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Containing the Threat from Illegal Bombings: An Integrated National Strategy for Marking, Tagging, Rendering Inert, and Licensing Explosives and Their Precursors Wreckage of New York World Trade Center, February 1993. Reprinted, by permission, from Archive Photos (Reuters/Mike Segar). Copyright by Archive Photos.
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Containing the Threat from Illegal Bombings: An Integrated National Strategy for Marking, Tagging, Rendering Inert, and Licensing Explosives and Their Precursors 5 Limiting Criminal Access to Explosives and Precursor Chemicals INTRODUCTION Given the many types and sources of explosives and precursor chemicals1 for use in constructing bombs, it seems impossible to prevent all illegal bombings by controlling bombers' access2 to these materials. More realistic are controls that could make it more difficult for would-be bombers to carry out their crimes and could increase the probability of their being caught—an approach taken by the British and others in their efforts to thwart terrorist bombers. In weighing the possible costs and benefits of legislative controls on access to precursor chemicals, the committee concluded that there would be no substantial benefit to law enforcement if only precursor chemicals were regulated without also imposing adequate controls on criminal access to the commercial explosives themselves. Because access in the United States to commercial explosives may not be adequately regulated at the federal level, assessment of the need for controls must extend to all precursors to illegal explosions. This broader set of precursors includes precursor chemicals, as well as commercial explosives and detonators that are commonly available to would-be bombers by legal and illegal means.3 1 In this context, a precursor chemical is any chemical that can be used to manufacture an explosive material. 2 As used here, the term ''access" includes legal purchase, fraudulent purchase, and theft. 3 Black and smokeless powders, which were excluded from the charge for this study, are currently used in about one-third of all bombing incidents (FBI, 1997). Options for controlling black and smokeless powders will be discussed in a National Research Council report forthcoming in October 1998.
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Containing the Threat from Illegal Bombings: An Integrated National Strategy for Marking, Tagging, Rendering Inert, and Licensing Explosives and Their Precursors The appropriateness of any regime for controlling explosives and precursor chemicals must be judged in the context of the perceived bombing threat. Control measures whose costs appear to outweigh their benefits in periods when major bombings are infrequent may appear more attractive if major bombings become more frequent. Therefore, the committee structured its discussion of controls to include a range of graduated options that may be appropriate for containing a bombing threat in the United States at current, increased, and greatly increased levels. CONTROLS ON PURCHASE AND USE OF COMMERCIAL EXPLOSIVES IN THE UNITED STATES AND ABROAD Current U.S. Regulations Controlling Access to Explosives At the federal level, explosives currently are controlled under Title XI of the Organized Crime Control Act of 1970.4 Additional requirements may be imposed at the state and local levels. The central feature of the existing federal regime is that it requires a license for engaging in the interstate manufacture, importation, or distribution of explosive materials and a permit for the interstate transportation of such materials for one's own use. The explosive materials subject to the federal explosives law are listed annually by the Bureau of Alcohol, Tobacco, and Firearms (ATF) (Federal Register, 1997). The list, which includes commercial and military explosives, black and smokeless powders above a minimum quantity, pyrotechnic compositions and special fireworks, many explosive chemicals, detonators and blasting caps, propellants, ammonium nitrate explosive mixtures, and urea nitrate, is quite comprehensive for materials that are themselves explosive. It does not include nonexplosive precursor chemicals or pure ammonium nitrate.5 Applicants for a federal license or permit (ATF Form 5400.13/5400.16) must show "competence" to handle explosives by demonstrating adequate storage facilities for explosive materials, if storage is required; familiarity with relevant state and local laws; and compliance with the Federal Water Pollution Control Act. Applicants for licenses and permits must also certify that they meet certain "good character" requirements.6 The ATF conducts routine criminal background checks before issuing a license or permit; extensive background checks are rarely done. 4 See "Regulation of Explosives," Title 18, United States Code, Chapter 40. The implementing rules and regulations are detailed in Title 27, Code of Federal Regulations, Part 55, "Commerce in Explosives." 5 In addition, the ATF lists a large number of explosive materials that are seldom if ever used. 6 Applicants must certify that they are over 21 years old, have not willfully violated the federal explosives law and its requirements, and have not knowingly withheld or falsified information on the application.
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Containing the Threat from Illegal Bombings: An Integrated National Strategy for Marking, Tagging, Rendering Inert, and Licensing Explosives and Their Precursors Intrastate commerce and commerce between contiguous states that by mutual agreement allow shipments across their adjoining borders do not require federal permits or licenses. Although both types of (effectively intrastate) transactions do require that purchasers produce positive identification (such as a driver's license) and fill out a form—ATF Form 5400.4—certifying that they meet "good character" requirements,7 the completed form is retained by the seller, and the ATF is not informed of the transaction at the time of sale.8 The Institute of Makers of Explosives surveyed member companies to determine the number of ATF Form 5400.4 (intrastate) transactions made during calendar year 1993 and the quantity of explosives purchased. The responding companies reported that more than 47,000 separate ATF Form 5400.4 transactions took place, more than 455 million pounds of explosives were purchased, and well over 1 million detonators were included in the explosive materials purchased.9 The opportunity for illicit activity is clearly significant. The committee found that current federal requirements for purchasing explosives are so easily met or circumvented that federal law is largely ineffective in keeping explosives out of the hands of criminals. Thus, the United States is dependent on state laws and regulations for controlling the purchase and storage of explosives. Unfortunately there is a lack of uniformity among these laws, which range from very restrictive purchasing requirements to essentially none. For example, in 1995, according to one analysis, fewer than half of the states (21) required a license or permit for all purchases of explosives (Hoover, 1995). Fourteen required a license or permit for some uses of explosives, and 17 states had no statutes dealing with the purchase of explosives. Only two states required a waiting period before a license or permit could be issued. The divergent approach to regulation taken in California and Utah illustrate the wide state-to-state variation in laws governing the purchase of explosives. On the one hand, [t]he State of California has one of the strictest explosives control laws in the United States. It requires a permit to manufacture, distribute, receive or possess, transport, or use explosives; to operate a terminal for handling explosives; or to park or leave standing any vehicle carrying explosives. In addition, the 7 Distribution is prohibited to anyone who is under 21 years old; has been convicted of a felony involving more than 1 year of imprisonment; is currently under indictment for a felony; is a fugitive from justice; is an unlawful user of, or is addicted to, certain defined controlled substances; or has been legally judged to be mentally incompetent. 8 However, the forms are available for review by the ATF during annual inspections of licensees and permittees and for use in investigations involving use of explosives (Gail Davis, ATF, personal communication, February 20, 1998). 9 Frederick P. Smith, then president of the Institute of Makers of Explosives, to John W. Magaw, director of ATF, in a letter dated February 24, 1994.
