U.S. Department of Homeland Security National Protection and Programs Directorate Office of Infrastructure Protection Infrastructure Security Compliance Division 245 Murray Lane, Mail Stop 0610 Arlington, VA 20528-0610

November 28t11, 20 15

Rc: Comments on the Notice of public meeting regarding to "Chemical Facility Anti­Terrorism Standards (CFATS) Appendix A", docket N° DHS-2014-0016

To whom it may concern:

PNA (Potassium Nitrate Association), on behalf of its member companies, is submitting comments in response to the U.S. Department of Homeland Security (Dl-lS) notice of public meeting and invitation to public comments on the Appendix A Chemical of Interest (COl) of the "Chemical Facility Anti-Terrorism Standards (CFATS)", published in the P'ederal Register on October 16t11

, 201 5.1

1. Interest of PNA

PNA is a non-profit association of potassium nitrate producers. One of the missions of PNA is to support and represent potassium nitrate producers in relevant industry bodies, and in relevant offi cial government bodies around the world with respect to regulations on potassium nitrate, related to safety (transport, storage), security (misuse, terrorism) and human health.

Potassium nitrate (PN) is produced from potassium chloride as the potassium source and a nitrate-nitrogen source. Sodium nitrate (SN), a couple of forms of calcium nitrate (CN), nitric acid or ammonium nitrate can be also used as nitrate-nitrogen sources. PN is widely distributed throughout the world for fertilizer use and a wide range of industl'ial applications, like solar energy storage.

Total PN market in the US, both for industrial and agricultural use was I 07,813 metric tons in 2014?

1 79 Fed. Reg. 80,200 (DHS Oct. 16, 20 15) 2 Sources: Data from tariff and trade data from the U.S. Department of Commerce and the U.S. International Trade Commission.

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N PN as a ferti lizer is particularly effective because all of the nitrogen (N) present in each substance is read ily available for crop uptake as nitrate (N03'), requiring no additional microbial action and transformation in the soil. PN represents great advantages as nitrogen source (n itrate) over urea or ammonium-containing fertili zers: unlike ammonium, nitrate is non-volatile, it does not release ammonia to the atmosphere; unlike urea, nitrate does not emit carbon dioxide into the atmosphere as a greenhouse gas; nitrate is al so mobile in the soil, it is directly uptake by the plant and it has a neutralizing effect on soil and subsoil acidity, it does not interfere with absorption of potassium, magnesium and calcium by plants; and finally it acts more quickly than the nitrogen in synthetic nitrogen fertilizers.3.4 Scientific evidence comparing the chemical effect of different nitrogen sources in the soil had shown that PN and SN improve the long term soil sustainability, especially in acid soils, due to the neutralizing effect of alkal i nitrates which reduces aluminum availabi lity (detrimental for productivity) and improves the cation (Ca, Mg, K, Na) bio­availability.

PN and SN are also safer and more secure than ammonium nitrate (AN) for handling, storing and transporting. Furthermore they present lower risk of accidents or misuse in homemade explosive devices than AN.

PNA is concerned on the current overregulation CFA TS imposes to PN and SN, treating these chemicals as having a high risk for use as explosive precursors or in Improvised Explosive Devices (JED), comparable to AN. On the other hand, PNA identified that CFATS does not regulate other chemicals such as calcium nitrate fertilizer grade (CN)5 and calcium ammonium nitrate (CAN),6 which compete in the same fertilizer market with PN and represent similar or even worse risk for use as explosive precursors or JED than PN and SN. Unequal treatment for ri sk-similar products by CFATS generates a non-justified barrier to the marketing of PN and SN in the United States.

2. Chemicals of Interest list should be revised

CFA TS are "Risk-based" performance standards which app ly to chemical facilities that possesses Chemicals of Interest (COl) li sted on Appendix A, in quantity above designated Screening Threshold Quantities (STQs) and Minimum Concentrations.7 Appendix A lists PN and SN as Theft/ Diversion-Explosives (EXP) I Improvised Explosive Device Precursors (IEDP), defined as chemicals that could be stolen or diverted and used in explosives.

