[Senate Hearing 115-126]
[From the U.S. Government Publishing Office]




                                                        S. Hrg. 115-126

 
   EXAMINING THE COMMITTEE ON FOREIGN INVESTMENT IN THE UNITED STATES

=======================================================================

                                HEARING

                               before the

                              COMMITTEE ON
                   BANKING,HOUSING,AND URBAN AFFAIRS
                          UNITED STATES SENATE

                     ONE HUNDRED FIFTEENTH CONGRESS

                             FIRST SESSION

                                   ON

EXAMINING THE ROLE OF THE COMMITTEE ON FOREIGN INVESTMENT IN THE UNITED 
                                 STATES

                               __________

                           SEPTEMBER 14, 2017

                               __________

  Printed for the use of the Committee on Banking, Housing, and Urban Affairs
  
  
  
  
  
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            COMMITTEE ON BANKING, HOUSING, AND URBAN AFFAIRS

                      MIKE CRAPO, Idaho, Chairman

RICHARD C. SHELBY, Alabama           SHERROD BROWN, Ohio
BOB CORKER, Tennessee                JACK REED, Rhode Island
PATRICK J. TOOMEY, Pennsylvania      ROBERT MENENDEZ, New Jersey
DEAN HELLER, Nevada                  JON TESTER, Montana
TIM SCOTT, South Carolina            MARK R. WARNER, Virginia
BEN SASSE, Nebraska                  ELIZABETH WARREN, Massachusetts
TOM COTTON, Arkansas                 HEIDI HEITKAMP, North Dakota
MIKE ROUNDS, South Dakota            JOE DONNELLY, Indiana
DAVID PERDUE, Georgia                BRIAN SCHATZ, Hawaii
THOM TILLIS, North Carolina          CHRIS VAN HOLLEN, Maryland
JOHN KENNEDY, Louisiana              CATHERINE CORTEZ MASTO, Nevada

                     Gregg Richard, Staff Director

                 Mark Powden, Democratic Staff Director

                      Elad Roisman, Chief Counsel

        John O'Hara, Chief Counsel for National Security Policy

              Kristine Johnson, Professional Staff Member

                 Elisha Tuku, Democratic Chief Counsel

            Laura Swanson, Democratic Deputy Staff Director

                       Dawn Ratliff, Chief Clerk

                      Cameron Ricker, Deputy Clerk

                     James Guiliano, Hearing Clerk

                      Shelvin Simmons, IT Director

                          Jim Crowell, Editor

                                  (ii)
                                  
                                  
                                  
                                  
                                  


                            C O N T E N T S

                              ----------                              

                      THURSDAY, SEPTEMBER 14, 2017

                                                                   Page

Opening statement of Chairman Crapo..............................     1

Opening statements, comments, or prepared statements of:
    Senator Brown................................................     2

                               WITNESSES

Clay Lowery, Managing Director, Rock Creek Global Advisors, and 
  Former Assistant Secretary for International Affairs, 
  Department of the Treasury.....................................     4
    Prepared statement...........................................    29
    Responses to written questions of:
        Senator Brown............................................    38
        Senator Menendez.........................................    39
Kevin J. Wolf, Partner, Akin Gump Strauss Hauer & Feld LLP, and 
  Former Assistant Secretary for Export Administration, 
  Department of Commerce.........................................     6
    Prepared statement...........................................    32
    Responses to written questions of:
        Senator Brown............................................    40
        Senator Menendez.........................................    43
James A. Lewis, Senior Vice President, Center for Strategic and 
  International Studies..........................................     8
    Prepared statement...........................................    34
    Responses to written questions of:
        Senator Brown............................................    45
        Senator Menendez.........................................    46

              Additional Material Supplied for the Record

Statement submitted by the Rail Security Alliance................    47
Letter submitted to the Trump administration on Chinese Equity 
  Caps Financial Services Sector.................................    54
China's Technology Transfer Strategy.............................    57

                                 (iii)


   EXAMINING THE COMMITTEE ON FOREIGN INVESTMENT IN THE UNITED STATES

                              ----------                              


                      THURSDAY, SEPTEMBER 14, 2017

                                       U.S. Senate,
          Committee on Banking, Housing, and Urban Affairs,
                                                    Washington, DC.
    The Committee met at 10:02 a.m., in room SD-538, Dirksen 
Senate Office Building, Hon. Mike Crapo, Chairman of the 
Committee, presiding.

            OPENING STATEMENT OF CHAIRMAN MIKE CRAPO

    Chairman Crapo. This hearing will come to order.
    This morning, the Committee will receive testimony on the 
role of the Committee on Foreign Investment in the United 
States, or CFIUS, as it is known in the trade.
    The role of CFIUS is to review certain types of foreign 
investment transactions to determine if there is: a threat to 
impair U.S. national security; a foreign investor present which 
is controlled by a foreign Government, like a State-owned 
enterprise; or something that can affect homeland security or 
result in control of any critical infrastructure that might 
impair our national security.
    Yesterday's rejection of the acquisition of Lattice 
Semiconductor by a Chinese consortium with a U.S. presence 
provides a good example of that role.
    According to press reports, the CFIUS review of the deal 
revealed that Lattice had valuable intellectual property that, 
if somehow transferred, would impair U.S. national security.
    The purchaser was a Chinese consortium with strong ties to 
the Chinese Government and its space program. Additionally, the 
importance of the semiconductor supply chain integrity to 
homeland security and the use of Lattice's products by the U.S. 
Government was something that could further impair national 
security.
    The Lattice case sounds like it should be considered 
textbook CFIUS, and it is reassuring that the President made 
this decision based on the careful due diligence of the various 
Government entities that comprise CFIUS.
    Nonetheless, there are some congressional and 
Administration concerns over a broad-based set of potential 
risks arising from China's steadily increasing use of foreign 
direct investment, or FDI, to acquire companies and their 
sensitive technology in the United States.
    We need to have a general discussion of whether or not the 
CFIUS process is functioning appropriately, to the extent that 
it has sufficient authority to look at the transactions that 
are affected most by today's evolving national security 
considerations.
    I look forward to hearing from the witnesses to what extent 
this concern is based on China's 2025 strategy and if there are 
any specific instances where this strategy has threatened to 
impair U.S. national security.
    In that regard, I will be looking for the witnesses to 
identify and articulate the potential national security 
considerations at issue and their relevance to any attempt to 
address them through reform of CFIUS legislative or regulatory 
authorities.
    If CFIUS is not looking at or is somehow missing 
transactions worthy of its national security review, I would 
also be interested in learning how many and what types of cases 
it is missing beyond the 250 or so CFIUS filings this year and 
what human financial resources would be necessary to review 
such new cases.
    We should also discuss whether CFIUS is even the right 
agency to reform in order to address various complaints 
associated with China's investment strategies today.
    The magnitude of any problem with CFIUS is defined by the 
intersection of U.S. national security with huge inflows of 
foreign capital supported by a world-renowned U.S. open 
investment policy.
    The United States--with $7 trillion in total outward FDI 
and $6.5 trillion in inward FDI--is the world's number one 
investor overseas and the world's number one recipient of 
foreign investment.
    FDI plays an essential role in increasing U.S. economic 
growth, creating highly compensated jobs, and spurring 
innovation and promoting exports.
    Generally, it is in the national interest of the United 
States to sustain an open investment policy. The 
administrations of Presidents Reagan, Bush, Clinton, Bush 
again, and Obama have all reaffirmed the open investment policy 
of the United States. Likewise, Congress is a firm believer, on 
a bipartisan basis, in an open investment policy.
    But with this unique position that the United States enjoys 
in the world comes a responsibility to assure that the national 
security of the United States is maintained against investments 
that may seek to undermine it.
    CFIUS plays a critical role and it is important to have a 
Senate-confirmed individual to set policy and work with 
Congress. The Senate needs to quickly confirm Heath Tarbert as 
the Assistant Secretary of the Treasury for International 
Markets and Development.
    Mr. Tarbert, who was voice-voted out of the Banking 
Committee in May, is the President's key person to oversee 
national security policy at CFIUS and also maintain a healthy, 
robust investment environment for the United States.
    Senator Brown.

           OPENING STATEMENT OF SENATOR SHERROD BROWN

    Senator Brown. Thank you, Mr. Chairman, and I appreciate 
your comments always, and this panel will be very helpful to 
us. Thank you.
    As you know, Mr. Chairman, I supported, as almost every 
Member of this Committee did, Mr. Tarbert out of the Committee. 
I hope, too, he can be confirmed quickly. I do want to remind 
my colleagues, especially Senators like Senator Perdue and 
Senator Schatz, who are newer to this Committee, that so far 
this year the full Senate has already confirmed 11 times the 
number of nominees from the Banking Committee as this Committee 
confirmed in the last Congress. So we have confirmed 11 times 
the number of nominees from this President than this Committee 
did last session. Senator Tester remembers that well. Senator 
Crapo remembers that. So just a note to make.
    Mr. Chairman, as is evidenced by the Committee's focus on 
Russia, Iran, and North Korea sanctions already this year, 
national security issues are more important than ever.
    It makes sense that we should take a look at other national 
security issues in this Committee's jurisdiction, like CFIUS.
    CFIUS is charged with reviewing certain foreign 
acquisitions of U.S. companies that potentially pose national 
security threats. It has been a decade since we have had a 
hearing, so I am particularly grateful to Chairman Crapo on 
this topic.
    The U.S. continues to be one of the most attractive markets 
for foreign investment. We know that. Our country welcomes 
investment when it is part of a straightforward business deal. 
When they are done right, these deals can create jobs; they can 
grow American industries.
    But we know it is not always that simple. Some transactions 
have national security as well as commercial implications. 
CFIUS has seen an increase in its reviews of Chinese 
acquisitions of U.S. companies. In the three most recent 
reported years, CFIUS reviews of Chinese acquisitions topped 
the list every single time.
    In 2016, Chinese companies invested a total of $51 billion 
into the U.S. through 65 deals, a 360-percent surge from 2015. 
This year, it is already clear that CFIUS's workload has 
increased--with acquisitions from China and other Nations.
    I have serious concerns about many of China's economic and 
industrial policies. That is not to say that every Chinese 
investment poses national security threats. Fuyao Glass 
invested in Moraine, Ohio, where there was once a GM plant. It 
is an example of a project which poses no such threat and is 
creating jobs.
    Some foreign investments pose national security threats, 
such as intellectual property theft and espionage from U.S. 
industries crucial to our Nation's defense, as well as threats 
to the intellectual property of seeds potentially impacting the 
global food supply, and transfers of critical technologies. We 
have seen an increase in smaller private investments to obtain 
access to new technological know-how.
    We do not know yet who perpetrated the hack of Equifax--
exposing the personal information of 143 million Americans, 
essentially half our population. It could be domestic, it could 
be foreign criminals. But we do know that some foreign 
Governments and companies have tried to gain access to 
sensitive information about Americans and pose other 
cybersecurity concerns. That has to be considered as well. I 
will not even go into all the discussion about the Russians 
last year. These are the types of threats we hear about from 
the national security agencies and others.
    Today we have three people before the Committee who have 
extensive experience with CFIUS, with export controls, and with 
the other tools our Government uses to address national 
security threats. I look forward to their assessment how CFIUS 
is working, if its scope is appropriate--considering shifting 
national security threats--and if it has enough resources to 
review an increasing number of transactions and thoroughly 
investigate possible national security threats.
    I would like the witnesses' opinions on the national 
security risks that I highlighted earlier, whether they believe 
it is, in fact, CFIUS's responsibility to try to address these 
risks, or if there are programs at the other national security 
agencies--DOD, Commerce, State, and others--that are better 
able to do that.
    I do not think that CFIUS reform is the answer to 
addressing all of those national security risks, whether from 
China or elsewhere. But I am open to considering improvements 
to CFIUS if we believe there are resource concerns or gaps that 
are allowing certain investments that pose real threats to 
Americans to fall through the net, if you will.
    Any solution is likely to be multifaceted, involving trade, 
economic, and defense policies, export controls, some of that 
in this Committee's jurisdiction, some of it outside.
    Thank you, Mr. Chairman.
    Chairman Crapo. Thank you, Senator Brown.
    And we will now turn to our panel for their testimony. We 
will hear from two former CFIUS officials: first, Mr. Clay 
Lowery from the Treasury Department, and then Mr. Kevin Wolf 
from the export control side of the Commerce Department. We 
will then turn to Mr. Lewis, who has long studied technology 
issues in the context of the CFIUS process at the Center for 
Strategic and International Studies, which published its 2-year 
review of the CFIUS process last December.
    I remind our witnesses that we would like you to keep your 
oral comments to 5 minutes so we have plenty of time for 
questioning from the Senators, and your full written statements 
are already made a part of the record.
    With that, Mr. Lowery, please begin.

STATEMENT OF CLAY LOWERY, MANAGING DIRECTOR, ROCK CREEK GLOBAL 
  ADVISORS, AND FORMER ASSISTANT SECRETARY FOR INTERNATIONAL 
              AFFAIRS, DEPARTMENT OF THE TREASURY

    Mr. Lowery. Thank you, Chairman Crapo, Ranking Member 
Brown, and Members of the Committee. Thank you for letting me 
testify today on examining CFIUS. In my testimony, I hope to 
briefly just touch on the nature of CFIUS and its processes, 
its performance over time, and some thoughts on CFIUS reform.
    The easiest way to understand CFIUS is to know its mandate: 
ensure national security while promoting foreign investment. 
That is actually what the legislative language says. So when we 
read news stories about CFIUS, as will be the case today 
because of President Trump's blocking of a transaction 
yesterday, we only hear about protecting national security. But 
that is only part of the objective of CFIUS. Promoting foreign 
investment is a part of our national security. It is core to 
our economic growth. It is core to our increasing productivity 
and for creating jobs. Thus, any reforms to CFIUS that are 
being considered should be thought about in that context.
    CFIUS is an interagency Committee, chaired by Treasury, 
that includes a variety of members, including Defense, Justice, 
Commerce, the Intelligence Committee. It investigates cross-
border mergers and acquisitions that could put our national 
security at risk.
    M&A parties file with CFIUS, and CFIUS determines whether 
the acquirer will gain control of a U.S. business. If control 
is determined, CFIUS does a three-part analysis:
    First, does the acquirer pose a national security threat?
    Second, does the asset that is being purchased make our 
national security more vulnerable?
    And, third, the consequences of permitting these threats 
and vulnerabilities to come together through this transaction, 
do they promote a specific risk to our national security?
    CFIUS investigates this question for about 30 days. If at 
the end of those 30 days CFIUS is not satisfied, they can go to 
a second stage of investigation, which is up to 45 days, an 
additional 45 days. If CFIUS is still not satisfied, it can 
take the case to the President, who is the only one, not CFIUS, 
that can actually prohibit an acquisition. In the past 30 
years, this has happened only four times, including yesterday.
    Why is it so rare that the President blocks transactions? 
The first reason is most of these transactions do not raise 
national security risks. The second is, if they do, CFIUS has 
the ability to mitigate those risks. And the third is that if 
the President makes a decision like he did yesterday, it 
becomes public and puts the corporate reputation at risk, and 
so sometimes if you know that it is going to be a negative 
discussion by the President, you will withdraw and abandon your 
transaction.
    In terms of mitigation agreements, these were put in place 
by Congress, and I view them as the pressure valve that enables 
CFIUS to find solutions to much more difficult transactions and 
to meet its mandate: welcoming foreign investment and 
protecting national security. Since Congress strengthened CFIUS 
10 years ago, it has performed in an exceptionally professional 
and thoughtful manner. Scrutiny of cases is thorough. CFIUS 
protects information as well as anyone in the U.S. Government. 
And they have preserved the reputation of the United States to 
being open to investment from around the world.
    That said, there is little question that the investment 
landscape has changed dramatically in 10 years. By far, the two 
most important changes have been the rise of China, as the 
Chairman said, and also the potential of new sensitive 
technology being transferred. Both Mr. Lewis and Mr. Wolf will 
elaborate on these issues.
    These developments suggest that a close, sober evaluation 
by Congress, the GAO, and the Administration are in order, and 
as with any analysis, it is best to think of the potential 
reforms in a cost-benefit analysis, including what are intended 
and unintended consequences.
    Beyond that, I would take three more steps.
    First, the CFIUS process, as Ranking Member Brown 
suggested, is currently under a lot of stress because of a 
significant increase in cases--many of them are complex--
without a commensurate increase in resources.
    Second, as Chairman Crapo mentioned, this Committee passed 
through in its bill back in 2007 a new Assistant Secretary for 
Treasury to oversee CFIUS. President Trump has nominated a 
highly qualified individual in Heath Tarbert. He was approved 
by this Committee with near unanimous support. He should be 
supported by the full Senate and let him get to work.
    And, third, we should adopt a set of guiding principles to 
make sure that any CFIUS reform both safeguards our national 
security and remains the destination--keeps the United States 
the destination of choice for investment.
    I have outlined a number of principles in my written 
testimony. I would just say three right now: minimize the 
opportunity for politicizing transactions; keep CFIUS narrowly 
focused on national security; and, third, increase the scrutiny 
of State-controlled cases.
    Thank you very much.
    Chairman Crapo. Thank you, Mr. Lowery.
    Mr. Wolf.

