, Northwestern Polytechnical University, a prominent Chinese university focusing on STEM, scrubbed references to talent recruitment plans from its English-version online job application.124 In mid-2018, the website highlighted two different talent recruitment plans, as shown below.125 Id. Id. 123 Kristin Huang & Kinling Ho, Why Chinese Scientists Would Rather Not Talk about Their Talent Awards, ASIAONE (Jan. 7, 2019), https://www.asiaone.com/china/why-chinese-scientists-wouldrather-not-talk-about-their-talent-awards. 124 As of this report, Northwestern Polytechnical is now on Commerce’s Entity List. Lists of Parties of Concern, U.S. DEP’T OF COM., BUREAU OF INDUS. AND SECURITY (2019), https://www.bis.doc.gov/ index.php/policy-guidance/lists-of-parties-of-concern. 125 Overview, NORTHWESTERN POLYTECHNICAL UNIVERSITY (Sept. 28, 2018), https://web.archive.org/ web/20180828021039/https://en.nwpu.edu.cn/EnglishNew/Jobs/Overview.htm (Internet Archive Wayback Machine reproduction of the Northwestern Polytechnical University “Overview” page which mentioned “scholars in Thousand Talents Program” through Sept. 2018). 121 122 33 High-level Talents: scholars in Thousand Talents Program, Distinguished Professors and Chair Professors of Changjiang Scholars Program and etc. 1. Qualifications: Overvrew a. The talents will be appointed as pro?essors. coctoral supenisors, and NPU provides full payment for 1 or 2 post- Current doctoral research assistants. Employment Opportunities 2. Compensation and Support: a. Besides the bonus provided by National Government and Snaanxi Government, NPU provides 600.00C - 1,000,000 High-level RMB pre-tax) annual basic salaries for talents. Sl?ort-term schoars will be paid according to attendance time. Talents b. NPU provides 148 m2 apartment in Youyi Campus or 230 m2 apartment in Chang'an Campus and no less than 300.030 RMB resettlement allowances tor full-time employed scholar. NPU provides apartments for short-term Post-doctoral employed scholars. Researchers . . .. c. NPJ provrdes laborator/ platforms scientific research and work and screntlt'rc research start-up funds New Staff Registration Young Scholars in Thousand Talents Program Process 1. Qualifications: In 2019, the university then changed the website and deleted both references to its talent recruitment plans, as shown here.126 High-level Talents: Distinguished Professors and Chair Professors of Changjiang Scholars Program and etc. Overview 1. Qualifications: Current Employment a. the talents will be appointed as professors, doctoral supervisors, and NPU provides full Opportunities payment for 1 or 2 post-doctoral iesearch assistants. High-level Talents 2. Compensation and Support: a. Besides the bonus provided by National Government and Sliaanxi Government, NPU Researchers . . . provides 600,000 - ?l,000,000 RMB (pre-tax) annual basrc salaries for talents. Short-term New Staff Registration scholars Will be paid according to attendance time. Process . . . . b. NPU provrdes M8 m2 apartment In Youyi Campus or 230 m2 apartment In Chang'an (ampns and no less than {00,000 RMB resettlement allowances for full?time employed scholar. NPU provides apartments for short-term employed scholars. c. NPU provides public laboratoiy platforms scientific research and work facilities and scienti?c research start-up funds. 126 Overview, NORTHWESTERN POLYTECHNICAL UNIVERSITY, Overview.htm. 34 D. After Implementation of Talent Recruitment Plans, More Chinese Students, Researchers, and Scientists are Returning to China China?s talent recruitment plans designed to repatriate Chinese students and professionals abroad are succeeding as more Chinese students are returning to China. Chinese government reports and data show the number of Chinese students returnng from working or studying abroad has increased signi?cantly over the past decade.127 In 2018, 662,100 students went abroad and 480,900 returned?a 78 percent return rate that China boasted on its government website.?8 This was a marked increase from the 30.6 percent return rate recorded in 2007 and the approximate 5 percent return rate in 1987.129 China?s Ministry of Education data, as shown below, highlights the growth of Chinese students studying abroad and the increase in these students returning.130 More Chinese Students Returning to China 700 W?o?o?e?owooe?c @qmomewowexomoxowomo I Studying Abroad I Returning Home 127 Xinhua, More Chinese Study Abroad in 2018, MINISTRY OF EDUC. (1VIar. 28, 2019), 128 Id. 129 David Zweig Zoe Ge, How Chinese Students Who Return Home after Studying abroad Succeed and Why they Don?t, SOUTH CHINA MORNING POST (July 27, 2018), insight-opinion/asia/article/2 15 13? Xinhua, More Chinese Study Abroad in 2018, MINISTRY OF EDUC. (1VIar. 28, 2019), MNISTRY OF EDUCATION, BRIEF REPORT ON CHINESE OVERSEAS STUDENTS AND STUDENTS IN CHINA (Mar. 31, 2018), Youyou Zhou, Chinese Students Increasingly Return Home after Study Abroad, QUARTZ (July 29, 2018), 35 The MOE has publicly touted China’s success in increasing the return rate of Chinese students. On April 4, 2018, the MOE issued an English language press release stating, “The momentum in the number of Chinese students studying abroad and returning from overseas studies continued last year.”131 It continued, “An overview of statistics on Chinese students studying abroad between 1978 and 2017 reveals that the number of students returning from overseas studies, especially high-caliber graduates, has been growing steadily.”132 A year later, the MOE relayed on March 28, 2019 to Chinese media that: Nearly 5.86 million Chinese studied overseas from 1978 to the end of 2018. … Among them, over 1.53 million are still in the process of studying and conducting research overseas, over 4.32 million have already completed their studies, and more than 3.65 million chose to pursue a job in China after completing their studies overseas.133 2017 Sees Increase in Number of Chinese Students Studying Abroad and Returning after Overseas Studies, MINISTRY OF EDUC. (Apr. 3, 2018), http://en.moe.gov.cn/News/Top_News/201804/ t20180404_332354.html. 132 Id. 133 Xinhua, More Chinese study abroad in 2018, MINISTRY OF EDUC. (Mar. 28, 2019), http://en.moe.gov.cn/news/media_highlights/201904/t20190401_376249.html. 131 36 IV. EFFORTS TO SECURE U.S. RESEARCH Openness, transparency, reciprocity, integrity, and merit-based competition define U.S. success in S&T development.134 The collaborative openness of the U.S. research enterprise attracts investment, researchers, and students, promotes a free exchange of ideas, and ensures the distribution of timely and relevant research.135 International collaboration is also a hallmark of the U.S. research enterprise.136 Foreign researchers collaborate with U.S.-based researchers, conduct research at U.S. universities and government facilities, and receive U.S. government funding.137 The U.S. S&T base has benefited greatly from such international collaboration. Scientific research and development falls into two categories: “fundamental,” or “basic” research, and applied research. Fundamental research is “systematic study directed toward greater knowledge or understanding of the fundamental aspects of phenomena and of observable facts without specific applications towards processes or products in mind.”138 Fundamental research lends itself to international collaboration and relies on the broad sharing of research results with the scientific community so as to confirm research findings and create intellectual capital.139 Applied research, on the other hand, uses this intellectual capital to See NAT’L ACAD. OF SCI. ET AL, RISING ABOVE THE GATHERING STORM: ENERGIZING AND EMPLOYING AMERICA FOR A BRIGHTER ECON. FUTURE, 70 (2007); NAT'L RES. COUNCIL, SCI. AND SECURITY IN A POST 9/11 WORLD: A REP. BASED ON REGIONAL DISCUSSIONS BETWEEN THE SCI. AND SECURITY COMMUNITIES, 2 (2007). 135 See NAT'L RES. COUNCIL, SCIENCE AND SECURITY IN A POST 9/11 WORLD: A REP. BASED ON REGIONAL DISCUSSIONS BETWEEN THE SCI. AND SECURITY COMMUNITIES, 27 (2007). See also L. Rafael Reif, How to Maintain America’s Edge, FOREIGN POLICY (May/June 2017), https://www.foreignaffairs.com/articles/united-states/2017-03-23/how-maintain-america-s-edge (“U.S. universities have long been a magnet for the world’s most brilliant people, as both students and faculty.”) 136 See NAT'L RES. COUNCIL, SCI. AND SECURITY IN A POST 9/11 WORLD: A REP. BASED ON REGIONAL DISCUSSIONS BETWEEN THE SCI. AND SECURITY COMMUNITIES (2007). See also About the Office of International Science & Engineering (OISE), NAT’L SCI. FOUND., https://www.nsf.gov/od/oise/ about.jsp (the US “collaborates internationally to advance the U.S. economy, enhance our nation’s security; give the U.S. the competitive edge to remain a global leader; and advance knowledge and global understanding”). 137 See NAT'L RES. COUNCIL, SCI. AND SECURITY IN A POST 9/11 WORLD: A REP. BASED ON REGIONAL DISCUSSIONS BETWEEN THE SCI. AND SECURITY COMMUNITIES (2007). See also Désirée Schauz, What is Basic Research? Insights from Historical Semantics, 52 MINERVA 273, 318-19 (2014) (detailing the development of “basic research” as a concept so federal funding could be secured for research that does not produce immediate commercial benefit). 138 NAT’L RES. COUNCIL, ASSESSMENT OF DEP’T OF DEFENSE BASIC RES. APP. D, at 49 (2005), https://www.nap.edu/read/11177/chapter/8#49. 139 See VANNEVAR BUSH, SCI.: THE ENDLESS FRONTIER, 21 (1945) (explaining that the “international exchange of scientific information is of growing importance … the Government should take an active role in promoting the international flow if scientific information”) (emphasis in original). 134 37 solve specific problems or to develop a particular scientific application.140 As its purpose is clear, it is easier to judge the commercial value or national security implications of technology that comes out of applied research than from basic research.141 The federal government’s regulatory framework reflects a compromise of balancing national security and the openness of research. This compromise has allowed basic science to flourish, largely uninhibited, while placing additional scrutiny on applied research for national security reasons.142 This section provides an overview of the NSF, NIH, and DOE and the roles these agencies play with respect to oversight of scientific research and development. The Subcommittee found that Chinese talent recruitment plan members misappropriated U.S. government funding, provided early basic research ideas to their Chinese employers, stole intellectual capital from U.S. basic research before it was published, and engaged in intellectual property theft. Next, this section details the FBI’s failure to effectively warn the U.S. academic community of the threat of Chinese talent recruitment plans, Commerce’s issuance of export licenses of sensitive technologies to Chinese talent recruitment plan members and other concerning Chinese entities, and the State Department’s limitations on denying visas to applicants who may be part of China’s efforts to acquire intellectual capital and property. NAT’L RES. COUNCIL, ASSESSMENT OF DEP’T OF DEFENSE BASIC RES. APP. D, at 49 (2005), https://www.nap.edu/read/11177/chapter/8#49. 141 See generally id. 142 NAT'L RES. COUNCIL, SCI. AND SECURITY IN A POST 9/11 WORLD: A REP. BASED ON REGIONAL DISCUSSIONS BETWEEN THE SCI. AND SECURITY COMMUNITIES, 80 (2007) (“the cost of one potential leak … must be balanced against the national competitiveness and economic benefits gained from encouraging foreign students and scholars to come to American universities and perform fundamental research with minimal restrictions”). 140 38 A. THE NATIONAL SCIENCE FOUNDATION The National Science Foundation (“NSF”) is an independent federal agency established by Congress in 1950.143 The NSF’s mission is “to promote the progress of science; to advance the national health, prosperity, and welfare; and to secure the national defense.”144 The NSF funds basic research that forms a foundational knowledge base that helps drive the U.S. economy, advances national security, and sustains global leadership.145 While the NSF’s funding of fundamental research is nearly always unclassified, the research can have unforeseen future applications in sensitive areas such as artificial intelligence or chemical and nuclear weapons development. The NSF annually provides about 27 percent of all federal funds devoted to basic scientific research at U.S. research institutions.146 This money funds about 12,000 new awards each year, mostly in the form of limited-term grants with an average duration of three years.147 A small portion of funding goes to equipment and facilities that would be too expensive for any one researcher or organization to fund, such as U.S. Antarctic research sites.148 Most awards, however, go to individuals and small groups of principal investigators through institutions for specific research proposals judged using “a rigorous and objective merit review system.”149 Though the NSF requires disclosures from grant applicants, the agency does not have effective policies and procedures in place to prevent foreign talent recruitment plan members from misappropriating U.S.-funded research. Recently, the NSF implemented a new policy in July 2019 prohibiting employees from participating in foreign talent recruitment plans. The policy, however, does not apply to NSF-funded researchers despite the fact that they are most likely to be members of foreign talent recruitment plans. The NSF also does not vet grantees before awarding them funding. The NSF has no dedicated staff to ensure compliance with NSF grant terms. Instead, the NSF relies on sponsoring institutions to vet and conduct due diligence on potential grantees. It relies on the NSF inspector general to also conduct grant oversight. At a Glance, NAT’L SCI. FOUND., https://www.nsf.gov/about/glance.jsp. NSF Statutory Mission, NAT’L SCI. FOUND., https://www.nsf.gov/pubs/2014/nsf14002/pdf/ 02_mission_vision.pdf. See generally National Science Foundation Act of 1950, Pub. L. No. 81-507, 64 Stat. 154 (codified as amended at 42 U.S.C. § 1861, et seq). 145 At a Glance, NAT’L SCI. FOUND., https://www.nsf.gov/about/glance.jsp. 146 Id. 147 Id. 148 Id. 149 Id. 143 144 39 1. Fundamental Research Fundamental research is comprised of basic science and engineering results that are “published and shared broadly within the scientific community.”150 Fundamental research is often considered the bedrock of scientific success and innovation and requires a research environment that is conducive to creativity and the free exchange of ideas.151 Though the participation of international researchers in this type of research is crucial, America’s “leadership position in science and technology is an essential element in our economic and physical security.”152 Accordingly, the U.S. government may restrict some research for “proprietary or national security reasons.”153 Concerns about the balance of national security risks and collaborative university environments began in the early 1980s.154 In 1981, five presidents from prominent American research universities sent a letter to the Secretaries of State, Defense, and Commerce raising concerns about a Defense Department policy that sought to restrict participation by foreign students in, and dissemination of information on, a sensitive research program.155 In response, the National Academy of Sciences (“NAS”)—a private, nonprofit, self-governing membership corporation for the furtherance of science and technology for the general welfare156—convened a panel to “examine the various aspects of the application of controls to scientific communication and to suggest how to balance competing national objectives so as to best serve the general welfare.”157 The resulting study sought to preclude—as a matter of policy—the imposition of special restrictions on the bulk of university research.158 EXEC. OFFICE OF THE PRESIDENT, NSDD-189, NATIONAL POLICY ON THE TRANSFER OF SCI., TECH. AND ENGINEERING INFO, 1 (1985). 151 Id. 152 Id. 153 Id. 154 See Neal Lane, Tighter Controls to Prevent Espionage at U.S. Research Laboratories Are Harmful, in ESPIONAGE AND INTELLIGENCE GATHERING, 106-07 (Louise I. Gerdes ed., 2004). 155 David A. Wilson, National Security Control of Technological Information, 25 JURIMETRICS J. 109, 119–20 (1985). 156 NAT’L ACAD. OF SCI., SCI. COMM. AND NAT’L SECURITY, ii (1982). Additionally, the NAS “shall, whenever called upon by any department of the Government, investigate, examine, experiment, and report upon any subject of science or art…” An Act to Incorporate the National Academy of Sciences, Ch. 111, 12 Stat. 806 § 3 (1863). 157 NAT’L ACAD. OF SCI., SCI. COMM. AND NAT’L SECURITY, 24-25 (1982) (describing the usual means and importance of scientific communication). The study, prepared with support from the Defense Department, was the first major study of the conflict between national security goals and open academic and research communication. See also NAT’L SCI. BOARD, REP. OF THE COMMITTEE ON OPENNESS OF SCI. COMM. (1988) (describing the need and requirements for open communications in science). 158 See NAT’L ACAD. OF SCI., SCI. COMM. AND NAT’L SECURITY, 1–8 (1982). 150 40 As a result of the NAS study, President Reagan issued National Security Decision Directive 189 (“NSDD-189”) in 1985, which to this day ensures the openness of fundamental research by exempting unclassified information from control or access limitations.159 NSDD-189 defines fundamental research and the desire to keep fundamental research unrestricted.160 In reaffirming NSDD-189’s foundations, the NSF emphasized that “the United States’ commitment to freedom of inquiry, innovation, and the marketplace of ideas has helped the U.S. grow, attract, and retain our world-class science and engineering workforce.”161 NSDD-189 includes some limitations on the use and transfer of even unclassified foundational research. For example, NSDD-189 specified “where the national security requires control, the mechanism for control of information generated during federally funded fundamental research in science, technology and engineering at colleges, universities and laboratories is classification.”162 Finally, NSDD-189 suggests that the U.S. government should periodically review “all research grants, contracts, or cooperative agreements for potential classification.”163 2. The NSF Grant Process The Proposal and Award Policies and Procedures Guide (“PAPPG”) outlines the merit review system and provides guidance on the preparation and submission of grant proposals to the NSF.164 The merit review system contains three phases: (1) proposal preparations and submission; (2) proposal review and processing; and (3) award processing—each containing additional discrete tasks.165 Phase I: Proposal Preparation and Submission. The NSF publishes information about funding opportunities through various sources including: Find Funding, a tool on the NSF website; National Science Foundation Update, an email newsletter; and grants.gov.166 Next, the individual or organization seeking funding See EXEC. OFFICE OF THE PRESIDENT, NSDD-189, NATIONAL POLICY ON THE TRANSFER OF SCIENTIFIC, TECHNICAL AND ENGINEERING INFORMATION (1985). 160 Id. at 1. 161 Statement of the National Science Board on Security and Science, NAT’L SCI. FOUND. (Oct. 24, 2018), https://www.nsf.gov/news/news_summ.jsp?cntn_id=297039. 162 EXEC. OFFICE OF THE PRESIDENT, NSDD-189, NATIONAL POLICY ON THE TRANSFER OF SCI., TECH. AND ENGINEERING INFO., 2 (1985). 163 Id. 164 See generally THE NAT’L SCI. FOUND., NSF 19-1, PROPOSAL AND AWARD POLICIES AND PROC. GUIDE (2019), https://www.nsf.gov/pubs/policydocs/pappg19_1/nsf19_1.pdf. 165 Merit Review, NAT’L SCI. FOUND., https://www.nsf.gov/bfa/dias/policy/merit_review. 166 Phase I: Proposal Preparation and Submission, NAT’L SCI. FOUND., https://www.nsf.gov/bfa/dias/ policy/merit_review/phase1.jsp#funding. 159 41 must develop and submit a grant proposal.167 Once the proposal is submitted to the NSF, it is routed to the appropriate NSF Program Officer for review.168 Phase II: Proposal Review and Processing. NSF program officers then conduct a preliminary review of the proposal to ensure conformance with the PAPPG guidelines.169 If the proposal conforms to PAPPG guidelines, the NSF program officer will “identify at least three external experts to review the proposal.”170 The external peer reviewers evaluate the proposal on two criteria: Intellectual Merit and Broader Impacts.171 NSF program officers are responsible for ensuring that no disqualifying conflicts of interest exist among the reviewers.172 The NSF program officer considers several additional factors “in developing a portfolio of funded projects.”173 After the review is completed, the NSF program officer makes a funding recommendation decision to the division director.174 Final approval for the proposal occurs at the division level.175 Phase III: Award Processing. An NSF grants and agreements officer reviews the recommendation made by the program officer and division director for business, financial, and policy implications, and then processes and issues a grant agreement.176 The grants and agreements officer then transmits the acceptance notification and grant agreement to the applicant.177 3. Foreign Support and Affiliation Disclosure Since 1978, the PAPPG requires applicants to make two disclosures that relate to foreign support and affiliations.178 First, PAPPG guidelines require the disclosure of “all current and pending support for ongoing projects and proposals,” including the proposed project.179 Current project support that must be disclosed includes that from “[f]ederal, state, local, foreign, public or private foundations, Id. Id. 169 Phase II: Proposal Review and Processing, NAT’L SCI. FOUND., https://www.nsf.gov/bfa/dias/policy/ merit_review/phase2.jsp. 170 Id. NSF may elect to have review conducted by ad hoc reviewers, a panel of experts, or a combination of both. 171 Id. 172 Id. See infra §2. 173 Phase II: Proposal Review and Processing, NAT’L SCI. FOUND., https://www.nsf.gov/bfa/dias/policy/ merit_review/phase2.jsp. 174 Id. 175 Id. 176 Phase III: Award Processing, NAT’L SCI. FOUND., https://www.nsf.gov/bfa/dias/policy/merit_review/ phase3.jsp. 177 Id. 178 THE NAT’L SCI. FOUND., NSF 19-1, PROPOSAL AND AWARD POLICIES AND PROC. GUIDE, II-6, II-24 (2019). 