CWC: GUIDANCE FOR APRIL 1-2, 2009 CHEMICAL

UNCLAS STATE 030848

SENSITIVE
SIPDIS
THE HAGUE FOR CWC DEL

E.O. 12958: N/A
TAGS: PARM PREL CWC OPCW CBW
SUBJECT: CWC: GUIDANCE FOR APRIL 1-2, 2009 CHEMICAL
INDUSTRY ISSUES CONSULTATIONS

REF: A. S/641/2007 (MAY 25 2007 DG NOTE ON INITIATIVE BY
THE DG ON OCPF SELECTION METHODOLOGY)

B. EC-55/DG.8 (FEBRUARY 2 2009 DG NOTE ON OCPF
SELECTION METHODOLOGY PERFORMANCE)

C. 2008 STATE 101009 (SEPTEMBER 22 2008) GUIDANCE
FOR SEPTEMBER 25-26 2008 WORKSHOP)

D. 2009 THE HAGUE 000099 (FEBRUARY 16 REPORT FOR
THE FEBRUARY 10 2009 INDUSTRY CLUSTER
MEETINGS)

E. FACILITATORS NOTE (MARCH 24 DRAFT DECISION ON
2A/2A* LOW CONCENTRATIONS)

F. 15 CFR VOLUME 2 PART 713 (ACTIVITIES INVOLVING
SCHEDULE 2 CHEMICALS)

G. 22 USC SECTION 006742 (PROHIBITION RELATING TO
LOW CONCENTRATIONS OF SCHEDULE 2 AND 3
CHEMICALS)

H. EC-53/S/5 (JUNE 17 TS NOTE ON ENHANCED
INFORMATION IN OCPF DECLARATIONS)

I. EC-53/DG.11 (JUNE 17 DG NOTE ON OCPF FACILITY
DECLARATION INFORMATION)

J. 2008 STATE 072706 (JULY 7 GUIDANCE FOR JULY 8
2008 CHEMICAL INDUSTRY CONSULTATIONS)


1. (U) This document provides guidance for the CWC Delegation
in The Hague for three consultation sessions on chemical
industry issues being held by the Organization for the
Prohibition of Chemical Weapons (OPCW) on April 1-2, 2009.
The April 1, 2009 session will address inspection results for
other chemical production facilities (OCPFs) for 2008. Two
sessions on April 2, 2009 will address low concentration
limits for Schedule 2A and 2A* chemicals and the enhancement
of OCPF declarations.


2. (U) The first consultation session is expected to provide
a forum for States Parties to share their views for the first
time on a report from the Director General (DG) on 2008 OCPF
inspection results that was released prior to the February
17-20, 2009 Executive Council Session. The next two sessions
are continuations of ongoing consultations, and will provide
opportunities to make substantive progress on Schedule 2A and
2A* low concentration limits and the enhancement of OCPF
declarations.

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2008 Results of the OCPF Site Selection
--------------


3. (U) In response to States Parties, concerns with the
effectiveness of the methodology used to select OCPF sites
for inspection, the Technical Secretariat (T.S.) developed a
modified selection methodology in 2007, based on proposals
from the industry cluster consultations (Ref. A). The
modified methodology was used for OCPF selection beginning in
January 2008. The February 2, 2009 DG Note (Ref. B) provides
an analysis of the results after one year (for the 118 OCPF
inspections in 2008).


4. (U) Del should allow other States Parties to initiate
discussion, with particular attention to States Parties
critical of the modified methodology and the issues raised,
the results of its application, and any alternatives
suggested.


5. (U) Del should acknowledge that the results for 2008, as
compared to 2007 OCPF inspections, show:

- a demonstrable change in the distribution of numbers of
inspections toward States Parties with larger numbers of
declared sites;

- an increase in the overall percentage of inspections at
high or medium relevance facilities, based on the A14
methodology (See Ref. C for methodology background); and

- a greater percentage of inspections in the developed
regions - Asia and Western Europe and Others groups (for 2008
inspections compared to all OCPF inspection through 2007).


6. (U) Del should support continued implementation of the
modified methodology through 2009 with reassessment based on
2009 results and its interaction with any additional changes
in selection methodology.

-------------- --------------
Applicable Concentrations Limits for Mixtures of Schedule 2A
and 2A* Chemicals
-------------- --------------


7. (U) The most recent consultation on Schedule 2A and 2A*
low concentration limits ) February 10, 2009 ) produced
little change in the two groupings of States Parties, those
supporting a limit of 1 % or less, or those supporting a
higher (e.g., 30%) limit (Ref. D). In an effort to move to a
resolution, the facilitator has distributed a draft decision
with 1% or less, 5% or less, or 10% or less as the proposed
limit, to be implemented by January 1, 2011 with review one
year after implementation (Ref. E).


8. (SBU) The continued split into two entrenched &high8 and
&low8 positions has led to the facilitator's effort to
focus on finding a compromise level that can gain consensus
approval. There is long-standing concern with the inability
of impacted States Parties to reach agreement on a compromise
(e.g., from RevCon 2),and a recent indication that the
Non-Aligned Movement might use the inability of Western
States Parties to come to agreement to hold hostage expanded
OCPF verification efforts (Ref. D).