3 PNA. Nitrate (N03') versus ammonium (NH4 }. http://www.kno3.org/en/product-features-a-benefits/nitrate-no3-

versus-ammonium-nh4. Last accessed Nov. 25, 2015. ~ Cornell University. N it rogen: All Porms Are Not Equal. 2009. hllp://www.grecnhousc.cornell.edu/crops/f.'lclshcets/nitrogen form.pdf. Last accessed Nov. 25, 2015. 5 The fetii li zer grade is a double salt of AN and calcium nitrate, Ca(N03) 2, with CAS No 15245-12-2. 6 CAN is a physical mixture of variable amounts of AN with dolomite or limestone, different forms of calcium carbonate. Typica lly, CAN 27 contains 27%N, i.e., 77% AN. 7 72 Fed. Reg. 65,396, 65,4 18 (DHS Nov. 20, 2007)

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It is known explosives are categorized as low and high explosives according to the rate of decomposition. Low explosives are characterized by a decomposition reaction that propagates at a velocity less than the speed of sound (deflagration) while in high explosives the reaction wave propagates at a velocity faster than the speed of sound creating a high-pressure shock wave that causes damage at considerable distances (detonation). The deflagration capability of alkali nitrates (PN, SN and CN) has been studied and mixtures of these salts were prepared with charcoal and sulfur to compare with the classic black powder. The three alkali -nitrate salts assayed exhibited equivalent potential for the preparation of black powder-like mixtures.8 These results imply that CN has the same potential for use in deflagrating articles as compared to PN and SN.

On the other hand, CN is easier to react with ammonium sulfate than PN to make the highly dangerous AN because, unlike a reaction involving PN, the calcium sulfate byproduct precipitates while the ammonium nitrate remains in solution. This is particularly worri some considering that both CN and ammonium sui fate are unregulated by CFA TS. For similar reasons (e.g. , the separation of the calcium sui fate byproduct as a precipitate), it is easier to use CN than PN to obtain nitric acid, a simple operation that can be performed in a kitchen; in this simple operation, sui furic acid, the only strong acid of the three not regulated by CFA TS, is used. The nitric acid can then be used as a reagent in a wide variety of military and improvised explosives, such as the urea nitrate used in the 1993 World Trade Center truck bombing. The result is a dangerous explosive - urea nitrate- can be created by terrorists using chemicals (urea, sulfuric acid, and CN) that are not covered by Appendix A.

Moreover, after identification of the potential of CN for being used to create lEOs, the European parliament has included CN in the Regulation (EU) No 98/2013 on the marketing and use of explosives precursors which entered in force on September 2014.9 This regulation lists in its Annex II CN, PN, SN and AN containing more than 16% N among other substances, as explosives precursors that are susceptible to be misused and for which suspicious transactions, disappearances and thefts shall be reported by economic operators. 10

Furthermore, the Program Global Shield, developed by the World Customs Organization (WCO), which aims to thwart the smuggling of precursor chemicals that could be used to build improvised explosive devices (lEOs), identifies calcium ammonium nitrate (HS Code 3102 60, CAS Number 15245-12-2), together with AN, PN and SN as high risk precursor chemicals.11

8 INERIS 2009. Study of Deflagration Capability of 4 Samples of Alkali-Nitrate Based Powders. REPORT N° DRA-08-10066S-IS67JB 9 Regulation (EU) No 98/20 I 3 of the European parliament and of the council of IS Janmuy 2013 On the marketing and use of explosives precursors. Annex II lists "Substances on their own or in mixtures or in substances for which suspicious transactions shall be reported'. 10 Regulation (EU) No 98/2013 ofthe European parliament and of the council of IS January 201 3 On the marketing and use of explosives precursors. Annex II lists "Substances on their own or in mixtures or in substances for which suspicious transactions 'shall be reported'. 11 hIt p :/ /www. wcoomd .org/ en/topics/ enforcement -and-com pi i ance/act i vi ties-and-progra mmes/secu ri ty­pro!!.ram me/-/med ia/W CO/Pub I i c/G I oba 1/PD F rr opi cs/En f orcement%20and%20 Com pi i ance/ Activit i es%20a nd%20 P

