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24 April 2020
What does the FEMA rule do?
What products are covered?
How do you get a licence to export?
How will the rule be enforced?
What criteria will FEMA use to allocate PPE for domestic use?
Are there any exemptions?
The Federal Emergency Management Agency (FEMA) has exercised its delegated authority under the Defence Production Act (DPA) to issue a temporary final rule (Prioritisation and Allocation of Certain Scarce or Threatened Health and Medical Resources for Domestic Use) to prohibit the export of five types of medical personal protective equipment (PPE) that the government previously identified as scarce and threatened materials during the COVID-19 pandemic.(1)
The temporary final rule allocates five types of PPE for domestic use, effectively prohibiting their export from the United States without explicit approval by FEMA. These items were previously identified in the president's 3 April 2020 memorandum. The same memorandum delegated to FEMA, via the Department of Homeland Security, authority under the DPA to allocate the resources for domestic use.
The rule is effective on the "date of filing for publication in the Federal Register", which is believed to be 7 April 2020 (awaiting FEMA's confirmation). The temporary rule amends FEMA's preparedness regulations and is in effect for 120 days after publication, though it can easily be renewed or expanded.
The rule orders that all shipments of the covered materials be allocated for domestic use and prohibits their export without explicit approval by FEMA.
The following products are covered, as well as anything else that the FEMA administrator designates and publishes in the Federal Register:
Currently, there is no licence mechanism, which is unsurprising since none of the agencies involved are government export control agencies. However, as set out below, there is a process whereby FEMA can authorise an export to proceed.
The rule states that Customs and Border Protection (CBP) will notify FEMA of an intended export of the covered materials. CBP must then temporarily detain the export while the FEMA administrator decides "whether to return for domestic use or issue a rated order for part or all of the shipment". The administrator will make the determination "within a reasonable timeframe" after CBP notifies FEMA of an intended export. If allocated for domestic use, FEMA will purchase the products.
Enforcement of any export prohibition falls on CBP. CBP is likely to establish a mechanism for exporters to inform it of an intended export together with the necessary facts to support the request for export. Ideally, this would be in the form of an application that could be submitted and reviewed before making an actual shipment so that goods need not be unnecessarily detained.
Violations of the DPA are criminal and carry the potential of a $10,000 fine, one year's imprisonment or both. In addition, the rule provides for penalties pursuant to 18 U.S.C. 554 (Smuggling Goods from the United States), which are also criminal. That law carries a penalty of 10 years' imprisonment, a fine or both.
After CBP notifies FEMA of a potential export of the specified PPE, the FEMA administrator will potentially consult with other agencies and consider all of the relevant circumstances, including:
There is currently one exemption, and FEMA may establish more. Critically, FEMA must decide whether an export qualifies for the exemption; exporters cannot make the determination on their own. However, once FEMA has determined that the exemption applies to a shipment of covered materials, it will notify CBP and the materials may be exported without further review by FEMA.
The exemption allows:
the export of covered materials from shipments made by or on behalf of US manufacturers with continuous export agreements with customers in other countries since at least January 1, 2020, so long as at least 80 percent of such manufacturer's domestic production of such covered materials, on a per-item basis, was distributed in the United States in the preceding 12 months.
However, the FEMA administrator may waive this exemption "if the Administrator determines that doing so is necessary or appropriate to promote the national defense". At this time, it is unclear how an exporter provides FEMA information to support the use of the exemption for a particular export.
Exporters should carefully review their export agreements and the scope and duration of their export relationships to determine whether the above exemption applies, as well as build in extra time for any potential shipments of covered PPE.
For further information on this topic please contact Kay C Georgi, Regan K Alberda or Sylvia G Costelloe at Arent Fox LLP's Washington DC office by telephone (+1 202 857 6000) or email (firstname.lastname@example.org, email@example.com or firstname.lastname@example.org). Alternatively, contact Marwa M Hassoun at Arent Fox LLP's Los Angeles office by telephone (+1 213 629 7400) or email (email@example.com). The Arent Fox LLP website can be accessed at www.arentfox.com.
(1) The US Administration's use of the DPA during the pandemic was previously discussed in "DPA: four takeaways for companies that make or sell medical PPE and related commodities". Many countries have already issued similar export prohibitions.
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