The Role and Function of a National inspector in the National Authority under the CWC: Paper 5

RONALD SUTHERLAND, THOMAS KURZIDEM AND THOMAS STOCK

I. Introduction

Signature and ratification of the Chemical Weapons Convention (CWC) bringswith it a series of obligations which are designed to demonstrate that agiven State Party is in compliance with its obligations under the Convention.This paper is concerned primarily with demonstrating compliance with obligationsacquired under Article VI (Activities not prohibited under this Convention)and concentrating on the tasks that inspectors of a National Authority wouldhave to undertake under the relevant parts of the Verification Annex (i.e.,Part II, General rules of verification; Part VII, Regime for schedule 2chemicals and facilities related to such chemicals; and Part VIII, Regimefor schedule 3 chemicals and facilities related to such chemicals). Sinceno inspections under Part IX (Regime for other chemical production facilities)are anticipated until the beginning of year 4 after entry into force, thisPart IX is also not addressed in this report. Part VI is also not discussedsince schedule 1 chemicals are unlikely to be a concern of a civilian agencyin the first instance, (i.e., in that case inspectors (escorts) will likelybe provided by a military agency).

Some consideration is given to the obligations of a State Party regardingPart IV (B) of the Verification Annex (Old chemical weapons and abandonedchemical weapons). In Europe and throughout the world many states are concernedabout the issue of old and abandoned CW.

II. The Verification Annex

General issues

Article VII of the CWC is concerned with the national implementation measuresrequired of a State Party in order that it may fulfil its obligations underthe Convention. In particular it has to designate or establish a NationalAuthority for this purpose. If a state does not possess CW, the major tasksof a National Authority involve Article VI and its annexes. There are twoaspects to consider: the declarations made under Article VI (i.e., the monitoringthrough initial and annual data reporting of the production, processingand consumption of scheduled chemicals above prescribed thresholds), androutine, random inspections of declared sites. This paper is not concernedwith the personnel involved in providing declarations to the Organizationfor the Prohibition of Chemical Weapons (OPCW) but with the staff involvedin escorting the International Inspectors of the OPCW. This group (referredto as escorts in the CWC) in fact has a much broader role to play in demonstratingcompliance with the CWC and its annexes. Any information required by theInternational Inspectorate during an inspection could only be acquired byand through the representatives of the National Authority present, thatis, the national inspectors (escorts). It follows that these individualswill need to have an understanding of the CWC, the national obligationsand the specific industrial plant sites under inspection. This implies aknowledge of the industrial processes involved, the regulatory nature ofthe CWC and national implementation legislation, and an ability to conveyto the industrial operators both their rights and obligations during anindustrial inspection.

The competence of the national inspectors will need to be similar to thatof the OPCW inspectors. They will be required to have detailed knowledgeof all facilities that produce, process and consume schedule 2 and 3 chemicalsabove the specified threshold, since these plant sites will be liable toon-site inspections.

There are three parts of the Verification Annex of which the national inspectorswill be required to have detailed knowledge - Parts II, VII and VIII. Ingeneral, an inspection starts with notification of the intended arrivalof the OPCW team at a point of entry (POE) such that it can reach the inspectionsite within a further 12 hours. This is where the duties start of the nationalinspectors. The team will have brought with it 'such equipment which theTechnical Secretariat has determined to be necessary to fulfil the inspectionrequirements'. The national inspectors have the right to inspect this equipmentand ensure that it meets the description of the equipment approved for thatparticular type of inspection.

Upon arrival at the actual inspection site there is a requirement that theOPCW team be briefed by a 'facility representative', who would require priortraining by the National Authority.

The activities of the inspection team are governed by the inspection mandateprovided by their Director General, the Facility Agreement, where applicable,and the respective provisions of the Convention. The escorts must ensurethat the inspection is carried out with the least possible inconvenienceto the facility and that the facility operators are aware of their rightsunder the Convention. In particular, the OPCW team cannot operate any partof a facility but should request that certain operations be performed ifneeded to fulfil their mandate. The OPCW team must observe all safety regulationsestablished at the facility. All inspection activities will be carried outwith national inspectors present. Samples required by the OPCW team willnormally be collected by the staff of the facility operator under supervision,with the escort team retaining a portion for the State Party. Any extensionof the duration of an inspection will require the approval of the NationalAuthority. At the end of the inspection the OPCW team will present its preliminaryfindings to the national inspectors representing the State Party. The generalprovisions for inspections apply unless an alternative procedure is providedunder other parts of the Verification Annex. Parts VII and VIII providesuch procedures for schedule 2 and 3 chemicals.

