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As previously reported here, on April 10, 2010, the US Federal Emergency Management Agency (FEMA) issued a temporary final rule restricting the export of certain types of personal protective equipment (PPE).  The temporary rule required FEMA approval before certain kinds of PPE could be exported from the United States.

On April 21, 2020, FEMA issued a Notification of Exemptions  from the temporary final rule in the Federal Register, which took effect on April 17, 2020. The right to waive any of the exemptions is reserved for the Administrator of FEMA.  The exemptions are as follows:

  1. Shipments to U.S. Commonwealths and Territories, Including Guam, American Samoa, Puerto Rico, U.S. Virgin Islands, and the Commonwealth of the Northern Mariana Islands (Including Minor Outlying Islands).
  2. Exports 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) at their Destination(s).
  3. Intracompany Transfers of Covered Materials by U.S. Companies from Domestic Facilities to Company-owned or Affiliated Foreign Facilities.
  4. Shipments of Covered Materials that are Exported Solely for Assembly in Medical Kits and Diagnostic Testing Kits Destined for U.S. Sale and Delivery.
  5. 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 be Easily Removed Without Damaging the Kits.
  6. Declared Diplomatic Shipments from Foreign Embassies and Consulates to their Home Countries. These May be Shipped via Intermediaries (Logistics Providers) but are Shipped from and Consigned to Foreign Governments.
  7. Shipments to Overseas U.S. Military Addresses, Foreign Service Posts (e.g., Diplomatic Post Offices), and Embassies.
  8. In-Transit Merchandise: Shipments in Transit through the United States with a Foreign Shipper and Consignee, Including Shipments Temporarily Entered into a Warehouse or Temporarily Admitted to a Foreign Trade Zone.
  9. Shipments for Which the Final Destination is Canada or Mexico.
  10. Shipments by or on behalf of the U.S. Federal Government, including its Military.

For exemptions (2)–(4), (8) and (9), FEMA will require that exporters file a letter of attestation with U.S. Customs and Border Protection (CBP) that provides the following information:

  1. A description of which exemption is being claimed.
  2. Sufficient details CBP and FEMA officials to determine whether the shipment falls under the claimed exemption.
  3. A statement that the provided information is true and accurate, and recognition that false information is subject to prosecution.

Husch Blackwell continues to monitor this issue closely and will provide additional updates as more information becomes available. Should your company have any questions regarding the export of PPE in the face of the COVID-19 pandemic, please contact Cortney Morgan or Grant Leach of our Export Controls & Economic Sanctions team.