179 Id. at II-24. 167 168 42 industrial or other commercial organizations, or internal funds allocated toward specific projects.”180 Second, all senior personnel involved in the project must disclose Collaborators and Other Affiliations (“COA”).181 Senior personnel includes any principal investigator or project director who is “designated by the proposer, and approved by NSF, who will be responsible for the scientific or technical direction of the project.”182 Senior personnel also includes any individual participating in the project considered to be a faculty member by the performing institution or who holds an appointment as a faculty member at another institution.183 The NSF’s definition of senior personnel does not include postdoctoral positions, graduate or undergraduate students working on the project.184 As such, NSF’s COA process does not cover a large number of individuals who may be involved with foreign talent recruitment plans. The COA submission template contains five tables that each cover a particular area of disclosure.185 Table One requires the applicant to disclose all organizational affiliations within the last 12 months.186 The NSF makes clear that “foreign” individuals, “regardless of whether an individual is located outside the [United States],” must complete the COA template to declare their affiliations.187 The NSF, however, does not define organizational affiliations.188 The four remaining tables request information meant to assist NSF program officers in screening peer reviewers for conflicts.189 Applicants must disclose personal, family, and business relationships; names and organizational affiliations for the applicant’s Ph.D. advisor and any Ph.D. advisees; names and affiliations of any co-authors or co-collaborators in the last 48 months; and any editorial boards, editors-in-chief, or co-editors the individual interacted with over the last 24 months.190 Id. Id. at II-6. 182 Id. 183 Id. 184 Id. 185 COA Template, NAT’L SCI. FOUND., https://www.nsf.gov/bfa/dias/policy/coa/coa_template.xlsx. 186 Id. 187 Frequently Asked Questions (FAQs) On Collaborators and Other Affiliations (COA) Info. Template, NAT’L SCI. FOUND. (2018), https://www.nsf.gov/bfa/dias/policy/coa/faqs_coatemplatemay18.pdf. 188 COA Template, NAT’L SCI. FOUND., https://www.nsf.gov/bfa/dias/policy/coa/coa_template.xlsx; NSF 19-1, THE NAT’L SCI. FOUND., NSF 19-1, PROPOSAL AND AWARD POLICIES AND PROC. GUIDE (2019). 189 Frequently Asked Questions (FAQs) On Collaborators and Other Affiliations (COA) Info. Template, NAT’L SCI. FOUND. (2018), https://www.nsf.gov/bfa/dias/policy/coa/faqs_coatemplatemay18.pdf. 190 Id. 180 181 43 4. The NSF is Unprepared to Stop Foreign Talent Recruitment Plan Members From Misappropriating U.S.-Funded Research Though the NSF requires a wide array of disclosures from grant applicants, the agency does not have effective policies and procedures in place to prevent foreign talent recruitment plan members from misappropriating U.S. funds and U.S.-funded research. While the NSF recently implemented a new policy prohibiting NSF employees from participating in foreign talent recruitment plans, that policy does not extend to the principal investigators or researchers actually performing NSF-funded grant work. Furthermore, an overall lack of vetting, internal controls, compliance infrastructure, and fraud detection abilities puts NSF’s grant programs and funding at risk of being exploited or misappropriated by foreign talent recruitment plan members. The NSF relies on institutions and sponsors to conduct their own vetting and due diligence as it does not have a compliance office. NSF also lacks a uniform grant application despite receiving more than 50,000 grant applications annually in an unsearchable PDF format.191 This effectively precludes a systematic review of potential foreign conflicts of interest and commitment, complicating NSF’s ability to provide oversight and ensure compliance with grant terms and federal regulations. Though NSF plans to standardize the form and make future grant applications searchable in 2021, NSF officials admitted that they would still primarily rely on institutions to conduct vetting and due diligence.192 i. The NSF’s Policy on Foreign Talent Recruitment Plans Does Not Apply to Researchers or Principal Investigators The NSF released a policy in July 2019 regarding “Foreign Government Talent Recruitment Programs,” which applies only to NSF employees. The policy does not apply to the more than 40,000 principal or co-principal investigators, senior researchers, scientists, mathematicians, engineers, and educators who work on NSF-funded projects.193 The policy states that NSF personnel “are not permitted to participate in foreign government talent recruitment programs.”194 The policy further states that “[p]ublic service is a public trust, requiring NSF personnel and [Intergovernmental Personnel Act assignees] to place loyalty to the Constitution, the laws, and ethical principles above private gain. NSF personnel and IPAs shall Interview with Rebecca Keiser, Nat’l Sci. Found., Office of International Science and Engineering (Aug. 19, 2019) (On file with the Subcommittee). [hereinafter KEISER INTERVIEW (Aug. 19, 2019)]. 192 KEISER INTERVIEW (Aug. 19, 2019). 193 NAT’L SCI. FOUND., FY 2020 NSF BUDGET REQUEST TO CONGRESS: NUMBER OF PEOPLE INVOLVED IN NSF ACTIVITIES, at Summary Tables 5 (2019), https://www.nsf.gov/about/budget/fy2020/pdf/ 05_fy2020.pdf. 194 Personnel Pol’y on Foreign Gov’t Talent Recruitment Programs, NAT’L SCI. FOUND. (July 11, 2019), https://www.nsf.gov/bfa/dias/policy/researchprotection/PersonnelPolicyForeignGovTalentRecruitmen t%20Programs07_11_2019.pdf. 191 44 not hold financial interests that conflict with the conscientious performance of duty.”195 The policy does not apply to a large part of the scientific community, including researchers or principal investigators conducting working at universities and other research institutions around the country.196 Rebecca Keiser, NSF’s Director of the Office of International Science and Engineering, told the Subcommittee that the NSF did not believe it had the capacity to apply the policy to individuals who are not NSF employees.197 Additionally, she stated that she believed there would be “significant backlash from the community” if the policy was applied more broadly as, at this time, “it’s hard to be clear enough about what the threat actually is.”198 Keiser stated that the NSF planned to revisit the policy after more communication with law enforcement and after the NSF’s outside study of this threat was completed by the end of 2019.199 The NSF also issued a “Dear Colleague Letter” on “Research Protection” in conjunction with the new policy. NSF Director France Córdova provided additional commentary on the policy change: [W]e are issuing a policy making it clear that NSF personnel and IPAs detailed to NSF cannot participate in foreign government talent recruitment programs. There is a risk that participation in foreign government talent recruitment programs by NSF personnel and IPAs will compromise the ethical principles that bind us. Moreover, such participation poses significant risks of inappropriate foreign influence on NSF policies, programs, and priorities, including the integrity of NSF's merit review process—risks we simply cannot accept.200 Córdova’s letter also detailed other NSF efforts meant to confront the challenge.201 The NSF is proposing an electronic format for filing grant proposals, including the grant applicant’s background materials and has hired an independent scientific advisory group to further study grant security.202 Id. KEISER INTERVIEW (Aug. 19, 2019). 197 Id. 198 Id. 199 Id. 200 Dear Colleague Letter, NSF 19-200, Research Protection, NAT’L SCI. FOUND., (July 11, 2019), https://www.nsf.gov/pubs/2019/nsf19200/research_protection.jsp. 201 Id. 202 Id. 195 196 45 ii. Existing Conflict of Interest and Commitment Reporting to the NSF Does Not Adequately Capture All Researcher Activities Existing conflict of interest and conflict of commitment reporting requirements do not adequately capture all principal investigator or researcher activities.203 As a result, the NSF has proposed clarifying disclosure provisions concerning “Current and Pending Support” to include in-kind support and activities outside a principal investigator’s institutional appointment, such as consulting work during the summer months.204 One research advocacy group asserts that the research community’s common understanding, however, of existing “Current and Pending Support” reporting requirements is limited to reporting details that relate to principal investigators’ involvement in projects within the scope of their institutional appointment in the United States.205 Many researchers and principal investigators working at U.S. universities are on nine-month contracts, with three months free in the summer months. Prior to the new PAPPG proposal, it was unlikely that U.S. institutions disclosed information on what its principal investigators did during the summer months. The disclosure requirement, therefore, may not have been effectively capturing potential conflicts related to activities outside a principal investigator’s institutional appointment.206 A conflict of interest may exist: (i) if “significant financial interests of the investigator (including those of the investigator’s spouse and dependent children) [would] reasonably appear to be affected by the research or educational activities funded or proposed for funding by NSF; or (ii) if [the investigator has significant financial interest in] entities whose financial interests would reasonably appear to be affected by such activities.” THE NAT’L SCI. FOUND., NSF 19-1, PROPOSAL AND AWARD POLICIES AND PROC. GUIDE, Ch. IX: Grantee Standards (A)(2) IX-1 (2019), https://www.nsf.gov /pubs/policydocs/pappg19_1/nsf19_1.pdf. While there is no standard federally recognized definition of a conflict of commitment, the University of Illinois indicates a conflict of commitment arises “when the external activities of a [staff member] are so demanding of time or attention that they interfere with the individual’s responsibilities to the [institution]” Id.. The term “significant financial interest” means anything of monetary value, including, but not limited to, salary or other payments for services (e.g., consulting fees or honoraria); equity interest (e.g., stocks, stock options or other ownership interests); and intellectual property rights (e.g., patents, copyrights and royalties from such rights). Policy on Conflicts of Commitment and Interest, U. OF ILLINOIS, https://www.vpaa.uillinois.edu/UserFiles/Servers/Server_420372/File/RNUA/COCI_Policy_2018.pdf. 204 NAT’L SCI. FOUND., NSF-20-1, PROPOSED CHANGES TO THE PROPOSAL AND AWARD POLICIES AND PROC. GUIDE, II-23 (May 29, 2019), https://www.nsf.gov/bfa/dias/policy/papp/pappg20_1/ FedReg/draftpappg_may2019.pdf. Letter from Wendy D. Streitz, President, Council on Governmental Relations, to Suzanne Plimpton, Reports Clearance Officer, NAT’L SCI. FOUND. (July 29, 2019), https://www.cogr.edu/sites/default/files/NSF%20PAPPG%20final.pdf. 205 Letter from Wendy D. Streitz, President, Council on Governmental Relations, to Suzanne Plimpton, Reports Clearance Officer, NAT’L SCI. FOUND. (July 29, 2019), https://www.cogr.edu/sites/ default/files/NSF%20PAPPG%20final.pdf. 206 KEISER INTERVIEW (Aug. 19, 2019). 203 46 Keiser told the Subcommittee that the NSF views these PAPPG proposals as a clarification to help the community understand the disclosure obligations.207 The research community, however, views these as significant changes to current reporting requirements that will add to institutional and investigator burdens.208 The Council of Government Relations, responding to the NSF’s proposed changes, wrote, “[W]e urge NSF to consider the consequential impact to institutions this change in practice will create and work with the community to minimize the additional burden.”209 iii. The NSF Does Not have a Compliance Staff and Relies on Applicants or Sponsoring Institutions to Conduct Due Diligence According to interviews with NSF staff, the NSF relies on applicants and sponsoring institutions to conduct the vetting and due diligence for potential grant recipients.210 The NSF does not have employees dedicated to vetting grant applicants or to ensure compliance with the terms of the grant.211 Instead, Keiser told the Subcommittee that the NSF relies on the sponsoring entity, typically a university or hospital, to conduct the due diligence of the principal investigator as that investigator is nearly always an employee of that institution.212 The institutions themselves also have an interest in ensuring that the principal investigator is complying with the terms of the grant as the NSF could potentially disbar an institution from receiving NSF funding because of violations.213 iv. The NSF Relies on its Inspector General to Identify Grant Fraud Since the NSF does not have a compliance staff, the agency relies on its Inspector General (“NSF IG”) to identify instances of potential grant fraud, conflicts of commitment, and conflicts of interest. The NSF IG told the Subcommittee that investigating foreign talent recruitment plans, including the TTP, resulted in a 20 percent increase in the office’s per-agent caseload.214 TTP investigations alone now amount to approximately 25 percent of the NSF IG’s Office of Investigations’ overall workload.215 The NSF IG indicated that as “universities become more familiar with Id. Letter from Wendy D. Streitz, President, Council on Governmental Relations, to Suzanne Plimpton, Reports Clearance Officer, NAT’L SCI. FOUND. (July 29, 2019), https://www.cogr.edu/sites/ default/files/NSF%20PAPPG%20final.pdf. 209 Id. 210 KEISER INTERVIEW (Aug. 19, 2019). 211 Id. 212 Id. 213 Id. 214 Interview with the Office of Inspector Gen., Nat’l Sci. Found. (Sept. 19, 2019). 215 Id. 207 208 47 the challenges posed by faculty affiliations with [the TTP], that percentage could increase.”216 The NSF IG told the Subcommittee that that there are some unique challenges it faces when investigating cases involving talent recruitment plans. These investigations require significant expenditures in addition to those incurred with other civil, criminal, and administrative investigations. 217 As another department’s inspector general’s office noted to the Subcommittee, relying on the inspector general is not an adequate substitute for maintaining an effective internal compliance program.218 5. Talent Recruitment Plan Members Misappropriated NSF Research According to public and non-public information obtained by the Subcommittee, TTP members have misappropriated NSF research grants. The Subcommittee identified public cases that resulted in prosecutions of talent recruitment plan members involved in NSF grants or with NSF grantees. These cases involved the TTP and other related talent recruitment plans. Public Case Examples. First, Percival Zhang, a biological systems engineering professor at Virginia Polytechnical Institutes and State University (“Virginia Tech”), founded Cell-Free Bioinnovations, Inc. (“CFB”), a private research firm located in Blacksburg, Virginia.219 CFB relied exclusively on federal grants, including funds from the NSF, “for funding its research activities.”220 Zhang had begun working as a paid researcher for the Tianjin Institute of Industrial Biotechnology, Chinese Academy of Sciences by, at least, 2014.221 In 2015, Zhang submitted fraudulent grant proposals to the NSF.222 “Evidence presented at trial indicated grant funds obtained would be used for research Zhang knew had already been done in China.”223 “Zhang intended to use the grant funds for other CFB projects rather than for the projects for which the funds were requested.”224 In an Email from the Office of Inspector Gen., Nat’l Sci. Found. to the Subcommittee (Sept. 19, 2019) (on file with Subcommittee). 217 Id. 218 Briefing with the Subcommittee (Oct. 2, 2019). 219 Press Release, U.S. Dept. of Justice, Former Virginia Tech Professor Found Guilty of Grant Fraud, False Statements, Obstruction (Feb. 25, 2019) (https://www.justice.gov/usao-wdva/pr/formervirginia-tech-professor-found-guilty-grant-fraud-false-statements-obstruction). See also U.S. v. Yiheng Percival Zhang., 2019 WL 2263835 (W.D.Va. May 3, 2019). 220 Id. 221 Id. 222 Id. 223 Id. 224 Id. 216 48 effort to obstruct the investigation into his activities, Zhang submitted falsified timesheets to government investigators.225 In the second case, Feng “Franklin” Tao “signed a five-year contract with Fuzhou University in China that designated him as a Changjiang Scholar Distinguished Professor.”226 The contract required him to be a full time employee of the Chinese university.227 “While Tao was under contract with Fuzhou University, he was conducting research at Kansas University funded through two Energy contracts and four NSF contracts.”228 Tao is alleged to have “defrauded the US government by unlawfully receiving federal grant money at the same time that he was employed and paid by a Chinese research university—a fact that he hid from his university and federal agencies.”229 Third, “beginning in 2010, and while employed at NOAA, Chunzai Wang entered into contractual agreements to work under China’s Changjiang Scholars Program, the TTP, and was also involved in China’s 973 Program which mobilizes scientific talents to strengthen basic research in line with national strategic targets of the People’s Republic of China.”230 “Wang knowingly and willfully received a salary for his services as an employee of NOAA/AOML, from the People’s Republic of China.”231 Wang was also listed as an investigator on at least one NSF-funded project.232 Id. Press Release, U.S. Dept. of Justice, University of Kansas Researcher Indicted for Fraud for Failing to Disclose Conflict of Interest with Chinese University (Aug. 21, 2019), https://www.justice.gov/usao-ks/pr/university-kansas-researcher-indicted-fraud-failing-discloseconflict-interest-chinese. 227 Id. 228 Id. 229 Id. 230 Press Release, U.S. Dept. of Justice, Former Research Oceanographer Sentenced for Accepting a Salary from the People’s Republic of China (Feb. 22, 2018) (https://www.justice.gov/usaosdfl/pr/former-research-oceanographer-sentenced-accepting-salary-people-s-republic-china). See also U.S. v. Chunzai Wang, 2018 WL 1391892 (S.D.Fla. Feb. 20, 2018). 231 Id. 232 Award Abstract #1041145; Collaborative Research: The Southern Subtropical Anticyclones, NAT’L SCI. FOUND., https://www.nsf.gov/awardsearch/showAward?AWD_ID=1041145&HistoricalAwards =false. 225 226 49 B. THE NATIONAL INSTITUTES OF HEALTH The National Institutes of Health (“NIH”), part of the U.S. Department of Health and Human Services (“HHS”), is the world’s largest biomedical research agency.233 NIH’s mission “is to seek fundamental knowledge about the nature and behavior of living systems and the application of that knowledge to enhance health, lengthen life, and reduce illness and disability.”234 NIH invests over $39 billion annually in medical research and distributes 80 percent of this money through about 50,000 grants to more than 300,000 grantees or principal investigators at universities, medical schools, and research institutions in every U.S. state and around the world. 235 NIH has attempted to address the threats presented by foreign talent recruitment plans like the TTP, but significant gaps in grant integrity efforts remain unaddressed. These gaps have made it difficult for NIH to engage in proactive efforts to prevent foreign exploitation of U.S.-funded research. Instead, NIH is now conducting investigations based on a review of behavior that has already occurred, identifying the loss of intellectual property and intellectual capital to China. NIH acknowledged that at least 75 individuals potentially linked to foreign talent recruitment plans also served as peer reviewers within the last two years.236 NIH guidelines for vetting peer reviewers for potential participation in foreign talent recruitment plans do not require that potential researchers be vetted against any law enforcement database.237 Instead, NIH officials rely on “reviewing the first page of results from a Google search.”238 NIH also recently acknowledged the difficulty in fully preventing foreign governments from coopting U.S.-funded research. NIH’s Director of Extramural Research publicly stated that NIH does not About NIH, NAT’L INST. OF HEALTH, https://www.nih.gov/about-nih. Mission and Goals, NAT’L INST. OF HEALTH, https://www.nih.gov/about-nih/what-we-do/missiongoals. 235 Budget, NAT’L INST. OF HEALTH, https://www.nih.gov/about-nih/what-we-do/budget. Principal Investigator “is defined as the individual(s) judged by the applicant organization to have the appropriate level of authority and responsibility to direct the project or program supported by the grant … Each principal investigator is responsible and accountable to the applicant organization, or, as appropriate, to a collaborating organization, for the proper conduct of the project or program including the submission of all required reports.” Frequently Asked Questions: Multiple Principal Investigators, NAT’L INST. OF HEALTH, https://grants.nih.gov/grants/. Budget, NAT’L INST. OF HEALTH, https://www.nih.gov/about-nih/what-we-do/budget/multi_pi/faq.htm. 236 OFFICE OF THE INSPECTOR GEN., DEP’T OF HEALTH AND HUMAN SERV., OEI-01-19-00160, VETTING PEER REVIEWERS AT NIH’S CENTER FOR SCI. REV.: STRENGTHS AND LIMITATIONS, 12 (Sept. 2019) [hereinafter HHS IG REPORT: PEER REVIEW (Sept. 2019)]. OFFICE OF THE INSPECTOR GEN., DEP’T OF HEALTH AND HUMAN SERV., A-03-19-03003, THE NAT’L INST. OF HEALTH HAS LIMITED POLICIES, PROC., AND CONTROLS IN PLACE FOR HELPING TO ENSURE THAT INST. REPORT ALL SOURCES OF RES. SUPPORT, FIN. INT., AND AFFILIATIONS, 2 (Sept. 2019) [hereinafter HHS IG REPORT: REPORTING (Sept. 2019)]. 237 HHS IG REPORT: PEER REVIEW at 13 (Sept. 2019). 