15 U.S.C. § 4652 — Semiconductor incentives

Page 2138 TITLE 15—COMMERCE AND TRADE § 4652 1 So in original. Probably should be followed by a semicolon. institutions of higher education, research institutions, and civil society, as appropriate and consistent with law, to provide individual perspectives and advice to the Steering Council on the effective implementation of the Act. (f) The Co-Chairs may consult with the President’s Council of Advisors on Science and Technology, as ap- propriate and consistent with law, to provide advice to the Steering Council. SEC. 4. Effective and Efficient Stewardship and Over- sight of Taxpayer Resources. The Director of the Office of Management and Budget shall take appropriate actions to promote and monitor, with respect to execution of the Act, the effective and efficient stewardship and oversight of taxpayer resources, in collaboration with the Steering Council and the heads of agencies respon- sible for implementing the Act. SEC. 5. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect: (i) the authority granted by law to an executive de- partment or agency, or the head thereof; or (ii) the functions of the Director of the Office of Man- agement and Budget relating to budgetary, administra- tive, or legislative proposals. (b) This order shall be implemented consistent with applicable law and subject to the availability of appro- priations. (c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforce- able at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person. J.R. BIDEN, JR. § 4652. Semiconductor incentives (a) Financial assistance program (1) In general The Secretary shall establish in the Depart- ment of Commerce a program that, in accord- ance with the requirements of this section and subject to the availability of appropriations for such purposes, provides Federal financial assistance to covered entities to incentivize investment in facilities and equipment in the United States for the fabrication, assembly, testing, advanced packaging, production, or research and development of semiconductors, materials used to manufacture semiconduc- tors, or semiconductor manufacturing equip- ment. (2) Procedure (A) In general A covered entity shall submit to the Sec- retary an application that describes the project for which the covered entity is seek- ing financial assistance under this section. (B) Eligibility In order for a covered entity to qualify for financial assistance under this section, the covered entity shall demonstrate to the Sec- retary, in the application submitted by the covered entity under subparagraph (A), that— (i) the covered entity has a documented interest in constructing, expanding, or modernizing a facility described in para- graph (1) 1 (ii) with respect to the project described in clause (i), the covered entity has— (I) been offered a covered incentive; (II) made commitments to worker and community investment, including through— (aa) training and education benefits paid by the covered entity; and (bb) programs to expand employment opportunity for economically dis- advantaged individuals; and (III) secured commitments from re- gional educational and training entities and institutions of higher education to provide workforce training, including programming for training and job place- ment of economically disadvantaged in- dividuals; (IV) an executable plan to sustain the facility described in clause (i) without additional Federal financial assistance under this subsection for facility sup- port; (V) determined— (aa) the type of semiconductor tech- nology, equipment, materials, or re- search and development the covered entity will produce at the facility de- scribed in clause (i); and (bb) the customers, or categories of customers, to which the covered entity plans to sell the semiconductor tech- nology, equipment, materials, or re- search and development described in item (aa); and (VI) documented, to the extent prac- ticable, workforce needs and developed a strategy to meet such workforce needs consistent with the commitments de- scribed in subclauses (II) and (III); (iii) with respect to the project described in clause (i), the covered entity has an exe- cutable plan to identify and mitigate rel- evant semiconductor supply chain security risks, such as risks associated with access, availability, confidentiality, integrity, and a lack of geographic diversification in the covered entity’s supply chain; and (iv) with respect to any project for the production, assembly, or packaging of semiconductors, the covered entity has implemented policies and procedures to combat cloning, counterfeiting, and re- labeling of semiconductors, as applicable. (C) Considerations for review With respect to the review by the Sec- retary of an application submitted by a cov- ered entity under subparagraph (A)— (i) the Secretary may not approve the application unless the Secretary— (I) confirms that the covered entity has satisfied the eligibility criteria under subparagraph (B); (II) determines that the project to which the application relates is in the economic and national security interests of the United States; and (III) has notified the appropriate com- mittees of Congress not later than 15 days before making any commitment to provide a grant to any covered entity that