Sometimes things actually move pretty quickly in Washington. The FY2011 National Defense Authorization Act [NDAA] was passed on Friday by a vote of the US House of Representatives, with a comfortable margin. As reported earlier this week, the Act contains provisions pertaining to the rare earth supply chain, with a set of mandates directing the Department of Defense to take specific actions regarding the supply chain as a whole. Contained in Section 835, these provisions successfully made it through the process and are part of the final passed House version of the bill. The next step will be for the Senate to work on its own version of the NDAA, for the two items to then be amalgamated in conference, before being signed into law later this year.
Prior to the vote of the full House on the bill, Rep. Mike Coffman [R-CO] on behalf of himself and Rep. Brad Ellsworth [D-IN] proposed an Amendment to the bill, relating to neodymium-based [Nd-Fe-B] permanent magnets. The Amendment [#6 on the list] looked to add a new Section 839 to the bill, titled "Defense Industrial Base Priority For Rare Earth Neodymium Iron Boron Magnets". The Amendment noted "an urgent need" to restore US-based capabilities for manufacturing sintered Nd-Fe-B magnets for defense applications and to eliminate the vulnerabilities in the US defense supply chain as they relate to these "key materials". At present there are no manufacturers of sintered Nd-Fe-B magnets in the USA.
The Amendment mentioned the findings of the recent Government Accountability Office [GAO] report on rare earths. It further noted that the USA was technologically capable of restoring a Nd-Fe-B manufacturing capability, but that restoring such capability would take 3-5 years. Noting that worldwide supplies of rare earths "are expected to tighten significantly within the next 3-5 years" and that there is an appreciable time to get new parts qualified for defense programs, the Amendment noted that work "should begin immediately" on restoring Nd-Fe-B production capability "to avoid future weapon system delivery disruption".
Having made these observations, the Amendment then required that:
"Not later than 90 days after the date of the enactment of this Act, the Secretary shall submit to the Committees on Armed Services of the House of Representatives and the Senate a plan to establish a domestic source of sintered neodymium iron boron magnets for use in the defense supply chain."
The Amendment further clarified what constitutes a "domestic source" of Nd-Fe-B magnets by stating that:
"For the purposes of subsection (b), the capability to manufacture sintered neodymium iron boron magnets includes the alloying, pressing, and sintering of magnet materials. It does not include manufacturing magnets from standard shapes or imported blocks of neodymium. The Secretary's plan shall not allow the grinding or reprocessing of neodymium to be considered a `domestic source of sintered neodymium iron boron magnets'."
This latter comment relates to the practice of companies procuring blocks of Nd-Fe-B magnet material from China, Japan, Germany and elsewhere, and then grinding the blocks into a final shape in the USA, before magnetizing or assembling the blocks into magnetic devices.
Rep. Coffman's Amendment was considered in concert with several other amendments 'en bloc', and this group of Amendments passed by a voice vote. Section 839 is therefore now a part of the final passed House version of the NDAA. I asked Jeff Green, the industry lobbyist who has been working diligently on the issue of rare earth supply chain vulnerability, what this says about the awareness of members of Congress of these issues. "There is clear bi-partisan agreement on this issue," said Mr. Green, "as evidenced by the fact that both the Chairman and Ranking Member of the House Armed Services Committee moved to submit this and other Amendments en bloc". It is clear that the combination of growing mainstream interest on rare earths, and events such as the March hearings in the House on rare earths, and the recent publication of the GAO report, have had an impact. "We are seeing some traction," said Mr. Green, "on some key issues of importance to national security and defense".
The combination of the language in Section 835 and 839 of the NDAA is pretty powerful, certainly as it related to the production of rare earth magnets in the USA. While I am not sure that it would actually take as long as 3-5 years to get Nd-Fe-B production up and running again [assuming that the appropriate capital investments were made], certainly at least a couple of years would be reasonably required to build and install equipment, to optimize processes and to get people trained. The larger headache is what to do about the creation of US or North American-based rare earth refining capabilities, the absence of which is a critical problem in the process of getting the supply chain back up and running. It remains to be seen how the Department of Defense will tackle this issue, if the language in the NDAA as it presently stands is eventually signed into law.
There is one other potential wrinkle in the Nd-Fe-B story; that of patent licensing. While the decline of North American Nd-Fe-B production was very much related to Chinese pricing issues, the restoration of such production for commercial purposes has in part been hampered by red tape associated with a suite of patents on Nd-Fe-B that Hitachi Metals of Japan presently holds. Originally owned by Sumitomo Special Metals, these patents have been licensed to specific companies over the years, some of whom did have production in the USA. However, indications are that Hitachi Metals is not keen to issue new licenses to companies in the USA for Nd-Fe-B production; this is likely to be one reason for the delay in the proposed rare earth magnet joint venture between Molycorp Minerals and Arnold Magnetic Technologies, announced last year.
Further complicating matters is the arcane legal status of some of these patents. While many of the original composition-related patents have since expired, many of the newer patents have not, with some of the more important ones not expiring until after 2014. However, some industry insiders are speculating, and not just privately, that there are fundamental flaws in the patents themselves and how they have been interpreted over the years, including the mis-translation from Japanese into English, of critical parts of the original patent claims.
All of this may, however, be moot, for defense-related Nd-Fe-B production in the USA at least, if it is formally determined that the production of Nd-Fe-B magnets in the USA, is in the national interest. It is a long-established legal convention that the US Government can legally take and make use of intellectual or other property for its own purposes, so long as appropriate compensation is given in return. Indeed, this is enshrined in the Fifth Amendment of the US Constitution which states, in part, that private property cannot be taken for "public use" without the provision of "just compensation". So, in the event that the procurement of 'home-grown' Nd-Fe-B magnets by the Department of Defense is endangered by the patent situation, there is a fairly clear way out; simply taking the intellectual property associated with the magnetic material patents, and allowing manufacturers to use it to produce magnets, in return for 'reasonable' compensation to Hitachi Metals.
Of course, it's unlikely that things will get to that point; a variety of interactions between Washington and Tokyo would no doubt take place before things escalated, in order to 'encourage' Hitachi Metals to 'do the right thing'. Besides, with only a few years left on these patents, excessive intransigence hardly seems worth the effort...
-- Gareth Hatch
Disclosure: No positions