238 Id. 233 234 50 “know the scale of the problem” and that it is “concerned that the scale is much worse than what [it is] seeing.”239 1. NIH Grant Process NIH’s General Instructions outlines the grant application process.240 NIH advertises opportunities for grant funding through funding opportunity announcements (“FOAs”) on both the NIH Guide for Grants and Contracts and Grants.gov.241 All grant applications must be submitted in response to a FOA.242 The FOAs provide specific instructions that are used in conjunction with the general instructions.243 NIH has seven different groups of grant funding and each include a variety of individual grant programs identified by a specific activity code.244 Generally, NIH’s application process follows three steps: (1) application for grant funding; (2) application referral and review; and (3) pre-award and award process.245 The application phase begins after a researcher has identified an appropriate FOA.246 The FOA and the general instructions provide direction on the appropriate forms to complete for the chosen grant.247 The forms that need to be completed are specific to each type of grant and will be communicated in the FOA.248 They also contain links for unstructured responses to fields such as a cover page, a biographical sketch, current and pending support, and a project narrative.249 The Center for Scientific Review (“CSR”) reviews the application for completeness before assigning the application to a specific NIH Institute or Center David Bonazzi & Salzman Art, NIH Reveals Its Formula for Tracking Foreign Influences, NEWSFLASH (Sept. 27, 2019), https://newsflash.one/2019/09/27/nih-reveals-its-formula-for-trackingforeign-influences/. 240 NAT’L INST. OF HEALTH, SF424 (“R&R”) APPLICATION PACKAGES: GEN. INSTRUCTIONS FOR NIH AND OTHER PHS AGENCIES (2018) (https://grants.nih.gov/grants/how-to-apply-application-guide/formse/general-forms-e.pdf). 241 Understand Funding Opportunities, NAT’L INST. OF HEALTH, https://grants.nih.gov/grants/how-toapply-application-guide/prepare-to-apply-and-register/understand-funding-opportunities.htm. 242 Plan Your Application, NAT’L INST. OF HEALTH, https://grants.nih.gov/grants/ planning_application.htm. 243 Understanding Funding Opportunities, NAT’L INST. OF HEALTH, https://grants.nih.gov/grants/howto-apply-application-guide/prepare-to-apply-and-register/understand-funding-opportunities.htm. 244 Types of Grant Programs, NAT’L INST. OF HEALTH, https://grants.nih.gov/grants/funding/ funding_program.htm. 245 Grants Process Overview, NAT’L INST. OF HEALTH, https://grants.nih.gov/grants/grants-processoverview.pdf. 246 Plan Your Application, NAT’L INST. OF HEALTH, https://grants.nih.gov/grants/ planning_application.htm. 247 How to Apply – Application Guide, NAT’L INST. OF HEALTH, https://grants.nih.gov/grants/how-toapply-application-guide.html. 248 Id. 249 Id. 239 51 for possible funding.250 The CSR also assigns the application to a review committee with the expertise to evaluate the scientific merit of the application.251 The grant application then undergoes two levels of peer review.252 The first level of review is conducted primarily by “non-federal scientists who have expertise in relevant scientific disciplines and current research areas.”253 The peer review process is intended “to ensure that applications for funding submitted to NIH are evaluated on the basis of a process that is fair equitable, timely, and conducted in a manner that strives to eliminate bias.”254 The second level of review is performed by Institute and Center Advisory Councils or Boards composed of “both scientific and public representatives chosen for their expertise, interest, or activity in matters related to health and disease.”255 Only applications recommended for approval at both stages of review may be considered for funding.256 Following the funding recommendation, NIH decides whether to grant an award and what level of funding to provide.257 The Notice of Award is the legal document used to notify the applicant that an award has been made.258 The notice includes all applicable terms of the grant and “contact information for the assigned program officer and grants management specialist.”259 2. Disclosure of Foreign Support and Affiliations Current law does not require NIH to “proactively ensure that investigators disclose all sources of research support, financial interests, and affiliations.”260 The compliance relationship between NIH and its grant recipients is predicated on trust—institutions are therefore responsible for soliciting and reviewing disclosures of significant financial interests from each investigator who is planning to participate in or is participating in NIH-funded research.261 Institutions are also responsible for reporting to NIH any significant financial interests that may constitute a financial conflict of interest (“FCOI”).262 An FCOI exists when an institution reasonably determines that an “investigator’s significant financial Receipt and Referral, NAT’L INST. OF HEALTH, https://grants.nih.gov/grants/receipt-referral.htm. Id. 252 Peer Review, NAT’L INST. OF HEALTH, https://grants.nih.gov/grants/peer-review.htm. 253 Id. 254 NAT’L INST. OF HEALTH, NIH GRANTS POLICY STATEMENT I-67–68 (Oct. 2018), https://grants.nih.gov/grants/policy/nihgps/nihgps.pdf. 255 Peer Review, NAT’L INST. OF HEALTH, https://grants.nih.gov/grants/peer-review.htm. 256 Id. 257 Id. 258 Id. 259 Pre-Award and Award Process, NAT’L INST. OF HEALTH, https://grants.nih.gov/grants/pre-awardprocess.htm. 260 HHS IG REPORT: REPORTING at 4 (Sept. 2019). 261 See 42 C.F.R. § 50.604(d). 262 See 42 C.F.R. § 50.605(b). 250 251 52 interest could directly and signi?cantly affect the design, conduct, or reporting? of the research.263 Investigators are required to disclose any signi?cant financial interests to the of?cial at their institution who is responsible for such disclosures.264 ?The institution then determines Whether the investigator?s con?ict is related to his or her institutional responsibilities and if so, Whether the signi?cant financial interest constitutes an Because an investigator?s research support, ?nancial interests, and af?liations may constitute a signi?cant ?nancial interest, they must be disclosed to both the institution and NIH.266 The HHS IG produced the following graphic illustrating the responsibilities of the investigators, the institutions, and NIH for identifying and reporting NIH Provides FCOI oversight and management Institutions I Institutions to NIH to Investigators Comply with Federal a: a a: Create and enforce regulations a a policy Evaluate disclosures and 0 Make investigators determine which are aware of FCOI policy to be reported to NIH Investigators .- .- .- .- Comply with institutional and my Disclose sources of research support, financial interests, and af?liations 3. Division of Grants Compliance and Oversight Division of Grants Compliance and Oversight serves as the ?focal point to advance external compliance With policy and legislative mandates 266 See 42 C.F.R. 264 See 42 C.F.R. 266 HHS IG REPORT: REPORTING at 5 (Sept. 2019and enhance compliance oversight by recipient institutions.”268 By accepting NIHfunding, recipients indicate acceptance of the associated terms and conditions, including compliance with applicable federal statutes, regulations, and policies.269 Though NIH expects grant recipients to properly administer sponsored activities and comply with relevant regulations and policies, DCGO conducts two types of routine site visits at recipient institutions to advance compliance and provide oversight:  Proactive Compliance Site Visits. These site visits assess institutional understanding of federal policies and regulations, seek to minimize or eliminate areas of non-compliance, and nurture partnerships between NIH and its recipient institutions. These visits are not designed to address specific problems and are not considered audits or investigations.270  Targeted Site Review. These site reviews are an NIH initiative focusing specifically on compliance with FCOI regulations.271 The reviews are meant to determine if “(1) recipient institutions are fully and correctly implementing the FCOI regulation, and (2) reporting requirements are being met.”272 4. The HHS IG Identified Weaknesses in Tracking and Reporting Foreign Financial Conflicts of Interest In September 2019, the HHS IG released three reports focused on identifying and reporting financial conflicts of interest and foreign talent recruitment plans— including the TTP. The HHS IG identified vulnerabilities in all three reports. First, the HHS IG evaluated NIH’s reliance on the peer review process for evaluating grant applications.273 The HHS IG noted that because peer reviewers conduct “the initial review of research grants submitted to NIH, they have a unique opportunity to access confidential information in grant applications.”274 While NIH has taken some steps to address the threat from potential conflicts of interest with peer reviewers, significant problems remain with NIH’s overall visibility into potential conflicts. For example, HHS IG found that “NIH focuses on preventing undue influence generally, but does not specifically focus on undue foreign influence” like foreign talent recruitment plans.275 Grants Compliance and Oversight, NAT’L INST. OF HEALTH, https://grants.nih.gov/policy/ compliance.htm#activities. 269 Id. 270 Id. 271 See 42 C.F.R. pt. 50, Subpart F. 272 Grants Compliance and Oversight, NAT’L INST. OF HEALTH, https://grants.nih.gov/policy/ compliance.htm#activities. 273 See HHS IG REPORT: PEER REVIEW (Sept. 2019). 274 Id. at 2. 275 Id. at 11. 268 54 NIH also has identified 250 scientists as “individuals of possible concern,” of which roughly 30 percent served as a peer reviewer over the past two years.276 Additionally, NIH’s guidelines for the vetting of peer reviewers “do not advise vetting nominees against any type of law enforcement database. Instead, [the guidelines] suggest generally reviewing the first page of results from a Google search.”277 As a result, NIH “has efforts underway to address” identifying potential sources of undue foreign influence with its peer reviewers.278 In an attempt to raise awareness of the importance of confidentiality in the peer review process, NIH has launched ongoing communications with its staff, the research community, and grantee institutions—some of which have proactively raised concerns with NIH. Specifically, NIH issued a notice titled “Reminders of NIH Policies on Other Support and on Policies Related to Financial Conflicts of Interest and Foreign Components” on July 10, 2019.279 This notice served as a reminder to the research “community about the need to report foreign activities through documentation of other support, foreign components, and financial conflict of interest to prevent scientific, budgetary, or commitment overlap.”280 NIH issued this notice more than three years after the FBI notified NIH of an extensive peer review violation in June 2016.281 NIH also “convened a working group of the Advisory Committee to the NIH Director to explore additional steps to protect the integrity of [NIH]’s peer review.”282 In addition to the working group, on June 4, 2019, HHS’s Office of National Security issued a policy proposal to create an Insider Threat program.283 On October 2, 2019, HHS started the first program of this kind to focus on identifying possible risk, mitigation measures, and technical outreach assistance to U.S. institutions receiving NIH funding.284 According to NIH, it will be difficult to find a viable solution to address concerns about talent recruitment plan members and the peer review process.285 Id. at 12. Id. 278 Id. at 12. 279 Reminders of NIH Policies on Other Support and on Policies related to Financial Conflicts of Interest and Foreign Components, NAT’L INST. OF HEALTH (July 10, 2019), https://grants.nih.gov/ grants/guide/notice-files/NOT-OD-19-114.html. 280 Id. 281 Briefing with Nat’l Inst. of Health (Oct. 17, 2019). See also, Andrea Widener, Amid Tensions with China, US Emphasizes Rules Around Research Security, C&EN (Sept. 25, 2019), https://cen.acs.org/ policy/research-funding/Amid-tensions-China-US-emphasizes/97/i38. (“The NIH first learned about concerns regarding China in June 2016, when the FBI approached the agency about ‘significant breaches in peer review confidentiality,’ says Michael Lauer, deputy director for extramural research at the NIH.”). 282 HHS IG REPORT: PEER REVIEW at 2 (Sept. 2019). 283 NIH CI/Insider Threat Proposal – Decision, NAT’L INST. OF HEALTH (June 4, 2019) (document on file with the Subcommittee). 284 Id. 285 Briefing with Nat’l Inst. of Health (Oct. 17, 2019). 276 277 55 NIH officials said it would take “at least 6 months to a year” to come up with a “risk-based approach for identifying peer reviewer nominees who warrant extra security.”286 That effort would also require an additional 100 fulltime employees.287 Second, the HHS IG completed a broader review of NIH’s efforts to uncover FCOIs with researchers and principal investigators.288 Since a 2008 HHS IG report that identified “serious gaps in NIH’s oversight of extramural investigators,”289 the HHS IG found that NIH “has made progress in overseeing FCOIS that extramural grantee institutions report for their research investigators.”290 Nevertheless, the NIH could do more to protect taxpayer dollars and national security.291 The HHS IG noted that NIH does not perform any quality assurance to “ensure the adequacy or consistency of program officials’ reviews” of potential FCOIs.292 Most alarming, however, is that NIH could not provide “the number of FCOIs reported in FY 2018 that involved a significant financial interest in a foreign entity (e.g., the investigator with the FCOI was conducting research in the United States but had a significant financial interest in a foreign entity).”293 This is because NIH does not have a mechanism within the FCOI reporting software to identify foreign entities.294 Third, the HHS IG evaluated the policies, procedures, and controls NIH has in place to help institutions report all sources of outside research support, financial interests, and affiliations.295 The HHS IG noted that, as shown below, “[t]he number of reviews conducted under the FCOI compliance program significantly decreased from 28 reviews in FY 2013 to only 3 reviews in FY 2018.”296 NIH officials told the Subcommittee that the decrease in compliance reviews was due to staffing shortages.297 David Bonazzi & Salzman Art, NIH Reveals Its Formula for Tracking Foreign Influences, NEWSFLASH (Sept. 27, 2019), https://newsflash.one/2019/09/27/nih-reveals-its-formula-for-trackingforeign-influences/. 287 Id. 288 OFFICE OF THE INSPECTOR GEN., DEP’T OF HEALTH AND HUMAN SERV., OEI-03-19-00150, NIH HAS MADE STRIDES IN REVIEWING FIN. CONFLICTS OF INTEREST IN EXTRAMURAL RES., BUT COULD DO MORE (Sept. 2019) [hereinafter HHS IG REPORT: FCOIS (Sept. 2019)]. 289 Id. at 2. 290 Id. at Report in Brief. 291 Id. 292 Id. at 13. 293 Id. at 15. 294 Id. 295 HHS IG REPORT: REPORTING (Sept. 2019). 296 Id. at 7. 297 Briefing with Nat’l Inst. of Health (Oct. 3, 2019). 286 56 30 28 27 25 Number of Revuews Conducted 298 Additionally, the report found ?[n]ot all NIH-funded investigators may be aware that they are required to disclose significant financial interests with regard to research support, financial interests, and affiliations.?299 Moreover, the 1,875 institutions that received NIH funding in FY 2018 and were required to have FCOI policies, 1,013 did not have FCOI policies posted on their websites.?300 5. Weaknesses in Internal Controls for Monitoring and Permitting Foreign Access to Sensitive Data The HHS IG also found weaknesses in ability to properly control foreign investigator access to sensitive information. In February 2019, the HHS IG released a report assessing whether NIH had adequate internal controls in place when permitting and monitoring foreign principal investigators access to NIH genomic data.301 The IG found that did not consider the risk presented by foreign principal investigators when permitting access to United States genomic data.?302 NIH expects foreign principal investigators to ?safeguard NIH data and use sound security practices in accordance with signed user agreements,? but the report notes that does not verify that foreign [principal investigators] 293 HHS IG REPORT: REPORTING at 7 (Sept. 2019). 299 Id. at 8. 30? Id. 301 OFFICE OF THE INSPECTOR GEN., DEPT OF HEALTH AND HUMAN SERV.. A-18-18-09350, OPPORTUNITIES EXIST FOR THE INS. OF HEALTH TO STRENGTHEN CONTROLS IN PLACE TO PERMIT AND MONITOR ACCESS TO ITS SENSITIVE DATA (Feb. 2019). 302 Id. at Report in Brief. 57 have completed security training, even though NIH’s Security Best Practices for Controlled-Access Data emphasize security training as a key control.”303 Additionally, the report found that NIH had not assessed the risks to national security when permitting access to foreign principal investigators, and did not ensure that NIH Policy reflected the current emerging threat to national security.304 For example, NIH permitted access to genomic data to for-profit entities, including WuXi Nextcode Genomics and Shenzhen BGI Technology Company, which the FBI said have ties to the Chinese government.305 In another example, “NIH did not consider any restrictions on which foreign principal investigators were permitted access to research data based on national security risks, such as weaponizing for biological warfare.”306 Finally, the HHS IG noted that “NIH officials did not consider risks related to the United States’ national security by foreign [principal investigators] connected to state-sponsored activities, the presence of United States and international sanctions, or whether the [principal investigator] is in a foreign country that is on a United States Government watch list.”307 6. TTP Members Misappropriated NIH Research While NIH continues to investigate cases of undisclosed foreign support, it has already identified instances in which TTP members misappropriated NIHfunded research. As of September 13, 2019, NIH had contacted 70 institutions regarding more than 130 individuals who received or are receiving NIH funding.308 NIH sent confidential communications to institutions that received NIH funding: “It has come to our attention that there are issues of potential noncompliance with NIH policies regarding disclosures of outside research support and relevant affiliations or foreign components.”309 NIH then provided the NIH researcher or investigator’s name and specific details about that individual’s alleged participation in the TTP or other source of foreign funding.310 NIH then instructed the institution to within 30 days to “review these issues” and “confirm that this investigator and the [U.S. institution that received NIH funding] complied with [NIH’s] policies.”311 Id. Id. at 4. 305 Id. 306 Id. at 5. 307 Id. at 4. 308 Email from U.S. Health and Human Serv. to the Subcommittee (Sept. 13, 2019) (on file with Subcommittee); Nat’l Inst. of Health briefing with the Subcommittee (Oct. 3, 2019). 309 Documents on file with the Subcommittee (PorCTP-0000144). 310 Id. 311 Id. 303 304 58 As of this report, NIH has only received complete responses concerning 51 individuals believed to have undisclosed foreign affiliations.312 NIH was able to determine that taking administrative action, such as holding awards, changing the principal investigator, or other grants actions, was necessary for 66 individuals.313 NIH indicated that this statistic does not include those grant recipients who were either terminated or resigned.314 Additionally, as of late 2018, NIH told the Subcommittee that it identified roughly 45 individuals who could no longer work on NIH grants due to their participation in foreign talent recruitment plans.315 The Subcommittee worked with NIH to produce the below case examples of NIH research grants and connections to the TTP.316 These examples detail specific instances of misappropriation, or in some instances theft, of U.S.-funded intellectual property. Individual Z In early 2019, NIH contacted a medical school concerning three principal investigators with potential affiliations with the TTP, Chinese universities, and other Chinese government funded grant programs.317 The institution conducted an internal review and initially indicated that it did not identify any financial conflicts of interests.318 The internal review involved phone interviews and written questions and answers with the principal investigators at issue.319 NIH, however, submitted additional questions concerning one of the principal investigators who told the institution that he or she never worked at Peking University and did not receive any funds from any talent recruitment plans.320 NIH sent the institution a screenshot of Peking University’s website that identified the principal investigator as a “Professor” since 2012.321 NIH also sent the institution information indicating that the principal investigator was likely a TTP member.322 The institution later provided NIH with an affidavit from the principal investigator stating he or she never held a position at Peking. The principal investigator also told the institution that Peking University’s web site must be an oversight as he or Email from U.S. Health and Human Serv. to the Subcommittee (Oct. 19, 2018) (on file with Subcommittee). 313 Id. 314 Id. 315 Id. 316 NIH primarily wrote the case examples due to law enforcement equities. The Subcommittee edited for clarity and uniformity. 317 PorCTP-0000506. 318 PorCTP-0000504. 319 PorCTP-0000501. 320 PorCTP-0000504. 321 PorCTP-0000503. 322 PorCTP-0000503. 312 59 she never actually accepted the position.323 NIH then informed the institution that the principal investigator likely had a potential conflict as he or she maintained an active, unreported Natural Science Foundation of China (“NSFC”) grant.324 The institution’s representative wrote back to NIH: “Obviously concerning to us.”325 Despite these violations of NIH grant policy, the institution allowed the individual to continue as a principal investigator on the NIH grant and NIH has yet to take any further action. 