STATEMENT OF KEVIN J. WOLF, PARTNER, AKIN GUMP STRAUSS HAUER & 
      FELD LLP, AND FORMER ASSISTANT SECRETARY FOR EXPORT 
             ADMINISTRATION, DEPARTMENT OF COMMERCE

    Mr. Wolf. Thank you, Chairman Crapo, Ranking Member Brown, 
and other Members of the Committee. Thank you also for 
convening this hearing to discuss an important national 
security topic.
    I was last before this Committee in January of 2010 when 
you confirmed me as the Assistant Secretary of Commerce for 
Export Administration, which is a role I served in until 
January 20, 2017. And in that role, I worked with my colleagues 
primarily at the Departments of Defense and State in 
shepherding the U.S. export control system. And I was also a 
representative to CFIUS during that time.
    Although I am now with a law firm, I am not speaking on 
behalf of any particular change or on behalf of anyone else. 
The views I discuss today are my own.
    Mr. Lowery described well CFIUS and the background, so I 
will get straight to my main point, which is that the U.S. 
export control system and CFIUS complement each other. CFIUS 
has the authority to regulate the transfer of technology when 
there is a transaction, however you define ``transaction.'' The 
export control rules have the authority to regulate the 
transfer of technology regardless of whether there is a 
transaction. This means that if there are specific concerns 
about particular types of technology or information, whether 
general or specific, whether as part or as a result of a CFIUS 
review or from any other source, then the focus, I respectfully 
submit, on addressing that national security issue should be on 
the transfer of the technology to the destination in question.
    The U.S. export control system is perfectly suited for 
doing exactly that. Yes, I recognize it can be complex, but it 
is specifically designed to constantly evolve to new threats as 
they are identified, to change as a result of commercialization 
of technology and realizations about the effectiveness of other 
controls.
    Now, in general, the most effective export controls are 
those that are multilateral--those that our allies impose to 
the same degree to accomplish a common objective. Unilateral 
controls--controls that only one country imposes--tend to be 
counterproductive because they create incentives for companies 
to simply do the work outside the United States, thus outside 
of U.S. control.
    However, the temporary imposition of unilateral controls, 
when there is a specific threat or a new threat or an evolving 
threat identified, such as during a CFIUS review or in 
connection with some sort of acquisition, can be and is a very 
effective tool. And in the regulations administered by the 
Commerce Department's Bureau of Industry and Security, in 
coordination with the Departments of Defense and State, there 
is the ability to move quickly to respond to some of these 
threats, again, focusing on the technology itself to particular 
tailored destinations with or without any particular 
transaction, however you would define that.
    These tools also can work very closely in connection with 
law enforcement resources to identify situations when there is 
a front company in the United States. And we can get into more 
details on some of these tools as well as how they work with 
the multilateral regime process.
    So although I cannot get into specific cases, I can say 
that other types of national security issues created by foreign 
direct investment in my experience primarily were those 
involved with colocation issues, that is, acquisitions next to 
sensitive military facilities; those that create espionage 
risks; those that reduce the benefit of Defense Department 
technology investments; those that would reveal personal 
identifying information; those that create security of supply 
issues for the Defense Department and other parts of the U.S. 
Government; and those that create potential exposures for our 
infrastructure.
    And so, in general, the CFIUS authorities in my experience 
in the agencies were well suited and well equipped to deal with 
these, its dedicated public servants working very hard. And 
that last point is the key. As mentioned earlier, they are 
stressed. They need help. They need assistance. And this is 
important not only for national security, but for our economic 
security so that the United States is known as a place that 
welcomes direct investment and can review the safe harbor 
process quickly and efficiently.
    In my last couple of comments, it is focused on--when 
thinking about potential legislative change, my suggestion 
would be to first ask, What is there about the authority that 
cannot be addressed through changes in regulations or internal 
process, or if there is another area of law such as trade 
remedies or export controls that could be more suited to 
addressing the national security risks, or if the issue could 
be resolved through merely an increase in resources or change 
in resources in particular areas? If the answer is no to those 
questions, then that is the sweet spot for statutory change.
    Those who know me know I have a 3-minute and a 30-minute 
and a 3-hour version of every topic, so I will stop here and 
look forward to answering your questions.
    Chairman Crapo. Thank you, Mr. Wolf.
    Mr. Lewis.