exceeds $10,000,000; Page 2139 TITLE 15—COMMERCE AND TRADE § 4652 (ii) the Secretary may consider wheth- er— (I) the covered entity has previously received financial assistance made under this subsection; (II) the governmental entity offering the applicable covered incentive has ben- efitted from financial assistance pre- viously provided under this subsection; (III) the covered entity has dem- onstrated that they are responsive to the national security needs or requirements established by the Intelligence Commu- nity (or an agency thereof), the National Nuclear Security Administration, or the Department of Defense; and (IV) when practicable, a consortium that is considered a covered entity in- cludes a small business concern, as de- fined under section 632 of this title, not- withstanding section 121.103 of title 13, Code of Federal Regulations; (iii) the Secretary shall consider the type of semiconductor technology pro- duced by the covered entity and whether that semiconductor technology advances the economic and national security inter- ests of the United States; (iv) the Secretary may not approve an application, unless the covered entity pro- vides a plan that does not use Federal fi- nancial assistance to assist efforts to phys- ically relocate existing facility infrastruc- ture to another jurisdiction within the United States, unless the project is in the interest of the United States; and (v) the Secretary may not approve an ap- plication if the Secretary determines that the covered entity is a foreign entity of concern. (D) Priority In awarding Federal financial assistance to covered entities under this subsection, the Secretary shall— (i) give priority to ensuring that a cov- ered entity receiving financial assistance will— (I) manufacture semiconductors nec- essary to address gaps and vulnerabilities in the domestic supply chain across a diverse range of tech- nology and process nodes; and (II) provide a secure supply of semi- conductors necessary for the national se- curity, manufacturing, critical infra- structure, and technology leadership of the United States and other essential elements of the economy of the United States; and (ii) ensure that the assistance is awarded to covered entities for both advanced and mature technology nodes to meet the pri- orities described in clause (i). (E) Records The Secretary may request records and in- formation from the applicant to review the status of a covered entity. The applicant shall provide the records and information re- quested by the Secretary. (3) Amount (A) In general The Secretary shall determine the appro- priate amount and funding type for each fi- nancial assistance award made to a covered entity under this subsection. (B) Larger investment Federal investment in any individual project shall not exceed $3,000,000,000 unless the Secretary, in consultation with the Sec- retary of Defense and the Director of Na- tional Intelligence, recommends to the President, and the President certifies and re- ports to the appropriate committees of Con- gress, that a larger investment is necessary to— (i) significantly increase the proportion of reliable domestic supply of semiconduc- tors relevant for national security and economic competitiveness that can be met through domestic production; and (ii) meet the needs of national security. (4) Use of funds A covered entity that receives a financial as- sistance award under this subsection may only use the financial assistance award amounts to— (A) finance the construction, expansion, or modernization of a facility or equipment to be used for the purposes described in para- graph (1), as documented in the application submitted by the covered entity under para- graph (2)(B), as determined necessary by the Secretary for purposes relating to the na- tional security and economic competitive- ness of the United States; (B) support workforce development for a facility described in subparagraph (A); (C) support site development and mod- ernization for a facility described in sub- paragraph (A); and (D) pay reasonable costs related to the op- erating expenses for a facility described in subparagraph (A), including specialized workforce, essential materials, and complex equipment maintenance, as determined by the Secretary. (5) Clawback (A) Target dates For all awards to covered entities, the Sec- retary shall— (i) determine target dates by which a project shall commence and complete; and (ii) set these dates by the time of award. (B) Progressive recovery for delays If the project does not commence and com- plete by the set target dates in (A), the Sec- retary shall progressively recover up to the full amount of an award provided to a cov- ered entity under this subsection. (C) Technology clawback The Secretary shall recover the full amount of an award provided to a covered entity under this subsection if, during the applicable term with respect to the award, the covered entity knowingly engages in any joint research or technology licensing ef- fort— Page 2140 TITLE 15—COMMERCE AND TRADE § 4652 (i) with a foreign entity of concern; and (ii) that relates to a technology or prod- uct that raises national security concerns, as determined by the Secretary and com- municated to the covered entity before en- gaging in such joint