The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to supersede AD 2021-26-11, Amendment 39-21870 (86 FR 71367, December 16, 2021), (AD 2021-26-11). AD 2021-26-11 applied to all RRD Model RB211 Trent 875-17, 877-17, 884-17, 884B-17, 892-17, 892B-17, and 895-17 engines. AD 2021-26-11 required replacing the affected fuel pump on at least one affected engine. The FAA issued AD 2021-26-11 to prevent failure of the variable stator vane system.

The NPRM published in the Federal Register on April 18, 2023 (88 FR 23583). The NPRM was prompted by EASA AD 2022-0225, dated November 21, 2022 (EASA AD 2022-0225) (referred to after this as the MCAI), issued by EASA, which is the Technical Agent for the Member States of the European Union. The MCAI states that reports of single-engine events caused by water contamination resulted in loss of engine thrust. An investigation determined that certain engines were exposed to unacceptable levels of water contamination, which caused corrosion on the fuel pump's internal components. This corrosion led to debris release and filter blockages in variable stator vane actuator control units, which resulted in the variable stator vane system failing in the closed position.

The FAA has since determined that in addition to replacing the affected fuel pump on at least one engine before further flight, replacing all affected fuel pumps installed on all engines within a specified compliance time and prohibiting installation of any affected engine onto any airplane or any affected fuel pump onto any engine is necessary to address the unsafe condition. Subsequently, the manufacturer published service information, which describes procedures for replacing the fuel pump.

You may examine the MCAI in the AD docket at regulations.gov under Docket No. FAA-2023-0932.

In the NPRM, the FAA proposed to require replacing the affected fuel pump on at least one engine before further flight and replacing all affected fuel pumps within a specified compliance time. In the NPRM, the FAA also proposed to prohibit installation of any affected engine onto any airplane or any affected fuel pump onto any engine.

The FAA received comments from two commenters. The commenters were American Airlines (AA) and The Boeing Company (Boeing). The following presents the comments received on the NPRM and the FAA's response to each comment.

Boeing supported the NPRM without change.

AA requested that the FAA clarify whether the intent of the NPRM is for affected pumps to be returned to Eaton Corporation for rectification/modification to become eligible for installation, or for all affected pumps listed in Rolls-Royce Alert Non-Modification Service Bulletin (NMSB) RB.211-73-AK840, Original Issue, dated Sep 13, 2022 (RB.211-73-AK840), to never be reinstalled on any U.S. registered carrier's engine or aircraft. AA stated that EASA AD 2022-0225 allows pumps modified by RB.211-73-AK840 to be reinstalled, and since EASA AD 2022-0225 is incorporated by reference, it can be assumed that the NPRM also allows pumps modified by RB.211-73-AK840 to be reinstalled. AA also noted that paragraphs (h)(5) and (6) of the proposed AD do not indicate if an affected pump that is removed from service should be returned to the Eaton Corporation for rectification/modification. Additionally, AA noted that if an affected pump is not returned to the Eaton Corporation for rectification/modification, it will never be eligible for reinstallation.

The FAA agrees to clarify. The intent of the NPRM is not to require that the affected parts never be reinstalled on any U.S. registered carrier's engine or aircraft. If an affected part is repaired, it is no longer considered to be included in the population of affected parts, and, therefore, is eligible for reinstallation. However, the FAA cannot require that an affected part be sent to a specific shop for repair, as that decision is at the discretion of the operator. Operators may elect to return affected fuel pumps that have been removed from service to the vendor, or to an approved facility for repair.

These products have been approved by the aviation authority of another country and are approved for operation in the United States. Pursuant to the FAA's bilateral agreement with this State of Design Authority, it has notified the FAA of the unsafe condition described in the MCAI referenced above. The FAA reviewed the relevant data, considered the comments received, and determined that air safety requires adopting the AD as proposed. Accordingly, the FAA is issuing this AD to address the unsafe condition on these products. Except for minor editorial changes, and any other changes described previously, this AD is adopted as proposed in the NPRM.

The FAA reviewed EASA AD 2022-0225, which specifies procedures for replacing the affected fuel pump. EASA AD 2022-0225 also specifies not to install an affected engine onto any airplane or an affected part onto any engine.

This material is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in ADDRESSES .

Where paragraph (1) of EASA AD 2022-0225 requires replacing the affected part within 30 days after November 17, 2021 (the effective date of EASA AD 2021-0245), this AD requires replacing an affected fuel pump on at least one engine before further flight after the effective date of this AD.

Where paragraphs (3) and (4) of EASA AD 2022-0225 refer to November 17, 2021 (the effective date of EASA AD 2021-0245), this AD requires using the effective date of this AD.

The FAA estimates that this AD affects 2 engines installed on airplanes of U.S. registry.

The FAA estimates the following costs to comply with this AD:

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.

The FAA is issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: General requirements. Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

The FAA has determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify that this AD:

(1) Is not a “significant regulatory action” under Executive Order 12866,

(2) Will not affect intrastate aviation in Alaska, and

(3) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all RRD Model RB211-535C-37 engines. The NPRM published in the Federal Register on June 13, 2023 (88 FR 38409). The NPRM was prompted by AD 2022-0236, dated December 1, 2022 (EASA AD 2022-0236) (also referred to after this as the MCAI), issued by EASA, which is the Technical Agent for the Member States of the European Union. The MCAI states that the ALS for RB211-535C-37 engines, which is approved by EASA, is defined and published in TLM T-211(535)-5RR, and that these airworthiness limitations have been identified as mandatory for continued airworthiness. The MCAI also states that the manufacturer published a revised engine TLM to introduce new or more restrictive instructions and associated thresholds and intervals for life-limited parts.

In the NPRM, the FAA proposed to require revising the ALS of the operator's existing approved engine maintenance or inspection program, as applicable, to incorporate new or more restrictive instructions and associated thresholds and intervals for life-limited parts, which are specified in EASA AD 2022-0236, described previously, except for any differences identified as exceptions in the regulatory text of this AD. The FAA is issuing this AD to address the unsafe condition on these products.

You may examine the MCAI in the AD docket at regulations.gov under Docket No. FAA-2023-1210.

The FAA received a comment from The Boeing Company, who supported the NPRM without change.

These products have been approved by the aviation authority of another country and are approved for operation in the United States. Pursuant to the FAA's bilateral agreement with this State of Design Authority, it has notified the FAA of the unsafe condition described in the MCAI referenced above. The FAA reviewed the relevant data, considered the comment received, and determined that air safety requires adopting the AD as proposed. Accordingly, the FAA is issuing this AD to address the unsafe condition on these products. Except for minor editorial changes, this AD is adopted as proposed in the NPRM.

The FAA reviewed EASA AD 2022-0236, which specifies procedures for operators to revise the ALS of their existing approved engine maintenance or inspection program to incorporate new or more restrictive instructions and associated thresholds and intervals for life-limited parts described in the revised engine TLM, as applicable to each engine model. EASA AD 2022-0236 also describes actions for replacing life-limited parts, performing maintenance tasks, and performing corrective actions for any finding of discrepancy as referenced in the engine TLM.

This material is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in ADDRESSES .

The FAA estimates that this AD affects 2 engines installed on airplanes of U.S. registry.

The FAA estimates the following costs to comply with this AD:

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.

The FAA is issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: General requirements. Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

This AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify that this AD:

(1) Is not a “significant regulatory action” under Executive Order 12866,

(2) Will not affect intrastate aviation in Alaska, and

(3) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all Airbus SAS Model 330-201, -202, -203, -223, -223F, -243, -243F, -301, -302, -303, -321, -322, -323, -341, -342, -343, -841, -941, and -743L airplanes, and Model A340-211, -212, -213, -311, -312, and -313 airplanes. Model A330-743L airplanes are not certificated by the FAA and are not included on the U.S. type certificate data sheet; this AD therefore does not include those airplanes in the applicability. The NPRM published in the Federal Register on June 20, 2023 (88 FR 39796). The NPRM was prompted by AD 2023-0056, dated March 16, 2023, issued by EASA, which is the Technical Agent for the Member States of the European Union (EASA AD 2023-0056) (also referred to as the MCAI). The MCAI states that cracks were found in the scroll housing assembly of Honeywell GTCP331-350 APUs.

In the NPRM, the FAA proposed to require replacing each affected APU or re-identifying certain APU scroll housing assemblies, as specified in EASA AD 2023-0056. The NPRM also proposed to prohibit the installation of affected parts under certain conditions. The FAA is issuing this AD to address cracks in the scroll housing assembly of Honeywell GTCP331-350 APUs. The unsafe condition, if not addressed, could result in hot air leakage and consequent damage to the APU compartment and loss of the APU doors, possibly resulting in damage to the airplane.

Since EASA AD 2023-0056 was issued and the FAA NPRM was published, EASA determined that a letter, which is part of an APU's serial number, is used only to identify the manufacturing facility of the APU and has no meaning in relation to the EASA AD 2023-0056 required actions. Therefore, EASA issued AD 2023-0158, dated August 2, 2023 (EASA AD 2023-0158), which supersedes EASA AD 2023-0056 but retains the requirements of EASA AD 2023-0056. EASA AD 2023-0158 only revises the definition of “affected APU” to disregard any letter included in the APU serial number.

You may examine the MCAI in the AD docket at regulations.gov under Docket No. FAA-2023-1217.

The FAA received a comment from Air Line Pilots Association, International (ALPA) who supported the NPRM without change.

Since the NPRM was published, EASA AD 2023-0056 was superseded by EASA AD 2023-0158. The FAA has updated this final rule accordingly by replacing EASA AD 2023-0056 with EASA AD 2023-0158 in all affected paragraphs.

This product has been approved by the aviation authority of another country and is approved for operation in the United States. Pursuant to the FAA's bilateral agreement with this State of Design Authority, it has notified the FAA of the unsafe condition described in the MCAI referenced above. The FAA reviewed the relevant data, considered the comment received, and determined that air safety requires adopting this AD as proposed. Accordingly, the FAA is issuing this AD to address the unsafe condition on this product. Except for minor editorial changes, and any other changes described previously, this AD is adopted as proposed in the NPRM. None of the changes will increase the economic burden on any operator.

EASA AD 2023-0158 specifies procedures for replacing each affected APU or re-identifying certain APU scroll housing assemblies (those having part number (P/N) 5053-181-001-501 or P/N 0331207990 and “SR-1” next to the part number marking). EASA AD 2023-0158 also prohibits the installation of affected parts under certain conditions.

Honeywell Service Bulletin 5053-181-49-7895, dated July 21, 2006, specifies procedures for, among other actions, re-identifying affected APU scroll housing assemblies. While Honeywell distributes this document, Aeronamic develops the technical content.

This material is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

The FAA estimates that this AD affects 128 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would modify the route structure as necessary to preserve the safe and efficient flow of air traffic within the National Airspace System.

The FAA published a NPRM for Docket No. FAA 2023-0534 in the Federal Register (88 FR 21546; April 11, 2023), proposing to amend VOR Federal airway V-388. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal. No comments were received.

VOR Federal airways are published in paragraph 6010 of FAA Order JO 7400.11, Airspace Designations and Reporting Points, which is incorporated by reference in 14 CFR 71.1 on an annual basis. This document amends the current version of that order, FAA Order JO 7400.11H, dated August 11, 2022, and effective September 15, 2023. FAA Order JO 7400.11H is publicly available as listed in the ADDRESSES section of this document. These amendments will be published in the next update to FAA Order JO 7400.11.

FAA Order JO 7400.11H lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

This action amends 14 CFR part 71 by amending VOR Federal airway V-388. The VOR Route amendment action is described below.

V-388: As amended, V-388 extends between the Seal Beach, CA (SLI), VORTAC and the Palm Springs, CA (PSP), VORTAC.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore: (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that only affects air traffic procedures and air navigation, it is certified that this rule, when promulgated, does not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

The FAA has determined that the action amending VOR Federal airway V-388 near Paradise, CA qualifies for categorical exclusion under the National Environmental Policy Act (42 U.S.C. 4321 et seq. ) and its implementing regulations at 40 CFR part 1500, and in accordance with FAA Order 1050.1F, Environmental Impacts: Policies and Procedures, paragraph 5-6.5a, which categorically excludes from further environmental impact review rulemaking actions that designate or modify classes of airspace areas, airways, routes, and reporting points (see 14 CFR part 71, Designation of Class A, B, C, D, and E Airspace Areas; Air Traffic Service Routes; and Reporting Points); and paragraph 5-6.5.i., which categorically excludes from further environmental impact review the establishment of new or revised air traffic control procedures conducted at 3,000 feet or more above ground level (AGL); procedures conducted below 3,000 feet AGL that do not cause traffic to be routinely routed over noise sensitive areas; modifications to currently approved procedures conducted below 3,000 feet AGL that do not significantly increase noise over noise sensitive areas; and increases in minimum altitudes and landing minima. As such, this action is not expected to result in any potentially significant environmental impacts. In accordance with FAA Order 1050.1F, paragraph 5-2 regarding Extraordinary Circumstances, the FAA has reviewed this action for factors and circumstances in which a normally categorically excluded action may have a significant environmental impact requiring further analysis. Accordingly, the FAA has determined that no extraordinary circumstances exist that warrant preparation of an environmental assessment or environmental impact study.

In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it modifies the route structure as necessary to preserve the safe and efficient flow of air traffic within the National Airspace System.

The FAA published a NPRM for Docket No. FAA-2023-0215 in the Federal Register (88 FR 8241; February 8, 2023), removing VOR Federal airway V-314. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal. No comments were received.

VOR Federal airways are published in paragraph 6010(a) of FAA Order JO 7400.11, Airspace Designations and Reporting Points, which is incorporated by reference in 14 CFR 71.1 on an annual basis. This document amends the current version of that order, FAA Order JO 7400.11H, dated August 11, 2023, and effective September 15, 2023. FAA Order JO 7400.11H is publicly available as listed in the ADDRESSES section of this document. This amendment will be published in the next update to FAA Order JO 7400.11.

FAA Order JO 7400.11H lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

This action amends 14 CFR part 71 by removing VOR Federal airway V-314 in Maine. This action is necessary because NAV CANADA has cancelled the connecting route segments in Canada. As a result, only a short segment of V-314, extending between the Millinocket, ME (MLT), VOR/Distance Measuring Equipment (VOR/DME) and the United States-Canadian border remains. The FAA determined that the remaining route is not required for navigation or ATC purposes.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore: (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under Department of Transportation (DOT) Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that only affects air traffic procedures and air navigation, it is certified that this rule, when promulgated, does not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

The FAA has determined that this action of removing VOR Federal airway V-314 in Maine qualifies for categorical exclusion under the National Environmental Policy Act (42 U.S.C. 4321 et seq. ) and its implementing regulations at 40 CFR part 1500, and in accordance with FAA Order 1050.1F, Environmental Impacts: Policies and Procedures, paragraph 5-6.5a which categorically excludes from further environmental impact review rulemaking actions that designate or modify classes of airspace areas, airways, routes, and reporting points (see 14 CFR part 71, Designation of Class A, B, C, D, and E Airspace Areas; Air Traffic Service Routes; and Reporting Points); and paragraph 5-6.5b, which categorically excludes from further environmental impact review “Actions regarding establishment of jet routes and Federal airways (see 14 CFR 71.15, Designation of jet routes and VOR Federal airways ) . . .”. As such, this action is not expected to result in any potentially significant environmental impacts. In accordance with FAA Order 1050.1F, paragraph 5-2 regarding Extraordinary Circumstances, the FAA has reviewed this action for factors and circumstances in which a normally categorically excluded action may have a significant environmental impact requiring further analysis. Accordingly, the FAA has determined that no extraordinary circumstances exist that warrant preparation of an environmental assessment or environmental impact study.

