The Secretary shall establish in the Department of Commerce a program that, in accordance 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 semiconductors, or semiconductor manufacturing equipment.
A covered entity shall submit to the Secretary an application that describes the project for which the covered entity is seeking financial assistance under this section.
In order for a covered entity to qualify for financial assistance under this section, the covered entity shall demonstrate to the Secretary, in the application submitted by the covered entity under subparagraph (A), that-
With respect to the review by the Secretary of an application submitted by a covered entity under subparagraph (A)-
In awarding Federal financial assistance to covered entities under this subsection, the Secretary shall-
The Secretary may request records and information from the applicant to review the status of a covered entity. The applicant shall provide the records and information requested by the Secretary.
The Secretary shall determine the appropriate amount and funding type for each financial assistance award made to a covered entity under this subsection.
Federal investment in any individual project shall not exceed $3,000,000,000 unless the Secretary, in consultation with the Secretary of Defense and the Director of National Intelligence, recommends to the President, and the President certifies and reports to the appropriate committees of Congress, that a larger investment is necessary to-
A covered entity that receives a financial assistance award under this subsection may only use the financial assistance award amounts to-
For all awards to covered entities, the Secretary shall-
If the project does not commence and complete by the set target dates in (A), the Secretary shall progressively recover up to the full amount of an award provided to a covered entity under this subsection.
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 effort-
In the case of delayed projects, the Secretary may waive elements of the clawback provisions incorporated in each award after-
The Secretary shall notify appropriate committees of Congress-
In this paragraph, the term "legacy semiconductor"-
Not later than 2 years after August 9, 2022, and not less frequently than once every 2 years thereafter for the 8-year period after the last award under this section is made, the Secretary, after public notice and an opportunity for comment and if applicable and necessary, shall issue a public notice identifying any additional semiconductor technology included in the meaning of the term "legacy semiconductor" under clause (i).
The functions of the Secretary under this paragraph shall not be subject to sections 551, 553 through 559, and 701 through 706 of title 5.
In carrying out clause (ii), the Secretary shall consult with the Director of National Intelligence and the Secretary of Defense.
In carrying out clause (ii), the Secretary shall consider-
In this paragraph, the term "semiconductor manufacturing"-
On or before the date on which the Secretary awards Federal financial assistance to a covered entity under this section, the covered entity shall enter into an agreement 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 expansion of semiconductor manufacturing capacity in the People's Republic of China or any other foreign country of concern.
The prohibition in the agreement required under clause (i) shall not apply to-
For the purpose of applying the requirements in an agreement required under clause (i), a covered entity shall include the covered entity receiving financial assistance 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.
During the applicable term of the agreement of a covered entity required under subparagraph (C)(i), the covered entity shall notify the Secretary of any planned significant transactions of the covered entity involving the material expansion of semiconductor manufacturing capacity in the People's Republic of China or any other foreign country of concern.
Not later than 90 days after the date of receipt of a notification described in subparagraph (D) from a covered entity, the Secretary, in consultation with the Secretary of Defense and the Director of National Intelligence, shall-
Upon a notification under clause (i)(II) that a planned significant transaction of a covered entity is a violation of the agreement of the covered entity required under subparagraph (C)(i), the Secretary shall-
Subject to clause (iv), if a covered entity fails to remedy a violation as set forth under clause (ii), the Secretary shall recover the full amount of the Federal financial assistance provided to the covered entity under this section.
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 agreement required under subparagraph (C)(i) could take measures in connection with the transaction to mitigate any risk to national security, the Secretary-
The Secretary may request from a covered entity records and other necessary information to review the compliance of the covered entity with the agreement required under subparagraph (C)(i).
In order to be eligible for Federal financial assistance under this section, a covered entity shall agree to provide records and other necessary information requested by the Secretary under clause (i).
Subject to clause (ii), any information derived from records or necessary information disclosed by a covered entity to the Secretary under this section-
Clause (i) shall not prevent the disclosure of any of the following by the Secretary:
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 providing the covered entity with an opportunity to provide information in response to that finding, the Secretary shall provide to the appropriate Committees of Congress-
The Secretary may issue regulations implementing this paragraph.
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 National Intelligence.
The Comptroller General of the United States shall-
It is the sense of Congress that, in carrying out subsection (a), the Secretary should allocate funds in a manner that-
The Secretary shall establish within the program established under subsection (a) an additional 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.
In order for an entity to qualify to receive Federal financial assistance under this subsection, the covered entity shall agree to-
In granting Federal financial assistance to covered entities under this subsection, the Secretary may use the procedures established under subsection (a).
In addition to the considerations described in subsection (a)(2)(C), in granting Federal financial assistance under this subsection, the Secretary may consider whether a covered entity produces or supplies equipment or materials used in the fabrication, assembly, testing, or packaging of semiconductors at mature technology nodes that are necessary to support a critical manufacturing industry.
In awarding Federal financial assistance to covered entities under this subsection, the Secretary shall give priority to covered entities that support the resiliency of semiconductor supply chains for critical manufacturing industries in the United States.
There are authorized to be appropriated to the Secretary to carry out this subsection $2,000,000,000, which shall remain available until expended.
Section 3212 of title 42 shall apply to a construction project that receives financial assistance from the Secretary under this section.
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.