VlW Polassium llitlale Association

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U.S. Immigration and Customs Enforcement (ICE) has partnered with WCO to develop the Program Global Shield and is committed to work for effect ively accomplish the Program mission. 12

On the other hand, the market of CN in US is four times bigger than the market of PN and SN (see table l, this statistics do not consider potential local production of CN); consequently, just on the basis of availability, the risk of misuse ofCN is higher than the risk of use PN or SN.

Table 1. U.S. General Imports.13 Annual+ Year-To-Date Data from Jan - Sep.

HTS Number Description 2014 201 4 YTD 2015 YTD

lu Actual Units of Quauli(v

General First Unit of Quantity where quantities are collected in metric tons

28342 100 Potassium nitrate 107,81 3 73,444 85,650

3 1025000 Sodium nitrate I 08,257 65,036 5 1,913

3 1026000 Double salts and mixtures 382,695 289, 142 351,830 of calcium nitrate and ammonium nitrate

In summary, if PN and SN are to be regulated by CFATS to achieve U.S. security objectives, then CN should be regulated. In fact, CN poses security risks that are, if anything, greater than those posed by PN and SN. The current regime is not only unreasonable and unnecessary; it also unfairly disadvantages marketing ofPN and SN in the United States.

A facility with more than certain specified quantities of PN or SN must submit to DHS' CFATS Top-Screen procedures. Although the United States has claimed that completing the online Top­Screen form is not particularly time-consuming, 14 the important points are that the Top-Screen carries with it the stigma of CF A TS regulation and the shadow of further operational and administrative burdens, such as the development and implementation of DHS-supervised vulnerabi lity assessments and site security plans. The facility may be forced by DHS to undertake certain security measures at its own cost. However, the same facility would be assured of not incurring those CFATS burdens if it carried CN (in whatever amounts) instead of PN and/or SN.

rogrammes/Securit y%20 Programme/PGS/Programme%200 lobal%20Shield%20 EN .ashx Las t accessed Nov. 25, 2015 . 12 https://www.ice.gov/global-shield/ last accessed Nov. 25, 20 I 5. 13 Data compiled from tarifTand trade data from the U.S. Department of Commerce and the U.S. International Trade Commission. 14 \VTO TBT Committee Minutes of July 1-2, 2008 Meeting, GffBT/M/45 at para. 112 (Sept. 9, 2008).

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lt should also be noted that CF A TS does not regulate liquid forms of AN, CN or urea ammonium nitrate ("UAN," another very common fertili zer). Liquid CN, liquid AN, and liquid UAN can be dried or frozen in kitchen operations to obtain ingredients for high explosives.

3. C alcium Ammonium Nitl'ate (CAN) Status uncle!' CFTAS needs clal'ification

Calcium ammonium nitrate (CAN) is a mixture of AN (concentrations ranging 25%-30% N or 7 1%-86% AN) and calcium carbonate (limestone) or dolomite. According to Appendix A, mixtures containing equal or more than 33% AN in a concentration of 23% of nitrogen or greater are covered by CF A TS, 15 consequently CAN is covered.

However, on December 30, 2007, DHS Chemical Security Compliance Division Director L. Stanton stated that CAN was not subjected to CFTAS requirements. 16

PNA believes that there is a misinterpretation of substances covered by CF A TS, because Appendix A lists only chemical substances; and it has been assumed CAN is not covered because it is not listed, despite being a mixture containing AN above the establi shed Minimum Concentration.

