FAQs also address the ongoing sale and distribution of ITAR-controlled defense items upon expiration of an applicable MLA or TAA. In this regard, the FAQs put a finer point on the problem that was discussed above – that the scale limits in an expired agreement continue to apply even after expiration. Among other things, parties that have not been allowed after expiration cannot be involved after expiration. However, the FAQs specify that defense items manufactured under an expired MLA or TAA „may be transferred between the same foreign signatories and sub-licenses and for the same end users and end uses as those previously authorized under the TAA or MLA.“ TaAs and MLAs allow the U.S. to export technical data and ITAR-controlled „defense services“ (and to exchange non-U.S. persons outside the U.S.). A GwG may also authorise the provision of production rights or know-how. MLAs and TAAs typically have a term of 10 years and questions often arise about which activities can and cannot be continued when an agreement expires without obtaining a new agreement or agreement. Non-U.S. Parties to the Agreement may at that time have developed or produced information or products derived from technical data and manufacturing rights or know-how controlled by iTAR originating in the United States, and the underlying business relationships or agreements may continue upon expiration of the ITAR authorization. For example, non-U.S. parties may have ongoing contracts or sales opportunities or obligations such as repairs and maintenance.
So what types of activities under itAR can be continued without a renewed MLA or TAA and what types of activities require additional authorisation? DDTC has provided some useful answers in these new FAQs. Companies should also carefully respect the language used by DDTC in these two FAQs and indicate that this ITAR-controlled activity can only continue „among the same foreign signatories, sub-licenses and end users“ and „for the same authorized end-use“. Therefore, the volume of the expiration of the MLA or TAA (as well as any reservations, conditions or other restrictions in the agreement) continues to restrict which parties can participate in the ITAR-controlled activity upon expiration of the agreement and what those parties can do. All new parties (z.B. Customers or end-users, intermediate foreign beneficiaries, sub-licenses or new foreign sites for these parties) or new activities (e.g. B the use of previously provided technical data or know-how to manufacture a new defence item) may require additional authorization from DDTC. Question #1: Can a defence item manufactured or manufactured during the term of an agreement (TAA or MLA) using technical data or defence services obtained through the agreement be transferred, upon expiry of this agreement, to a foreign person who was not a party to the agreement? Answer #1: No, the transfer of defence items manufactured during the lifetime of a TAA or MLA can only be transmitted between the same foreign signatories and sub-licences and for the same end-users and end-uses as those previously authorised under the TAA or MLA.