326 Individual X In early 2019, NIH contacted a medical research institution concerning a principal investigator, Individual X.327 That individual also was publicly listed as serving in several positions at Huazhong University of Science and Technology.328 Additionally, NIH alleged that the principal investigator also worked on two active NSFC grants that Individual X did not disclose.329 that it Subsequently, the institution conducted an internal investigation and stated may have failed to completely disclose [Individual X’s] affiliation at Huazhong University of Science and Technology, funding from the National Natural Science Foundation of China, and the Chinese Thousand Talents Program, and foreign components of the awarded projects in applications and progress reports which designate [Individual X] as the [principal investigator] or Key Personnel.330 After the institution’s inquiry into the individual’s foreign associations, Huazhong University deleted the individual’s online resume.331 The institution, however, asserted that the work did not overlap with past or existing NIH grants.332 Despite these violations of NIH grant policy, the institution allowed the individual to continue as a principal investigator on the NIH grant and NIH has yet to take any further action.333 Individual Y PorCTP-0000501. PorCTP-0000500. 325 PorCTP-0000499. 326 Id. 327 PorCTP-0000145. 328 Id. 329 Id. 330 PorCTP-0000155. 331 Documents on file with the Subcommittee. 332 PorCTP-0000172. 333 Id. 323 324 60 In early 2019, NIH contacted a hospital institution regarding alleged foreign support for an NIH-sponsored medical researcher, Individual Y.334 Individual Y worked at the institutions’ Biomedical Informatics and Division of Biostatistics.335 The institution conducted an internal investigation and located a TTP contract signed by Individual Y.336 The TTP contract required Individual Y to “recruit three undergraduate students each year … focus on recruiting 1-2 post-doctoral students each year … [and] publish 12 papers in mainstream international journals.”337 The institution’s internal investigation also discovered that in addition to being a member of the TTP on contract through 2020, Individual Y had faculty appointments at two universities in China: Jianghun and Wuhan.338 Individual Y also received a 2018 award from the National Natural Science Foundation of China.339 Individual Y also proposed using a U.S. data set for the NSFC-funded project.340 The institution did not disclose any of the sources of foreign support to NIH.341 The institution subsequently counseled Individual Y on the “importance of full and accurate disclosure.”342 NIH also identified potential conflicts of commitment. For example, NIH asked if the institution was aware that Individual Y “was spending 6 months a year in China working on this project?”343 The institution reported that it was not aware.344 As a corrective measure, the institution refunded to NIH Individual Y’s salary draws for time periods where there was “most likely potential for effort overlap.”345 NIH continues to investigate the alleged violations.346 Individual 1347 Individual 1 was a professor and researcher working in cellular and molecular physiology. Individual 1 is also a principal investigator who worked on an NIH Exploratory/Developmental Research Grant Award. On April 11, 2014, PorCTP-0000245. Id. 336 Id. 337 PorCTP-0000247–248. 338 PorCTP-0000236. 339 Id. 340 See PorCTP-0000238 (Upon further investigation, the Institution was unable to locate a “Data Use Certification” for use of the U.S. data relating to an NSFC funded project. Ultimately, the Institution was unable to definitively determine if Individual Y used the U.S. data in an unauthorized manner). 341 PorCTP-0000237. 342 Id. (emphasis in original). 343 PorCTP-0000231. 344 Id. 345 PorCTP-0000240. 346 Id. 347 Health and Human Serv. production (Oct. 2, 2019) (documents on file with the Subcommittee). 334 335 61 Individual 1 requested and received a one-year unpaid leave of absence starting in July 2014 to work at Tsinghua University. Individual 1 joined Tsinghua Medical School as a recipient of a TTP award in July 2014. While working at Tsinghua Medical School, Individual 1 worked on developing special antibodies. Tsinghua provided Individual 1 with other special opportunities, such as the ability to work with a distinguished Nobel Prize winner, the use of first-class technology and facilities, and access to the institution’s renowned structural biology center. Individual 1 even received an award from the Chinese government that fully supported his or her research and salary at Tsinghua University from July 2014 to June 2017. On April 6, 2015 Individual 1 requested and received extended leave permitting the individual to maintain a 50 percent appointment at the institution while working at Tsinghua University. The institution also granted permission for Individual 1 to continue to conduct research at the institution. While Individual 1 was supposed to conduct all the work at the U.S. institution’s facilities, Individual 1 directed some of the work to be done in China at Tsinghua University.348 Individual 1 did not submit a financial disclosure form to the U.S. institution in 2014 as required by the U.S. institution. The individual also did not disclose to the U.S. institution the salaries received from Tsinghua University in subsequent disclosure forms.349 “The institution’s internal investigation determined that it should have reported to NIH the possibility of collaboration with investigators at a foreign site that could result in co-authorship and should have provided a Foreign Justification attachment to Individual 1’s award application.”350 In addition, the institution failed to include Individual 1’s Tsinghua University’s position on supplementary reports and failed to report the continuing arrangement with Tsinghua. In response to repeated violations of NIH policies and TTP membership, the institution’s only actions was to develop a remediation plan that required Individual 1 to file annual conflict of interest disclosures.351 Individual 3352 A medical school reported that a pharmacology and dermatology professor, Individual 3, potentially failed to comply with NIH policies requiring disclosure of outside research support and foreign affiliations or research components. Individual 3 has an NIH grant from the National Cancer Institute. On several publications, Individual 3 listed foreign support, in addition to his or her NIH PorCTP-0001532. PorCTP-0001533. 350 Id. 351 PorCTP-0000240. 352 Id. 348 349 62 support, and held affiliations with at least five Chinese institutions. None of the foreign support or foreign affiliations, however, were disclosed on Individual 3’s NIH grant documents. When questioned by the institution, Individual 3 said his or her publications included reference to support from the NSFC because he or she considered it an honor. Individual 3, however, also claimed that he or she received no financial support from the NSFC award for his or her NIH-funded, or any other, research. He or she also claimed that the aim of the project was different than the subject of his or her NIH award. During its internal investigation, the institution found online reports suggesting Individual 3 was a Dean at Jiangsu University, participated in the Jinshan Scholars Program, and in the TTP. Individual 3 said he or she rejected the position and never participated in the alleged programs. Individual 3 also worked with three post-doctoral students on an NIH grant who held concurrent positions at Chinese institutions. Though these post-doctoral researchers did not list their foreign government support in co-authoring publications with Individual 3, these post-doctoral researchers’ co-authors at their affiliated Chinese institutions listed Chinese government support. As part of its response to this matter, the institution convened a Committee on Research Security and Conflicts of Commitment to make recommendations about how to secure research on its campuses and ensure that researchers’ commitments supporting their research are not compromised by external relationships. The institution told NIH that it will also review all of Individual 3’s grant applications for the next two years. Individual 4353 NIH contacted a medical research institution after identifying issues of potential willful non-disclosure of outside research support and relevant affiliations or foreign components. NIH found that Individual 4, who serves as the Principal Investigator on an NIH grant from the National Cancer Institute, may have willfully failed to disclose the following affiliations: 1. 2. 3. 4. 5. A distinguished professorship Zhejiang University; Selection for the Chinese Talents Program; At least two NSFC grants; One National Key R&D Program of China grant; One Shanghai Education Development Foundation “Shuguang Program” grant; 6. One Chinese Minister of Science and Technology grant; and 7. Two Department of Education of Jiangxi grants. 353 Health and Human Serv. production (Oct. 11, 2019) (documents on file with the Subcommittee). 63 The TTP contract required Individual 4 to work “at least 9 months” in China from January 2014 to December 2018 while the individual was a faculty member at the institution. Further, the Chinese Talents Program contract required awards, patents, and projects during the contract period would be under the Chinese Institutions name. The contract also required the individual to resign from the institution by January 2019 and work full-time for the Chinese institution. As part of its response to this matter, the institution prepared several communications to raise awareness across the university research community on the importance of fully reporting foreign components and relationship with foreign collaborators as required by NIH policy and other sponsors. The institution also revised help guides and business processes and outside interest disclosure forms to better identify the need for faculty to disclose outside relationships with foreign entities. The institution, after conducting a preliminary investigation, told NIH that the only failure to disclose concerned was the affiliation with Zhejiang University. The other awards did not overlap with the NIH award. The institution did express concern that the Thousand Talents contract required Individual 4 to work “at least 9 months” in China. NIH continues to investigate the matter. Individual 5354 NIH contacted Individual 5’s institution after identifying issues of potential noncompliance regarding disclosure of outside research support and relevant affiliations or foreign support. Individual 5 serves as a principal investigator on a current NIH award from the National Institute on Mental Health. While working on the NIH award, Individual 5 also has a position at Guangzhou Medical University in China and holds at least two NSFC grants. Several of Individual 5’s NIH-supported publications were also supported by foreign awards, suggesting foreign collaborations. The grants and affiliations were not disclosed in applications to NIH. The institution, however, stated that research activities conducted in China as part of the consulting agreement did not overlap with the NIH application. 354 Health and Human Serv. production (Oct. 2, 2019) (documents on file with the Subcommittee). 64 C. THE DEPARTMENT OF ENERGY The Department of Energy (“Energy”) is a cabinet-level agency whose mission is “to ensure America’s security and prosperity by addressing its energy, environmental and nuclear challenges through transformative science and technology solutions.”355 Energy is also tasked with “reducing the threat of nuclear proliferation, overseeing energy supply, carrying out the environmental clean-up from the Cold War nuclear mission,” and overseeing the 17 National Laboratories (“National Labs”).356 Energy’s Office of Science is the country’s largest federal sponsor of basic research in the physical sciences.357 Energy’s prominent role in advanced research and development makes it particularly attractive to China’s talent recruitment plan efforts. According to the FBI, Energy is the U.S. government agency subject to the “most penetration attempts” for technology transfers because of its “prominent role in advanced R&D, particularly in energy and nuclear weapons development.”358 It comes as no surprise then that Energy recently identified TTP members who worked on sensitive research at National Labs.359 Examples include a post-doctoral researcher who stole 30,000 electronic files from a National Lab and a National Lab contract employee who filed for a U.S. patent overlapping with Energy-funded research.360 In the most egregious cases, National Lab personnel recruited through foreign talent recruitment plans later worked on foreign military programs.361 Energy has been slow to address vulnerabilities surrounding the openness of the U.S. scientific community and its scientific collaboration with countries of risk. For more than 30 years, federal regulations have prohibited U.S. government employees from receiving compensation from foreign entities that conflict with their official duties; however, Energy did not issue guidance to its employees or contractors on participation in foreign talent recruitment plans until 2019.362 About Us, U.S. DEP’T OF ENERGY (2019), https://www.energy.gov/about-us. Id. 357 Office of Science Funding, U.S. Dep’t of Energy (2019), https://www.energy.gov/science/officescience-funding. 358 Dep’t of Energy production (June 26, 2019). 359 See infra § IV(C)(5). 360 Id. 361 Dep’t of Energy production (June 26, 2019). 362 Executive Order 12674 ordered individual agencies to consolidate conduct regulations, setting out comprehensive basic principles of ethical conduct for executive branch employees. See Exec. Order No. 12,674, 54 Fed.Reg. 15,159 (Apr. 14, 1989) (as modified by Exec. Order No. 12731, 55 Fed. Reg. 42547 (Oct. 17, 1990)). Accordingly, the Office of Gov’t Ethics published the Standards of Ethical Conduct for Employees of the Executive Branch in 1992, codified as amended at 5 C.F.R. pt. 2635. See § 2635.802 (specifically noting that a federal government “employee shall not engage in outside employment or any other outside activity that conflicts with his official duties.”); U.S. DEP’T OF 355 356 65 1. National Laboratories Energy’s National Labs began as an outgrowth of scientific investment by the U.S. government during World War II and now serve as leading institutions of science, with an emphasis on translating basic science research into innovation.363 The National Labs provide access to large-scale, costly research and scientific facilities that universities typically cannot afford.364 The 17 National Labs use cutting-edge research to address complex and critical scientific challenges.365 Sixteen of the 17 National Labs are Government Owned, Contractor Operated (“GOCO”) Federally Funded Research and Development Centers. The federal government owns GOCO labs, but third-party contractors such as a universities, non-profits, or for-profit firms operate them.366 These facilities are designed to address long-term research that cannot be completed effectively at other government research facilities or in the private sector.367 The other category of National Lab is Government Owned, Government Operated (“GOGO”).368 A GOGO lab is operated by a federal agency where all management and staff are considered government employees and are subject to government employment regulations.369 Each National Lab is overseen by one of six Energy’s program areas and supports at least one of Energy’s missions, typically the mission of its sponsoring program area.370 Many National Labs, however, support multiple missions and receive funding from multiple program areas.371 Three National Labs fall under the NNSA: Lawrence Livermore National Laboratory, Los Alamos National Laboratory, and Sandia National Laboratories.372 The NNSA is responsible for “enhancing national security through the military application of nuclear science.”373 ENERGY, DOE O 486.1, FOREIGN GOV’T TALENT RECRUITMENT PROGRAMS (June. 7, 2019), https://www.directives.doe.gov/directives-documents/400-series/0486-1-border/@@images/file. 363 National Laboratories, U.S. DEP’T OF ENERGY (2019), https://www.energy.gov/nationallaboratories. 364 Office of Science User Facilities, U.S. Dep’t of Energy (2019), https://www.energy.gov/science/ science-innovation/office-science-user-facilities. 365 Id. 366 Id. at 19. 367 BELFER REPORT at 20. 368 Id. at 20. 369 Id. at 18. 370 Id. at 25. 371 Id. at 24. 372 National Laboratories, U.S. DEP’T OF ENERGY, (2019), https://www.energy.gov/nationallaboratories. 373 About NNSA, NAT’L NUCLEAR SECURITY ADMIN. (2019), https://www.energy.gov/nnsa/about-nnsa. 66 2. Foreign Scientists and the Department of Energy International competition to develop the most advanced scientific facilities is fierce and is an important component of economic competitiveness.374 Foreign nationals play a significant research role at the National Labs. In 2018, for example, there were more than 35,000 foreign nationals conducting research in National Labs—about 10,000 from China.375 According to one public report, while the number of Chinese scientists who previously conducted research at one of Energy’s National Labs and then returned to China is unknown, “so many scientists from Los Alamos have returned to Chinese universities and research institutes that people have dubbed them the ‘Los Alamos club.’”376 Energy’s Office of Science has focused on the construction and operation of large federally sponsored scientific user facilities. These user facilities are accessible to foreign researchers.377 These facilities are federally sponsored research facilities available to scientists and provide access to utilize the most advanced tools of science, including accelerators, colliders, supercomputers, and light- and neutron-sources.378 The Office of Science currently operates 26 user facilities at the National Labs “as shared resources for the scientific community, with access determined on a competitive basis using peer review.”379 Open user facilities are federally sponsored research centers utilized by external users to advance scientific or technical knowledge.380 Researchers, both foreign and domestic, from academia, industry, and other government institutions can conduct research at these facilities, but are required to publish their results.381 Proprietary users can access user facilities, but are subject to full cost recovery.382 Id. Dep’t of Energy production (June 26, 2019). Will Thomas, DOE Barring Researchers From Rival Nations’ Talent Programs, AMERICAN INS. OF PHYSICS (June 13, 2019), https://www.aip.org/ fyi/2019/doe-barring-researchers-rival-nations%E2%80%99-talent-programs. 376 Stephen Chen, America’s Hidden Role in Chinese Weapons Research, SOUTH CHINA MORNING POST (Mar. 29, 2017), https://www.scmp.com/news/china/diplomacy-defence/article/2082738/ americas-hidden-role-chinese-weapons-research. 377 Office of Science User Facilities, U.S. DEP’T OF ENERGY (2019), https://www.energy.gov/science/ science-innovation/office-science-user-facilities. 378 Id. 379 Id. 380 Id. at 2. 381 Proposal Guidelines, U.S. DEP’T OF ENERGY, CENTER FOR INTEGRATED NANOTECHNOLOGIES (2019), https://cint.lanl.gov/becoming-user/proposal-guidelines.php. 382 Id. 374 375 67 3. Department of Energy Financial Assistance Programs Energy is the largest federal sponsor of basic research in the physical sciences.383 Energy’s Office of Science FY 2019 budget of “$6.6B supports a portfolio of basic research, which includes grants and contracts supporting over 25,000 researchers, including students, located at over 300 institutions and all 17 DOE national laboratories.”384 The Office of Science solicits grant funding proposals from “universities, non-profit and for-profit research organizations, National Labs, small businesses, and other federal research organizations.”385 It provides grants through two types of funding announcements: (1) Funding Opportunity Announcements (“FOAs”) which are available to universities, non-profit and for-profit research organizations, National Labs, and small businesses; and (2) Energy’s National Laboratory Announcements which are open only to National Labs.386 Funding Opportunity Announcements. All grant proposals must be submitted in response to an FOA.387 The FOA contains the required application forms and instructions for the grant application.388 Each FOA issued by the Office of Science provides: a technical description of the type of work to be funded; information about the type, size, number, and duration of awards expected; eligibility criteria; instructions for any submission of letters of intent, preapplications or preproposals, and applications or proposals; due dates and times; review and selection information, including merit review criteria; and agency points of contact.389 Energy’s National Laboratory Announcements. Energy’s National Laboratory Announcements provide National Labs with multi-year funding for specific research projects.390 These announcements function like the FOAs, but are exclusive to National Labs. Responses to an announcement include a proposal that Energy staff evaluate to ensure alignment with Energy’s research priorities.391 Energy awards Office of Science Funding, U.S. DEP’T OF ENERGY (2019), https://www.energy.gov/science/officescience-funding. 384 Id. 385 Funding Opportunity, U.S. DEP’T OF ENERGY, OFFICE OF SCI. FUNDING (2018), https://www.energy.gov/science/office-science-funding/office-science-funding-opportunities. 386 Id. 387 Funding Opportunity Announcements (FOAs), U.S. DEP’T OF ENERGY, OFFICE OF SCI. (2019), https://science.osti.gov/grants/FOAs. 388 Grants Process, U.S. DEP’T OF ENERGY, OFFICE OF SCI. (2019), https://science.osti.gov/ grants/Grants-Process. 