In fact, the interpretation is still confusing as it has been evidenced recently by the U.S. Govemment Accountability Office (GAO) in its Chemical Safety Report of May 2014. This report identified a group of 286 facilities that imported or exported AN products in fi scal year 20 13 and most of them reported importing or exporting mixtures of AN and calcium carbonate (CAN) or mixtures of urea and AN. GAO identified 8 faci lities that filed CFATS reports with DHS, and about 100 facilities that imported or exported a form of AN that may be subject to DHS's CFATS requirements for reporting quantities over 2,000 pounds but did not file a report. GAO noted that some of these AN mixtures, including CAN, were potentially subject to CF ATS reporting requirements, but didn't have the certain!)' that the facilities have to report. 17

In its Chemical Safety Report, GAO remarked from an interview to an official in Germany that even when CAN is safer than AN, it can still be used to make weapons, such as improvised explosive devices. 18

15 72 Fed. Reg. 65,422 (DHS Nov. 20, 2007) 16 Asmark Institute, Risk Management Newsletter, Vol. 53, March 3, 2008. hllps://www.asmark.org/NewsLetters/data/Volume53%2003-03-2008.pdf last accessed Nov. 25, 201 5. 17 GA0-14-274 Chemical Safety Report "Actions Needed to Improve Federal Oversight of Facilities with Ammonium Nitrate", Page 18. 18 GA0-14-274 Chemical Safety Report "Actions Needed to Improve Federal Oversight of Facilities with Ammonium Nitrate", Page 4 1: " According to a German official we interviewed from an internat ional fertili zer association, under normal storage conditions, calcium ammonium nitrate fulfilling certain requirements is considered a safer fert ilizer than straight ammonium nitrate fertilizer in terms of preventing accidental detonation, and large protection distances are used for straight ammonium nitrate fe11ilizer in case of accidental detonation. However, calcium ammonium nitrate fertilizer can still be used to make weapons, such as improvised explosive devices."

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In fact, the U.S. Joint Improvised Explosive Device Defeat Organization (JTEDDO) has been concerned about the potential of misuse of AN based Home Made Explosives (HME) prepared with free sale AN based fertilizer such as NPKs and CAN.

The JIEDDO HME profile of calcium Ammonium Nitrate (CAN-26) states that CAN is reprocessed by insurgents and then used in the production of Homemade Explosives (HME). 19

JlEDDO has also recognized that more than 85 percent of lEOs employed against coalit ion forces in Pakistan are homemade explosives, and of those, about 70 percent are made with ammonium nitrate derived from calcium ammonium nitrate, referred to as CAN?0

A recent research on the explosive pro~ert ies of different formulas of CAN, confirmed the detonation capability of these fertilizers . 1 Moreover, CAN was used in the car bomb in Oslo (Norway, 20 II), which ki lled 8 people and injured at least 209 people. Three tons of CAN-27 were used to make the 950 kg of explosives that \Vere loaded into a rented van to create the VB JED and detonated in Oslo on 22 July 20 II (Breivik, 20 11).22

The potential use of CAN in explosives have been also recognized by the European pari iament, by including AN containing more than 16% N, which covers CAN, in the Regulation (EU) No 98/2013.23 This regulation also lists PN, SN and CN among other substances, as noted in section 2.

Therefore, from a security perspective it is of high importance to ensure that owner of facilities that possess CAN understand that these products are covered by CFA TS and fill in the respect ive reports to DHS.

4. Screening Threshold Quantities (STQ) for PN and SN are more restrictive than for AN fertilize•· grade

DHS has assigned an STQ of 400 pounds for any commercial grade ("ACG") of PN and SN, applying the same STQ assigned to DOT Class 124 explosive chemicals such as TNT and the

