FEMA ADVISORY – April 24, 2020
FEMA Implementation of Allocation Order on Exports of Scarce PPE and Notice of Exemptions
FEMA recently published a Temporary Final Rule and a subsequent notice in the Federal Register to support President Trump’s “Memorandum on Allocating Certain Scarce or Threatened Health and Medical Resources to Domestic Use” issued on April 3, 2020.
The COVID-19 National Strategy for Addressing Personal Protective Equipment (PPE) Shortage seeks to ensure protection against COVID-19 for healthcare workers, first responders, and patients by implementing three pillars of practice: reduce, reuse and repurpose. Industries that use similar PPE (e.g., N95 respirators) as part of their normal duties will be challenged in obtaining PPE while available supply is prioritized for healthcare workers and first responders. Industries whose essential critical infrastructure workers need PPE to perform their duties should continue working with suppliers to acquire needed PPE, but should expect shortages to continue. All industries should immediately implement strategies to preserve existing supplies of PPE and find alternative work methods to address shortfalls. A critical component in implementing PPE preservation strategies is determining the appropriate level of PPE for use. Non-healthcare industries should carefully consider whether PPE is required by law or regulation as part of their routine duties, or whether it is needed for mitigating employee exposure to COVID-19.
The intent of the President’s Memorandum and the FEMA Administrator’s allocation order are to preserve scarce personal protective equipment for domestic use in the response to the COVID-19 emergency. FEMA is working closely with U.S. Customs and Border Protection (CBP) to implement the allocation order through the Temporary Final Rule published on April 10. The notice lists the Personal Protective Equipment (PPE) subject to this allocation order to include: N95 respirators, and a variety of other filtering respirators; air-purifying respirators; surgical masks; and, surgical gloves.
On April 21, FEMA published a “Notification of Exemptions” in the Federal Register to supplement the rule. Every exporter is required to submit data about their shipment into the Automated Export System (AES) to electronically declare their international exports. When reviewing this data, CBP will determine if products are covered under the allocation order or exempt from being held. If no exemptions apply, CBP will notify FEMA for a determination on the shipment.
FEMA will then determine if a shipment is in the national defense interest to remain in the United States as related to the COVID-19 pandemic response. If this is the case, FEMA may purchase part or all of the shipment using a rated order under Title 1, return part or all of the shipment for domestic distribution, or allow part or all of the shipment to be exported. If a shipment is detained, FEMA and CBP will provide a response to the owner of the shipment within 72 hours.
Questions about a specific shipment should be directed to Custom and Border Protection. Questions about the allocation order and Notice of Exemptions in the Federal Register may be directed to FEMA National Business Emergency Operations Center.
If you have a legal question regarding the allocation order, send an email to PPEemail@example.com.
If you have any questions regarding this FEMA Advisory, please contact FEMA Office of External Affairs, Congressional and Intergovernmental Affairs Division:
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