US embassy cable - 04THEHAGUE348

UNCLAS SECTION 01 OF 04 THE HAGUE 000348 
 
SIPDIS 
 
STATE FOR AC/CB, NP/CBM, VC/CCB, L/ACV, IO/S 
SECDEF FOR OSD/ISP 
JOINT STAFF FOR DD, PMA-A FOR WTC 
COMMERCE FOR BIS (GOLDMAN) 
NSC FOR CHUPA 
WINPAC FOR LIEPMAN 
 
E.O. 12958: N/A 
TAGS: PARM, PREL, CWC 
SUBJECT: CHEMICAL WEAPONS CONVENTION (CWC): WRAP-UP OF 
FEBRUARY 3-6 INDUSTRY INTERSESSIONALS 
 
This is CWC-18-04 
 
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Captive Use 
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1.  (U)  The decision regarding Schedule 2/3 Captive Use 
remains on a political track, with the Indian delegation 
indicating they support the Schedule 2/3 Captive Use 
decision, as written, but noting their interagency review 
process has not yet completed.  Privately, the Indians 
informed Del that their consideration of the issue is moving 
in the "right direction," that the text of the decision 
document has received support by their technical experts, and 
lacks only acceptance by their legal authorities. 
 
2.  (U)  To avoid reopening the text of the Schedule 2/3 
Captive Use decision and allow the political process to 
continue, the facilitator (Rudduck, UK) focused discussion on 
the German paper regarding Schedule 1 Captive Use.  Canada 
was the only delegation to raise serious concerns with the 
German paper, citing that any decision clarifying the 
declarability of Schedule 1 Captive Use creates a requirement 
in absence of demonstrated activity.   The Canadians noted 
that all German examples are speculative and that, to their 
knowledge, no production of Schedule 1 chemicals is ongoing. 
Furthermore, the Canadians noted that Schedule 1 "unwanted 
byproducts or intermediates" produced during manufacture of 
Schedule 1 chemicals should not be declared, either on their 
own or as elements of facility aggregate production totals. 
The Russian Federation seconded the Canadian intervention. 
 
3.  (U)  Del and the United Kingdom noted the examples 
provided in German paper are derived from open literature and 
though no evidence exists suggesting undeclared Schedule 1 
Captive Use production is ongoing, use of the listed 
production pathways cannot be ruled out.  Del and the UK 
further stated that any production of Schedule 1 above 
relevant thresholds constitutes a declarable activity and the 
treaty, existing law and regulations already cover that 
production.  However, Del and UK asserted that clarifying 
Schedule 1 Captive Use is subject to declaration if 
applicable thresholds are exceeded, and this rationale is 
consistent with the rationale for clarification in regards to 
captive use for Schedule 2/3 chemicals. 
 
----------------------------- 
Clarification of Declarations 
----------------------------- 
 
4.  (U)  Discussion focused on the Technical Secretariat's 
(TS) approach towards clarification requests and TS 
clarification request status reports to the Executive Council 
(EC).  To facilitate understanding of the process, the 
facilitator (Williams, U.S.) arranged for the TS to brief 
participants on the current status of clarification requests 
and to detail conditions under which the TS might not 
consider a plant site inspectable based upon ambiguities or 
inconsistencies in data declarations.  The TS removes plant 
sites from the inspectable facilities if a clarification 
requests has been issued relative to: ambiguities in declared 
quantities, plant site address, declared activity years, 
production range codes, incorrect CAS numbers where no 
chemicals are specified, incorrect chemical names and 
mismatched CAS/chemical names.  States Parties (SP) expressed 
concern that this approach results in plant sites being 
insulated from verification activities simply by withholding 
responses. 
 
5.  (U)  States Parties also expressed concern that, given 
the compliance-related nature of such ambiguities, in 
particular in relation to plant site inspectability, TS 
reporting to the EC on clarification requests has not been 
consistent or meticulous.   States Parties called upon the TS 
to gather further data and report, during the next round of 
consultations, on how many plant sites have been removed from 
verification consideration in the past and the status of 
outstanding clarification requests related to the 
inspectability of plant sites. 
 