Schedule 2 requirements

The initial declarations of a State Party will provide information on allschedule 2 chemicals produced above the threshold and data on the numberof plant sites and plants that should undergo an initial inspection withinthe first three years after entry into force. This information on plantsites can be distributed to all States Parties by the Technical Secretariaton request.

Verification for schedule 2 declarations will involve on-site inspectionof all plant sites and its plant(s) that have produced, processed or consumedany such chemicals during the three calendar years before entry into forceor which anticipate any of these activities in the following calendar year.The Technical Secretariat will give priority to schedule 2 facilities overthe first three years after entry into force of the Convention. The aimsof these on-site inspections are to verify that schedule 2 activities arein accordance with a States Party's obligations under the CWC which, interalia, include the absence of schedule 1 chemicals, consistency withdeclarations and non-diversion. Each plant site will receive an initialinspection at which time a Facility Agreement for the plant site will benegotiated by the OPCW and the National Authority. This should be agreedupon not later than 90 days after the inspection. Until the Facility Agreementis in force, rules of managed access (Part X, Section C) will be appliedto the inspection of that facility. The Facility Agreement will specifythe frequency and intensity of inspections as well as detailed inspectionprocedures. In general, access by the OPCW inspection team to other partsof the plant site will be granted in accordance with the negotiated FacilityAgreement. There will be not more than two inspections at a given plantsite in a given calendar year, but the actual inspection schedule will berandom. The National Authority will have a minimum of 48-hours notice ofany given inspections and the inspection cannot last more than 96 hours.

Schedule 3 requirements

Initial and annual declarations are required for all plant sites where morethan 30 tonnes of a schedule 3 chemical were produced in the past calendaryear or are anticipated to be produced in the following calendar year. Thisinformation will be made available to other States Parties on request. Verificationwill involve on-site inspection at plants where production is in excessof 200 tonnes aggregate above the declaration threshold. The inspectionaim is to verify that activities are consistent with the information providedand that no schedule 1 chemical is present. There will be no Facility Agreementunless requested by the State Party. The OPCW team will focus on the declaredschedule 3 plant(s) but may request access to other parts of the plant siteon the basis of negotiation with the national inspector present. Accessto records, sampling and on-site analysis will also be the subject of negotiation.The State Party will receive a minimum notice of five days before the inspectiontakes place and the inspection cannot last more than 24 hours without furtheragreement of the national inspector. Inspection of schedule 3 facilitieswill have a lower priority than inspection of schedule 2 facilities especiallyduring the first three years. The maximum number of inspections (includingother chemical production facilities) is 3 + 5/per cent of the total plantsites declared to an overall limit of 20 inspections. No individual plantwill receive more than two inspections per annum.

Old and abandoned Chemical Weapons

Within 30 days after entry into force of the CWC, every State Party withold or abandoned CW on its territory has to provide data on these weaponsto the Technical Secretariat. If a State Party has abandoned CW on the territoryof another party it also has to submit information. This information shallinclude to the extent possible information on the location, type, quantityand the current condition of the CW and will be verified by the TechnicalSecretariat through initial inspection later. The purpose of this inspectionis to: (a) verify the information submitted, (b) determinewhether the CW meet the definition of old CW, (c) verify the originof the abandoned CW, and (d) establish evidence concerning the abandonmentand identity of the abandoning state.

After the initial inspection the 'usability' of the old or abandoned CWhas to be determined in accordance with the definition of old CW under ArticleII, paragraph 5. If the CW meets the definition under Article II, paragraph5 (b), destruction is required in accordance with Article IV and Part IV(A) of the Verification Annex.

If abandoned CW are present, the territorial state has to consult with theabandoning state with the goal of establishing a mutually agreed plan fordestruction, which has to be approved by the Technical Secretariat. If theabandoning state cannot be identified or is not a party to the CWC, theterritorial state may request assistance from the OPCW or another StateParty in destruction.