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Containing the Threat from Illegal Bombings: An Integrated National Strategy for Marking, Tagging, Rendering Inert, and Licensing Explosives and Their Precursors State requires a one week delay in the issuance of a permit, except in the case of an emergency. In order to qualify for a permit the applicant must have sufficient and adequate facilities to engage in the activities specified in the application. The application can be denied if the issuing authority finds that the handling or use of explosives by the applicant would be hazardous to property or dangerous to any person. Once issued a permit is valid only for the time when the activity authorized by the permit is performed and not longer than one year. The state Fire Marshall is authorized to enforce the statutory requirements. (Hoover, 1995) On the other, the State of Utah in 1995 had no state requirements defined by statute as applying to the purchase of explosives (Hoover, 1995). Counties were authorized to regulate the storage of explosives. Regulation of Explosives in Other Countries Members of the committee visited Switzerland and Great Britain to hear firsthand how both regulate explosives (see Appendix F). These countries were selected because of their well-known actions to thwart terrorism in recent years. Additional information provided by one committee member was also thought to be of value because it describes experiences in countries with adjacency to the United States (Canada), large size and relative freedom from terrorist activities (Australia), and severe threat (Northern Ireland, Great Britain, and Israel). Switzerland10 In Switzerland, the Federal Ministry of Education provides training courses that a person seeking to buy explosives must pay for and complete in order to obtain a lifetime license. The licenses are administered by the cantons (states), which require a name and signature upon purchase. To buy explosives, the purchaser must take the license and a purchase order to the canton police, who verify the license and approve the application. The vendor requires a name and signature and keeps records for 5 years. No background checks are made. The law also requires safe storage. One effect of this legislation has been to drive individual users of explosives from the market (perhaps owing to added burdens of time and expense), leaving the market to commercial blasters. The implementation of these regulations in 1980 coincides with a significant drop in bombing incidents. 10 This section is based on a personal communication from Kurt Zollinger, Scientific Research Service, Zurich Stadtpolizei, April 1997.
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Containing the Threat from Illegal Bombings: An Integrated National Strategy for Marking, Tagging, Rendering Inert, and Licensing Explosives and Their Precursors Canada11 The Canadian federal Explosives Act12 and related regulations13 control the manufacture, purchase, use, transportation, and storage of explosives throughout Canada, except for use and storage at mines and quarries, which fall under provincial jurisdiction. Provinces and municipalities are bound by the act but may pass additional regulations to suit regional needs, including regulations that may apply to transportation. Under the federal act, licensed vendors may issue a permit for purchase and possession of explosives and sell up to 75 kg of high explosives and 100 detonators to a person over 18 years of age who presents appropriate identification. If the purchaser is known to the vendor, there is no police involvement. Otherwise, the purchaser's identification and residential address must be confirmed by the police. No background checks are conducted. The purchaser must sign and print his name, present identification, and indicate details of use, storage, and transportation. The explosives must all be disposed of within 90 days. A purchaser who wishes to buy and store more than 75 kg of explosives must apply to the Department of Energy, Mines, and Resources for a 1-year license. The entire process can be accomplished by mail or fax. Copies of the license are forwarded to the police department with jurisdiction in the area where the magazine is located. The process for obtaining a license involves no purchase limits or training requirements, and no background checks for a criminal record are conducted. Thus, federal law governs most aspects of the sale and custody of explosives in Canada, although the exemption for mines and quarries leaves a large gap in federal control. No background checks are conducted of licensed magazine owners, blasters, truck drivers, or anyone else with access to explosives. Australia14 In Australia, which has been relatively free of terrorist activity, a purchaser must have a license or permit, must sign sales documents, and in some states must sign a register and produce identification. However, there is no direct federal government involvement. There is also no police involvement in license acquisition, since it falls under the dangerous goods legislation in each state. However, 11 This section is based on a personal communication from John Martin, explosives inspector, Department of Energy, Mines, and Resources, Vancouver, B.C., Canada, June 1997. 12 Explosives Act, R.S.C. 1985, c.E-17; S.C. 1993, c.32, s.3; S.C. 1995, c.35, s.2. 13 For example, Motor Vehicles Act, R.S.B.C. 1996, c.318, s.206; Vancouver Charter, S.B.C. 1953, c.55, s.311. 14 This section is based on a personal communication from Carl Christie, director, Australian Bomb Data Centre, Canberra, Australia, July 1997.