STATEMENT OF JAMES A. LEWIS, SENIOR VICE PRESIDENT, CENTER FOR 
              STRATEGIC AND INTERNATIONAL STUDIES

    Mr. Lewis. Thank you, Mr. Chairman, and I thank the 
Committee for this opportunity to testify. You have heard about 
how important CFIUS is, so I will not belabor the point. But 
the Committee, while it has done well in the past few years, 
faces a growing volume of cases, increased complexity of 
transactions, and Chinese industrial policies that pose an 
increasing challenge.
    The U.S. created CFIUS in response to concerns that foreign 
competitors were acquiring strategic industries. CFIUS 
authorities were updated in 2007 in the Foreign Investment and 
National Security Act. That was 10 years ago. And it created 
new authorities for CFIUS and new timelines. FINSA is now 10 
years old and faces challenges created by a changed global 
environment.
    The most important of these comes from China, as you have 
noted. China seeks ways to circumvent CFIUS protections. 
China's goal is to end its dependence on foreign technology and 
to overtake the U.S.
    If China followed international practices in trade, its 
decisions to invest in domestic industries would be 
unobjectionable. But China has not hesitated to extract 
technology or concessions or to block competition to advance 
its own firms. China has a strategy to build a high-tech 
economy and is willing to spend heavily to acquire foreign 
companies and the know-how they possess.
    The fundamental issue for the U.S. is how to respond to a 
managed economy with a well-financed strategy to create 
domestic industries intended to displace foreign companies.
    China appears to be attempting to circumvent CFIUS and 
export controls. Some important ideas for CFIUS reform include 
expanding the scope of covered transactions, particularly in 
regard to what are called ``greenfield transactions,'' 
providing the Committee with extra flexibility for difficult 
cases by giving it the resources or support to better identify 
technology and business trends that create risk, finding ways 
to cooperate with foreign partners, and it is an indicator of 
how things have changed that now both Japan, Germany, and the 
European Union are adopting their own CFIUS-like processes. The 
Committee could use additional resources and information to 
make timely decisions.
    U.S. efforts to get China to follow global norms on trade 
are long overdue, but it will not work without a strategy to 
promote U.S. technology. Reports that the Trump administration 
will challenge China over trade practices are good news, but it 
needs to be part of a larger strategy that includes export 
controls and investment in R&D.
    It is important not to exaggerate China's strength. China 
faces immense problems, including its huge debt burden, 
pollution, and corruption, but it does have a strategy, as you 
noted, in China 2025 to displace the U.S. and building globally 
dominant high-tech industries. However, China's leaders are 
practical, and their behavior can be changed if the U.S. 
develops a coherent strategy in cooperation with key allies. 
CFIUS is not the only tool we can use in this, but it is the 
most important for dealing with foreign investment, and the 
Committee could use additional authorities and resources.
    I thank you for the opportunity to testify and look forward 
to your questions.
    Chairman Crapo. Thank you, Mr. Lewis, and I want to turn to 
you first with a couple of questions. In your testimony, you 
identify a number of concerns relating to China's industrial 
policy and transfers of U.S. technology. You also discuss how 
CFIUS may be improved to address some of the concerns while 
others may be better handled by export controls.
    In your opinion, what changes specific to CFIUS authority 
are necessary to effectively protect U.S. national security? 
And what changes to the export control regime do you find 
necessary to prevent unwanted transfers of technology and know-
how?
    Mr. Lewis. Thank you, Mr. Chairman. I think the most 
important issue for me remains the way that China has changed 
its investment policies to circumvent CFIUS, and the case that 
we all know the best is, of course, what we call ``greenfield 
investments,'' which is Chinese companies opening facilities or 
subsidiaries in the United States. Those are not always 
covered. The Department of Defense put a report out on this 
some months ago. It was unclear to me why it was classified 
since, when you go to Silicon Valley, it is sort of an open 
secret that Chinese firms are all over the place trying to 
acquire brains, technology, trying to get around export 
controls and CFIUS. So I think the most important thing to look 
at is what are we doing about the alternate methods China has 
found to acquire technology.
    Another good example might be Chinese companies, when they 
come to the U.S., do not face the same restrictions that 
American companies face when they attempt to do business in 
China. A word that the Chinese dislike is ``reciprocity,'' so I 
think looking at the ways they circumvent, looking at 
greenfield investments, looking for reciprocity in investments 
would be a good approach for CFIUS.
    For export controls, I recently had an unusual experience. 
I talked to one of the leading high-tech trade associations, 
and at the end of their briefing on their technologies, they 
said, ``And we would like to see export controls 
strengthened.'' I said, ``Wait a minute. You guys usually say 
the opposite. What is happening here?'' And they said in some 
ways the control lists we have, both at State and Commerce, 
have not kept up with developments in technology and need to be 
updated. So I think the biggest change here would be to once 
again take a step back and look at the munitions list, the 
Commerce control list, and say, How do they need to be updated 
to reflect the current technological environment? This would 
help CFIUS as well.
    Chairman Crapo. Thank you.
    Mr. Wolf, expanding on Mr. Lewis' response, would you 
please focus on any concern that transfers to China of 
foundational technologies present and what Congress and the 
Administration can do to address this?
    Mr. Wolf. Sure, absolutely. The principal focus is to 
aggressively and with will think creatively about how to 
describe either in a unilateral fashion or a multilateral 
fashion the types of technologies that warrant control to China 
or other countries for these national security reasons. And the 
reason I put my emphasis there is because one should not have 
to wait for a transaction to occur, whether it is a covered 
transaction in the traditional sense or whether it is a joint 
venture or some other sort of arrangement. If there is a way in 
which some sort of foundational technology, even if broadly 
described, is going to be put to an end use or an end user of 
concern, then I would suggest using the authorities that 
already exist in the very flexible export control regulations 
to identify those.
    Now, that is very hard. That is very hard to do in many 
situations because it may not be--one may not be able to 
clearly articulate it. But that difficulty, frankly, is a check 
on the system so that you do not inadvertently impose controls 
that are broader than necessary and you thus affect collateral 
controls.
    By simply adding broader scopes to CFIUS to catch one 
situation of one type of technology with respect to really only 
one or a few countries of concern, you can end up harming the 
image of the U.S. as a country open to foreign direct 
investment more generally. So the direct answer is creative, 
clever use and aggressive evolution of existing export control 
rules.
    Chairman Crapo. Thank you. And, Mr. Lowery, in your 
opinion, does CFIUS lack authority to review any category of 
transactions to fulfill its mandate? Or is it a resource 
question?
    Mr. Lowery. It is a good question. My own view is that 
there is a significant resource question that they are going to 
have to address. It is just becoming very difficult to look at 
all the different transactions that are coming in and doing it 
in an efficient and effective manner so that we are still open 
to investment.
    In terms of authorities, it depends. I mean, I think that 
Jim Lewis talked about CFIUS does not have the ability right 
now to look at greenfield investments. I am not sure that it 
should because I think that the idea of CFIUS is to protect 
national security with an investment that is buying actual U.S. 
businesses. But if you wanted to go after greenfield 
investments, it does not have that authority currently.
    Beyond that, it does have most of the authorities. That 
does not mean that you could not make the regulations stronger. 
It also does not mean that they could--some of the guidelines--
CFIUS puts out guidelines about how they think filing parties 
should be thinking about transactions. Those probably need to 
be updated. It has not been done in 10 years. And that could 
help make sure that we are capturing transactions that maybe we 
were not already capturing. But I think that in terms of the 
authority itself, it just depends on what you are trying to get 
after. One that Mr. Lewis said, it would need legislative 
authority to investigate greenfield investments.
    Chairman Crapo. Thank you.
    Senator Brown.
    Senator Brown. Thank you, Mr. Chairman.
    To begin with, I first want to apologize. I have, as a 
number of people on this Committee have, conflicts today. We 
are working on the farm bill in the Ag Committee. I need to go 
there. And we are working on tax reform in the Finance 
Committee, so I will not be sitting here as long as I normally 
do with the Chair. Usually, we both sit through these hearings 
for pretty much the whole time. I apologize for having to do 
that.
    Mr. Lowery and Mr. Wolf, I want to start with you. Earlier 
this year, I raised concerns about potential conflicts of 
interest in the CFIUS process posed by a number of 
Administration officials with international business interests. 
So far, two matters regarding the Administration officials have 
come to light. It was reported in March that China's Anbang 
Insurance Group, a company familiar with CFIUS reviews, as you 
know, had ended its bid to buy the President's son-in-law's 
Fifth Avenue property. Then in July, after Anthony Scaramucci 
was announced as the new White House Communications Director, 
it was revealed that his hedge fund--SkyBridge Capital I 
believe was its name--was in the process of being acquired by 
China's HNA Group, possibly for more than the company was worth 
and was also under CFIUS review.
    I am concerned, as I know all three of you are, and I think 
most of the country is, about the national security 
implications of foreign acquirers, but possibly and 
particularly if they have ties to foreign Governments trying to 
buy influence in this Administration. So I have a series of 
questions, and, Mr. Wolf, I will start with you, and I will ask 
the three, and then you can answer as a group, and then Mr. 
Lowery.
    Do you believe Treasury and other CFIUS member agencies 
have a good understanding of Administration officials' business 
interests and possible conflicts of interest? Is Treasury aware 
of the range of business interests and possible conflicts of 
interest? Could more be done to ensure that all those ties are 
disclosed? And, third, are processes in place for officials 
involved in CFIUS or the President himself to be recused if 
necessary? And I will start with you, Mr. Wolf.
    Mr. Wolf. Sure. On the first topic, Treasury as such, I do 
not recall ever asking those questions. The responsibility for 
compliance with conflict of interest rules are up to the 
individual, and they work closely with their counsel at their 
Department, and that was the primary driver.
    With respect to the second question, it could not possibly 
hurt for Treasury to collect that information and to ensure 
that the same level of conflict of interest review that is 
supposed to be done and was done with us in-house by our 
Department counsel is also provided to the Treasury Department 
as a double check on what should already be done internally 
within the Department.
    Senator Brown. And that is not being done, to your 
knowledge?
    Mr. Wolf. Again, the responsibility lies with the 
individual and compliance with law, and we received regular 
briefings from our ethics counsel within the Department of 
Commerce, not just with respect to CFIUS but all matters that 
we were involved in to ensure that we did not have conflicts of 
interest both with respect to the annual disclosure process and 
regular updates and ethics briefings that the attorneys would 
give to us.
    So, again, I do not know--I do not think that information 
is generally shared with the Treasury Department, but it should 
already exist within the Departments, and there could not be 
anything harmful in doing so because it is already existing 
information within the existing Department of the individual 
employee.
    Senator Brown. Mr. Lowery.
    Mr. Lowery. To my knowledge--I agree with Mr. Wolf. When I 
was working on this, I recall Secretary Paulson recusing 
himself on specific transactions, or there were others--he was 
not the only one--that sometimes it just happened to be 
something that they had been working on in their private sector 
career, and they saw a CFIUS transaction, and, you know, I 
would go down the hallway and say, ``Hey, we have a CFIUS 
transaction on this,'' and the next thing you know, he would 
call the General Counsel and say, ``I have to recuse myself.'' 
To my knowledge, that still goes on. I cannot obviously speak 
on the specific cases you mentioned, but I would assume that 
the individuals, as Mr. Wolf said, would basically say, ``I 
need to recuse myself. I have business interests here.'' And 
they have disclosed that to their in-house counsel so the in-
house counsel can also advise them on those issues.
    Senator Brown. And are you satisfied that the information 
from the Administration and from the President's family, that 
the information is available enough to you all--not to you all, 
but to the people in place now?
    Mr. Lowery. So CFIUS is a very--I mean, the people that 
work on CFIUS transactions, they are very protective of the 
information. So there are lots of people within the Government 
that do not have much to do with CFIUS, and they do not 
understand what is going on. There are two reasons for that. 
One is the classified information. Obviously, there is lots of 
classified information. There are national security issue at 
stake here. But the second reason is because of a little bit 
the issues you are getting at, but really it is proprietary 
information. These companies are filing. They are putting 
forward a lot of proprietary information. There are competitors 
on the outside that are sometimes very interested. And so you 
have to be very careful. That is why I think CFIUS over a 10-
year timeframe, over a variety of Administrations, has 
basically been very protective of information. People call it 
like a star chamber, and the reason they do that is because of 
how well they protect their information, frankly, better than a 
lot of other parts of our Government.
    Senator Brown. Did you want to add something, Mr. Wolf?
    Mr. Wolf. The issues you raise with respect to transparency 
of information regarding conflicts of interest of political 
officials and career employees is not unique to CFIUS because 
every day--so there is nothing unique about CFIUS that 
addresses your point, and the success in ferreting out any 
concerns lies in the existing procedures within each of the 
departments as opposed to something that is CFIUS qua CFIUS to 
address.
    Senator Brown. Did you want to add something?
    Mr. Lewis. I would simply echo your point, Senator, that 
most transactions are without risk to national security, and so 
it is important to bear that in mind when we think about the 
deals that are being looked at. We have seen movie theaters, 
hotels, all bought by the Chinese, and that does not pose any 
risk.
    Senator Brown. So while there might be conflicts of 
interest that might or might not disturb the American public, 
they are not necessarily national security concerns.
    Mr. Lewis. I think that would be correct.
    Senator Brown. OK. Thank you, Mr. Chairman.
    Chairman Crapo. Thank you.
    Senator Perdue.
    Senator Perdue. Thank you, Mr. Chairman. Thank you guys for 
being here today.
    Before I start my questions, I would like to make one 
comment for the Committee since it was brought up earlier. 
Senator Van Hollen, Senator Schatz, Senator Kennedy, Senator 
Rounds, and I are new Members of this Committee, but we are 
totally capable of understanding the full historical 
perspective around confirmation of this Congress. I certainly 
echo the comments that have been made this morning about 
nomination and confirmation of this Committee, but I would like 
to put into perspective that we are sitting in a period with 
the slowest confirmation process in the history of our country 
since George Washington put his first Cabinet together. I think 
it is outrageous that the last day before we left for August 
break we confirmed 65 nominations in 1 day because of a back-
room deal. Prior to that time, we had only nominated and 
confirmed--we had only confirmed 48.
    As we sit here today, this President has fewer than one-
third of the confirmations that the prior President had. So I 
would like the record to show that some of us do have a full 
perspective on where we sit today.
    Mr. Lewis, thank you for being here today. I lived in 
China--or I lived in Hong Kong, worked in China, lived in 
Singapore, and the thing that always bothers me, China over the 
last 10 years has a net outflow--an outflow of capital of about 
$3.8 trillion, an inflow of about $1 trillion, 1.3, and then a 
net--that is a net outflow of about $2.5 trillion. I cannot 
track it. I have a feeling you cannot either.
    In 2016, the Bureau of Economic Analysis estimated about 
$10.3 billion of Chinese investment in the U.S., and yet AEI 
and Heritage and others had it as high as 56. So that is a wide 
range of estimate. And the reason is when you get under it, BEA 
actually had Luxembourg as the top foreign investor in the U.S. 
and China was 11th.
    With the network of capital flows in the world, how in the 
world are we able to track the overall net inflows from 
particular players outside the U.S.?
    Mr. Lewis. That is a great question, and it is a very 
difficult problem. And as you noted, small Caribbean islands 
tend to come at the top of the list for foreign investment, not 
because they are wealthy but because they are vehicles for 
money laundering. Chinese capital is seeking to leave the 
country----
    Senator Perdue. And that is--I am sorry to interrupt. That 
is not just China. That is other people who have very nefarious 
intentions for the money, too, right?
    Mr. Lewis. Correct. But when you--that is true, and when 
you try to follow the funding for some Chinese acquisitions, it 
will lead you to some very strange places. So money laundering 
is a problem.
    There is a desire in China to move money out of the 
country, which may be kind of a vote of confidence. So we see a 
very large outflow into many, many sectors, most of which do 
not cause strategic concern. It is difficult to track, and that 
is one of the challenges for the Committee, is tracking the 
money back to its source to see if it is the Chinese State.
    Senator Perdue. Mr. Wolf, with regard to the specific China 
investments that are of concern, obviously one reason we have 
been dominant militarily is the size of our investment, but 
China is now approaching that. So the technological innovation 
that we have benefited from, from private sector and military 
and academic research has always kind of kept us at the 
forefront. One of the things I am concerned about is that 
China, not only in the United States, but their investment in 
infrastructure in Africa and other parts of the world, they are 
leading toward investments of next-generation technologies, and 
that is really concerning, things like artificial intelligence, 
autonomous vehicles, augmented reality, blockchain, robotics. 
They are recruiting actively kids that are graduating from our 
colleges, our PhDs, our Master's candidates, our scientists, 
our technicians, our engineers. And there is an immigration 
issue. I do not have time to get into that today with you guys, 
but what I would like to know is: How does CFIUS interact with 
the military, commerce players, and so forth to make sure we 
find the right balance of this foreign direct investment, 
which, as Mr. Lowery talks about, is very critical? When you 
have a $20 trillion debt, you better hope you can attract FDI. 
And we are the largest recipient of FDI in the world. Thank 
God. With the size of our economy, we need to keep that up. But 
there has to be a balance, and I am looking for some input as 
to things we need to be aware of as we consider this in any 
potential legislation.
    Mr. Wolf. Sure, happy to. With respect to the first topic 
that you asked Mr. Lewis about, the answer, frankly, is 
resources and aggressive use of intelligence resources to be 
able to do the deep digging and the deep dives into 
transactions. That was a critical part of every CFIUS case that 
we reviewed. It is what was behind the fund, what was behind 
the company, who were the parties behind it. And that is not 
always obvious. And that is just a pure function of manpower 
and attention and will to do the deep dive. And that is 
critical to the outcome.
    With respect to working with the military, the technical 
experts at the Defense Department were a critical part of the 
CFIUS and the export control process in terms of identifying 
the types of technology that were of concern.
    With respect to your concern about investment around the 
world, that is why working with our allies in the multilateral 
export control regimes is key, because the U.S. is not the only 
target for the very anxieties that you raised. And the existing 
export control system is precisely defined to do that.
    With respect to the topics at issue, it goes back to my 
main point. It requires the resources, the manpower, and the 
will to focus not just on technologies of yesterday or what is 
being used now, but creative thinking on all the topics that 
you just listed to see if there is a way in which to identify 
the sweet spot of that part of the technology that is of 
concern without otherwise trying to interfere or get in the way 
of commercial development.
    Senator Perdue. Thank you.
    Thank you, Mr. Chairman.
    Chairman Crapo. Senator Van Hollen.
    Senator Van Hollen. Thank you, Mr. Chairman. And I thank 
all of you for your testimony here this morning.
    I was recently on a bipartisan codel to China, Japan, and 
South Korea, really focused on the North Korea situation. But 
while we were in China, we heard from a number of American 
businesses complaining a lot about the lack of reciprocity 
generally, especially with respect to Chinese curbs that bar 
American financial companies access, and that has been 
referenced here this morning. And while I agree that CFIUS is 
not the tool we use to respond to reciprocity issues, I do 
think it is important that we continue to push China really 
hard on that front.
    Let me ask you, Mr. Lewis, you talked about how China--and, 
look, we all agree that, overall, foreign direct investment has 
benefited the United States, but we want to make sure that it 
does not hurt us in our strategic interests, especially 
national security. The question is how we may broaden that to 
look at some key national economic security issues.
    You mentioned China buying up small firms in the Silicon 
Valley area, and my question for all of you is: When you have 
one big purchase, you know, you may very clearly be able to 
decide this is going to have an impact on national security or 
not. But do we have the tools to look at sort of a pattern of a 
purchase and say, hey, this one in and of itself, this purchase 
may not trigger a national security problem. But China has the 
ability, you know, it is not like a bunch of free market 
companies that are out there purchasing. They have got a 
strategy, you know, driven by the Government. Do we have the 
capacity to say, OK, this one by itself may not be so bad but, 
you know, if you go down the line, one, two, three, four, then 
you are talking about a serious national security issue?
    Mr. Lewis. I will start. Thank you, Senator. That is a 
great question. One thing that has been touched on a couple 
times in all of our remarks so far and in the questions is the 
question of intelligence support for CFIUS. And to the extent 
this can be discussed in an open hearing, it would be 
beneficial if there were additional resources given to the 
National Intelligence Council.
    The U.S. relies on two sources of intelligence to track 
both money laundering and the kind of activities you are 
talking about: human intelligence, which faces grave problems 
in China, as you know; and signals intelligence, which also is 
pressed considerably by the Chinese. So we need to think of how 
to make resources and collection priorities evolve to reflect 
these kind of economic problems you have raised.
    We do not have the ability yet to adequately track these 
larger patterns, so CFIUS tends to be a transactional focus, 
and it would be beneficial if the NIC or some other body had 
the ability, the wherewithal to supply things on long-term 
trends in semiconductors, artificial intelligence, cloud 
computing, hypersonic strikes. There is a whole range of 
things, so, yes, better intelligence support, better tracking 
trends would be valuable.
    Senator Van Hollen. All right. I would be interested in any 
other comments, but also I would like to throw in there the 
greenfields issue. I take it from your testimony, Mr. Lewis, 
that you think we should expand the jurisdiction, the 
authorities here to include greenfields. Is that right?
    Mr. Lewis. Yes.
    Senator Van Hollen. And as the others answer that earlier 
question, if you could also respond to that issue.
    Mr. Wolf. Sure. The issue with respect to trends was very 
important to me when I was in the Government, and the first 
direct answer that is not really a CFIUS issue is just a 
straight up law enforcement effort. If there are a particular 
series of individual acquisitions that are all on their face 
benign but in the aggregate are used for an ulterior motive 
such as creating front companies in order to hide the ultimate 
objective, then using the existing domestic law enforcement 
tools of getting to that motive and pursuing intellectual 
property theft, espionage under existing statutes is absolutely 
critical. And that can be done without CFIUS.
    Within the CFIUS process, it is important that in the 
intelligence estimate that is provided with respect to an 
intelligence--or with respect to a particular case, an answer 
given as to whether this is an individual transaction or part 
of a trend or pattern, and that is absolutely something that we 
reviewed, and I would want to make sure that the authority 
exists to be able to block or deny or mitigate a case if the 
information exists that this is only one part of a whole.
    So your question and your concern about the trend is 
absolutely valid and something that we spent a significant 
amount of time looking into.
    Mr. Lowery. The only thing I was going to add is that the 
trend is something that CFIUS does look at. In fact, actually 
in their annual report to Congress, CFIUS actually does try to 
point out here is where a number of transactions have actually 
happened, and we are now concerned that a specific country--and 
it would be a classified report, so Congress could see it; I 
could not see it--is able--is going after a certain technology. 
So this is done with CFIUS, but it is usually--Treasury leads 
the effort, but really it is the intelligence community and the 
Commerce Department that does a lot of the heavy work, as well 
as the Treasury Department. So there is a way of trying to get 
at that through CFIUS, though I think Mr. Lewis makes a good 
point about there are other things that need to go beyond that.
    Senator Van Hollen. Thank you. I look forward to following 
up with all of you.
    Thank you, Mr. Chairman.
    Chairman Crapo. Thank you.
    Senator Rounds.
    Senator Rounds. Thank you, Mr. Chairman. This has been an 
interesting discussion, and it leads me back into another 
responsibility. We all have multiple committees up here. I 
serve on the Armed Services Committee, and as such, I also 
serve as Chair of the Subcommittee on Cybersecurity. One of my 
concerns about the increased foreign investment in the United 
States is what kind of electronic and cyber-vulnerabilities 
that increased foreign investment poses for our country. For 
example, there is already significant concern in Congress and 
the Administration that countries like China are acquiring 
intellectual property from American companies. I am concerned 
that foreign investment in our country would give potentially 
malicious actors a back door into the United States and leave 
us perhaps more vulnerable to IP theft or cyberattack.
    My question for you is: Can you discuss the nexus between 
cybersecurity and foreign direct investment? And is the CFIUS 
review process robust enough to account for vulnerabilities in 
this area? Or is it simply one part of a chain, and how does it 
fit into that chain with other investigations as well? Mr. 
Lewis.
    Mr. Lewis. Thank you, Senator. That is a major concern, so 
I am glad you raised it. Let me just talk about the potential 
risk to cybersecurity.
    You have supply chain risk, which is that the components or 
the software that goes into critical infrastructure defense 
products may be contaminated at the source, creating cyber-risk 
for the U.S., military risk. This is no longer a hypothetical 
concern, so there have been some incidents.
    You have a critical infrastructure risk that the CFIUS 
Committee has been good at blocking acquisitions of critical 
infrastructure or in mitigating potential risk. So when you 
think about, say, Alcatel-Lucent, the conditions that the 
Committee imposed were sufficient to mitigate the risk. And 
following up on these mitigation agreements is an important 
part--an important improvement I have seen in the last few 
years with CFIUS.
    You have real estate concerns. That always sounds funny, 
but we know about the potential of the wind farm to be next to 
a Navy research facility. You have to think about real estate 
now. Ten years ago, real estate was not on the CFIUS agenda.
    And, finally, a new one is data. The access to huge swaths 
of Americans' personal data by a foreign competitor could 
create intelligence risk.
    So I think there is a whole area where we need to think 
about how an acquisition will affect or increase the risk to 
cybersecurity.
    Senator Rounds. Any other thoughts, gentlemen?
    Mr. Wolf. Those are excellent points. Just to emphasize a 
significant number of the cases that we have reviewed over the 
years involved situations where the U.S. Government or its 
contractors or suppliers were consumers of critical 
infrastructure, telecommunications equipment, computers, et 
cetera. And to the extent that there was a possibility of 
foreign control over the content of the components or malicious 
software being installed surreptitiously, that was factored 
into our decision to either propose a block or aggressive 
mitigation, such as a requirement to spin off the U.S. side of 
the business for a certain number of years so that the U.S. 
Government, Defense and other departments, could find other 
alternative sources of supplies that were domestic. So that is 
a critical part of the CFIUS review.
    The other part of it, frankly, with or without an 
individual transaction, is the regular cybersecurity work that 
the Government and its contractors do in terms of knowing who 
their suppliers are of their components and what the source of 
the information is that they are receiving. And that is in 
addition and separate to CFIUS, and, again, unrelated to 
particular transactions. But it was one of the most 
significant, most discussed, most critical elements of the 
cases that we saw in the last several years. It is a key point.
    Mr. Lowery. The only thing I would add, just as Mr. Wolf 
and Mr. Lewis said, CFIUS has done this part extremely well, is 
my view. But some of the aspects go beyond CFIUS, and that is 
where there are other tools within the Government that we try 
to work on, but remember, CFIUS has on its Committee the 
Defense Department, Homeland Security, Justice Department, the 
intelligence services across the Government, which include the 
FBI, the CIA, the DIA, the Treasury Department's intelligence 
services. So all of these folks are working together to try to 
see whether or not there is an actual risk because of a 
purchase of a U.S. business.
    Senator Rounds. Do you find that the focus, which right now 
is on the entity itself that may very well want to make a 
purchase within the United States, is there adequate focus also 
on the product itself or the different products, whether it be 
data, whether it be a specific product that is vital within 
another part of the chain? Do we have the ability right now and 
are we focused enough on both--not just the entity itself but 
the different products that may very well be the issue of 
concern?
    Mr. Lowery. My view is that is what CFIUS is at least 
attempting to do the whole time, and I think that they have 
done pretty well. So they look at the threat, which is the 
entity that is purchasing. They look at the vulnerability, the 
product that they are actually purchasing. What is that asset? 
Does it have any nexus to national security or not? And then 
trying to figure out is it OK for those two things, the threat 
and the vulnerability, to come together? Or do you need to 
mitigate it or do you need to block it? That is what CFIUS is 
trying to do the whole time.
    Senator Rounds. Yes, sir?
    Mr. Lewis. Thank you. The two agencies that provide the 
support to CFIUS in this regard are both the intelligence 
community and DOD. So we really rely on them to be able to say 
when a particular technology or product creates cybersecurity 
risk or any other kind of risk.
    Senator Rounds. Thank you. My time has expired.
    Thank you, Mr. Chairman.
    Chairman Crapo. Thank you.
    Senator Warren.
    Senator Warren. Thank you, Mr. Chairman. And thank you to 
our witnesses for being here today.
    CFIUS, the Committee on Foreign Investment in the United 
States, is responsible for reviewing the acquisitions by 
foreign companies to ensure that they do not threaten U.S. 
national security. And, unfortunately, this applies only to 
certain transactions, and our adversaries know that.
    So according to news reports, an internal Pentagon report 
issued last year found that China was making significant 
targeted investments in cutting-edge American startups with 
expertise in areas like autonomous vehicles, artificial 
intelligence, robotics. These types of investments provide 
access to potentially sensitive technology, but they do not 
trigger CFIUS review.
    The Pentagon is worried--and I think they should be 
worried--about this. In June, Secretary Mattis told the Armed 
Services Committee he thought CFIUS ``needs to be updated to 
deal with today's situation.'' So I wanted to start by asking 
you, Mr. Wolf, are you concerned about the national security 
impacts of these early stage investments in sensitive 
technology?
    Mr. Wolf. Yes, I am, and that is why I would put a 
particular emphasis on identifying what the technologies of 
concern are, and in addition to the CFIUS authorities, making 
sure that they are adequately described within the existing 