In summing up, the National Authority of a State Party with old or abandonedCW will be involved in or responsible for:

(a) preparing the declarations;

(b) preparing the initial inspection and escorting the inspectors to the site where old or abandoned CW are located;

(c) destroying or disposing of the declared old CW, if they meet the definition of toxic wastes under Article II, paragraph 5 (a);

(d) destroying old CW, if they meet they definition under Article II, paragraph 5 (b), based upon an approved destruction plan which includes systematic verification by the OPCW inspectors (prior to Verification Annex, Part IV (A), paragraphs 41 to 43);

(e) negotiating the plan for destruction with the abandoning state in the event of abandoned CW; and


(f) requesting assistance from the OPCW or other States Parties, if the abandoning state cannot be identified.

III. The tasks of the National Authority

Introduction

Implementation of the CWC at the national level involves a number of quitedifferent tasks ranging from legislation required for ratification and implementationto the development of specific activities to demonstrate compliance withCWC obligations. Central to all of this is the designation or establishmentof a National Authority whose major activities include:

(a) serving as a national focal point for liaison with the OPCW and other States Parties via their National Authority;

(b) communication with the OPCW and the Provisional Technical Secretariat (PTS) on initial declarations and annual reporting;

(c) monitoring industrial and commercial activity in scheduled chemicals above threshold levels;

(d) co-ordination of arrangements for routine and challenge on-site inspections;

(e) escorting inspection teams from the OPCW and monitoring their activities at inspected facilities; and


(f) preparing and co-ordination of required activities if old and abandoned CW are present or the state has abandoned CW on the territory of another state.

Inspector (escort)

This paper is concerned with the role of National Authority personnel inthe escorting of inspection teams from the OPCW. It is initially limitedto schedule 2 and 3 inspections of a routine nature at declared facilitiesand an assessment of the tasks involved together with the skills required.The in-country escort of an OPCW team, the 'national inspector' will needto have detailed knowledge of all schedule 2 and 3 facilities that: (a)provide declarations to the National Authority, and (b) are liablefor on-site inspections because they produce chemicals above the specifiedthreshold levels.

Before any inspections take place the national inspectors will have to befamiliar with all of the State Party's declared plant sites and plants.They will have to be familiar with the OPCW's inspection processes, as wellas having the requisite technical competence (or access to it in other governmentdepartments). They will have to be able to carry out negotiations with boththe inspection teams and the facility operators. They will act as the StatesParty's interface with the OPCW inspection team and will also have a majorresponsibility to industry involved in the production, processing and consumptionof scheduled chemicals. Later their activities will extend to the producersof other 'discrete organic chemicals'.

During the first three years inspection assignments will involve the following:

Schedule 2

(i) Initial Inspections,

(ii) Facility Agreements, and


(iii) Annual Inspections,

Schedule 3

(i) First Inspections,

(ii) Facility Agreements (if requested), and


(iii) Annual Inspections.

The activities of the national inspectors during an inspection processcan best be seen by reviewing the activities of the OPCW inspection teamand noting that the inspected State Party has the right to observe all verificationactivities. The national inspectors will have 48-hours notice of a schedule2 inspection (this includes the 12 hours after arrival at the POE of theinspection team). In that period the National Authority will have to reviewall documentation provided to the OPCW on that facility to review the accuracyof the appropriate declarations and any other information on the facilityheld by the National Authority. The other pre-inspection activities willinvolve: (a) reviewing the notification sent by the Director Generalto the State Party concerning the nature of the inspection and the sizeof the inspection team, (b) notifying the facility that itwill be inspected in the next 48 hours, and (c) preparing the pre-inspectionbriefing with the facility personnel who will be responsible for deliveringit.

After the pre-inspection briefing, the OPCW team begins its inspection usingthe rules of inspection which form part of the Verification Annex to theCWC. These are based on delicate negotiations and must be adhered to; theTechnical Secretariat will actually work from an Inspection Manual thatis being developed by the PTS and will be approved by the Preparatory Commission(PrepCom). The role of the national inspector(s) in this process is to ensurethat: (a) the OPCW team limits its activities to these required toverify compliance, (b) the inspection team carries out the on-siteinspection in the declared location and only visits other locations at theplant site either after on-site negotiations or under managed access rulesunless a Facility Agreement already exists, (c) the industrial operatoris fully aware of its rights and obligations under both the CWC and nationalimplementing legislation, and (d) no confidential business information(CBI) leaves the site unnecessarily and that which does only leaves in asecure manner with an appropriate 'paper trail'.