In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it will expand the availability of RNAV routing in the eastern United States and improve the efficient flow of air traffic within the NAS by lessening the dependency on ground-based navigation.

The FAA published a NPRM for Docket No. FAA-2023-0687 in the Federal Register (88 FR 21135; April 10, 2023), proposing to establish 4 low-altitude RNAV routes in support of transitioning the NAS from a ground-based to a satellite-based navigation. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received.

Subsequent to the NPRM, Air Traffic Control (ATC) requested to replace the Roanoke, VA (ROA), VOR/Distance Measuring Equipment (VOR/DME) route point with the DBRAH, VA, waypoint (WP) in new route T-479. The DBRAH, VA, WP is located approximately 320 feet southeast of the Roanoke, VA (ROA), VOR/DME and would not substantively alter the proposed route. Therefore, this action includes DBRAH, VA, WP in new route T-479 instead of the Roanoke, VA (ROA), VOR/DME route point.

United States Area Navigation Routes are published in paragraph 6011 of FAA Order JO 7400.11, Airspace Designations and Reporting Points, which is incorporated by reference in 14 CFR 71.1 on an annual basis. This document amends the current version of that order, FAA Order JO 7400.11H, dated August 11, 2023, and effective September 15, 2023. FAA Order JO 7400.11H is publicly available as listed in the ADDRESSES section of this document. These amendments will be published in the next update to FAA Order JO 7400.11.

FAA Order JO 7400.11H lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

This action amends 14 CFR part 71 by establishing 4 low-altitude RNAV T-routes in the eastern United States to support the VOR MON Program and the transition of the NAS from ground-based navigation to satellite-based navigation. The routes are described below.

T-447: T-447 is a new route that extends between the Smyrna, DE (ENO), VOR/Tactical Air Navigation (VORTAC) and the DLMAR, PA, WP. The route overlays RNAV route T-356 between the APEER, MD, WP and the FOLEZ, PA, WP; VOR Federal airway V-408 between the Pottstown, PA (PTW), VORTAC and the East Texas, PA (ETX), VOR/DME; and VOR Federal airway V-164 between the East Texas, PA (ETX), VOR/DME and the Stonyfork, PA (SFK), VOR/DME.

T-449: T-449 is a new route that extends between the KITHE, PA, Fix and the Binghamton, NY (CFB), VOR/DME. The route overlays VOR Federal airway V-499.

T-460: T-460 is a new route that extends between the Philipsburg, PA (PSB), VORTAC and the GLYDE, MA, Fix. The route overlays VOR Federal airway V-576 between the Philipsburg, PA (PSB), VORTAC and the Hancock, NY (HNK), VOR/DME, and VOR Federal airway V-292 between the Hancock, NY (HNK), VOR/DME and the GLYDE, MA, Fix.

T-479: T-479 is a new route that extends between the DNVIL, VA, WP and the Elkins, WV (EKN), VORTAC. The route overlays VOR Federal airway V-258 between the DNVIL, VA, WP that is being established 0.4 nautical miles southeast of the Danville, VA (DAN), VOR and the DBRAH, VA, WP; and VOR Federal airway V-103 between the DBRAH, VA, WP and the Elkins, WV (EKN), VORTAC.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore: (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that only affects air traffic procedures and air navigation, it is certified that this rule, when promulgated, does not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

The FAA has determined that this action of establishing RNAV routes T-447, T-449, T-460, and T-479 in the eastern United States, to provide additional RNAV routing within the NAS in support of transitioning it from ground-based to satellite-based navigation, qualifies for categorical exclusion under the National Environmental Policy Act (42 U.S.C. 4321 et seq. ) and its implementing regulations at 40 CFR part 1500, and in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures,” paragraph 5-6.5a, which categorically excludes from further environmental impact review rulemaking actions that designate or modify classes of airspace areas, airways, routes, and reporting points (see 14 CFR part 71, Designation of Class A, B, C, D, and E Airspace Areas; Air Traffic Service Routes; and Reporting Points); and paragraph 5-6.5b, which categorically excludes from further environmental impact review “Actions regarding establishment of jet routes and Federal airways (see 14 CFR 71.15, Designation of jet routes and VOR Federal airways ) . . .”. As such, this airspace action is not expected to cause any potentially significant environmental impacts. In accordance with FAA Order 1050.1F, paragraph 5-2 regarding Extraordinary Circumstances, the FAA has reviewed this action for factors and circumstances in which a normally categorically excluded action may have a significant environmental impact requiring further analysis. Accordingly, the FAA has determined that no extraordinary circumstances exist that warrant preparation of an environmental assessment or environmental impact study.

In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it expands the availability of RNAV in Alaska and improves the efficient flow of air traffic within the National Airspace System by lessening the dependency on ground-based navigation.

The FAA published a NPRM for Docket No. FAA-2022-0173 in the Federal Register (87 FR 14190; March 14, 2022), proposing to amend RNAV route T-223 in the vicinity of Cape Newenham, AK, in support of a large and comprehensive T-route modernization project for the state of Alaska. Interested parties were invited to participate in this rulemaking effort by submitting comments on the proposal. No comments were received.

United States Area Navigation Routes are published in paragraph 6011 of FAA Order JO 7400.11, Airspace Designations and Reporting Points, which is incorporated by reference in 14 CFR 71.1 on an annual basis. This document amends the current version of that order, FAA Order JO 7400.11H, dated August 11, 2023, and effective September 15, 2023. FAA Order JO 7400.11H is publicly available as listed in the ADDRESSES section of this document. These amendments will be published in the next update to FAA Order JO 7400.11.

FAA Order JO 7400.11H lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

This action amends 14 CFR part 71 by amending RNAV route T-223 in the vicinity of Cape Newenham, AK, in support of a large and comprehensive T-route modernization project for the state of Alaska. The amendment is described below.

T-223: T-223 extends between the Cape Newenham, AK (EHM), Nondirectional Radio Beacon/Distance Measuring Equipment (NDB/DME) and the Anchorage, AK (TED), Very High Frequency Omnidirectional Range/Distance Measuring Equipment (VOR/DME) navigational aids. This action amends the route by replacing the Cape Newenham, AK (EHM), NDB/DME with the new ZIKNI, AK, waypoint (WP). Additionally, the NONDA, AK, Fix is removed from the route description as it is not required to retain the route's structure; however, it will remain in the National Airspace System Resource database and continue to be depicted on the Instrument Flight Rules (IFR) En Route charts.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore: (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under Department of Transportation (DOT) Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that only affects air traffic procedures and air navigation, it is certified that this rule, when promulgated, does not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

The FAA has determined that this airspace action of amending RNAV route T-223 in the vicinity of Cape Newenham, AK, qualifies for categorical exclusion under the National Environmental Policy Act (42 U.S.C. 4321 et seq. ) and its implementing regulations at 40 CFR part 1500, and in accordance with FAA Order 1050.1F, Environmental Impacts: Policies and Procedures, paragraph 5-6.5a, which categorically excludes from further environmental impact review rulemaking actions that designate or modify classes of airspace areas, airways, routes, and reporting points (see 14 CFR part 71, Designation of Class A, B, C, D, and E Airspace Areas; Air Traffic Service Routes; and Reporting Points), and paragraph 5-6.5i, which categorically excludes from further environmental review the establishment of new or revised air traffic control procedures conducted at 3,000 feet or more above ground level (AGL); procedures conducted below 3,000 feet AGL that do not cause traffic to be routinely routed over noise sensitive areas; modifications to currently approved procedures conducted below 3,000 feet AGL that do not significantly increase noise over noise sensitive areas; and increases in minimum altitudes and landing minima. As such, this action is not expected to result in any potentially significant environmental impacts. In accordance with FAA Order 1050.1F, paragraph 5-2 regarding Extraordinary Circumstances, the FAA has reviewed this action for factors and circumstances in which a normally categorically excluded action may have a significant environmental impact requiring further analysis. Accordingly, the FAA has determined that no extraordinary circumstances exist that warrant preparation of an environmental assessment or environmental impact study.

In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it expands the availability of RNAV in Alaska and improves the efficient flow of air traffic within the National Airspace System by lessening the dependency on ground based navigation.

The FAA published a NPRM for Docket No. FAA-2022-0220 in the Federal Register (87 FR 16683; March 24, 2022), amending RNAV route T-242 in the vicinity of Utqiagvik, AK, in support of a large and comprehensive T-route modernization project for the state of Alaska. Interested parties were invited to participate in this rulemaking effort by submitting comments on the proposal. No comments were received.

United States Area Navigation routes are published in paragraph 6011 of FAA Order JO 7400.11, Airspace Designations and Reporting Points, which is incorporated by reference in 14 CFR 71.1 on an annual basis. This document amends the current version of that order, FAA Order JO 7400.11H, dated August 11, 2023, and effective September 15, 2023. FAA Order JO 7400.11H is publicly available as listed in the ADDRESSES section of this document. These amendments will be published in the next update to FAA Order JO 7400.11.

FAA Order JO 7400.11H lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

This action amends 14 CFR part 71 by amending RNAV route T-242 in the vicinity of Utqiagvik, AK, in support of a large and comprehensive T-route modernization project in the state of Alaska. The amendment is described below.

T-242: T-242 extends between the Talkeetna, AK, Very High Frequency Omnidirectional Range/Distance Measuring Equipment (VOR/DME) and the Barrow, AK, VOR/DME. The route is amended by removing the KUTDE, AK, and LACIL, AK, waypoints (WPs) from the route description since they are not required to retain the route's structure. The WPs will remain in the National Airspace System Resources database and continue to be depicted on the Instrument Flight Rules En Route charts. Additionally, the HUMUB, AK, WP is added to the legal description to provide connectivity to a future proposed RNAV route in the area. Lastly, the route is described in a west to east order to conform with existing regulatory guidance.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore: (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that only affects air traffic procedures and air navigation, it is certified that this rule, when promulgated, does not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

The FAA has determined that this airspace action of amending RNAV route T-242 in the vicinity of Utqiagvik, AK, qualifies for categorical exclusion under the National Environmental Policy Act (42 U.S.C. 4321 et seq. ) and its implementing regulations at 40 CFR part 1500, and in accordance with FAA Order 1050.1F, Environmental Impacts: Policies and Procedures, paragraph 5-6.5a, which categorically excludes from further environmental impact review rulemaking actions that designate or modify classes of airspace areas, airways, routes, and reporting points (see 14 CFR part 71, Designation of Class A, B, C, D, and E Airspace Areas; Air Traffic Service Routes; and Reporting Points), and paragraph 5-6.5i, which categorically excludes from further environmental review the establishment of new or revised air traffic control procedures conducted at 3,000 feet or more above ground level (AGL); procedures conducted below 3,000 feet AGL that do not cause traffic to be routinely routed over noise sensitive areas; modifications to currently approved procedures conducted below 3,000 feet AGL that do not significantly increase noise over noise sensitive areas; and increases in minimum altitudes and landing minima. As such, this action is not expected to result in any potentially significant environmental impacts. In accordance with FAA Order 1050.1F, paragraph 5-2 regarding Extraordinary Circumstances, the FAA has reviewed this action for factors and circumstances in which a normally categorically excluded action may have a significant environmental impact requiring further analysis. Accordingly, the FAA has determined that no extraordinary circumstances exist that warrant preparation of an environmental assessment or environmental impact study.

In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it updates the information in the airspace descriptions of restricted areas R-6302A, R-6302B, R-6302C, R-6302D, and R-6302E and the name of their using agency.

The FY 2021 NDAA directed the DoD to establish a commission relating to assigning, modifying, or removing of names, symbols, displays, monuments, and paraphernalia to assets of the DoD that commemorate the Confederate States of America or any person who served voluntarily with the Confederate States of America. 1 In January 2023, the Secretary of Defense directed all DoD organizations to begin full implementation of the Naming Commission's recommendations. As approved by the Secretary of Defense, the name “Fort Hood, TX” is changed to “Fort Cavazos, TX”. Consequently, this rulemaking action implements the requisite changes to part 73 by updating the airspace description titles and using agencies of restricted areas R-6302A, R-6302B, R-6302C, R-6302D, and R-6302E to reflect the new name.

Additionally, in reviewing the Fort Hood restricted areas complex, the FAA identified restricted area R-6302A and the overlapping R-6302E contained the same 30,000 feet mean sea level (MSL) altitude in both designated altitudes descriptions. To correct this altitude overlap while both restricted areas are active, the designated altitude information for R-6302A is being changed from extending upward from the surface to 30,000 feet MSL to extending upward from the surface to, but not including 30,000 feet MSL. That will overcome the designated altitudes overlap issue without impacting the operations conducted within the restricted areas when they are active individually or collectively. Further, to keep the designated altitudes ceilings for two adjacent restricted areas (R-6302C and R-6302D) to R-6302A consistent with the changed R-6302A ceiling, the designated altitudes for R-6302C and R-6302D are also being changed to reflect extending upward from the surface to, but not including 30,000 feet MSL.

Lastly, in the FAA's review of the R-6302 restricted areas complex, a typographical error was identified for the seventh boundary point listed in the R-6302E description. When R-6302E was established (59 FR 43460; Aug. 24, 1994), that boundary point was listed as latitude 31°09′01″ N, longitude 97°43′31″ W. In 1999, the FAA published a rule amending R-6302E (64 FR 3623; Jan. 25, 1999) to modify the western boundary of the restricted area to no longer extend over R-6302C and R-6302D. Inadvertently, a typographical error was made to the seventh boundary point geographic coordinates on the eastern boundary of the R-6302E description that changed the latitude 31°09′01″ N, longitude 97°43′31″ W coordinates to latitude 31°09′01″ N, longitude 97°43′01″ W. This action corrects that typographic error to reflect the seventh boundary point listed in the R-6302E description as “lat. 31°09′01″ N, long. 97°43′31″ W”.

This action amends 14 CFR part 73 by updating the airspace titles and using agency information for restricted areas R-6302A, R-6302B, R-6302C, R-6302D, and R-6302E by removing the name “Fort Hood, TX” and replacing it with “Fort Cavazos, TX”. Additionally, this action changes the designated altitudes for R-6302A, R-6302C, and R-6302D from “Surface to 30,000 feet MSL” to “Surface to, but not including 30,000 feet MSL”. Lastly, this action corrects the seventh boundary point listed for R-6302E from “lat. 31°09′01″ N, long. 97°43′01″ W” to “lat. 31°09′01″ N, long. 97°43′31″ W”.