export control system.
    Senator Warren. Actually, can you just say a bit more about 
what you would do by way of response? Can you expand on that a 
little bit?
    Mr. Wolf. Absolutely. So instead of waiting for a 
transaction to occur, however it is defined, whether it is a 
joint venture or a covered transaction or a greenfield 
investment, the Department of Defense, working with its 
colleagues in State, Energy, and Commerce, should identify the 
key sweet spot of those types of technologies that you 
described that are of national security concern and make sure 
that our existing export control rules govern them and, to the 
extent possible, work with our allies so that their regulations 
control the same types of technologies. That magnifies the 
benefit of the effort.
    Senator Warren. Actually, that is very helpful. You know, 
as you know, a lot of today's technologies look very different 
from what the world looked like back when we built CFIUS 
originally. And the defense technologies of tomorrow are going 
to look even more different. So we need an approach to it that 
keeps changing, iterating over time. And I think that means it 
is time to expand CFIUS's mandate.
    But before we do that, we are going to need to deal with 
the fact that CFIUS has serious staffing and resource problems 
already. In recent years the number of cases coming before the 
Committee has skyrocketed. Both current and former Government 
officials have argued that CFIUS must be strengthened, but so 
far the opposite seems to be happening. President Trump has 
failed to appoint certain key positions in the CFIUS process, 
including the Director of the Office of Science and Technology 
Policy, which is kind of important here. And the President's 
budget proposes significant cuts at some of the CFIUS agencies, 
including a 16-percent cut to the Commerce Department and a 32-
percent cut to the State Department.
    So could I ask, what impact do budget cuts have on the 
positions at non-DOD CFIUS agencies? What impact will this have 
on the work of the Committee?
    Mr. Wolf. It is potentially devastating. It is all a 
function of resources and manpower and attention spent to 
complex situations, complex technologies, and difficult 
transactions. And you need lots of people or you need more 
people than are there now in order to address all the issues 
that you identified.
    Senator Warren. Well, thank you. I think this is urgent. It 
is about national security. We do not want to wake up one day 
and discover that our adversaries have components of our 
national security technology because Congress and the 
Administration were asleep at the switch on this. We need to 
modernize this process, but we also need to make sure it is 
fully staffed.
    Mr. Wolf. I agree.
    Senator Warren. Thank you, Mr. Chairman.
    Chairman Crapo. Thank you.
    Senator Kennedy.
    Senator Kennedy. Thank you, Mr. Chairman.
    Tell me, gentlemen, what triggers CFIUS review?
    Mr. Lowery. So CFIUS is technically a voluntary process, so 
if you are in an M&A transaction and it is in the national 
security realm and that realm is not defined, but there are a 
number of factors in the law that suggest what those national 
security issues are. So M&A transactions are voluntarily filing 
transactions. That is how you trigger a review.
    It is important to note that if the Government or CFIUS 
sees that a transaction has not been filed, they do have the 
power to compel a filing, if need be.
    Senator Kennedy. What should trigger a review? How would 
you change it?
    Mr. Lowery. The only way I would change it--so I think that 
that actually is a good approach, because there are lots of 
transactions that happen--in fact, the bulk of the cross-border 
mergers and acquisitions that happen are in areas that have 
nothing to do with national security, and so we should not be 
doing national security reviews of them because we just waste 
resources by doing that.
    But I think that it should be explored at least. One idea 
is--so right now CFIUS does high, high scrutiny of State-owned 
companies when they make a purchase in the United States. I 
think that it might be worthwhile at least exploring the idea 
of should those filings be mandatory as opposed to voluntary. 
And then you could through the regulatory process try to narrow 
that scope down because there could be State-owned cases or 
State-controlled entities that buy something, again, that has 
nothing to do with national security. So I think that is worth 
something to explore. That is right now not in legislation, so 
you would have to change the legislation for that.
    Mr. Wolf. One additional idea would be with respect to 
acquisitions or any kind of an arrangement next to a sensitive 
facility. Right now, the colocation issue that I described only 
gets triggered if it is a covered transaction as defined in the 
legislation. And I do not have an exact answer for you, but to 
the extent that there is a joint venture or a greenfield 
investment or any other kind of investment near a facility, 
there should be a Federal way in which to limit the access, 
proximity next to a sensitive facility by a foreign entity.
    Mr. Lewis. And perhaps a final point is that Wall Street 
and the investment community knows in much greater detail the 
transactions that are underway or being contemplated, and 
particularly if it is a publicly traded transaction, we might 
have a publicly traded company, we will get some regulatory 
insight. But if it is not publicly traded, we may miss it. So 
finding ways to better take advantage of the knowledge on Wall 
Street and to look for private deals would be helpful.
    Senator Kennedy. Well, what if it is not a merger and 
acquisition? I think this is Senator Warren's point. Let us 
suppose you have a startup developing a pharmaceutical drug, 
and someone in China wants to put in $20 million for Phase I 
trials. Is that something we ought to look at?
    Mr. Wolf. Well, in general, that type of investment should 
be welcome, and we want to make sure that the U.S. remains 
welcoming to that. And the key goes back to the points that I 
was raising earlier, which is: Is there something about that 
investment that creates a national security issues or is it an 
economic issue better left to bilateral deals or trade remedies 
outside of CFIUS?
    So in that type of fact pattern, I would think about it, 
not waiting for a transaction, however you define it, whether 
covered or joint venture or just a flow of money, but 
identifying the information that is of concern and trying to 
address the information in any setting.
    Senator Kennedy. But how do you know? Let us suppose the 
pharmaceutical drug is a vaccine for HIV, and it appears to 
work, so the Chinese just keep pouring money into it, and they 
get control of the company, and they take it back home, and 
they keep the vaccine and say, ``We are not going to share it 
with America.''
    Mr. Wolf. Then that becomes economic and other issues. Then 
it really is a function of what our intelligence agencies can 
tell us about the intentions of the parties engaged in 
particular transactions.
    Senator Kennedy. They are not clairvoyant, though. They 
cannot tell the future.
    Mr. Wolf. No, they cannot. And we can do what we can do, 
but there are a lot of very clever people who can think 
aggressively and prospectively about the types of technologies 
that, if cutoff or no longer able to be developed in the U.S., 
would create national security threats. And that should be the 
emphasis of the thinking.
    Senator Kennedy. Let me ask one other question quickly, 
gentlemen, and any of you can jump in. When, if ever, should 
CFIUS be used as a sword with respect to reciprocity? I do not 
mean to pick on the Chinese. They are not the only ones. But 
they are beating our brains out. They are stealing all our 
technology. It is a condition of doing business there.
    Mr. Lowery. So my own view on--should CFIUS be used as a 
reciprocity tool? My own view is no, and I have a few reasons 
for this. One is that if there is an investment that makes 
sense that is coming into this country, but American firms 
would not be allowed to invest in China, why should we penalize 
the company that is receiving that investment, when it is not a 
national security issue whatsoever, just because maybe some of 
their competitors could not go out and buy something in China? 
I think that, in essence, we would be importing the policies of 
another country--China--as opposed to using our own--the 
policies of what we want in this country, and the policies that 
we want in this country are to welcome foreign investment. So I 
do not think that CFIUS is the way to get at reciprocity. I 
think there are trade tools that we can be using, and that is a 
much better way of approaching the problem.
    Mr. Lewis. I disagree with that a little bit. I think we 
need a comprehensive strategy for approaching China on these 
trade issues. They have gotten away with things for decades, 
and you need to approach them thinking about CFIUS, foreign 
investment, export controls, trade provisions. You have to have 
the full package. And as a negotiator, you may not want to take 
anything off the table until you see if it is worth doing. So 
go in with the whole deck. See what they offer you.
    Senator Kennedy. Gentlemen, I am out of time. Thank you.
    Senator Scott [presiding]. Senator Donnelly.
    Senator Donnelly. Thank you. And thanks to all of the 
witnesses.
    My home State of Indiana is home to a big portion of the 
American steel industry, and it is an integral part of our 
national defense manufacturing base. Increased levels of 
foreign steel imports, particularly from China, and a lot of it 
is with dumping, illegal Government subsidies, it has weakened 
our domestic steel industry, and it has provided foreign 
companies greater access to our markets. So this is to all of 
you. When you review transactions, does CFIUS consider foreign 
industrial policy that weakens U.S. industries vital to defense 
manufacturing and critical infrastructure?
    Mr. Lowery. So CFIUS would look at--if an investment, not 
an export but an investment into a company in Indiana or any 
company was actually harming maybe the supply chain for the 
Defense Department on steel or could potentially--by getting 
access to specific technology, could actually harm the United 
States' national interest, that is what CFIUS would look at. 
CFIUS would not look at whether or not a country is dumping. 
That is something that would be done through trade remedies.
    Mr. Wolf. He said it very well.
    Senator Donnelly. OK. Let me ask you this: Are there U.S. 
industries important to our national defense or critical 
infrastructure that have been particularly challenged by 
aggressive foreign trade policies? As you look at the national 
defense area, obviously one of concern is steel. What are other 
ones? And what do you see as the biggest challenges they face? 
I know that is a little bit to the side of what we are doing 
right now.
    Mr. Wolf. Sure. Within the CFIUS context, the evidence 
shows based on public filings of cases during the Obama 
administration and now that the semiconductor industry is 
obviously the hottest topic with respect to the issue that you 
raised. To the extent that it is a trade remedy issue, that is 
not the role nor does CFIUS have competence or expertise to be 
able to focus on that. It is focused just on the national 
security implications. But, you know, by the evidence, that 
plus issues involving foundational technologies for aerospace 
have been hot topics, absolutely.
    Mr. Lewis. Generally, anything that you could label as high 
tech is a concern, and so avionics, not only semiconductors but 
the broad information technology industry, including robotics 
and artificial intelligence, these are all places where we have 
seen efforts by China and a few others to acquire U.S. know-how 
in companies in ways that would harm our national security.
    Senator Donnelly. Currently, CFIUS reviews foreign direct 
investment transactions for national security implications. Do 
you believe CFIUS or a process modeled off it should also 
review the economic considerations of foreign investments to 
see that the American economy actually benefits in any way, 
shape, or form from the transaction?
    Mr. Lowery. So I think that there is a portion of that that 
CFIUS does, but not a big portion, and that is basically if 
there is a mitigation agreement--the Department of Labor 
actually sits as an ex officio member of CFIUS to make sure 
that labor issues are looked at carefully. But in terms of do I 
think that CFIUS should expand its mandate to go beyond 
national security to kind of an economic benefits test, a 
benefits-cost test, I do not. But that is because I think that 
we are welcoming foreign investment and we have to be very 
careful about how much we are dictating to companies about how 
they handle things. As long as they treat their employees well 
and follow the laws of the land, then that is not something I 
think CFIUS should be looking at.
    Mr. Wolf. I agree. I believe that CFIUS should continue to 
be narrowly focused on national security implications. The 
implications of expanding its scope to pure economic 
considerations runs the risk of politicization and overall 
harming the U.S. as a destination for foreign direct 
investment. To the extent that there are economic harms with 
respect to investment, there is an entire body of law dealing 
with trade remedies that is much more tailored, much more 
specific, much more robust to address that. CFIUS does not have 
the history, the expertise, the personalities to be able to 
address it, even if the authority were to expand.
    Mr. Lewis. The dilemma of what you have raised is a serious 
problem, and so we do need to address it. But CFIUS may not be 
the right tool. There are other tools that we either have or 
that we need to deal with this because it is something that 
increasingly is affecting the American working population.
    Senator Donnelly. You talked a little bit about the 
stretches on the CFIUS tool as it is, as the volume increases 
and complexity of transactions continues to increase. What 
additional resources, if any, such as personnel and 
information-sharing technology do you think CFIUS needs to 
process a higher volume of transactions and to be able to make 
sure they are covering what they need to do?
    Mr. Wolf. A significant number of more people involved in 
handling the mitigation agreements. After a deal is reached, 
often there is a condition of the sale that requires a lot of 
manpower, a lot of oversight. They last for a very long time, 
and there are more every day. And so the number of people that 
need to be focusing on that needs to be substantially higher.
    Similarly, the number of people who spend their days 
reviewing transactions, public and otherwise, to see if any of 
them warrant being pulled before CFIUS for consideration, that 
is a straight up issue of manpower and resources in reviewing 
data. Those are the two biggest resource constraints right now.
    Mr. Lowery. I would only add one, which is--I agree 
totally, but it is important to get some of our political 
officials confirmed, and the reason is because--look, the CFIUS 
people doing their analysis do an excellent job. But they are 
civil servants. These transactions by nature involve a lot of 
risk. There is risk. And so taking that risk is something that 
Senate-confirmed people are paid to do, to be frank. They are 
the ones that have to come in front of this Committee and 
answer to what decisions are made. It is much harder for the 
civil servants, who are doing an excellent job, to do that, and 
so sometimes having the resources to do mitigation agreements 
so that you can actually welcome that foreign investment and 
protect national security, but you then also need some of your 
political appointees who can provide air cover and make the 
tough calls.
    Mr. Lewis. One agency we have not mentioned yet--and we 
have mentioned a lot--is the Defense----
    Senator Donnelly. Mr. Lewis, I apologize. I am out of time.
    Mr. Lewis. Just let me say DSS, they are the ones who do 
the mitigation agreements. Give them a little more help.
    Senator Donnelly. OK. Thank you.
    Thank you, Mr. Chairman.
    Chairman Crapo [presiding]. Thank you, Senator Donnelly.
    Senator Donnelly. See, I was doing your work for you there.
    Chairman Crapo. I appreciate it.
    Senator Scott.
    Senator Scott. Thank you very much. Thank you to the panel 
for being here this morning as well.
    There is no question that South Carolina benefits from FDI. 
In the past 5 years, our State's economic activity based on FDI 
has increased by 30 percent. Over 130,000 South Carolinians are 
employed as a result of global investment.
    That said, it is clear to me that bad actors are taking 
advantage of our system of trade. Senator Cornyn and others 
have pointed to gaps in CFIUS around the purchase of 
foundational technologies of AI and biotech. These gaps have 
allowed the Chinese to strategically invest in key sectors of 
our economy while stealing our intellectual property and 
eroding our military superiority.
    I will ask the panel and start with Mr. Lewis: What 
techniques are the Chinese using to circumvent CFIUS? The 
second question is: How can Congress fill these gaps in our 
protections?
    Mr. Lewis. So I think we have talked a lot about the 
greenfield problem, which is that--this has come up a couple 
times. Our regulations are post facto. So if you have not 
invented the technology, it is not going to be caught. And so 
how do we deal with that? And the Chinese are looking to buy 
brains, right? And it is very hard to control brains, 
especially if they are in the country. So we need to think 
about how we track, monitor, and occasionally--not always but 
occasionally, because of the benefits you cited, occasionally 
block transactions where China is making bets in the future 
technologies.
    Mr. Wolf. On the intellectual property theft issue, that is 
much more of a law enforcement issue and attention and 
resources of the Justice Department to investigating whether it 
is a sensitive technology or otherwise that is being stolen or 
exfiltrated. So CFIUS may not be the best tool because if there 
is going to be IP theft, there is going to be IP theft with or 
without a transaction, however you define it, so focus the 
resources on the theft of the technology in the traditional 
way, and that would be my suggestion for an emphasis on that 
question.
    Senator Scott. Anything to add?
    Mr. Lowery. The only thing I was going to add is that if 
the technology is in an area that is concerning potentially for 
export controls, that is when some of Mr. Wolf's comments from 
earlier come into play, I think, where looking through what 
powers and abilities through the flexibilities of our export 
control laws as opposed to CFIUS, which is there to--if there 
is an investment actually in a company or in a business that 
actually gets some of those assets that could be a national 
security concern, that is when CFIUS should play its role.
    Senator Scott. Thank you.
    Considering the topic of today's discussion, I want to 
point something out that I think is very important. A majority 
of Chinese deals make it through our approval process. Yet 
American companies are not given that same courtesy in China. 
In fact, China dramatically restricts our financial services 
sector's presence in its country. That does not seem fair to 
me, because it is not.
    That is not a level playing field that our President is 
advocating on behalf of. I was joined by Chairman Crapo--thank 
you very much--and 14 other Senators in asking the 
Administration to focus its efforts on the lack of reciprocity.
    Mr. Lowery, can you discuss the hurdles that American 
financial services firms face in China?
    Mr. Lowery. Yes, this is something I had to work on when I 
was in Government. So it has been a problem for a while. I was 
glad to see the letter from the 14 Senators. I wish it was 100 
Senators, because I think that it is a problem, which is that 
U.S. firms cannot actually--there are equity caps in insurance 
companies, there are equity caps for investment banks, there 
are equity caps for banks. The way that we have made progress 
on that in the past has usually been through dialogue, and so I 
recall back in 2006, 2007, we were running into a lot of 
problems. Through a dialogue that Secretary of the Treasury 
Paulson set up at the time, we were able to make progress--not 
as much as we should have. Under the Obama administration, they 
also had a dialogue which also made even further progress on 
getting these equity caps raised.
    I think that that is something that the Trump 
administration should work on, my guess is they are probably 
starting to work on. But I think that that is a way to get at 
it. But your point is exactly right. There is a problem when in 
an area such as financial services where it makes very little 
sense for them to have equity caps that China still has those. 
But I think that through the force of our will and diplomacy, 
that is the best way to get at that problem.
    Senator Scott. Thank you very much, Mr. Chairman.
    Chairman Crapo. Thank you.
    Senator Tillis.
    Senator Tillis. Thank you, Mr. Chairman. Gentlemen, thank 
you for being here.
    China, I think, constitutes about 1.6 percent of our total 
inward foreign direct investment, so relatively small scale. A 
lot of what we are talking about here are things that they have 
done that are really outside of this that need to be dealt 
with, and I think probably dealt with in a way that is perhaps 
outside of CFIUS. One thing, Mr. Wolf and Mr. Lowery, you both 
have said is that trying to keep the scope tight--I could be 
concerned with CFIUS scope creep moving into other areas that 
we probably should consider, but not necessarily within the 
lanes of CFIUS.
    Mr. Lewis, I want to talk about one of those. As China's 
economy emerges and as it matures and as they try to build 
infrastructure for things that are not related to national 
defense--you know, pick an area, health care, insurance, 
whatever--they are likely to look at Nations that have mature 
platforms, the technology platforms that they would like to use 
to accelerate, you know, really actually rounding out an 
economy that is still growing. And if they do that, if they are 
to acquire somebody--you made me think about this because of a 
comment you made about maybe an acquisition would involve a 
company that has a significant amount of data on U.S. citizens, 
say health care information. How do we strike the balance 
between allowing that investment to occur, which may be needed 
by a technology provider that is in a mature market, to let 
them leverage their technology for purposes that are purely, 
you know, in this case let us say for the Chinese population, 
how do you do that in a way that does not create an impediment 
for companies that have data that we clearly want to protect 
but not necessarily disadvantage them as having a large 
platform and growth opportunity in a country like China?
    Mr. Lewis. Thank you. Great question. China has gotten sort 
of a pass on the trade rules ever since they joined the WTO, 
and their argument was, ``Well, you know, we are small and we 
are growing and we are poor, so it should not apply to us.'' 
And that just does not work anymore. So part of it is we need 
to think about how do we get China to live up to its 
commitments under international trade. I am optimistic that 
they can do that. This Administration appears to be making an 
effort. That is good. But it will take a long time because they 
get so much benefit out of it.
    In the near term and on specific cases, I think this is one 
of the strengths of the CFIUS process, is the ability to impose 
mitigation agreements on the acquirer that limit the risk, and 
those have been relatively successful. There is this issue of 
tracking them afterwards, and that is where----
    Senator Tillis. On that, I have one other question I want 
to direct specifically toward CFIUS. But I think that so much 
of what we need to do to get China to a good place in behavior 
is probably not something that would come through CFIUS but 
would come through trade agreements, a number of other devices 
that we can use to actually incent them to exhibit good 
behavior.
    Now, with respect to CFIUS, I have had this discussion in 
Senate Armed Services on cyber. You know, what we seem to be 
focused on are the--you know, it is an artificial intelligence 
application, maybe it is next-generation communications 
technology, biotech. But what about the risk of focusing on 
those big rocks and missing some of the little rocks that if 
China had significant investment in could be disruptive? I 
always use the example of if I were trying to think about a way 
to disrupt the U.S. economy or the DOD, the DOD would be the 
last place I would attack. It would be their supply chain. And 
it would be to the most vulnerable part of their supply chain, 
and I am talking about a cyberthreat.
    Well, similarly, I would make investments in companies that 
could ultimately be disrupted. We think about the end product. 
I think about the supply chain that gets to that end product. 
So to what extent does CFIUS take into account maybe seemingly 
innocuous minor investments in companies and technologies that 
ultimately play a very important role in that supply chain link 
to these other highly important technologies that we focus on?
    Mr. Lowery. I think that the answer is that is exactly what 
CFIUS is trying to look at, so----
    Senator Tillis. How well do you think we are doing it for 
the fully supply chain?
    Mr. Lowery. I think that CFIUS does a very good job of 
looking at companies that are part of the supply chain. The 
reason is because the Defense Department, some of the officials 
there--not just the Defense Department. It could be Homeland 
Security or the Justice Department. They know kind of where the 
supply chain exists, because actually some of the people that 
work on CFIUS are some of their procurement experts. And so 
they actually look at the supply chain and think--there are 
transactions that I know CFIUS has looked at which were tiny 
transactions, and no one would--they would never make it into 
the newspapers. But CFIUS actually goes out and says, ``We need 
to look at that because that is a small part of our supply.'' 
And that is something that--if it is a purchaser that is a 
threat to our national security, that may make it--either block 
it, get it to abandon the transaction, or as Mr. Lewis said, 
come up with a mitigation agreement so that you might wall them 
off from certain parts of that technology.
    Senator Tillis. And, Mr. Chair, since I am the last one, I 
want to ask just one more question, if I may. To what extent 
does CFIUS--let us say that, again, with China only being 1.6 
percent of the internal FDI right now, but they have great 
relationships and growing relationships with many of our allies 
that constitute a significant portion of that. To what extent 
is CFIUS instructive by the nature of the relationships that 
China has with other--let us say a company domiciled in 
Australia that is making a significant investment in a 
technology that would be subject to immediately flag if it 
comes from China? Is that all instructive to the CFIUS process.
    Mr. Wolf. It is, and it should be more so. One of the 
changes I would recommend considering that we often discussed 
is sometimes we were limited in our ability because of either 
classified information or proprietary information issues from 
sharing concerns we had with allies and getting information 
from them with respect to similar concerns by similar 
investments in their countries. And a serious topic, I would 
think, for legislative consideration would be expanding the 
ability of CFIUS to share information, both commercial as well 
as intelligence, with allies for exactly the purpose that you 
just described.
    Mr. Lewis. That is an important area for reinforcement 
because when you look now at our NATO allies, at Australia, at 
Japan, they are all concerned about Chinese investment. They 
are all looking to the U.S. to provide them at least an example 
on how to regulate it, and CFIUS is an example. And they are 
looking for the kind of information and intelligence support 
that Mr. Wolf was discussing.
    Senator Tillis. Thank you all.
    Thank you, Mr. Chair.
    Chairman Crapo. Thank you, and, Senator Tillis, I will take 
one more question also.
    This will be the final question, and it is for the whole 
panel, if you have a response to it. In your opinion, are there 
any instances where a gap in CFIUS authority either could have 
or did result in a threat to U.S. national security? And if so, 
please discuss the CFIUS shortcomings that led to such a 
breach.
    Mr. Lewis. So I believe the thing that we would all want to 
look at is the Defense Department report that talked about--and 
I hate to say it over and over again--greenfield investments in 
Silicon Valley, looking at advanced information technologies 
for robotics and artificial intelligence. The Chinese have been 
able to acquire technology in a way that circumvented the 
process.
    Mr. Wolf. So in my 7 years, I am confident that there were 
no unresolved national security risks with any case that we 
addressed. I would go back to the point I made earlier about 
activities outside of CFIUS authority with respect to 
colocation near sensitive military facilities. And I do not 
have visibility into that, but it would be something worthy of 
further analysis along the lines of your question.
    Chairman Crapo. Thank you.
    Mr. Lowery.
    Mr. Lowery. I am unaware of anything, any problem that has 
existed. I think the DIUx report does some excellent analysis. 
I think that some of their policy conclusions need more work.
    Chairman Crapo. All right. Thank you. And, again, let me 
thank each of you for your written testimony and for being here 
and responding to the Senators today. This is a very critical 
issue, and there is a significant amount of interest and 
activity here on the Committee and outside the Committee here 
in Congress, and we intend to explore it, and we want to get it 
right. So we appreciate your help. Thank you for being here 
today.
    This Committee is adjourned.
    I should have said for the record that questions from 
Senators may come to you, and we urge you to respond to them 
promptly, and the Senators have until the 21st to submit those 
questions.
    [Whereupon, at 11:28 a.m., the hearing was adjourned.]
    [Prepared statements, responses to written questions, and 
additional material supplied for the record follow:]
                   PREPARED STATEMENT OF CLAY LOWERY
  Managing Director, Rock Creek Global Advisors, and Former Assistant 
    Secretary for International Affairs, Department of the Treasury
                           September 14, 2017
    Chairman Crapo, Ranking Member Brown, and Members of the Committee, 
I would like thank you for the opportunity to testify on Examining the 
Committee on Foreign Investment in the United States (CFIUS). My name 
is Clay Lowery and I am currently Managing Director of Rock Creek 
Global Advisors, a consulting firm that advises clients on 
international economic and financial policy matters. My testimony 
should be considered my own views alone.
    I served in the U.S. Government from 1994 to 2009, principally with 
the Treasury Department, although I also had a stint at the National 
Security Council. From 2005 to 2009, I served as the Assistant 
Secretary of International Affairs for the Treasury Department, and one 
of my primary responsibilities was overseeing CFIUS during the last 
time substantial CFIUS reform occurred.
    I am pleased to be testifying alongside Kevin Wolf and Jim Lewis, 
both of whom I respect and of whose views and expertise I think highly.
    In my testimony, I will discuss briefly (i) the nature of CFIUS and 
its process, (ii) its performance, and (iii) some thoughts on CFIUS 
reform.
    CFIUS plays a critical role in protecting U.S. national security. I 
recognize there are gaps in the current system that must be addressed, 
but I would also counsel that CFIUS's objective is to protect 
legitimate national security interests while promoting foreign 
investment, and thus CFIUS should not be used as an economic, 
protectionist, or overly broad tool.
    The most important aspect of CFIUS is to understand what it is 
trying to achieve: ensure national security while promoting foreign 
investment. These words come directly from the legislation that created 
CFIUS and has guided it for the last 30 years. When experts raise 
concerns about national security issues that may have recently become 
more prominent and recommend that the best--and sometimes only--tool to 
address those concerns is CFIUS, my view is to evaluate those 
recommendations against what CFIUS was designed to achieve.
    Roughly 7 million American workers, or about 6 percent of total 
U.S. private-sector workers, are employed directly through foreign 
direct investment (FDI). These jobs are higher paying: providing 
average compensation per worker 24 percent higher than U.S. private-
sector wages. These jobs are disproportionally in the manufacturing 
sector: 20 percent of all manufacturing employment is due to FDI. And, 
according to a recent Reuters analysis--two-thirds of the manufacturing 
jobs created from 2010 to 2014 can be attributed to foreign direct 
investment.
    In short, FDI is in the national interest of the United States. 
However, we should not be complacent. While the U.S. remains the 
largest destination for FDI, our share of attracting such investment 
has fallen about 40 percent in the past 16 years. \1\
---------------------------------------------------------------------------
     \1\ United Nations Conference on Trade and Development (UNCTAD) 
World Investment Report 2017.
---------------------------------------------------------------------------
    Last, I want to note how this could be used against U.S. companies 
overseas. The United States has always been the leader in defining 
``national security'' in a reasonable and fair way. I would remind the 
Committee that any actions we take are likely to be copied and used by 
other countries, potentially to the detriment of U.S. interests abroad.
CFIUS Evolution
    CFIUS is an interagency committee established by Executive Order in 
1975 with the Secretary of the Treasury as its chair. Its central 
purpose at that time was to monitor foreign direct investment in the 
United States. In 1988, driven by concerns regarding growing Japanese 
investment in the United States, Congress enacted the Exon-Florio 
amendment that expanded these powers significantly, including (i) 
giving CFIUS the responsibility to investigate foreign acquisitions of 
companies engaged in business in the United States, and (ii) providing 
the President the ability to suspend or prohibit a covered transaction 
that, in the President's judgment, threatens the national security and 
existing laws are not adequate or appropriate to address the threat. 
\2\ In 2007, following concerns that had been raised over a Middle 
Eastern investment in U.S. port facilities, Congress amended and 
further strengthened CFIUS through the Foreign Investment and National 
Security Act (FINSA).
---------------------------------------------------------------------------
     \2\ To be precise, the President delegated the investigative 
functions to CFIUS by Executive Order.
---------------------------------------------------------------------------
    A new Executive Order directing CFIUS followed in early 2008 and 
new regulations implementing FINSA were issued later that year. The key 
reforms resulting from those efforts include:

