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Update on FEMA’s Export Restrictions on Personal Protective Equipment

Update on FEMA’s Export Restrictions on Personal Protective Equipment Background Decorative Image

On August 6, 2020, the Federal Emergency Management Agency (“FEMA”) issued a temporary final rule modifying the list of Personal Protective Equipment (“PPE”) subject to FEMA’s export restrictions and extending the restrictions until December 31, 2020. The restrictions were scheduled to expire on August 10, 2020; and the changes take effect on that date.

Under a temporary final rule issued in April, FEMA restricted exports of certain health and medical supplies designated as “covered materials.” By requiring explicit approval from FEMA to export these materials, FEMA sought to reserve them for domestic use. In addition to modifying the list of covered materials, the new temporary rule continues the eleven previously announced exemptions. Please see our alert on FEMA’s export restrictions here and our alert on the exemptions here.

Through December 31, 2020, the export restrictions apply to the following covered materials:

  • Respirators – FEMA will continue to limit exports of surgical N95 filtering facepiece respirators. FEMA has clarified that industrial N95 respirators are not restricted. FEMA is removing other filtering facepiece respirators and elastomeric, air-purifying respirators and appropriate particulate filters/cartridges from the list of covered materials.
  • Masks – FEMA is continuing to limit exports of PPE surgical masks.
  • Gloves – FEMA is narrowing the category of PPE gloves to include only PPE nitrile gloves for use in surgery and medical exams.
  • Gowns – FEMA is adding certain surgical gowns and surgical isolation gowns to its list of covered materials. These special surgical gowns meet certain technical standards including liquid barrier performance.

FEMA is continuing to control these items because the U.S. domestic demand continues to exceed supply. FEMA has been unable to fill outstanding requests from state and local governments for over 6 million surgical N95 respirators, 28 million surgical masks, 139 million nitrile gloves, and 11 million surgical gowns remaining on the list of covered materials.

U.S. Customs and Border Protection will continue to detain shipments of the covered materials temporarily, to allow FEMA to determine whether to return the items for domestic use, to issue a rated Government order for the items under the Defense Production Act, or to allow the export of part or all of the shipments. FEMA is working to make determinations on shipments quickly in order to minimize disruptions to the supply chain both domestically and abroad.

Please visit our Coronavirus: Preparation & Response series for additional resources we hope will be helpful.

This information is provided by Vinson & Elkins LLP for educational and informational purposes only and is not intended, nor should it be construed, as legal advice.