Existing facility means:

(a) Any facility, the current status of which, including its semiconductor manufacturing capacity, is memorialized in the required agreement entered into by the covered entity and the Secretary pursuant to 15 U.S.C. 4652(a)(6)(C) and based on the Secretary's assessments of historical capacity measurements. Only facilities built, equipped, and operating prior to entering into the required agreement are considered to be existing facilities. A facility that undergoes significant renovations not memorialized in the required agreement shall no longer qualify as an existing facility.

(b) Notwithstanding paragraph (a) of this section, in the case of a facility that is being equipped, expanded, or modernized at the time of entering into the required agreement, the Secretary may, at their discretion, memorialize the planned semiconductor manufacturing capacity of that facility or any appropriate lower semiconductor manufacturing capacity in the required agreement and deem such facility an existing facility.

The term foreign country of concern means:

(a) A country that is a covered nation (as defined in 10 U.S.C. 4872(d)); 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, as used in this part:

(a) Means—

(1) A government of a foreign country or a foreign political party;

(2) A natural person who is not a lawful permanent resident of the United States, citizen of the United States, or any other protected individual (as such term is defined in section 8 U.S.C. 1324b(a)(3)); or

(3) A partnership, association, corporation, organization, or other combination of persons organized under the laws of or having its principal place of business in a foreign country; and

(b) Includes—

(1) Any person owned by, controlled by, or subject to the jurisdiction or direction of an entity listed in paragraph (a) of this section;

(2) Any person, wherever located, who acts as an agent, representative, or employee of an entity listed in paragraph (a) of this section;

(3) Any person who acts in any other capacity at the order, request, or under the direction or control of an entity listed in paragraph (a) of this section, or of a person whose activities are directly or indirectly supervised, directed, controlled, financed, or subsidized in whole or in majority part by an entity listed in paragraph (a) of this section;

(4) Any person who directly or indirectly through any contract, arrangement, understanding, relationship, or otherwise, owns 25 percent or more of the equity interests of an entity listed in paragraph (a) of this section;

(5) Any person with significant responsibility to control, manage, or direct an entity listed in paragraph (a) of this section;

(6) Any person, wherever located, who is a citizen or resident of a country controlled by an entity listed in paragraph (a) of this section; or

(7) Any corporation, partnership, association, or other organization organized under the laws of a country controlled by an entity listed in paragraph (a) of this section.

Foreign entity of concern means any foreign entity that is—

(a) Designated as a foreign terrorist organization by the Secretary of State under 8 U.S.C. 1189;

(b) Included on the Department of Treasury's list of Specially Designated Nationals and Blocked Persons (SDN List), or for which one or more individuals or entities included on the SDN list, individually or in the aggregate, directly or indirectly, hold at least 50 percent of the outstanding voting interest;

(c) Owned by, controlled by, or subject to the jurisdiction or direction of a government of a foreign country that is a covered nation (as defined in 10 U.S.C. 4872(d));

(1) A person is owned by, controlled by, or subject to the jurisdiction or direction of a government of a foreign country listed in 10 U.S.C. 4872(d) where:

(i) The person is:

(A) a citizen, national, or resident of a foreign country listed in 10 U.S.C. 4872(d); and

(B) located in a foreign country listed in 10 U.S.C. 4872(d);

(ii) The person is organized under the laws of or has its principal place of business in a foreign country listed in 10 U.S.C. 4872(d);

(iii) 25 percent or more of the person's outstanding voting interest, board seats, or equity interest is held directly or indirectly by the government of a foreign country listed in 10 U.S.C. 4872(d); or

(iv) 25 percent or more of the person's outstanding voting interest, board seats, or equity interest is held directly or indirectly by any combination of the persons who fall within subsections (i)-(iii);

(d) Alleged by the Attorney General to have been involved in activities for which a conviction was obtained under—

(1) The Espionage Act, 18 U.S.C. 792 et seq.;

(2) 18 U.S.C. 951;

(3) The Economic Espionage Act of 1996, 18 U.S.C. 1831 et seq.;

(4) The Arms Export Control Act, 22 U.S.C. 2751 et seq.;

(5) The Atomic Energy Act, 42 U.S.C. 2274,2275,2276,2277,or;

(6) The Export Control Reform Act of 2018, 50 U.S.C. 4801 et seq.;

(7) The International Economic Emergency Powers Act, 50 U.S.C. 1701 et seq.; or

(8) 18 U.S.C. 1030.