    Increasing accountability in the executive branch as 
        Senate-confirmed officials now must certify that CFIUS has 
        completed its work on each transaction;

    Broadening the factors that CFIUS may consider in terms of 
        investigating cross-border M&A transactions, particularly in 
        areas such as critical technology, energy, and critical 
        infrastructure;

    Raising the certification bar for cases in which the 
        acquirer is a State-controlled entity;

    Increasing CFIUS interaction with Congress;

    Providing for a more formal role for the intelligence 
        community; and

    Clarifying CFIUS criteria for evaluating whether an 
        acquirer is obtaining control of a U.S. business.
CFIUS Process
    CFIUS is chaired by Treasury and is comprised of the Departments of 
Commerce, Defense, Energy, Homeland Security, Justice, and State as 
well as the Office of the U.S. Trade Representative and the Office of 
Science and Technology Policy. In addition, the Intelligence Community 
under the leadership of the DNI and the Department of Labor serve as 
nonvoting members of CFIUS. \3\
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     \3\ Several offices in the Executive Office of the President also 
serve as observers of CFIUS.
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    Parties submit their transactions to CFIUS for review on a 
voluntary basis, although CFIUS has the authority to compel a filing if 
necessary. The statute prescribes strict timelines for CFIUS's review, 
but parties are encouraged to pre-file with CFIUS to provide the 
Government with an opportunity to begin its analysis before the ``clock 
starts ticking.''
    CFIUS officials are obligated by law, and subject to the 
possibility of criminal or civil penalties, not to disclose information 
regarding transactions. The rationale behind this rule is to protect 
both proprietary and intelligence information.
    Once a transaction has been filed, CFIUS first determines whether 
it has jurisdiction to review the transaction--that is, does it involve 
foreign control of a U.S. business in interstate commerce--and, if it 
does, CFIUS then undertakes a three-part evaluation:

  1.  Does the acquirer pose a threat to national security? This 
        analysis is led by the Intelligence Community.

  2.  Is national security made more vulnerable by virtue of the 
        acquisition of the U.S. assets? This analysis tends to be 
        driven by the CFIUS agency with applicable subject-matter 
        expertise.

  3.  Do the consequences of permitting the threat and vulnerabilities 
        to be combined through a specific transaction risk impairing 
        national security?