19 See JIEDDO HME Profile: Calcium Ammonium Nitrate (CAN-26) https://www.jieddo.mil/content!docs/JIEDDO HM E Tri-fo!d v3 .pdf last accessed Nov. 25,20 15. 20 l'vlr. Lieutenant General Michael D. Barbero, Director of the Joint Improvised Explosive Device Defeat Organization, U.S. Department of Defense. " Remarks before the U.S. Senate, Committee on Foreign Relations, Subcommittee on Near Eastern and South and Central Asian Affairs". December 13, 2012. 21 Zygmunt, B. and Buczkowski, D. (20 12), Agriculture Grade Ammonium Nitrate as the Basic Ingredient of Massive Explosive Charges. Propellants, Explosives, Pyrotechnics, 37: 685-690. doi: I 0.1 002/prep.20 II 00121 . 22 Small arms survey 2013, Chapter I 0: Infernal machines. Improvised Explosive Devices, page 239. http://www.smallarmssurvey.org/tileadmin/docs/ A-Yearbook/20 13/cn/Smaii-Anns-Survcy-20 13-Chaptcr-1 0-EN.pdf, last accessed Nov. 26, 20 15. 23 Regulation (EU) No 98/20 13 of the European parliament and of the council of 15 Januaty 2013 On the marketing and use of explosives precursors. Annex I I I isis "Substances on their own or in mixtures or in substances for which suspicious transactions shall be reported'. 24 49 CFR 173.50.

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explosive form of ammonium nitrate (AN, with more than 0.2% combustible substances, including any organic substance calculated as carbon, to the exclusion of any other added substance).25 There is no reasonable basis to treat PN and SN in the same way as all DOT Class I explosives and to have lower (more severe) STQ for PN and SN (400 lb) when compared to the entry for fertilizer form of AN, (solid, N concentration of23% Nor greater) (2000 pouncls)26

•

Under no circumstances, PN and SN are classified as explosives, which includes they are not allocated under DOT class I. The classification found under 49 CFR 172. 10 I is division 5.1 for both chemicals. Division 5.1 accounts for oxidizer substances, which means a "material that may, generally by yielding oxygen, cause or enhance the combustion of other materials".27

The allocation of pure alkali nitrates at the same or even higher risk level of explosive AN or even fertilizer grade AN is fundamentally flawed. AN belongs to a different physicochemical category since it contains its own combustible material, which result in a lower thermodynamic stability, and a decomposition reaction that has the potential to be explosive under some conditions of stress that are usually seen for chemicals e.g. contamination with organic material. These intrinsic properties are controlled and risks diminished by stabilizing the substance through parameters such as prill density, limitation of the organic content, among others measures, allowing the substance to be exempted from DOT Class l.l and to consider it as DOT Class 5.1 (fertilizer grade). None of the other pure alkali and earth-alkali nitrates show these properties due to the lack of reduced nitrogen (no ammonium, NH/) in their crystalline structure (except to some degree for fertili zer grade CN). On the contrary, alkali nitrates such as PN do not burn and when liquid fuel is spilled upon it and fire breaks out, the fuel will simply burn off.28 The sole intrinsic dangerous property of pure alkali nitrates is the possibility to enhance a fire. None of these substances has explosive properties. They cannot detonate nor deflagrate. There is no risk of a dust explosion.29 Detonability tests were performed on AN, SN, CN and PN mixed with diesel fuel. Test results shm;ved that the only mixture that detonated was the AN mixture. The SN, CN, and PN mixtures did not detonate under the same conditions.30

Furthermore, DHS included in the COl list lED precursors recommended by the National Research Council in its report titled "Containing the Threat from illegal Bombings: An integrated National Strategy for Marking, Tagging, Rendering, Inert and Licensing Explosives and their Precursors",31 which recognizes that PN and SN have low potential for use in bomb making in

2s I 72 Fee . Reg. 65,405, 65,406, 65,421, 65,431, 65,432, 65,433 (DHS Nov. 20, 2007) 26

72 Fed. Reg. 65,422 (DHS Nov. 20, 2007) 27 49 CFR 173.127 A. 28 36111 International Pyrotechnics Seminar August 23-27, 2009 , Rotterdam The Netherlands. Presentation E-1 : Comparison of behaviour of 3 samples of nitrate based powders to classic black powder. C. Riviere*, R. Branka, M.A. Kordek, INERIS.Parc Technologique Alata BP 2, F-60550 Verneuil en Halatte, France. 29