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Containing the Threat from Illegal Bombings: An Integrated National Strategy for Marking, Tagging, Rendering Inert, and Licensing Explosives and Their Precursors permits for use of small quantities of explosives may be issued by a police officer of sergeant rank. Great Britain15 In Great Britain (Scotland, England, Wales), manufacturing and storage of explosives are regulated by the Explosives Act (1875). The transfer of explosives falls under the Policy on Marketing and Supervision of Transportation of Explosives Regulations (1973),16 and acquisition by persons is covered under the Control of Explosives Regulations (1991).17 A person who wishes to purchase explosives must apply to the police for a certificate to acquire and keep them. The first criterion is that a prospective purchaser must have a safe and secure place to store the explosives. Security requirements on magazines are high: either a magazine must have an alarm system that will operate if a break-in occurs, or the area must be patrolled regularly. If this criterion is satisfied, the police then conduct a background check on the applicant, including a criminal record check. If a prospective purchaser is a prohibited person under the Control of Explosives Regulations, then a license is denied. The current status and nature of a criminal conviction are considered, but for anyone previously convicted of an offense under the Explosives Substances Act, a certificate is not issued. Otherwise, a license valid for up to 3 years may be issued to acquire and keep explosives. There are no controls on the purchase of ammonium nitrate fertilizer, because it is not classified as an explosive. By contrast, in the United States, individuals can be licensed in many states without a background check or any police involvement. Also, requirements for magazine security are more stringent in Great Britain than in the United States, where security relies more on magazines meeting manufacturing specifications and being in remote locations. The much tighter controls in Great Britain ensure that there are few incidents involving commercial high explosives. Northern Ireland18 In Northern Ireland, explosives are controlled under the Explosives (Northern Ireland) Order of 1972 and related legislation, and the police are involved at 15 This section is based on a personal communication from John Phillips, Explosives Policy Section, Health and Safety Executive, London, England, June 1997. 16 Legislation passed in compliance with European Economic Community Council Directive 93-15 EEC 5, April 1995 ("Civil Uses Directive"). 17 Regulations made under the Health and Safety at Work Act (1974). 18 This section is based on a personal communication from Gerard Murray, Forensic Science Agency of Northern Ireland, Belfast, Northern Ireland, March 1997.
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Containing the Threat from Illegal Bombings: An Integrated National Strategy for Marking, Tagging, Rendering Inert, and Licensing Explosives and Their Precursors all stages in the acquisition, transportation, and use of commercial explosives. A prospective purchaser must first apply for a license to the police, who assess the request and conduct a background check before issuing a license for purchase of a specific quantity. Police escort explosives transported from the manufacturer to a central magazine, which is protected by armed guards and, on purchase, from the magazine to the user. The police observe the use of legally purchased explosives and ensure that all explosives are used or destroyed. In fact, individuals cannot obtain a license to purchase explosives—essentially, they must contract with a licensed commercial blaster. As a consequence, commercial high explosives used in criminal bombings in Northern Ireland typically are smuggled into the country. The tight controls on the sale, storage, and transportation of commercial explosives in Northern Ireland contrast with the approach taken in the United States, as do the nature and extent in the two countries of the threat of domestic terrorist violence using explosives. Israel19 In Israel, controls on the purchase of explosives are so tight that there are virtually no cases of criminal bombings involving commercial high explosives. Bombing incidents generally involve either improvised explosives or high explosives designed for military use that are stolen or smuggled into the country. Adopting Uniform National Regulations for the Purchase of High Explosives in the United States In general, the lessons learned from other countries' laws and procedures for domestic use of explosives are straightforward: typically the laws derive directly from the level of threat experienced, and so the higher the threat, the tighter and (in most cases) the more costly and inconvenient the controls. Northern Ireland, Great Britain, and Israel, all of which have a high threat level, have made commercial explosives less accessible to terrorists, who must then improvise, steal, or otherwise obtain these materials from out-of-country sources. In contrast, Canada and the United States control explosives to varying degrees at the federal level, but such control may be compromised by exceptions to federal jurisdiction. The committee concluded that a criminal in the United States can easily purchase explosives in a state with few requirements and then use them anywhere in the United States. Therefore, the committee recommends that uniform national regulations for the purchase of commercial high explosives be developed 19 This section is based on a personal communication from Shmuel Zitrin, Israel National Police, Jerusalem, Israel, June 1997.
