1. Short title
This Act may be cited as the “National Rare-Earth Cooperative Act of 2014”.
National Rare-Earth Cooperative Act of 2014
A BILL
To provide for the establishment of a National Rare-Earth Refinery Cooperative, and for other purposes.
2. Findings; statement of policy
Findings— Congress makes the following finding:
Heavy rare-earth elements are critical for the national defense of the United States, advanced energy technologies, and other desirable commercial and industrial applications.
The Government Accountability Office has confirmed that the monopoly control of the People’s Republic of China over the rare-earth value chain has resulted in vulnerabilities in the procurement process of multiple United States weapons systems.
China has leveraged its monopoly control over the rare-earth value chain to force American, European, Japanese, and Korean corporations to transfer manufacturing facilities, technology, and jobs to China in exchange for secure supply contracts.
China’s increasingly aggressive mercantilist behavior has resulted in involuntary transfers of technology, manufacturing facilities, and jobs as well as onerous trade imbalances with the United States and trading partners of the United States.
Direct links exist between heavy rare-earth mineralogy and thorium.
Thorium is a mildly radioactive element commonly associated with the lanthanide elements in the most heavy rare-earth deposits that are located in the United States and elsewhere.
Regulations regarding thorium represent a barrier to the development of the heavy rare-earth industry that is based in the United States.
Balancing the strategic national interest objectives of the United States against economic and environmental risks is best met through the creation of a rare-earth cooperative.
A rare-earth cooperative could—
greatly increase rare-earth production;
ensure environmental safety; and
lower the cost of production and financial risks faced by rare-earth producers in the United States.
Historically, agricultural and electric cooperatives have stood as some of the greatest success stories of the United States.
Statement of policy— It is the policy of the United States to advance domestic refining of heavy rare-earth materials and the safe storage of thorium in anticipation of the potential future industrial uses of thorium, including energy, as—
thorium has a mineralogical association with valuable heavy rare-earth elements;
there is a great need to develop domestic refining capacity to process domestic heavy rare-earth deposits; and
the economy of the United States would benefit from the rapid development and control of intellectual property relating to the commercial development of thorium-utilizing technology.
3. Definitions
In this Act:
Actinide— The term actinide means all elements with atomic numbers of 89 or greater on the periodic table.
Consumer member—
In general— The term consumer member means a member of the Cooperative that is—
an entity that is part of, or has a role in, the value chain for rare-earth materials or rare-earth products, including from the refined oxide state to the stage in which the rare-earth elements are finished in any physical or chemical form (including oxides, metals, alloys, catalysts, or component); or
a consumer of rare-earth products.
Inclusions— The term consumer member includes—
a producer of or other entity that is part of the value chain for rare-earth materials, including original equipment manufacturer producers, whose place of business is located in or outside the United States;
a defense contractor or contractors in the United States; and
any government agency in the United States or outside the United States that invests in the Cooperative.
Cooperative— The term Cooperative means the Thorium-Bearing Rare-Earth Refinery Cooperative established by section 4(a)(1).
Cooperative board— The term Cooperative Board means the Board of Directors of the Cooperative established under section 4(b)(2).
Corporation— The term Corporation means the Thorium Storage, Energy, and Industrial Products Corporation established under section 5(a)(1).
Corporation board— The term Corporation Board means the Board of Directors of the Corporation established under section 5(b)(1).
Executive committee— The term Executive Committee means the executive committee established under section 5(b)(2).
Initial board of directors— The term Initial Board of Directors means the initial Board of Directors for the Cooperative established under section 4(b)(1)(A).
Institution of higher education— The term institution of higher education has the meaning given that term in section 101(a) of the Higher Education Act of 1965 (20 U.S.C. 1001(a)).
National laboratory— The term national laboratory has the meaning given that term in section 2 of the Energy Policy Act of 2005 (42 U.S.C. 15801).
Secretary— The term Secretary means the Secretary of Defense.
Supplier member— The term supplier member means a rare-earth producer that enters into a contract to supply the Cooperative with rare-earth ores.
Tolling— The term Tolling means a fee-for-services contract between the Cooperative and a primary rare-earth producer under which—
the producer retains ownership and control of the finished product; and
pays to the Cooperative a fee for services rendered by the Cooperative.
Unprocessed and unrefined ore— The term unprocessed and refined ore includes any ores or residual ores resulting from the mining, extraction, beneficiation, and processing of other natural resources.
4. Thorium-Bearing Rare-Earth Refinery Cooperative
Establishment—
In general— There is established a Cooperative, to be known as the “Thorium-Bearing Rare-Earth Refinery Cooperative”, to provide for the domestic processing of thorium-bearing rare-earth concentrates as residual unprocessed and unrefined ores, in accordance with 10 CFR 40.12 and 13b as it relates to the Cooperative.
