On April 10, 2020, the Federal Emergency Management Agency (FEMA) issued a Temporary Final Rule that restricts the export of five types of personal protective equipment (PPE) through August 10, 2020.  The covered products are specific types of respirator face masks, PPE surgical masks, and PPE exam and surgical gloves.  The FEMA rule raises a number of issues for companies shipping protective clothing and gear, principally: (1) the scope of product coverage; (2) whether they fall within any exceptions; and (3) how to minimize the risk of delays due to Customs detentions and FEMA reviews for appropriate export shipments.

CBP issued an internal guidance memo that included some exceptions to the FEMA rule, but FEMA published a Notice in the April 21 Federal Register that formalizes ten (10) specific exemptions: (1) shipments to U.S. commonwealths and territories (including Puerto Rico); (2) shipments of covered materials by non-profit or non-governmental organizations that are solely for donation to foreign charities or governments for free distribution (not sale); (3) intracompany transfers by U.S. companies from domestic facilities to company-owned or affiliated foreign facilities; (4) shipments solely for assembly in medical kits and diagnostic testing kits destined for U.S. sale and delivery; (5) shipments of sealed, sterile medical kits and diagnostic testing kits where only a portion of the kit is made up of one or more covered materials that cannot easily be removed; (6) declared diplomatic shipments from embassies and consulates to their home country governments; (7) shipments to overseas U.S. military addresses, foreign service posts, and embassies; (8) shipments in transit through the U.S. with a foreign shipper and consignee, including shipments temporarily entered into a warehouse or temporarily admitted to a foreign-trade zone (FTZ); (9) shipments with a final destination in Canada and Mexico; and (10) shipments by or on behalf of the U.S. Federal Government, including the military.  These new exemptions are in addition to the exception in the initial FEMA rule for U.S. manufacturers exporting PPE pursuant to contracts entered into before January 2, 2020. 

The FEMA notice requires a signed, shipment-specific “Letter of Attestation” on company letterhead for shipments under exemptions (2), (3), (4), (8), and (9).  This Letter of Attestation is to include the exemption being claimed, details sufficient for CBP/FEMA to determine whether the shipment falls under the exemption, and a certification statement that the provided information is true and accurate.  The Letter of Attestation is to be submitted to the CBP Document Imaging System (DIS) at the same time that the Electronic Export Information (EEI) is transmitted in the Automated Export System (AES).  A good practice for all clients exporting PPE is to include a Letter of Attestation or similar letter with all shipments to explain why the shipment either falls within an exemption or is not subject to the rule.  Providing this letter and similar notations on invoices and/or other shipment documentation should reduce delays, CBP/FEMA inquiries, and detentions.  We have been working with clients to structure such letters.

Notably, the FEMA notice does not include an exemption for shipments of non-commercial quantities and values that was included in the CBP internal guidance, but one factor to be considered by FEMA in making determinations on whether to allow, return, or allocate part or all of a shipment is the quantity and quality of the materials being exported.  Other factors to be considered by FEMA include: (1) the need to ensure that scarce or threatened items are appropriately allocated for domestic use; (2) minimizing supply chain disruptions, both domestically and abroad; (3) the circumstances surrounding the distribution of the materials and potential hoarding or price-gouging concerns; (4) humanitarian considerations; and (5) international relations and diplomatic considerations.

CBP has issued guidance on its processes for administering the FEMA rule and exemptions. CSMS #42439611 (April 21, 2020).

Please contact Sean Murray if you have any questions about the application of the FEMA rule to your products or for assistance in structuring Letters of Attestation and shipment documentation to minimize the risk of shipment delays, CBP/FEMA inquiries, and detentions.