This action consists of administrative name changes and minor editorial corrections only and does not affect the restricted area complex boundaries, operational altitudes, times of designation, or activities conducted within the airspace. Therefore, notice and public procedure under 5 U.S.C. 553(b) is unnecessary.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore: (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under Department of Transportation (DOT) Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that only affects air traffic procedures and air navigation, it is certified that this rule, when promulgated, does not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

The FAA has determined that this action of making administrative name changes to the geographic locations of restricted areas R-6302A, R-6302B, R-6302C, R-6302D, and R-6302E, which do not alter the boundaries, altitudes, or time of designation, qualifies for categorical exclusion under the National Environmental Policy Act (42 U.S.C. 4321 et seq. ) and its implementing regulations at 40 CFR part 1500, and in accordance with FAA Order 1050.1F, Environmental Impacts: Policies and Procedures, paragraph 5-6.5a, which categorically excludes from further environmental impact review rulemaking actions that designate or modify classes of airspace areas, airways, routes, and reporting points (see 14 CFR part 71, Designation of Class A, B, C, D, and E Airspace Areas; Air Traffic Service Routes; and Reporting Points); and paragraph 5-6.5d, which categorically excludes from further environmental impact review modification of the technical description of special use airspace (SUA) that does not alter the dimensions, altitudes, or times of designation of the airspace (such as changes in designation of the controlling or using agency, or correction of typographical errors). In accordance with FAA Order 1050.1F, paragraph 5-2 regarding Extraordinary Circumstances, the FAA has reviewed this action for factors and circumstances in which a normally categorically excluded action may have a significant environmental impact requiring further analysis. The FAA has determined that no extraordinary circumstances exist that warrant preparation of an environmental assessment or environmental impact study.

In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 73 as follows:

This rule amends 14 CFR part 97 by amending the referenced SIAPs. The complete regulatory description of each SIAP is listed on the appropriate FAA Form 8260, as modified by the National Flight Data Center (NFDC)/Permanent Notice to Airmen (P-NOTAM), and is incorporated by reference under 5 U.S.C. 552(a), 1 CFR part 51, and 14 CFR 97.20. The large number of SIAPs, their complex nature, and the need for a special format make their verbatim publication in the Federal Register expensive and impractical. Further, airmen do not use the regulatory text of the SIAPs, but refer to their graphic depiction on charts printed by publishers of aeronautical materials. Thus, the advantages of incorporation by reference are realized and publication of the complete description of each SIAP contained on FAA form documents is unnecessary. This amendment provides the affected CFR sections, and specifies the SIAPs and Takeoff Minimums and ODPs with their applicable effective dates. This amendment also identifies the airport and its location, the procedure and the amendment number.

The material incorporated by reference is publicly available as listed in the ADDRESSES section.

The material incorporated by reference describes SIAPs, Takeoff Minimums and ODPs as identified in the amendatory language for part 97 of this final rule.

This amendment to 14 CFR part 97 is effective upon publication of each separate SIAP and Takeoff Minimums and ODP as amended in the transmittal. For safety and timeliness of change considerations, this amendment incorporates only specific changes contained for each SIAP and Takeoff Minimums and ODP as modified by FDC permanent NOTAMs.

The SIAPs and Takeoff Minimums and ODPs, as modified by FDC permanent NOTAM, and contained in this amendment are based on criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these changes to SIAPs and Takeoff Minimums and ODPs, the TERPS criteria were applied only to specific conditions existing at the affected airports. All SIAP amendments in this rule have been previously issued by the FAA in a FDC NOTAM as an emergency action of immediate flight safety relating directly to published aeronautical charts.

The circumstances that created the need for these SIAP and Takeoff Minimums and ODP amendments require making them effective in less than 30 days.

Because of the close and immediate relationship between these SIAPs, Takeoff Minimums and ODPs, and safety in air commerce, I find that notice and public procedure under 5 U.S.C. 553(b) are impracticable and contrary to the public interest and, where applicable, under 5 U.S.C. 553(d), good cause exists for making these SIAPs effective in less than 30 days.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Accordingly, pursuant to the authority delegated to me, 14 CFR part 97 is amended by amending Standard Instrument Approach Procedures and Takeoff Minimums and ODPs, effective at 0901 UTC on the dates specified, as follows:

This rule amends 14 CFR part 97 by establishing, amending, suspending, or removes SIAPS, Takeoff Minimums and/or ODPS. The complete regulatory description of each SIAP and its associated Takeoff Minimums or ODP for an identified airport is listed on FAA form documents which are incorporated by reference in this amendment under 5 U.S.C. 552(a), 1 CFR part 51, and 14 CFR 97.20. The applicable FAA Forms 8260-3, 8260-4, 8260-5, 8260-15A, 8260-15B, when required by an entry on 8260-15A, and 8260-15C.

The large number of SIAPs, Takeoff Minimums and ODPs, their complex nature, and the need for a special format make publication in the Federal Register expensive and impractical. Further, airmen do not use the regulatory text of the SIAPs, Takeoff Minimums or ODPs, but instead refer to their graphic depiction on charts printed by publishers or aeronautical materials. Thus, the advantages of incorporation by reference are realized and publication of the complete description of each SIAP, Takeoff Minimums and ODP listed on FAA form documents is unnecessary. This amendment provides the affected CFR sections and specifies the typed of SIAPS, Takeoff Minimums and ODPs with their applicable effective dates. This amendment also identifies the airport and its location, the procedure, and the amendment number.

The material incorporated by reference is publicly available as listed in the ADDRESSES section.

The material incorporated by reference describes SIAPS, Takeoff Minimums and/or ODPs as identified in the amendatory language for part 97 of this final rule.

This amendment to 14 CFR part 97 is effective upon publication of each separate SIAP, Takeoff Minimums and ODP as amended in the transmittal. Some SIAP and Takeoff Minimums and textual ODP amendments may have been issued previously by the FAA in a Flight Data Center (FDC) Notice to Airmen (NOTAM) as an emergency action of immediate flights safety relating directly to published aeronautical charts.

The circumstances that created the need for some SIAP and Takeoff Minimums and ODP amendments may require making them effective in less than 30 days. For the remaining SIAPs and Takeoff Minimums and ODPs, an effective date at least 30 days after publication is provided.

Further, the SIAPs and Takeoff Minimums and ODPs contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these SIAPs and Takeoff Minimums and ODPs, the TERPS criteria were applied to the conditions existing or anticipated at the affected airports. Because of the close and immediate relationship between these SIAPs, Takeoff Minimums and ODPs, and safety in air commerce, I find that notice and public procedure under 5 U.S.C. 553(b) are impracticable and contrary to the public interest and, where applicable, under 5 U.S.C. 553(d), good cause exists for making some SIAPs effective in less than 30 days.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Accordingly, pursuant to the authority delegated to me, 14 CFR part 97 is amended by establishing, amending, suspending, or removing Standard Instrument Approach Procedures and/or Takeoff Minimums and Obstacle Departure Procedures effective at 0901 UTC on the dates specified, as follows:

On March 23, 2023, the National Institute of Standards and Technology published and requested public comment on a proposed rule that defined terms used in the Act (including terms that will be used in required agreements with covered entities), identified the types of transactions that are prohibited under the Expansion Clawback and Technology Clawback sections of the Act, and provided a description of the proposed process for notification of certain transactions to the Secretary (88 FR 17439). This final rule includes final definitions of terms, describes the types of conditions that will apply to expansion, joint research, and technology licensing activities, establishes a process for notifying the Secretary of potentially impermissible activities, and articulates processes by which the Secretary will enforce these provisions.

The CHIPS Act, 15 U.S.C. 4651 et seq, established a semiconductor incentives program (CHIPS Incentives Program) to provide funding via grants, cooperative agreements, loans, loan guarantees, and other transactions, to incentivize investments 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. The CHIPS Incentives Program is administered by the CHIPS Program Office (CPO) within the National Institute of Standards and Technology (NIST) of the Department.

To protect national security and the resiliency of supply chains, CHIPS funds may not be provided to a foreign entity of concern, such as an entity that is owned by, controlled by, or subject to the jurisdiction or direction of a country listed in 10 U.S.C. 4872(d). In addition, the Act establishes guardrails, including the Expansion Clawback (15 U.S.C. 4652(a)(6)) and the Technology Clawback (15 U.S.C. 4652(a)(5)(C)), to prevent the beneficiaries of CHIPS funds from supporting the semiconductor manufacturing and technology development of foreign countries of concern. To effectuate these conditions, and to prevent their circumvention, covered entities are required to enter into a binding agreement with the Department.

This final rule codifies the Expansion Clawback in Subpart B, including exceptions to the prohibition on semiconductor manufacturing capacity expansions that apply to existing facilities that manufacture legacy semiconductors and for significant transactions involving semiconductor manufacturing capacity expansion for new facilities producing legacy semiconductors that predominately serve the market of a foreign country of concern.

This final rule requires covered entities to fulfill certain obligations ahead of taking certain actions. A covered entity must notify the Secretary of any planned significant transaction by the covered entity or a member of its affiliated group involving the material expansion of semiconductor manufacturing capacity in a foreign country of concern, including in cases where it believes the transaction may be allowed under the exceptions. Terms related to this notification requirement are defined in Subpart A of this final rule, and procedures for submission and review of these notifications are detailed in Subpart C. Failure by a covered entity or member of its affiliated group to comply with the conditions of the Expansion Clawback may result in recovery of the full amount of Federal financial assistance provided to the covered entity.

This final rule also defines terms used in and further explains the Act's Technology Clawback, which prohibits the covered entity from knowingly engaging in any joint research or technology licensing effort with a foreign entity of concern that relates to a technology or product that raises national security concerns as determined by the Secretary and communicated to the covered entity before the covered entity engages in such joint research or technology licensing. A covered entity's required agreement will include a commitment that the covered entity will not conduct such prohibited joint research or technology licensing. The Technology Clawback does not apply to joint research or technology licensing that is ongoing prior to the Secretary communicating to the covered entity the technologies or products that raise national security concerns, which is being done through this final rule. To effectuate this safe harbor, the required agreement will memorialize any ongoing joint research or technology licensing with foreign entities of concern that relates to technology or products that raise national security concerns. Failure to comply with this condition may also result in recovery of up to the full amount of Federal financial assistance. This final rule serves as the Secretary's communication to covered entities of the categories of technologies and products that raise national security concerns. The Secretary retains discretion to not provide an award to an applicant if the applicant's ongoing joint research or technology licensing activities are inconsistent with the goals of the Act. Subpart C articulates the process by which the Secretary will evaluate any possible violations of the Technology Clawback and provide notice to the covered entity.

In addition, to address the risk of circumvention of the Technology Clawback, while accommodating commenters' request for flexibility, CPO is clarifying in the final rule that it will impose additional conditions, as appropriate, in the funding agreement that are in addition to the Technology Clawback. The final rule provides that the Secretary may take appropriate remedial measures, including requiring mitigation agreements or recovering up to the full amount of the Federal financial assistance provided to a covered entity, if any entity that is a related entity of the covered entity engages in joint research or technology licensing that would violate the Technology Clawback if engaged in by the covered entity. The Secretary has discretion to impose lesser remedial measures, as appropriate. For purposes of this final rule, a related entity is any entity that directly, or indirectly through one or more intermediaries, controls or is controlled by, or is under common control with, the covered entity. This approach is necessary to prevent enterprises from circumventing the conditions that Congress required to avoid semiconductor technology transfer to foreign entities of concern.

CPO received 27 comment submissions in response to the proposed rule. Comments were received from industry and trade associations, multinational semiconductor companies and companies in related industries, individuals, a law firm, a union, a foreign government, and one anonymous commenter. Three submissions included business proprietary information, along with a public summary. Commenters generally expressed support for the goals and objectives of the CHIPS Act, including the national security guardrails provisions that are the subject of this final rule. Many comments raised specific concerns about the potential negative business effects of certain definitions set forth in the proposed rule and provided detailed suggestions for alternatives. Other submissions were more general in nature and did not provide specific comments on the proposed rule itself. All submissions were carefully reviewed, and CPO thanks the public for its engagement. CPO's responses to comments within the scope of this rulemaking have been grouped by the regulatory section to which they pertain and are summarized below.

Comment #1: Several commenters noted that the definition of “affiliate” in the proposed rule differed from the definition of “affiliated group” included in the statute at 15 U.S.C. 4652(a)(6)(C)(iii). This resulted in an inconsistency between the threshold percentage to be used for identifying affiliates based on voting interest under the proposed rule (50 percent) and the threshold under the Act for identifying members of the affiliate group (80 percent).

Response: CPO is removing the defined term “affiliate” from the final rule to avoid confusion. CPO addresses the operation of the Expansion Clawback and the Technology Clawback in light of this change in each of those sections below.

Three submissions included comments on the definition of “applicable term.” The commenters argued that the statute specifies different applicable terms for the Expansion Clawback (a period of ten years following the date of the award) and the Technology Clawback (for the applicable term of the award), whereas the proposed rule harmonized the term of both clawbacks at ten years from the date of the award. Commenters questioned whether CPO had the authority to set this term for the purposes of the Technology Clawback. They suggested that this discrepancy be remedied by differentiating that there are two applicable terms, one for the Expansion Clawback and one for the Technology Clawback.

Response: In the proposed rule, CPO sought to align the applicable terms of the Expansion Clawback and Technology Clawback at ten years for consistency and ease of monitoring and compliance. However, CPO recognizes that there may be instances where the term of an award is shorter than the ten years articulated in the Expansion Clawback, and there may be instances where the term of the award exceeds the ten-year time period in the Expansion Clawback. As the term of the award will depend upon the particular award, CPO is removing the definition of applicable term from the rule and will instead articulate the applicable term of a particular award in the relevant award documents.

Comment #1: Several comments were received regarding the meaning of “existing facility,” specifically regarding the phrase “operating at the semiconductor manufacturing capacity level for which it was designed,” and the phrase “semiconductor manufacturing capacity at the time the required agreement is signed.” The comments noted that these phrases can capture two different measurements of “manufacturing capacity,” as most facilities do not always run at their full designed capacity. Specifically, due to market conditions, ramping up activities, and other factors, there could be a significant gap between the planned or designed capacity of a facility and its actual output at the time a funding agreement is signed. Production also fluctuates from one quarter to another based on market conditions and product demand. Other comments noted that facilities may be awaiting the installation of one or more pieces of new or replacement equipment which should be considered part of the semiconductor manufacturing capacity level for which the facility was designed. Commenters suggested revising the definition of “existing facility” to account for the full design capacity at the time the facility was planned.

Response: CPO agrees that additional clarity is warranted. The final rule clarifies that certain facilities that are undergoing construction, expansion, or modernization may be considered existing facilities under specified conditions, and that the baseline manufacturing capacity of the existing facilities at the date of the award will be addressed in the covered entity's required agreement.

Comment #1: Some commenters expressed concern that it would be difficult for them to determine whether a foreign entity falls into one of the categories considered “foreign entities of concern.” They prefer limiting the definition to specific lists of foreign entities of concern that they can readily check. Another commenter thought that using existing government lists is reasonable but will be gamed, because “China can easily create small, not genuinely independent R&D entities that are challenging to track.” Further, the commenter notes, the “draft regulations effectively require the [U.S. government] to devote more resources than at present, to maintain these lists properly as new PRC entities appear.”

Response: The criteria for “foreign entities of concern” were articulated in the Act. CPO recognizes that, for some of the criteria, in particular the criteria related to foreign entities that have been alleged by the Attorney General to have been involved in certain activities for which a conviction was obtained, there may not be a consolidated, readily available list. And there are other criteria that require the evaluation of standards to determine whether a particular entity is a foreign entity of concern. Nevertheless, CPO expects that covered entities can exercise appropriate diligence to determine whether a potential joint research or technology licensing partner would fall within the categories articulated in the Act and this rule.