389 Funding Opportunity Announcements (FOAs), U.S. DEP’T OF ENERGY, OFFICE OF SCI. (2019), https://science.osti.gov/grants/FOAs. 390 National Laboratory Research, U.S. DEP’T OF ENERGY, OFFICE OF ENERGY EFFICIENCY AND RENEWABLE ENERGY, (2019), https://www.energy.gov/eere/solar/national-laboratory-research.h. 391 Id. 383 68 this funding based on competitive merit review and other criteria communicated in the announcement.392 Grant Process. After an applicant submits an application, the Office of Science conducts an initial review for completeness and responsiveness.393 A Program Manager then conducts the merit review.394 During the merit review, both federal and non-federal technical experts review the application and provide their assessment to the Program Manager.395 The Program Manager then decides whether to recommend funding the application.396 Grants and Contracts Support reviews the file after a series of senior officials approve the recommendation for funding.397 The Integrated Service Center then releases the Notice of Financial Assistance Award, the binding award document that contains the assistance agreement, terms and conditions of award, and other items.398 Disclosure of Foreign Support and Affiliations. During the application process, Energy requires the disclosure of current and pending support, and affiliations in the applicant’s biographical sketch.399 At the time of this report, Energy requires the disclosure of the name and institutional affiliation for any collaborators and co-editors up to 48 months preceding the submission of the application.400 The name and organizational affiliations of any graduate and postdoctoral advisors and advisees must also be disclosed.401 The awardee must also provide a list of all current and pending support for project directors and senior personnel, including sub awardees, for any ongoing projects or pending applications.402 A list of all sponsored activities and awards that required a “measurable commitment of effort, whether paid or unpaid” must also be provided.403 For every activity, the awardee must provide the following information: Funding Opportunity Announcements (FOAs), U.S. DEP’T OF ENERGY, OFFICE OF SCIENCE (2019), https://science.osti.gov/grants/FOAs. 393 Grants Process, U.S. DEP’T OF ENERGY, OFFICE OF SCI. (2019), https://science.osti.gov/grants/ Grants-Process. 394 Id. 395 Id. 396 Id. 397 Id. 398 Id. 399 U.S. DEP’T OF ENERGY, OFFICE OF SCIENCE, DE-FOA-0001968, FY 2019 CONTINUATION OF SOLICITATION FOR THE OFFICE OF SCI. FIN. ASSISTANCE PROGRAM, 61-62 (Dec. 31, 2018), https://science.osti.gov/-/media/grants/pdf/foas/2019/SC_FOA_0001968.pdf. 400 Id. 401 Id. at 62. 402 Id. 403 Id. 392 69        Name of the activity sponsor or the source of funding; Title of the award or activity; Total cost or value of the award or activity, including direct and indirect costs; Total amount of requested funding for pending proposals; Award period; Months of effort per year being dedicated to the award or activity; and Brief description of the research being performed, explicitly identifying any overlaps with the proposed research.404 4. Energy Did Not Implement Policies Prohibiting Involvement in Foreign Talent Recruitment Plans Until 2019 Energy recently ramped up efforts to address vulnerabilities in its collaborative research systems, particularly those risks associated with countries of risk and foreign talent recruitment plans. Energy formalized its efforts in December 2018 when it approved “immediate policy changes” to prevent foreign countries of concern from exploiting the openness of the U.S. scientific community to the detriment of U.S. national security.405 These new policies will eventually require all foreign nationals’ resumes be included in Foreign Visits and Assignments requests to all National Labs, sites, and plants as well as in the Foreign Access Central Tracking System database.406 Energy also began enhanced vetting of foreign nationals from sensitive countries seeking Foreign Visits and Assignments approval.407 Energy is implementing the Strategic International Science and Technology Engagement Policy (“SISTEP”) to mitigate risks in scientific collaboration with countries of risk. SISTEP limits scientific engagement on sensitive, but unclassified technologies with countries and individuals of concern.408 Under SISTEP, a newly established Federal Oversight Advisory Body reviews and maintains an S&T Risk Matrix.409 The S&T Risk Matrix details areas of international scientific collaboration that pose potential risks to U.S. national interests and recommends research areas and technologies whose access by countries of risk should be limited Id. Dep’t of Energy production (June 26, 2019). 406 Id. In 2013, Energy’s Inspector General identified concerns about FACTS. See ENERGY INSPECTOR GEN., INS-O-13-05, UNCLASSIFIED FOREIGN NAT’L VISITS AND ASSIGNMENTS AT OAK RIDGE NAT’L LABORATORY, 3 (Sept. 2013), https://www.energy.gov/sites/prod/files/2013/09/f2/INS-O-1305.pdf. 407 Id. 408 Dep’t of Energy production (June 26, 2019). 409 Id. 404 405 70 or restricted.410 Energy is still developing the S&T Risk Matrix in consultation with its National Labs and plans to implement that policy in early 2020.411 Months before finalizing SISTEP, however, policy drafts were leaked and at least two news reports detailed how Energy was looking to crack down on participation in foreign talent recruitment plans.412 On February 11, 2019, an Energy employee wrote in an email, “I’m sure everyone has seen Science Magazine published an article and referenced the International S&T memo, which has been leaked. … I think this places greater urgency in getting the S2 guidance memo signed and disseminated to the labs so we can address any confusion behind the intent of the memo.”413 Research institutions and an advocacy group contacted Energy to try to better understanding the situation after a news report based on the leak generated confusion “among leaders of the academic research enterprise.”414 In early 2019, Dan Brouillette, Energy’s Deputy Secretary, announced that Energy personnel, including contractors, fellows, interns, and grantees, would be subject to limitations and possible prohibitions on their participation in foreign talent recruitment plans.415 Energy issued its policy through directive DOE O 486.1 on June 10, 2019.416 The directive states that Energy will prohibit “DOE employees and DOE contractor employees, while employed by the DOE or performing work under a contract, from the unauthorized transfer of scientific and technical information to foreign government entities through their participation in foreign government talent recruitment programs” as designated by Energy’s Office of Intelligence and Counterintelligence.417 This directive requires Energy employees to disclose any participation in a foreign talent recruitment plan to their immediate supervisor and Designated Agency Ethics Official before entering into discussions with a foreign talent recruitment plan.418 If an Energy employee is already participating in the foreign talent recruitment plan, they must report in writing such participation to their immediate supervisor and to the Designated Agency Ethics Official within 30 days.419 Those who fail to report are “subject to discipline up to and including Id. Dep’t of Energy briefing with the Subcommittee (Oct. 10, 2019). 412 DOE 01 [169]; See also Jeffrey Mervis, New DOE Policies Would Block Many Foreign Research Collaborations, SCI. MAGAZINE (Feb. 2, 2019), https://www.sciencemag.org/news/2019/02/new-doepolicies-would-block-many-foreign-researchcollaborations. 413 Dep’t of Energy production (June 26, 2019). 414 Id. 415 Dep’t of Energy production (Sept. 25, 2019). 416 U.S. DEP’T OF ENERGY, DOE O 486.1, FOREIGN GOV’T TALENT RECRUITMENT PROGRAMS (June. 7, 2019), https://www.directives.doe.gov/directives-documents/400-series/0486-1-border/@@images/file. 417 Id. 418 Id. 419 Id. 410 411 71 removal from federal service.”420 If the Designated Agency Ethics Official determines that participation in a foreign talent recruitment plan conflicts with legal requirements or Energy’s policies and directives, the employee must cease participation in the foreign talent recruitment plan within 30 days.421 By September 24, 2019, all Energy contractors were required to revise employee contracts and implement these new requirements regarding foreign talent recruitment plans.422 The effectiveness of these policies, however, remains to be seen. As of October 10, 2019, after full implementation of the policy, less than 12 Energy employees or contractors self-reported participation in a talent recruitment plan as defined by Energy’s policies.423 Energy’s policy defines foreign talent recruitment plans as the following: In general, such programs include any foreign-state-sponsored attempt to acquire U.S. scientific-funded research or technology through foreign government-run or funded recruitment programs that target scientists, engineers, academics, researchers, and entrepreneurs of all nationalities working or educated in the United States. These recruitment programs are often part of broader whole-of-government strategies to reduce costs associated with basic research while focusing investment on military development or dominance in emerging technology sectors.424 Energy’s definition of a talent recruitment plan is helpful in that it is the first publicly available federal agency definition that will aid research institutions in better understanding the issues and threats. 5. TTP Members Likely Stole Energy Research and Intellectual Property Energy’s Office of Intelligence and Counterintelligence produced three case examples of National Labs and connections to foreign government talent recruitment plans.425 These case examples detail specific instances of TTP members likely stealing U.S.-funded intellectual property. The three case studies provided by Energy are detailed below. Separate from these limited case examples, Energy officials told the Subcommittee that it is “aware of hundreds of persons who Id. Id. 422 Dep’t of Energy briefing with the Subcommittee (Sept. 19, 2019). 423 Dep’t of Energy briefing with the Subcommittee (Oct. 10, 2019). 424 U.S. DEP’T OF ENERGY, DOE O 486.1, FOREIGN GOV’T TALENT RECRUITMENT PROGRAMS (June. 7, 2019), https://www.directives.doe.gov/directives-documents/400-series/0486-1-border/@@images/file. 425 Energy’s Office of Intelligence and Counterintelligence primarily wrote these three case examples or “vignettes” due to law enforcement equities and classification issues. The Subcommittee edited them for clarity and uniformity. 420 421 72 have participated in Talent Programs and have ties to the Department of Energy.”426 In more detailed public testimony before the U.S. Senate Judiciary Committee, a U.S. defense contractor explained that “Thousand Talents websites name more than 300 U.S. government researchers who have accepted the program’s money.”427 Most concerning, however, was Energy’s admission that as of December 2018 it was aware of at least nine former employees linked to TTP who also maintained U.S.-issued security clearances.428 Individual M A National Lab employee, Individual M, who accepted a joint appointment at a Chinese university as part of the TTP likely took National Lab intellectual property and patent information without consent of other laboratory scientists, in order to file a similar patent with Chinese collaborators. Individual M subsequently filed for a U.S. patent that overlapped with the design and claims of the patent held by the National Lab.429 Individual N Energy’s Office of Intelligence and Counterintelligence conducted an investigation of Individual N that applied to the TTP while working at a National Lab. The investigation determined that Individual N was a supervisor at the National Lab and oversaw other TTP applicants who worked on sensitive but unclassified national security topics.430 While employed at the National Lab, Individual N hosted dozens of other Chinese nationals, worked on numerous Energy funded projects, and visited multiple Energy labs. The individual hired at least four Chinese nationals and TTP participants, while at least eight others were known to be no-pay appointments paid for by other Chinese organizations. The investigation revealed a disproportionate collaboration with Chinese institutions, and the individual attempted to initiate official sharing agreements between the laboratory and a Chinese organization. Additionally, the investigation found that monitoring the group’s work was complicated by the language barrier, the revolving door of personnel, and the somewhat insular nature of the group. A later review identified at least six projects designated as sensitive.431 Documents on file with the Subcommittee (Sept. 22, 2019). China’s Non-Traditional Espionage Against the United States: Hearing on The Threat and Potential Policy Responses Before the S. Comm. on the Judiciary, 115th Cong. (2018) (testimony of James Mulvenon, Ph.D. General Manager, Special Programs Division SOS International, LLC). 428 Dep’t of Energy briefing with the Subcommittee (Dec. 7, 2018). 429 Documents on file with the Subcommittee (Aug. 13, 2019). 430 Id. 431 Id. 426 427 73 Individual O Energy’s Office of Intelligence and Counterintelligence investigated a postdoctoral researcher, Individual O, whom China selected for the TTP. The investigation determined that Individual O removed multiple gigabytes of unclassified data totaling over 30,000 electronic files from the National Lab prior to departing for China.432 While employed at the National Lab, Individual O was selected for China’s TTP. In support of the TTP application, the researcher obtained recommendation letters from U.S. colleagues and detailed some ongoing projects. Shortly after being selected for the TTP, the researcher took a professorial position in China.433 After Individual O departed for China, Energy discovered that the researcher uploaded multiple gigabytes of information including presentations, technical papers, research, and charts, from the National Lab network to a personal cloud storage account. Individual O told his or her prospective Chinese employer that his or her research area in the United States would play a critical role in advanced defense applications. Individual O furthermore planned to leverage the Chinese university’s strength in national defense and military research to support the modernization of the People’s Republic of China’s national defense. After returning to China, Individual O committed to keeping a close and collaborative relationship with several named research teams at the National Lab.434 Id. Id. 434 Id. 432 433 74 D. THE DEPARTMENT OF STATE The U.S. Department of State (“State”) “leads America’s foreign policy through diplomacy, advocacy, and assistance by advancing the interests of the American people, their safety and economic prosperity.”435 State adjudicates nonimmigrant visa (“NIV”) applications and manages the application process at U.S. embassies and consulates overseas in coordination with other federal departments and agencies.436 NIVs are temporary permits given to foreign nationals seeking to visit the United States to study, work, or conduct research.437 State considers every visa adjudication to be a national security decision.438 State’s role in reviewing NIV applications puts it on the front line in the U.S. government’s efforts to protect against intellectual property theft and technology transfers.439 State has a process to examine NIV applicants who may be attempting to steal sensitive technologies or intellectual property. State’s authority under the Immigration and Nationality Act to deny visas is limited, leading to a low denial rate for visa applicants. State denied less than five percent of the visa applications it determined warranted additional scrutiny due to concerns that the applicant might violate export control laws. State makes visa applicant files and supporting documentation available to U.S. law enforcement, but not in easily accessible or useful formats. Finally, State does not systematically track visa applicants linked to China’s talent recruitment plans. 1. The Nonimmigrant Visa Application Review Process State’s Bureau of Consular Affairs (“Consular Affairs”) is responsible “for the issuance of passports and other documentation to citizens and nationals” and for the “facilitation of legitimate travel to the United States.”440 Consular Affairs is funded in part through consular fees it collects for its services.441 Foreign scientists, About the U.S. Department of State, U.S. DEP’T OF STATE, https://www.state.gov/about/about-theu-s-department-of-state. 436 U.S. GOV’T ACCOUNTABILITY OFF., GAO-18-608, NONIMMIGRANT VISAS: OUTCOMES OF APPLICATIONS AND CHANGES IN RESPONSE TO 2017 EXECUTIVE ACTIONS, 6 (Aug. 2018), https://www.gao.gov/assets/700/693763.pdf. 437 Requirements for Immigrant and Nonimmigrant Visas, U.S. CUSTOMS AND BORDER PROTECTION, https://www.cbp.gov/travel/international-visitors/visa-waiver-program/requirements-immigrant-andnonimmigrant-visas. 438 See U.S. Nonproliferation Policy and the FY 2020 Budget: Hearing Before the Subcomm. on Asia, the Pacific, and Nonproliferation of the H. Comm. on Foreign Affairs, 116th Cong. 2−3 (2019) (statement of Christopher A. Ford, Assist. Secretary for Int’l Security & Nonproliferation, U.S. Dep’t of State). 439 See Complaint at 4, 10, United States v. Zhongsan Liu, 19MAG-864 (S.D.N.Y Sept. 13, 2019) [hereinafter LIU COMPLAINT (Sept. 13, 2019)]. 440 Bureau of Consular Affairs: Mission, U.S. DEP’T OF STATE, https://travel.state.gov/content/travel/ en/about-us.html. 441 Id. 435 75 students, and others seeking to acquire a NIV begin the visa process by filling out an online application called the DS-160.442 The DS-160 collects a significant amount of information about a visa applicant such as name, marital status, travel companions, home address, places of employment, previous military experience, and educational history.443 In addition, the applicant may be asked to provide supporting documentation such as a resume, research plans and publications, and information on any universities or other entities with which the applicant is associated.444 There currently is no online form that would require applicants to submit these materials in a standardized format, and as a result, State stores these documents as unsearchable PDFs.445 After completing the DS-160, the foreign national schedules a visa interview with a consular officer.446 During the interview, a consular official reviews the visa application, checks the applicant’s name in State’s databases for potential criminal activity, adverse information, previous visa denials, and other immigration violations.447 The official also obtains fingerprints and a photograph and ensures the applicant is eligible for the type of visa.448 Once the consular official determines that the applicant is eligible for the visa, the applicant is typically notified within 24 hours.449 Consular officials, however, can request a more in-depth review of the visa application and supplemental documentation from the visa applicant. 2. Security Advisory Opinions A consular official can request a Security Advisory Opinion or “SAO” if the visa applicant appears to pose a national security risk to the United States. U.S. national security agencies screen over 100,000 visa applications every year for potential issues ranging from the proliferation of weapons of mass destruction to Online Nonimmigrant Visa Application: DS-160 Exemplar, U.S. DEP’T OF STATE, BUREAU OF CONSULAR AFFAIRS, https://travel.state.gov/content/dam/visas/PDF-other/DS-160-Example_ 07292019.pdf. 443 Id. 444 Id. 445 Interview with U.S. State Dep’t, Bureau of Int’l Security and Nonproliferation (July 23, 2019) [hereinafter STATE DEP’T, BISN INTERVIEW (July 23, 2019)]. 446 Id. The foreign national provides all of the necessary paperwork concerning their proposed U.S. institutional assignment, unlike the situation with export license applicants where the U.S. company is responsible for providing information. 447 U.S. GOV’T ACCOUNTABILITY OFF., GAO-05-198, BORDER SECURITY: STREAMLINED VISAS MANTIS PROGRAM HAS LOWERED BURDEN ON FOREIGN SCI. STUDENTS AND SCHOLARS, BUT FURTHER REFINEMENTS NEEDED 3 (Feb. 2005), https://www.gao.gov/new.items/d05198.pdf [hereinafter 2005 GAO MANTIS REPORT]. 448 Id. 449 Id. at 4. 442 76 illicit transfers of sensitive technology.450 According to a 2005 Government Accountability Office report on SAOs: SAOs are required for a number of reasons, including concerns that a visa applicant may engage in illegal transfers of sensitive technology. An SAO based on sensitive technology transfer concerns is known as Visas Mantis and, according to State officials, is the most common type of SAO applied to science applicants.451 State designed the Visa Mantis process to further four important national security objectives:     prevent the proliferation of weapons of mass destruction and their missile delivery systems; restrain the development of destabilizing conventional military capabilities in certain regions of the world; prevent the transfer of arms and sensitive dual-use items to terrorists and states that sponsor terrorism; and maintain U.S. advantages in certain militarily critical technologies.452 After a consular officer requests a Visa Mantis review, the officer submits the application package and visa interview notes through State’s cabling system to Consular Affairs in Washington, D.C.453 Consular Affairs coordinates with DHS and other U.S. government agencies to conduct a review of the application and supporting documents for the visa application.454 State typically gives DHS ten business days to conclude its review, with extensions granted on a case-by-case basis.455 After the interagency review process is completed, a consular official abroad “reviews the SAO and, based on the information from Washington, decides whether to deny or issue the visa to the applicant.”456 The 2005 GAO report provides a graphic that further explains the visa adjudication process, including the Visa Mantis review.457 U.S. Nonproliferation Policy and the FY 2020 Budget: Hearing Before the Subcomm. on Asia, the Pacific, and Nonproliferation of the H. Comm. on Foreign Affairs, 116th Cong. 2−3 (2019) (statement of Christopher A. Ford, Assist. Secretary for Int’l Security & Nonproliferation, U.S. Dep’t of State). 451 2005 GAO MANTIS REPORT at 5. 452 Id. at 5. 453 Id. at 6. 454 A DHS official told the Subcommittee that this and other similar reviews can be delayed as State does not make the attachments to the visa applications, typically the resume and other supporting documents, keyword searchable. Interview with U.S. Dep’t of Homeland Security, Office of Intelligence (Sept. 11, 2019). See also 2005 GAO MANTIS REPORT. 