The Secretary may select eligible projects to receive loans or loan guarantees under this subsection if the Secretary determines that-
The Secretary shall base a determination of whether there is a reasonable prospect of repayment of the principal and interest on a loan under paragraph (2)(A)(i) on a comprehensive evaluation of whether the covered entity has a reasonable prospect of repaying the principal and interest, including, as applicable, an evaluation of-
A loan provided under this subsection-
A loan or guarantee provided under this subsection may include any other terms and conditions that the Secretary determines to be appropriate.
No loan may be guaranteed under this subsection, unless the Secretary determines that-
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 advance in accordance with section 661c(b) of title 2.
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.
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-
No funds made available under this section may be used to construct, modify, or improve a facility outside of the United States.
1 So in original. Probably should be followed by a semicolon.
2 So in original. The period probably should be "; and".
3 So in original. Probably should be "or".
15 U.S.C. § 4652
EDITORIAL NOTES
AMENDMENTS2022-Subsec. (a)(1). Pub. L. 117-167, §103(b)(1), substituted "for the fabrication" for "for semiconductor fabrication" and "of semiconductors, materials used to manufacture semiconductors, or semiconductor manufacturing 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 redesignated 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), substituted "used for the purposes" for "used for semiconductors". Subsec. (a)(5)(A). Pub. L. 117-167, §103(b)(4)(A), struck out "major" before "awards" in introductory provisions.Subsec. (a)(5)(D). Pub. L. 117-167, §103(b)(4)(B), struck out "major" before "award" in introductory provisions.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 directed amendment of subsec. (c) by adding subpar. (D) after par. (1)(C)(iv), was executed by making the addition 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, §104, 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 established 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 section 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 carried out under this section, including coordination with other workforce development activities of the Department of Commerce or of Federal agencies, as defined in section 551 of title 5, United States Code, as appropriate."(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 defined in section 9901 of the William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021 (15 U.S.C. 4651), for financial assistance for a project with respect to the requirements under subclauses (II) and (III) of section 9902(a)(2)(B)(ii) of the William M. (Mac) Thornberry National Defense Authorization 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 National 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 carrying 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 subsection(a)(5)(A) of that section; and"(3) increase participation of and outreach to economically 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 resource 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 William M. (Mac) Thornberry National Defense Authorization 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 establishes 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 Authorization Act for Fiscal Year 2021 (15 U.S.C. 4651), and make publicly available on the website of the Department of Commerce an annual report regarding the actions 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, provided 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."
- Secretary
- The term "Secretary" means the Secretary of Commerce.
- appropriate committees of Congress
- The term "appropriate committees of Congress" means-(A) the Select Committee on Intelligence, the Committee on Energy and Natural Resources, the Committee on Commerce, Science, and Transportation, the Committee on Foreign Relations, the Committee on Armed Services, the Committee on Appropriations, the Committee on Banking, Housing, and Urban Affairs, the Committee on Homeland Security and Governmental Affairs, and the Committee on Finance of the Senate; and(B) the Permanent Select committee 1 on Intelligence, the Committee on Energy and Commerce, the Committee on Foreign Affairs, the Committee on Armed Services, the Committee on Science, Space, and Technology, the Committee on Appropriations, the Committee on Financial Services, the Committee on Homeland Security, and the Committee on Ways and Means of the House of Representatives..2
- covered entity
- The term "covered entity" means a nonprofit entity, a private entity, a consortium of private entities, or a consortium of nonprofit, public, and private entities with a demonstrated ability to substantially finance, construct, expand, or modernize a facility relating to fabrication, assembly, testing, advanced packaging, production, or research and development of semiconductors, materials used to manufacture semiconductors, or semiconductor manufacturing equipment.
- foreign country of concern
- The term "foreign country of concern" means-(A) a country that is a covered nation (as defined in section 4872(d) of title 10); and(B) any country that the Secretary, in consultation with the Secretary of Defense, the Secretary of State, and the Director of National Intelligence, determines to be engaged in conduct that is detrimental to the national security or foreign policy of the United States.
- foreign entity of concern
- The term "foreign entity of concern" means any foreign entity that is-(A) designated as a foreign terrorist organization by the Secretary of State under section 1189 of title 8;(B) included on the list of specially designated nationals and blocked persons maintained by the Office of Foreign Assets Control of the Department of the Treasury;(C) owned by, controlled by, or subject to the jurisdiction or direction of a government of a foreign country that is listed in section 2533c 3 of title 10; or(D) alleged by the Attorney General to have been involved in activities for which a conviction was obtained under-(i) chapter 37 of title 18 (commonly known as the "Espionage Act") (18 U.S.C. 792 [791] et seq.);(ii) section 951 or 1030 of title 18;(iii) chapter 90 of title 18 (commonly known as the "Economic Espionage Act of 1996");(iv) the Arms Export Control Act (22 U.S.C. 2751 et seq.);(v) sections 2274, 2275, 2276, 2277, or 2284 of title 42;(vi) the Export Control Reform Act of 2018 (50 U.S.C. 4801 et seq.); or(vii) the International Economic Emergency Powers Act 3 (50 U.S.C. 1701 et seq.); or(E) determined by the Secretary, in consultation with the Secretary of Defense and the Director of National Intelligence, to be engaged in unauthorized conduct that is detrimental to the national security or foreign policy of the United States under this chapter.
- governmental entity
- The term "governmental entity" means a State or local government.
- Administration
- the terms "Administration" and "Administrator" mean the Small Business Administration and the Administrator thereof, respectively; and