TNO report PML 2003-C4: Storage of potassium nitrate and sodium nitrate, April 2003. 30

EMRTC Report # FR04-46. Evaluation of Propagation of Detonation of Ammonium Nitrate, Sodium Nitrate, Calcium Nitrate and Potassium Nitrate Mixed with Diesel Fuel. March 2005 . 3 1 72 Fed. Reg. 65,405 (DHS Nov. 20, 2007)

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comparison to AN .32 This low potential for use PN and SN in bomb making has been more recently recognized by Federal Bureau of Investigation (FB1)33 and the same DHS34 which did not li st PN and SN in their documents prepared for Chemical Sector.

The above evidence clearly indicates that any level of concern regarding the potential use of potassium and/or sodium nitrate as IEDP chemicals is not equivalent to the one raised by AN. With the above in mind and considering the risk factors and Assessment of Overall Potential for use of AN and PN in fED showed by the National Research Council report,35 DHS could increase the STQs for PN and SN from 400 pounds to I 0,000 pounds, and the Minimum Concentration from ACG to 65%/6 which reflect their lower potential for use in bomb making than any form of AN.

5. Summaty

In order to make CFATS program more effective in achieving its regulatory objectives on a "risk­based" standard we solicit DHS to revise the CFA TS regulation for the purpose of:

• Include CN (Hydrated Ammonium Calcium Nitrate Double Salt) (CAS# 15245- 12-2), also known as calcium ammonium nitrate double salt, in the COl list applying the same STQ and concentration lim it as it represents a similar risk than PN and SN.

• Include liquid forms of AN, CN or urea ammonium nitrate.

• Clarify that CAN is covered by CF A TS.

• Increase the STQs for PN and SN from 400 pounds to J 0,000 pounds considering their much lower potential for misuse than any form of AN.

• increase the Minimum Concentration for PN and SN from ACG to 65% considering their much lower potential for misuse than any form of AN.

32 National Research Council. "Containing the Threat from Illegal Bombings: An Integrated National Strategy for Marking, Taggi ng, Rendering, lner1 and Licensing Explosives and thei r Precursors". National Academy Press. 1998. Pg. 101 33 FBI. "Chemical Sector Reporting Essential in Detecting Suspicious Acquisition of Chemical and Explosive Precursor Materials" published on 20 II. https://www.ifca.com/media/files/wmd chem notifications (2).pdf last accessed November 25, 20 I 5. 34 DHS "Private Sector Advisory". Private Sector Role in Preventing Acquisition of Explosive Precursors and Improvised Explosive Device Components. 02 September 20 14. 35 National Research Counci l. "Containing the Threat fi·om Illegal Bombings: An Integrated National Strategy for Marking, Tagging, Rendering, Inert and Licensing Explosives and their Precursors". National Academy Press. 1998. Pg. 101 36 Proposal for STQs and Minimum Concent ration for PN and SN are based on experience by industry.

VZ\'1 Potass!um tlitra!e Associa(on

Heidestraat 36 A

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PNA •

• Ensure the same treatment to all nlkali and earth-alkali nitrate based fertilizers, presenting

similar properties in order to prevent unjustified technical barriers to trade to some products

and at the same time to provide comparative advantages to no-regulated products.

PNA 's recommendations aim to ensure a high level of protection while keeping a fair regulatory

treatment for all products described in this document.

PNA appreciates the opportunity to comment on this advance notice of proposed rulemakjng

"Chemical Facility Anti-Terrorism Standards" and supports the DHS efforts to make the CFATS

program more effective in achieving its regulatory objectives.

For addit ional information, please contact info@kno3.org.

Sincerely

Natan Feldman

Haifa Chemicals j

Natan ..s!Jidman V.P. Ma.r~~ti~g & sales Half~Chemlcals Ltd.

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