"It was in no sense a new product when the program for its manufacture was embarked on by the United States in May 1946."

August, and November 1947, long after Texas City disaster occurred. (See also p. 15, supplemental statement, Department of Justice.)

The Supreme Court again held in majority opinion: "The FGAN was consigned to the French Supply Council at Texas City by Government bills of lading" (p. 301, hearings of this committee).

As to control, the Supreme Court said: "This fertilizer has been produced and distributed at the instance, according to specifications, and under the control of the United States" (p. 297, hearings of this committee, 346 U. S. 15). A minority opinion of the Supreme Court, Justice Jackson speaking, stated: "This was a manmade disaster. It was in no sense an act of God. The fertilizer had been manufactured in Government-owned plants, at the Government's order, and to its specifications. It was being shipped at its direction as part of its program of foreign aid. The disaster was caused by forces set in motion by the Government, completely controlled or controllable by it. Its causative factors were far beyond the knowledge or control of the victims. They were not only incapable of contributing to it but could not even take shelter or flight from it" (p. 328, hearings before this committee).

Floyd J. Calkins, superintendent of Emergency Export Corp., Nebraska ordnance plant, testified, "All of our shipping instructions were given to us by the Government. It was Government material and we made out bills of lading on Government shipping documents according to instructions at the time" (record, p. 8287). Again stating, "Ammonium nitrate fertilizer and percentage of nitrogen in cubic feet. That was all. That description was given us by the Ordnance Department" (record, pp. 6367-6368).

G. N. Pearre, industrial engineer for Ordnance Department, Joliet, Ill., in control of fertilizer program as Chief of Operations, testified, "Ammonium nitrate and FGAN are substantially different primarily because of the carbonaceous materials in the form of PRP or Wax-B which puts it in a different category from pure ammonium nitrate" (record, pp. 4620-4621). Maj. Gen. Everett S. Hughes, Chief of Ordnance, at the time of manufacture of FGAN testified, "Ammonium nitrate fertilizer is a different animal from a pure ammonium nitrate" (record, p. 4548). Maj. Edwin J. Grayson, commanding officer, Nebraska ordnance plant, wrote requesting waiver of ordnance safety manual section 10, dealing with manu

"It has never been and is not today considered an explosive for transportation purposes, and when shipped it was properly identified 'ammonium nitrate' (an oxidizing material) in strict compliance with Interstate Commerce Commission governing regulations."

facture of FGAN in method of shipment and stated July 24, 1946, "Consideration must be given to the fact that the nitrate before leaving the ammonium nitrate line will be coated with a mixture of clay, petrolatum, rosin, and paraffin and will be in pellets of about 35 mesh. It is shipped as a fertilizer rather than as explosive" (record, vol. 25, pp. 214, 21449). [Italic supplied.]

Arthur Miller, head of manufacturing and research at TVA, testified that FGAN was first manufactured experimentally in 1943 by TVA and Hercules Powder Co. "and actually had our first suggestion from the Hercules Powder Co." (record, p. 13413), again stating, "And as a result of these discussions there were suggestions made to us that we look into a patent that the Hercules Powder Co. had on the treatment of Ammonium nitrate *** we did and as a result of that patent we first tried the use of petrolatum * * * as I recall it 1 percent of petrolatum on the ammonium nitrate grains" (record, p. 13413). The Supreme Court majority opinion held "FGAN's basic ingredient was ammonium nitrate, long used as a compo nent in explosives. Its adaptability as a fertilizer stemmed from its high free nitrogen content. Hercules Powder Co. had first manufactured a fertilizer compound in this form on the basis of Cairn's Explosive, Patent No. 2211738 of August 13, 1940. The Cairn's process contemplates a product substantially identical to the Texas City FGAN. The process was licensed to the United States" (p. 300, hearings this committee, 346 U. S. 15). [Italic supplied.]

Hercules Powder Co., the owner of the Cairn's patent, only began shipping FGAN 2 months before TVA tried it out in 1943 (record, p. 13438).

After Texas City, the President of the United States appointed an Interagency Committee for Water Transportation of Ammonium Nitrate and Ammonium Nitrate Fertilizer. This committee issued its part III report on April 7, 1954. It found as a part of that report, "FGAN is the organic-coated type of material which exploded at Texas City. It contains a small quantity (3 to 4 percent) of inert claylike material and a still smaller amount (up to 1 percent) of a combustible, waxlike coating" (p. 7 of report). As to whether FGAN has been permitted to be shipped since Texas City, the report states: "This type of material is no longer made for fertilizer uses but organic coated ammonium nitrate is sometimes made in moderate amounts for special uses such as the manufacture of dynamite."

"Everyone who handled it knew it was ammonium nitrate, commonly known as an oxidizing material and not not flour or cement."

in paper bags shall be loaded or discharged at facilities so remotely situated from populous areas and for high value or high hazard industrial facilities that in the event of a fire or explosion, loss of lives and property may be minimized." [Italic supplied.] At no time prior to Texas City did the Government ship any FGAN that went to Texas City under any explosives regulations of ICC nor did the Government put oxidizing material on any of its bills of lading. On the contrary, the material was shipped as a fertilizer. Prior to Texas City, FGAN was shipped not as an oxidizing material but under the fertilizer section of the ICC regulations. Because there was no classification in the fertilizer section, FGAN had to be shipped as n. o. i. b. n. (not otherwise identified by name.) After Texas City, ICC issued a supplement and amendment with regulations and they appear as a part of the hearings of this committee. Part IV, regulations applying particularly to carriers by rail freight and its supplement, No. 16 of Agent H. A. Campbell's Tariff No. 4, ICC Regulations for Transportation of Explosives and Other Dangerous Ar-ticles by Freight Including Specifications for Shipping Containers. For the first time after Texas City this addition was put in ICC regulations classifying FGAN "(K) (1) Ammonium nitrate, ammonium nitrate fertilizer, calcium nitrate, and guanidine nitrate in bags must be loaded in all wooden boxcars, or wooden boxcars with steel roofs or steel boxcars with wooden floors. Only clean cars must be used and must be free of any projections which might injure bags."

This classification after the terrific explosion at Texas City was purely an academic one because the shipment of FGAN was prohibited, and has continued to be prohibited as demonstrated above.

Comdr, William T. Butler, Chief Hazard Prevention Section, USCG, April 9, 1948, made this statement to FBI agent. "However the substance that was being transported was ammonium nitrate fertilizer and no such substance was authorized for transportation by the regulations except under the descriptive name Nitrates NOS as shown on page N-196" (record, p. 27323). Commander Butler also stated, October 8, 1947, in a speech before the National Safety Council, "The Texas City disaster was a terrible casualty and all the more so because with ordinary care it could have been avoided" (record, p. 27326). And again under caption "Lessons That May Be Learned From This Casualty" states,