research or tech- nology licensing. (D) Waiver In the case of delayed projects, the Sec- retary may waive elements of the clawback provisions incorporated in each award after— (i) making a formal determination that circumstances beyond the ability of the covered entity to foresee or control are re- sponsible for delays; and (ii) submitting congressional notifica- tion. (E) Congressional notification The Secretary shall notify appropriate committees of Congress— (i) of the clawback provisions attending each such award; and (ii) of any waivers provided, not later than 15 days after the date on which such a waiver was provided. (6) Expansion clawback (A) Definition of legacy semiconductor (i) In general In this paragraph, the term ‘‘legacy semiconductor’’— (I) includes— (aa) a semiconductor technology that is of the 28 nanometer generation or older for logic; (bb) with respect to memory tech- nology, analog technology, packaging technology, and any other relevant technology, any legacy generation of semiconductor technology relative to the generation described in item (aa), as determined by the Secretary, in consultation with the Secretary of De- fense and the Director of National In- telligence; and (cc) any additional semiconductor technology identified by the Secretary in a public notice issued under clause (ii); and (II) does not include a semiconductor that is critical to national security, as determined by the Secretary, in con- sultation with the Secretary of Defense and the Director of National Intel- ligence. (ii) Updates Not later than 2 years after August 9, 2022, and not less frequently than once every 2 years thereafter for the 8-year pe- riod after the last award under this section is made, the Secretary, after public notice and an opportunity for comment and if ap- plicable and necessary, shall issue a public notice identifying any additional semicon- ductor technology included in the meaning of the term ‘‘legacy semiconductor’’ under clause (i). (iii) Functions of the Secretary The functions of the Secretary under this paragraph shall not be subject to sec- tions 551, 553 through 559, and 701 through 706 of title 5. (iv) Consultation In carrying out clause (ii), the Secretary shall consult with the Director of National Intelligence and the Secretary of Defense. (v) Considerations In carrying out clause (ii), the Secretary shall consider— (I) state-of-the-art semiconductor technologies in the United States and internationally, including in foreign countries of concern; and (II) consistency with export controls relating to semiconductors. (B) Definition of semiconductor manufac- turing In this paragraph, the term ‘‘semicon- ductor manufacturing’’— (i) has the meaning given the term by the Secretary, in consultation with the Secretary of Defense and the Director of National Intelligence; and (ii) includes front-end semiconductor fabrication. (C) Required agreement (i) In general On or before the date on which the Sec- retary awards Federal financial assistance to a covered entity under this section, the covered entity shall enter into an agree- ment with the Secretary specifying that, during the 10-year period beginning on the date of the award, subject to clause (ii), the covered entity may not engage in any significant transaction, as defined in the agreement, involving the material expan- sion of semiconductor manufacturing ca- pacity in the People’s Republic of China or any other foreign country of concern. (ii) Exceptions The prohibition in the agreement re- quired under clause (i) shall not apply to— (I) existing facilities or equipment of a covered entity for manufacturing legacy semiconductors; or (II) significant transactions involving the material expansion of semiconductor manufacturing capacity that— (aa) produces legacy semiconductors; and (bb) predominately serves the mar- ket of a foreign country of concern. (iii) Affiliated group For the purpose of applying the require- ments in an agreement required under clause (i), a covered entity shall include the covered entity receiving financial as- sistance under this section, as well as any member of the covered entity’s affiliated group under section 1504(a) of title 26, without regard to section 1504(b)(3) of title 26. Page 2141 TITLE 15—COMMERCE AND TRADE § 4652 (D) Notification requirements During the applicable term of the agree- ment of a covered entity required under sub- paragraph (C)(i), the covered entity shall no- tify the Secretary of any planned significant transactions of the covered entity involving the material expansion of semiconductor manufacturing capacity in the People’s Re- public of China or any other foreign country of concern. (E) Violation of agreement (i) Notification to covered entities Not later than 90 days after the date of receipt of a notification described in sub- paragraph (D) from a covered entity, the Secretary, in consultation with the Sec- retary of Defense and the Director of Na- tional Intelligence, shall— (I) determine whether the significant transaction described in the notification would be a violation of the agreement of the covered entity required under sub- paragraph (C)(i); and (II) notify the covered entity of the Secretary’s decision under subclause (I). (ii) Opportunity to remedy Upon a notification