455 2005 GAO MANTIS REPORT at 7. 456 Id. 457 Id. at 6. 450 77 determines it the applith is eligible to receive a visa. including using discretion to determine it a Security Advisory Opinion (SAO) may be needed: this would include Process begins when applicant schedules a visa Applicant Embassy Application is '0 US Consulate reviewed by post consular officer and name entered if. . into CLASS looking on Technology Alert List ?1 Consular (TAL) to see it iieldlarea socllon Applicant interviewed at study at applicant . - 1 .. Po" tails under TAL I Consular I otticer decides to 4 I issue or deny SAO not needed visa to applicant Il-rtla I Security Advisory I Opinion prepared and iorwarded to post Source: 2005 GAO Report Visas Mantrs process CLASS Consular Lookout and Support System SAO Advrsory Opinion 3. Consular Affairs Has Limited Authority to Deny Visa Applicants on National Security Grounds Related to Intellectual Property Theft According to State officials, Consular Affairs has limited authority to deny Visa applicants suspected of involvement in intellectual property theft. This is because denial must be speci?cally linked to violations of export control laws related to controlled technology.458 The commonly cited export control laws include the Export Administration Regulations, including the Commerce Control list, and the International Traffic in Arms Regulations.459 Edward Ramotowski, with State?s Consular Affairs, elaborated on State?s limited authorities under the Immigration and Nationality Act in recent congressional testimony when he stated that a consular officer can consider ?Whether there are reasonable grounds to believe that a visa applicant seeks to enter the United States to engage solely, principally, or incidentally in activity to Violate or evade US. law prohibiting the export from the United States of goods or technology.?460 458 STATE BISN INTERVIEW (July 23, 2019). If the visa applicant?s ?eld of study or work is not covered by an export law, State indicated that it can rely on a ?catch all? provision, 15 C.F.R. 744.3, to make denial recommendations. To rely on this provision, however. State would need to explain how a visa applicant visit could contribute to a controlled end use. 459 Student Visa Integrity: Protecting Educational Opportunity and National Security: Hearing Before the Subcomm. on Border Security and Immigration of the S. Comm. on the Judiciary, 115th Cong. (2018) (statement of Edward J. Ramotowski, Dep. Assist. Secretary of Consular Affairs. US. Dep?t of State) [hereinafter RAMOTOWSKI TESTIMONY (June 6. 2018)]. 46? Id. 78 As a result, denials must be linked to tightly controlled commodities and technology that are subject to export controls under the Export Administration Regulations, International Traffic in Arms Regulations, or other U.S. regulations such as those imposing economic sanctions.461 Ramotowski further stated that, “[t]he broader these export controls are, the more often we can use them to deter and disrupt activities of concern.”462 The Export Control Reform Act of 2018, which requires Commerce to regularly update Commerce Control List to include “emerging and foundational technologies,” may provide State greater flexibility to deny NIV applicants seeking to steal intellectual property as Commerce updates its list.463 Because consular officials must base a denial on a specific anticipated violation of an already existing export law, they cannot currently deny a visa application if they have reason to believe that the visa applicant seeks to “lawfully gain knowledge through work or study in a sensitive area of technology that is not export controlled—for example, certain technology related to robotics or artificial intelligence.”464 Furthermore, State officials told the Subcommittee that participation in a foreign talent recruitment plan does not automatically lead to visa ineligibility.465 Those same officials, however, said that State has denied some TTP members NIVs.466 4. Consular Officers Manually Search State’s “Technology Alert List” and Other Supporting Documentation When deciding whether to conduct a Visa Mantis review, a consular official determines whether the applicant’s background or proposed activity in the United States could include exposure to technologies on the Technology Alert List (“TAL”).467 The TAL is a list based on U.S. export control laws published by State in coordination with the interagency community that “includes science and technology-related fields where, if knowledge gained from research or work in these fields were used against the U.S., it could be potentially harmful.”468 While older, incomplete versions of the TAL are publicly available online, the Subcommittee reviewed the most recent, comprehensive version.469 The more than Id. Id. 463 Pub. L. No. 115−232, 132 Stat. 2208 (codified as amended at 50 U.S.C. §4801 et seq). 464 RAMOTOWSKI TESTIMONY (June 6, 2018). 465 STATE DEP’T, BISN INTERVIEW (July 23, 2019). 466 Id. 467 2005 GAO MANTIS REPORT at 5. 468 Id. at 5−6. 469 U.S. Dep’t of State: Tech. Alert List, BOSTON U. (Aug. 2002), https://www.bu.edu/isso/files/pdf/ tal.pdf; Tech. Alert List – Info. for Scholars/Students, CARNEGIE MELLON U., https://www.cmu.edu/ oie/foreign-students/docs/tal-students.pdf. 461 462 79 60-page document provides 16 categories of technologies that State considers sensitive, including for example nuclear and missile technologies.470 The TAL also contains additional instructions on how to evaluate visa applicants and an FAQ for consular officers.471 The TAL, however, does not contain entities of concern or any references to foreign talent recruitment plans.472 The Subcommittee identified some shortcomings in Consular Affairs’ process for reviewing a visa applicant according to the TAL. For example, State officials told the Subcommittee that a consular officer would have a copy of the TAL available while interviewing the applicant. As the process is not automated, consular officers search the TAL manually.473 Some consular officers even refer to printed copies of the TAL during interviews.474 State officials indicated that while there are not concrete plans to automate the process of reviewing visa applicants for concerns related to export controlled technology, there are ongoing discussions within Consular Affairs to determine if automation would be more efficient.475 5. Chinese Visa Applicants Comprise a Majority of Visa Mantis Reviews, But Are Rarely Denied State classified the specific number of visa applicants that receive a Visa Mantis review. In 2005, however, the last time State publicly released data regarding State’s Mantis program, the GAO found that “China and Russia account for roughly 76 percent of all Visa Mantis cases.”476 The Subcommittee learned that Chinese visa applicants also continue to comprise a majority of Visa Mantis reviews in 2019.477 State rarely denies visa applicants after the review. A Subcommittee survey of Visa Mantis reviews showed that State denied less than five percent of reviewed Chinese visa applicants.478 The Subcommittee asked State to provide case examples of Visa Mantis files related to visa applicants with connections to China’s talent recruitment plans, including the TTP.479 State could not provide any of the requested files. State wrote that it was “unable to provide specific examples of applicants involved in China’s talent recruitment plans, as [State] does not systematically track this State Dep’t briefing with the Subcommittee (Sept. 24, 2019). Id. 472 Id. 473 STATE DEP’T, BISN INTERVIEW (July 23, 2019). 474 Id. 475 Id. 476 2005 GAO MANTIS REPORT at 16. 477 U.S. Dep’t of State letter to the Subcommittee (July 21, 2019) (documents on file with Subcommittee). 478 Id. 479 Subcommittee letter to U.S. Dep’t of State (July 31, 2019). 470 471 80 information.”480 Instead, State provided 20 classified case examples—unrelated to talent recruitment plans—of denied Chinese visa applicants to demonstrate State’s review process.481 6. Ongoing Criminal Prosecution Highlights Problems with State’s Lack of Scrutiny of Research Scholar Visas A recent indictment from the Southern District of New York shows that Chinese government officials are aware of State’s weakness in screening certain types of visas, particularly student and researcher scholar visas. On September 17, 2019, a complaint was unsealed, detailing an alleged Chinese government conspiracy to commit visa fraud.482 Zhongshan Liu, a Chinese citizen, was charged in connection with “his involvement in a conspiracy to fraudulently obtain U.S. visas for Chinese government employees.”483 As alleged in the complaint, “Liu conspired to obtain research scholar visas fraudulently for people whose actual purpose was not research but recruitment” of scientists and researchers.484 Liu allegedly provided assistance in obtaining visas for individuals claiming to be research scholars, but in reality his assignment was to recruit for China’s talent recruitment plans.485 According to the complaint, Liu operated the New York office of the China Association for International Exchange of Personnel (“CAIEP-NY”).486 CAIEP-NY is a Chinese government agency that, among other things, recruits scientists, academics, engineers and other experts in the United States to work in China.487 Liu worked with other Chinese government employees in the United States, including at Chinese consulates, to fraudulently procure J-1 Research Scholar visas for a CAIEP-NY employee and a prospective CAIEP-NY employee.488 In addition, Liu attempted to assist a CAIEP-NY hire to obtain a J-1 research scholar visa U.S. Dep’t of State letter to the Subcommittee (Sept. 19, 2019) (unclassified cover letter when separated from classified enclosures). 481 U.S. Dep’t of State production to the Subcommittee (Sept. 19, 2019) (classified S//NF). 482 Press Release, U.S. Dept. of Justice, Chinese Government Employee Charged in Manhattan Federal Court with Participating in Conspiracy to Fraudulently Obtain U.S. Visas (Sept. 16, 2019) (https://www.justice.gov/opa/pr/chinese-government-employee-charged-manhattan-federal-courtparticipating-conspiracy). 483 Id. 484 Id. 485 Id. 486 See LIU COMPLAINT at 6 (Sept. 13, 2019). 487 Press Release, U.S. Dept. of Justice, Chinese Government Employee Charged in Manhattan Federal Court with Participating in Conspiracy to Fraudulently Obtain U.S. Visas (Sept. 16, 2019) (https://www.justice.gov/opa/pr/chinese-government-employee-charged-manhattan-federal-courtparticipating-conspiracy). 488 The J-1 Research Scholar visa program permits foreign nationals to come to the United States for the primary purpose of conducting research at a corporate research facility, museum, library, university or other research institution. LIU COMPLAINT at 11 (Sept. 13, 2019). 480 81 under false pretenses.489 Liu contacted multiple U.S. universities to try to arrange for a university to invite the CAIEP-NY hire to come as a J-1 Research Scholar.490 Liu was in communication with an individual affiliated with a U.S. university who explained that it would “be very easy for us to give him/her a J-1 [visa].”491 Press Release, U.S. Dept. of Justice, Chinese Government Employee Charged in Manhattan Federal Court with Participating in Conspiracy to Fraudulently Obtain U.S. Visas (Sept. 16, 2019) (https://www.justice.gov/opa/pr/chinese-government-employee-charged-manhattan-federal-courtparticipating-conspiracy). 490 Id. 491 LIU COMPLAINT at 15 (Sept. 13, 2019). 489 82 E. THE DEPARTMENT OF COMMERCE The Department of Commerce’s (“Commerce”) mission is to create “the conditions for economic growth and opportunity.”492 Commerce has offices in every state and territory and more than 86 countries worldwide.493 Commerce consists of multiple operating units, including the National Oceanic and Atmospheric Administration, International Trade Administration, Bureau of Economic Analysis, National Institute of Standards and Technology, United States Patent and Trademark Office, and the Bureau of Industry and Security (“BIS”).494 Commerce relies on BIS to advance “U.S. national security, foreign policy, and economic objectives by ensuring an effective export control and treaty compliance system, and by promoting continued U.S. leadership in strategic technologies.”495 BIS conducts industrial base assessments of defense-related technologies and also “administers export controls of dual-use items which have both military and commercial applications.”496 To work with controlled dual-use technology in the United States, foreign nationals and the firms that employ or sponsor them must comply with U.S. export controls and visa regulations. Commerce, through an interagency review process, is responsible for issuing deemed export licenses to firms that employ or host foreign nationals seeking to work on controlled technology projects.497 A Subcommittee review of those license applications found that Commerce issued deemed licenses to Chinese nationals who participated in talent recruitment plans and were affiliated with other concerning entities, including some now on Commerce’s Entity List.498 History, U.S. DEP’T OF COMMERCE (2019), https://www.commerce.gov/about/history; Strategic Plan 2018−2022, U.S. DEP’T OF COMMERCE, 2 (Oct. 7, 2017), https://www.commerce.gov/sites/default/files/us_department_of_commerce_2018-2022_strategic _plan.pdf. 493 Strategic Plan 2018−2022, U.S. Dep’t of Commerce, 2 (Oct. 7, 2017), https://www.commerce.gov/sites/default/files/us_department_of_commerce_2018-2022_strategic_ plan.pdf. 494 Organizational Chart Final, U.S. Dep’t of Commerce (2015), https://www.commerce.gov/sites/default/files/media/files/2015/docorgchartfinal.pdf. 495 Budget in Brief Fiscal Year 2019, U.S. DEP’T OF COMMERCE, 47 (2019), http://www.osec.doc.gov/ bmi/budget/FY19BIB/FinalBiBFY2019.pdf. 496 U.S. GOV’T ACCOUNTABILITY OFF., GAO-19-516, DEFENSE SUPPLIER BASE: CHALLENGES AND POL’Y CONSIDERATIONS REGARDING OFFSHORING AND FOREIGN INVESTMENT RISKS, 7 (Sept. 2019), https://www.gao.gov/assets/710/701170.pdf. 497 U.S. GOV’T ACCOUNTABILITY OFF., GAO-02-972, EXPORT CONTROLS: DEPARTMENT OF COM. CONTROLS OVER TRANSFERS OF TECHNOLOGY TO FOREIGN NATI’LS NEED IMPROVEMENT, 2 (Sept. 6, 2002), https://www.gao.gov/products/GAO-02-972. 498 Lists of Parties of Concern, U.S. DEP’T OF COM., BUREAU OF INDUS. AND SECURITY (2019), https://www.bis.doc.gov/index.php/policy-guidance/lists-of-parties-of-concern. (“The Entity List identifies foreign parties that are prohibited from receiving some or all items subject to the EAR unless the exporter secures a license. These parties present a greater risk of diversion to weapons of 492 83 1. Deemed Export Licensing BIS is charged with administering the Export Administration Regulations which impose licensing requirements on the export of items that are controlled for national security and foreign policy reasons.499 The Regulations’ export control provisions serve the national security, foreign policy, and other interests of the United States by restricting access to items by countries or persons that might use such items in a way hostile to U.S. interests.500 According to the GAO’s 2002 review of BIS licensing standards: Under U.S. export control regulations, a firm is required to seek a deemed export license if the export of the technology to the foreign national’s country of citizenship would require a license. If a license is required, the exporter must submit a license application to Commerce identifying the technology, the reason it is controlled, the proposed destination, and the intended end user. In the case of deemed export license applications, firms must also provide the foreign national’s resume, visa type, and a list of his or her publications.501 The Regulations obligate U.S. individuals and corporations to apply for and receive a license from the U.S. government before releasing to foreign-individuals and employees in the United States certain types of technology.502 This obligation is commonly known as the “deemed export rule,” as releases of controlled technology to foreign individuals in the U.S. are “deemed” to be an export to that person’s country.503 Organizations that commonly use deemed export licenses include high-tech research and development institutions, bio-chemical firms, and the medical and computer sectors.504 Individuals with legal permanent residence status or U.S. mass destruction (WMD) programs, terrorism, or other activities contrary to U.S. national security and/or foreign policy interests. By publicly listing such parties, the Entity List is an important tool to prevent unauthorized trade in items subject to the EAR.”). 499 Fact Sheet for Revised Form I-129, U.S. DEP’T OF COM., BUREAU OF INDUS. AND SECURITY, 1 (Feb. 18, 2011), https://www.bis.doc.gov/index.php/documents/deemed-exports/101-dhs-non-immigrantform-i-129/file. 500 CONG. RESEARCH SERV., R41916, THE U.S. EXPORT CONTROL SYSTEM AND THE EXPORT CONTROL REFORM INITIATIVE, 3 (Apr. 5, 2019), https://fas.org/sgp/crs/natsec/R41916.pdf. 501 U.S. GOV’T ACCOUNTABILITY OFF., GAO-02-972, EXPORT CONTROLS: DEPARTMENT OF COM. CONTROLS OVER TRANSFERS OF TECH. TO FOREIGN NAT’LS NEED IMPROVEMENT, 6 (Sept. 6, 2002), https://www.gao.gov/products/GAO-02-972. 502 Fact Sheet for Revised Form I-129, U.S. DEP’T OF COMMERCE, BUREAU OF INDUS. AND SECURITY , 1 (Feb. 18, 2011), https://www.bis.doc.gov/index.php/documents/deemed-exports/101-dhs-nonimmigrant-form-i-129/file. 503 Id. 504 Deemed Exports, U.S. DEP’T OF COM., BUREAU OF INDUS. AND SECURITY (2019), https://www.bis.doc.gov/index.php/policy-guidance/deemed-exports. 84 citizenship and persons granted status as ?protected individuals? are exempt from the deemed export rule.505 A deemed export license is only required for release of controlled technology or software to a foreign individual if a license would be required for the export of such items to the individual?s country of origin.506 A deemed export license is required if an export license is needed to export technology described under an Export Control Classi?cation Number listed on the Commerce Control List and if the foreign national? country of most recent citizenship or af?liation would require an export control license.507 An Export Control Classification Number describes the item that is exported and indicates licensing requirements.508 The Commerce Control List consists of ten broad categories with each subdivided into five product groups, as shown in the example below.509 Commerce Control List Categories 0 Nuclear materials. facilities. and equipment (and miscellaneous items! I Special Materials and Rclutcd Equipment. Chemicals. ?Microorganisms." and ?Toxins" 2 Mulcriuls Processing 3 4 Computers 5 Telecommunications and "Information Security" (1 Sensors and Lasers 7 Navigation and Avionics 8 Marine 9 Acrmpucc and Propulsion Product Groups A. ?End items." ?Equipment." m? ems. N. Parts. Components. and I ?f "n ?Systems? Cunpumts.md$ynems H. ?Test?, and ?Production Equipment" 3 A I ?Materials" "Software" E. ?Technology? 505 Id. 506 Guidelines for Preparing Export License Applications Involving Foreign Nationals, U.S. DEPT OF COM., BUREAU OF INDUS. AND SECURITY, l. (2018), 507 Commerce Control List, U.S. OF COM., BUREAU OF INDUS. AND SECURITY (2019), 508 Id. 509 Id. See also Introduction to Commerce Department Export Controls, U.S. DEPT OF COM., BUREAU OF INDUS. AND SECURITY, 3, pdf/?le. 85 If an item under Commerce’s jurisdiction is not listed on the Commerce Control list—typically low-technology consumer goods—it generally does not require a license.510 If the item is being shipped to an embargoed country, to an end user of concern, or in support of a prohibited end use, an export license may still be required.511 Commerce does not regulate all goods, services, and technologies being exported; other federal agencies have export control responsibilities for regulating exports that are more specialized.512 To be granted a deemed export license, an employer must fill out an application requiring the disclosure of the following three items: (1) how the controlled technology will be used by the foreign individual; (2) the immigration status of the foreign individual; and (3) a resume including personal background, educational and vocational background, employment history, military service, and optionally special information the applicant believes the BIS should take into account when reviewing the application.513 Commerce and other reviewing agencies use this information to determine the risk that the technology could be diverted for unauthorized uses or unauthorized users.514 Commerce, under Executive Order 12981, conducts the review of license applications with the Departments of Defense, State, and Energy.515 Commerce also may request information or input from other federal agencies, including the FBI, but the Executive Order nor the Export Control Reform Act, grants the FBI specific authority or responsibility in this process.516 Commerce’s intelligence analysts review open source, classified, and law enforcement databases when reviewing license applications.517 Commerce Control List, U.S. DEP’T OF COM., BUREAU OF INDUS. AND SECURITY (2019), https://www.bis.doc.gov/index.php/regulations/commerce-control-list-ccl. 511 Id. 512 Frequently Asked Questions to Export Licensing Requirements, U.S. DEP’T OF COM., BUREAU OF INDUS. AND SECURITY, 2, https://www.bis.doc.gov/index.php/documents/pdfs/286-licensing-faq/file. See also CONG. RESEARCH SERV., R41916, THE U.S. EXPORT CONTROL SYSTEM AND THE EXPORT CONTROL REFORM INITIATIVE, 3 (Apr. 5, 2019), https://fas.org/sgp/crs/natsec/R41916.pdf. 513 Guidelines for Preparing Export License Applications Involving Foreign Nationals, U.S. DEP’T OF COM., BUREAU OF INDUS. AND SECURITY, 1 (2018), https://www.bis.doc.gov/index.php/documents/ deemed-exports/709-guidelines-for-foreign-national-license-applications/file. 514 Id. 515 Dep’t of Commerce briefing with the Subcommittee (Sept. 20, 2019). 