© [2020], NCBFAA, Washington D.C., News Release. Originally published [04/27/2020]. www.ncbfaa.orgReprinted by permission.

Last week, U.S. Customs and Border Protection (CBP) published CSMS #42439611 detailing the exemption process for certain scarce personal protective equipment (PPE) materials denoted by the Federal Emergency Management Agency’s (FEMA) Temporary Final Rule (TFR) that went into effect on April 10. As a reminder the materials that are covered are the following: 

  • N-95 Filtering Facepiece Respirators,
  • Other Filtering Facepiece Respirators (N99, N100, R95, R99, R100, or P95, P99, P100),
  • Elastomeric, air-purifying respirators and appropriate particulate filters/cartridges;
  • PPE surgical masks,
  • PPE gloves or surgical gloves

 According to CBP, any exported materials covered in the list above that belong to one or more of the ten exemptions described may proceed immediately for export as scheduled. Please refer to the CSMS for the full list of exemptions here. CBP states that in order to qualify for some of the exemptions, FEMA requires a letter of attestation. For these exemptions, the exporter, shipper or their agents should present the letter via DIS, on company letterhead, signed by a responsible company official, including: 

  • a description of which exemption(s) the exporter is claiming;
  • details regarding the shipment that are sufficient for the CBP and FEMA officials to determine whether the shipment falls under the claimed exemption(s), including the required information identified in the Federal Register notice published on April 21, 2020;
  • a statement that the provided information is true and accurate to the best of the exporter’s knowledge, and that the exporter is aware that false information is subject to prosecution under the DPA, as outlined in the allocation order.

 In order to avoid detention of shipments, letters should be uploaded in DIS at the same time as the Electronic Export Information (EEI) is transmitted in the Automated Export System (AES). When submitting to DIS, filers have the following options to transmit: 

  • Electronically through secure web services, file transfer protocol, or messaging queue.
  • By Email to docs@cbp.dhs.gov 

 Successful submissions will receive an automated ‘submission status email’ indicating Success or Failure. Technical guidelines for electronic or e-mail submission are available at www.cbp.gov/ace-dis.CBP has said that filing AES and the LOA on shipments covered by one of the exemptions, even where AES filing is not a requirement (e.g. low-value), will expedite CBP processing. CBP asks that information be keyed into AES as early as possible. This will enable CBP to quickly identify and only detain the shipments that FEMA needs to see. FEMA issued a fact sheet last week that stated CBP will review export data to 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. FEMA and CBP will provide a response to the owner of the shipment within 72 hours.” A FEMA Fact Sheet may be found here.  On the FEMA call held Friday, April 24, a CBP representative clarified several items regarding the CSMS message based on queries they have received. In addition, FEMA indicated that they have a template sample Letter of Attestation (LOA) that will be posted to the FEMA website once final legal approval is completed.  CBP addressed the following items on the call: 1. Once the LOA has been successfully submitted via DIS, and the receipt received, the export can proceed.CBP operates in a positive manner with the general rule being, in the absence of a negative message or indicator back from CBP, the export can proceed. One should not wait for formal approval before proceeding with the export. If CBP has concerns they will reach out for more information or will notify the carrier to hold the shipment for examination. 2. CBP has a specified format for submitting information via DIS so that it will attach to the AES EEI information. This information is available at www.cbp.gov/ace-dis  3. CBP confirmed that all LOAs should be sent via the Document Imaging System (DIS). The LOAs should not be sent via e-mail to specific individuals; any e-mails should follow the established protocol and be sent to the DIS mailbox at docs@cbp.dhs.gov.  4. For shipments to Canada that do not ordinarily require AES submission, in order to take advantage of the exemption for shipments to Canada, there are three options:   

  • File AES, even if not required, and submit the letter of attestation via DIS so that CBP would have visibility to the exemption.
  • Provide the LOA upon request to CBP at the border
  • Provide the LOA to the carrier in case CBP wants to review. 
     

5. CBP confirmed that the CSMS states the LOA is required for the in-transit exemption. This requirement overloads the CBP in-box. CBP stated that for in-transit moves they already have the data they need in the system. CBP potentially might ask for the LOA so the trade should be prepared to provide upon demand. In the case of goods temporarily entered into a bonded warehouse or Foreign Trade Zone with the intent to leave the US, those are separate and distinct transactions that require AES filing and submission of the LOA.  6. CBP recommended filing AES and submitting the LOAs as early as possible to enable CBP to screen and identify shipments for FEMA review. FEMA advised that they decommissioned their PPE export mailbox effective April 23rd and are directing queries regarding specific shipments to CBP. If you have questions about a specific shipment, please contact CBP at covid19exports@cbp.dhs.gov. If you have general questions about the allocation order, please contact FEMA’s National Business Emergency Operations Center at NBEOC@max.gov.         CBP is drafting FAQs that will be made available shortly. The Association’s Export Compliance Sub-Committee will continue to address issues related to the export of scarce PPE and will keep members updated as more information becomes available. ­­­