CHIPS ACt

President Trump recently issued two separate Executive Orders (EOs) that will have implications for how federal agencies seek to promote the administration’s goal of attracting domestic and foreign investment to industrial projects in the United States, with particular implications for the semiconductor and critical minerals industries. 

  1. An EO on March 31st establishes an “Investment Accelerator” office within the Department of Commerce that will be responsible for overseeing the implementation of the CHIPS Program—including the negotiation of agreements under the CHIPS Act.  This office will also provide technical and regulatory support for investors, and seek to facilitate research collaborations between private industry and national labs. 
  2. An earlier EO issued on March 20th seeks to mobilize federal lending and leasing authorities at the Department of Defense (DoD), the U.S. International Development Finance Corporation (DFC), and other federal agencies to support the development of domestic critical mineral projects.  Per an accompanying fact sheet, the White House is taking a broad interpretation of covered minerals under this March 20th Order and will seek to include materials such as coal. 

Both EOs are notable efforts by the White House to align federal spending and financial assistance programs with the Trump Administration’s priorities, which have variously included calls to promote self-sufficiency in critical materials and promoting “energy independence” and “energy dominance.”  These efforts come against a backdrop under which the Administration is also pursuing the use of tariffs to promote U.S. manufacturing, and taking steps to review and in some cases modify or terminate infrastructure or energy-related grants from the Biden-era.  More details are provided below.  Continue Reading Trump Administration Issues Executive Orders that Seek to Shape CHIPS Program and Promote Domestic Mineral Production

The requirement to pay “prevailing wages” to covered workers is a perennial aspect of many types of government contracting, including construction contracts subject to the Davis-Bacon Act (“DBA”) and certain related laws (collectively referred to as the Davis-Bacon and Related Acts or “DBRA”).  In recent years, Congress has also expanded the reach of prevailing wage requirements to new industries: clean energy projects seeking to take advantage of federal tax credits under the Inflation Reduction Act are required to ensure that prevailing wages are paid or may be forced to forfeit valuable credits.  Semiconductor manufacturers — as well as manufacturers of materials and equipment used to make semiconductors — that seek to take advantage of the incentives established by the CHIPS Act are likewise required to follow the prevailing wage requirements of the DBA. 

It was in this context that the Department of Labor (“DOL”) introduced a 222-page final rule, “Updating the Davis-Bacon and Related Acts Regulations,” that substantially rewrote the implementing regulations under the DBRA.  Among other things, the final rule alters how DOL calculates the prevailing wage rates for each locality, and expands the definition of the “site of work” and categories of workers subject to the DBA.  Moreover, the final rule imposes the DBA by operation of law on federal construction contracts that would otherwise be covered, but that nevertheless do not include the requisite FAR clauses and wage determinations used to inform contractors of the DBA’s requirements.  The potential impact of these changes has not gone unnoticed:  last month, two trade associations — the Associated Builders and Contractors of Southeast Texas, Inc. (“ABCSETX”) and the Associated General Contractors of America (“AGC”) — filed separate suits challenging multiple aspects of the final rule, including the changes to prevailing wage calculation methodology and the revised definition of the site of work.  We expand on the final rule’s changes — and on the pending legal challenges — below. Continue Reading Whose Site Is It Anyway: Trade Groups Challenge DOL’s Prevailing Wage Calculation and Expanded Definition of the Site of Work Under the Davis-Bacon Act

Today the National Telecommunications and Information Administration (NTIA) released its first notice of funding opportunity for development of next-generation wireless infrastructure under the new Public Wireless Supply Chain Innovation Fund (“Innovation Fund”).  According to NTIA’s announcement, this first tranche of funding will include up to $140.5 million in grants, ranging from $250,000 to $50 million, specifically to support expanded testing and evaluation of the performance, security, or interoperability of open, interoperable (“open-RAN”) wireless networks.  Companies (both for- and nonprofit), higher education institutions, industry groups, and consortia of multiple organizations are eligible to apply.Continue Reading Commerce Department Issues First Funding Notice for Wireless Innovation Fund

On March 21, 2023, the Department of Commerce (“Commerce”) published a Notice of Proposed Rulemaking (the “Commerce Proposed Rule”) to implement certain provisions of the CHIPS and Science Act of 2022 (“CHIPS Act”) that place restrictions on certain activities of businesses receiving federal funding pursuant to the CHIPS Act (“Commerce Guardrails”).  On the same day, the Department of the Treasury (“Treasury”) also published a Notice of Proposed Rulemaking (together with the Commerce Proposed Rule, the “Proposed Rules”) to implement the Advanced Manufacturing Investment Credit (“ITC”), including its own restrictions on certain activities that, in broad strokes, parallel the Commerce Guardrails (together with Commerce Guardrails, “CHIPS Guardrails”) (Covington alert).  Continue Reading National Security Update – Departments of Commerce and Treasury Release Notice of Proposed Rulemaking Regarding CHIPS “Guardrails”

On August 25, 2022, President Biden announced a new Executive Order (“EO”) addressing the Implementation of the CHIPS Act of 2022 (“CHIPS Act”).  The CHIPS Act was signed by President Biden on August 9, 2022, and, among other things, authorizes $39 billion in funding for new projects to establish semiconductor production facilities within the United States.  The new EO identifies the Administration’s implementation priorities for this CHIPS Act funding and creates the CHIPS Implementation Steering Council to aid with the rollout of administrative guidance.  In connection with the EO, the Department of Commerce launched CHIPS.gov, which is intended to be a centralized resource for potential applicants of CHIPS funding.  The EO and new website reflect the Administration’s intent to swiftly implement the CHIPS Act and increase the domestic production of semiconductors. Continue Reading Biden Administration Announces Priorities for the Implementation of the CHIPS Act of 2022