516 Id. 517 Id. 510 86 2. A Majority of Deemed Export Licenses are for Chinese Nationals Since 2013, Commerce has processed 7,777 deemed export license applications.518 More than 52 percent of all deemed license applications were for Chinese nationals during that time.519 ?In 2018, 3,102 companies submitted a total of 34,851 license applications, including deemed exports.?520 ?1,101 companies applied for only one license, 506 companies applied for two licenses and 937 companies applied for three to nine licenses.?521 In 2018, applications for Chinese nationals accounted for approximately 35 percent of approved applications, as shown below.522 Top 15 (?Otmics ofOngn for Export Licenses 2013-2018 Approved Coutry Approvah Top Total Applratnm L?omn?ofOrtg'n 2018 2013 2014 2015 2016 2017 2018 2018 Ma 35001 852 633 697 799 771 350 34.8% Iran 511002 162 162 172 224 267 184 18.3% 11mi- 35001 67 29 108 50 79 77 7.6% Memo 911610 2 9 15 18 20 31 3.1"0 Ulied Kiwiom 35611 0 II 24 28 25 20 2.0% Japan 911002 26 0 13 8 21 16 1.6? 55002 6 8 15 20 l6 14 1.4% Amrnn 311001 2 1 0 2 8 12 1.2% France 95610 1 4 12 16 9 12 1.2% Victmm 3 11001 0.9? Rtm'n Fedcm'nn 35001 39 43 52 85 44 9 0.9% 011606 0 2 l3 8 6 9 0.9? 0 Taiwan 35001 1 2 2 2 2 8 0.8% Fnhni 011982 0 0 1 0 0 7 0.7" Bind 05606 2 2 13 3 9 6 0.6% Total appk?au'om 1.325 1.063 1.381 1.476 1.525 1.007 Souruc. US. biking Importer Support Slutcm rctnu ed on March 5. 2019 Note. 1 Ranking is based on 10mm: 2 numb mpuncd nunbcn an: when to rm mun hascd un changes II the mum: data on the mum mg dale 518 Deemed Export Licenses, U.S. OF COM., BUREAU OF INDUS. AND SECURITY (Mar. 5, 2019), 519 Id. 520 Statistics of 2018 BIS License Authorization, U.S. DEPT OF COM.. BUREAU OF INDUS. AND SECURITY, 521 Id. 522 Id. 87 3. Commerce Rarely Denies License Applications Commerce rarely denies deemed export license applications. As shown below, Commerce?s denial rate in 2018 was 1.1 percent.523 Commerce also told the Subcommittee that it has not revoked a deemed export license in the past ?ve years, despite the recent listing of new entities on Commerce?s Entity List.524 Deemed Export Licenses Processed by BIS 2013-2018 Change from 2013 2014 2015 2016 2017 2018 2017 Approved 1.245 964 1.268 1.377 1.394 846 -3939". Rejected 64.2% 67 81 95 86 107 150 40.2% Total 1.325 1.063 1.381 1.476 1.525 1.007 -34.0% RWA: Return wihout action Source: Comm-rue Exporter Support S) .slem remu ed on March 5. 2019 Note: All prenously reponed nunivcrs are sub?et to re\ iston based on changes in the source data on the relnm mg date. 4. Commerce Issued Deemed Export Licenses for Chinese Nationals Linked to Talent Recruitment Plans and Other Concerning Entities The Subcommittee examined nearly 2,000 deemed export license applications for Chinese nationals that Commerce issued over the past three years. Following an interagency review, Commerce issued deemed export licenses to Chinese foreign nationals linked to talent recruitment plans and other concerning entities, including Huawei and Chinese universities with connections to the Chinese military. Most of the issued licenses allow ?foreign nationals from countries of concern to work with advanced computer, electronic, or telecommunication and information security technologies.?525 523 Id. 524 Email from Dep?t of Commerce Legis. Aff. to the Subcommittee (Aug. 5, 2019) (on ?le with Subcommittee). 525 Note, however, that not ?all domestic transfers of controlled technology to foreign nationals require a license. For example, certain types of dual-use technology and software may be provided to foreign nationals from India, Pakistan, and Israel without a license.? U.S. ACCOUNTABILITY OFF., GAO-02-972. EXPORT CONTROLS: DEPT OF COM. CONTROLS OVER TRANSFERS OF TECHNOLOGY TO FOREIGN NATIONALS NEED IMPROVEMENT, 2 (Sept. 6, 2002). 88 Talent Recruitment Plans. Commerce issued at least 20 licenses to Chinese nationals associated with various Chinese talent recruitment plans.526 A sample of these license applications follow below.  In 2017, a U.S. company applied for a Chinese national to work on digital cellular radio equipment. According to the application, the nature of the work would allow the foreign national access to controlled technology and capabilities of various products in development by the U.S. company. That same foreign national previously worked on at least two research projects concerning video-based, real-time object tracking supported by two talent recruitment plans.527  In 2016, a U.S. company applied for a Chinese national to work on controlled and proprietary wireless technology. That same individual published a research paper in 2016 on wireless technology that was funded, in part, by a talent recruitment plan.528  In 2016, a U.S company applied for a Chinese national to work on controlled cellular technology. That same individual published a research paper on similar technology funded by a talent plan.529 China’s National Defense Universities. Commerce issued licenses to individuals associated with one of the seven Chinese universities, known as the “Seven Sons” that are under “direct supervision” by China’s Military Commission.530 Two of these universities, Beihang University and Northwest Polytechnical University, are currently on Commerce’s Entity List.531 The other five institutions, Beijing Institute of Technology, Harbin Institute of Technology, Harbin Institute Engineering University, Nanjing University of Aeronautics and Astronautics, and Nanjing University of Science and Technology, are not on Commerce’s Entity List as of this report.532 Commerce granted more than 150 licenses to Chinese nationals linked to one of the seven defense universities.533 A sample of these license applications follow below. Production from the Dep’t of Commerce (June 17, 2019). Id. 528 Id. 529 Id. 530 C4ADS, OPEN ARMS: EVALUATING GLOBAL EXPOSURE TO CHINA’S DEFENSE INDUS. BASE, 21 (Sept. 26, 2019), https://static1.squarespace.com/static/566ef8b4d8af107232d5358a/t/5d95fb48a0bfc672d825e346/1570 110297719/Open+Arms.pdf; PEIJIE WANG, CHINA’S GOVERNANCE: ACROSS VERTICAL AND HORIZONTAL CONNEXIONS, 54 (2017). 531 Lists of Parties of Concern, U.S. DEP’T OF COMMERCE, BUREAU OF INDUSTRY AND SECURITY, (2019), https://www.bis.doc.gov/index.php/policy-guidance/lists-of-parties-of-concern. 532 Id. 533 Production from the Dep’t of Commerce (June 17, 2019). 526 527 89  In 2018, a U.S. company applied for a Chinese national to access semiconductor technology and converter integrated circuits. That same individual received a Bachelor’s of Electronic Information Engineering from Beihang University.534  In 2017, a U.S. company applied for a Chinese national to work as a packaging engineer, providing packaging design, development, and support for semiconductor technology. That same individual received a Bachelor’s in Optical Information Science and Technology and a Masters in Optics from the Northwestern Polytechnical University.535 Huawei. According to information reviewed by the Subcommittee, Commerce issued at least 65 licenses to Chinese nationals who previously worked for or were supported by Huawei. Huawei is on Commerce’s Entity List as of this report. A sample of these license applications follow below.  In 2018, a U.S. company applied for a Chinese national to work on systems for telecommunications carriers, cable providers, and data center customers. This individual previously worked at Huawei as a software engineer.536  In 2017, a U.S. company applied for a Chinse national that previously worked on machine learning and embedded software for Huawei and also graduated from Harbin Institute of Technology with a bachelor’s degree in engineering.537 The Chinese Academy of Sciences (“CAS”). CAS has been referred to as the “backbone” of the Chinese innovation system. According to the U.S.-China Economic and Security Review Commission, CAS has a research staff of 50,000 and “employs much of China’s best scientific and engineering talent and has an extensive system of roughly 100 research institutes and laboratories.”538 The U.S. Department of Defense also found that CAS is the: [H]ighest academic institution for comprehensive R&D in the natural and applied sciences in China and reports directly to the State Council Id. Id. 536 Id. 537 Id. 538 SECURITY COMMISSION REPORT at 18 (Jan. 2011). 534 535 90 in an advisory capacity, with much of its work contributing to products for military use.539 According to information reviewed by the Subcommittee, Commerce, after an interagency review, issued more than 60 licenses to Chinese nationals associated with CAS. A sample of these license applications follow below.  In 2018, a U.S. company applied for a Chinese national to work on microelectronics fabrication intended for semiconductor technology. That same individual received a Master’s in Electrical Engineering from the Institute of Microelectronics at CAS.540  In 2017, a U.S. company applied for a Chinese national to have access to semiconductor technology for the development and production of integrated circuits. That same individual received a Masters of Electronics and Communication Engineering from the Institute of Semiconductors at CAS.541 U.S. DEP’T OF DEFENSE, ANNUAL REP. TO CONGRESS: MILITARY AND SECURITY DEVELOPMENTS INVOLVING THE PEOPLE’S REPUBLIC OF CHINA 2019, 97−98 (May 2, 2019), https://media.defense.gov/ 2019/May/02/2002127082/-1//1/2019_CHINA_MILITARY_POWER_REPORT.pdf (emphasis added); WAYNE M. MORRISON, CONG. RES. SERV., IF10964, THE MADE IN CHINA 2025 INITIATIVE: ECON. IMPLICATIONS FOR THE UNITED STATES, (Apr. 12, 2019), https://www.crs.gov/Reports/IF10964?source= search&guid=404a7bd0aad54011bda40bb9f7d1880e&index=1. China’s State Council is “the highest Chinese executive organ of state power.” 540 Production from the Dep’t of Commerce (June 17, 2019). 541 Id. 539 91 F. THE FEDERAL BUREAU OF INVESTIGATION The FBI is a federal law enforcement agency that operates under the Department of Justice’s jurisdiction. The FBI employs 35,000 people, including special agents, intelligence analysts, language specialists, scientists, and information technology specialists at its headquarters in Washington D.C. and 56 field offices.542 The FBI has broad law enforcement responsibilities, including protecting and defending the United States against terrorist attacks, foreign intelligence threats and espionage, cyber-based attacks and high-technology crimes.543 The FBI also informs the public and state and local law enforcement agencies of potential crimes and vulnerabilities to criminal organizations. Specifically, the FBI is charged with working with state and local law enforcement “to address crime problems common to federal/state/local agencies” and providing “timely and relevant criminal justice information and identification services concerning individuals, stolen property, criminal organizations and activities, crime statistics, and other law enforcement related data” to “FBI qualified law enforcement, criminal justice, civilian, academic, employment, licensing, and firearms sales organizations.”544 The FBI has been slow to respond to threats posed by Chinese talent recruitment plans. Despite the Chinese government’s public announcements in 2008 of its intent to recruit overseas researchers with access to cutting-edge research and absorb, assimilate, and re-innovate technologies, the FBI did not identify Chinese talent recruitment plans as a “threat vector” until 2015.545 In a 2018 FBI document, the Bureau acknowledged that the U.S. government “was slow to recognize the threat of the Chinese Talent Plans, but that has changed in recent years.”546 The FBI also took nearly two years to make a coordinated dissemination of information identifying potential talent recruitment plan participants to federal grant-making agencies. This delay may have deprived those agencies and inspectors general additional opportunities to identify talent recruitment plan members who engaged in crimes, unethical grant practices, or unauthorized technology transfers. Finally, while the FBI is making progress towards creating a unified messaging strategy to U.S. research institutions, it still lacks a coordinated national outreach program to address these issues. Missions and Priorities, FED. BUREAU OF INVESTIGATION, https://www.fbi.gov/about/mission. Id. 544 Organization, Mission and Functions Manual: Federal Bureau of Investigation, DEP’T OF JUSTICE, (2014), https://www.justice.gov/jmd/organization-mission-and-functions-manual-federal-bureauinvestigation. 545 Fed. Bureau of Investigation production, 16 (Oct. 12, 2018). 546 Id. 542 543 92 1. The FBI was Slow to Recognize the Threat In 2008, the Chinese government announced its plan to recruit top overseasresearchers and to eventually bring their talents and expertise to China to benefit the government. Despite China’s public declaration of its intentions, the FBI took nearly ten years to recognize that Chinese government talent programs posed a threat to the U.S. academic community and federal research grants. In 2015, the FBI “identified the Chinese Talent Plans as a known vector of the non-traditional threat.”547 It was not until mid-2018, however, that FBI headquarters in Washington, D.C. took control of the FBI’s response to the threat.548 An early and significant FBI criminal investigation of a TTP member resulted in a guilty plea in December 2016. A team of FBI special agents in the Connecticut field office arrested Dr. Long Yu, a Chinese citizen and U.S. legal permanent resident, in November 2014 for attempting to take hundreds of gigabytes of export-controlled, proprietary information to China.549 These materials included design information for the F-22 and JSF-35 military jet engines.550 In court documents, Dr. Long confirmed he used his knowledge of U.S. technology to apply for multiple Chinese talent plans, and he did so while employed by a U.S. defense contractor.551 As part of his applications, Dr. Long corresponded with Chinese government researchers and described how he would use his future position to benefit Chinese government research.552 Dr. Long described the ways he would leverage his knowledge of U.S. technologies and manufacturing processes to benefit China, saying, “These unique working experiences have provided me a great starting point to perform R&D and further spin off business in China. I believe my efforts will help China to mature its own aircraft engines.”553 In December 2016, Dr. Long pleaded guilty to conspiracy to commit economic espionage and attempted export of defense articles.554 During the course of the Dr. Long investigation, FBI special agents who were working the case concluded that Dr. Long’s illegal activity was not an isolated incident of a talent recruitment plan member’s illegal behavior. A 2018 FBI PowerPoint presentation titled, “Talent Plan Education Package Briefing,” recognized that the U.S. “government has identified the Talent Plans as an avenue of illicit technology transfer.”555 That same presentation also stated that Id. Fed. Bureau of Investigation briefing with the Subcommittee (Sept. 12, 2019). 549 Documents on file with the Subcommittee (Oct. 12, 2018). 550 Id. 551 Id. 552 Id 553 Id. 554 Id. 555 Fed. Bureau of Investigation production, 16 (Oct. 12, 2018). 547 548 93 the ?[t]he US. government was slow to recognize the threat of the Chinese Talent Plans, but that has changed in recent years.?556 The slow response to Chinese recruitment operations through the TTP and other talent recruitment plans provided the Chinese government the opportunity to recruit U.S.-based researchers and scientists. Though Chinese government statistics on the number of TTP members in China are sparse, a state-run media outlet lauded China for recruiting more than 6,000 TTP members by 2016, including 70 Nobel Prize laureates and academicians from the United States and Europe.557 A US. media report showed a year later that the number of TTP members had further increased to over 7,000.558 2. The FBI Took Nearly Two Years to Disseminate Talent Recruitment Plan Information to Federal Grant-Making Agencies The FBI received information concerning members of the TTP and other talent recruitment plans in 2016. 559 The FBI took nearly two ears to c001 dinate a 556 Id. 557 National Talent Base Statistics Show Our Country Speeding Tou'ard Becoming a ?Talent Country: XINHUA (Aug. 29. 2017). Su Zhou. Returnees finding big opportunities. CHINA DAILY (Feb. 25. 2017). 558 Hepeng Jia. China'splan to recruit talented researchers. NATURE (Jan. 17. 2018). 559 Fed. Bureau of Investigation production (Oct. 4. 2019) (on file with the Subcommittee). The following information is redacted as the FBI classi?ed it as "Law Enforcement Sensitivedelay may have deprived the NIH, the Department of Energy, and the NSF and their respective inspectors general from effectively identifying talent recruitment plan members that engaged in illegal or unethical grant practices using taxpayer dollars and preventing any unauthorized technology transfers. 3. The FBI Disbanded its National Security Higher Education Advisory Board The FBI disbanded its National Security Higher Education Advisory Board (“NSHEAB”) designed to facilitate security cooperation with the U.S. higher education community in 2018.566 The FBI created the NSHEAB in 2005 to better understand “the unique culture, traditions, and practices of higher education, including the culture of openness and academic freedom and the importance of international collaboration” and to serve as an “ongoing dialogue about national security issues between higher education institutions, the FBI, and other federal agencies.”567 The NSHEAB met quarterly from 2005 until 2014 and included approximately 20 representatives from leading institutes of higher learning and research.568 According to the FBI, because participation in the NSHEAB waned in 2014, the FBI ceased holding NSHEAB meetings, despite the growing threat of foreign talent plans such as the TTP.569 After a four year hiatus, the FBI sent a letter in February 2018 to NSHEAB members informing them of the decision to disband the NSHEAB. The FBI told NSHEAB members that the FBI’s Office of the Private Sector would reevaluate “mutually-beneficial academic engagement opportunities” and would potentially initiate “new advisory groups to partner with the FBI.”570 The FBI’s decision to disband its forum for discussing national security issues with the U.S. academic community came one week after FBI Director Wray’s Senate Select Intelligence Committee testimony highlighted the Chinese threat to the U.S. academic community. During his February 13, 2018 testimony, Director Wray stated: [T]he use of nontraditional collectors, especially in the academic setting, whether it’s professors, scientists, students, we see in almost every field office that the FBI has around the country. It’s not just in major cities. It’s in small ones as well. It's across basically every discipline. I think Fed. Bureau of Investigation Email to the Subcommittee (Sept. 27, 2019). Press Release, Fed. Bureau of Investigation, National Security Higher Education Advisory Board Confirms Seven New Members (Oct. 3, 2007), https://archives.fbi.gov/archives/news/pressrel/pressreleases/national-security-higher-education-advisory-board-confirms-seven-new-members. 568 Fed. Bureau of Investigation briefing with the Subcommittee (Oct. 4, 2019; 11:00 A.M.); Fed. Bureau of Investigation briefing with the Subcommittee (Oct. 4, 2019; 12:00 P.M.) 569 Fed. Bureau of Investigation Email to the Subcommittee (Sept. 27, 2019). 570 Id. 566 567 95 the level of naiveté on the part of the academic sector about this creates its own issues. They’re exploiting the very open research and development environment that we have, which we all revere, but they’re taking advantage of it.571 Shortly after the FBI dissolved the NSHEAB, ACE, the Association of American Universities, the Association of Public and Land-Grant Universities, and the Council on Government Relations publicly criticized the FBI’s decision. In a joint statement submitted during an April 11, 2018 house hearing on foreign plots targeting America’s research, ACE and the other associations noted that the disbandment came “at a time when the very types of discussions the Board enabled between the university community and federal security agencies could be especially valuable.”572 The FBI has defended its decision to disband the NSHEAB, stating that it was “no longer the most practical medium for sharing threat information and engaging academia.”573 Instead, the FBI created the Office of Private Sector (“OPS”) in 2014 as it recognized the need for more resources, coordination, and engagement with the private sector.574 The OPS was supposed to reflect the FBI’s desire to remain “ahead of the threat through leadership, agility, and integration.”575 The FBI now designates “at least one Private Sector Coordinator in every FBI field office focused on engagement with the private sector, to include academia.”576 The OPS also has full-time personnel, including a Supervisory Special Agent, a senior Management and Program Analyst, and administrative contractor support, who are “solely committed to academia outreach and coordination.”577 Notably, the FBI’s OPS did not have a dedicated outreach team for U.S. universities until July 2019.578 The OPS then began collaborating with the three largest academia associations—ACE, Association of American Universities, Worldwide Threats: Hearing Before the S. Select Comm. on Intelligence, 115th Cong. (2018) (testimony of Christopher Wray, Director, Fed. Bureau of Investigation). 572 Joint Statement of the American Council on Education, Association of American Universities, Association of Public and Land-grant Universities and the Council on Governmental Relations to the Subcommittees on Oversight and Research & Technology, Committee on Science, Space, and Technology, Hearing: Scholars or Spies: Foreign Plots Targeting America’s Research and Development (Apr. 11, 2018), https://www.aau.edu/sites/default/files/AAU-Files/Key-Issues/ScienceSecurity/Higher-Ed-Assn-Statement-April-11-2018-House-SST-Cmte-Hearing.pdf 573 Id. 574 Fed. Bureau of Investigation Email to the Subcommittee (Sept. 27, 2019). 575 DARREN E. TROMBLAY, INFO. TECH. & INNOVATION FOUND., PROTECTING PARTNERS OR PRESERVING FIEFDOMS? HOW TO REFORM COUNTERINTELLIGENCE OUTREACH TO INDUSTRY, 10 (Oct. 2017), http://www2.itif.org/2017-counterintelligence-outreachindustry.pdf?