COVID-19: US Government Provides Further Guidance on Export Restrictions on PPE

Download IconDownload Print IconPrint

COVID-19: US Government Provides Further Guidance on Export Restrictions on PPE

Client Alert

Related Solutions

Clients rely on our team of experienced regulatory litigators and former government officials to handle all aspects of administrative law litigation.
Deep-rooted experience, country-specific knowledge and offices in key business and regulatory centers
Offering premier regulatory and government relations capabilities and key business and transactional insight.
Drawing on years of experience in the public and private sectors, our lawyers handle a range of litigation involving the federal government, state and foreign governments, and complex regulatory regimes.
Comprehensive counseling for healthcare providers, insurers and the companies that supply them with products and services.
Insightful guidance for clients navigating the ever-complex global economy.
Advising life sciences innovators, investors and industry leaders on complex transactions, legal issues and business challenges.

On April 9, 2020, US Customs and Border Protection (CBP) issued a Memorandum to its field operators providing guidance on the implementation of the US Federal Emergency Management Agency’s (FEMA) Temporary Final Rule (TFR) restricting exports of personal protective equipment (PPE). As detailed in a previous WilmerHale client alert, FEMA’s rule applies to five types of medical products, including several types of respirators, surgical masks, and gloves, and requires that “[a]ll shipments of covered materials … shall be allocated for domestic use, and may not be exported from the United States without explicit approval by FEMA.” The CBP Memorandum narrows the scope of the TFR.

Pursuant to the CBP Memorandum, CBP field operators conducting reviews of export shipments are required to apply the TFR’s restrictions to shipments containing “commercial quantities,” which CBP defines as shipments that (i) are valued at $2,500 or more and (ii) contain more than 10,000 units of gloves, masks or other subject commodities. 

The Memorandum also states that the following types of shipments are excluded from the TFR’s restrictions:

  • Exports to Canada or Mexico;
  • Exports by US government agencies and exports to US government entities (e.g., US military bases overseas);
  • Exports by US charities;
  • Exports by critical infrastructure industries for the protection of their workers;
  • Exports by 3M Company; and
  • In-transit shipments.

Although CBP could subsequently change its policies regarding the application of the restrictions on exports of PPE, the Memorandum indicates that any shipments not meeting the commercial quantities criteria will not be detained or delayed and that exports of commercial quantities will likewise not be impeded if they meet the identified exclusions. 

WilmerHale continues to monitor these and other regulatory developments enacted by governing bodies worldwide in the face of the COVID-19 pandemic. WilmerHale has also assembled a task force of legal authorities across the wide array of disciplines implicated by the outbreak of COVID-19 that stands ready to assist clients as they develop legal and operational plans and protocols.

Authors

Notice

Unless you are an existing client, before communicating with WilmerHale by e-mail (or otherwise), please read the Disclaimer referenced by this link.(The Disclaimer is also accessible from the opening of this website). As noted therein, until you have received from us a written statement that we represent you in a particular manner (an "engagement letter") you should not send to us any confidential information about any such matter. After we have undertaken representation of you concerning a matter, you will be our client, and we may thereafter exchange confidential information freely.

Thank you for your interest in WilmerHale.

I Accept Cancel