Comment #2: Several commenters consider the proposed definition of “foreign entities of concern” too broad and noted that it would include many Chinese citizens and companies. They suggested excluding from this definition any foreign entity that is an affiliate or employee of a funding recipient or limiting it to entities included on certain U.S. Government lists, such as the Bureau of Industry and Security's Entity List.

Response: CPO declines to make this change. The Act articulates the criteria for a foreign entity of concern, and, as noted above, CPO expects that covered entities can exercise appropriate diligence to identify entities that fall within the criteria articulated in Act. CPO also notes that preventing all activities, including joint research and technology licensing, with related corporate entities operating in foreign countries of concern, would conflict with the current business practices of the semiconductor industry in a manner that is inconsistent with the goals of the Act to develop a viable supply of secure and trusted semiconductors for the United States. Rather than amending the definition of “foreign entity of concern,” the final rule includes exceptions in the definitions of “joint research” and “technology licensing” that exempt employees of the covered entity and related entities from the scope of the Technology Clawback.

Numerous comments were received regarding the definition of “joint research.” In general, commenters noted that there were several types of activities that could be captured by the proposed definition, the restriction of which would disrupt normal business activities without a significant benefit to national security.

Comment #1: Commenters noted that some entities that would meet the definition of “foreign entities of concern” are members of international standards development organizations. Commenters noted that failing to include an exception in the joint research prohibition for international collaborative efforts in standards organizations would weaken opportunities for U.S. leadership in the global semiconductor sector, which requires that U.S. entities have a seat at the table for standard setting discussions.

Response: CPO agrees with the comments about international standards organizations, and the final rule includes an exception from the Technology Clawback for joint research related to standards.

Comment #2: Multiple comments noted the need to clarify that intra-company research and development activities should not be considered joint research.

Response: The final rule excludes from the definition of joint research any research and development conducted exclusively between employees of a covered entity or between entities that are related entities of the covered entity.

Comment #3: Commenters requested an exemption for any joint research and development related to warranty, service, and customer support performed by a covered entity.

Response: CPO agrees this type of activity does not pose a risk to national security, and the final rule now excludes from the definition of joint research warranty, service, and customer support performed by the covered entity or by any entity that is a related entity of the covered entity.

Comment #4: Some comments noted that it is common business practice in the global semiconductor industry for companies to outsource fabrication and/or packaging, which requires them to share design files and other technology related to specific products.

Response: CPO understands that outsourced manufacturing, including packaging, is widely used and has therefore added an exception in the definition of joint research for research, development, or engineering involving drawings, designs, or related specifications for products to be purchased and sold between two or more persons.

Comment #5: Some commenters requested an exemption for joint research, development, and engineering related to manufacturing processes for existing products.

Response: The intent behind this rule is to prohibit investments that could threaten national security while not unduly disrupting existing supply chains. Some manufacturing processes for existing products are sensitive and would raise national security concerns if transferred to a foreign entity of concern. However, prohibiting other work would be disruptive to existing supply chains and would not reduce national security risks. Outsourced assembly, test, and packaging providers (OSATs) within foreign countries of concern are commonly used within the industry today, cannot easily be substituted, and present limited national security risk because they operate on already fabricated semiconductors. Therefore, CPO has narrowed the requested exemption to work necessary solely to enable use of assembly, test, or packaging services for integrated circuits.

Comment #6: Some commenters requested that the rule allow for collaborations between semiconductor equipment manufacturers and other upstream suppliers. Commenters argue that chemicals and materials necessary for manufacturing must be tested and evaluated for use on specific manufacturing equipment.

Response: Noting that the Technology Clawback only applies to technologies or products that raise national security concerns and involve foreign entities of concern, CPO finds that the collaborations mentioned by these commenters may result in advancing the military capability of foreign countries of concern, including the ability to produce advanced semiconductors that are a force multiplier for military modernization. Therefore, CPO declines to allow for an exception for such collaborations.

Comment #7: Some commenters requested that there be an exception for joint research involving fundamental research and publicly available or published information.

Response: CPO believes that these types of activities between covered entities and foreign entities of concern pose risks through the potential transfer of technology that raises national security concerns. While the underlying technology or information is publicly available, additional advancements in the technology or its use may be made through joint research and development to the benefit of the foreign entity of concern.

Comment #8: One commenter noted that, based on the definitions of “joint research” and “technology licensing,” the Technology Clawback prohibition would extend to items that are not subject to the jurisdiction of the Export Administration Regulations. They suggest limiting the technology subject to the joint research and technology licensing prohibition to that technology “subject to the EAR,” as defined in 15 CFR 734.3.”

Response: The Technology Clawback is intended to be broader in reach than the Export Administration Regulations. The Act creates a financial assistance program the goal of which is to incentivize investment in facilities and equipment in the United States to provide a secure supply of semiconductors for national security and critical infrastructure, and to support the technology leadership of the United States. The goals of the Act are more expansive than just mitigating national security threats posed by the export of technology. Further, recipients of CHIPS funds may have operations outside the United States, which would not necessarily be subject to the restrictions of the Export Administration Regulations. It would be inconsistent with the goals of the Act for recipients of CHIPS funds to engage in joint research or technology licensing that was not in the national security interests of the United States, even if that activity was not prohibited by the Export Administration Regulations.

Comment #9: One commenter representing multiple semiconductor companies indicated that it is common practice to “design-in” devices into the customers' end products. They note that “[t]hese discussions can involve technical matters; exchange of data including product features, product reliability, and product limitations; and consideration of alternative semiconductor products to optimize the end system's performance and cost.” They believe these standard commercial exchanges could erroneously be captured under the definition of joint research, and request that there be an exception for “[d]isclosures of a process or assembly design kit, complex design intellectual property, foundational design intellectual property, or other technical information provided by a funding recipient or its affiliates to its customer solely for the design of integrated circuits to be manufactured by the funding recipient.”

Response: CPO declines to allow for this exception to the definition of joint research. The prohibition is limited to semiconductor technologies and products that raise national security concerns and to interactions with foreign entities of concern. CPO believes this activity may result in advancing the military capability of foreign countries of concern, including the ability to produce advanced military products incorporating semiconductors. However, CPO is including an exception under Technology Licensing to allow for discloses of technical information to a customer solely for the design of integrated circuits to be manufactured by the funding recipient for that customer.

Comment #1: Several commenters noted that the proposed definition of legacy semiconductor excluded all semiconductors packaged utilizing 3D integration. Commenters also stated that some types of 3D packaging, such as stacking two legacy dies on top of each other using wire bonds, flip-chip, and bump connections are decades old and should be considered legacy. They note that “these techniques do not create the high bandwidth or functional density needed for advanced computing, AI, or communication applications.”

Response: CPO agrees. The final rule clarifies that only semiconductors utilizing advanced 3D integration packaging such as by directly attaching one or more die or wafer, through silicon vias (TSV), or through mold vias (TMV) are not considered to be legacy semiconductors.

Comment #2: Two commenters suggested that the definition's reference to 28-nanometer generation or older should be modified by deleting the reference to gate length and substituting a phrase regarding technologies using the planar transistor architecture that should be considered as the same 28nm generation technology. They asserted the statute and the proposed rule define legacy semiconductor to include “28-nanometer generation or older” technologies without further elaboration on the many derivative technologies of the same technology generation. Therefore, “legacy semiconductor” should cover all planar transistors of the same technology generation to be consistent with the essential policy objectives of the export control rules that became effective on October 7, 2022.

Response: CPO declines to make this change. The proposed rule adequately captured the meaning of the term “28-nanometer generation,” which is consistent with the language of the Act. CPO acknowledges that, for more recent generations of semiconductors, gate length can become disconnected from node size. However, the result of this disconnection is that gate length is longer than node size for some highly advanced nodes. By setting the gate length threshold at 28nm, CPO will accurately capture legacy semiconductors. In addition, allowing improvements to the base 28nm generation architecture to be considered as legacy semiconductors could undermine the policy purpose of the prohibition. For example, a company could use (or create) a derivation of their existing 28nm technology for use in a foreign country of concern, thereby enabling precisely the kind of material expansion of semiconductor manufacturing capacity the Act seeks to constrain.

Comment #3: Commenters suggested that the definition of “legacy semiconductor” be expanded to include more advanced memory technology.

Response: CPO declines to make the suggested change and retains the existing definition in the final rule. The Act requires that the threshold for memory technology be set relative to the 28nm generation for logic chips. CPO finds the inclusion of more advanced memory technology would be counter to this directive. Moreover, the parameters for legacy memory in the final rule are consistent with current export control levels for memory chips. CPO further notes that the Act requires the Secretary to reassess technology levels on a regular basis, and at least every two years.

Comment #1: Multiple commenters noted that semiconductor fabrication facilities must regularly make equipment and efficiency upgrades and productivity improvements within existing cleanroom space to maintain competitiveness, and these should not be considered “material expansions” (even though they may increase capacity incrementally). They asserted that the definition of “material expansion” in the proposed rule would cause these ordinary efficiency and productivity improvements to existing production lines to violate the Expansion Clawback. They recommend deletion of references to “equipment” and adopting a more focused, clearer definition for “material expansion” as the “building new cleanroom space that does not exist on the date of the Federal financial assistance award which has the purpose or effect of increasing semiconductor manufacturing capacity of a facility by more than five percent.” They note that cleanroom space is a more accurate measure of “material expansion” because the size of cleanroom space is tailored to a certain range of planned production capacity.

Response: CPO agrees with these comments to the extent they reference improvements to technology and equipment instead of semiconductor manufacturing capacity. In the final rule, CPO has modified the definition of material expansion to refer to the addition of cleanroom or other physical space. Cleanroom space is indicative of a facility's production capacity, and in contrast to wafer starts per month or a similar metric, does not ordinarily fluctuate over time or change with ordinary course of business equipment upgrades. Therefore, addition of cleanroom space as a metric better captures the concept of material expansion and is substantially easier to monitor, helping to prevent evasion of the restriction.

Comment #2: Some commenters requested that the threshold for material expansion should be adjusted upwards to allow for continued necessary technological upgrades to existing facilities. They believe that the five percent threshold for material expansion will have the practical effect of capping a facility's current capacity for 10 years. They suggest expanding thresholds to account for expected fluctuations in output and preexisting plans.

Response: CPO declines to adjust the material expansion threshold. The Act requires that covered entities agree not to engage in any material expansions of semiconductor production capacity in foreign countries of concern. Raising the five percent threshold for allowable material expansions would undermine this objective. The existing five percent disregard is sufficient to allow for ordinary course-of-business upgrades to facilities and production lines.

Several commenters expressed concern that this definition could be interpreted to mean that a covered entity would be prohibited from sharing technology with all Chinese citizens in all parts of the world. They noted that because the term “foreign entity of concern” is used in the prohibition on certain joint research or technology licensing, even very routine and necessary business activity could be blocked.

Additionally, one commenter argued that the 25 percent voting interest threshold inadequately addresses the methods of influence-beyond mere voting-that are employed by and available to foreign countries of concern against entities in the semiconductor industry.

Finally, one commenter noted that the proposed regulations seek to include all Chinese citizens and companies “subject to the jurisdiction” of the government of China to fall within the scope of a “foreign entity of concern.”

Response: In the final rule, CPO has modified the definition to provide greater specificity and has incorporated a definition of “owned by, controlled by, or subject to the jurisdiction, or direction of” into the definition of “foreign entity of concern” to clarify that the scope of the terms are limited to defining foreign entities of concern. As a consequence, the separate definition of “owned by, controlled by, or subject to the jurisdiction, or direction of” has been removed from the final rule. To address the concern of some commenters regarding the broad scope of the definition, CPO clarified that it is limited to countries that are listed in 10 U.S.C. 4872(d), and applies to citizens, nationals or residents of those countries while they are in any of the countries listed in 10 U.S.C. 4872(d). For example, the term would include an Iranian national working in Russia, but would not include a Chinese national lawfully working in the United States or the Republic of Korea.

To address the concern that foreign entities of concern could circumvent the restrictions of the rule by establishing entities for which multiple foreign entities of concern each have ownership below the 25 percent threshold, the rule clarifies that, where at least 25 percent of the person's outstanding voting interest is held directly or indirectly by any combination of persons who would otherwise be foreign entities of concern themselves, that person is also a foreign entity of concern.

CPO also made modifications to the definitions of joint research and technology licensing to allow for those activities to continue among employees of the covered entity and among related entities, even if the definition of foreign entity of concern would be implicated.

Comment: One submission suggested that the definition of “person” should only include owners or those who have control over or receive profits from semiconductor manufacturing in foreign countries of concern. They asserted that this flexibility should also apply to service agreements and suppliers to those agreements that have no ownership or control over the prohibited activity.

Response: This final rule retains the definition of person that was established in the Act. CPO believes this definition best aligns with the national security goals of the Act.

Comment #1: Several commenters disagreed with the proposed definition of “predominately serves the market” as meaning that at least 85 percent of the output by value must be used or consumed in the market of the foreign country of concern. Commenters argued that “predominately” implies a 50 percent threshold or at most a 70 percent threshold, and provided examples in which federal departments and agencies had interpreted “predominately” to mean 50 percent or more. On the other hand, another commenter expressed support for the 85 percent threshold: “85 percent of output serving the host market is a somewhat arbitrary level but the idea is sound. On top of risks from China making advanced chips, a flood of low-end chip exports will eventually emerge, similar to steel, phones, and so on. This may be unavoidable but the US should not speed the outcome.”

Response: CPO is maintaining the 85 percent threshold in its consideration of whether certain production of legacy semiconductors “predominately serves the market” in a foreign country of concern. This percentage appropriately disincentivizes certain production of legacy semiconductors in foreign countries of concern by a covered entity unless that entity's output will predominately serve those countries' domestic markets. A lower threshold could result in U.S. financing indirectly supporting additional production of legacy semiconductors in foreign countries of concern, including in ways that would potentially destabilize global semiconductor markets. This could undermine the ability of the United States to develop commercially viable semiconductor industries, thereby forcing the U.S. military and critical infrastructure businesses to rely on semiconductors produced by foreign countries of concern. This is a key national security risk that the CHIPS Act was intended to address.

The Act does not define “predominantly” (or “predominantly serves the market”). While there may be some instances where the term “predominate” has been interpreted to mean 50 percent, that does not mean it can only be interpreted to mean 50 percent. Indeed, in section 102 of the Dodd-Frank Act, Public Law 111-203, Congress defined the term “predominantly engaged” to align with an 85 percent or more threshold. And while other agencies have construed “predominantly” to mean 50 percent or more, that was in different contexts, and does not dictate that “predominantly” can only mean a bare majority. There is no indication that Congress used predominate here to imply a bare majority, and based upon CPO's understanding of the semiconductor industry and the goals of the Act, CPO believes that an 85 percent threshold is appropriate for determining when a semiconductor manufacturing facility predominantly serves the market of a foreign country of concern.