under clause (i)(II) that a planned significant transaction of a covered entity is a violation of the agree- ment of the covered entity required under subparagraph (C)(i), the Secretary shall— (I) immediately request from the cov- ered entity tangible proof that the planned significant transaction has ceased or been abandoned; and (II) provide the covered entity 45 days to produce and provide to the Secretary the tangible proof described in subclause (I). (iii) Failure by the covered entity to cease or remedy the activity Subject to clause (iv), if a covered entity fails to remedy a violation as set forth under clause (ii), the Secretary shall re- cover the full amount of the Federal finan- cial assistance provided to the covered en- tity under this section. (iv) Mitigation If the Secretary, in consultation with the Secretary of Defense and the Director of National Intelligence, determines that a covered entity planning a significant transaction that would violate the agree- ment required under subparagraph (C)(i) could take measures in connection with the transaction to mitigate any risk to na- tional security, the Secretary— (I) may negotiate, enter into, and en- force any agreement or condition for the mitigation; and, (II) waive the recovery requirement under clause (iii). (F) Submission of records (i) In general The Secretary may request from a cov- ered entity records and other necessary in- formation to review the compliance of the covered entity with the agreement re- quired under subparagraph (C)(i). (ii) Eligibility In order to be eligible for Federal finan- cial assistance under this section, a cov- ered entity shall agree to provide records and other necessary information requested by the Secretary under clause (i). (G) Confidentiality of records (i) In general Subject to clause (ii), any information derived from records or necessary informa- tion disclosed by a covered entity to the Secretary under this section— (I) shall be exempt from disclosure under section 552(b)(3) of title 5; and (II) shall not be made public. (ii) Exceptions Clause (i) shall not prevent the disclo- sure of any of the following by the Sec- retary: (I) Information relevant to any admin- istrative or judicial action or pro- ceeding. (II) Information that a covered entity has consented to be disclosed to third parties. (III) Information necessary to fulfill the requirement of the congressional no- tification under subparagraph (H). (H) Congressional notification Not later than 60 days after the date on which the Secretary finds a violation by a covered entity of an agreement required under subparagraph (C)(i), and after pro- viding the covered entity with an oppor- tunity to provide information in response to that finding, the Secretary shall provide to the appropriate Committees of Congress— (i) a notification of the violation; (ii) a brief description of how the Sec- retary determined the covered entity to be in violation; and (iii) a summary of any actions or planned actions by the Secretary in re- sponse to the violation. (I) Regulations The Secretary may issue regulations im- plementing this paragraph. (b) Coordination required In carrying out the program established under subsection (a), the Secretary shall coordinate with the Secretary of State, the Secretary of Defense, the Secretary of Homeland Security, the Secretary of Energy, and the Director of Na- tional Intelligence. (c) GAO reviews The Comptroller General of the United States shall— (1) not later than 2 years after the date of disbursement of the first financial award under subsection (a), and biennially thereafter for 10 years, conduct a review of the program established under subsection (a), which shall include, at a minimum— (A) a determination of the number of in- stances in which financial assistance awards Page 2142 TITLE 15—COMMERCE AND TRADE § 4652 2 So in original. The period probably should be ‘‘; and’’. were provided under that subsection during the period covered by the review; (B) an evaluation of how— (i) the program is being carried out, in- cluding how recipients of financial assist- ance awards are being selected under the program; (ii) other Federal programs are leveraged for manufacturing, research, and training to complement the financial assistance awards awarded under the program; and (iii) the Federal Government could take specific actions to address shortages in the semiconductor supply chain, including— (I) demand-side incentives, including incentives related to the information and communications technology supply chain; and (II) additional incentives, at national and global scales, to accelerate utiliza- tion of leading-edge semiconductor nodes to address shortages in mature semicon- ductor nodes; and (C) a description of the outcomes of projects supported by awards made under the program, including a description of— (i) facilities described in subsection (a)(1) that were constructed, expanded, or mod- ernized as a result of awards made under the program; (ii) research and development carried out with awards made under the program; (iii) workforce training programs carried out with awards made under the program, including efforts to hire individuals from disadvantaged populations; and (iv) the impact of projects on the United States share of