6.  (U)  Regarding the facilitator's proposal, some 
delegations (Canada, Italy) requested the timeframe for 
responses to clarification requests return to a 60-day 
window.  The TS presentation seemed to support a shorter 
window as well, as that would have less effect on planning 
inspections.  However, the majority of delegations appeared 
satisfied with the 90-day timeframe contained in the revised 
proposal.  The Indian delegation also requested that the use 
of the word "ambiguities" in the second operative paragraph 
be reconsidered, given its use in the treaty and relation to 
on-site verification activities and access.  No SP, however, 
raised serious objection to the text proposed and a decision 
appears ripe for adoption during EC-36 in the form circulated 
to SP prior to the March 3 consultations. 
 
------------------------------ 
Schedule 2 Facility Agreements 
------------------------------ 
 
7.  (U)  Pursuant to SP's request during the previous round 
of consultations, the facilitators (Heinzer, Switzerland and 
Abe, Japan) arranged for TS Inspection Team Leaders (ITLs) to 
present their views on the use of Schedule 2 facility 
agreements during subsequent inspections.  ITLs (Steyn and 
Mears) confirmed that inspection teams do not find facility 
agreements useful during subsequent inspection for inspection 
planning or conduct.  ITLs noted they use draft facility 
agreements, if available, for information purposes only. 
ITLs speculated that facility agreements may provide some 
utility for an inspected State Party (iSP) if health, safety, 
equipment, sampling or analysis procedures, or other specific 
administrative arrangements would impact the conduct of an 
inspection, but did not view these as critical to the TS 
conduct of inspections. 
 
8.  (U)  Discussions revealed a general consensus on a phased 
approach for improving the facility agreement process may be 
preferable.  In such an approach, the first step would be for 
the TS to demonstrate greater flexibility in the field to 
reach agreement with an iSP not to conclude a facility 
agreement.  To this end, SP requested the TS to draft and 
circulate, to inspection teams and States Party, guidelines 
or criteria to expand the ability of TS teams to determine 
that a facility agreement is unnecessary.  Such criteria may 
include facility type, complexity and estimated inspection 
frequency.  As a second step, SP noted that a streamlined 
format for facility agreements is desirable, but recognized 
that such a process runs the risk of opening up issues 
resolved by the model facility agreement and could be time 
consuming.  Therefore, streamlining of declarations could be 
a longer-term goal. 
 
9.  (U)  Though the TS was receptive to ideas on how to 
improve the process, the TS remains concerned that to draft 
guidelines that would result in a "significant" reduction of 
facility agreements proposed to the EC exceeds their 
authority.  Therefore, the TS indicated that some decision or 
report language to draft flexible guidelines may be necessary 
to provide the TS with top-cover.  (COMMENT:  Report language 
urging the TS to make greater use of the "opt-out" provision 
in the CWC should be developed as soon as possible.  This 
will provide both policy direction and political cover for a 
change in TS practice.  END COMMENT.) 
 
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Schedule 2A/2A* Low Concentrations 
---------------------------------- 
 
10.  (U)  UK experts delivered a detailed presentation based 
on their Perfluoroisobutylene (PFIB) paper ("Report on 
investigations into industrial production of PFIB at 
Tetrafluoroethylene (TFE) and Hexafluoropropylene (HFP) 
monomer production facilities" 26 Jan 04), which essentially 
says that because TFE and HFP manufacturers have the 
capability to produce the unwanted by-product, PFIB, in large 
quantities in high concentration, both via chemistry and 
engineering changes to the process, they pose a risk to the 
object and purpose of the Convention.  States Parties were 
set to "receive" mode, and offered little comment either in 
support or non-support of the UK proposal. 
 
11.  (U)  The facilitator (Wade, UK) also circulated a draft 
decision covering each of the three Schedule 2A/2A* chemicals 
(Amiton, PFIB and BZ).  States Parties indicated such a 
decision was not ripe for text agreement yet, given that 
technical discussions remain ongoing, but that such a 
decision is consistent with the SP desire to have one 
decision for all three chemicals.  However, since the 
decision document suggests .1% appropriate for Amiton and 
PFIB and no concentration for BZ (all should be declared), 
some SP, including the UK, Italy, India and France, expressed 
a desire to see the chemicals treated equally, with one set 
concentration limit.  No countervailing views were offered. 
 
12.  (U)  COMMENT:  One read of the UK paper suggests that a 
cumulative total for quantity is acceptable for declaration 
purposes and any spike above relevant concentration threshold 
would trigger a declaration requirement.  Del notes this 
appears inconsistent with the understanding reached on 
Boundaries of Production and Schedule 2/3 Captive Use that 
stipulates that a declaration requirement is triggered if 
both concentration and quantity are exceeded, simultaneously. 
 END COMMENT. 
 
13.  (U)  Italy suggested that 0.5% is more appropriate for 
BZ, in particular, and circulated a paper in support 
("Technical Document on Schedule 2A* (BZ) Chemicals 
Declarations for Low Concentrations" 4 February 04).  In this 
paper, the Italians argue that the U.S. paper on Clidinium 
Bromide, circulated during the last round of discussions, 
does not reflect the standard synthesis route for CB, and is 
incorrect on an important process point.  Specifically, the 
Italian paper notes that "the hypothesis formulated by the 
USA in which industrial producers (producers of Clidinium 
Bromide), could react the compounds simultaneously, is not 
feasible from a technical point of view".  If this statement 
is correct, there are potential implications for the minimum 
viable concentration of BZ in the process; as a result, this 
is the core of the Italian argument for a 0.5% threshold. 
Del, supported by Germany, requested the Italians provide 
back up data for their assertion.  No other SP offered 
alternative concentrations. 
 
------------------------------------------ 
Handbook on Chemicals/Declaration Handbook 
------------------------------------------ 
 
14.  (U)  States Parties appeared to reach consensus on EC 
report language to request the TS to place an asterisk (*) by 
Schedule 2/3 chemicals which have been declared since entry 
into force to the TS in the Handbook on Chemicals.  Such a 
marking could assist non-technical personnel in making 
declarations for scheduled chemical imports, exports, 
production, processing and consumption activities.  Schedule 
1 marking, however, remains undecided.  The facilitator 
(Ruck, Germany) circulated a paper containing proposals on 
setting a marking threshold for Schedule 1 chemicals that 
would differentiate between those listed due to small 
quantity research and analytical purposes and those normally 
commercially produced and/or traded. 
 
15.  (U)  The facilitator also reviewed his changes 
(correction and administrative) to the Handbook on Chemicals 
and requested interested SP to review.  The bulk of the 
changes eliminated duplicate entries and errors in chemical 
names/structural diagrams.  Based upon input, the facilitator 
anticipates presenting the comments to the TS for 
incorporation into a revised version of the Handbook.  Del 
requested to be involved in this project and awaits an 
electronic copy of proposed changes for transmittal. 
 
--------------------------------------------- -- 
Clarification Requests - Transfer Discrepancies 
--------------------------------------------- -- 
 
16.  (U)  Facilitator (Williams, U.S.) focused discussion on 
instructing the TS to apply logic and clear rationales for 
pursuing clarification requests and reporting such requests 
to the EC, in relation to transfer discrepancies.  Rather 
than setting standards and guidelines at present, SP called 
upon the TS to revise their methodology and report on 
progress achieved by June 2004, which will allow the TS to 
accommodate the first submissions of C-7/Dec.14 streamlined 
data.  Should SP continue to have concerns regarding TS 
clarification requests, SP expressed their intent to provide 
specific recommendations and/or standards for transfer 
discrepancy resolution.  Germany, Italy and the U.S. were 
most insistent regarding the need for the TS to revise their 
process. 
 
17.  (U)  The majority of SP were clear that the TS role is 
not to pursue a "material balance" for transfer 
reconciliation and only to pursue clarifications of transfers 
which appear substantively inconsistent and of compliance 
concern, deemed reportable under Article VIII, paragraph 40 
to the EC.  (COMMENT:  As in the case of facility agreement 
discussions, EC report language could be useful both to give 
general policy direction on this matter to the TS and to 
provide political "top cover" for changes from current 
practice.  Given the substantial agreement among delegations 
on key points, such language could probably be agreed in time 
for the 36th EC session.  END COMMENT.) 
 
18.  (U)  Javits sends. 
SOBEL