Comment #2: Commenters noted that semiconductor manufacturers often lack full visibility into the ultimate end users of their products. They noted that semiconductor companies “do not sell products directly to consumers but to companies such as original equipment manufacturers (OEMs) and other device integrators and are often sold and re-sold through a long chain of distributors. This makes it difficult, if not impossible, to follow each product to its ultimate user.” They requested that the regulations should adjust the tracking requirements for semiconductor manufacturers to reflect their practical limitations in determining the end-use of their products and limit tracking to documents obtained in the ordinary course of business, such as “ordered by” “sold to” or “shipped to” information.

One commenter suggested an alternative method to calculate the 85 percent threshold. They suggested using a simpler metric based on the ratio of units an entity manufactures in a foreign country of concern to the units shipped into a foreign country of concern. They asserted that this ratio illustrates the extent to which a manufacturer is reliant on production in foreign countries of concern to supply customers elsewhere; manufacturers that ship an equal or greater number of units into foreign countries of concern than the number of units they produce in foreign countries of concern are not reliant on supply manufactured in foreign countries of concern.

Another commenter requested that there be a safe harbor for the calculation of “predominately serves the market” so that companies that believe, in good faith, they meet the threshold would not be subject to the Expansion Clawback.

Response: CPO declines to interpret “serves the market” to refer to the location to which the semiconductors are first shipped or to create a safe harbor. Doing so would undermine the Act's goals of ensuring that CHIPS Act-funded innovation does not fuel expansion of the semiconductor industries in foreign countries of concern. Semiconductors are often purchased by an initial customer and then integrated into technology that is sold in other products. Focusing solely on the initial sale would not address circumstances where that initial customer is then selling goods with those semiconductors in different markets. Because the goal of this prong of the exception to the Expansion Clawback is to allow the continued expansion of semiconductor manufacturing capacity by facilities in foreign countries of concern that produce products for use in foreign counties of concern, it is imperative that focus be on the country where the semiconductor is ultimately used, not just the location of the middleman purchasing the semiconductors in the first instance.

CPO recognizes that this definition may require covered entities to implement new mechanisms to track where their products are ultimately incorporated and sold in final products. CPO believes that companies can develop those capabilities to meet the final rule's requirements.

Comment: Several commenters noted the need for flexibility in the required agreement to address unique circumstances such as the sale or transfer of a facility from one party to another, or for how to deal with facilities that are planned, under construction or otherwise not operating at the capacity for which they are designed at the time of the agreement.

Response: CPO agrees that additional flexibility in the required agreement would support the policy goals of the CHIPS Program. The final rule amends the proposed definition of “required agreement” to allow for the Secretary and covered entity to amend the required agreement by mutual consent, consistent with law. In addition, the revised definition clarifies that the required agreement will memorialize the covered entity's existing facilities (including capacity) in foreign countries of concern, as well as any ongoing joint research or technology licensing with a foreign entity of concern that relates to a technology or product that raises national security concerns. In addition, the required agreement will address any additional restrictions that are necessary to prevent circumvention of the Technology Clawback.

Comment #1: Commenters suggested defining semiconductor manufacturing to include the earlier stages of the manufacturing process such as creating polysilicon ingots and making wafers. They note that polysilicon and related materials are the semiconductor in semiconductor chips and a very necessary part of a complete and resilient U.S. semiconductor supply chain and that “the proposed rule, however narrowly focused on enforcement, appears to broadly affect eligibility for the CHIPS § 48D credit.” Other commentors suggested clarifying that upstream suppliers are not considered to be semiconductor manufacturers (and therefore are not subject to the prohibition on expansions of semiconductor manufacturing capacity).

Response: CPO agrees that additional clarity would be appropriate. The final rule clarifies that semiconductor wafer production is included within the definition of semiconductor manufacturing, along with semiconductor device fabrication and packaging, and is therefore subject to the Expansion Clawback. Semiconductor wafer production includes the processes of wafer slicing, polishing, cleaning, epitaxial deposition, and metrology. Suppliers further upstream, such as those supplying polysilicon and other raw materials, are not included within the scope of semiconductor manufacturing for the purposes of this rule and are therefore also not subject to the Expansion Clawback.

Comment #1: Multiple commenters suggested that for fabrication facilities that produce wafers designed for a wafer-to-wafer bonding structure, productive capacity should be measured in wafers stacked in order to align the metric with the facility's actual output, and to account for the fact that the number of stacked wafers produced at these facilities is far smaller than the number of wafers started because wafers are stacked and combined during production.

Response: CPO agrees with this suggestion and in the final rule notes that for semiconductor fabrication facilities for wafers designed for wafer-to-wafer bonding structure, semiconductor manufacturing capacity is measured in stacked wafers per year. The semiconductor manufacturing capacity of such facilities will be documented in the covered entity's required agreement.

Comment #2: Commenters suggested measuring semiconductor manufacturing capacity on an annual basis, rather than wafer starts per month to smooth the measurement of capacity and avoid undue focus on a single month where capacity may be higher or lower.

Response: CPO agrees with this suggestion and has modified the definition in the final rule to measure semiconductor manufacturing capacity in wafers per year.

Comment #1: Multiple commenters argued that the list of semiconductors critical to national security in the proposed rule is overly broad and includes some products that are widely used in commercial applications (such as silicon carbide semiconductors and FD-SOI semiconductors). They noted that exports of some of these products are not controlled for national security or regional stability reasons under the Export Administration Regulations. They recommended that the list be fully harmonized with current export controls and not include general purpose commodities not designed for a particular application. They also asserted that such alignment with existing restrictions would “reduce administrative and compliance burdens and . . . achieve the objectives of regulatory harmonization as stated in the proposal's preamble.” One commenter also suggested that the compound and wide-bandgap/ultra-wide bandgap semiconductor categories on the list should be “narrowed to exclude products that reduce carbon emissions because they enhance rather than threaten U.S. national security” (specifically, SiC power semiconductors).

Response: CPO acknowledges that there are commercial applications in which compound and fully depleted silicon on insulator (FD-SOI) semiconductors are increasingly used. However, the performance advantages offered by compound semiconductors over silicon semiconductors, such as wider bandgap, lower operating voltages, and higher electron mobility are vital to many sophisticated military applications.

Moreover, the governments of some foreign countries of concern have identified compound semiconductors as a strategic emerging industry. They have set ambitious goals for acquisition and development of compound semiconductor technology and strive to become global leaders in the industry. CPO notes that while exports of certain semiconductors are not subject to national security or regional stability export controls, joint research or technology licensing involving these products with foreign entities of concern can nevertheless pose a significant risk to national security. Recipients of CHIPS Act funds should not further that risk. Therefore, CPO declines to remove compound and wide and ultra-wide bandgap semiconductors from the list of semiconductors critical to national security.

Regarding FD-SOI semiconductors, based on public comments, CPO has removed from the list of semiconductors critical to national security those FD-SOI semiconductors that relate to semiconductor packaging operations with respect to semiconductors of a 28-nanometer generation or older. This is consistent with the definition of legacy semiconductors.

Comment #2: One comment was received regarding inclusion of radiation hardened semiconductors on the list of semiconductors critical to national security. The commenter thought that additional clarification was needed, because in some cases “the integrated circuits produced from the standard commercial process technology have become naturally more radiation resistant” and “radiation hardening can also occur during design.” The commenter suggests that Commerce work with industry to clarify the coverage for radiation hardened semiconductors.

Response: As the commenter also noted, “Radiation-hardened by process” has “traditionally meant that special steps were taken in the process technology to enhance the radiation resilience of the products, such as introducing different substrate materials.” CPO clarifies that semiconductors that are specially designed or processed to be resistant to radiation are considered semiconductors critical to national security.

Comments: One commenter requested that there be flexibility in the definition of “significant transaction,” which it believes will “better comport with the actual language of the statute which requires a determination of the appropriate restriction on a case-by-case basis.” The commenter suggested including a statement that the Department will have flexibility on a case-by-case basis to deviate from the definition of “significant transaction” to accommodate the unique needs and investments of a funding recipient and its affiliates.” Other commenters argued the $100,000 threshold (in aggregate over the applicable term of the required agreement) for significant transactions was too low, given the high capital costs associated with semiconductor manufacturing.

Response: After further evaluation, CPO is removing the proposed definition from the final rule. The Act contemplates that what constitutes a significant transaction will be defined in the required agreement. CPO acknowledges that different thresholds for significant transactions may be appropriate for different applicants. CPO anticipates issuing further guidance on this issue.

Comment #1: Commenters noted that the term “significant renovations” was not included in the CHIPS Act. Specifically, they object to inclusion of the phrase “a facility that undergoes significant renovations after the required agreement is entered into shall no longer qualify as an `existing facility.' ” Commenters noted that this phrase, when combined with the proposed rule's definition of “significant renovations” as “any set of changes to a facility that, in the aggregate during the applicable term of the required agreement, increase semiconductor manufacturing capacity . . . by adding an additional line or otherwise increase semiconductor manufacturing capacity by 10 percent or more,” limits the ability to expand capacity for legacy semiconductor manufacturing to ten percent above existing capacity. The comments assert that the proposed rule would substantially narrow the exemption for existing legacy facilities and would limit the ability of companies to protect and maintain past investments in these existing facilities.

Response: CPO declines to remove the concept of significant renovations from the final rule. The concept of significant renovations clarifies how the two exceptions to the Expansion Clawback interact. Section 4652(a)(6)(C)(ii)(I) exempts “existing facilities or equipment of a covered entity for manufacturing semiconductors” and § 4652(a)(6)(C)(ii)(II) exempts “significant transactions involving the material expansion of semiconductor manufacturing capacity that produces legacy semiconductors [] and predominantly serves the market of a foreign county of concern.” Thus, subclause (I) provides a categorical exception for existing facilities while subclause (II) provides an exception regardless of whether the facility is existing or new, provided that it produces legacy semiconductors and predominantly serves the market of a foreign country of concern. Under this structure, the categorical exception in subclause (I) would not be available when the facility is no longer an “existing facility” due to significant renovations, but a covered entity could still avail itself of the exception provided by subclause (II). Without the concept of significant renovations, covered entities could evade the expansion prohibition simply by significantly expanding an existing facility rather than constructing a new facility.

CPO also believes that limiting capacity expansion for existing legacy facilities to ten percent is appropriate and upholds the national security goals of the Act. The final rule permits a five percent increase in semiconductor manufacturing capacity for ordinary course of business investments and facility improvements for all existing facilities. A larger exemption would undermine the national security goals of the Act by permitting the construction of additional legacy semiconductor manufacturing capacity in foreign countries of concern, potentially allowing for technology transfer or investments that could potentially destabilize global semiconductor markets, thus undermining the ability of the United States to develop commercially viable semiconductor industries.

Comment #2: Commenters suggested revising the definition of “significant renovations” to limit it to new cleanroom construction or the addition of a manufacturing line that is not part of the legacy facility's designed capacity level. Alternatively, they suggest significant renovations could be defined as an increase in the square footage of an existing facility by a specified percentage.

Response: CPO agrees that “significant renovations” can be better defined by reference to new cleanroom construction or the addition of a manufacturing line. The final rule defines significant renovations as building new cleanroom space, 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.

Comment #3: Some commenters suggested increasing the percentage threshold for capacity expansion upward from 10 percent to 15 percent or 25 percent, to maintain the Department's objectives of only allowing modestly expanded capacity, while ensuring that existing facilities can be reasonably maintained over the course of the 10-year period.

Response: CPO declines to raise the threshold for defining significant renovations beyond 10 percent. As explained above, greater expansion of legacy semiconductor manufacturing capacity in a foreign country of concern may lead to increased domestic dependencies and supply chain vulnerabilities, which could jeopardize national security.

Comment #4: Commenters suggested that the final rule allow for a waiver for expansion of legacy facilities on a case-by-case basis.

Response: As mentioned above in the discussion of the definition of “required agreement,” the final rule permits modifications to the required agreement between a covered entity and the Secretary upon mutual consent. The definition of “existing facility” in this final rule has been modified slightly to reflect this capability.

Broadly speaking, the comments on the definition of technology licensing were similar to or combined with those on the definition of joint research; both types of activities are subject to the Technology Clawback provision. One commenter summarized concerns by noting that “the emphasis should be on agreements involving the transfer of critical technology or know-how and make it clear that customary business discussions that may include general technical information are outside the reach of the rule.”

Comment #1: Numerous commenters emphasized the need to exempt patent-related activities from the definition of “technology licensing.” They observed that by including patents alongside trade secrets and know-how, the proposed language made a wholesale change to the way American companies conduct patent licensing, patent litigation, standard essential patent licensing, and standards-setting activities in China. Patents are public documents and should not be considered alongside trade secrets and “know-how. They asserted that not excluding patents would impede ordinary business transactions that are essential to the semiconductor ecosystem and the protection and monetization of intellectual property. Commenters noted that patents are published documents, and therefore, the invention in a patent is already available and could be known to foreign entities of concern. Commenters also recommended that the definition of “technology licensing” exclude the affiliate transfers of patent agreements; not doing so may restrict funding recipients from entering into intracompany intellectual property license and transfer agreements with their affiliates, or vice versa. This has potentially wide-reaching impact for companies that utilize the well-accepted corporate practice of holding and managing intellectual property in a single entity to enable their global research and development efforts.

Response: CPO agrees that patent licensing should not be subject to the Technology Clawback because patents are, by definition, already public documents. In the final rule, patents have been excluded from the scope of technology licensing.

Comment #2: Numerous comments stressed the need to allow for participation in international collaborative efforts such as standards organizations. Many entities that would meet the definition of foreign entity of concern are members of international standards setting organizations in the semiconductor space. Restricting which companies may participate in standards organizations puts U.S.-based standards development organizations at a disadvantage.

Response: CPO agrees and has addressed this issue in the discussion related to the definitions of “joint research” and “technology licensing.”

Comment #3: Some commenters thought that general sales of products may be captured under the proposed technology licensing definition. They say that the prohibition on technology licensing “with a foreign entity of concern that relates to a technology or product that raises national security concerns,” when combined with the definition of “technology licensing” could be interpreted to prohibit the sale of semiconductor products because each product is sold with an explicit or implied license to use the intellectual property underlying the product.

Response: CPO clarifies that the prohibition on technology licensing is not intended to apply to sales of semiconductor products. The final rule includes an exception to the definition of technology licensing for intellectual property licenses relating to the use of a product that is sold by a covered entity or a related entity.

Comment # 4: Commenters noted that some companies outsource fabrication and/or packaging operations to foundries and outsourced semiconductor and test companies (OSATs), and in doing so they may make available intellectual property (such as a design file) to manufacturing partners. The commenter believes, based on the proposed rule, such activities could be construed as transferring know-how to a foreign entity of concern. They request that the rule be clarified to specify that information, such as design files for fabrication and packaging as part of an outsourced manufacturing agreement, is not covered by the Technology Clawback.

Response: CPO clarifies that the Technology Clawback is not meant to prevent the outsourcing of manufacturing or packaging of semiconductors, and the final rule allows for an exception in the “technology licensing” definition.

Comment #5: Some commenters thought that the proposed technology licensing definition could restrict funding recipients from entering into intracompany intellectual property license and transfer agreements with their affiliates. They noted that “this has potentially wide-reaching impact for companies that utilize the well-accepted corporate practice of holding and managing intellectual property in a single entity to enable their global R&D efforts.”