Federal charter; ownership— The Cooperative shall operate under a Federal charter.
Membership—
Composition— The Cooperative shall comprise—
supplier members; and
consumer members.
Supplier members—
In general— As a condition of entering into a contract to supply the Cooperative with rare-earth ores, supplier members provide rare-earth concentrates to the Cooperative at market price.
Capital contributions— Any supplier member that makes significant capital contributions to the Cooperative, as determined by the Cooperative Board, may become a consumer member for purposes of the distribution of profits of the Cooperative under subparagraph (D).
Consumer member— A consumer member—
shall make capital contributions to the Cooperative in exchange for entering into negotiated supply agreements; and
in accordance with the agreements entered into under clause (i), may acquire finished rare-earth products from the Cooperative at market price.
Distribution of profits— Any profits of the Cooperative shall be distributed between supplier members and consumer members in accordance with a formula established by the Cooperative Board.
Management—
Initial board of directors—
In general— As soon as practicable after the date of the enactment of this Act, the Secretary shall appoint the Initial Board of Directors for the Cooperative, comprised of five members, of whom—
one member shall represent the Defense Logistics Agency Strategic Materials program of the Department of Defense;
one member shall represent the Assistant Secretary of Defense for Research and Engineering;
one member shall represent United States advocacy groups for rare-earth producers and original equipment manufacturing interests;
one member shall represent the United States Geological Survey; and
one member who shall—
not be affiliated with a Federal agency; and
be recommended for appointment by a majority vote of the other members of the Initial Board of Directors appointed under clauses (i) through (iv).
Duties— The Initial Board of Directors shall—
establish the charter, bylaws, and rules of governance for the Cooperative;
make formative business decisions on behalf of the Cooperative; and
assist in the formation of, and the provision of tasks and assignments to, the Corporation.
Standing member— The member appointed under subparagraph (A)(v) shall remain on the Cooperative Board and Corporation Board, until such time as—
the member voluntarily resigns; or
a majority of the members of the Cooperative Board and a majority of the members of the Corporation Board vote to remove the member from the Cooperative Board and the Corporation Board.
Termination— The Initial Board of Directors shall terminate on the date on which the initial members of the Cooperative Board are appointed under paragraph (2).
Board of directors—
In general— The Board of Directors of the Cooperative shall comprise nine members, to be selected in accordance with the bylaws of the Cooperative established under paragraph (1)(B)(i), of whom—
five members shall be consumer members;
two members shall be supplier members;
one member shall represent an advocacy group for defense contractors, other rare-earth consumers, and suppliers who are not represented by the Board or through direct ownership in the Cooperative; and
one member shall be the member of the Initial Board of Directors appointed under paragraph (1)(A)(v).
Powers— The Cooperative Board may—
prescribe the manner in which business shall be conducted by the Cooperative;
determine pay-out ratio formulas for consumer members and supplier members, based on—
the capital stock ratios of consumer members; and
the value of supply member contracts, as determined based on the volume, term, and distributions of rare-earth concentrates relative to processing costs; and
evaluate technologies and processes for the efficient extraction and refining of rare-earth materials from various thorium-bearing ores.
Refinery and office locations— The Cooperative Board shall establish the refinery and offices for the Cooperative at any locations determined to be appropriate by the Cooperative Board.
Powers; duties—
Investment partnerships— The Cooperative shall seek to enter into domestic and international investment partnerships for the development of the refinery.
Agreements; direct sales— The Cooperative may—
enter into equity, financial, and supply-based agreements or arrangements with value-added intermediaries, equipment manufacturers, or consumers of rare-earth products, and Federal, State, or local agencies to provide economic incentives, leases, or public financing; and
engage in direct market sales of rare-earth products.
Supply contracts and tolling services—
In general— The Cooperative may—
directly purchase rare-earth materials obtained from any byproduct producers of rare-earths;
transport those materials as unprocessed and unrefined ores, in accordance with part 40 of title 10, Code of Federal Regulations (parts 12–13b, or any corresponding similar regulation or ruling);
offer non-member supplier short-term or direct purchase contracts; and
allow primary rare-earth producers to be tolling customers of the Cooperative.
Requirements— A tolling customer under subparagraph (A)(iii) shall—
retain control of the rare-earth products during the processing, refining, or value adding of the rare-earth products by the Cooperative; and
take possession of the rare-earth products after—
tolling services are rendered by the Cooperative; and
the Cooperative has received payment in full for the tolling services rendered.