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Containing the Threat from Illegal Bombings: An Integrated National Strategy for Marking, Tagging, Rendering Inert, and Licensing Explosives and Their Precursors and implemented. These regulations should apply to both intra-and interstate distribution of explosives. The committee makes no recommendation as to whether states should remain free to impose controls stricter than the federal ones. It does urge, however, that consideration be given to ways to minimize the additional costs to industry, if any, if controls are imposed. Federal preemption of state laws governing purchase of explosives (creating a single, uniform federal system) might be one way to achieve cost minimization. The committee's recommendation for uniform national regulations for the purchase of explosives is not unique. For instance, the Institute of Makers of Explosives has supported a national licensing program for many years (see Box 5.1). At a minimum, the recommended uniform national regulations would extend current interstate controls (i.e., federal requirements for licensing and for verification BOX 5.1 Related Proposals for Control of Explosives The Institute of Makers of Explosives has proposed a national licensing program that would do the following:1 Eliminate ATF Form 5400.4 transactions; Require that an individual possess a federal license or permit before being able to purchase detonators, high explosives, and blasting agents; Exempt black and smokeless powders; Exempt only law enforcement agencies; Establish a license or permit fee to cover only costs associated with the licensing process; Prohibit existing local, county, or state requirements from supplementing federal license requirements. These requirements would be in addition to federal requirements; and Establish safeguards (e.g., fingerprinting, a medical examination) in the application process to make approval of false information difficult. In addition, several bills introduced in the Congress have sought to create a federal licensing scheme that would cover intrastate transactions, including some requiring the photographing and fingerprinting of applicants, or instant background checks.2 1 Frederick P. Smith, president of IME, to John W. Magaw, director of ATF, in a letter dated February 24, 1994. 2 See, for instance, the Restricted Explosives Control Act (H.R. 488), introduced in the 104th Congress, first session, on January 11, 1995, which requires a federal permit for intrastate purchase of explosives, as well as photographing and fingerprinting; and the Bombing Prevention Act (H.R. 4828), introduced in the 103rd Congress, second session, on July 25, 1994, which had similar provisions and required background checks.
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Containing the Threat from Illegal Bombings: An Integrated National Strategy for Marking, Tagging, Rendering Inert, and Licensing Explosives and Their Precursors of compliance with storage requirements) to cover intrastate transactions involving explosives. These uniform national regulations would add significantly to the expenses of individuals seeking to purchase explosives, particularly in those states that currently have few controls. Such prospective purchasers would face the additional time and effort of applying for a license and would have to demonstrate that the explosives would be transported in an approved manner and stored in an approved magazine. Costs to state law enforcement agencies and the ATF would also rise for the processing of license and permit applications, and for the investigation of applicants and inspection of their magazines. Presumably, these additional program costs would be offset wholly or partially by fees paid by the applicants. Coordination among state and federal regulatory programs would become critical to minimize overall costs and would help ensure effective enforcement and minimize duplication of effort. Uniform national regulations might well change some of the economics of explosives use in the United States. For example, to avoid increased costs, individuals might have to hire blasting companies to perform work that they formerly did themselves.20 Such a change would likely be opposed by farmers and other individuals who have legitimate uses—such as the removal of tree stumps—for explosives that would be regulated. Limiting the Theft of Explosives At least for preventing illegal bombings, the benefits of uniform national purchasing regulations and a licensing program for explosives are limited to the extent that would-be bombers can continue to obtain explosives by theft. In 1995, the most recent year for which statistics were available, 3,404 pounds of packaged high explosives and 5,300 pounds of blasting agents were reported stolen (ATF, 1997). However, these figures probably understate the actual amount stolen: In 1995, for instance, 7,731 pounds of packaged high explosives and 8,031 pounds of blasting agents were recovered by authorities, in both cases considerably more than the amounts reported stolen. Experts contacted by the committee believe that in most cases, the high explosives used in bombings are stolen.21 Commercial explosives are particularly attractive as initiators and boosters for improvised bombs such as the one that produced such devastating effects at the Murrah Federal Building in Oklahoma City.22 20 Such a change occurred in both Switzerland and Northern Ireland under similar conditions, as indicated in the section titled "Regulation of Explosives in Other Countries." 21 J. Christopher Ronay, president of the Institute of Makers of Explosives, and Kevin Stadnyk, former federal explosives inspector, British Columbia, Canada, personal communications, June 1997. 22 Evidence presented at the trial of Timothy McVeigh, convicted of the bombing, linked him to a break-in at a Kansas magazine in which a variety of high explosives and detonators were stolen.
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Containing the Threat from Illegal Bombings: An Integrated National Strategy for Marking, Tagging, Rendering Inert, and Licensing Explosives and Their Precursors The most common sources of stolen explosives are believed to be remotely located magazines maintained by end users (ATF, 1997).23 Under current law, these are required to be monitored only once per week and so offer an inviting target for thieves.24 In addition to theft from magazines, an unknown amount is stolen from end users such as farmers who may store the explosives in an unsecured facility such as a barn. Such thefts may go unreported, since the victim would have to acknowledge that the explosives were not stored in an approved magazine, as required by law. The committee recommends, in conjunction with its recommendation for uniform national regulations governing the purchase of explosives, that the Bureau of Alcohol, Tobacco, and Firearms be given the authority and resources to ensure that all purchasers of high explosives use secure magazines if the explosives are to be stored. This precaution would sharply reduce the number of opportunities for would-be bombers to steal explosives from unsecured storage facilities. COMMON PRECURSOR CHEMICALS POTENTIALLY SUBJECT TO CONTROLS-DEVELOPING A SHORT LIST Chemical Precursors to Explosives A very large number of precursor chemicals that can be used to make effective bombs are not listed explicitly by the ATF as explosive materials and so are not currently controlled as explosives under federal law (Federal Register, 1997). To define which of these should be considered for controls, the committee compiled a relatively long list of common precursor chemicals and then applied defined criteria to produce a "short list" of precursor chemicals that appear to pose the greatest risks in terms of their potential for use in bomb making.25 The committee considered three kinds of chemical precursors to explosives: those that are explosive on their own, those that can be physically mixed to produce 23 Magazines may be owned by manufacturers, dealers, permittees, and users. Over the past 5 years, an average of 47 percent of reported thefts of explosives occurred from end-user magazines. 24 There are an estimated 40,000 magazines in the United States (Tom Dowling, Institute of Makers of Explosives, personal communication, June 1997). 25 The committee's various sources included a review of chemicals recommended in written material, and at various sites on the Internet, for constructing homemade bombs; information on chemicals regulated in Northern Ireland; and the committee's own experience and expertise in the area. For examples of written material, see, Powell, W., "The Anarchist Cookbook," Lyle Stuart Inc., Secaucus, N.J., 1971; Lecker, S., "Homemade Semtex, C-4's Ugly Sister," Paladin Press, Boulder, Colo., 1991; Galt, J., "The Big Bang: Improvised PETN & Mercury Fulminate," Paladin Press, Boulder, Colo., 1987; and Benson, R., "Homemade C-4: A Recipe for Survival,'' Paladin Press, Boulder, Colo., 1990.