Response: CPO agrees that the technology licensing definition should not capture transactions conducted exclusively between employees of a covered entity or among entities that are related entities of the covered entity. The definition in the final rule has been modified to include this exception.

Comment #1: One commenter noted that the period subject to this prohibition (a ten-year period beginning with the date of the incentive award) and the analogous prohibition in Treasury's Advanced Manufacturing Investment Tax Credit rule (ten years from when eligible property is placed into service) can differ and may result in the combined restrictive period lasting longer than ten years; they suggest that the terms be harmonized to the ten year period of the award.

Response: CPO declines to make this change. The applicable term of the Expansion Clawback is articulated in the Act.

Comment #2: Several commenters noted that the definition of “affiliate” in the proposed rule differed from the definition of “affiliated group” included in the Expansion Clawback, resulting in a different threshold percentage for affiliates based on voting interest (50 percent in the proposed rule versus 80 percent in the Expansion Clawback).

Response: As noted above, CPO has removed the definition of “affiliate” from the proposed rule. However, CPO remains focused on ensuring that beneficiaries of CHIPS funds do not act in a manner that would be contrary to the national security goals of the Act. The Expansion Clawback in the Act refers to the term “affiliated group,” as is defined in 26 U.S.C. 1504, which generally establishes an 80 percent ownership of stock or voting power threshold. The Act further provides that if any member of a covered entity's affiliated group engages in an impermissible significant transaction that results in the material expansion of semiconductor capacity, the Secretary may require an appropriate mitigation agreement or recoup the full amount of the Federal financial assistance award. CPO believes that applying the Expansion Clawback to members of a covered entity's affiliated group, would adequately avoid circumvention of the Clawback and meet the national security goals of the Act.

CPO, notes, however, that entities related to a covered entity but outside the scope of the affiliated group, as defined in the Act, may nonetheless be relevant to application of the Expansion Clawback. First, transactions between the covered entity and the related entities remain subject to the Expansion Clawback. Second, under applicable legal principles, such as the law of agency or single enterprise liability, the actions of such a related entity may be imputed to the covered entity or a member of its affiliated group for purposes of determining whether the covered entity or its affiliated group member engaged in a prohibited transaction.

Comments: Several commenters indicated that the Technology Clawback should apply prospectively only. They argue this approach is consistent with the statutory language of the Act, which states that the Technology Clawback only becomes operative if national security concerns with specific joint research or a technology license are “communicated to the covered entity before engaging in such joint research or technology licensing.” One commenter suggested that the rule should clarify that companies holding a U.S. export license would not be prohibited or disqualified from applying for or receiving CHIPS Act funding, and would not be subject to the Technology Clawback provision, for engaging in technology licensing transactions that would be otherwise permitted by the export license.

However, another commenter noted that while the prohibition should not be applied retroactively, “there may be attempts by funding recipients to escape CHIPS restrictions with quick new investments, claiming plans and activities that predate implementing regulations. The final rules should discourage this as sharply as possible. The same applies to any rush of late-appearing joint research.”

Response: The final rule clarifies that the Technology Clawback does not apply to joint research and technology licensing activities with a foreign entity of concern related to technology or products that raise national security concerns that are ongoing prior to the Secretary communicating that such technology or products raise national security concerns. Through this final rule, the Secretary is communicating to all covered entities those technologies and products that raise national security concerns. To ensure that this safe harbor is not used to circumvent the prohibitions in the rule, covered entities will be required to document those grandfathered joint research and technology licensing activities in the required agreement, and only those activities will fall within the safe harbor. The safe harbor does not preclude the Secretary from requiring the cessation of joint research or technology licensing with a foreign entity of concern as a condition of receiving Federal financial assistance. Any such terms will be memorialized in the required agreement.

Comment #2: Several commenters believed that use of the term “relates to” in the prohibition of certain joint research or technology licensing in the proposed rule lacks clarity and should be defined. Another commenter suggested defining “relates to” as “required for development of production” (as defined in the Export Administration Regulations) of items that raise national security concerns.

Response: The term “relates to” is in the Act, and although CPO is not specifically defining it in the rule, a reasonable interpretation is any joint research or technology licensing that would require an export license or involves the items included on the list of semiconductors critical to national security.

Comment #3: Some commenters objected to the proposed rule's inclusion of a covered entity's affiliates within the scope of the Technology Clawback because the covered entity's affiliates are not mentioned in the Act's Technology Clawback provision. Some commenters noted that the Secretary was constrained from applying the Technology Clawback to affiliates because only the Expansion Clawback included reference to the affiliated group.

Response: As noted above, CPO has removed the term “affiliates” as a defined term in the final rule. This change clarifies that Technology Clawback as articulated in the proposed rule applies to the covered entity, and not to affiliates of the covered entity.

However, CPO remains concerned that the joint research and technology licensing conditions of the Technology Clawback could be circumvented by relatively commonplace corporate arrangements. If the Secretary could recoup funds only if the distinct legal entity that is a party to a CHIPS incentives award engaged in a prohibited joint research or licensing transaction, a corporation could capture the benefit of the CHIPS award by having a subsidiary receive the award, while it engages in prohibited joint research or licensing itself or through another subsidiary. That concern is particularly acute because, as some commenters highlighted, complex corporate structures and intracompany licensing arrangements are common in the semiconductor industry. Thus CPO believes that merely restricting the activities of the covered entity is not sufficient to prevent, for example, a parent company—which could be the ultimate beneficiary of the CHIPS Act funds—from engaging in joint research and technology licensing that would be prohibited under the Technology Clawback.

At the same time, CPO is cognizant of the complex corporate relationships and ongoing business activities of the semiconductor industry. CPO is also mindful that a number of commenters requested flexibility in the application of the Technology Clawback, such as the ability to enter into mitigation agreements or other mitigation measures that would stop short of recouping the entire Federal financial award. The Act, however, directs that where a covered entity engages in prohibited joint research or technology licensing activity such that the Technology Clawback is triggered, the Secretary “shall recover the full amount of an award.”

To address the risk of circumvention while accommodating further flexibility, CPO is clarifying in the final rule that it may impose additional conditions in the funding agreement that are in addition to the Technology Clawback. The final rule provides that if any entity related to the covered entity engages in joint research or technology licensing that would violate the Technology Clawback if engaged in by the covered entity, the Secretary may take appropriate remedial measures, including requiring mitigation agreements or recovering up to the full amount of the Federal financial assistance provided to a covered entity. The Secretary has discretion to impose lesser remedial measures, as appropriate. For purposes of this final rule, a related entity is any entity that directly, or indirectly through one or more intermediaries, controls or is controlled by, or is under common control with, the covered entity. This approach is necessary to prevent enterprises from circumventing the conditions that Congress required to avoid semiconductor technology transfer to foreign entities of concern.

CPO notes that the Secretary will impose further requirements, as appropriate, in the individual funding agreements, including additional conditions on certain joint research or technology licensing, to ensure that the prohibitions in the Act are achieved. This is consistent with the Act, which authorizes the Secretary to enter into agreements under the statute “on such terms as the Secretary considers appropriate.”

Comment: Public comments noted that the proposed rule's record retention requirements for all “significant transactions” is overly broad and burdensome, due in part to the $100,000 threshold for “significant transactions.” Most comments suggest a revision to limit record retention to transactions involving the “material expansion” of semiconductor manufacturing capacity in a foreign country of concern, instead of all transactions.

Response: CPO agrees that the records retention requirement should only apply to transactions that involve the material expansion of semiconductor manufacturing capacity in a foreign country of concern, and has modified the record retention requirement accordingly in the final rule.

Comment: One commenter suggested that there be a 10-day time limit for the Secretary to review a notification for completeness and to request additional information from the covered entity.

Response: CPO declines to make this change. The amount of material produced in response to a notification may be substantial. The Secretary may need more than 10 days to adequately review it for completeness. To provide additional clarity and to reduce uncertainty, CPO has included additional details in the final rule about the process for initiating, conducting, and completing a review under the Expansion Clawback. The final rule now more clearly sets out the process by which the covered entity must notify the Secretary of a potentially prohibited activity, the Secretary's ability to request additional information to complete a review of a potentially prohibited activity, the Secretary's timeline for issuing an initial determination, the covered entity's ability and timeline to seek reconsideration of the initial determination, and the Secretary's timeline for making a final determination. The final rule clarifies that the Secretary can initiate a review based upon any information available to the Secretary, without first needing to be notified by the covered entity.

Comment: One commenter suggested that there be a mitigation process for possible violations of the prohibition on joint research technology licensing that would allow for the Secretary to take measures to mitigate the risk to national security, comparable to the mitigation process for violations of the material expansion prohibition.

Response: CPO declines to develop a mitigation process for violations of the prohibition on joint research and technology licensing, as the Act compels the Secretary to recover the full amount of the Federal financial assistance if the Technology Clawback is triggered. However, the final rule contemplates additional conditions that will be imposed, as appropriate, on the covered entity, as well as related entities, to avoid circumvention of the Technology Clawback. The final rule provides that the Secretary has discretion to adopt appropriate measures in response to violations of the additional conditions, which could include a mitigation agreement, recovery of some of the Federal financial award or recovery of the entire Federal financial award.

In addition to comments that addressed specific definitions and provisions in the proposed rule, some comments were submitted that relate to broader issues, such as enforcement of the rule and its relationship to the Treasury Department's rule authorizing the Advanced Manufacturing Investment Tax Credit, which includes a similar prohibition on significant transactions involving the material expansion of semiconductor manufacturing capacity in a foreign country of concern for those entities claiming the credit.

Comment #1: Commerce and Treasury should work together closely to create rules and processes for Expansion Clawback and Recapture that apply the same definitions, criteria, review process, and enforcement protocol.

Response: Commerce and Treasury worked closely together and harmonized definitions to the maximum extent possible and will continue to do so after the final rules take effect.

Comment #2: Commerce and Treasury should create one, jointly staffed, fully empowered interagency tribunal to review and redress potentially improper uses of CHIPS Act benefits as this would be an extremely efficient and consistent way to ensure compliance. This mechanism would conserve the resources of both agencies, would ensure consistency of statutory application, and would provide greater predictability for the affected companies.

Response: CPO will take this comment into consideration as it develops mechanisms to enforce compliance and redress improper use of CHIPS Act benefits.

Comment #3: Commerce and Treasury should recognize differences between the statutory provisions governing the Funding Program and the Investment Tax Credit. The regulatory scheme implementing the different provisions of the Act should allow for differences between the Legacy Exception and the Investment Tax Credit Legacy Exception in light of the differences in the statutory provisions for each program.

Response: CPO recognizes that there are differences in statutory requirements for the Advanced Manufacturing Investment Credit and the semiconductor incentives program, and that any implementing rules and guidance will reflect those differences. While the two regimes are aligned, there may be differences in how specific objectives are pursued.

Sections have been renumbered throughout to reflect modifications to the proposed rule.

The final rule does not include the term “Affiliate,” which appeared in proposed § 231.101.

The final rule does not include the term “Applicable Term,” which appeared in proposed § 231.102.

In § 231.101 of the final rule, the definition of “Existing Facility” has been changed to specify that only facilities built, equipped, and operating prior to entering into the required agreement will be considered existing facilities; at the discretion of the Secretary, a facility that is undergoing construction, expansion, or modernization at the time of entering into the required agreement may be memorialized in the required agreement at the semiconductor manufacturing capacity for which it is designed or any lower capacity.

In § 231.102 of the final rule, minor modifications were made to the definition of “Foreign Country of Concern.”

In § 231.103 of the final rule, minor modifications were made to the definition of “Foreign Entity.”

In § 231.104 of the final rule, the definition of “Foreign Entity of Concern” was modified; the prior definition of “owned by, controlled by, or subject to the jurisdiction or direction” was modified and directly incorporated into the definition of foreign entity of concern. In addition, proposed § 231.106(g) is deleted because, after further evaluation, CPO was concerned that there may be bases by which the Federal Communications Commission may (or can be compelled) to add entities to the list of equipment and services required by the Secure and Trusted Communications Networks Act of 2019, not all of which may align with the national security goals of the Act. Minor technical corrections were also made.

The final rule does not include the term “Funding Recipient,” which appeared in proposed § 231.107. The term was omitted to better reflect the Act's use of the term covered entity.

In § 231.105 of the final rule, the term “Joint Research” was modified to clarify that the following types of activities are not considered joint research: standards-related activities; research and development conducted exclusively between employees of a covered entity or between entities that are related entities of the covered entity; 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; 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 warranty, service, and customer support performed by a covered entity or an entity that is a related entity of a covered entity. Research and development is also defined separately in the final rule.

In § 231.110 of the final rule, the definition of “Legacy Semiconductor” was modified to include additional categories. For the purposes of a semiconductor wafer facility, the definition includes a silicon wafer measuring 8 inches (or 200 millimeters) or smaller in diameter and a compound wafer measuring 6 inches (or 150 millimeters) or smaller in diameter. For the purposes of a semiconductor fabrication facility, the definition includes 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); 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; and a semiconductor identified by the Secretary in a public notice issued under 15 U.S.C. 4652(a)(6)(A)(ii). For the purposes of a semiconductor packaging facility, the definition includes a semiconductor that does not utilize advanced three-dimensional (3D) integration packaging. The definition in the final rule excludes semiconductors critical to national security, as defined in § 231.118; a semiconductor with a post-planar transistor architecture (such as fin-shaped field-effect transistor (FinFET) or gate all around field-effect transistor); and 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.

In § 231.108 in the final rule, minor modifications were made to the definition of “Material Expansion.”

In § 231.109 of the final rule, the definition of “Members of the Affiliated Group” is added.

The final rule does not separately define “Owned by, controlled by, or subject to the jurisdiction or direction of,” which was in proposed § 231.112. In the final rule, the definition has been directly incorporated into the definition of foreign entity of concern, and now clarifies that it applies to persons who are citizens, nationals, or residents of a foreign country listed in 10 U.S.C. 4872(d) and who are located in a foreign country listed in 10 U.S.C. 4872(d). It has also been modified to include as a foreign entity of concern, any person whose outstanding voting interest is at least 25 percent held directly or indirectly by persons that fall within subsection (i)-(iii) of the definition. This change was to ensure that foreign entities of concern could not circumvent the ownership threshold by coordinating with other foreign entities of concern to each have less than the 25 percent threshold.

In § 231.112 of the final rule, the definition of “Required Agreement” was modified to require that it memorialize the covered entity's existing facilities in foreign countries of concern and the covered entity's existing joint research and technology licensing activities related to technology or products that raise national security issues with foreign entities of concern; that it include additional terms to mitigate national security risks, including as contemplated in § 231.204; and that the agreement may be amended by mutual consent to address changes in the status or ownership of an existing facility or any other circumstances that may arise.

In § 231.113 of the final rule, a definition of “Research and Development” is added. To ensure appropriate scope, the definition is more general than how the term was used in the proposed definition of joint research.

In § 231.116 of the final rule, the definition of “Semiconductor Manufacturing” is clarified to specify that it includes semiconductor wafer production, including the processes of wafer slicing, polishing, cleaning, epitaxial deposition, and metrology.

In § 231.117 of the final rule, the definition of “Semiconductor Manufacturing Capacity” is modified to address wafer production facilities, includes a capacity metric for semiconductor fabrication facility for wafers designed for wafer-to-wafer bonding structure, and is now measured on a yearly basis.