global microelectronics production; (v) how projects are supporting the semi- conductor needs of critical infrastructure industries in the United States, including those industries designated by the Cybersecurity and Infrastructure Security Agency as essential infrastructure indus- tries; and (D) drawing on data made available by the Department of Labor or other sources, to the extent practicable, an analysis of— (i) semiconductor industry data regard- ing businesses that are— (I) majority owned and controlled by minority individuals; (II) majority owned and controlled by women; or (III) majority owned and controlled by both women and minority individuals; (ii) the number and amount of contracts and subcontracts awarded by each covered entity using funds made available under subsection (a) disaggregated by recipients of each such contract or subcontracts that are majority owned and controlled by mi- nority individuals and majority owned and controlled by women; and (iii) aggregated workforce data, includ- ing data by race or ethnicity, sex, and job categories.2 (2) submit to the appropriate committees of Congress the results of each review conducted under paragraph (1). (d) Sense of Congress It is the sense of Congress that, in carrying out subsection (a), the Secretary should allocate funds in a manner that— (1) strengthens the security and resilience of the semiconductor supply chain, including by mitigating gaps and vulnerabilities; (2) provides a supply of secure semiconduc- tors relevant for national security; (3) strengthens the leadership of the United States in semiconductor technology; (4) grows the economy of the United States and supports job creation in the United States; (5) bolsters the semiconductor and skilled technical workforces in the United States; (6) promotes the inclusion of economically disadvantaged individuals and small busi- nesses; and (7) improves the resiliency of the semicon- ductor supply chains of critical manufacturing industries. (e) Additional assistance for mature technology nodes (1) In general The Secretary shall establish within the pro- gram established under subsection (a) an addi- tional program that provides Federal financial assistance to covered entities to incentivize investment in facilities and equipment in the United States for the fabrication, assembly, testing, or packaging of semiconductors at mature technology nodes. (2) Eligibility and requirements In order for an entity to qualify to receive Federal financial assistance under this sub- section, the covered entity shall agree to— (A) submit an application under subsection (a)(2)(A); (B) meet the eligibility requirements under subsection (a)(2)(B); (C)(i) provide equipment or materials for the fabrication, assembly, testing, or pack- aging of semiconductors at mature tech- nology nodes in the United States; or (ii) fabricate, assemble using packaging, or test semiconductors at mature technology nodes in the United States; (D) commit to using any Federal financial assistance received under this section to in- crease the production of semiconductors at mature technology nodes; and (E) be subject to the considerations de- scribed in subsection (a)(2)(C). (3) Procedures In granting Federal financial assistance to covered entities under this subsection, the Secretary may use the procedures established under subsection (a). (4) Considerations In addition to the considerations described in subsection (a)(2)(C), in granting Federal fi- nancial assistance under this subsection, the Secretary may consider whether a covered en- tity produces or supplies equipment or mate- Page 2143 TITLE 15—COMMERCE AND TRADE § 4652 3 So in original. Probably should be ‘‘or’’. rials used in the fabrication, assembly, test- ing, or packaging of semiconductors at mature technology nodes that are necessary to sup- port a critical manufacturing industry. (5) Priority In awarding Federal financial assistance to covered entities under this subsection, the Secretary shall give priority to covered enti- ties that support the resiliency of semicon- ductor supply chains for critical manufac- turing industries in the United States. (6) Authorization of appropriations There are authorized to be appropriated to the Secretary to carry out this subsection $2,000,000,000, which shall remain available until expended. (f) Construction projects Section 3212 of title 42 shall apply to a con- struction project that receives financial assist- ance from the Secretary under this section. (g) Loans and loan guarantees (1) In general Subject to the requirements of subsection (a) and this subsection, the Secretary may make or guarantee loans to covered entities as financial assistance under this section. (2) Conditions The Secretary may select eligible projects to receive loans or loan guarantees under this subsection if the Secretary determines that— (A) the covered entity— (i) has a reasonable prospect of repaying the principal and interest on the loan; and (ii) has met such other criteria as may be established and published by the Sec- retary; and (B) the amount of the loan (when com- bined with amounts available to the loan re- cipient from other sources) will be sufficient to carry out the project. (3) Reasonable prospect of repayment The Secretary shall base a