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Containing the Threat from Illegal Bombings: An Integrated National Strategy for Marking, Tagging, Rendering Inert, and Licensing Explosives and Their Precursors Hydrogen Peroxide and Acetone Hydrogen peroxide can be reacted with acetone to make the powerful explosive TATP, which has been used by terrorists abroad but not thus far to any great extent in the United States.46 It can be made in large quantities but is extremely unstable and dangerous to handle. Acetone, one of the most common organic solvents, can be purchased readily from many sources in large quantities. As in the case of nitric acid and urea, controlling access to TATP is achieved more readily by limiting the availability of hydrogen peroxide than by controlling acetone. As with controls on nitric acid, controls on hydrogen peroxide would be preferred because hydrogen peroxide can be reacted with chemicals other than acetone to produce explosives. Hydrogen peroxide is a strong oxidizer sold in 3 to 70 percent solutions in water. It has many applications as a disinfectant, as a reagent in chemical syntheses, and as a bleaching agent for wood pulp, clothing fibers, and human hair. Sodium Chlorate and Potassium Chlorate Chlorates have a long history of use in explosive formulations. In 1885, 240,000 pounds of a mixture of potassium chlorate and nitrobenzene, along with 42,000 pounds of dynamite, were used to blast a portion of Hell Gate Channel in New York Harbor (Colver, 1918). Flash powder, a mixture of potassium chlorate, sulfur, and powdered aluminum, appears frequently in statistics on bombing incidents in the United States (ATF, 1997).47 A mixture of potassium chlorate and red phosphorus is used in the common safety match ("Armstrong's powder") (Oxley, 1997). A survey of the "do-it-yourself" bomb-making literature indicates that mixtures of chlorate salts with sugar are by far the most commonly recommended formulations (Oxley, 1993). Depending on the locale, either the sodium or potassium salt may be more available. Before the imposition of controls on chlorates in the early 1970s, Northern Ireland was plagued with sodium chlorate/sugar bombs, because sodium chlorate was widely available for use as a weed killer. Potassium Perchlorate Potassium perchlorate, a powerful oxidizer used in pyrotechnic formulations, can be obtained in quantity from chemical or pyrotechnic supply houses. It 46 Richard Strobel, ATF, personal communication, June 6, 1997. 47 Photoflash/fireworks powders accounted for 17 percent of fillers used in destructive devices in 1995 (ATF, 1997).
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Containing the Threat from Illegal Bombings: An Integrated National Strategy for Marking, Tagging, Rendering Inert, and Licensing Explosives and Their Precursors is one of the more common oxidizers found in U.S. bomb incidents involving oxidizer-fuel mixtures.48 Key Chemicals: Options for Control All of the key precursor chemicals described above have some degree of recognized hazard associated with their use. As a result, their handling is carefully controlled by industrial users and university laboratories. However, as discussed above, each chemical has outlets through which a determined bomber might obtain significant quantities. Small, mail-order chemical supply houses are a significant uncontrolled source of chemicals that could be used in improvised explosives.49 Current Threat Currently, bombing incidents involving any of the improvised oxidizer-fuel mixtures on the short list constitute less than 2 percent of all such incidents in the United States (FBI, 1997). Furthermore, with the exception of the urea nitrate bomb used at the World Trade Center in New York, bombing incidents involving these chemicals have not resulted in major loss of life or property damage in the United States. In fact, the World Trade Center bombing was an unusual case, in that one of the convicted bombers was a chemical engineer, employed by a major U.S. materials company, who presumably managed to obtain the chemicals through his established professional contacts with chemical suppliers (FBI, 1997). Therefore, at the present threat level, the committee recommends no new controls on sales of nitric acid, nitromethane, hydrogen peroxide, sodium nitrate and potassium nitrate, sodium chlorate and potassium chlorate, and potassium perchlorate, and thus by extension, acetone and urea. Increased Threat At an increased threat level, large-volume sales of the following chemicals should be documented by record keeping that requires the purchaser to produce identification and the seller to maintain records of the transaction for a specified period of time in a form accessible to law enforcement: bulk nitrate fertilizers, concentrated nitric acid, concentrated hydrogen peroxide, nitromethane, sodium nitrate, potassium nitrate, sodium chlorate, potassium chlorate, and potassium 48 Richard Strobel, ATF, personal communication, September 9, 1997. 49 Richard Strobel, ATF, testimony to the committee, March 24, 1997.