It is assumed that the inspection process will eventually fit into the timeframes suggested by the CWC, but initial inspections and the negotiationof Facility Agreements will almost certainly require more time on the partof both the facility management and the national inspector(s). In fact,early National Trial Inspections have shown this to be the case. The nationalinspector(s) will have to negotiate extensions to on-site inspections asrequired if there are problems with verification of compliance by the OPCWteam in the time frames allocated. This extension is not a right and needsto be clearly demonstrated by the OPCW team. The management of an inspectedsite and the national inspector(s) must be prepared to spend a significantamount of time in preparation for negotiating the Facility Agreement, whichis a legal document/agreement between the OPCW and the State Party. However,the real understanding of the plant site will reside with the management.This is a legal as well as technical issue.

There are two final aspects of the inspection: the debriefing where theOPCW team supplies its preliminary report, and a listing of all samplesand written information that it wishes to take off-site. There may wellbe disagreement over the latter issue, but the debriefing meeting will haveto be completed within 24 hours of the termination of the inspection whenthe preliminary report of the OPCW team is initialed by the National Authority.

The final report of the OPCW team should be in the hands of the inspectorsof the National Authority within 10 days, and it has 30 days to add itsannexed comments to those sent to the Director General of the OPCW.

The above illustrates the general outline of an inspection process. Thedifference between schedule 2 and 3 does not relate to inspection methodology;the differences relate to inspection aims, possible lack of a Facility Agreement,the length of the inspection period and time of notification.

The inspection activities can be summarised as follows: (a) notification,(b) pre-inspection process, (c) meet OPCW team at the POE,(d) briefing of OPCW team, (e) overseeing all inspection activities,(f) transmitting requests from the OPCW team to facility representatives,(g) debriefing and discussion of preliminary findings with the OPCWteam, (h) escort OPCW to POE, (i) review and comments on thefinal report, and (j) annexed comments to the OPCW.

In the case of schedule 2 facilities and, by request of a State Party, forschedule 3 facilities a Facility Agreement will have to be negotiated foreach declared plant site. National Trial Inspections carried out duringthe CWC negotiations suggest that this will require both legally and technicallyqualified personnel and that a large team will be necessary in the caseof complex plant sites. It is likely that this will require three phasesto complete: (a) initial discussions between the management of theplant site (or their representatives) and the National Authority representedby national inspectors; (b) preliminary negotiations between theNational Authority and the OPCW team; and (c) final agreement onthe Facility Agreement between the National Authority and the OPCW afterfurther discussions between the national inspector(s) and the plant sitemanagement.

In the absence of a Facility Agreement, as under Schedule 3, such inspectionswill be carried out on a 'managed access' basis. This requires a step-by-stepnegotiation on the extent of access between the OPCW team and the nationalinspector(s) acting for the State Party as well as the facility operator.In the industrial context, this means ensuring the security of CBI as describedin the Confidentiality Annex.

Inspectors (skills)

It is necessary to determine the skills required in a team of national inspectorswhose tasks is to oversee the inspection of industrial chemical facility.There will be a need for: (a) technical skills, (b) understandingof regulatory processes in the chemical industry as well as the CWC, (c)the ability to explain rights and responsibilities to facility employeesrelative to the CWC and national legislation, and (d) the abilityto negotiate with the OPCW team, especially for initial inspections, managedaccess and Facility Agreements.

The following information is based in part on PrepCom report PC III/B/WP.3,May 1993, a report on 'Inspection team composition' as pertinent to therequirements of a national inspector with some additional specifications.

Inspection of schedule 2, 3 and other chemical production facilities: requiredskills

The required skills of a national inspector may be divided as follows:

A B C D

Leadership Engineering Interpretation and Law: regulationsand negotiationsPlanning Chemistry translation Administration Equipment Interviewingand operation Data recordingUnderstanding of statisticsHealth and safety(environment)ConfidentialityIndustrial auditingReport writing

It is assumed that training schemes will be developed for national inspectorsand other staff of a National Authority. It would seem clear that the trainingschemes would center on: (a) verification principles and the CWC,(b) technical skills required to oversee inspections, (c)administration, and (d) a knowledge of regulatory processes in thechemical industry.

