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February 2, 2007

IP/CNPPD/

Mr. Dennis Deziel

Mail Stop 8610

Department of Homeland Security

Washington, D.C. 20528-8610

RE: Department of Homeland Security Advance Notice of Rulemaking:
Chemical Facility Anti-Terrorism Standards; DHS-2006-0073

Dear Mr. Deziel:

The International Dairy Foods Association (IDFA) is pleased to submit
these comments on the Department of Homeland Security\'s (DHS) advance
notice of rulemaking to establish a chemical facility security program.
See 71 Fed. Reg. 78276 (Dec. 28, 2006). The International Dairy Foods
Association represents the nation\'s dairy manufacturing and marketing
industries and their suppliers, with a membership of 530 companies
representing a \$90-billion a year industry. IDFA is composed of three
constituent organizations: the Milk Industry Foundation (MIF), the
National Cheese Institute (NCI) and the International Ice Cream
Association (IICA). IDFA\'s 220 dairy processing members run more than
600 plant operations, and range from large multi-national organizations
to single-plant companies. Together they represent more than 85% of the
milk, cultured products, cheese and frozen desserts produced and
marketed in the United States. IDFA can be found online at
[www.idfa.org](outbind://17/www.idfa.org).

IDFA and its membership take homeland security issues seriously, and we
have repeatedly demonstrated our high level of cooperation with the
government in countless activities, including taking a leadership role
in the Food/Agriculture Sector Coordination Council (FASCC),
participating in the cross-sector council (commonly known as PCIS),
participating in numerous vulnerability assessments under the Strategic
Partnership Program on Agroterrorism (SPPA), participating in several
study groups under the National Infrastructure Advisory Council (NIAC),
participating in TOPOFF3, as well as collaborating with DHS\'s Science
and Technology Directorate, DHS\'s Centers of Excellence and DHS\'s
HITRAC unit, and participating in other activities with FDA, USDA, EPA,
DOD, FBI, state and local governments, and others. In many respects,
IDFA and its staff have acted as DHS\'s greatest advocate in food and
agriculture matters.

As may be apparent from the lengthy list of activities above, we have an
enormous amount of respect for the department and its staff, and we have
always endeavored to cooperate and assist DHS in the accomplishment of
its mission \-- protecting the homeland. IDFA greatly appreciates all
the hard work and diligent efforts that DHS has expended on the
promulgation of chemical security rules and the countless other
activities DHS has pursued on behalf of this nation. The partnership
that has been created between the government and the nation\'s critical
infrastructure is a remarkable accomplishment.

While we have immense respect for DHS and the partnership, the possible
inclusion of food and dairy operations within the scope of a chemical
security rule based on their use of anhydrous ammonia for refrigeration
is of great concern to our members. Our concern stems from the fact that
anhydrous ammonia is a chemical regulated under the Environmental
Protection Agency\'s Risk Management Program (RMP), and because DHS
proposes to base its chemical security rules at least in part on the RMP
program. Depending on the approach DHS chooses to define the scope of
this rule, DHS could potentially undermine countless positive dairy and
food industry actions and diminish its own effectiveness and credibility
in food defense matters.

In particular, IDFA does not believe that the dairy or food processing
industries should be subject to the chemical security rules because
dairy and food processing facilities are not high-risk facilities as
contemplated by Congress, and [we therefore urge DHS to promulgate a
rule that expressly excludes anhydrous ammonia in refrigeration
systems.]{.underline} In addition to information provided herein,
IDFA\'s belief is supported in the congressional record by remarks made
by Senator Larry Craig regarding dairy operations. For your benefit, we
have attached Senator Craig\'s remarks to this document as Attachment A.

IDFA\'s basis for exclusion is presented in the following sections, but
it can be summarized as follows. As Congress mandated, the rule should
be applied only to high-risk facilities. High-risk facilities are those
facilities which present a significant risk to human health, national
security or the economy. Dairy and food processing facilities, despite
the fact that they have ammonia refrigeration systems, do not meet any
of these three criteria and cannot logically be deemed to be high-risk.

[Ammonia Refrigeration Systems Do Not Present the Requisite Human Health
Risk]{.underline}

Ammonia refrigeration systems used in food and dairy processing are not
high-risk as contemplated by Congress because an attack on those systems
would not result in a catastrophic release of ammonia.

We understand that DHS is considering the use of data and information
related to the EPA\'s RMP program and speculate DHS is contemplating
drawing information from the worst case scenario offsite consequence
analysis that the RMPs require. However, those worst case scenarios were
generated using artificial and contrived assumptions, in particular,
that industry was forced to imagine a complete release of all ammonia
from the entire refrigeration system in a 10 minute period. According to
the International Institute of Ammonia Refrigeration (IIAR), that sort
of release is unrealistic.