(e) Included on the Bureau of Industry and Security's Entity List (15 CFR part 744, supplement no. 4);

(f) Included on the Department of the Treasury's list of Non-SDN Chinese Military-Industrial Complex Companies (NS-CMIC List), or for which one or more individuals or entities included on the NS-CMIC list, individually or in the aggregate, directly or indirectly, hold at least 50 percent of the outstanding voting interest; or

(g) 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.

(a) Joint research means any research and development activity that is jointly undertaken by two or more parties, including any research and development activities undertaken as part of a joint venture as defined at 15 U.S.C. 4301(a)(6).

(b) Notwithstanding paragraph (a) of this section, the following is not joint research:

(1) A standards-related activity (as such term is defined in 15 CFR part 772);

(2) Research and development conducted exclusively between and among employees of a covered entity or between and among entities that are related entities to the covered entity;

(3) Research, development, or engineering related to a manufacturing process for an existing product solely to enable use of foundry, assembly, test, or packaging services for integrated circuits;

(4) Research, development, or engineering involving two or more entities to establish or apply a drawing, design, or related specification for a product to be purchased and sold between or among such entities; and

(5) Warranty, service, and customer support performed by a covered entity or an entity that is a related entity of a covered entity.

Knowingly means acting with knowledge that a circumstance exists or is substantially certain to occur, or with an awareness of a high probability of its existence or future occurrence. Such awareness can be inferred from evidence of the conscious disregard of facts known to a person or of a person's willful avoidance of facts.

(a) Legacy semiconductor means:

(1) For the purposes of a semiconductor wafer facility:

(i) A silicon wafer measuring 8 inches (or 200 millimeters) or smaller in diameter; or

(ii) A compound wafer measuring 6 inches (or 150 millimeters) or smaller in diameter.

(2) For the purposes of a semiconductor fabrication facility:

(i) A digital or analog logic semiconductor that is of the 28-nanometer generation or older (i.e., has a gate length of 28 nanometers or more for a planar transistor);

(ii) A memory semiconductor with a half-pitch greater than 18 nanometers for Dynamic Random Access Memory (DRAM) or less than 128 layers for Not AND (NAND) flash that does not utilize emerging memory technologies, such as transition metal oxides, phase-change memory, perovskites, or ferromagnetics relevant to advanced memory fabrication; or

(iii) A semiconductor identified by the Secretary in a public notice issued under 15 U.S.C. 4652(a)(6)(A)(ii).

(3) For the purposes of a semiconductor packaging facility, a semiconductor that does not utilize advanced three-dimensional (3D) integration packaging, under paragraph (b)(3) of this section.

(b) Notwithstanding paragraph (a) of this section, the following are not legacy semiconductors:

(1) Semiconductors critical to national security, as defined in § 231.118;

(2) A semiconductor with a post-planar transistor architecture (such as fin-shaped field field-effect transistor (FinFET) or gate all around field-effect transistor); and

(3) A semiconductor utilizing advanced three-dimensional (3D) integration packaging, such as by directly attaching one or more die or wafer, through silicon vias, through mold vias, or other advanced methods.

Material expansion means:

(1) with respect to an existing facility, the increase of the semiconductor manufacturing capacity of that facility by more than five percent of the capacity memorialized in the required agreement due to the addition of a cleanroom, production line or other physical space, or a series of such additions; or

(2) any construction of a new facility for semiconductor manufacturing.

Members of the affiliated group includes any entity that is a member of the covered entity's “affiliated group,” as that term is defined under 26 U.S.C. 1504(a), without regard to 26 U.S.C. 1504(b)(3).

The term person includes an individual, partnership, association, corporation, organization, or any other combination of individuals.

Predominately serves the market means that at least 85 percent of the output of the semiconductor manufacturing facility (e.g., wafers, semiconductor devices, or packages) by value is incorporated into final products (i.e., not an intermediate product that is used as factor inputs for producing other goods) that are used or consumed in that market.

(a) Required agreement means the agreement that is entered into by a covered entity and the Secretary on or before the date on which the Secretary awards Federal financial assistance under 15 U.S.C. 4652. The required agreement shall include, inter alia, provisions describing the prohibitions on certain expansion transactions and on certain joint research or technology licensing.

(b) The required agreement shall memorialize:

(1) The covered entity's existing facilities in foreign countries of concern; and

(2) Any ongoing joint research or technology licensing activities with foreign entities of concern that relate to technology or products that raise national security concerns as identified by the Secretary.

(c) The required agreement may include additional terms to mitigate national security risks, including as contemplated in § 231.204.