In § 231.118 of the final rule, the definition of “Semiconductors Critical to National Security” is modified to make a minor change to the description of FD-SOI semiconductors. The definition was also changed to clarify that the Secretary can designate additional categories of semiconductors critical to national security.

In the final rule, the term “Significant transaction,” which was proposed § 231.121 has been removed.

In § 231.119 of the final rule, the definition of “Significant Renovations” has been modified to emphasize that it is tied to the building of new cleanroom space or adding a production line or other physical space to an existing facility.

In § 231.120 of the final rule, the definition of “Technology Licensing” has been modified to clarify that it means 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. The definition also excludes licensing of patents, including licenses related to standard essential patents or cross licensing activities; licensing or transfer agreements conducted exclusively between a covered entity and related entities, or between or among entities that are related entities to the covered entity; removes reference to patents; standards-related activity (as such term is defined in 15 CFR part 772); agreements that grant patent rights only with respect to “published information” and no proprietary information is shared; implied or general intellectual property licenses relating to the use of a product that is sold by a covered entity or related entities; technology licensing related to a manufacturing process for an existing product solely to enable use of assembly, test, or packaging services for integrated circuits; 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; warranty, service, and customer support performed by a covered entity or an entity that is a related entity of a covered entity; and disclosures of technical information to a customer solely for the design of integrated circuits to be manufactured by the funding recipient for that customer.

In § 231.121 of the final rule, the definition of “Technology or Product That Raises National Security Concerns” is modified to clarify that the Secretary can designate additional technologies or products that raise national security concerns. Minor technical corrections were also made.

In § 231.201 of the final rule, minor modifications were made to reflect changes to other parts of subpart B.

In § 231.202 of the final rule, the prohibition on certain expansion transactions was modified to conform with changes to definitions in the final rule, and to make other minor changes.

In § 231.203 of the final rule, the prohibition on certain joint research or technology licensing was modified to clarify that it only applies to the covered entity, and that the prohibition does not apply to joint research or technology licensing activities that relate to products or technology that raise national security concerns that were ongoing prior to the Secretary determining such products or technology raised national security concerns. It also requires that such joint research or licensing arrangements be memorialized in the required agreement.

In § 231.204 of the final rule, a new provision is added: “Additional conditions on certain joint research or technology licensing.” This new provision establishes that the Secretary is empowered to impose appropriate conditions on the covered entity to mitigate the risk of circumvention of the Technology Clawback. Such provisions would allow the Secretary to recover the entire Federal financial award or impose lesser consequences, such as requiring a mitigation agreement, if any related entity engages in joint research or technology licensing that would violate the Technology Clawback if engaged in by the covered entity. For purposes of this condition, a related entity is any entity that directly, or indirectly through one or more intermediaries, controls or is controlled by, or is under common control with, the covered entity.

§ 231.205 of the final rule, “Retention of Records,” is modified to clarify that the retention of records requirement applies to records related to significant transactions involving the material expansion of semiconductor manufacturing capacity in a foreign country of concern, as well any records that relate to a transaction that is being reviewed by the Secretary that are maintained by the covered entity, a member of the affiliated group of the covered entity or by a related entity.

In § 231.301 Procedures for notifying the Secretary of significant transactions: was modified to clarify that notification period aligns with the 10-year term of the Expansion Clawback. Minor technical corrections were also made.

In § 231.302 Contents of notifications; certifications: minor technical corrections were made.

In § 231.303 Response to notifications: changes were made to clarify that the Secretary can request additional information if a notice is deficient.

In § 231.304 Initiation of review: significant changes were made to clarify the process, standards, and timing of initiating a review.

In § 231.305 Procedures for review: significant changes were made to clarify the process, standards, and timing of a review, including the ability of a covered entity to seek reconsideration of an initial determination.

In § 231.306 Mitigation of national security risks: changes were made to clarify that the Secretary has discretion to waive the recovery of funds for violation of § 231.302 in circumstances where an appropriate mitigation agreement has been entered into and complied with by the covered entity.

In § 231.307 Review of actions that may violate the prohibition on certain joint research or technology licensing: the section was revised substantially to clarify the process, standards, and timing for the Secretary's review of possible violations of the prohibitions on certain joint research or technology licensing.

In § 231.308 Recovery and other remedies: minor technical corrections were made.

In § 231.401 Amendment: minor technical corrections were made.

In § 231.402 Submission of false information: minor technical changes are made.

A new section, § 231.403, was added to include a severability clause.

This proposed rule does not contain policies with federalism implications as that term is defined in section 1(a) of Executive Order 13132, dated August 4, 1999 (64 FR 43255 (August 10, 1999)).

The Office of Management and Budget (OMB) has determined that this rule is significant as defined by Section 3(f)(1) for purposes of Executive Order 12866. A detailed regulatory impact assessment was published in the proposed rule and is not repeated in its entirety here. No public comments were received regarding the impact assessment, substantive portions of which are included below.

This rule limits the ability of covered entities to invest in new semiconductor manufacturing capacity in foreign countries of concern. This limitation is intended to ensure that federal funding is used consistent with the goals of the CHIPS Act to incentivize investment in semiconductor facilities and equipment in the United States. At this time, it is unknown how the investments in foreign countries of concern by those that are not covered entities will be affected.

Although the provisions in this rule prohibit covered entities from establishing most new manufacturing capacity in foreign countries of concern, covered entities with existing facilities in foreign countries of concern would be able to continue current operations. The rule also allows them to upgrade facilities and production lines at existing foreign facilities (in compliance with export controls) if overall production capacity is not increased. In addition, covered entities could modestly expand capacity at existing facilities producing mature (legacy) technology. Finally, this rule allows covered entities to make new investments in manufacturing capacity in foreign countries of concerns in the limited circumstance in which such production of legacy-level semiconductors would “predominately serve the market of the foreign country of concern.” These provisions ensure minimal disruptions to revenues, for the foreseeable future, to firms that currently have productive capacity in foreign countries of concern. It is estimated that less than ten firms may be impacted. 1

This regulatory impact analysis does not consider the private costs to covered entities of limiting their investments in foreign countries of concern. In pursuing program funding, applicants are expected to weigh the private costs and benefits of the conditions for funding outlined by the provisions in this proposed rule. CHIPS Incentives Program funding is intended to complement, not replace, private investment and other sources of funding. Using $39 billion in financial assistance, the CHIPS Incentives Program is designed to restore U.S. leadership in semiconductor manufacturing and innovation. Through the first funding opportunity, released February 28, 2023, the CHIPS Incentives Program aims to (1) to build at least two new large-scale cluster of leading-edge logic fabs, (2) to be home to multiple high-volume advanced packaging facilities, (3) to produce high-volume leading-edge dynamic random-access memory (DRAM) chips on economically competitive terms, and (4) to increase its production capacity for the current-generation and mature node chips that are most vital to U.S. economic and national security. To achieve these aims, the CHIPS Incentives Program funding awards are designed to catalyze private investment in the United States.

By restricting the ability of covered entities to invest in new semiconductor manufacturing capacity in foreign countries of concern, the proposed rule would also likely catalyze investment outside foreign countries of concern.

In particular, the demand for leading-edge, current, and mature semiconductors are estimated to increase significantly in the next decade, from approximately $600 billion per year in 2022 to approximately $1 trillion revenue per year within the next 10 years. 2 An increase in global productive capacity for a wide variety of semiconductors will be needed to supply the increased chip demand. The restriction on expanding manufacturing capacity in foreign countries of concern is likely to increase the need for additional capacity to be built outside foreign countries of concern.

Where the conditions in this final rule are violated, covered entities face the potential “clawback” of federal funding. For purposes of this analysis, the recovery of federal funding is considered to be a transfer of funds and could be of an equal amount of the funding award (plus interest) back to the government. This recovery of funds could have negative implications for the award recipients' financial condition and, for public companies, could affect their stock valuation. The recovery of funds might also affect award recipients' willingness or ability to continue constructing semiconductor facilities and equipment in the United States.

The potential clawback of funds is intended to serve as a significant deterrent to violating the conditions of an award. The Department, therefore, expects that few, if any, covered entities will violate the prohibitions laid out in this proposed rule. Damage to corporate reputation resulting from violating an agreement with the U.S. government, while not readily quantifiable, would also be a significant deterrent to violations. Thus, the likelihood of violations that result in a recovery of funding is small and the impact of the transfer is expected to be minimal across all incentives program participants. Furthermore, even in the unlikely event that a violation occurs and clawbacks become necessary, the impacted chipmakers are highly unlikely to abandon their finished or ongoing investments in the United States.

Two reasons make this outcome unlikely: First, because of the high fixed costs associated with chip production, companies are likely to either continue producing in facilities that are already built or finish building ongoing investment projects. Second, semiconductor production capacity is only likely to be built with a high degree of confidence of customer demand, usually with advanced purchases of wafer capacity prior to completion of the facility construction. Abandoning a finished or ongoing project could jeopardize customer relationships and ongoing revenue. The incentives associated with CHIPS are expected to incentivize applicants to locate their productive capacity within the United States. Once those decisions are made, and projects are underway, there would likely be significant costs to reverse such decisions.

This rule establishes a notification requirement for covered entities that are planning certain transactions in foreign countries of concern. This notification requirement applies to recipients pursuing transactions that would: (1) expand existing capacity for manufacture of legacy semiconductors; or (2) provide new capacity for legacy semiconductors that primarily serve the market of the foreign country of concern.

The Department estimates that there are not more than a handful of potential CHIPS Incentives Program applicants with existing facilities in foreign countries of concern that may seek to expand manufacturing capacity under the provisions of this rule, and therefore expects few notifications. However, for purposes of this analysis, the Department has conservatively assumed a maximum of 10 notifications per year. The notifications would require general information about planned transaction, such as the names, location and ownership of the parties involved; information about the manufacturing facility such as current and proposed semiconductor production technology to determine if it meets the “legacy” requirement; current and proposed manufacturing capacity to determine if the “existing facility” definition is met; and information about the markets or end users for the semiconductors to be manufactured in the case of new capacity. Because the covered entities would have initiated and planned these transactions, the basic information required in the notification would be known and readily available, and the notification process itself is not expected to be burdensome. The Department estimates that it would take recipients two hours to provide each notification, or a total of 20 hours per year for all recipients.

Once received, notifications will be evaluated by the Department as to whether the transactions meet one of the permissible criteria. This analysis will be performed by Department staff, including an anticipated initial review and, if necessary, consultation with industry and technology experts, as well as with the funding recipient. As the number of notifications that will be submitted each year is expected to be small, the staffing requirements for review and analysis of the notifications is also expected to be small. Assuming conservatively 10 notifications per year, two senior analysts and two licensing officers/electronics engineers could handle notifications with a fraction of their annual time. The total estimated cost would be approximately $110,000 per year (10 notifications * 4 staff at a GS-14 salary ($137/hr)  3 * 20 hours each to review for each notification).

The federal government may also incur costs for monitoring and enforcement efforts. Because the program is designed to deter violations, we expect that enforcement actions will rarely be needed. In those cases where the federal government will ultimately need to take enforcement action, the government will incur additional costs; however, the extent of those costs is currently unknown. Moreover, investments in semiconductor manufacturing are widely monitored and reported in the trade press. New or expanded semiconductor manufacturing capacity requires installation of expensive capital equipment and several years to bring into operation. It is unlikely that such expansions would go unnoticed. Therefore, to the extent that monitoring is required, we would expect that the government would incur limited costs.

The provisions in this proposed rule reinforce the benefits of the CHIPS Incentives Program by ensuring that funding goes toward increasing domestic manufacturing capacity and by discouraging investments in foreign countries of concern that would raise national security concerns. The domestic investments will advance U.S. economic and national security, enhance global supply chain resilience, and promote U.S. leadership in designing and building important semiconductor technologies. In particular, these investments will help address areas where the United States has fallen behind in semiconductor manufacturing. For example, although the United States remains a global leader in chip design and research and development, it has fallen behind in manufacturing and today accounts for only roughly 10 percent of commercial global production. 4

This document and additional information concerning OFAC are available on OFAC's website: www.treas.gov/ofac.

On February 10, 2021, the President, invoking the authority of, inter alia, the International Emergency Economic Powers Act (50 U.S.C. 1701 et seq. ), issued Executive Order (E.O.) 14014 (86 FR 9429, February 12, 2021). Among other prohibitions, section 1(a) of E.O. 14014 blocks, with certain exceptions, all property and interests in property that are in the United States, that come within the United States, or that are or come within the possession or control of any U.S. person of, any foreign person determined by the Secretary of the Treasury, in consultation with the Secretary of State, to operate in the defense sector of the Burmese economy or any other sector of the Burmese economy as may be determined by the Secretary of the Treasury, in consultation with the Secretary of State. On June 1, 2021, OFAC issued the Burma Sanctions Regulations to implement E.O. 14014 (86 FR 29197).

On August 23, 2023, pursuant to delegated authority, the Director of OFAC, in consultation with the Department of State, determined that the prohibitions in section 1(a)(i) of E.O. 14014 shall apply to the jet fuel sector of the Burmese economy. This determination took effect on August 23, 2023. The text of the determination is below.

In FR Doc. 2023-17945 appearing in the Federal Register on Thursday, August 24, 2023, the following corrections are made:

States which have received final authorization from the EPA under RCRA section 3006(b), 42 U.S.C. 6926(b), must maintain a hazardous waste program that is equivalent to, consistent with, and no less stringent than the Federal program. As the Federal program changes, States must change their programs and ask the EPA to authorize the changes. Changes to State programs may be necessary when Federal or State statutory or regulatory authority is modified or when certain other changes occur. Most commonly, States must change their programs because of changes to the EPA's regulations in 40 Code of Federal Regulations (CFR) parts 124, 260 through 268, 270, 273 and 279.

On June 17, 2022, Wyoming submitted a program revision application seeking authorization of changes to its hazardous waste program. The EPA concludes that Wyoming's applications to revise its authorized program meet all of the statutory and regulatory requirements established by RCRA. Therefore, we grant Wyoming final authorization to operate its hazardous waste program with the changes described in the authorization application. Wyoming has responsibility for permitting Treatment, Storage, and Disposal Facilities (TSDFs), and for carrying out the aspects of the RCRA program described in its revised program application, subject to the limitations of the Hazardous and Solid Waste Amendments of 1984 (HSWA), for all areas within the State, except for (1) lands located within formal Indian Reservations within or abutting the State of Wyoming, including Wind River Indian Reservation, (2) any land held in trust by the United States for an Indian tribe, (3) and any other land, whether on or off a reservation that qualifies as “Indian country” within the meaning of 18 U.S.C. 1151. New Federal requirements and prohibitions imposed by Federal regulations that the EPA promulgates under the authority of HSWA take effect in authorized States before they are authorized for the requirements. Thus, the EPA will implement those requirements and prohibitions in Wyoming, including issuing permits, until Wyoming is authorized to do so.

The effect of this decision is that a facility in Wyoming subject to RCRA will have to comply with the authorized State requirements instead of the equivalent Federal requirements in order to comply with RCRA. The State of Wyoming will continue to have enforcement responsibilities under its State hazardous waste program for violations of such program, but the EPA retains its authority under RCRA sections 3007, 3008, 3013, and 7003, which include, among others, authority to:

• Conduct inspections and require monitoring, tests, analyses, or reports;

• Enforce RCRA requirements; suspend or revoke permits; and

• Take enforcement actions after notice to and consultation with the State.