    CFIUS investigates these questions in the first 30 days after it 
accepts the filing. If at the end of those 30 days, CFIUS is not 
satisfied or in most transactions where the acquirer is State-
controlled, then CFIUS will undertake a second-stage investigation that 
lasts up to an additional 45 days.
    The process, the timelines, the composition of CFIUS, the 
protection of information, and the reforms of 2007/08 have all been 
designed by Congress and respective Administrations to protect national 
security and to do so in the context of maintaining the United States' 
long-standing policy openness to investment. In addition, knowing that 
some transactions may raise national security issues, Congress has 
expressly authorized CFIUS to enter into mitigation agreements with the 
transaction parties to address those concerns. There are many different 
types of methods of mitigating a transaction. Examples include 
establishing special security procedures at facilities that can be 
verified by the Government, implementing certain passivity mechanisms, 
or even forcing a company to divest specific assets. In short, these 
mitigation agreements impose measures on the parties that address 
national security risks.
    These mitigation agreements are the pressure valve that enables 
CFIUS to find solutions to more difficult transactions--to welcome 
foreign investment and protect national security.
    If at the end of that 75-day period, CFIUS cannot make a decision 
or recommends that a transaction should be prohibited--then the matter 
is referred to the President who has 15 days to make a decision. Only 
the President has the ability to block a transaction.
    In the past 27 years, the President has prohibited or unwound only 
three transactions. The primary reason that such activity by the 
President is so rare is that most transactions do not pose a national 
security risk or risks can be mitigated through diligent work by CFIUS. 
The other reason is corporate concern about reputational risk. When the 
President makes a formal decision on a transaction, that decision is 
made public. Companies that believe the President could prohibit their 
transaction are understandably reluctant to be subject to a public 
rejection. Accordingly, most companies will withdraw from the CFIUS 
process and abandon their transaction.
How CFIUS Has Performed
    Since FINSA was enacted 10 years ago, CFIUS--in my opinion--has 
performed in an exceptionally professional and thoughtful manner. 
Congress and the American people should be proud of how well the group 
of individuals across the Government have carried out their duties. 
Their scrutiny of cases is thorough; they have protected national 
security; they have protected information as well as anyone in the U.S. 
Government; and they have preserved the reputation of the United States 
as open to investment from around the world. CFIUS in many respects has 
been a model not only within our Government but also for other 
countries; various nations are now considering how they can emulate the 
U.S. process.
    That said, there is little question that the investment landscape 
has changed substantially in those 10 years. By far, the most important 
change has been the rise of China as a direct investor in the United 
States. Ten years ago, CFIUS would review just one or two transactions 
a year that had involved a Chinese acquirer--today, it is literally 
dozens and dozens of transactions every year. While I believe we should 
welcome Chinese investment and that each transaction should be judged 
on its own merits, these transactions have more complex financial 
structures, sometimes are more opaque, and come from a country where 
the State plays a much larger role in the economy. Often, these factors 
and others, raise the threats to national security. I know that fellow 
panelist Jim Lewis is focusing his remarks on Chinese investment and 
the threats it raises so I will not elaborate further.
    The other development is the concern that technology is being 
transferred that could make our national security more vulnerable. I 
know that Kevin Wolf is an expert on export control laws so I'll let 
him elaborate on the importance of these developments.
CFIUS Reform
    As for me, these changes in the investment landscape as well as the 
fact that it has been 10 years since CFIUS was reformed suggest that a 
close, sober evaluation by Congress, by the GAO, and by the 
Administration is in order. As with any analysis, it is best to think 
of any potential reforms in terms of benefits and costs, including 
intended and unintended consequences.
    I would have three starting points beyond a cost/benefit analysis:
    First, I want to note the importance of providing appropriate 
resources to both Treasury and other agencies for CFIUS cases. The 
CFIUS process is currently under stress because of a significant 
increase in cases, without a commensurate increase in resources. While 
I strongly believe that we should set good policy on the merits, we 
also need to provide adequate resources to effectively carry out those 
policies.
    CFIUS reviewed over 170 transactions last year, which is the 
highest number since CFIUS was strengthened 10 years ago. As mentioned 
earlier, there is a much larger proportion of cases originating from 
China and that are structurally more complex. In 2017, my understanding 
is that CFIUS is on pace to investigate a much higher number than in 
2016. There is little question in my mind that the individuals doing 
their jobs are under too much strain--they need more resources before 
we consider how to increase their work load.
    I am very concerned that a significant expansion of CFIUS will 
overwhelm the system and significantly impact its effectiveness and 
ability to function. So while resources are not the issue on the table 
today, I do not think you can separate them from the policy if you want 
the system to function efficiently and effectively.
    Second, as part of the new FINSA law of 2007, this Committee added 
an Assistant Secretary of Treasury to oversee CFIUS. The Trump 
administration has nominated a highly qualified individual in Heath 
Tarbert. This Committee approved him with near unanimous support 
roughly 4 months ago. Why he has not been confirmed is a mystery to me, 
but at a time when CFIUS is under as much strain as it has ever been 
and when Congress is considering reforms that would expand CFIUS--it is 
past time to confirm the individual with the most direct responsibility 
for overseeing the system.
    Third, as we consider reforming CFIUS, we should adopt a set of 
guiding principles to ensure that the United States both safeguards its 
national security and remains the destination of choice for investment:

    Minimize the opportunity for politicizing transactions.

    Keep CFIUS narrowly focused on national security and resist 
        the impulse to use it for broader economic policy goals.

    Ensure accountability of the executive branch for 
        protecting national security while welcoming foreign 
        investment.

      This means that the executive branch should find 
        solutions by ``working a problem'' and use its authority to 
        craft appropriate mitigation measures, which may mean 
        additional resources--maybe paid by fees from the filing 
        parties--for monitoring and verification.

      It also means providing filing parties an opportunity to 
        ``make their case'' directly to Senate-confirmed individuals so 
        that parties to transactions are not faced with the situation 
        where staff-level officials are deadlocked or uncommunicative 
        and the next step is a decision by the President.

    Maintain CFIUS's focus on--and review should be triggered 
        only by--foreign mergers and acquisitions of U.S. businesses, 
        and not broaden the scope to sweep in thousands of commercial 
        or licensing transactions.

    Increase scrutiny over State-controlled acquirers, 
        including the possibility of making the filing of such 
        transactions mandatory.

    Thank you and I'm happy to field any questions.
                                 ______
                                 
                  PREPARED STATEMENT OF KEVIN J. WOLF
   Partner, Akin Gump Strauss Hauer & Feld LLP, and Former Assistant 
      Secretary for Export Administration, Department of Commerce
                           September 14, 2017
    Chairman Crapo, Ranking Member Brown, and other distinguished 
Members of the Committee. Thank you for convening this hearing and for 
inviting me to testify on this important national security topic.
    I was last before this Committee in January 2010 for my 
confirmation hearing to be the Assistant Secretary of Commerce for 
Export Administration, a position I held until January 20, 2017. In 
that role, I worked closely with my colleagues within Commerce and many 
other agencies in shepherding the U.S. export control system. I was 
also a Commerce representative to the Committee on Foreign Investment 
in the United States.
    Although I am now a partner with Akin Gump Strauss Hauer & Feld 
LLP, the views I express today are my own. I am not advocating for or 
against any potential changes to CFIUS or its legislation on behalf of 
another. Rather, I am here to answer your questions from the 
perspective of someone who has been both a Government policymaker and a 
practitioner for nearly 25 years in these critical and complex national 
security areas. I am happy to help however you see fit.
    My fellow panelists have already described well the content and 
scope of CFIUS, so I will get straight to my main point, which is that 
the CFIUS and export control systems complement each other. CFIUS has 
the authority to control the transfer of technology of national 
security concerns, but only if there is a covered transaction, however 
defined. The export control rules regulate the transfer of specific 
types of technology of national security concerns regardless of whether 
there is a covered transaction. This means that if concerns arise about 
specific or general types of technology--whether as part of a CFIUS 
review or from any other source--then the focus, I respectfully submit, 
should be on controlling the technology at issue to the destinations of 
concern.
    The export control system is already well developed and flexible 
enough to address exactly this issue. Yes, it can be complex, but its 
national security functions are not limited by the need for a 
transaction. Moreover, the system is designed to constantly evolve as 
new threats are identified, new technologies of concern are discovered, 
and wide-spread commercialization makes existing controls unnecessary 
or impossible to implement.
    The most effective export controls are those that are 
multilateral--those that our allies and other countries also impose for 
common objectives. Unilateral controls--those that only one country 
imposes--are generally counterproductive because they create incentives 
for non-U.S. companies to develop the technology outside of U.S. 
control. The imposition of unilateral controls, however, can be an 
effective short-term technique for regulating the export of 
technology--at any stage of its development--that is newly discovered 
to be sensitive in general or with respect to a specific destination.
    The Export Administration Regulations, implemented by the Commerce 
Department's Bureau of Industry and Security, have the authority to 
impose such controls in coordination with other departments, primarily 
Defense and State. The descriptions of the technology can be as broad 
or narrow as the national security requires. The descriptions are 
generally connected to physical commodities, but do not need to be. The 
controls can be tailored to specific countries and to nationals of 
those countries. Law enforcement tools can be used with respect to 
domestic transactions when there is a foreign party using a U.S. 
company as a front. Using the export control process is also an 
excellent check on unintended consequences because it forces 
policymakers to describe clearly the information to be controlled. We 
can discuss the details of these tools and how they fit into the 
multilateral control regimes and the CFIUS process later as you like.
    Although I cannot discuss specific cases, I can say that other 
types of national security issues created by foreign direct investment 
include primarily those that (i) have colocation issues (e.g., 
acquisitions next to military facilities); (ii) create espionage risks, 
(iii) could reduce the benefit of Defense Department technology 
investments; (iv) reveal personal identifying information of concern; 
(v) create security of supply issues for the Defense Department, or 
(vi) create potential exposure for critical infrastructure, such as 
with the telecommunications or power grids.
    In my experience, the existing CFIUS structure, authorities, and 
internal procedures generally allowed for the resolution of these 
issues quite well. The Treasury Department was an excellent honest 
broker and well-facilitated consensus conclusions--often after lengthy 
interagency discussion and always with the terrific support from the 
intelligence community. The agencies were always respectful of the need 
for a whole-of-Government decision that took into account the 
particular equities and expertise of the other agencies. The career 
staff were and remain talented, dedicated public servants.
    This last point is key. Given the increase in filings, and the 
increase in more complex cases, the staff was being stretched thin when 
I was there, and I expect they are even more stretched now. They need 
help. They need more resources, particularly with respect to those 
involved in monitoring mitigation agreements and studying transactions. 
I make this polite suggestion not only for their benefit but for the 
sake of our national security. I also make the suggestion for our 
economic security so that the U.S. remains known as a country that 
welcomes foreign direct investment with the minimum necessary and 
quickest possible safe-harbor review burden.
    Thus, when considering changes to CFIUS to address apparent gaps in 
national security controls associated with foreign direct investment, 
the questions I would ask are (i) whether the statutory authority 
already exists to address the issue through a regulatory or process 
change; (ii) whether another area of law, such as trade remedies or 
export controls, could address the issue more directly and without 
collateral consequences on other investments; or (iii) whether the 
solution lies in more resources to the agencies. If the answer to these 
questions is ``no,'' then that is the sweet spot for consideration of 
change to CFIUS legislation.
    For each possible change in CFIUS's scope, however, it is vital to 
weigh the costs. For example, if there is even a small expansion in the 
scope of CFIUS's review authority, then some companies may be less 
willing to invest in the United States with the actual or perceived 
extra burden and time involved in closing a transaction, particularly 
if there is not a significant expansion in staff. With every expansion 
in scope, there will be a corresponding and exponential expansion in 
burdens and costs generally--more regulations lead to more words, lead 
to more analyses of those words in novel fact patterns, lead to more 
filings, lead to more reviews, lead to more mitigation agreements, and 
on and on. Also, if the legislation becomes too prescriptive, then it 
may limit the ability of the Administration and staff to resolve novel 
national security issues in a creative way. There were many such 
situations over the course of the last seven years that I suspect could 
not have been contemplated by the original drafters of the legislation 
and the regulations.
    On export control and CFIUS topics, I have a 3-minute, a 30-minute, 
and a 3-hour version. So, I will stop here with these general opening 
comments and look forward to answering your questions. Thank you again 
for spending the time to think through this complex and important 
national security issue.
                                 ______
                                 