determination of whether there is a reasonable prospect of re- payment of the principal and interest on a loan under paragraph (2)(A)(i) on a comprehen- sive evaluation of whether the covered entity has a reasonable prospect of repaying the prin- cipal and interest, including, as applicable, an evaluation of— (A) the strength of the contractual terms of the project the covered entity plans to perform (if commercially reasonably avail- able); (B) the forecast of noncontractual cash flows supported by market projections from reputable sources, as determined by the Sec- retary; (C) cash sweeps and other structure en- hancements; (D) the projected financial strength of the covered entity— (i) at the time of loan close; and (ii) throughout the loan term after the project is completed; (E) the financial strength of the investors and strategic partners of the covered entity, if applicable; (F) other financial metrics and analyses that the private lending community and na- tionally recognized credit rating agencies rely on, as determined appropriate by the Secretary; and (G) such other criteria the Secretary may determine relevant. (4) Rates, terms, and repayments of loans A loan provided under this subsection— (A) shall have an interest rate that does not exceed a level that the Secretary deter- mines appropriate, taking into account, as of the date on which the loan is made, the cost of funds to the Department of the Treasury for obligations of comparable ma- turity; and (B) shall have a term of not more than 25 years. (5) Additional terms A loan or guarantee provided under this sub- section may include any other terms and con- ditions that the Secretary determines to be appropriate. (6) Responsible lender No loan may be guaranteed under this sub- section, unless the Secretary determines that— (A) the lender is responsible; and (B) adequate provision is made for serv- icing the loan on reasonable terms and pro- tecting the financial interest of the United States. (7) Advanced budget authority New loans may not be obligated and new loan guarantees may not be committed to under this subsection, unless appropriations of budget authority to cover the costs of such loans and loan guarantees are made in ad- vance in accordance with section 661c(b) of title 2. (8) Continued oversight The loan agreement for a loan guaranteed under this subsection shall provide that no provision of the loan agreement may be amended of 3 waived without the consent of the Secretary. (h) Authority relating to environmental review (1) In general Notwithstanding any other provision of law, the provision by the Secretary of Federal fi- nancial assistance for a project described in this section that satisfies the requirements under subsection (a)(2)(C)(i) of this section shall not be considered to be a major Federal action under the National Environmental Pol- icy Act of 1969 (42 U.S.C. 4321 et seq.) (referred to in this subsection as ‘‘NEPA’’) or an under- taking for the purposes of division A of sub- title III of title 54 if— (A) the activity described in the applica- tion for that project has commenced not later than December 31, 2024; (B) the Federal financial assistance pro- vided is in the form of a loan or loan guar- antee; or Page 2144 TITLE 15—COMMERCE AND TRADE § 4652 (C) the Federal financial assistance pro- vided, excluding any loan or loan guarantee, comprises not more than 10 percent of the total estimated cost of the project. (2) Savings clause Nothing in this subsection may be construed as altering whether an activity described in subparagraph (A), (B), or (C) of paragraph (1) is considered to be a major Federal action under NEPA, or an undertaking under division A of subtitle III of title 54, for a reason other than that the activity is eligible for Federal finan- cial assistance provided under this section. (i) Oversight Not later than 4 years after disbursement of the first financial award under subsection (a), the Inspector General of the Department of Commerce shall audit the program under this section to assess— (1) whether the eligibility requirements for covered entities receiving financial assistance under the program are met; (2) whether eligible entities use the financial assistance received under the program in ac- cordance with the requirements of this sec- tion; (3) whether the covered entities receiving fi- nancial assistance under this program have carried out the commitments made to worker and community investment under subsection (a)(2)(B)(ii)(II) by the target date for comple- tion set by the Secretary under subsection (a)(5)(A); (4) whether the required agreement entered into by covered entities and the Secretary under subsection (a)(6)(C)(i), including the no- tification process, has been carried out to pro- vide covered entities sufficient guidance about a violation of the required agreement; (5) whether the Secretary has provided time- ly Congressional notification about violations of the required agreement under subsection (a)(6)(C)(i), including the required information on how the Secretary reached a determination of whether a covered entity was in violation under subsection (a)(6)(E); and (6) whether the Secretary has sufficiently re- viewed any covered entity engaging in a listed exception under subsection (a)(6)(C)(ii). (j) Prohibition on use of funds No funds made available under this section may be used to construct, modify, or improve a facility outside of the United States. (Pub. L. 116–283, div. H, title XCIX, § 9902, Jan. 1, 2021, 134 Stat. 4846; Pub. L. 117–167, div. A, §§ 103(b), 105(a), Aug. 9, 2022, 136 Stat. 1380, 1391; Pub. L. 118–105, § 2(1), Oct. 2, 2024, 138 Stat. 1587.) Editorial Notes REFERENCES IN TEXT The National Environmental Policy Act of 1969, re- ferred to in subsec. (h)(1), is Pub. L. 91–190, Jan. 1, 1970, 83 Stat. 852, which is classified generally to chapter 55 (§ 4321 et seq.) of Title 42, The Public Health and Wel- fare. For complete classification of this Act to the Code, see Short Title note set out under section 4321 of Title 42 and Tables. AMENDMENTS 2024—Subsecs. (h) to (j). Pub. L. 118–105 added subsec. (h) and redesignated former subsecs. (h) and (i) as (i) and (j), respectively. 2022—Subsec. (a)(1). Pub. L. 117–167, § 103(b)(1), sub- stituted ‘‘for the fabrication’’ for ‘‘for semiconductor fabrication’’ and ‘‘of semiconductors, materials used to manufacture semiconductors, or semiconductor manu- facturing equipment.’’ for period at end and inserted ‘‘production,’’ before ‘‘or research and development’’. Subsec. (a)(2)(B)(ii)(V), (VI). Pub. L. 117–167, § 103(b)(2)(B), added subcls. (V) and (VI). Subsec. (a)(2)(B)(iii), (iv). Pub. L. 117–167, § 103(b)(2)(A), (C), added cls. (iii) and (iv). Subsec. (a)(2)(C)(i)(II). Pub. L. 117–167, § 103(b)(2)(D)(i)(I), substituted ‘‘is in the economic and national security interests of the United States’’ for ‘‘is in the interest of the United States’’. Subsec. (a)(2)(C)(i)(III). Pub. L. 117–167, § 103(b)(2)(D)(i)(II), struck out ‘‘and’’ at end. Subsec. (a)(2)(C)(iii) to (v). Pub. L. 117–167, § 103(b)(2)(D)(ii)–(iv), added cls. (iii) and (iv) and redesig- nated former cl. (iii) as (v). Subsec. (a)(2)(D), (E). Pub. L. 117–167, § 103(b)(2)(E), (F), added subpar. (D) and redesignated former subpar. (D) as (E). Subsec. (a)(4)(A). Pub. L. 117–167, § 103(b)(3), sub- stituted ‘‘used for the purposes’’ for ‘‘used for semi- conductors’’. Subsec. (a)(5)(A). Pub. L. 117–167, § 103(b)(4)(A), struck out ‘‘major’’ before ‘‘awards’’ in introductory provi- sions. Subsec. (a)(5)(D). Pub. L. 117–167, § 103(b)(4)(B), struck out ‘‘major’’ before ‘‘award’’ in introductory provi- sions. Subsec. (a)(5)(E)(i). Pub. L. 117–167, § 103(b)(4)(C), struck out ‘‘major’’ before ‘‘award’’. Subsec. (a)(6). Pub. L. 117–167, § 103(b)(5), added par. (6). Subsec. (c)(1)(B)(iii). Pub. L. 117–167, § 105(a)(1)(A), added cl. (iii). Subsec. (c)(1)(C)(v). Pub. L. 117–167, § 105(a)(1)(B), added cl. (v). Subsec. (c)(1)(D). Pub. L. 117–167, § 105(a)(2), which di- rected amendment of subsec. (c) by adding subpar. (D) after par. (1)(C)(iv), was executed by making the addi- tion after par. (1)(C)(v), to reflect the probable intent of Congress and the addition of cl. (v) by Pub. L. 117–167, § 105(a)(1)(B). See above. Subsecs. (d) to (i). Pub. L. 117–167, § 103(b)(6), added subsecs. (d) to (i). Statutory Notes and Related Subsidiaries OPPORTUNITY AND INCLUSION Pub. L. 117–167, div. A, § 104, Aug. 9, 2022, 136 Stat. 1390, provided that: ‘‘(a) ESTABLISHMENT.—Not later than 180 days after the date of enactment of this Act [Aug. 9, 2022], the Secretary of Commerce shall establish activities in the Department of Commerce, within the program estab- lished under section 9902 of the William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021 (15 U.S.C. 4652), to carry out this sec- tion using funds appropriated under this Act [div. A of Pub. L. 117–167, see Tables for classification]. ‘‘(b) IN GENERAL.—The Secretary of Commerce shall assign personnel to lead and support the activities car- ried out under this section, including coordination with other workforce development activities of the Depart- ment of Commerce or of Federal agencies, as defined in section 551 of title 5, United States Code, as appro- priate. ‘‘(c) ACTIVITIES.—Personnel assigned by the Secretary to carry out the activities under this section shall— ‘‘(1) assess the eligibility of a covered entity, as de- fined in section 9901 of the William M. (Mac) Thorn- berry National Defense Authorization Act for Fiscal Year 2021 (15 U.S.C. 4651), for financial assistance for Page 2145 TITLE 15—COMMERCE AND TRADE § 4653 1 So in original. a project with respect to the requirements under sub- clauses (II) and (III) of section 9902(a)(2)(B)(ii) of the William M. (Mac) Thornberry National Defense Au- thorization Act for Fiscal Year 2021 (15 U.S.C. 4652(a)(2)(B)(ii)(II) and (III)); ‘‘(2) ensure that each covered entity, as defined in section 9901 of the William M. (Mac) Thornberry Na- tional Defense Authorization Act for Fiscal Year 2021 (15 U.S.C. 4651), that is awarded financial assistance under section 9902 of that Act (15 U.S.C. 4652) is car- rying out the commitments of the covered entity to economically disadvantaged individuals as described in the application of the covered entity under that section by the target dates for completion established by the Secretary of Commerce under sub- section(a)(5)(A) of that section; and ‘‘(3) increase participation of and outreach to eco- nomically disadvantaged individuals, minority-owned businesses, veteran-owned businesses, and women- owned businesses, as defined by the Secretary of Commerce, respectively, in the geographic area of a project under section 9902 of the William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021 (15 U.S.C. 4652) and serve as a re- source for those individuals, businesses, and covered entities. ‘‘(d) STAFF.