The background training for a national inspector would be a degree in chemistry(usually industrial, analytical or organic), engineering (chemical, processor mechanical), industrial accountancy, law or business administration.The inspectors should have previous experience either in industry or ina regulatory environment.

Industry interface

In examining the skills and training that will be required to develop anational inspector it is easy to suggest that the only role of such an individualis to escort the OPCW inspection team while on the territory of the StateParty. However, the major task is to ensure that information (declarations,etc.) provided by the chemical industry does in fact demonstrate the StateParty's compliance with its obligations under Article VI of the CWC. Thecomplication is that this involves the chemical industry which, althoughit will have no interest in chemical weapons, could be misused since itsproducts could be diverted into the production of CW. It follows from thisthat the National Authority, in general, and its inspectors, in particular,must understand this industrial interface and the problems of an intenselycompetitive global chemical industry.

IV. Estimate of inspector (escort) requirements

It is unlikely that any National Authority would be able to ensure thatit could 'observe all verification activities carried out by the inspectionteam' with only one inspector present especially since the National Authorityis responsible for all administrative arrangements for the inspection teamat very short notice (e.g., communications, interpretation, transportationand the like). In addition to knowing that the mix of skills required toescort an OPCW inspection team is unlikely to be found in one individual,it is necessary to ascertain the minimum number of national inspectors requiredto 'escort' an inspection team. To answer this appropriately requires anindication of the size, composition and tasks of the OPCW team.

In the aforementioned PrepCom report, it was suggested that the initialinspection of an industrial facility could involve up to 12 members:

Category of personnel				Number of employeesTeam leader						1Deputy							1Interpreters						3Technical experts					5	Chemical engineer			(2)	Process engineer			(1)	Analytical chemist			(1)	Production logistics			(1)Technical support					2	Analytical equipment			(1)	Health (safety)				(1)Maximum total					12

In terms of an escort group which has to 'observe' all the verificationactivities described, the above OPCW team can be considered to fall intothree groups based on required skills:

Group A	    Team management	        2Group B	    Operational group 	        7Group C	    Support group	        3

The operational group activities can also be subdivided into engineering,chemistry and industrial accounting. This suggests a need for 3 to 5 nationalinspectors:

Group A	   1 inspector to carry out negotiations with the team leader and 	   make specific requests to the facility operator;Group B	   3 inspectors to cover engineering, chemistry and accounting 	   exercises; andGroup C	   1 inspector to cover the administrative requirements of the	   inspection including interviews, translation, and so on.

In principle, this number could be reduced by having one inspector covermore than one function, but no individual can be in more than one placeat a time. Unless the inspection is entirely sequential, there must be ateam to observe the ongoing inspection process and the needs of the OPCWteam and to make requests at the facility that are communicated by the in-countryescorts. For the purposes of this paper, it is assumed that there will bea need for a minimum of four national inspectors at an initial inspectionwhether of a schedule 2 or 3 facility. This is, of course, the minimum staffingrequired. Ideally there should be one national inspector for each OPCW inspector(i.e., 12 under the PTS scenario an additional officer with a legal backgroundfor an initial inspection). It should be emphasised that if considerationis given to the minimum size of the team that there would have to be oneor two additional back-up inspectors on-site to cover situations where aOPCW operational group breaks into smaller units to expedite the inspectionbecause of time constraints. A Facility Attachment would involve more staff,especially some with a legal background, because of the complexity of mostplant sites.

V. National case studies

Australia

Australia has long been active in preparing for domestic implementationof the CWC and also in making other countries in its region aware of thepossible implications for them of the CWC. In particular, the AustralianGovernment provided seminars and workshops under a Chemical Weapons RegionalInitiative (CWRI) and circulated illustrative model legislation (see PC-VI/A/WP10, September 1993 for details) both to countries in the South-East Asianand South Pacific region and to signatory states to the CWC.

Legislation

The Australian legislation, the Chemical Weapons (Prohibition) Act 1994,was enacted in February 1994, after passage through Parliament. The legislationhad the support of all parties, however, most of the provisions will notbe announced until the CWC enters into force. The ratification instrumentwas deposited with the Secretary-General of the United Nations on the 6March 1994.