Ammonia refrigeration systems are complex and involve many vessels,
valves, various pieces of enigmatic equipment and miles of pipe located
both inside and outside of a facility. In addition, there are release
mitigation protocols and devices throughout the system that are
specifically designed to minimize a negative situation. Further, EPA
under its RMP program and OSHA under its Process Safety Management (PSM)
rule already aggressively ensure compliance with their comprehensive
rules. A breach in one or more areas of an ammonia refrigeration system
is highly unlikely to release the entire ammonia charge. If it were to
do so after an extended period of time, the ammonia would continually
dissipate because ammonia exists as a vapor at atmospheric conditions;
ammonia vapor is lighter than air and tends to rise when released into
the atmosphere.

Although a breach in an ammonia refrigeration system would be a serious
problem onsite, it clearly is not the type of high-risk situation that
Congress intended DHS to focus its limited resources on. Further, when
one contemplates how a breach might be perpetrated, the situation
becomes even more unrealistic and it ultimately raises interesting
questions. To begin, we ponder whether DHS envisions a force-on-force
assault of the facility or rather that the universal assailants (UA)
have compromised the facility via a covert operation? While it is
curious to speculate about the potential concern, regardless of form, it
would appear that considerable planning would likely be required either
way. This notion is consistent with the message that DHS, the FBI and
the intelligence community have repeatedly presented to the private
sector \-- our enemies rely upon extensive and intense planning and
surveillance before they strike. If extensive planning is in fact the
modus operandi of the UA, IDFA opines that during the considerable
planning phase the UA will likely reach the conclusion that the target,
be it a food or dairy plant, is not worth the effort when the outcome is
at the very best speculative and unlikely to result in a dramatic and
disastrous effect.

For the purposes of these comments though, we do not need to identify
the form of the attack covert or otherwise, but should focus some
attention on how it might actually be carried out. In order to cause a
release of ammonia, valves or vessels will need to be breached and in
most cases alarm systems will also need to be overcome. Merely opening a
valve will be insufficient; instead a UA will need to breach the system,
ideally in multiple locations, with brute force or explosives. If the UA
uses brute force (e.g. a sledge hammer, pick axe) to crack, rupture or
puncture valves, vessels or pipes, the UA will likely accomplish minimal
release and die, or otherwise be overcome by the escaping ammonia within
their immediate vicinity. During the extensive planning for this form of
attack, the UA will learn that the injuries suffered by being bathed in
anhydrous ammonia are unpleasant.

On the other hand, should the UA use multiple explosive devices, they
would burn off a significant portion of the ammonia cloud the UA would
hope to release. While anhydrous ammonia is classified by the DOT as a
non-flammable gas, ammonia vapor is flammable over a narrow range of 16%
to 25% by volume in air and, combined with a strong ignition source, it
will burn. In essence, this means that an explosive device (probably a
strong ignition source) would likely cause the ignition of the ammonia,
which would then combust and cease to exist for the intended purpose of
cloud generation. For clarity and the record, this should not be
construed as potentially creating an explosion or detonation; by
analogy, wood can burn, too, but it does not explode. In addition to
destroying the precise substance that is being sought after for release,
one needs to question why a UA who has an explosive device(s) would
choose to use such valuable devices in this fashion when there are
countless traditional chemical facilities and other high-value targets
that would result in far more certain and devastating consequences. This
concept would equally apply to a situation where an adversary utilized a
vehicle borne improvised explosive device (VBIED).

IDFA does not believe that an attack on a dairy or a food facility with
the intent to release an ammonia cloud is likely or that it could result
in significant offsite consequences. For these reasons, these facilities
do not qualify as high-risk. We offer no opinion as to the
appropriateness of regulating security at other types of facilities that
store or use large quantities of anhydrous ammonia, however, as they are
beyond our expertise.

[National Security and Economic Harm]{.underline}

DHS\'s proposed language interprets the statutory phrase \"present\[s\]
high levels of security risk\" to apply to a facility that would present
a high risk of significant adverse consequences for human life or
health, national security or critical economic assets if subjected to a
terrorist attack. The foregoing section of these comments addressed the
human health or life aspects; this section addresses national security
and critical economic assets.

First, IDFA cannot envision a situation where an attack on the ammonia
refrigeration systems of a single food or dairy plant will result in
harm to the national security. While it is true that the US government,
including the military, relies upon a safe and stable food supply, we do
not believe that the food supply can be disrupted by attacks of the
nature envisioned by the rule. We base that belief on two significant
reasons: easy detection of ammonia contaminated food and an abundant
number of food and dairy facilities. If DHS\'s concern is that an attack
at a food facility could result in food contaminated with deleterious
substances (e.g. ammonia) reaching military bases or other sensitive
government installations or even the general public, DHS should
wholeheartedly dismiss that concern. Ammonia has a pungent odor; any
food contaminated with ammonia is readily detectable. That odor alone
will prevent those goods from moving in commerce and certainly will make
consumption by a consumer highly unlikely. Further, any products which
contain ammonia residues would be considered adulterated under the Food
and Drug Administration\'s (FDA) rules, and it would be illegal to offer
them for sale or consumption \-- they would instead be collected and
destroyed.

