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New FEMA Rule on Exports of PPE May Require Letter Uploaded to DIS

Apr 23, 2020

April 23, 2020 – U.S. Customs and Border Protection (CBP) updated their guidance relating to a Presidential Memorandum, where scarce material used in combatting COVID-19 being exported from the U.S. may be re-allocated for domestic use, to prevent diversion of these material overseas.

Under the Temporary Final Rule, exports of the below personal protective equipment (PPE), may be re-delegated to the Federal Emergency Management Agency (FEMA), unless exempted.

  • N95 Filtering Facepiece Respirators
  • Other Filtering Facepiece Respirators (N99, N100, R95, R99, R100, or P95, P99, P100)
  • Elastomeric, air-purifying respirators and appropriate particulate filters/cartridges;
  • PPE surgical masks
  • PPE gloves or surgical gloves

FEMA now requires an attestation letter be uploaded to CBP’s Document Imaging System (DIS) for the following exemptions:

  • In-Transit Merchandise (shipped in-transit through the U.S. with a foreign shipper and consignee, including those temporarily entered into a warehouse or Foreign Trade Zone (FTZ). CBP clarified in a FAQ that for T&E or IE bonds where the origin and destination appear clearly in the electronic records, in-bond, and bills of lading, the letter would not need to be required to be uploaded, unless CBP specifically requests it. Exports of foreign goods temporarily held in a bonded warehouse, including General Order (GO) or FTZ, the letter is required to be uploaded when the AES is filed.
  • Shipments with a final destination of Canada or Mexico.

CBP clarified in a FAQ that for certain shipments to Canada which are exempt from AES filing, an exporter has three options:

    1. voluntarily file AES and uploading the letter to DIS,
    2. provide the letter to CBP on demand (assuming the shipment is detained pending review), or
    3. provide the letter to the carrier to provide to CBP on request.
  • Exports of PPE by non-profit or non-governmental organizations, for donation to foreign charities or governments for free distribution (not sale) at their destination(s).
  • Intracompany transfers of PPE by U.S. companies to company-owned or affiliated foreign facilities.
  • Shipments of PPE exported solely for assembly in medical kits and diagnostic testing kits destined for U.S. sale and delivery.

The letter, completed by the exporter, shipper, or their agent, on company letterhead, and signed by a responsible company official must include the following:

  • A description of the exemption(s) they are claiming
  • Shipment details enabling CBP and FEMA officials to verify the shipment falls under the claimed exemption(s), see April 21, 2020 Federal Register Notice, including a commercial invoice
  • A statement that the information provided is true and accurate, and they are aware that falsifying information is subject to prosecution
  • Shipments destined for Canada or Mexico also require a statement saying the covered materials are for use in Canada/Mexico, and that they will not be transshipped.

To avoid detention of shipments, letters should be uploaded in DIS at when filing the Electronic Export Information (EEI) in the Automated Export System (AES). Directions on the formatting of emailing to DIS are found in CBP’s FAQ.

Exemptions, not requiring a letter, include the following:

  • Shipments to U.S. Territories and Commonwealths (Puerto Rico, U.S. Virgin Islands, Guam, American Samoa, and the Commonwealth of the Northern Mariana Islands)
  • Sealed, Sterile Medical Kits that include some PPE products, where the PPE cannot be easily removed from the kit without damage.
  • Diplomatic shipments from foreign embassies and consulates to their home countries
  • Shipments to Overseas U.S. Military Addresses, Foreign Service Posts, and Embassies
  • U.S. Federal Government shipments, including its Military

Please see our previous Trade News article CBP Provides Guidance on FEMA Rule on US Exports of PPE Materials

If you have any questions regarding FEMA re-delegating exports of PPEs used to combat COVID-19 for domestic use, Livingston can help!  Please contact either your Livingston account manager or our regulatory affairs group at [email protected]