9. (U) The U.S. position to date had been shaped by the
limitation imposed by current U.S. regulations set at 30% and
the lower limit for U.S. regulations set in U.S. implementing
legislation at 10% (Refs. F and G, respectively.),i.e., that
the United States will continue to regulate at the 30% level
until there is an acceptable compromise solution, but would
tentatively support a limit of &10% or less8 if a consensus
had developed. The U.S. position has now been modified. We
could accept the &10% or less8 limit if others also accept
it. Del should urge delegations from both the &high8 and
&low8 groups to endorse &10% or less8 as the acceptable
compromise solution.


10. (U) Del should make the following points during the
discussion:

- The United States believes that further technical
discussion will not lead to a generally accepted approach and
that political flexibility to move off entrenched positions
is needed.
- The United States supports the facilitator's effort to
focus on a specific text on this issue and to encourage
delegations to work toward a political compromise.

- The draft decision (with a compromise lower limit, 2011
implementation, and assessment of the consequences of its
implementation after one year) is a potentially viable
solution.

- In addition to the three alternative levels currently being
considered in the draft decision ((1%),(5%),and (10%) or
less),a &30% or less8 limit should also be included in the
draft decision to include the full range of States Parties,
positions.

) The United States could support, as a compromise solution,
the limit of &10% or less8 on the condition that others do
so, as well.

Del should note any alternatives to the facilitator,s draft
decision suggested by other delegations and any specific
information presented, and report back to Washington. If
appropriate, Del should seek out the suggesting delegation
for bilateral discussion of the details of their proposal.

--------------
Enhancement of OCPF declarations
--------------


11. (U) This session is expected to continue the February 10,
2009 discussion of the Note from the T.S. (Ref. H) and its
proposed changes to OCPF declaration form, which would
require submission of additional information on the types of
processes used and plant configuration ) batch or continuous
processes and dedicated or multipurpose chemical production.
During the February 2009 consultation, States Parties focused
on the impact of the proposal on National Authorities and
industry, and the need for clarification of the definitions
for the added information required. The United States
reported that it was still considering the proposal and did
not offer specific comment.


12. (U) Del should state that the United States has carefully
reviewed the Note from the T.S. and consulted with the U.S.
chemical industry on inclusion of the new declaration data,
and offer the following points, based on these actions, in
discussion of the T.S. Note:

- The United States supports the T.S. in its continuing
efforts to focus OCPF inspection efforts on sites of most
relevance to the Convention.

- The United States is concerned with instituting permanent
changes to the declaration regime when the added value is
unclear and believes that this consultation should closely
examine the estimated effect of the T.S. proposal to
determine if the declaration changes would yield positive and
quantifiable results.

- The United States believes that discussions of expanding
declaration data should also include an assessment of the
impact on inspection activities.

- The United States believes that with any refinement of the
selection methodology a mix of inspections at the three types
of OCPF plants sites (i.e., high, medium, and low relevance,
as designated by the T.S.) should be maintained.

- Our analysis of the seven U.S. OCPF sites inspected in 2008
suggested that the proposed declaration change would not have
resulted in more relevant sites (i.e., batch / multipurpose)
being inspected. Thus, The United States believes it would be
beneficial for the T.S. to prepare an unclassified study of
all 2008 OCPF inspections (118 sites) to determine if the
proposed change would have resulted in the inspection of more
relevant sites. This analysis would be most useful if it
included a determination of: 1) the breakdown of inspections
between high, medium and low relevance sites; and 2) the
equipment characteristics and process type of each category
of inspection. This information would enable the
consultation to assess how well these types of facilities are
currently being captured and inspected under the current
methodology.


13. (U) The Note from the DG on additional, voluntary actions
by the T.S. and States Parties to enhance OCPF declarations
(Ref. I) may also be discussed. This consultation has not
addressed this Note since its initial session in November

2008. We expect the focus to be on continued discussion of
its implementation. Del guidance remains consistent with the
earlier consultations (Refs. C and J),e.g.:

- We recognize that the T.S. and voluntary States
Parties, actions in the DG,s Note will yield
incremental improvements, but the magnitude is not known. We
encourage the TS to provide an assessment of the potential
effect of these voluntary changes.

- The T.S. must ensure that Inspection Teams understand that
the proposed use of amended group codes is voluntary and
document future inspections accordingly, e.g., that not using
the amended group codes should not be recorded in inspection
reports as an issue requiring further action on the part of
the plant site or State Party.

Del should query other delegations on their experience to
date in implementing any of the voluntary measures and their
assessment of the potential value of their actions.


14. (U) During the last consultation, the facilitator
indicated that this session could also include T.S.
discussions of the A14 algorithm used in the site selection
methodology and an overview of the new &R8 value defined in
the DG Note (Ref. B). Del should take careful note of any
information presented and report back to Washington.
CLINTON