This action to approve these provisions would not impose additional requirements on the regulated community because the regulations for which the State of Wyoming is requesting authorization are already effective under State law and are not changed by the act of authorization.

The EPA is publishing this rule without a prior proposal because we view this as a noncontroversial action and anticipate no adverse comment. However, in the “Proposed Rules” section of this issue of the Federal Register , we are publishing a separate document that will serve as the proposed rule allowing the public an opportunity to comment. We will not institute a second comment period on this action. Any parties interested in commenting must do so at this time. For further information about commenting on this rule, see the ADDRESSES section of this document.

If the EPA receives comments that oppose this authorization, we will publish a timely withdrawal in the Federal Register informing the public that this direct final rule will not take effect. We will address all public comments in a later Federal Register document. You will not have another opportunity to comment, therefore, if you want to comment on this action, you must do so at this time.

Wyoming initially received Final authorization on October 4, 1995, effective October 18, 1995 (60 FR 51925) to implement the RCRA hazardous waste management program. We granted authorization for changes to their program on: February 25, 1999, effective August 6, 2001 (56 FR 15503); however, this authorization was subsequently withdrawn on April 23, 1999 (64 FR 19925) and re-issued with the initial effective date of August 6, 2001 (66 FR 40911). Most recently, the EPA granted authorization for changes to Wyoming's program on June 24, 2016, effective August 23, 2016 (81 FR 41229).

On June 17, 2022, the State of Wyoming submitted a program revision application seeking authorization of their changes in accordance with 40 CFR 271.21. We now make a final decision, subject to receipt of written comments that oppose this action, that Wyoming's hazardous waste program satisfies all of the requirements necessary to qualify for final authorization. Therefore, we grant Wyoming final authorization for the following changes:

The State of Wyoming revisions consist of regulations which specifically govern Federal hazardous waste revisions promulgated between February 7, 2014, and July 7, 2020, Revision Checklists 231 through 243, (RCRA Clusters XXIII through XXIX). The State requirements from its Hazardous Waste Rules and Regulations, Chapter 1, General Provisions, Sections 1 through 279 are listed in the chart below.

Wyoming has made amendments to its regulations that are not directly related to any of the Federal rules addressed in Item G.1 above. These State-initiated changes are either conforming changes made to existing authorized provisions, or the adoption of provisions that clarify and make the State's regulations internally consistent. The State's regulations, as amended by these provisions, provide authority which remains equivalent to and no less stringent than the Federal laws and regulations. These State-initiated changes are submitted under the requirements of 40 CFR 271.21(a) and include the following provisions from the Hazardous Waste Rules and Regulations (HWRR), Chapter 1, as amended, effective April 7, 2022: HWRR 2(c), 3(b) “Administrator” or “Regional Administrator”, 3(c) “Board” or “Environmental Appeals Board”, 3(g) “Qualified Professional Geologist”, 3(h) “RCRA”, 3(k) “United States” or “U.S.”, 4(a) “Air contaminant”, 4(b) “Air pollution”, 4(u) “One excess cancer per million people”, 4(v) “Potentially exposed populations”, 4(z) “Waste material”, 260(a)(i), 260(a)(ii), 264(a)(iv), 264(d)(iii) introductory paragraph, 264(h)(i) introductory paragraph, (A) and (B), 264(i)(viii), 264(j), 265(b), 266(b)(iv), 267(a), 270(a)(iv), and 270(a)(xviii).

The Wyoming revisions being authorized in this rule include provisions that contain purely Federal functions which are not delegable to States. The non-delegable Federal program areas include import/export requirements reserved as part of the Federal foreign relations function, and manifest registry and electronic manifest functions administered solely by the EPA. Wyoming has appropriately adopted these provisions by leaving the authority with the EPA for implementation and enforcement.

When revised State rules differ from the Federal rules in the RCRA State authorization process, the EPA determines whether the State rules are equivalent to, more stringent than, or broader in scope than the Federal program. Pursuant to RCRA section 3009, 42 U.S.C. 6929, State programs may contain requirements that are more stringent than the Federal regulations. Such more stringent requirements can be federally authorized and, once authorized, become federally enforceable. Although the statute does not prevent States from adopting regulations that are broader in scope than the Federal program, States cannot receive Federal authorization for such regulations, and they are not federally enforceable.

We consider the following State requirements to be more stringent than the Federal requirements: HWRR, Chapter 1, Sections 3(f), 3(g), 261(a)(iii), 261(b), 262(d), and 262(f), for the following reasons.

At Sections 3(f) and 3(g), Wyoming requires both professional engineers and professional geologists to be registered in the State when referring to activities requiring Professional Engineer or Professional Geologist certification.

At 261(a)(iii), 262(a)(v), 262(d), and 262(f), Wyoming requires copies of necessary notifications and reports be made and submitted to the Director or State agency in addition to the required Federal notification or reporting.

The State did not make any changes that are broader-in-scope than the Federal rules in this rulemaking. In addition, Wyoming did not change any previously more stringent or broader-in-scope provisions to be equivalent to the Federal rules.

The State of Wyoming will continue to issue permits for all the provisions for which it is authorized and will administer the permits it issues. The EPA will continue to administer any RCRA hazardous waste permits or portions of permits which we issued prior to the effective date of this authorization, until Wyoming has equivalent instruments in place. The EPA will implement and issue permits for HSWA requirements for which Wyoming is not yet authorized.

Wyoming is not authorized to carry out its hazardous waste program in Indian country, as defined in 18 U.S.C. 1151. This includes, but is not limited to:

1. Lands within the exterior boundaries of the following Indian Reservations located within or abutting the State of Wyoming:

a. Wind River Indian Reservation

2. Any land held in trust by the U.S. for an Indian tribe; and

3. Any other land, whether on or off a reservation that qualifies as Indian country within the meaning of 18 U.S.C. 1151.

Therefore, this program revision does not extend to Indian country where the EPA will continue to implement and administer the RCRA program.

Codification is the process of including the statutes and regulations that comprise the State's authorized hazardous waste management program into the CFR. Section 3006(b) of RCRA, as amended, allows the Environmental Protection Agency (EPA) to authorize State hazardous waste management programs. The EPA is incorporating by reference EPA's approval of Wyoming's hazardous waste management program by amending Subpart ZZ to 40 CFR part 272. The action amends § 272.2551 and incorporates by reference Wyoming's authorized hazardous waste regulations, as amended effective April 7, 2022. The State regulations authorized by EPA supplant the Federal regulations concerning the same matter with the result that after authorization EPA enforces the authorized regulations as described in paragraphs I. and II in this Supplementary Information. The EPA has made these documents available electronically through https://www.regulations.gov and will continue to make these documents available. For alternative access to docket materials, please contact the person identified in the ADDRESSES section of this preamble.

The Office of Management and Budget (OMB) has exempted this action from the requirements of Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011). Therefore, this action is not subject to review by OMB. This action authorizes and codifies State requirements for the purpose of RCRA 3006 and imposes no additional requirements beyond those imposed by State law. Accordingly, I certify that this action will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). Because this action authorizes and codifies pre-existing requirements under State law and does not impose any additional enforceable duty beyond that required by State law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). For the same reason, this action also does not significantly or uniquely affect the communities of Tribal governments, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999), because it merely authorizes and codifies State requirements as part of the State RCRA hazardous waste program without altering the relationship or the distribution of power and responsibilities established by RCRA.

This action also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant, and it does not make decisions based on environmental health or safety risks. This rule is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001), because it is not a significant regulatory action under Executive Order 12866.

Under RCRA 3006(b), the EPA grants a State's application for authorization as long as the State meets the criteria required by RCRA. It would thus be inconsistent with applicable law for the EPA, when it reviews a State authorization application, to require the use of any particular voluntary consensus standard in place of another standard that otherwise satisfies the requirements of RCRA. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this rule, the EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct. The EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings” issued under the executive order. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

Executive Order 12898 (59 FR 7629, February 16, 1994) establishes federal executive policy on environmental justice. Its main provision directs federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States. Because this rule authorizes pre-existing State rules which are at least equivalent to, and no less stringent than existing Federal requirements and imposes no additional requirements beyond those imposed by State law, and there are no anticipated significant adverse human health or environmental effects, the rule is not subject to Executive Order 12898.

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. The EPA will submit a report containing this document and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication in the Federal Register . A major rule cannot take effect until 60 days after it is published in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2). This action will be effective November 24, 2023.

For the reasons set forth in the preamble, under the authority at 42 U.S.C. 6912(a), 6926, and 6974(b), the EPA is amending 40 CFR part 272 as follows:

The fishery for coastal migratory pelagic fish in the Atlantic includes king mackerel, Spanish mackerel, and cobia on the east coast of Florida, and is managed under the Fishery Management Plan for Coastal Migratory Pelagic Resources of the Gulf of Mexico and Atlantic Region (FMP). The FMP was prepared by the Gulf of Mexico and South Atlantic Fishery Management Councils. The FMP is implemented by NMFS under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) through regulations at 50 CFR part 622. All weights described for Spanish mackerel in the Atlantic EEZ apply as either round or gutted weight.

The commercial annual catch limit (equal to the commercial quota) for the Atlantic migratory group of Spanish mackerel (Atlantic Spanish mackerel) is 3.33 million lb (1.51 million kg). Atlantic Spanish mackerel are divided into northern and southern zones for management purposes. The commercial quota for Atlantic Spanish mackerel in the northern zone is 662,670 lb (300,582 kg) for the current fishing year, which is March 1, 2023, through February 29, 2024 (50 CFR 622.384(c)(2)(i)).

The northern zone for Spanish mackerel extends in the Atlantic EEZ from New York through North Carolina. The northern boundary of the northern zone extends from an intersection point off New York, Connecticut, and Rhode Island at 41°18′16.249″ N latitude and 71°54′28.477″ W longitude, and proceeds southeast to 37°22′32.75″ N latitude and the intersection point with the outward boundary of the EEZ. The southern boundary of the northern zone extends from the North Carolina and South Carolina state border along a line in a direction of 135°34′55″ from true north beginning at 33°51′07.9″ N latitude and 78°32′32.6″ W longitude to the intersection point with the outward boundary of the EEZ (50 CFR 622.369(b)(2)). See Figure 2 of appendix G to part 622—Spanish Mackerel for an illustration of the management zones.

Regulations at 50 CFR 622.388(d)(1)(i) require NMFS to close the commercial sector for Atlantic Spanish mackerel in the northern zone when the commercial quota for that zone is reached, or is projected to be reached, by filing such a notification with the Office of the Federal Register. NMFS projects that the commercial quota of 662,670 lb (300,582 kg) for Atlantic Spanish mackerel in the northern zone has been reached. Accordingly, the commercial sector for Atlantic Spanish mackerel in the northern zone is closed effective at 12:01 a.m. eastern time on September 25, 2023, through February 29, 2024, the end of the current fishing year.

During the commercial closure, a person on a vessel that has been issued a valid Federal commercial permit to harvest Atlantic Spanish mackerel may continue to retain this species in the northern zone under the recreational bag and possession limits specified in 50 CFR 622.382(a)(1)(iii) and (2)(i), if recreational harvest of Atlantic Spanish mackerel in the northern zone has not been closed (50 CFR 622.384(e)(1)).

Also during the closure, Atlantic Spanish mackerel from the northern zone, including those fish harvested under the recreational bag and possession limits, may not be purchased or sold. This prohibition does not apply to Atlantic Spanish mackerel from the northern zone that were harvested, landed ashore, and sold prior to the closure and were held in cold storage by a dealer or processor (50 CFR 622.384(e)(2)).

NMFS issues this action pursuant to section 305(d) of the Magnuson-Stevens Act. This action is required by 50 CFR 622.388(d)(1)(i), which was issued pursuant to section 304(b) of the Magnuson-Stevens Act, and is exempt from review under Executive Order 12866.

Pursuant to 5 U.S.C. 553(b)(B), there is good cause to waive prior notice and an opportunity for public comment on this action, as notice and comment are unnecessary and contrary to the public interest. Such procedures are unnecessary because the rule implementing the commercial quota and the associated AM has already been subject to notice and public comment, and all that remains is to notify the public of the closure. Such procedures are also contrary to the public interest because of the need to immediately implement the closure to protect Atlantic Spanish mackerel, because the capacity of the fishing fleet allows for rapid harvest of the commercial quota. Prior notice and opportunity for public comment would require time and could result in additional harvest in exceedance of the established commercial quota.

For the same reasons, there is good cause to waive the 30-day delay in the effectiveness of this action under 5 U.S.C. 553(d)(3).

The snapper-grouper fishery in the South Atlantic EEZ includes hogfish and is managed under the Fishery Management Plan for the Snapper-Grouper Fishery of the South Atlantic Region (FMP). The South Atlantic Fishery Management Council and NMFS prepared the FMP, and NMFS implements the FMP under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) by regulations at 50 CFR part 622.

In the South Atlantic EEZ, hogfish are managed as two separate stocks: one stock that exists off Georgia, South Carolina, and North Carolina (Georgia-North Carolina), and another stock that exists off the Florida Keys and east Florida. This temporary rule applies only to the recreational harvest of hogfish in the EEZ off Georgia-North Carolina.

The recreational ACL for hogfish off Georgia-North Carolina is 988 fish (50 CFR 622.193(u)(1)(iii)(B)). The AMs for hogfish off Georgia-North Carolina require NMFS to close the recreational harvest for the remainder of the fishing year if landings reach or are projected to reach the recreational ACL (50 CFR 622.193(u)(1)(ii)(A)). The NMFS Southeast Fisheries Science Center estimates that recreational landings of hogfish harvested from the EEZ off Georgia-North Carolina have reached and likely exceeded the recreational ACL. Therefore, this temporary rule implements the AM to close the recreational harvest of hogfish in the EEZ off Georgia-North Carolina for the remainder of the fishing year, which continues through December 31, 2023. During this recreational closure, the recreational bag and possession limits for hogfish off Georgia-North Carolina in or from South Atlantic EEZ are zero fish.

The recreational harvest for hogfish off Georgia-North Carolina for the 2024 fishing year will open again on January 1.

NMFS issues this action pursuant to section 305(d) of the Magnuson-Stevens Act. This action is required by 50 CFR 622.193(u)(1)(ii)(A), which was issued pursuant to section 304(b) of the Magnuson-Stevens Act, and is exempt from review under Executive Order 12866.

Pursuant to 5 U.S.C. 553(b)(B), there is good cause to waive prior notice and an opportunity for public comment on this action, as notice and comment are unnecessary and contrary to the public interest. Such procedures are unnecessary because the rule that established the recreational ACL and AMs for hogfish was already subject to notice and comment, and all that remains is to notify the public of the closure. Such procedures are contrary to the public interest because of the need to immediately implement this action to protect hogfish off Georgia-North Carolina. The recreational ACL for hogfish off Georgia-North Carolina in the South Atlantic has been reached and likely exceeded, and prior notice and opportunity for public comment would require more time and result in further recreational harvest in excess of the established ACL.

For the reasons just stated, there is also good cause to waive the 30-day delay in the effectiveness of this action under 5 U.S.C. 553(d)(3).