Handling of Confidential Information

The CHIPS Program Office (CPO) recognizes the importance of protecting confidential business information and implementing robust protections to safeguard confidential information provided by applicants. The Department of Commerce has a long and successful track record of protecting confidential information. Additionally, the National Institute of Standards and Technology (NIST), which houses CPO, sets national standards on information management and security. CPO maintains data in a secure environment, upholding NIST’s Federal Information Processing Standards - 199 requirements for cybersecurity and data protection. Confidential information submitted to the CPO is also protected by multiple federal laws, described below.

Trade Secrets Act

As CPO reviews applications, federal employees are subject to strict rules that govern how they handle confidential business information. For example, the Trade Secrets Act (18 U.S.C. § 1905), makes federal employees criminally liable for the unauthorized disclosure of “information [that] concerns or relates to the trade secrets, processes, operations, style of work, or apparatus, or to the identity, confidential statistical data, amount or source of any income, profits, losses, or expenditures of any person, firm, partnership, corporation, or association.” Violations of the Trade Secrets Act may result in the loss of employment, fines, or imprisonment.

Freedom of Information Act

Under the Freedom of Information Act (FOIA), federal agencies are required to disclose agency records requested by a member of the public, including information received from outside parties, unless FOIA  exempts the information from disclosure. FOIA Exemption 4 (5 U.S.C § 552(b)(4)) exempts trade secrets and privileged or confidential commercial and financial information from disclosure. Furthermore, FOIA Exemption 3 (5 U.S.C § 552(b)(3)) protects information exempted from release by statute, such as the exemption described in the next section.

CHIPS Act

The Creating Helpful Incentives to Produce Semiconductors for America of the William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021 (Pub. L. 116-283, referred to as the CHIPS Act or Act), as amended by the CHIPS Act of 2022 (Division A of Pub. L. 117-167) “CHIPS Act,” includes provisions designed to protect from disclosure the confidential information covered entities submit to the Department of Commerce. At the same time, it requires collaboration across the federal government to ensure the program objectives are met, including safeguarding U.S. national security.

The CHIPS Act provides that “any information derived from records or necessary information disclosed by a covered entity to the Secretary under this section” is exempt from disclosure under FOIA and “shall not be made public,” subject to certain exceptions.* The Department understands “information disclosed by a covered entity to the Secretary under this section” to include information disclosed by a covered entity as part of the application process under a notice of funding opportunity issued under the CHIPS Incentives Program (15 U.S.C. § 4652). This includes information submitted by a covered entity, under the CHIPS Incentives Program – Commercial Fabrication Facilities Notice of Funding Opportunity, beginning with a covered entity’s statement of interest and includes the pre-application, application, due diligence, and other reporting requirements.

In addition, as noted above, FOIA already exempts from disclosure information that constitutes trade secrets or is privileged or confidential commercial or financial information. When responding to FOIA requests, the Department will apply these exemptions in accordance with the law and the Department’s FOIA regulations located in 15 CFR Part 4, Subpart A.

The CHIPS Act also requires that the Secretary of Commerce coordinate with the Secretary of State, the Secretary of Defense, the Secretary of Homeland Security, the Secretary of Energy, and the Director of National Intelligence to carry out the CHIPS Incentives Program. Throughout the application process, CPO may provide applicant data and information to these and other federal interagency partners to leverage their expertise and ensure that program priorities are met, including protecting U.S. national security. All such data sharing will be tailored to the specific information needed by the interagency partner to effectively carry out its responsibilities in connection with the CHIPS Incentives Program. Any federal employee with whom we share information will be bound by the same laws as the CPO employees, including the Trade Secrets Act.

Use of Confidential Information

In carrying out its responsibilities, CPO will work diligently to safeguard information and data contained in or submitted in connection with statements of interest, pre-applications, full applications, or due diligence under the CHIPS Incentives Program – Commercial Fabrication Facilities Notice of Funding Opportunity (NOFO) (together, “applicant information and data”). In addition to the protections afforded under existing law, CPO enforces its own access policy to limit the distribution of applicant information and data. Application materials are accessible only to authorized employees, contractors, and consultants with a need-to-know, and contractors and consultants supporting this work are subject to nondisclosure agreements.

The NOFO provides that applicant information and data may be accessed and used by federal employees, consultants, and contractors for the purposes of the NOFO and carrying out the government’s responsibilities in connection with the CHIPS Incentives Program, or as otherwise required by law. By submitting applicant information and data, the applicant, potential applicant, or an entity submitting a statement of interest, consents to the disclosure of such applicant information and data to other federal employees, consultants, and contractors for these purposes, consistent with federal law, and the publication of such data as described in the NOFO.