When we analyze the potential concern in terms of disruption of supply
lines to the government, military or general public, we can readily
dismiss that concern as well. The introductory paragraph of these
comments clearly establishes that there are a significant number of
dairy processing plants in this country, approximately 600 \-- a loss of
the supply from one or more will quickly be covered by a supply coming
from unaffected facilities. What holds for dairy also holds for the food
industry as a whole. As of June 8, 2006, the Food and Drug
Administration\'s (FDA) database of food facilities contained 290,488
facilities that manufacture/process, pack or hold food for human or
animal consumption (123,925 domestic and 166,563 foreign facilities). No
one dairy or food facility has any sort of significant market share or
dominance that, if taken out, would result in a disruption of supply
lines. Given the sheer numbers of dairy and food facilities, even
multiple simultaneous attacks would not change the conclusion.

Second, for essentially the same reasons that we dismiss the national
security concern, we can dismiss any concern about disastrous economic
harm to the American economy, or a segment thereof. American businesses
and business people are resourceful and resilient; when a situation
occurs that reduces the supply of a particular good, the affected entity
will immediately be taking steps to supply its customers\' needs via
alternative sources to preserve its business relationships, and many
others will be waiting to seize any opportunity that remains. Finally,
as stated above, no individual dairy or food facility has a significant
market share which could impact the nation\'s economy.

Given that terrorists cannot significantly impact the supply of dairy
and food products via an attack on dairy or food plant anhydrous ammonia
refrigeration systems and that there is no significant possibility of
Americans consuming ammonia contaminated dairy and food products, IDFA
believes that there are no national security or critical economic assets
interests that can be protected or served by including dairy and food
operations in the proposed rule.

[Resources are Finite - Comparative Risk Must Be Utilized]{.underline}

Given that all government and private sector resources are finite, using
and perhaps wasting resources in pursuit of enhancing security
associated with ammonia refrigeration systems means that those same
resources will be unavailable for security enhancements in other areas.
Secretary Chertoff and other senior DHS officials have stated on
numerous occasions that we cannot possibly protect the American public
from all hazards and all threats. Secretary Chertoff stated on January
9, 2007, \"Simply put, our goal is to put our resources where the risk
is the greatest, and where the funds will have the most impact.\" Last
year, the Secretary stated in prepared remarks given on March 16, 2006,
at Washington University\'s Homeland Security Policy Institute, \"The
plain truth is that there is no 100-percent solution. We cannot protect
every person in every place at every moment. We cannot look in every
container and every box.\" In essence, the Secretary has clearly
identified the concept of risk management including the application the
comparative risk. Since we cannot protect against all hazards, we must
rationally choose which ones to focus our attention on. Conversely, we
should not focus resources where they will do little or no good.

Given the foregoing comments, IDFA suggests that DHS compare the ammonia
refrigeration system attack to the countless other scenarios that have
been red-teamed, contemplated, analyzed, scrutinized or envisioned.
Rhetorically, do we want the food industry to spend its time and energy
focusing on refrigeration, or should we spend our resources on other
more meaningful food defense activities that are consistent with the
Sector Specific Plans that we collaboratively developed with DHS, FDA
and USDA? Given that this is a mutually resource-utilizing activity, we
also question whether DHS wants to spend its limited resources focusing
on refrigeration. The choice will ultimately be DHS\'s, but it is
imperative for DHS to understand it is a choice with ramifications; to
extrapolate from the above quote from the Secretary, the food and the
dairy industry \"cannot look in every container and every box\".

[DHS Needs to Maintain Credibility with the Food/Agriculture
Sector]{.underline}

In addition to potentially siphoning off valuable DHS and private sector
resources by subjecting the food and dairy industry to the chemical
security regulations, such inclusion sends mixed messages to an already
skeptical private sector. IDFA has substantial concerns that subjecting
the food and dairy industry to what we view as an unnecessary activity
and burden will ultimately undermine the overall Food and Agriculture
Sector\'s partnership-based efforts at enhancing the security of our
critical infrastructure and we urge DHS not to discount or dismiss this
very real concern. While it is difficult to imagine that inclusion of
dairy under this rule would hinder the solid relationship that IDFA
enjoys with DHS, there are many others in the food and agriculture
sector that are clearly at risk of being alienated. In order for the
partnership to succeed, it is imperative for DHS to avoid giving
entities an excuse to disregard or dismiss collaborative participation
with the department.

