Environmental Alert: Korean REACH-Like Proposal Released for Public Comment

Date: Feb 28, 2011

On February 25, 2011, the Korean Ministry of the Environment (MOE) released a draft of the "Act on the Registration and Evaluation of Chemicals", a Korean version of REACH, for a 60-day comment period. The Draft Act is substantially the same as the inter-ministerial review draft reported earlier at http://www.khlaw.com/showpublication.aspx?Show=4251

This new Korean proposal will have significant implication for companies that do business in Korea and may have spill over effects in other Asian trading partners as they organize/reorganize their chemical legislation.

The Draft Act would wholly amend the current Korean Toxic Chemicals Control Act (TCCA). Specifically, it would introduce many of the same legal concepts as REACH into Korean law, (i.e. pre-registration, registration, evaluation, authorization and restriction). However, in practice, these legal concepts will apply very differently under the Draft Act than as compared to REACH, in particular with respect to the registration of substances.

Most notably, registration will apply to new substances and to priority existing chemical substances selected on the basis of potential risk. The scope of the Draft Act excludes cosmetic ingredients that are approved for use and fertilizers as well as some of the other classes of substances exempted under REACH. There are additional exemptions from registration for which the potential registrant must seek confirmation of exempt status, risk assessment information is automatically required as part of the registration dossier at the 100 tonnes level as opposed to the 10 tonnes level under REACH. There is a maximum 8-year transitional period for pre-registered priority existing chemicals. The MOE will prepare a hazard assessment for all registered substances and will prepare risk assessments to identify chemicals for authorization, restriction, or prohibition as appropriate. There is an obligation to submit data jointly to avoid unnecessary animal testing and to provide proof of the right to use the data where appropriate, and there is a provision for a representative to be appointed by the foreign exporter.

There are many favorable aspects of the Draft Act, but many uncertainties, and potentially unfavorable aspects from the perspective of U.S. industry:

- Specifically, the criteria for deciding whether substances are of priority for registration are unclear.

- The exemptions are far fewer than they should be, given the substantial burdens.

-  MOE is given unbridled discretion to decide the scope of the exemptions.

- There are significant issues surrounding provisions for maintaining the confidentiality of data.

- There is no provision for utilizing the information already assembled under REACH in order to avoid duplication of effort.

- The standards by which MOE will decide whether a substance is of concern are not specified.

- There are many other uncertainties that should be addressed during the legislative process.

- The deadlines for Registration are too compressed.

- The minimum tonnage band that triggers the registration obligation is too low.

- No procedures are set out to challenge MOE's decisions.

Keller and Heckman LLP, working in collaboration with the Korean law firm Sojong Partners, is organizing a coalition of companies and associations interested in preparing comments on the Draft Act.  If you would like further information, contact Herb Estreicher (Tel: 01-202-434-4334; +32 (0)2 645 50 96; e-mail at estreicher@khlaw.com) or Marcus Navin-Jones (Tel: +32 (0)2 645 50 97); e-mail at navin-jones@khlaw.com).