—The activities under this section shall be staffed at the appropriate levels to carry out the functions and responsibilities under this section until 95 percent of the amounts of funds made available for the program established under section 9902 of the Wil- liam M. (Mac) Thornberry National Defense Authoriza- tion Act for Fiscal Year 2021 (15 U.S.C. 4652) have been expended. ‘‘(e) REPORT.—Beginning on the date that is 1 year after the date on which the Secretary of Commerce es- tablishes the activities described in subsection (c), the Secretary of Commerce shall submit to the appropriate committees of Congress, as defined in section 9901(1) of the William M. (Mac) Thornberry National Defense Au- thorization Act for Fiscal Year 2021 (15 U.S.C. 4651), and make publicly available on the website of the Depart- ment of Commerce an annual report regarding the ac- tions taken by the Department of Commerce under this section.’’ REFERENCES IN PUB. L. 117–167 Pub. L. 117–167, § 2, Aug. 9, 2022, 136 Stat. 1371, pro- vided that: ‘‘Except as expressly provided otherwise, any reference to ‘this Act’ contained in any division of this Act [see Tables for classification] shall be treated as referring only to the provisions of that division.’’ Executive Documents DELEGATION OF FUNCTIONS AND AUTHORITIES UNDER SEC- TION 9902(a)(3)(B) OF THE WILLIAM M. (MAC) THORN- BERRY NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2021 Memorandum of President of the United States, July 19, 2024, 89 F.R. 59817, provided: Memorandum for the Director of the Office of Man- agement and Budget By the authority vested in me as President by the Constitution and the laws of the United States of America, including section 301 of title 3, United States Code, I hereby delegate to the Director of the Office of Management and Budget the functions and authorities vested in the President by section 9902(a)(3)(B) of the William M. (Mac) Thornberry National Defense Author- ization Act for Fiscal Year 2021 (Public Law 116–283) [15 U.S.C. 4652(a)(3)(B)] with respect to the certification and reporting requirements regarding Federal invest- ments in individual projects exceeding $3 billion. You are authorized and directed to publish this memorandum in the Federal Register. J.R. BIDEN, JR. § 4653. Department of Defense (a) Department of Defense efforts (1) In general Subject to the availability of appropriations for such purposes, the Secretary of Defense, in consultation with the Secretary of Commerce, the Secretary of Energy, the Secretary of Homeland Security, and the Director of Na- tional Intelligence, shall establish a public- private partnership through which the Sec- retary shall work to incentivize the formation of one or more consortia of companies (or other such partnerships of private-sector enti- ties, as appropriate) to ensure the develop- ment and production of measurably secure microelectronics, including integrated cir- cuits, logic devices, memory, and the pack- aging and testing practices that support these microelectronic components by the Depart- ment of Defense, the intelligence community, critical infrastructure sectors, and other na- tional security applications. Such incentives may include the use of grants under section 4652 of this title, and providing incentives for the creation, expansion, or modernization of one or more commercially competitive and sustainable microelectronics manufacturing or advanced research and development facili- ties in the United States. (2) Risk mitigation requirements A participant in a consortium formed with incentives under paragraph (1)— (A) shall have the potential to enable de- sign, perform fabrication, assembly, pack- age, or test functions for microelectronics deemed critical to national security as de- fined by the National Security Advisor and the Secretary of Defense; (B) may be a fabless company migrating its designs to the facility envisioned in para- graph (1) or migrating to an existing facility onshore; (C) may be companies, including fabless companies and companies that procure large quantities of microelectronics, willing to co- invest to achieve the objectives set forth in paragraph (1); (D) shall include management processes to identify and mitigate supply chain security risks; and (E) shall be capable of providing micro- electronic components that are consistent with applicable measurably secure supply chain and operational security standards es- tablished under section 224(b) of the Na- tional Defense Authorization Act for Fiscal Year 2020 (Public Law 116–92). (3) National security considerations The Secretary of Defense and the Director of National Intelligence shall select participants for each consortium and or 1 partnership formed with incentives under paragraph (1). In selecting such participants, the Secretary and the Director may jointly consider whether the companies— (A) have participated in previous programs and projects of the Department of Defense,