The legislation makes the following provisions:

(a) gives effect to Australia's obligations including penal penalties for breaches thereof;

(b) provision of data to the CWC Office for transmission to the OPCW is based on a notification and permit system which puts the onus for reporting on the chemical industry;

(c) provides authority by which Australian national inspectors may inspect all facilities covered by the permit and notification system. The CWC Office will also have the power to inspect any other Australian facility on the basis of a warrant issued by a magistrate; and


(d) provides for routine inspection of declared facilities and challenge inspection of any facility by OPCW inspectors to verify compliance with the CWC. These inspectors will be accompanied by Australian escorts.

CWC obligations involving import and export controls on scheduled chemicalswill be dealt with under other legislation, such as Customs (ProhibitedExports) Regulations, and Customs (Prohibited Imports) Regulations.

National Authority

As allowed by Article VII of the CWC, Australia has developed its own approachto a National Authority - the Chemical Weapons Convention Office - whichhas been established as a unit within the Australian Safeguards Office.The Directorship of the CWC Office will be assumed by the Director of Safeguardsunder the Nuclear Non-Proliferation (Safeguards) Act of 1987, and the CWCnational inspectors will be appointed to this office. The office will beresponsible for national implementation and thereafter for administrationof the permit system. Permits are required of all facilities that produceor use scheduled chemicals above the thresholds described in the CWC; alower threshold has been applied nationally to schedule 1 chemicals in orderto monitor the one-tonne aggregate limit for these chemicals.

Permits will be approved by the minister concerned and this minister willalso have the power to renew, transfer or, if necessary, revoke a permit.The actual responsibility will lie with the Director of the CWC Office.

Currently, it is anticipated that two inspectors will be needed in thisoffice but there is an option to designate other government officials asinspectors if required.

In addition to their duties as inspectors, the officer of the CWC Officewill be expected to liase with industry to explain both national and internationalobligations under the CWC and national legislation.

Germany

Legislation

Germany signed the CWC during the Paris Conference on 13 January 1993 anddetermined to ratify the Convention at the earliest possible date. In Germanythe ratification of an intentional treaty requires the prior approval byParliament and the Federal Chamber, the representative organ of the states.Since most of the regulations of the CWC are not self executing, additionalimplementing legislation is required to implement the obligations of theConvention. Owing to the very short time lines (i.e., for submitting declarationsto the OPCW after entry into force of the Convention), the Federal Governmentdecided to submit both the Chemical Weapons Convention Act,[1]which empowers the Federal Government to ratify the CWC, as well as therespective Act for Implementing the CWC[2] to the legislativeorgans at the same time. The first Act passed both Parliament and the FederalChamber without any problems, whereas the Implementation Act was criticisedduring discussions in the Federal Chamber. Especially some of the East GermanLänder (states) raised the question of whether the CWC wouldhave financial implications at the state level. The respective formulationin the reasoning to the Draft Act was found to be inadequate, and the DraftAct was referred to the Mediation Committee. In the Committee, the FederalGovernment and the Länder agreed on a formulation that the FederalGovernment will be responsible for all costs following ratification andimplementation of the CWC. Following the agreement, the Act was approvedby the Federal Chamber in early July, and Germany ratified the CWC on 12August 1994.[3] Owing to the fact that the CWC has notyet entered into force, Germany has adopted a two step approach regardingentry into force of specific regulations contained in the Act. Whereas thebasic provisions related to prohibited activities, powers and functionsof the National Authority as well as those related to declarations and someof the penal sanctions will enter into force six months prior to the entryinto force of the CWC, all other provisions, especially those related toinspections, will enter into force on the date of entry into force of theCWC.[4]

The structure of the German National Authority

The National Authority in Germany will consist of three elements: (a)the Head of the National Authority, assigned to the Ministry of ForeignAffairs; (b) a 'military' component under the responsibility of theMinister of Defence; and (c) a 'civilian' component under the responsibilityof the Minister of Economics.

