Late yesterday evening, President Trump declared a national emergency concerning the United States reliance on imports of certain “critical minerals.” The Executive Order directs a number of federal agencies, to take certain actions in the coming weeks and months to address what the order describes as “undue reliance on critical minerals” imported from “foreign adversaries.”
The President’s order follows a string of activities set off by an initial order issued in December 2017, that directed the Secretary of Interior to compile a list of “critical minerals” defined as (i) non-fuel minerals or minerals material essential to the economic and national security of the United States, (ii) the supply chain of which is vulnerable to disruption, and (iii) that serves an essential function in the manufacturing of a product, the absence of which would have significant consequences for our economy or our national security.
On May 18, 2018 the Secretary of Interior finalized a list of 35 “critical minerals” meeting this criteria, including:
Aluminum (bauxite), antimony, arsenic, barite, beryllium, bismuth, cesium, chromium, cobalt, fluorspar, gallium, germanium, graphite (natural), hafnium, helium, indium, lithium, magnesium, manganese, niobium, platinum group metals, potash, the rare earth elements group, rhenium, rubidium, scandium, strontium, tantalum, tellurium, tin, titanium, tungsten, uranium, vanadium, and zirconium.
The President’s latest order notes that the United States imports more than half of its annual consumption for 31 of the 35 “critical minerals” identified by the Secretary of Interior. Further, the United States has no capacity to produce 14 of these critical minerals.
The order also offers several hints at where future federal action might occur. In particular, the order focuses on minerals where supply chains rely on imports from China and other non-market economy countries including rare earth metals, barite, and gallium.
Within sixty days, the Secretary of Interior is directed to prepare a report summarizing its investigation of the United States’ “undue reliance” on critical minerals from “foreign adversaries” and “recommend executive action” including but not limited to imposition of tariffs, quotas, or other import restrictions.
While the order falls short of identifying any process for stakeholders to participate, Kelley Drye & Warren professionals will be closely monitoring the situation and will provide updates as more information becomes available.
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