(d) To the extent consistent with the requirements of 15 U.S.C. 4652 and these regulations, the Secretary and the covered entity may amend the required agreement by mutual consent.

Research and development means theoretical analysis, exploration, or experimentation; or the extension of investigative findings and theories of a scientific or technical nature into practical application, including the experimental production and testing of models, devices, equipment, materials, and processes.

Secretary means the Secretary of Commerce or the Secretary's designees.

Semiconductor means an integrated electronic device or system most commonly manufactured using materials such as, but not limited to, silicon, silicon carbide, or III-V compounds, and processes such as, but not limited to, lithography, deposition, and etching. Such devices and systems include but are not limited to analog and digital electronics, power electronics, and photonics, for memory, processing, sensing, actuation, and communications applications.

Semiconductor manufacturing means semiconductor wafer production, semiconductor fabrication or semiconductor packaging. Semiconductor wafer production includes the processes of wafer slicing, polishing, cleaning, epitaxial deposition, and metrology. Semiconductor fabrication includes the process of forming devices such as transistors, poly capacitors, non-metal resistors, and diodes on a wafer of semiconductor material. Semiconductor packaging means the process of enclosing a semiconductor in a protective container (package) and providing external power and signal connectivity for the assembled integrated circuit.

Semiconductor manufacturing capacity means the productive capacity of a facility for semiconductor manufacturing. In the case of a wafer production facility, semiconductor manufacturing capacity is measured in wafers per year. In the case of a semiconductor fabrication facility, semiconductor manufacturing capacity is measured in wafer starts per year. In the case of a semiconductor fabrication facility for wafers designed for wafer-to-wafer bonding structure, semiconductor manufacturing capacity is measured in stacked wafers per year. In the case of a packaging facility, semiconductor manufacturing capacity is measured in packages per year.

Semiconductors critical to national security means:

(a) Semiconductors utilizing nanomaterials, including 1D and 2D carbon allotropes such as graphene and carbon nanotubes;

(b) Compound and wide- and ultra-wide bandgap semiconductors;

(c) Radiation-hardened by process (RHBP) semiconductors;

(d) Fully depleted silicon on insulator (FD-SOI) semiconductors, other than with regard to semiconductor packaging operations with respect to such semiconductors of a 28-nonometerer generation or older;

(e) Silicon photonic semiconductors;

(f) Semiconductors designed for quantum information systems;

(g) Semiconductors designed for operation in cryogenic environments (at or below 77 Kelvin); and

(h) Any other semiconductors that the Secretary, in consultation with the Secretary of Defense and the Director of National Intelligence, determines is critical to national security and issues a public notice of that determination.

Significant renovations means building new cleanroom space or adding a production line or other physical space to an existing facility that, in the aggregate during the applicable term of the required agreement, increases semiconductor manufacturing capacity by 10 percent or more of the capacity memorialized in the required agreement.

Technology licensing means:

(a) An express or implied contractual agreement in which the rights owned by, licensed to or otherwise lawfully available to one party in any trade secrets or knowhow are sold, licensed or otherwise made available to another party.

(b) Notwithstanding paragraph (a) of this section, the following is not technology licensing:

(1) Licensing of patents, including licenses related to standard essential patents or cross licensing activities;

(2) Licensing or transfer agreements conducted exclusively between a covered entity and related entities, or between or among related entities of the covered entity;

(3) A standards-related activity (as such term is defined in 15 CFR part 772);

(4) Agreements that grant patent rights only with respect to “published information” and no proprietary information is shared;

(5) An implied or general intellectual property license relating to the use of a product that is sold by a covered entity or related entities;

(6) Technology licensing related to a manufacturing process for an existing product solely to enable use of assembly, test, or packaging services for integrated circuits;

(7) Technology licensing involving two or more entities to establish or apply a drawing, design, or related specification for a product to be purchased and sold between or among such entities;

(8) Warranty, service, and customer support performed by a covered entity or an entity that is a related entity of a covered entity; and

(9) Disclosures of technical information to a customer solely for the design of integrated circuits to be manufactured by the funding recipient for that customer.

A technology or product that raises national security concerns means:

(a) Any semiconductor critical to national security;

(b) Any item listed in Category 3 of the Commerce Control List (supplement no. 1 to part 774 of the Export Administration Regulations, 15 CFR part 774) that is controlled for National Security (“NS”) reasons, as described in 15 CFR 742.4, or Regional Stability (“RS”) reasons, as described in 15 CFR 742.6; and

(c) Any other technology or product that the Secretary determines raises national security concerns.