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Containing the Threat from Illegal Bombings: An Integrated National Strategy for Marking, Tagging, Rendering Inert, and Licensing Explosives and Their Precursors perchlorate. The additional cost of this requirement has not been assessed, but the committee anticipates that it would be small since much of the required record keeping is already being done. The principal cost increase is expected to occur at the distributor level. Greatly Increased Threat If use of short-list chemicals in improvised explosives were to become common, then requiring licenses for sellers and permits for users would probably become feasible at all sales levels. Costs to implement requirements for licenses and permits could range from slight to considerable, and in some cases could result in market disruption. For instance, if the cost of nitric acid for small plating and etching facilities were increased significantly as a result of more stringent requirements for its purchase, alternative products and materials might become competitive and cause business failures in then-current markets. Under conditions of extreme threat, sales of the chemicals could be banned in all but carefully controlled markets. Summary of Recommended Controls The committee's recommendations for controls on access to precursor chemicals are summarized in Table 5.3. The full recommendations are given in the final section of this chapter. Costs and Benefits of Recommended Controls50 The costs of implementing the committee's recommended controls on chemical precursors would increase with increasing threat level and would be incurred by law enforcement, industry, and consumers. Increased costs to consumers are not discussed here. The committee notes that the time and resources available to it did not permit a rigorous analysis of the costs associated with each of the options for controls, which would have to take into account how the chemicals flow through the economy, including annual production, import and export statistics, the number of legitimate uses of the chemical, the number of retail outlets, and so on. The committee urges that such a rigorous analysis be done before implementation of any controls, and that the affected industries participate fully in the analysis. 50 The potential cost impacts of uniform national regulations for the purchase of explosives are discussed above in the section titled "Adopting Uniform National Regulations for the Purchase of High Explosives in the United States."
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Containing the Threat from Illegal Bombings: An Integrated National Strategy for Marking, Tagging, Rendering Inert, and Licensing Explosives and Their Precursors TABLE 5.3 Recommened Controls For Short-List Precursors at Various Threat Levels Precursor Threat Level Bulk Ammonium Nitrate and Other Nitrate Fertilizers Packaged Ammonium Nitrate and Other Nitrate Fertilizers Sodium Nitrate Potassium Nitrate Nitric Acid (concentrated) Nitromethane Hydrogen Peroxide (concentrated) Sodium Chlorate Potassium Chlorate Potassium Perchlorate Current Strengthen voluntary efforts Make retail fertilizers nondetonable or require purchaser identification and seller record keeping Continue currently acceptable procedures Increased Require purchaser identification and seller record keeping Use controls indicated for current threat level Require purchaser identification and seller record keeping Greatly increased Require licenses for sellers and permits for purchasers Make retail fertilizers nondetonable or require licenses for sellers and permits for purchasers Require licenses for sellers and permits for purchasers or, if necessary, ban sales in certain markets
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Containing the Threat from Illegal Bombings: An Integrated National Strategy for Marking, Tagging, Rendering Inert, and Licensing Explosives and Their Precursors Law Enforcement If the "Be Aware for America" program were strengthened as recommended, law enforcement at both local and national levels would incur increased costs for the required additional personnel and training. At increased threat levels, requirements that sellers have licenses and purchasers have permits for selected chemicals could lead to substantially greater use of law enforcement personnel and resources at all levels. The benefits to law enforcement of the recommended controls would be substantial. The availability of sales and distribution record trails for critical bomb-making materials would provide investigators with after-the-fact information as well as early warnings of illicit activity. Furthermore, if criminals were aware that sellers were actively engaged in record keeping and efforts supporting detection, they might be less likely to use these materials for illegal activities. In that case, law enforcement officers would be relieved of the burden of investigating significant numbers of incidents involving the use of precursor chemicals, especially "nuisance" bombs created by individuals experimenting for amusement. Industry Additional costs to industry resulting from implementation of the recommended controls would vary from negligible to substantial, depending on the type of control. Requiring purchaser identification and seller record keeping. For most large transactions involving bulk chemicals, normal records would be sufficient, although some additional costs might be incurred for filing and storing records of transactions. For small retail distributors, the recommended record-keeping requirements might be new but likely would entail addition of information to already existing required records of financial transactions. Costs could be reduced if records were not required for purchases below certain threshold amounts. Requiring licenses for sellers and permits for users. Costs would vary significantly depending on the requirements for obtaining a license or permit. Requiring that chemicals sold in certain markets be nondetonable . Assuming the availability of a reliable test of detonability and acceptable inerting technologies, industries in the affected markets would incur an initial cost for testing the product and reformulating it if necessary. Most existing formulations of packaged AN fertilizers sold at retail outlets are mixtures of AN with other fertilizer ingredients that would test as nondetonable, and so market disruptions would likely be minimal. A widely accepted test of detonability is essential to protect industry from
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Containing the Threat from Illegal Bombings: An Integrated National Strategy for Marking, Tagging, Rendering Inert, and Licensing Explosives and Their Precursors liability suits of the kind filed against the ammonium nitrate industry in the wake of the Oklahoma City disaster (Hassan, 1996). Banning sales in certain markets. This approach is clearly the most expensive and potentially disruptive option for controlling access to high-risk chemical precursors. Some shifting to the use of urea in place of ammonium nitrate as a fertilizer might occur if detonable packaged forms of AN were banned from retail markets, although a shift toward increasing use of urea, driven by urea's lower manufacturing costs and higher nitrogen content, has already been reported.51 LEGAL ISSUES Because the committee's recommendations in this chapter are mostly regulatory rather than technical, their legal ramifications are perhaps more readily apparent. For example, laws enacted at either the federal or state level (or both) to track the sale and purchase of explosive materials and certain precursor chemicals may affect the civil liability of those in the explosives and relevant chemical industries. They also may precipitate lawsuits challenging the constitutionality of such measures. Obviously, the outcome of these liability and regulatory issues will significantly affect the costs and benefits associated with the recommended controls. Thus, a brief analysis of these issues is provided below. A more extensive discussion appears in Appendix G. Civil Liability Even without a regulatory statute, the makers and suppliers of explosives and precursor chemicals are subject to a number of legal duties that determine how such commodities are to be constructed, handled, and distributed. Anyone who participates in moving explosives or hazardous precursor chemicals through the chain of distribution may be held liable under product liability, ultrahazardous, or abnormally dangerous activity theories if their goods expose others to unreasonable or unusual risks of harm (see Appendix G, pp. 279-28052). Likewise, retailers 51 Increased use of urea is described in "Ammonium Nitrate," Chemical Product Synopsis, Mannsville Chemical Products Corporation, Adams, N.Y., April 1996. Although nitrogen fertilizers are broadly substitutable if applied properly, the best choice in a particular case depends on factors such as type of crop, soil conditions, climate, farming techniques, and cost. To be usable by most plants, nitrogen must be in the form of nitrate. Thus, ammonium nitrate is more quickly taken up than is urea, whose nitrogen must be converted to nitrate by soil microorganisms—a process that can take several weeks (IFDC, 1997, p. 5-4). 52 Note that page numbers in parentheses in this "Legal Issues" section cross-reference related, more detailed discussion in Appendix G, "An Analysis of the Legal Issues Attendant to the Marking, Inerting, or Regulation of Explosive Materials."