_ga=2.214257303.1084333806.1572981056-1186362390.1572981056. 576 Fed. Bureau of Investigation Email to the Subcommittee (Sept. 27, 2019). 577 Id. 578 Fed. Bureau of Investigation briefing with the Subcommittee (Oct. 31, 2019). 571 96 and Association of Public and Land-Grant Universities—on issues of mutual concern.579 The FBI told the Subcommittee that OPS provides support to FBI field offices to hold regional academia conferences with universities and “hosts an annual Academia Summit at FBI Headquarters with university executives, science funding agencies (such as NIH and NSF), academia associations, and other government agencies in attendance.”580 To better understand the FBI’s engagement with the higher education community, the Subcommittee requested on two occasions to attend the annual Academia Summit. The FBI declined the Subcommittee’s requests, but offered to brief the Subcommittee after the summit.581 4. The FBI Continues to Lack a Coordinated National Outreach Program on the Threat from Talent Recruitment Plans The FBI has delivered mixed messages to the U.S. higher education community concerning how to respond to threats posed by foreign talent recruitment plans. More than a dozen U.S. universities and higher education advocacy groups told the Subcommittee that the Bureau’s outreach efforts were inconsistent and lacked specificity. The FBI is making progress towards a unified strategy, but still lacks a coordinated national outreach program to address these issues. The Subcommittee met with more than a dozen U.S. universities and higher education advocacy groups to discuss research security as well as the Bureau’s outreach efforts.582 The responses varied, but in nearly all cases, the U.S. higher institutions expressed the need to have more specific information about the threat that Chinese talent recruitment plans pose.583 This included specific requests for case examples or talent recruitment plan contracts that could provide more detail about the loss of intellectual capital and property or violations of federal grant terms and conditions.584 University officials also described the FBI’s outreach on Fed. Bureau of Investigation Email to the Subcommittee (Sept. 27, 2019). Id. 581 Fed. Bureau of Investigation Email to the Subcommittee (Sept. 30, 2019). 582 Briefing with the Subcommittee (Oct. 31, 2019); Briefing with the Subcommittee (Oct. 30, 2019); Briefing with the Subcommittee (Oct. 24, 2019); Briefing with the Subcommittee (Oct. 17, 2019); Briefing with the Subcommittee (Oct. 10, 2019); Briefing with the Subcommittee (Oct. 7, 2019); Briefing with the Subcommittee (Oct. 4, 2019; 11:00 A.M.); Briefing with the Subcommittee (Oct. 4, 2019; 12:00 P.M.); Briefing with the Subcommittee (Oct. 1, 2019); Briefing with the Subcommittee (Sept. 19, 2019); Briefing with the Subcommittee (July 17, 2019); Briefing with the Subcommittee (June 13, 2019); Briefing with the Subcommittee (May 18, 2019); Briefing with the Subcommittee (Apr. 24, 2019). 583 Id. 584 Id. 579 580 97 the threat that China poses as “haphazard” or a “mixed bag.”585 These criticisms were meant to be constructive as many U.S. universities officials also indicated that they maintained productive relationships with the local FBI field office.586 This included coordinating with the FBI on threats such as campus security.587 University officials’ criticism of FBI outreach on foreign talent recruitment plans is well-founded. For example, in one case, the FBI provided a university a list of suspected TTP members without explaining what next steps the university should take to protect itself.588 At least one university president wrote in a public opinion piece that he interpreted the FBI’s outreach as inappropriate direction to “spy” on “foreign-born students.”589 Several other universities felt compelled to issue public letters to their university communities to clarify that their communities remain “open to people from all over the world.”590 Despite OPS forming a team specifically to explain risks to the U.S. higher education community earlier this year, the FBI continues to lack a coordinated national outreach program on these issues. Prior to 2019, special agents needing information before briefing or interacting with higher education institutions in their area of responsibility would contact FBI headquarters to receive briefing Briefing with the Subcommittee (Oct. 30, 2019); Briefing with the Subcommittee (Oct. 4, 2019; 11:00 A.M.); Briefing with the Subcommittee (Oct. 31, 2019); Briefing with the Subcommittee (Oct. 7, 2019); Briefing with the Subcommittee (June 13, 2019). 586 Briefing with the Subcommittee (Oct. 7, 2019); Briefing with the Subcommittee (Oct. 4, 2019; 11:00 A.M.); Briefing with the Subcommittee (Oct. 4, 2019; 12:00 P.M.); Briefing with the Subcommittee (Oct. 1, 2019); Briefing with the Subcommittee (Sept. 19, 2019); Briefing with the Subcommittee (July 17, 2019); Briefing with the Subcommittee (June 13, 2019); Briefing with the Subcommittee (May 18, 2019); Briefing with the Subcommittee (Apr. 24, 2019). 587 Id. 588 Briefing with the Subcommittee (June 13, 2019). 589 Lee C. Bollinger, No, I Won’t Start Spying on my Foreign-Born Students, WASH. POST (Aug. 20, 2019), https://www.washingtonpost.com/opinions/no-i-wont-start-spying-on-my-foreign-bornstudents/2019/08/29/01c80e84-c9b2-11e9-a1fe-ca46e8d573c0_story.html. 590 Carol Christ, Campus & Community: Reaffirming our Support for Berkeley’s International Community, U.C. BERKELEY (Feb. 21, 2019), https://news.berkeley.edu/2019/02/21/reaffirming-oursupport-for-berkeleys-international-community; Peter Salovey, Office of the President: Yale’s Steadfast Commitment to our International students and Scholars, YALE U. (May 23, 2019), https://president.yale.edu/yale-s-steadfast-commitment-our-international-students-and-scholars. L. Rafael Reif, Letter to the MIT community: Immigration is a Kind of Oxygen, MIT NEWS (June 25, 2019), http://news.mit.edu/2019/letter-community-immigration-is-oxygen-0625#.XROlF2_ 3H7A.twitter; Patrick Gallagher, Office of the Chancellor: In Support of Global Education, U. OF PITT. (2019), https://www.chancellor.pitt.edu/spotlight/support-global-education; Farnam Jahanian, Leadership: The Importance of Being an Open, Global and Secure Research University, CARNEGIE MELLON U. (Aug. 15, 2019), https://www.cmu.edu/leadership/president/campus-comms/2019/2019-0815.html; Ronald J. Daniels, Sunil Kumar & Paul B. Rothman, Office of the President: Supporting our international scholars and students, JOHNS HOPKINS U. (July 9, 2019), https://president.jhu.edu/ meet-president-daniels/speeches-articles-and-media/supporting-our-international-scholars-andstudents. 585 98 information or talking points on a case-by-case basis.591 The FBI maintained presentation materials on the broader risks associated with Chinese economic espionage, but not specifically talent recruitment plans.592 In January 2019, OPS created a publicly available document titled “China: The Risk to Academia” to increase the information sharing by FBI special agents meeting with higher education institutions.593 OPS and FBI counterintelligence are currently working on a standard PowerPoint presentation concerning China’s economic espionage efforts, including talent recruitment plans, to better coordinate messaging across its 56 field offices.594 Fed. Bureau of Investigation with the Subcommittee (Oct. 31, 2019). Id. 593 Id. 594 Id. 591 592 99 G. THE OFFICE OF SCIENCE AND TECHNOLOGY POLICY The White House Office of Science and Technology Policy (“OSTP”), established in 1976 in the Executive Office of the President, advises “the President of scientific and technological considerations involved in areas of national concern” and serves “as a source of scientific, engineering, and technological analysis and judgement for the President with respect to major policy, plans, and programs of the Federal Government.”595 OSTP also facilitates and directs interagency science and technology efforts, policy coordination, and safety coordination.596 Currently, OSTP is in the midst of a policy review to take a coordinated approach to adopt best practices across the federal government to mitigate foreign exploitation of “the U.S. open innovation system.”597 This review is to develop a “longer-term strategy for balancing engagement and risk without stifling innovation.”598 The U.S. government’s vast and varied array of grant-making agencies complicates this policy review. As of today, federal agencies are providing the academic community with varied messages on the appropriate response to foreign exploitation. 1. The National Science and Technology Council OSTP’s National Science and Technology Council (“NSTC”) seeks to “coordinate the science and technology policy-making process.”599 NSTC is chaired by the President, and “upon his direction, the Assistant to the President for Science and Technology may convene meetings of the council.”600 Additionally, NSTC may utilize “established or ad hoc committees, task forces, or interagency groups.”601 The NSTC is comprised of “the Vice President, Cabinet Secretaries and Agency Heads with significant science and technology responsibilities, and other White House officials.”602 NSTC manages six primary committees: (1) Science and Technology (S&T) Enterprise; (2) Environment; (3) Homeland and National Security; (4) Science; (5) STEM Education; and (6) Technology.603 In addition, NSTC operates two special committees: the Joint Committee on the Research National Science and Technology Policy, Organization, and Priorities Act of 1976, Pub. L. No. 94282, Title II, §§ 205–06, 90 Stat. 464 (1976) (codified as amended in scattered sections of 42 U.S.C.). 596 Office of Science and Technology Policy, WHITE HOUSE, www.whitehouse.gov/ostp/. 597 Off. of Sci. and Tech. Pol’y briefing with the Subcommittee (July 29, 2019). 598 Id. 599 Exec. Order No. 12,881, 58 Fed. Reg. 62,491 (Nov. 26, 1993). 600 Id. 601 Id. 602 Office of Science and Technology Policy: NSTC, WHITE HOUSE, https://www.whitehouse.gov/ostp/ nstc/. 603 Id. 595 100 Environment and the Select Committee on Artificial Intelligence.604 Each committee oversees various subcommittees and working groups.605 2. Joint Committee on the Research Environment In May 2019, NSTC launched the Joint Committee on the Research Environment (“JCORE”) to “coordinate interagency work related to improving the safety, integrity, and productivity of research settings.”606 JCORE is co-chaired by representatives from OSTP, the NSF, the NIH, the Department of Energy, and the National Institute of Standards and Technology.607 JCORE aims to take an integrative approach to improve “the collective safety, integrity, productivity, and security of [the] nation’s multi-sector research environment.”608 To further these efforts, JCORE maintains four subcommittees in the following areas: (1) Coordinating Administrative Requirements for Research; (2) Rigor & Integrity; (3) Research Security; and (4) Safe and Inclusive Research Environments.609 Each subcommittee is comprised of approximately two dozen leaders across numerous federal science, foreign affairs, and security agencies.610 First, the Subcommittee on Coordinating Administrative Requirements for Research (“CARR”) works to fulfill statutory requirements and the needs of the research community.611 CARR’s aim is to create significant reductions in administrative work and costs in the research community612 and is working to simplify grant application requirements.613 CARR also has planned initiatives to consult with the research community when developing next steps and share Research Business Model efforts with the research community.614 Id. Id. 606 Id. 607 Id. 608 NAT’L SCI. & TECH. COUNCIL, JOINT COMMITTEE ON THE RES. ENV’T, SUMMARY OF THE 2019 WHITE HOUSE SUMMIT OF THE JOINT COMMITTEE ON THE RESEARCH ENVIRONMENT (JCORE) (2019), https://www.aau.edu/sites/default/files/AAU-Files/Key-Issues/Science-Security/Summary-of-JCORESummit-November-2019.pdf. 609 See Office of Science and Technology Policy: NSTC, WHITE HOUSE, https://www.whitehouse.gov/ ostp/nstc/. 610 Letter from Kelvin Droegemeier, Director, Exec. Off. of the President, Off. of Sci. and Tech. Pol’y, to the United States Res. Community (Sept. 16, 2019), https://www.whitehouse.gov/wpcontent/uploads/2019/09/OSTP-letter-to-the-US-research-community-september-2019.pdf. 611 Off. of Sci. and Tech. Pol’y briefing with the Subcommittee (July 29, 2019). 612 WHITE HOUSE: OFF. OF SCI. AND TECH. POL’Y, UPDATE FROM THE NATIONAL SCIENCE AND TECHNOLOGY COUNCIL JOINT COMMITTEE ON RESEARCH ENVIRONMENTS (July 9, 2019), https://www.whitehouse.gov/wp-content/uploads/2019/07/Update-from-the-NSTC-Joint-Committeeon-Research-Environments-July-2019.pdf. 613 Off. of Sci. and Tech. Pol’y briefing with the Subcommittee (July 29, 2019). 614 WHITE HOUSE: OFF. OF SCI. AND TECH. POL’Y, UPDATE FROM THE NATIONAL SCIENCE AND TECHNOLOGY COUNCIL JOINT COMMITTEE ON RESEARCH ENVIRONMENTS, 3 (July 9, 2019), 604 605 101 Second, the Subcommittee on Rigor and Integrity of Research (“Rigor and Integrity”) “seeks to address concerns over institutional incentives and systemic practices that undermine rigor and integrity.”615 Rigor and Integrity has identified areas across federal agencies to promote baseline policies and hopes to work with stakeholders in the research community to disseminate the recommendations and best practices.616 Rigor and Integrity will identify policies, practices, and incentives that do not reward rigor, and create best practices and trainings to address the issues.617 Rigor and Integrity hopes to maximize federally funded Research and Development investments.618 Third, the Subcommittee on Research Security (“Research Security”) aims to “protect America’s researchers from undue foreign influence without compromising our values or our ability to maintain the openness and integrity of our innovation ecosystem.”619 In other words, Research Security seeks to balance the need for open research environments while at the same time protecting national assets. During a recent congressional hearing, the director of OSTP noted the benefit of collaborative and open research but emphasized the risks faced in the absence of protocols.620 Additionally, he stressed that the subcommittee’s goal is to generate best practices that do not place cumbersome burdens on institutions, but rather establish effective and efficient standards.621 Research Security also collaborates with private and public partners on four key areas:    Coordinating outreach and engagement with research partners to help understand and demonstrate the challenges; Establishing and coordinating disclosure requirements for participation in the federally funded research enterprise; Developing best practices for academic research institutions; and https://www.whitehouse.gov/wp-content/uploads/2019/07/Update-from-the-NSTC-Joint-Committeeon-Research-Environments-July-2019.pdf. 615 Id. 616 Id. at 3. 617 Off. of Sci. and Tech. Pol’y briefing with the Subcommittee (July 29, 2019). 618 Id. 619 WHITE HOUSE: OFF. OF SCI. AND TECH. POL’Y, UPDATE FROM THE NATIONAL SCIENCE AND TECHNOLOGY COUNCIL JOINT COMMITTEE ON RESEARCH ENVIRONMENTS, 3 (July 9, 2019), https://www.whitehouse.gov/wp-content/uploads/2019/07/Update-from-the-NSTC-Joint-Committeeon-Research-Environments-July-2019.pdf. 620 Budget and Oversight: Hearing on White House Office of Science and Technology Policy Before the Subcomm. on House Subcomm. on Commerce, Justice, Sci., and Related Agencies of the H. Comm. On Appropriations, 116th Cong. (July 24, 2019) (testimony of Kelvin Droegemeier, Director, White House Office of Science and Technology Policy). 621 Id. 102  Developing methods for identification, assessment, and management of risk.622 Research Security expects to provide best practices to funding agencies and academia on topics like conflicts of interest, vetting responsibilities, and enforcement mechanisms.623 Additionally, Research Security is working with federal grant-making agencies to standardize grant terms, conditions, forms, and language—a process OSTP plans to complete by early 2020.624 Fourth, the Subcommittee on Safe and Inclusive Research Environments (“Safe and Inclusive”) “is the primary coordinating body for Federal agencies to share practices, challenges, and activities to combat harassment of all types in the research environment.”625 Safe and Inclusive will focus on polices which help to recruit and retain diverse researchers.626 3. Inconsistent Federal Grant Policies and Outreach Efforts Complicate OSTP’s Ability to Respond to Foreign Talent Recruitment Plans While JCORE’s goal is to make federal grant proposals as harmonized and standardized as possible, federal grant-making agencies’ policies and processes currently differ in several key ways.627 These differences complicate the grant process for applicants, stifle U.S. law enforcement’s ability to investigate grant crimes, and frustrate the federal government’s ability comprehensively understand grant spending. One key problem is different disclosure requirements concerning foreign support across the government. For example, current NSF conflict of interest and conflict of commitment reporting does not require investigators to disclose in-kind support or any activities outside a principal investigator’s institutional Letter from Kelvin Droegemeier, Director, Exec. Off. of the President, Off. of Sci. and Tech. Pol’y, to the United States Res. Community (Sept. 16, 2019), https://www.whitehouse.gov/wpcontent/uploads/2019/09/OSTP-letter-to-the-US-research-community-september-2019.pdf. 623 Id. 624 Id. 625 WHITE HOUSE: OFF. OF SCI. AND TECH. POL’Y, UPDATE FROM THE NATIONAL SCIENCE AND TECHNOLOGY COUNCIL JOINT COMMITTEE ON RESEARCH ENVIRONMENTS, 3 (July 9, 2019), https://www.whitehouse.gov/wp-content/uploads/2019/07/Update-from-the-NSTC-Joint-Committeeon-Research-Environments-July-2019.pdf. 626 Id. 627 See Budget and Oversight: Hearing on White House Office of Science and Technology Policy Before the Subcomm. on House Subcomm. on Commerce, Justice, Sci., and Related Agencies of the H. Comm. On Appropriations, 116th Cong. (July 24, 2019) (testimony of Kelvin Droegemeier, Director, White House Office of Science and Technology Policy). 622 103 appointment.628 On the other hand, NIH “requires reporting of all sources of research support, financial interests, and affiliations.”629 Another policy difference concerns the permissibility of participation in foreign talent recruitment programs. The new Energy policy restricts participation in talent recruitment programs by all Energy employees and Energy contractor employees.630 NSF’s policy makes it clear that NSF personnel detailed to NSF cannot participate in foreign government talent recruitment programs, but the policy does not extend to principal investigators.631 And NIH does not have a policy specifically concerning foreign government talent recruitment programs at all.632 U.S. university officials told the Subcommittee that they have received letters from federal grant-making agencies detailing new obligations regarding talent recruitment plans, but the agencies all have their own approach, and there is a lack of coordination.633 One U.S. higher education organization told the Subcommittee “the messaging from federal agencies that foreign talent programs are a concern is consistent, but federal agency efforts are dissimilar.”634 Other university officials told the Subcommittee that their institution “is not sure what to do with the information on Chinese foreign talent programs provided” by the FBI.635 Another U.S. school told the Subcommittee that there is concern in the academic community “that an entire group [Chinese-Americans and Chinese students and faculty] is being painted with a broad brush” and is “under attack.”636 OSTP acknowledged there has not been a clear message on university administrative responsibilities, noting that JCORE plans to coordinate outreach and engagement with federal agencies, academic research institutions, companies, non-governmental organizations, researchers, and students.637 JCORE also will focus on best practices to combat harassment of all types in the research See NAT’L SCI. FOUND., NSF-20-1, PROPOSED CHANGES TO THE PROPOSAL AND AWARD POLICIES AND PROCEDURES GUIDE, II-23 (May 29, 2019). 629 HHS IG REPORT: FCOIS (Sept. 2019). 630 See U.S. DEP’T OF ENERGY, DOE O 486.1, FOREIGN GOV’T TALENT RECRUITMENT PROGRAMS (June. 7, 2019), https://www.directives.doe.gov/directives-documents/400-series/0486-1-order/@@images/file. 631 See NAT’L SCI. FOUND., PERSONNEL POLICY ON FOREIGN GOVERNMENT TALENT RECRUITMENT PROGRAMS (July 11, 2019), https://www.nsf.gov/bfa/dias/policy/researchprotection/ PersonnelPolicyForeignGovTalentRecruitment%20Programs07_11_2019.pdf. 632 Nat’l Inst. of Health briefing with the Subcommittee (Oct. 3, 2019). 633 Briefing with the Subcommittee (Oct. 7, 2019); Briefing with the Subcommittee (Oct. 4, 2019; 11:00 A.M.); Briefing with the Subcommittee (Oct. 4, 2019; 12:00 P.M.); Briefing with the Subcommittee (Oct. 1, 2019); Briefing with the Subcommittee (Sept. 19, 2019); Briefing with the Subcommittee (Sept. 17, 2019); Briefing with the Subcommittee (July 17, 2019); Briefing with the Subcommittee (June 13, 2019); Briefing with the Subcommittee (May 18, 2019); Briefing with the Subcommittee (Apr. 24, 2019). 634 Briefing with the Subcommittee (Sept. 19, 2019). 635 Briefing with the Subcommittee (Sept. 17, 2019). 636 Briefing with the Subcommittee (Sept. 19, 2019). 637 Off. of Sci. and Tech. Pol’y briefing with the Subcommittee (July 29, 2019). 628 104 environment and support recruiting and retaining diverse researchers.638 During the next few months, OSTP announced it will be “holding meetings at academic institutions across the Nation to converse with researchers and students on matters of research security and other topics within JCORE.”639 Id. Letter from Kelvin Droegemeier, Director, Exec. Off. of the President, Off. of Sci. and Tech. Pol’y, to the United States Res. Community (Sept. 16, 2019), https://www.whitehouse.gov/wp-content/ uploads/2019/09/OSTP-letter-to-the-US-research-community-september-2019.pdf. 638 639 105