                  PREPARED STATEMENT OF JAMES A. LEWIS
 Senior Vice President, Center for Strategic and International Studies
                           September 14, 2017
    I thank the Committee for this opportunity to testify. The 
Department of Treasury's Committee on Foreign Investment (CFIUS) is one 
of the most important tools for protecting national security while also 
creating the conditions that enable a strong economy and an advanced 
technological base. CFIUS is one of three activities that protect 
national security related technology and the defense industrial base 
along with export controls and Federal investment in research and 
development (R&D). The CFIUS Committee has done well, but the growing 
volume of cases, increased complexity of acquisition transactions, and 
China's industrial policies pose an increasing challenge to the CFIUS 
process.
    The U.S. created the CFIUS process to regulate foreign acquisitions 
of American companies in response to concerns that strategic industries 
were being lost to foreign competitors. The goal is to maintain an open 
investment environment while mitigating risk to national security. 
CFIUS's authorities were updated in 2007 by the Foreign Investment and 
National Security Act (FINSA), which expanded the Committee's remit to 
include homeland security, created timelines for review, and gave the 
President the authority to reopen and reexamine already completed 
transactions (known as an ``Evergreen'' provision). FINSA is now 10 
years old and faces challenges created by a changing global economic 
environment.
    The most important of these challenges comes from China. China is a 
strategic competitor who seeks way to circumvent CFIUS protections. 
China's industrial policies are the greatest challenge for CFIUS. The 
laws, policies, and regulations that were adequate in the past, whether 
for export control or for foreign investment, must be reviewed and 
reconsidered to manage the challenge America faces from China's managed 
economy. China's goal is to end its dependence on foreign technology 
and overtake the U.S., as it has overtaken other Nations. \1\ This is 
not a military conflict, but it has deep implications for American 
security and for the prospects of an international system based on the 
rule of law and democratic norms. The fundamental issue for the U.S. 
and other Western Nations is how to respond to a managed economy with a 
well-financed strategy to create domestic industries intended to 
displace foreign suppliers.
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     \1\ My colleague Scott Kennedy's research initiative ``Made in 
China 2025'' explores this at greater length.
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    Although it is a member of the World Trade Organization (WTO), 
China does not follow WTO rules. Its public justification for this is 
that China is still a developing economy and should not be held 
strictly accountable, but this is nonsense for the world's second 
largest economy. Compare the treatment of U.S. companies in China to 
Chinese companies in the United States. When Alibaba built a data 
center in Seattle, it was not forced to do this as a junior partner in 
a joint venture, nor was it forced to provide source code, but U.S. 
companies in China face these requirements. There are other countries 
that want to challenge the global institutions created by the U.S. and 
it allies after 1945, chief among them Russia, but the Russian economy 
is in steady decline and while Russia is dangerous in many areas, it is 
not an economic competitor.
    One reason that China has gotten away with this for so long is that 
many companies have been ambivalent about pushing back. They fear 
retribution from China--a reasonable concern, since China is not shy 
about retaliating against critics--and many do not believe the United 
States will take action to support them against such retribution--also 
a reasonable concern. China is a huge market that companies are 
reluctant to risk, but as the consequences of China's industrial 
policies become clearer, company attitudes have changed and there is 
growing concern about unfair competition from the Chinese State.
    If China followed international practices, its decisions to invest 
in domestic industries would be unobjectionable. There would be 
potentially profound effects on the global economy, but competition is 
the nature of the market. But China has not hesitated to extract 
concessions or block foreign competition in order to advance its own 
firms. China's 5-year plans lay out the strategic economic and 
technological goals that China will pursue and fund. These have had 
mixed success in the past, but a steady, well-funded pursuit of its 
economic and technological goals is one of the hallmarks of Chinese 
policy. China is pulling ahead because it has a strategy to build a 
high-tech economy and is willing to spend heavily and consistently to 
achieve this. We do not always want to take Chinese propaganda 
announcing technological success at face value, but China commits to 
research and investment programs for decades, while our spending is 
often limited to fits and starts.
    China's announcement of an indigenously produced commercial 
airliner illustrates Beijing's intent to ``move up the value chain,'' 
build industries, and displace Western firms. China's Soviet-supplied 
aircraft factories made shoddy aircraft. When China opened its market, 
Western firms rushed to sell aircraft. Part of the requirement for 
market access was coproduction, where Chinese companies worked with 
Western aircraft firms to make parts for Western commercial aircraft. 
Coproduction, over 20 years, taught Chinese companies essential 
production know-how, and the quality of Chinese aircraft has improved 
markedly. Most of this transfer did not involve IP theft. However, the 
Chinese Government will be tempted to use subsidies, pressure domestic 
airlines to buy the new Chinese plane, and barriers to foreign 
companies to give their manufactures an edge in China and in the global 
market. These practices are not uncommon as Beijing seeks to promote 
its domestic companies.
    Semiconductors are another key industry for China and a major 
concern for CFIUS. Since the 1960s, the United States has been the 
leader in semiconductor manufacturing. A strong semiconductor sector is 
crucial for growth in key high tech industries and will grow more 
important as more devices are connected to the internet. Semiconductors 
enable a broad a range of industries and serves a foundational role for 
critical civilian and military digital technologies. Persistent Chinese 
efforts to acquire semiconductor technology, combined with changes in 
the industry, could create risks for the U.S. and opportunities for 
potential attackers. In the last few years, there have been a number of 
efforts by Chinese companies with links to the Government to buy 
Western semiconductor firms, using a multi-billion-dollar acquisition 
fund created by the Chinese Government. While the CFIUS process has 
been successful in blocking many of these efforts, China's policy to 
end its reliance on foreign semiconductors manufacturers by creating 
its own companies has not changed and there will be continued pressure.
    Chinese policy seeks to extract technologies from Western 
companies; use subsidies and nontariff barriers to competition to build 
national champions; and then create a protected domestic market for 
these champions to give them an advantage as they compete globally. 
Huawei is the best example of a now globally dominant Chinese company 
built along these lines, but there are others. A senior Chinese 
official once remarked that if China had not blocked Google from the 
China market, there would be no Baidu. Various strategies are employed, 
using barriers to trade, security regulations, procurement mandates, 
acquisitions (both licit and illicit) of foreign technology, and 
through strategic investments in or acquisition of foreign firms. In 
addition, companies from the U.S. and other Western Nations have found 
themselves under pressure to make long-term concessions in technology 
transfer in exchange for market access.
    Intellectual property (IP) theft is no longer the most important 
problem. It is easy to overstate the cost of commercial cyber-
espionage. While China's policy has been to acquire Western IP from the 
start of the opening of its market, and while the high point of IP 
theft came from cyber-espionage between 2000 and 2015 (more a 
reflection of our lax defenses than of Chinese skill), the situation 
has changed considerably. Most of the estimates of the cost of Chinese 
commercial espionage, however, are exaggerated. A country could steal 
``$600 billion'' in IP and not gain $600 billion in value if it is 
unable to turn the stolen IP into commercially valuable products. It 
does little good to steal IP if you do not have the expertise to use 
it, and until recently, this was true for China's espionage in advanced 
technology. What has changed in the last decades is that in many cases, 
China has the money and the skill to use much of the IP it has acquired 
licitly or illicitly. In other cases, China has realized that acquiring 
``know-hows'' is more important than acquiring IP, and has turned to 
the purchase of Western companies as a key part of its new industrial 
policies.
    Because of past technology transfers through joint ventures and 
coproduction, and in part because of heavy, sustained Government 
investment in science and research, China has developed its own 
innovation capabilities. In some technology areas, China may even be 
the world leader. This is a good thing for the global market and 
competition, and it should help spur a rethinking of America's relaxed 
approach when it comes to technology and innovation. What is not good 
is the Chinese Government's policy of using unfair business practices 
to give Chinese companies an edge in marketing their innovations.
    In the worst case, stolen IP means that the victim company faces a 
new competitor. In China, this new competitor may have access to 
Government subsidies or benefit from a protected domestic market built 
with nontariff barriers to hobble foreign competition. Subsidized 
Chinese companies have an immense advantage operating from a closed 
domestic market and selling to an open international market. 
Confronting China over these practices is long overdue, but the central 
issue is not IP theft but the unfair treatment of U.S. companies in 
China. The word that China fears is reciprocity--that they should be 
treated in the United States the way American companies are treated in 
China.
    Concern over technology transfer has been an element of the U.S.-
China relationship for decades, but China's growing wealth and 
sophistication poses a new kind of challenge U.S. regulation and 
policy. Moreover, China's strategies for acquiring technology and, 
perhaps, for circumventing FINSA, are relatively agile and attempt to 
take advantage of this policy gap. The long-term viability of China's 
managed economy model is an open question, but in the near term, it 
creates new risks for U.S. companies and for national security.
    One question for this hearing is whether the existing tools to 
manage risk are adequate. These include export controls and foreign 
investment reviews. Another question is whether a defensive strategy 
that seeks to block Chinese acquisitions is enough. The answer is both 
cases is that there is room for improvement. Improving the ability to 
compete and to create new products in the United States is an essential 
complement of maintaining U.S. national security and leadership in 
technology.
    We can review the question of the effectiveness of existing policy 
tools like CFIUS by looking at some of the ideas for CFIUS reform. The 
incentive for this review is that China appears to have looked for ways 
around FINSA regulations. This needs to be addressed by expanding the 
scope of covered transactions, by providing the Committee with 
additional flexibility for review in difficult cases, by moving from a 
transactional focus to better identify technology and business trends 
that create risk, finding ways to cooperate with foreign partners, and 
by ensuring it has the resources and information needed to timely 
decisions.
    Some recommendations, such as expanding CFIUS's jurisdiction to 
review transactions that do not result in foreign control of a company 
but still allow access to technology, or expanding CFIUS authority to 
review overseas joint ventures, are better handled by export controls. 
The same is true for having CFIUS create lists of critical technology. 
The Departments of Defense, Commerce, and State already maintain such 
lists for export control purposes and while in some cases these lists 
need to be updated to focus on new and truly crucial technologies, 
another list is unnecessary.
    Similarly, while it may be helpful to the CFIUS committee to have 
access to lists that identify countries of concern and broader 
technology trends, these are competencies already found in the National 
Intelligence Council (NIC), which already has a CFIUS support group and 
is required by FINSA to review CFIUS applications. The NIC would 
require additional resources if these tasks were added to its 
portfolio, but one important goal for change should be to expand 
CFIUS's current transactional focus.
    FINSA gives the NIC a statutory role in the CFIUS process, but it 
does not have a ``vote'' on the committee. This is appropriate and 
should not change, both because of our long-standing principle of not 
giving intelligence agencies a role in policy-making and because the 
Departments of Defense and Justice, who are member of the intelligence 
community (IC), already protect IC equities in the CFIUS process.
    CFIUS already has an implicit policy of greater scrutiny of 
transactions involving Chinese State Owned Enterprises (SOEs). These 
transactions already face significant hurdles, but it may be worth 
considering more explicit policies targeting SOEs.
    Adding new Cabinet agencies that do not have a national security as 
a primary mission to the CFIUS committee would be inadvisable. The net 
effect would be to complicate a process and dilute its focus on 
national security. Twelve years ago, the French Government blocked the 
acquisition of the yogurt maker Danone (known in the U.S. as Dannon) by 
an American company to protect a national champion. This sounds and was 
ridiculous. We do not want to find ourselves in a similar situation, 
nor would it be advisable to make the CFIUS process more complicated. 
This applies to the question of mandatory filing as well. One authority 
provided by FINSA was the ability of the President to return to any 
foreign acquisition and reverse it. This ``evergreen'' provision 
creates a powerful incentive for filing.
    The most difficult issue in considering how to expand the scope of 
covered transactions is whether to expand CFIUS authorities to cover 
``Greenfield'' investments. This is a difficult issue because many 
entrepreneurs, researcher and companies welcome Chinese investment in 
advanced technology. American companies maintain many research 
facilities in China. Finding a way to better grasp the potential risks 
of Chines greenfield divestment would require knowing the extent to 
which the source of Chinese investment was actually Beijing, ensuring 
that export control regulations are being observed, and giving CFIUS 
the scope to intervene if considered necessary for national security.
    The U.S. would also benefit from a more formal cooperative 
mechanism. Informal cooperation exists now but this could be 
strengthened. Japan has adopted new regulations on ``inward 
investment'' and the European Union is drafting regulation to provide 
guidance to its members. All of them are motivated by the same 
challenge (although they do not say it publicly), that challenge being 
China's industrial policies. There is a good opportunity now to 
increase formal information sharing and cooperation in these matters to 
ensure that if an acquisition is denied on one country that others are 
aware of the denial and the reasons for it.
    The decision to locate CFIUS in the Treasury Department was made to 
show that the goal is to encourage foreign investment while mitigating 
any risk to national security. This decision remains sound. It would 
not be useful to impose a ``net benefit'' or ``reciprocity'' test on 
foreign investment. These considerations are best left to the market, 
which takes these factors into account in its pricing mechanisms. The 
goal in any measure to strengthen CFIUS should be keep this open 
investment environment.
    U.S. efforts to get China to follow global norms on technology, 
trade, and investment is long overdue, but it will not work without a 
strategy on how to move ahead in technology. The United States has 
innate advantages, with the strongest scientific base in the world, 
leading technology companies, and an innovative culture that others 
find difficult to match. Strengthening and revitalizing the partnership 
among companies, universities, and Government can reignite U.S. 
innovation, but it will require a willingness to invest seriously in 
growth.
    Reports that the Trump administration will challenge China over 
unfair trade practices are good news, but this needs to be accompanied 
by policies to accelerate the creation of new goods and services in the 
U.S. Innovation has become a buzzword and everyone is for it. 
Innovation means creating new products and services, either by 
improving existing products or by taking advantage of scientific 
discoveries. Companies spend heavily on developing new products, but 
very little on developing new ideas. A lack of support for research 
limits American innovation and economic growth.
    Everyone agrees that innovation is essential for America prosperity 
and security, but America lives in a post-innovation environment of its 
own making. The Nation that is coasting on the science investments of 
the Cold War, and underinvestment in research slows growth in income 
and productivity. For developed economies, innovation is the best way 
to grow, by finding better ways to use existing resources to produce 
goods and services. There are many reasons why productivity growth in 
the United States is flat, but underinvestment in scientific research 
is one of them, and this creates a self-imposed disadvantage in 
military and economic competition with China.
    The innovation ecosystem is complex, interconnected, and global, 
but it is ``pay-to-play.'' Restoring U.S. strength in innovation 
requires investment, both by encouraging private sector investment and 
by Government spending in those areas, like basic research, where 
private sector spending is likely to be insufficient. China has 
allocated billions of dollars for investment for research in and 
acquisitions of advanced technologies that are key to future economic 
growth, including semiconductors, 5G telephony, artificial 
intelligence, and super computers. The United States allocates millions 
for the same efforts, meaning we are being outspent a thousand to one. 
We do not want to take media hyperbole about a war over AI or 
supercomputing too seriously, but we also do not want to watch as 
others pass us.
    There are other areas where policy changed could improve American 
innovation and economic performance. The recommendations of the 
International Monetary Fund for the U.S. economy include tax reform, 
less regulation, increased infrastructure spending, deficit reduction, 
educational improvements, and improved trade agreements. These can be 
contentious issues, but a decision to match China in investment for 
science and technology should not face the same debate.
    It is important not to exaggerate China's strength. It faces 
immense problems in Government debt, life-threatening pollution, 
mismanagement, and corruption, but under its current leaders, it 
intends to displace the United States and building globally dominant 
high tech industries is a part of this strategy. China's leaders are 
practical, however, and its behavior can be changed, however, if the 
U.S. develops a coherent strategy in cooperation with key allies. CFIUS 
is not the only tool we can use in this, but it is one of the most 
important. I thank the Committee for the opportunity to testify and 
look forward to any questions.
        RESPONSES TO WRITTEN QUESTIONS OF SENATOR BROWN
                        FROM CLAY LOWERY

Q.1. In light of recent news that 143 million Americans' 
personal information held by Equifax was hacked, and past 
incidents, like the OPM breach, in which millions of Federal 
employees' personal information was obtained by a foreign 
State, it seems to me that protecting Americans from cyber-
related threats is more important than ever.
    In your experience, if a foreign company that may have ties 
to a foreign Government is trying to acquire a U.S. company 
that has access to the personal data of millions of Americans, 
what national security concerns CFIUS would consider? How would 
CFIUS be able to mitigate those concerns?

A.1. When investigating a foreign direct investment (FDI), 
CFIUS examines (i) the threat of the acquirer, including its 
relationship to its home Government and (ii) the vulnerability 
of the asset being purchased. Increasingly, a key vulnerability 
for CFIUS to consider is the accumulation of substantial 
personally identifiable data. In most cases, CFIUS should 
generally be able to mitigate such concerns if they present a 
risk to national security. In fact, I would argue CFIUS has the 
obligation to try to find mitigation in such cases in order to 
meet its dual mandate: protect national security and promote 
foreign investment. In cases when the national security risks 
cannot be mitigated, CFIUS should, if necessary, recommend to 
the President that he block the transaction.

Q.2. As I mentioned in my opening statement, I think we need to 
keep a close watch on how much of the research capabilities in 
agriculture, particularly R&D relating to seeds, is owned by 
our adversaries. I believe additional oversight of our 
country's agricultural assets is critical to protecting our 
Nation's food supply. Do you believe that agriculture and food 
security are important to U.S. national security? In the case 
of CFIUS reviews of foreign acquisitions of agricultural assets 
for national security risks, is USDA appropriately included in 
the process?

A.2. I do think food security issues can rise to the level of 
being national security risks and transactions may need to be 
reviewed by CFIUS. CFIUS has had the ability to bring 
appropriate expertise throughout the Government, when 
necessary. In my experience, USDA has been brought into CFIUS 
transactions when necessary and appropriate. I would, however, 
suggest caution with regards to the proposal to make USDA a 
full member of CFIUS, primarily because the vast bulk of 
current transactions that go through CFIUS have little to do 
with USDA expertise and could be a poor allocation of scarce 
resources.

Q.3. In your testimony and at the hearing, you suggest that 
CFIUS could use more resources. If its resources were 
increased, how could those resources be most effectively used 
to better protect national security? Should it be allocated to 
monitoring M&A activity, reviews, investigations, mitigation, 
or something else?

A.3. CFIUS has been overloaded for the past couple of years and 
this has harmed its ability to conduct its investigations in an 
efficient and thorough manner. While having more resources for 
mitigation monitoring is probably necessary, this could be 
outsourced to trusted private sector service firms. The 
investigation and disposition of transactions, however, must be 
done by the Government and this seems to be the more immediate 
need.
                                ------                                


               RESPONSES TO WRITTEN QUESTIONS OF
               SENATOR MENENDEZ FROM CLAY LOWERY

Q.1. Last year, due to increasing pressure from Venezuela's 
economic crisis, PdVSA, Venezuela's State-owned oil company 
pledged 49.9 percent of its shares in U.S. oil company Citgo to 
Russia's Government-owned oil company, Rosneft. Citgo is owned 
by PdVSA, and it operates pipelines and oil refineries 
throughout the U.S. It is my understanding that Rosneft may 
have also acquired additional ownership shares of PdVSA on the 
open market, which could bring their ownership potential to 
more than 50 percent. Respected market analysts have predicted 
that PdVSA could default on its debt to Rosneft in the near 
future. If such a default were to occur, Rosneft would then 
acquire at least a 49.9 percent ownership stake in Citgo.
    If PdVSA defaults on its debt, Rosneft would acquire, at a 
minimum, a near-majority ownership stake in Citgo, which has 48 
petroleum product terminals, three refineries in Texas, 
Louisiana, and Illinois, and nine pipelines throughout the 
United States. In your opinion, would such an acquisition 
generate national security concerns?
    In your opinion, should CFIUS review any acquisition of 
Citgo by Rosneft?
    Are there any statutory limits that constrain CFIUS's 
authority to review foreign acquisitions of U.S.-based 
companies that are owned by foreign companies, as would be the 
case if Rosneft were to acquire Citgo?

A.1. It is hard for me to comment on this transaction because I 
do not have any insight into the specifics. In general, 
however, under the regulations (see Section 800.303 and Section 
800.304), CFIUS may find a convertible debt instrument to be an 
instance of a ``covered'' transaction as defined in the 
regulations.

Q.2. To my knowledge, CFIUS does not have a process requiring 
members to recuse themselves from a review if they have 
conflicts with a particular transaction.
    Would it concern you if members of the CFIUS had prior 
employment engagements, personal financial holdings, or other 
interests that served to impede their ability to objectively 
review transactions? In such cases, do you believe that CFIUS 
members should recuse themselves?
    In your opinion, should CFIUS establish a recusal process 
governing member participation in the event of potential 
conflicts?

A.2. CFIUS is essentially a committee of individual agencies in 
which the Treasury Department chairs. It is not an established 
bureau or other legal entity of the Treasury Department. The 
ethics requirements and regulations of each agency are 
applicable to the employees of those agencies so members should 
be recusing themselves when appropriate under current law. In 
my experience, individuals within CFIUS recused themselves from 
transactions based--I believe--on the ethics rules and 
commitments that they had with their respective agencies. 
During my time at CFIUS, a number of officials from different 
agencies did recuse themselves from transactions, even in cases 
where the connection to the purchasing or targeted firm was 
tenuous.
                                ------                                


        RESPONSES TO WRITTEN QUESTIONS OF SENATOR BROWN
                       FROM KEVIN J. WOLF

Q.1. In light of recent news that 143 million Americans' 
personal information held by Equifax was hacked, and past 
incidents, like the OPM breach, in which millions of Federal 
employees' personal information was obtained by a foreign 
State, it seems to me that protecting Americans from cyber-
related threats is more important than ever.
    In your experience, if a foreign company that may have ties 
to a foreign Government is trying to acquire a U.S. company 
that has access to the personal data of millions of Americans, 
what national security concerns CFIUS would consider? How would 
CFIUS be able to mitigate those concerns?