A special section within the Ministry of Foreign Affairs will be the supervisingauthority. It will serve as the national focal point for communication andco-operation between the National Authority and the OPCW and will representthe National Authority externally. Declarations will be submitted by theHead of the National Authority to the OPCW based on the information submittedby the competent national agency. The Ministry of Foreign Affairs will alsobe responsible for transfer of the information it receives from the OPCWto the subsidiary agencies (e.g., the request for an inspection).

The military component will be the responsibility of the Ministry of Defence.The tasks with regard to military installations will be assigned to theVerification Centre of the Bundeswehr in Geilenkirchen which hasalready acquired experience in the verification of other arms control treaties(e.g., the CFE Treaty). However, the activities of the Verification Centrewill be restricted to the escorting of international inspectors at militaryfacilities only if not provided otherwise by law.

The major responsibility for effectively implementing the CWC at the nationallevel is assigned to the Export Control Office (Bundesausfuhramt) atEschborn, a subsidiary agency of the Ministry of Economics within that agency.The National Authority will most likely be established as an individualsection. For the preparatory phase there is a Working Group that was establishedto identify the future tasks of the National Authority and to work on itsorganisational structure. Currently, the Export Control Office is only responsiblefor the control of prohibited exports of CW-related material.

The following is a brief description of the powers and functions assignedto the National Authority by the Implementation Act.

Powers and functions with regard to declarations

According to Article 5 (1) the Export Control Office will have the primaryresponsibility to collect, process and evaluate the data required by theConvention. The Export Control Office further has the right to request anyinformation from a facility if this is required by the Act or by additionallegislation to be enacted. In addition, national inspectors may requestaccess to business documentation or to a facility site during normal workinghours (Article 7). The Federal Government has the powers to enact detailedregulations by decree laws. Such legislation may regulate the frequency,periods to be reported upon, contents and form of data reporting as wellas the means and time limits for the submission of such information. Thenecessary regulations are currently in the drafting stage and are expectedto be completed soon.

Another important aspect with regard to the collection of data is, of course,the confidentiality of business information. Therefore the use or transferof such information (e.g., to other agencies) is restricted to such usesas provided for in Article 6 of the Act.

Facility Agreements

Article 13 of the Act empowers the Export Control Office to negotiate FacilityAgreements with the OPCW and to conclude, such arrangements with the OPCWin co-ordination with the ministries of Foreign Affairs and Economics.In cases where there is an obligation to conclude a Facility Arrangement,the National Authority is requested, at least, to consult with the managementof an affected facility. In all other cases (e.g., schedule 3 facilities)prior consent of the facility management is required. However, it has tobe pointed out that Article 13 is among those provisions that will enterinto force parallel with entry into force of the CWC.

Inspections

The regulations with regard to inspections mainly reflect the rights andpowers of the international inspectors as provided for in the CWC. In sofar, as the CWC mentions specific responsibilities for the leader of theescort team, they are also enumerated in Article 10 of the Act (i.e., thetaking of samples during an inspection or access to a facility outside ofregular working hours). Corresponding regulations with regard to the co-operationduties of an inspected facility with the international inspection team andthe escorting team are included in Article 11 of the Act. These regulations,too, have not yet entered into force and will require additional legislation.

Role and function of National Inspectors

Inspectors of the OPCW conducting an inspection in a private facility willas a rule be escorted by a team of national inspectors from the Export ControlOffice. The leader of the escort team is responsible for the conduct ofan inspection and will give instructions as necessary to ensure that theinspection is conducted properly. On the other hand the escort team hasa protective function vis-á-vis the inspected facility. Therefore,Article 9 (3) provides that the escort team has to make sure that CBI orconfidential installations in an inspected facility are protected in accordancewith the relevant provisions of the CWC.

Workload

The number of national inspectors required by any given State Party is afunction of the overall workload and the number of routine inspections generatedby: (a) schedule 2 facilities, (b) schedule 3 facilities and,later, (c) discrete organic chemical producers. It is important toestimate the number of days an inspector actually can spend in the fieldescorting OPCW inspection teams. Until there is a specific legal requirementfor producers, processors and consumers to declare their activities relatedto scheduled chemicals, the best estimates only include producers and consumersinvolved in national producer organisations.