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Containing the Threat from Illegal Bombings: An Integrated National Strategy for Marking, Tagging, Rendering Inert, and Licensing Explosives and Their Precursors may be required to pay damages if they sell such dangerous instrumentalities to persons who they know, or have reason to believe, will deploy the devices in a harmful manner (pp. 279-280). Sellers who voluntarily undertake to screen buyers of explosive materials (like the merchants currently participating in the Fertilizer Institute's "Be Aware for America" program) may be found negligent for failing to do so properly, although for policy reasons courts have been reluctant to impose liability in such cases (pp. 280-281). Should the committee's regulatory proposals be enacted into law, those in the business of marketing explosive products and their constituent chemicals would face additional civil responsibilities. Failure to comply with regulatory controls would likely be considered conclusive, presumptive, or persuasive evidence of unreasonable conduct and could be used to sustain a claim of negligence per se (pp. 281-282). Conversely, while a party's compliance with a statute or regulation may improve his or her chances of avoiding liability, it usually will not be dispositive (pp. 281-282). Constitutionality of Proposed Regulatory Controls As in the case of the sales restriction on packaged ammonium nitrate discussed in Chapter 4, the committee's recommendations here (i.e., to extend the present federal licensing scheme to reach purely intrastate purchases and to institute positive purchaser identification and other controls on retail sales of concentrated nitric acid, high-strength hydrogen peroxide, and pure nitromethane) may come under constitutional attack. If adopted by the federal government, such regulations will be sustained only if they fall within the delegated authority of Congress, and even then, only if they treat all regulated parties fairly. As discussed in Chapter 4, Congress has the authority to regulate any matter that "substantially affects" interstate commerce (Appendix G, pp. 283-288). Recent U.S. Supreme Court case law suggests both that the activity affected must be commercial in nature and that it must not be an area of traditionally local concern. The profit-making business of explosive materials manufacture, distribution, and sale clearly seems to be "commercial." Because most states already regulate this industry, however, it is more debatable whether the distribution of explosives is a matter of "traditionally local concern." Nevertheless, given concurrent federal regulation of the industry and the difficulty of solving the terrorism problem at the local level—since terrorists may simply cross state lines to a state where regulation is more lax—there is a good argument that the matters regulated are not of local concern. Furthermore, the serious impact on medical costs, national fears of interstate travel, and lost man-hours from even a single serious incident of terrorism suggest that the free availability of legally obtained explosive materials and their precursors does "substantially affect" interstate commerce. Thus, so long as Congress does not attempt to compel state or local governments to administer its regulatory programs (a tactic that would run afoul of the Tenth
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Containing the Threat from Illegal Bombings: An Integrated National Strategy for Marking, Tagging, Rendering Inert, and Licensing Explosives and Their Precursors Amendment), each of the committee's recommended controls, including the uniform national regulations on the purchase of explosives, should survive constitutional scrutiny (pp. 288-291). These proposals also seem sustainable on fairness grounds. Because none of the suggested regulations infringe fundamental rights, courts will uphold these measures if they are supported by any legitimate governmental objective and if the means chosen are rationally related to that end. There seems little doubt that curbing criminal access to explosive materials is a legitimate goal of government, and that placing identification, record-keeping, licensing, or permit restrictions on the sale and acquisition of such dangerous commodities is a rational way of combating the problem of bomb-blast terrorism. Thus, should the proposed regulations be challenged on grounds of equal protection (pp. 292-294), substantive due process (pp. 294-295), or uncompensated taking (pp. 295-297), such fairness arguments are likely to fail. Finally, the committee also recommends that uniform national regulations for the purchase of explosives be developed and implemented. One way of achieving uniformity is for the federal government to enact legislation that would preempt all additional or different state laws. Thus, industry would have to worry about only one scheme: the federal one. So long as Congress is clear about its intention, preemption of state laws would likely be constitutionally permissible under the supremacy clause. CONCLUSIONS AND RECOMMENDATIONS Conclusions Compared with some countries, the United States has relatively lax federal controls on the purchase of explosives. Although some states do have strict purchasing requirements, many states allow individuals to purchase explosives without background checks or adequate verification of their identity. Many high explosives used in bombings are stolen. Common targets of theft are believed to be small end users, many of whom may not have the legally required magazines for storing high explosives securely. Explosives stolen from these end users are available to bombers for use as detonators, boosters, or as the main charge in improvised bombs. Effective bombs can be synthesized from a variety of readily available chemical precursors. Those chemical precursors that pose the greatest threat in the United States were identified by the committee according to the following criteria:
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Containing the Threat from Illegal Bombings: An Integrated National Strategy for Marking, Tagging, Rendering Inert, and Licensing Explosives and Their Precursors The chemical is available in substantial quantities (e.g., on the order of 100 pounds or more); The chemical is an essential component of an explosive system in significant use or with the potential for significant use, where significant use is defined in terms of deaths, injuries, and property damage; and The chemical is a critical precursor, i.e., one not easily replaced in generating an explosive system. It is not feasible to control all possible chemical precursors to explosives. Efforts to control access should focus on the chemicals identified by the committee as current candidates for control in the United States. These chemicals are ammonium nitrate, sodium nitrate, potassium nitrate, nitromethane, concentrated nitric acid, concentrated hydrogen peroxide, sodium chlorate, potassium chlorate, and potassium perchlorate. Urea and acetone also meet the criteria for control but are adequately controlled if access to nitric acid and hydrogen peroxide is limited. This list of chemicals may change over time if the materials preferred for bomb making change. Incremental increases in controls on a few carefully selected precursor chemicals can help keep these chemicals out of the hands of bombers. Sales of bulk chemicals may be controlled at a level different from that applied to retail sales. Many models exist for controlling access to explosive precursor chemicals. Perhaps the most relevant are the regulatory controls placed on chemicals used in the synthesis of illegal drugs. Also, the voluntary "Be Aware for America" program53 established by the fertilizer industry to keep ammonium nitrate and other explosive fertilizer chemicals out of the hands of bombers appears to be a positive step, but it must be improved by more rigorous implementation and stronger interaction with law enforcement. Recommendations Criminal access to explosives in the United States should be made more difficult by the following legislative actions: Creating uniform national regulations for the purchase of commercial high explosives. At a minimum, these regulations would extend current interstate 53 The program and publicity materials were developed collaboratively in 1995 and are described in a brochure, "Be Aware for America: 1995," developed by the Fertilizer Institute; the Bureau of Alcohol, Tobacco, and Firearms; the Association of American Plant Food Officials; and the Agricultural Retailers Association.
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Containing the Threat from Illegal Bombings: An Integrated National Strategy for Marking, Tagging, Rendering Inert, and Licensing Explosives and Their Precursors controls (i.e., federal requirements for licensing and verification of compliance with storage requirements) to cover intrastate explosives transactions; and Giving the Bureau of Alcohol, Tobacco, and Firearms the authority and resources to ensure that all purchasers of high explosives use secure magazines if the explosives are to be stored. The options below should be considered for controlling criminal access to the precursor chemicals listed by the committee: ammonium nitrate, sodium nitrate, potassium nitrate, nitromethane, concentrated nitric acid, concentrated hydrogen peroxide, sodium chlorate, potassium chlorate, and potassium perchlorate. The most appropriate option for control depends on the perceived level of threat. Options for consideration include the following: Establishing voluntary industry controls on sales similar to the ''Be Aware for America" program; Requiring that purchasers show identification and sellers keep records of transactions; Requiring that sellers have licenses and that purchasers obtain permits; Making the listed chemicals nondetonable by addition of certain additives; and Banning sales of listed chemicals in certain markets. At the current level of threat, the committee recommends the following: The "Be Aware for America" program for sales of bulk nitrate fertilizers should be strengthened by more rigorous implementation and by establishing partnerships with local and national law enforcement agencies. Packaged ammonium nitrate-based fertilizers typically sold in retail outlets should be sold only as nondetonable mixtures (as defined by a standard test protocol developed in response to Recommendation 9). Alternatively, the purchaser should be required to produce identification and the seller to keep records of the transaction. Additional controls should not be placed on sales of any other precursor chemical at the present threat level. At an increased threat level, the committee recommends the following additional controls: Purchasers of bulk nitrate-based fertilizers and large quantities of sodium nitrate, potassium nitrate, nitromethane, concentrated nitric acid, concentrated hydrogen peroxide, sodium chlorate, potassium chlorate, and potassium perchlorate
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Containing the Threat from Illegal Bombings: An Integrated National Strategy for Marking, Tagging, Rendering Inert, and Licensing Explosives and Their Precursors should be required to produce positive identification. Sellers should be required to keep records of sales transactions for a specified period of time. At greatly increased levels of threat, the committee recommends the following additional controls: Sellers of bulk detonable nitrate fertilizers should be required to have licenses, and purchasers should be required to obtain permits. Packaged ammonium nitrate-based fertilizers typically sold in retail outlets should be sold only as nondetonable mixtures (as defined by a standard test protocol developed in response to Recommendation 9). Alternatively, sellers should be required to have licenses and purchasers should be required to obtain permits. Sellers of sodium nitrate, potassium nitrate, nitromethane, packaged concentrated nitric acid, concentrated hydrogen peroxide, sodium chlorate, potassium chlorate, and potassium perchlorate should be required to have licenses and purchasers should be required to obtain permits. Alternatively, sales of these chemicals in some markets should be banned. The list of chemical precursors to be controlled should be reevaluated periodically to correlate with ongoing assessment of the level of threat posed by illegal use of explosives. Bombers have demonstrated that they can change their tactics in response to the implementation of controls or shifts in the availability of particular chemicals or precursors.
Representative terms from entire chapter: