On April 21, the Federal Emergency Management Agency (“FEMA”) published a notification detailing ten exemptions to the export restrictions on personal protective equipment (“PPE”) that FEMA implemented in a temporary final rule issued on April 7, 2020. Read our prior client alert on the export restrictions here. The restrictions focus on exports of five categories of PPE – respirators, masks and gloves – used by healthcare providers that are considered “scarce or threatened.” FEMA’s notification of exemptions came after U.S. Customs and Border Protection (“CBP”) issued guidance to its operations directors on several exemptions, mistakenly released the guidance publicly, and then clarified that FEMA would issue an official notice about exemptions to the temporary final rule.
The key exemptions announced by FEMA include:
- Exports to Canada or Mexico;
- Intracompany transfers by U.S. companies to company-owned or affiliated foreign facilities;
- Exports by non-profit or non-governmental organizations of PPE solely for donation to foreign charities or governments for free distribution;
- Exports by or on behalf of the U.S. government, including the U.S. military; and
- Shipments to U.S. territories.
FEMA provides additional exemptions for:
- Shipments in transit through the United States;
- Exports of materials for assembly abroad, when the assembled kits are destined for U.S. sale and delivery;
- Shipments of sealed kits where the restricted PPE materials cannot be easily removed;
- Shipments from foreign embassies to home countries; and
- Shipments to overseas U.S. military addresses, foreign service posts, and embassies.
The temporary final rule announced on April 7 included an exemption for shipments by U.S. manufacturers with purchase agreements in place with customers abroad since before January 1, 2020, so long as at least 80 percent of the manufacturer’s domestic production of the materials was distributed in the United States in the preceding 12 months.
For five of the exemptions – the first three exemptions above as well as shipments in transit through the United States and materials exported for assembly into kits destined for the U.S. – the exporter will be required to submit documentation and a “letter of attestation” certifying the purpose of the shipment via CBP’s document imaging system (“DIS”). On April 21, 2020, CBP issued guidance on letters of attestation. CBP’s guidance is available here. A letter of attestation should contain the following information:
- A description of the exemption(s) the exporter is claiming;
- Details regarding the shipment sufficient for CBP and FEMA to determine whether the shipment falls under the claimed exemption(s); and
- A statement that the provided information is true and accurate to the best of the exporter’s knowledge, and that the exporter is aware that false information is subject to prosecution under the Defense Production Act, as outlined in the allocation order.
An exporter who has concerns about how to file this letter is directed to contact CBP for details. CBP also explained that the letters of attestation should be uploaded in DIS at the same time as the Electronic Export Information is transmitted in the Automated Export System.
Exporters of such PPE should plan for delays and begin the export process as early as possible. While the exemptions should enable eligible shipments to avoid detention, the process of reviewing letters of attestation likely will cause some delays.
