DEA Publishes Theft-Diversion 60-day ICR Renewal

Today the Drug Enforcement Agency (DEA) published a 60-day information collection request renewal notice in the Federal Register (78 FR 76656) This notice supports the legal requirement in 21 USC §830(b) for manufacturers of certain controlled drug related chemicals and manufacturing equipment to report suspicious orders or theft/diversions of those chemicals and devices to the DEA.

Now I’m not going to start covering the DEA in addition to the other agencies that I routinely watch, but the idea or requiring this type of reporting is something that the Department of Homeland Security might want to include in the CFATS program. This would easily fall under the requirements of §27.230(a)(6); deter theft or diversion of potentially dangerous chemicals.

While the Secretary may not require a specific security measure to be part of a site security plan some sort of reporting program should obviously be part of the site security plan for any facility with a Theft/Diversion chemical of interest (COI) on site. The obvious question becomes to whom should the reports be made?

In the case of the DEA’s requirement noted above, it is obvious that the DEA would be the agency to receive the report. It is an investigative agency with law enforcement powers. That is not true of the Infrastructure Security Compliance Division (ISCD), the agency that enforces the CFATS program. Any report of a theft/diversion (suspected or obviously real) would have to be forwarded to an appropriate investigative agency like the FBI.

On the other hand there would be a benefit of having the report made through ISCD. Information shared with ISCD about such a theft/diversion could be shared as an intelligence matter with other facilities with similar COI. This could enable them to take additional or increased security measures to protect their facilities against similar actions.

Still, requiring CFATS facilities to submit such reports through ISCD could delay the start of important investigations necessary of catching the perpetrators before they have a chance to potentially employ improvised weapons made from the stolen or diverted chemicals. But, reports made to the local police or FBI are not going to get back to ISCD for forwarding to similar facilities.

What is probably necessary is to require (ah… I know, the CFATS authorization does not allow the Secretary to ‘require’) that CFATS facilities make initial reports of suspected or identified thefts or diversions of theft/diversion COI to the FBI and/or local police (in most cases a local police investigation will start faster than an FBI investigation, but the FBI is a more appropriate investigative agency of potential terrorist activities) and then submit a follow-up report with ISCD. 

NOTE to Congress: This type of reporting should be required in any comprehensive chemical facility security regulations that may eventually get adopted by Congress.

Cargo Theft and CFATS

A couple of interesting recent articles (here and here) address the issue of truck cargo theft. While neither one directly deals with the theft of hazardous chemicals nor chemicals that may be used to make improvised weapons (either explosive or chemical), the chemical manufacturing and chemical transportation communities ought to take notice.

The first article is a general overview of the cargo theft problem here in the United States. It is lacking in specific information that would be useful in helping shippers and transport companies avoid the problem. It does, however, outline the scope of the problem.

The second article addresses an apparently increasing tactic for cargo thieves, impersonating legitimate trucking companies and scheduling legitimate pick-ups from shippers and then diverting the cargos. Chemical facilities that ship theft/diversion COI chemicals need to take special note of this article because this would be a very effective way of targeting such chemicals.

What Roxana Hegeman’s article describes is essentially commercial identity theft. She describes one of the ways that the identity theft works:

“Thieves assume the identity of a trucking company, often by reactivating a dormant Department of Transportation carrier number from a government website for as little as $300. That lets them pretend to be a long-established firm with a seemingly good safety record.”

This technique, along with the forging of appropriate commercial trucking company documentation allows the thieves to bid on loads with commercial freight brokers. When a bid is won a truck shows up at the loading dock with legitimate paperwork to pick-up a properly scheduled load. The only problem is that the truck and its cargo are never seen again once they pull away from the loading dock.

Unfortunately the article is short on effective methods for shippers to prevent this type of cargo diversion. It recommends:

• Checking for temporary name placards or identification numbers on the truck;

• Paying attention to abrupt changes in the time of the pickup;

• Being aware of the lack of a GPS tracking system on the truck; or

• Getting a thumb print of the driver.

For CFATS covered facilities it probably makes more sense to protect theft/diversion COI shipments from this type of diversion by only using known trucking companies that the facility has a well-established history of working with. This would be sort of a ‘know your transporter’ program that would parallel the ‘know your customer’ idea identified in RBPS #5 in the CFATS Risk Based Performance Standards guidance document.

CFATS Knowledge Center Update for 9-11 Anniversary

The folks at DHS ISCD updated the CFATS Knowledge Center with a brief article outlining the potential threat of attacks on chemical facilities to coincide with the anniversary of the 9-11 attacks ten years ago. The Article (#1726) is a near duplicate of letters sent to CFATS facilities known to have theft/diversion COI. That letter was sent on September 9^th, the same date this article appeared on the CFATS Knowledge Center.