A.1. I agree that foreign Government access to or control over 
PII of U.S. persons, particularly Government employees, can 
present national security concerns warranting CFIUS mitigation 
or other action. If, for example, as part of its espionage 
activities directed against the United States, a foreign 
Government were to acquire large quantities of PII about U.S. 
Government employees, it could mine such data for compromising 
or embarrassing personal information that could be used to 
coerce employees to engage in activities contrary to the 
interests of the United States. Examples of such information 
could be indications of a child's drug problem, extra-marital 
affairs, gambling problems, or large financial debts. Often 
people would like to keep such personal information 
confidential. A foreign Government could trade on this general 
desire to motivate such employees to engage in illegal or 
unethical activities in exchange for a promise to not release 
the comprising information. In my experience, CFIUS has been 
able to mitigate such issues. Although the applicable laws 
prohibit me from referring to any particular case, there are, 
in general, ways of mitigating such concerns. For example, 
CFIUS could require as a condition for clearance that a U.S. 
company be created and then managed and controlled by U.S. 
citizens. This would ensure U.S. person control over all U.S. 
person PII involved in the transaction. The foreign buyer would 
still receive financial gain from the transaction and engage in 
other activities unrelated to the PII, but would not have the 
ability to access the PII because of the U.S. person 
intermediary that was established. Although every transaction 
is different in terms of risk and financial considerations, 
other mitigation efforts could include audits of how the PII is 
being secured.

Q.2. Which agency, or agencies, are best equipped to identify 
threats from the transfer of critical technology, dual-use 
technology or early stage technology know-how, intellectual 
property theft and espionage, and cyberthreats, to name a few?

A.2. No one agency is, could, or should be solely responsible 
for identifying such technology and know-how. The technologies 
are too varied. Issues warranting technology control range, for 
example, from bird flu information to Artificial Intelligence 
software to robotics technology to advanced semiconductor 
production technology. There are hundreds of other examples. 
Different agencies have different equities and expertise, which 
makes them better able to identify more precisely technologies 
and threats of particular concern.
    The Commerce Department's Bureau of Industry and Security 
(BIS) is, however, the best single agency to lead and 
coordinate efforts to identify and control such technologies. 
Indeed, the primary purpose for its existence and the 
regulations it administers--the Export Administration 
Regulations (EAR)--is to be responsible for such efforts. It 
has a staff of experts in most areas of technology, a licensing 
system to regulate the control of dual-use and commercial 
technologies of concern, policy staff to revise and update the 
controls, and, unlike any other export control agency, its own 
enforcement officials.
    The list of dual-use and commercial technologies, which 
include know-how, that are now controlled for export is the 
Commerce Control List (CCL). See: https://www.bis.doc.gov/
index.php/regulations/commerce-control-list-ccl. It is a 
lengthy, complex list that is the result of decades of 
interagency and allied efforts to identify dual-use and 
commercial technologies that warrant control for national 
security, foreign policy or other reasons. The list primarily 
implements controls agreed to with our multilateral regime 
partners to regulate the flow of commercial technologies and 
other items that also have military, nuclear, biological/
toxicological, and missile applications. It also contains some 
unilateral controls on items of particular concern to the 
United States, such as commercial satellites and related 
technology. It is relatively easy to update and can be revised 
without the need for new legislation.
    The difficult part is identifying new technologies of 
concern, which is particularly challenging given the fast 
evolution of commercial technologies. (This issue is a large 
part of what is motivating consideration of whether to expand 
the scope of CFIUS reviews.) During the Obama administration, 
Commerce worked closely with the Defense Department, State 
Department, and other departments to substantially revise and 
update the list of military and space items warranting control. 
This effort, which affected hundreds of thousands of military 
and space items, took all available extra time of hundreds of 
U.S. Government experts to complete over the course of 7 years. 
Indeed, we only published our final military and space reform 
regulations in the weeks prior to the end of the 
Administration.
    This reform effort was done on top of the existing and 
generally well-run interagency effort to update annually the 
existing lists of items controlled by the multilateral export 
control regimes. Regardless of what happens with the FIRRMA 
bill, I strongly believe that Congress should ask of, and 
provide support to, a massive Administration effort to identify 
the emerging critical technologies of concern that are not now 
controlled but should be. No one knows precisely what these 
technologies are, but BIS exists to lead such an interagency 
and whole-of-Government effort to identify and control them. 
There is no need to create whole new systems or agencies to do 
exactly what BIS is already specially designed to do. BIS and 
the agencies it works with will, however, need additional 
resources to create the regular process for researching, 
analyzing, and defining novel technologies identified in FIRRMA 
that are of concern. They are not as easy to identify and 
describe clearly as technology for use in traditional military, 
nuclear, biological/toxicological, or missile applications.
    With respect to the second part of your question, BIS is 
not the right agency to lead efforts to stem the theft of 
intellectual property, acts of espionage, or cyberthreats. 
Although BIS can certainly provide support to such efforts in 
several ways, such issues are better led by the Departments of 
Justice and Homeland Security.

Q.3. If a foreign company is engaged in any of these activities 
and is acquiring a U.S. firm, will CFIUS consider this as part 
of the review or investigation?

A.3. CFIUS indeed considers export control, IP theft, 
espionage, and cyber-issues when deciding whether to approve, 
mitigate, or block a proposed transaction. If another area of 
law can address the concern, such as export controls, then 
CFIUS does not act. If another area of law cannot, then CFIUS 
factors the threat into its analysis of what action it should 
take.

Q.4. Are there areas were CFIUS should play a larger role or 
have additional authority to address national security threats?

A.4. Yes. CFIUS should have more authority to: (1) control real 
estate transactions near sensitive military or other Government 
facilities; (2) share information with allies as part of its or 
common considerations of transactions, taking into account 
business proprietary and classified information sensitivities; 
and (3) address changes in existing relationships, such as 
through bankruptcies, that would create national security 
concerns. More importantly, CFIUS needs massively more funding 
and staffing to review a significant increase in covered 
transactions--and covered transactions that are more complex. 
The agencies can barely handle the workload they have now, 
which harms both national and economic security because of the 
uncertainty and delay it injects into the system. CFIUS also 
needs more resources in various departments to research and 
investigate covered transactions that are not filed with the 
committee.

Q.5. As I mentioned in my opening statement, I think we need to 
keep a close watch on how much of the research capabilities in 
agriculture, particularly R&D relating to seeds, is owned by 
our adversaries. I believe additional oversight of our 
country's agricultural assets is critical to protecting our 
Nation's food supply. Do you believe that agriculture and food 
security are important to U.S. national security? In the case 
of CFIUS reviews of foreign acquisitions of agricultural assets 
for national security risks, is USDA appropriately included in 
the process?

A.5. Yes. Without commenting on any particular case, 
acquisitions in the agricultural sector generally do not create 
national security threats. It is conceivable that a large 
enough one or one with a hostile buyer though could present 
national security issues. This is why CFIUS has the authority 
to--and indeed does invite--agencies not normally part of CFIUS 
to participate if they have particular equities in the matter. 
In my experience, USDA and other similar agencies are routinely 
invited to participate in cases involving agriculture or food 
security, and their expertise is given great weight by the 
committee as part of the CFIUS review process.

Q.6. In your testimony and at the hearing, you suggest that 
CFIUS could use more resources. If its resources were 
increased, how could those resources be most effectively used 
to better protect national security? Should it be allocated to 
monitoring M&A activity, reviews, investigations, mitigation, 
or something else?

A.6. Yes. CFIUS needs help in all these areas. Each of the 
agencies, particularly the economic agencies need more people 
with business and national security backgrounds reviewing 
transactions that occur but are not filed. They need an ever-
growing number of people to be involved in mitigation 
arrangements. Without such staff, mitigation will not be 
considered an option and the committee will effectively be 
forced to recommend a block rather than a resource-consuming 
mitigation arrangement. Every agency needs more subject matter 
experts in business and the technologies at issue. Now, the 
staff are taken from existing resources. As hiring freezes and 
budget cuts delay the recruiting of new staff, the problems 
compound. As the cases become more complex and more cases go to 
investigation, more staff are needed. Treasury and the other 
departments can give you a better assessment of resource needs, 
but, in my Government and private sector experience, resources 
for a significant number of new career officials is needed even 
without an expansion of CFIUS' scope. If it is expanded, it 
will take a significantly larger allocation and recruiting 
effort to get the staff needed to handle the hundreds or 
thousands of new cases that would come in.
                                ------                                


               RESPONSES TO WRITTEN QUESTIONS OF
              SENATOR MENENDEZ FROM KEVIN J. WOLF

Q.1. Last year, due to increasing pressure from Venezuela's 
economic crisis, PdVSA, Venezuela's State-owned oil company 
pledged 49.9 percent of its shares in U.S. oil company Citgo to 
Russia's Government-owned oil company, Rosneft. Citgo is owned 
by PdVSA, and it operates pipelines and oil refineries 
throughout the U.S. It is my understanding that Rosneft may 
have also acquired additional ownership shares of PdVSA on the 
open market, which could bring their ownership potential to 
more than 50 percent. Respected market analysts have predicted 
that PdVSA could default on its debt to Rosneft in the near 
future. If such a default were to occur, Rosneft would then 
acquire at least a 49.9 percent ownership stake in Citgo.
    If PdVSA defaults on its debt, Rosneft would acquire, at a 
minimum, a near-majority ownership stake in Citgo, which has 48 
petroleum product terminals, three refineries in Texas, 
Louisiana, and Illinois, and nine pipelines throughout the 
United States. In your opinion, would such an acquisition 
generate national security concerns?

A.1. I do not know enough about the financial arrangements to 
be able to opine. My experience with complex cases such as this 
is that they require a significant amount of analysis and 
detail before coming to a conclusion that there are no 
unresolved national security risks.

Q.2. In your opinion, should CFIUS review any acquisition of 
Citgo by Rosneft?

A.2. I do not know, but, based on the information provided, it 
seems as there would be foreign ownership or control of a U.S. 
business.

Q.3. Are there any statutory limits that constrain CFIUS's 
authority to review foreign acquisitions of U.S.-based 
companies that are owned by foreign companies, as would be the 
case if Rosneft were to acquire Citgo?

A.3. I do not believe so, but would need to research the issue 
to be certain.

Q.4. To my knowledge, CFIUS does not have a process requiring 
members to recuse themselves from a review if they have 
conflicts with a particular transaction.
    Would it concern you if members of the CFIUS had prior 
employment engagements, personal financial holdings, or other 
interests that served to impede their ability to objectively 
review transactions? In such cases, do you believe that CFIUS 
members should recuse themselves?

A.4. Yes, I would be concerned. The question describes a 
conflict of interest. Yes, if such conflicts exist, they should 
recuse themselves from the matter before the committee. If such 
a person refused to recuse himself or herself, I would speak up 
and ask that deliberations stop until the conflict issue was 
resolved.

Q.5. In your opinion, should CFIUS establish a recusal process 
governing member participation in the event of potential 
conflicts?

A.5. Although the idea is worth discussing, it is probably more 
efficient for the individual members to work with the ethics 
counsel at the departments for which they work to ensure their 
understanding of and compliance with applicable ethics rules. 
CFIUS is a committee; it is not a stand-alone agency. Thus, it 
does not have the infrastructure of a regular bureau, agency, 
or department to provide support to the members. Also, 
conflicts for Government officials do not potentially arise 
only in CFIUS matters, but also in many other aspects of their 
day-to-day work. Thus, it makes more sense for ethics education 
and compliance to be a focus of the employee's department. That 
said, your question suggests the existence of an issue that I 
do not know about. A reasonable response by the Treasury 
department CFIUS leaders if there is a possible issue would be 
to remind the staff and political members of the committee of 
their ethics obligations and that they should work with their 
department's counsel to understand the scope of their 
obligations.
                                ------                                


        RESPONSES TO WRITTEN QUESTIONS OF SENATOR BROWN
                      FROM JAMES A. LEWIS

Q.1. In light of recent news that 143 million Americans' 
personal information held by Equifax was hacked, and past 
incidents, like the OPM breach, in which millions of Federal 
employees' personal information was obtained by a foreign 
State, it seems to me that protecting Americans from cyber-
related threats is more important than ever.
    In your experience, if a foreign company that may have ties 
to a foreign Government is trying to acquire a U.S. company 
that has access to the personal data of millions of Americans, 
what national security concerns CFIUS would consider? How would 
CFIUS be able to mitigate those concerns?

A.1. I have recently written a CSIS Commentary on the risks of 
foreign access to data through the acquisition of American 
companies. Here is the link: https://www.csis.org/analysis/
understanding-ant-big-data-and-cfius.
    The gist of the essay is that CFIUS was created to protect 
the defense industrial base; homeland security and critical 
infrastructure were added by the FINSA reforms of 2007; now it 
is time to add access to data as a consideration. Legislation 
is not necessary to do this, but adding language on data to 
legislation would send a clear signal.

Q.2. As I mentioned in my opening statement, I think we need to 
keep a close watch on how much of the research capabilities in 
agriculture, particularly R&D relating to seeds, is owned by 
our adversaries. I believe additional oversight of our 
country's agricultural assets is critical to protecting our 
Nation's food supply. Do you believe that agriculture and food 
security are important to U.S. national security? In the case 
of CFIUS reviews of foreign acquisitions of agricultural assets 
for national security risks, is USDA appropriately included in 
the process?

A.2. That probability is very low that nations seeking to use 
force or coercion against the U.S. does will exploit food as a 
vulnerability. The one area where consideration of agriculture 
may have merit is in the acquisition of advanced research or 
genetic manipulation techniques. CFIUS, in these cases, could 
consult with USDA to consider the risk from the potential loss 
of intellectual property.

Q.3. In your testimony and at the hearing, you suggest that 
CFIUS could use more resources. If its resources were 
increased, how could those resources be most effectively used 
to better protect national security? Should it be allocated to 
monitoring M&A activity, reviews, investigations, mitigation, 
or something else?

A.3. Better tracking of M&A activity in the U.S. and abroad, 
including trends in research and development that could lead to 
new companies or products, would be useful, as would additional 
resources to the Intelligence Community entity that supports 
CFIUS (which I occasionally advise). Monitoring of risk-
mitigation agreements are best performed by the Defense 
Security Service (DSS) and an expanded workload would require 
more resources.
                                ------                                


               RESPONSES TO WRITTEN QUESTIONS OF
              SENATOR MENENDEZ FROM JAMES A. LEWIS

Q.1. Last year, due to increasing pressure from Venezuela's 
economic crisis, PdVSA, Venezuela's State-owned oil company 
pledged 49.9 percent of its shares in U.S. oil company Citgo to 
Russia's Government-owned oil company, Rosneft. Citgo is owned 
by PdVSA, and it operates pipelines and oil refineries 
throughout the U.S. It is my understanding that Rosneft may 
have also acquired additional ownership shares of PdVSA on the 
open market, which could bring their ownership potential to 
more than 50 percent. Respected market analysts have predicted 
that PdVSA could default on its debt to Rosneft in the near 
future. If such a default were to occur, Rosneft would then 
acquire at least a 49.9 percent ownership stake in Citgo.
    If PdVSA defaults on its debt, Rosneft would acquire, at a 
minimum, a near-majority ownership stake in Citgo, which has 48 
petroleum product terminals, three refineries in Texas, 
Louisiana, and Illinois, and nine pipelines throughout the 
United States. In your opinion, would such an acquisition 
generate national security concerns?
    In your opinion, should CFIUS review any acquisition of 
Citgo by Rosneft?

A.1. CFIUS should review this acquisition.

Q.2. Are there any statutory limits that constrain CFIUS's 
authority to review foreign acquisitions of U.S.-based 
companies that are owned by foreign companies, as would be the 
case if Rosneft were to acquire Citgo?

A.2. I do not believe there are limitations if some link to the 
U.S. can be demonstrated. The legislation proposed by Senator 
Cornyn would help make clear that CFIUS has the authority to 
review such transactions.

Q.3. To my knowledge, CFIUS does not have a process requiring 
members to recuse themselves from a review if they have 
conflicts with a particular transaction.
    Would it concern you if members of the CFIUS had prior 
employment engagements, personal financial holdings, or other 
interests that served to impede their ability to objectively 
review transactions? In such cases, do you believe that CFIUS 
members should recuse themselves?
    In your opinion, should CFIUS establish a recusal process 
governing member participation in the event of potential 
conflicts?

A.3. CFIUS members represent agencies and do not act in their 
individual capacity. Agency positions go through an internal 
clearance process, and the CFIUS process itself works against 
self-interest. If an individual representative has a conflict 
of interest, he or she would normally be replaced by another 
individual from the agency in question, but in general, what is 
being presented is an agency view.
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