Commerce has ordered sellers of shredded battery scrap and tungsten scrap to keep all of it in the United States, and the order reaches less than the finding behind it

Anyone in the United States who sells shredded lithium-ion battery scrap abroad has about three weeks to stop.

The Bureau of Industry and Security filed the order at 4.15 on Tuesday afternoon, for publication on 6 August. It is a temporary final rule. It carries out Presidential Determination No. 2026-19 of 30 July, which found that recoverable critical minerals and materials are scarce and critical materials essential to the national defense, the two findings section 101 of the Defense Production Act requires before that section may be used to control the general distribution of a material in the civilian market. Until Tuesday nothing had issued under it.

The requirement

Sellers must allocate 100 percent of monthly sales to United States persons.

The rule then puts the same instruction in physical terms. Covered material must remain physically located within the United States unless BIS authorises otherwise, and Customs and Border Protection may detain a shipment intended for export while BIS reviews it. Goods detained that way and then made subject to a rated order are consigned to BIS pending further direction.

The order reaches less than the determination did

The determination was written wide. It defined recoverable critical minerals and materials as black mass, end-of-life rare-earth permanent magnets or other goods that have fully completed the manufacturing process, swarf, and other waste and scrap containing critical minerals and materials, and it excluded copper scrap by name.

The order reaches two things.

Black mass, under Schedule B codes 8549.13.00.00, 8549.14.00.00 and 8549.19.00.00, and tungsten waste and scrap, under 8101.97.00.00. Magnets are not in it. Swarf is not in it. Tungsten scrap is in it under its own name, where the determination had reached it only through the general category of other waste and scrap containing critical minerals and materials.

BIS says it may add further materials from the determination to the order later, by publication in the Federal Register.

The dates, and the comment period that closes afterwards

The order takes effect 21 days after publication and expires 386 days after publication. On the stamped publication date of 6 August, that is 27 August this year to 27 August next year, which matches the document's own statement that it runs one year from the effective date.

Comments are due 90 days after publication, or 4 November. So the order binds for about ten weeks before the window for arguing about it closes.

BIS issued it without prior notice and comment. Section 709(a) of the Defense Production Act exempts this rulemaking from the Administrative Procedure Act, and BIS states that urgent and compelling circumstances make compliance with prior notice and public comment impracticable.

One definition, written twice

The preamble defines black mass as any shredded lithium-ion battery scrap containing cathode material, which it says may include lithium, cobalt, nickel and manganese.

The codified definition, in the new supplement to part 700, lists seven metals rather than four. It adds aluminum, copper and iron. The supplement also states that where a term is defined both there and in the general definitions, its own definition supersedes, so the longer list is the operative one.