April 24, 2020
FEMA Refines Scope of Medical Supply Export Ban
FEMA has offered more details on its plans for exemptions to a temporary rule banning some medical supplies from being shipped overseas, which lawyers for U.S. and foreign companies said provided much needed clarification for exporters.
President Trump, in an April 3 executive order, invoked the Defense Production Act to stop the export of medical products being used to combat COVID-19 that are in short supply. The following week, FEMA published a temporary rule that said companies must receive the agency’s “explicit approval” before exporting certain medical equipment. The export restriction took effect April 10 and is set to expire in mid-August, according to FEMA.
U.S. Customs and Border Protection has since provided informal guidance on the types of shipments that will be exempted from the export restriction.
In an April 21 Federal Register notice, FEMA codified and tailored the exemptions, which provide a path for some exporters to make sales of medical products not in high demand in the U.S.
The exemptions are as follows:
- 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).
- 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)
- Intracompany Transfers of Covered Materials by U.S. Companies from Domestic Facilities to Company-owned or Affiliated Foreign Facilities.
- Shipments of Covered Materials that are Exported Solely for Assembly in Medical Kits and Diagnostic Testing Kits Destined for U.S. Sale and Delivery.
- 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.
- 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.
- Shipments to Overseas U.S. Military Addresses, Foreign Service Posts (e.g., Diplomatic Post Offices), and Embassies.
- 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.
- Shipments for Which the Final Destination is Canada or Mexico.
- Shipments by or on behalf of the U.S. Federal Government, including its Military.