Executive Summary
Companies must act promptly to reassert or extend their Toxic Substances Control Act (TSCA) confidential business information (CBI) claims or risk public disclosure. Our Environment, Land Use & Natural Resources Group examines the Environmental Protection Agency (EPA) process for protecting proprietary information.
- Most TSCA CBI claims expire 10 years after the original assertion unless an extension is requested and approved
- The EPA will notify companies of expiring CBI claims at least 60 days before expiration
- Failure to request an extension may result in public release of previously protected business information
Companies that submitted claims for protection of their confidential business information (CBI) after the Toxic Substances Control Act (TSCA) was amended in 2016 risk having their information released publicly beginning this summer unless they take action to reassert their CBI claims. On January 5, 2026, the Environmental Protection Agency (EPA) announced its process for notifying companies of expiring CBI claims and outlined the procedures for requesting extensions.
What Is CBI Under TSCA?
TSCA CBI generally includes trade secrets and commercial or financial information that is privileged and confidential such as a chemical’s name, structure, and use. When a CBI claim is asserted and substantiated, the underlying information is protected from public disclosure for a defined period, with certain limited exceptions.
When Do TSCA CBI Claims Expire?
Unless an extension is requested and approved by the EPA, most CBI claims under TSCA expire 10 years after the claim was asserted, typically the date of the TSCA filing. For claims involving the specific chemical identity of a substance, the expiration is 10 years after the first submitted CBI claim for the identity of that substance that was made by any submitter after June 22, 2016. This means that subsequent submitters for the same substance may have claims that expire less than 10 years from their own submission date.
Certain categories of information are exempt from expiration and substantiation requirements, including specific process information, marketing and sales data, supplier or customer identities, full mixture compositions, specific use or function information, and production or import volumes. Claims for CBI protection for the specific chemical identity of a chemical substance are exempt from expiration and substantiation requirements if the claim is made as part of a company’s premanufacture notice, but the expiration and substantiation requirements apply once a chemical substance is distributed in commerce.
Notification of Expiring Claims
The EPA is required by TSCA to notify submitters of expiring CBI claims at least 60 days before expiration. The EPA states that it will satisfy this requirement by publishing lists of TSCA submissions with expiring CBI claims on its website and sending direct notices to submitters via the Central Data Exchange (CDX), the EPA’s electronic reporting system. The expiration date for chemical claims can be tracked using the TSCA inventory. To ensure timely receipt of notifications from the EPA, companies are advised to confirm the expiration date for their CBI claims now, keep their CDX contact information current, and regularly check their CDX accounts well ahead of their expiration dates.
Requesting an Extension and Its Due Date
To extend a CBI claim for up to 10 additional years, companies must submit a substantiated request for extension electronically via the CDX. The request must be submitted at least 30 days before the claim’s expiration date. If the EPA provides notice to companies 60 days before CBI claims are set to expire, companies will have just 30 days to complete and submit their requests for extension. The substantiation must include a supporting statement and certification that the submitter has taken reasonable measures to protect the CBI, that disclosure is not required by law, that disclosure would cause substantial competitive harm, and that the information is not readily discoverable by reverse engineering.
If the EPA does not receive a timely request for extension, the information may be made public without further notice to the submitter.
The EPA’s Review Process
The EPA has stated it will review and either grant or deny each extension request by the expiration date of the CBI claim. If an extension is granted, the information will, per the EPA, remain protected for up to 10 additional years. If denied, the EPA must notify the submitter in writing of the reasons for denial at least 30 days before the intended disclosure. If the EPA’s review is not complete by the expiration date, the information will continue to be protected until the review and any applicable appeal period are complete.
Conclusion and Implications for Businesses
Businesses that have submitted CBI claims to the EPA since June 2016 should review their records and the TSCA inventory to identify claims that may be expiring in 2026 and beyond. It is critical to assess whether continued confidentiality is necessary and, if so, to prepare and submit timely, substantiated extension requests via the CDX. Failure to act may result in the public disclosure of previously protected information, potentially impacting competitive positions and intellectual property. We encourage companies to ensure that their CDX accounts and contact information are up to date to avoid missing important notifications from the EPA.
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