Fee— The Cooperative may charge tolling customers under subparagraph (A)(iii) a tolling fee not to exceed the sum of—
the amount equal to 110 percent of the total cost for tolling services rendered by the Cooperative on behalf of the tolling customer; and
the amount equal to five percent of the market value of the finished product provided to the tolling customer by the Cooperative.
Applicable law— Any contract among consumer members, supplier members, tolling customers, and direct purchase suppliers entered into under subparagraph (A)(iii) shall be protected as provided in subsection 552(b)(4) of title 5, United States Code.
Limitations— A direct purchase non-member supplier under subparagraph (A)(ii) or a tolling customer under subparagraph (A)(iii)—
shall not be considered to be a supplier member or otherwise be considered a member of the Cooperative for purposes of this Act; and
shall not participate in Cooperative profits or have voting rights with respect to the Cooperative.
Audits—
In general— The Cooperative shall retain an independent auditor to evaluate the extent to which Federal funds, if any, made available to the Cooperative for research and development activities have been expended in a manner that is consistent with the purposes of this Act and the charter, bylaws, and rules of governance of the Cooperative.
Reports— The auditor retained under paragraph (1) shall submit to the Secretary of Defense, the Cooperative, and the Comptroller General of the United States an annual report containing the findings and determinations of the auditor.
Review by comptroller general— The Comptroller General of the United States shall—
review each annual report submitted to the Comptroller General by the auditor under paragraph (2); and
submit to the Committee on Armed Services of the Senate and the Committee on Armed Services of the House of Representatives a report containing the comments of the Comptroller General on the accuracy and completeness of the report and any other matters relating to the report that the Comptroller General considers appropriate.
Reimbursement of Federal Government— Not later than seven years following the date of the enactment of this Act, the Cooperative shall reimburse the Federal Government for administrative costs associated with the establishment of its charter.
5. Thorium Storage, Energy, and Industrial Products Corporation
Establishment—
In general— As soon as practicable after the date of the enactment of this Act, the Cooperative Board, in consultation with the Secretary of Defense, shall establish the Thorium Storage, Energy, and Industrial Products Corporation to develop uses and markets for thorium, including energy.
Federal charter— The Corporation shall operate under a Federal charter.
Management—
Board of directors—
In general— The Board of Directors of the Corporation shall comprise five members.
Initial members— The initial members of the Corporation Board shall consist of the following members, to be appointed by the Secretary of Defense:
one member, who shall represent the Assistant Secretary of Defense for Research and Engineering;
a J–7 who will represent the Director of the Joint Chiefs of Staff;
one member, who shall represent United States advocacy groups for commercial development of thorium in nuclear energy systems;
one member, who shall represent a national laboratory; and
one member, who is the member of the Initial Board of Directors appointed under section 4(b)(1)(A)(v).
Subsequent members— Subject to subparagraphs (A) and (D), subsequent members of the Corporation Board and Executive Committee shall be appointed in accordance with bylaws of the Corporation established under paragraph (2)(B)(i).
Standing members— The initial members appointed under clauses (iv) and (v) of subparagraph (B) shall remain on the Corporation Board and the Executive Committee, until such time as—
the members voluntarily resign;
in the case of a member appointed under subparagraph (B)(iv), a majority of the members of the Corporation Board votes to remove the member from the Corporation Board; or
in the case of a member appointed under subparagraph (B)(v), a majority of the members of the Corporation Board votes to remove the member from the Corporation Board and the Cooperative Board.
Executive committee—
In general— The Executive Committee for the Corporation shall comprise the initial members of the Corporation Board appointed under clauses (iv) and (v) of paragraph (1)(B).
Duties— The Executive Committee shall—
establish the charter, bylaws, rules of governance, and corporate structure for the Corporation; and
make formative business decisions with respect to the Corporation.
Powers—
Establishment of subsequent entities—
In general— The Corporation may establish one or more entities, to be known as an “Industrial Products Corporation” for the certification, licensing, insuring, and commercial development of all non-energy uses for thorium (including thorium isotopes and thorium daughter elements), including—
alloys;
catalysts;
medical isotopes; and
other products.
Authority of entities— The entities described in subparagraph (A) may—
develop standards, procedures, and protocols for the approval of commercial and industrial applications for thorium;
carry out directly the production and sale of thorium-related non-energy products; and
sell or license any production or sales rights to third parties.
Sale or distribution of industrial products corporation; creation of businesses and partnerships— To develop and commercialize non-energy uses for thorium, the corporation Board may—
create, sell, or distribute the equity of an entity described in subparagraph (A); and
establish partnerships with Federal agencies, foreign governments, and private entities relating to businesses and activities of the entity.
