US Restricts Exports of Certain Respirators, Masks, Gloves

The U.S. is restricting exports of certain personal protective equipment due to the COVID-19 pandemic, the Federal Emergency Management Agency said in a notice scheduled for Federal Register publication on April 10. The restrictions, which took effect April 7 and will last 120 days after publication, apply to certain respirators, masks and gloves, FEMA said.

The U.S. will restrict exports of N95 Filtering Facepiece Respirators and other respirators, including “N99, N100, R95, R99, R100, or P95, P99, P100,” FEMA said. These include “devices that are disposable half-face-piece non-powered air-purifying particulate respirators” and “single-use, disposable half-mask respiratory protective devices.” Export controls also apply to “elastomeric, air-purifying respirators and appropriate particulate filters/cartridges,” surgical masks and surgical gloves.

Those items cannot be exported without “explicit approval” from FEMA, the notice said. If shippers try to export these items, they will be temporarily detained by CBP while FEMA determines whether to “return for domestic use, issue a rated order for, or allow the export of part or all of the shipment.” FEMA said it will make that determination within a “reasonable time” after being notified of the export. “FEMA will work to review and make determinations quickly and will endeavor to minimize disruptions to the supply chain,” the agency said. CBP may create a mechanism for exporters to inform CBP of an “intended export” along with the “necessary facts to support the request for export,” according to an April 8 post from Arent Fox. This could be an application form that would be submitted and reviewed prior to the shipment so the goods are not “unnecessarily detained,” the law firm said.

FEMA’s determination will include consultations with other agencies and a consideration of the “totality of the circumstances” surrounding the export, including whether the shipment will threaten domestic supply and how it may disrupt domestic and foreign supply chains. FEMA will also consider “potential hoarding or price gouging concerns,” the “quantity and quality” of the export, humanitarian considerations and “international relations and diplomatic considerations.”

Certain exemptions are available in cases where maintaining a pre-existing commercial relationship is important to the international supply chain, FEMA said. An exemption applies to U.S. manufacturers with “continuous export agreements” with foreign customers since at least Jan. 1. To qualify for the exemption, at least 80% of the manufacturer's domestic production of the controlled medical items must have been distributed within the U.S. in the last 12 months, FEMA said. The agency said it may issue guidance clarifying which exports are covered by this exemption and asked manufacturers to contact FEMA with questions or status updates on their exports. FEMA may announce more exemptions, the notice said.

Exporters that do not “comply fully” with the restrictions are subject to a maximum $10,000 fine and a one-year prison sentence. Exporters that “fraudulently or knowingly” export the controlled goods without authorization face a fine and a 10-year prison sentence. The European Union (see 2003200029), India (see 2003240045) and others (see 2003270052) also have announced export restrictions on certain medical equipment.