In addition to these submitted comments, IDFA has worked with the Food
Industry Environmental Council (FIEC) to draft comments that address a
number of issues, such as but not limited to performance standards,
coverage determinations and preemption. We respectfully ask DHS to give
consideration to those comments, as well as the comments that are being
independently drafted and submitted by IIAR. We hope that the
information supplied in these comments, and the information submitted
with our colleagues at FIEC and by IIAR, will better inform the process
of implementing an effective chemical security program.

In closing, we urge DHS not to include facilities under the chemical
security rules on the basis of the existence of an ammonia refrigeration
system. If you have any questions, please call me at (202) 220-3554.

Sincerely,

Clay Detlefsen

Vice President & Counsel, IDFA

\[Chair, Food/Agriculture Sector Coordinating Council (FASCC)\]

**[Attachment A]{.underline}**

***Remarks made by Senator Larry Craig on the inappropriateness of the
application of chemical security rules to the dairy industry***.

Senator Craig is currently the Ranking Member of the Committee on
Veterans\' Affairs and a member of the Committee on Energy and Natural
Resources, where he serves on the Subcommittee on Public Lands and
Forests, Subcommittee on Energy and the Subcommittee on Water and Power.
With his appointment to the Senate Appropriations Committee, Senator
Craig oversees funding on the following subcommittees: Agriculture,
Rural Development, and Related Agencies; Energy and Water Development;
[Homeland Security]{.underline}; Labor, HHS, and Education; Military
Construction and Veterans Affairs; and Interior and Related Agencies.

\[From the CONGRESSIONAL RECORD - SENATE, page S10629, September 29,
2006\]

Mr. CRAIG: Mr. President, let me first express my appreciation for the
hard work of the conferees in approving the legislation we will vote on
shortly that contains an important provision addressing the security of
our Nation's chemical infrastructure.

I believe it is very important that our chemical infrastructure have
safeguards for the use and storage of chemical manufacturing and
distribution. There is no doubt that it is vital to our efforts to
ensure national security and the safety of the public. However, we
should remind ourselves that many in the regulated community have
already taken proactive actions, especially since September 11, 2001, to
address threats to their facilities and operations, and have adopted a
number of safeguards.

It is my hope that Congress in its oversight role, and the Department of
Homeland Security in its administrative and regulatory role, takes those
efforts into account and ensures that any new protections and
regulations are workable and appropriate.

I am concerned that while the intent of the chemical security
"compromise" in this conference report is to address security concerns
associated with high-risk industrial chemical use, the bill may also
affect many low-risk facilities at a disproportionate level. One of
those low-risk industries that will certainly be affected is our
domestic dairy industry.

My State of Idaho is a leader in milk production and processing, and our
dairy industry is a major economic force. The industry employs the
latest technologies to provide high quality products to our consumers
and trading partners. What most people do not know is that dairy
farmers, dairy cooperatives, and milk processors use anhydrous ammonia
as a cooling agent to safely store milk and milk products as it makes
its way from farm to grocery store shelf.

Many in the food industry consider anhydrous ammonia to be one of the
most efficient refrigerants available and in a relatively low-risk
process. In accordance with Government regulations and guidelines, many
dairy facilities now use anhydrous ammonia refrigeration systems after
phasing out other chemicals that are less environmentally friendly.

The dairy industry in Idaho and nationwide has been extremely diligent
in taking actions to enhance the safety and security of their
facilities. Those actions include regularly working with the Department
of Homeland Security under Presidential Directives 7 and 9 along with
regularly conducted vulnerability assessments with the Food and Drug
Administration, FDA, the Department of Homeland Security, DHS, the
Federal Bureau of Investigation, FBI, and State and local officials.

Food facilities were some of the first industries we focused on in our
fight against terrorism. This sector of our economy is currently
regulated under the Public Health Security and Bioterrorism Preparedness
and Response Act of 2002 under the jurisdiction of the FDA. The
anhydrous ammonia in the refrigeration systems at these facilities is
already regulated by the Environmental Protection Agency, EPA, under its
Risk Management Program, RMP, regulations and by the Occupational Safety
and Health Administration, OSHA, under its Process Safety Management,
PSM regulations.

I believe, that the intent of including language in this conference
report to strengthen the safety of our chemical production
infrastructure was to focus on high-risk chemical plants. However, the
language in the bill could impose serious burdens on what would normally
be considered low-risk operations like dairy farms, cooperatives, and
milk processors.

Clearly, there is substantial interest in ensuring the security of our
Nation's chemical infrastructure while not forcing onerous and
duplicative regulations on one of our most important food industries. I
hope some common sense will prevail on this issue, and I plan to
continue to work with my colleagues on both sides of the aisle and the
administration to see that happen.