Sale or distribution of corporation equity; creation of partnerships— To develop and commercialize thorium energy, the Corporation may sell or distribute equity and establish partnerships with the United States, foreign governments, and private entities—
to create capital;
to develop intellectual property;
to acquire technology;
to establish business partnerships and raw material supply chains;
to develop commercial thorium energy systems;
to develop commercial systems for the reduction of spent fuel;
to develop hardened energy systems for the United States military; and
to develop process heat technologies systems for coal-to-liquid fuel separation, desalinization, chemical synthesis, and other applications.
Duties—
Ownership of thorium and related actinides— The Corporation shall—
on a preprocessing basis, assume liability for and ownership of all thorium and mineralogically associated or related actinides and decay products contained within the monazite and other rare-earth mineralizations in the possession of the cooperative;
separate the thorium from the rare-earth concentrates, take physical possession and safely store all thorium-containing actinide byproducts, with the costs of the storage to be paid by the Corporation from fees charged or revenue from sales of other valuable actinides and decay products, and thus after—
develop new markets and uses for thorium;
develop energy systems that utilize thorium; and
develop, manage, and control national and international energy leasing and distribution platforms related to thorium energy systems.
Safe, long-term storage; development of uses and markets— The Corporation shall—
in consultation with the Administrator of the Environmental Protection Agency and the Secretary of Energy, be responsible for the safe, long-term storage of all thorium and thorium decay products generated through the Cooperative, consistent with part 192 of title 40, Code of Federal Regulations (as in effect on the date of the enactment of this Act), while taking into account the low relative risks relating to thorium; and
develop uses and markets for thorium, including energy, by coordinating and structuring domestic and international investment partnerships for the development of commercial and industrial uses for thorium.
Audits—
In general— The Corporation shall retain an independent auditor to evaluate the extent to which Federal funds, if any, made available to the Corporation for research and development activities have been expended in a manner that is consistent with the purposes of this Act and the charter, bylaws, and rules of governance of the Corporation.
Reports— The auditor retained under paragraph (1) shall submit to the Secretary of Defense, the Corporation, and the Comptroller General of the United States an annual report containing the findings and determinations of the auditor.
Review by comptroller general— The Comptroller General of the United States shall—
review each annual report submitted to the Comptroller General by the auditor under paragraph (2); and
submit to the Committee on Armed Services of the Senate and the Committee on Armed Services of the House of Representatives a report containing the comments of the Comptroller General on the accuracy and completeness of the report and any other matters relating to the report that the Comptroller General considers appropriate.
Reimbursement of Federal Government— Not later than seven years after the date of the enactment of this Act, the Corporation shall reimburse the Federal Government for the administrative costs associated with the establishment of its charter.
6. Duties of Secretary of Defense
Advancement of rare-Earth initiatives— The Secretary shall coordinate with other Federal agencies to advance and protect—
domestic rare-earth mining;
the refining of rare-earth elements;
basic rare-earth metals production; and
the development and commercialization of thorium, including—
energy technologies and products; and
products containing thorium.
Annual reports— Not later than one year after the date of the enactment of this Act, and annually thereafter, the Secretary shall submit to Congress a report that, for the period covered by the report—
contains a description of the progress in the development of—
a domestic rare-earth refining capacity; and
commercial uses and energy-related uses for thorium; and
takes into account each report submitted to the Secretary by the Cooperative and the Corporation.
Federal agencies; national laboratories— Each Federal agency (including the Nuclear Regulatory Commission and the Defense Advanced Research Projects Agency), each national laboratory, and each facility funded by the Federal Government shall provide assistance to the Cooperative and the Corporation under this Act.
Institutions of higher education— Each institution of higher education is encouraged—
to develop training and national expertise in the field of thorium development; and
to promote—
the marketing of thorium;
the advancement of the strategic uses of thorium; and
salt chemistry science and radio chemists.
7. Amendment to 10 U.S.C. 2533b, requiring only U.S. or NATO member nation rare earth materials in U.S. weapon systems
10 U.S.C. 2533b(a) Requirement— Shall be amended to add the following provision: “(3) Beginning January 1, 2020, all purchased or procured weapon systems must contain only U.S. or NATO member nation produced and sourced rare earth materials, metals, magnets, parts, and/or components. The inclusion of any rare earth materials that originate or pass through a non-NATO member nation is prohibited. No waivers shall be granted unless the lead contractor seeking a waiver can demonstrate that it has pursued all possible corrective actions, including direct investment into the supply chain.”.