A recent German estimate of the number of plants and plant sites to be inspectedis as follows, but it must be realised that this is based on incompletedata and may be in error by a factor of 2 or 3:

Schedule 2 and 3            9 plant sites        -                       production and                                                          consumption                                                             Schedule 3 production       11 plant sites       -                       Other chemical              78 plant sites      699 plants              production facilities                                                   PSF Production              7 plant sites       42 plants               facilities                                                             

Hence the number of plant sites subject to inspection, with priorityto be given to schedule 2 over the first three years would be:

Schedule 2                          9                                   Schedule 3                          11                                  Other DOC                           78                                  PSF                                 7                                   Total                               105 (9, 11)                        

If we assume that the OPCW will attempt to cover both the schedule 2and 3 plants in the first three years after entry into force then the numberof inspection days are:

Schedule 2 9 x 96 h = 864 h = 36 days

Schedule 3 11 x 24 h = 254 h = 11 days

(i.e., total of 47 inspection days, assuming that there are no requestsfor extension of time by the OPCW).

As far as schedule 2 is concerned there is a requirement for all sites toundergo initial inspection and to preparation of a Facility Agreement tobe signed by the OPCW and the State Party within the next 90 days, and todecide on the frequency and intensity of subsequent inspections. Additionally,the inspections must be unpredictable or random, and no individual plantcan be inspected more than twice per annum.

For schedule 3, the first inspection of any site will be the initial inspection,but the Technical Secretariat's selection procedure will be purely randomexcept as related to geographic distribution. A risk assessment will alsobe implied in the inspection schedule, and a Facility Agreement may be requestedby the State Party. Again, a plant site will not be inspected more thantwice a year.

The formula for inspection is 3 + 5/per cent of the plant sites declaredper calendar year to a maximum of 20 inspections. If Germany declares 11+ 78 + 7 = 96 plant sites then the annual inspection rate will be 3 + 5= 8 plant sites per annum. If this formulation is applied initially to onlyschedule 3 facilities then there will be 11 plant sites and 3 + 1 or 4 inspectionsof schedule 3 plant sites per annum initially.

A working assumption for the National Authority is that there will be threeschedule 2 inspections and four schedule 3 inspections in each of the firstthree years:

                              Schedule 2        Schedule 3              Year 1                            3             4                       Year 2                            3             4                       Year 3                            3             4                       Total                        9          12                      

The annual inspection (escort) work load is then;

3 x 96 = 288 h = 12 days

4 x 24 = 96 h = 4 days

and escorts would have to be available for 16 days of inspection and anyadditional time required to escort the OPCW team to the POE. Each inspectionwould have the following components:

                              Schedule 2        Schedule 3              Notification                      x             x                       Pre-inspection                    x             x                       Inspection                        x             x                       Report                            x             x                       Facility Agreement                x             ?                      

In addition to the inspection, there will be a requirement to developa minimum of three Facility Agreements to a maximum of seven if the StateParty indicates a requirement for them for schedule 3 plants. This wouldbe strongly recommended given the intensity of the '24 h inspection'. Inthis respect it is still not clear of what 24 h and 96 h inspections willbe comprised. If these are 8 hour working days, then there would be 3 dayinspections or 12 day inspections, respectively. If the time lines are continuousthan three escort teams would be required per inspection sequence. Alternativeformulations would be that in the case of schedule 2 that there would beonly 8-10 hours of inspection time. This would make the task of the OPCWteam much more difficult initially.

VI. Other inspection activities

The average industrial work load is approximately 220-240 days per annum,but there will be a requirement to have inspectors available for 365 daysper annum (i.e., there is a factor of ca. 1.6 to 1.8 to bring a nationalinspector complement up to the number required to cover all possible industrialinspections). There are also, in many countries, health and safety regulationswhich involve: (a) number of continuous working hours for an individual,and (b) work situations where no individual may work alone.

It is also necessary to assess how many days an inspector would actuallybe available for escort duties. Past international practice suggest thatan inspector would be 'on-site' for 40-50 days with a target of 100 daysin the field.

This leads to assessments of other tasks that would require inspector skills.Amongst these are: (a) analysis of other States Parties declarationson scheduled chemicals and plant sites, (b) challenge inspections,(c) industrial training and liaison, (d) assisting the State Party'sdelegation to the OPCW, (e) assisting other State Party's NationalAuthorities, and (f) liaison with military agencies re-inspections(single small-scale facilities).