The article/letter emphasizes that there are no known specific threats against chemical facilities. It does not focus on a physical attack against a facility so much as remind facilities of potential attempts of terrorists to gain access through theft or diversion of chemicals necessary to make a weapon (either chemical or explosive) to be used in an attack elsewhere.

Apparently the main difference between this article and actual letters sent to facilities is that the letters included contact information for the Regional and District Commanders (heads of the Chemical Facility Security Inspectors) responsible for that facility. If facilities had not yet been contacted for an official visit by CFSI the facility might not have had this contact information.

I think that the letters and the article are a good idea, especially since the letters provided important contact information. However the claim that this was even loosely related to the 9-11 anniversary is questionable at best. If terrorists were going to obtain chemical precursors for chemical weapons or IEDs for a 9-11 Anniversary attack, it would have been completed long before these letters went out.

Anhydrous Ammonia Theft

I haven’t talked about this issue in a while but I ran across an interesting article about one of the larger anhydrous ammonia thefts that I have ever seen. The article notes that a trailer used to apply anhydrous ammonia fertilizer to fields was stolen from a farm outside of Kalamazoo, MI. The empty 1,000-gallon tank was later recovered.

Terrorist Weapon?

As with presumably all such thefts to date this trailer was taken and emptied in support of the illicit manufacture of methamphetamines. If that was the case her, the thieves have a problem on their hand; according to the article “the ammonia was treated with GloTell, a substance that dyes the product bright pink and makes it unsuitable for meth production”.

With that said, could this type theft be a precursor for a terrorist chemical attack? It certainly could as any toxic inhalation chemical could be used in an attack. That is why anhydrous ammonia is a DHS chemical of interest (COI). It is listed in Appendix A as a release – toxic chemical and as such has a screening threshold quantity (STQ) of 10,000 lbs. While agricultural production facilities are exempted submitting Top Screens, if this farmer never had more than the quantity found in this trailer (reportedly 4,000 lbs) on site no Top Screen submission would be required.

Does that mean that this smaller quantity could not be used as a terrorist weapon? Certainly not. In many ways this quantity, in a portable tank, is much more useable as a weapon as it could be delivered to an appropriate target and the TIH material released there. In normal transport or in fixed tanks the material would have to be in the right place at the right time for it to be an effective weapon.

Why Not a Theft Diversion COI?

This begs the question, why isn’t anhydrous ammonia listed in Appendix A as a theft-diversion COI as well as a release COI? Chlorine gas, for example, is dual listed and these two chemicals share many traits; both are readily available TIH industrial chemicals. They both cause serious damage to the respiratory system in less than lethal concentrations. Chlorine is listed as a theft-WME (weapon of mass effect) COI with an STQ of 500 lbs in portable containers.

Technically, chlorine is listed as a theft-WME COI and anhydrous ammonia isn’t because chlorine was used as a war gas in WWI and is listed in the Chemical Weapons Convention list of chemical weapons. Anhydrous ammonia was never used or seriously considered for chemical weapons use and is not included in the Convention’s list of chemical weapons or their precursors.

Anhydrous ammonia was not considered for use as a chemical weapon because of its affinity for water, even water vapor in the air. This could seriously inhibit its functionality as a war gas. This wouldn’t have any practical effect on the effectiveness of its use against terrorist targets especially within buildings like shopping malls, schools, churches or other soft targets.

Agriculture Exemption

I am relatively certain that this CWC technicality was not the main reason that anhydrous ammonia was never considered as a theft-diversion COI when DHS put together Appendix A. One of the industries that use huge quantities of this material is agriculture where it is used as a very effective and cheap nitrogen fertilizer. It is typically hauled to fields in these 1,000-gallon tanks (they look like large propane tanks on wheels) and these tanks are then used to disperse the material into the ground before planting.

If DHS had included anhydrous ammonia as a theft-diversion COI it would have raised the cost of the use of this fertilizer and the agriculture industry would have raised fits. If you don’t think that this had any influence on the listing decision consider the case of propane. Because of the concerns of the agriculture industry and their tame Senators the STQ for propane (widely used on farms and other production facilities for a variety of heating uses) was set at 60,000 lbs instead of the 10,000 pounds set for similar release flammable COI.

Or consider the fact that the farmers, or their employees, hauling these trailers from the local supplier to their fields do not have to have hazardous material endorsements on their commercial driver’s license. PHMSA has given them a blanket agricultural exemption from that requirement.

Appendix A Review

This is another chemical of concern that needs to have its status reviewed during the current discussions about amendments to Appendix A of the CFATS regulations. This is particularly true since State regulations trying to prevent the theft of anhydrous ammonia for use in the manufacture of methamphetamines.