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C5.5.1. Definition and Purpose. By law, a numbered certification must be submitted to the Speaker of the House of Representatives and the chairman of the Committee on Foreign Relations of the Senate before LOA documents which meet specific criteria may be offered to foreign purchasers. Congress reviews each such proposed sale and may prohibit the transfer by enacting a joint resolution before the end of the prescribed review period. If Congress does not enact a joint resolution, the LOA document can be offered when the review period expires.

C5.5.2. Legal References. Table C5.T12. summarizes the Congressional Notification legal references.

Table C5.T12. Congressional Notification Legislation

Legislation	Subject
Arms Export Control Act (AECA), Section 36(b)(1) (22 U.S.C. 2776(b)(1))	Notification Criteria/Content/Classification
AECA, Section 36(b)(5)(A) (22 U.S.C. 2776(b)(5)(A))	Sensitivity of Technology Enhancement/Upgrade – Report
AECA, Section 36(b)(5)(C) (22 U.S.C. 2776(b) (5)(C))	Sensitivity of Technology Enhancement/Upgrade - New Notification
AECA, Section 36(b)(1) (22 U.S.C. 2776(b)(1))	Offset Arrangements
AECA, Section 36(f) (22 U.S.C. 2776(f))	Federal Register Publication
FAA, Section 620C(d) (22 U.S.C. 2373)	Sales to Greece or Turkey
Executive Order (E.O.) 11958	Delegates certain AECA functions to the Secretary of Defense and Secretary of State
Foreign Assistance Appropriation (Issued Annually – Sections Vary)	Program Content Notifications

C5.5.3. Congressional Notification Requirement. Table C5.T13. identifies the Congressional Notification criteria and requirements. The DoS must provide clearance to DSCA prior to DSCA forwarding to Congress the statutory 15, 30, or 45 day notification, or the Advance Notification (20-day review period prior to the 30-calendar day statutory review period) required for countries other than NATO, any NATO member country, Australia, Israel, Japan, the Republic of Korea, and New Zealand.

Table C5.T13. Congressional Notification Criteria and Requirements

Type of Equipment	Dollar Value	Document	Notification or Report Required?	Timing of Notification	Notification	Period Reference
Major Defense Equipment (MDE) for Members of NATO, Australia, Israel, Japan, the Republic of Korea, and New Zealand	Less than $25M	LOA	None	N/A	N/A	AECA Sections 36(b)(1) and 35(b)(6)
MDE for all other purchasers including NATO organizations	Less than $14M	LOA	None	N/A	N/A	AECA Sections 36(b)(1)
MDE for Members of NATO, Australia, Israel, Japan, the Republic of Korea, and New Zealand	$25M or greater	LOA	Notification	Must be completed prior to offer	15 calendar days	AECA, Section 36(b)(1)
MDE for all other purchasers including NATO organizations	$14M or greater	LOA	Notification	Must be completed prior to offer	15 calendar days for NATO organizations	AECA, Section 36(b)(1)
					All other purchasers – 30 calendar days (plus 20 calendar days advance notification)
MDE for Members of NATO, Australia, Israel, Japan, the Republic of Korea, and New Zealand	Changes to MDE values that bring total MDE to $25M or greater	Amendment	Notification	Must be completed prior to offer	15 calendar days	AECA, Section 36(b)(1)
MDE for all other purchasers including NATO organizations	Changes to MDE values that bring total MDE to $14M or greater	Amendment	Notification	Must be completed prior to offer	15 calendar days for NATO organizations	AECA, Section 36(b)(1)
					All other purchasers – 30 calendar days (plus 20 calendar days advance notification)
Defense Articles (Non-MDE) or Services for Members of NATO, Australia, Israel, Japan, the Republic of Korea, and New Zealand	Less than $100M	LOA	None	N/A	N/A	AECA Sections 36(b)(1)
Defense Articles (Non-MDE) or Services for all other purchasers including NATO organizations	Less than $50M	LOA	None	N/A	N/A	AECA Sections 36(b)(1)
Defense Articles (Non-MDE) or Services for Members of NATO, Australia, Israel, Japan, the Republic of Korea, and New Zealand	$100M or greater	LOA	Notification	Must be completed prior to offer	15 calendar days	AECA, Section 36(b)(1)
Defense Articles (Non-MDE) or Services for all other purchasers including NATO organizations	$50M or greater	LOA	Notification	Must be completed prior to offer	15 calendar days for NATO organizations	AECA, Section 36(b)(1)
					All other purchasers – 30 calendar days (plus 20 calendar days advance notification)
Defense Articles (Non-MDE) or Services for all other purchasers including NATO organizations	Changes to the case value that bring the total value to $50M	Amendment	Notification	Must be completed prior to offer	15 calendar days for NATO organization.	AECA, Section 36(b)(1)
					All other purchasers – 30 calendar days (plus 20 calendar days advance notification)
MDE, Non-MDE, Services, or Design and Construction	Any value		None	N/A	N/A	N/A
Design and Construction for Members of NATO, Australia, Israel, Japan, the Republic of Korea, and New Zealand	Less than $300M	LOA	None	N/A	N/A	AECA Sections 36(b)(1) and 35(b)(6)
Design and Construction for all other purchasers including NATO organizations	Less than $200M	LOA	None	N/A	N/A	N/A
Design and Construction for Members of NATO, Australia, Israel, Japan, the Republic of Korea, and New Zealand	$300M or greater	LOA	Notification	Must be completed prior to offer	15 calendar days	AECA, Section 36(b)(1)
Design and Construction for all other purchasers including NATO organizations	$200M or greater	LOA	Notification	Must be completed prior to offer	15 calendar days for NATO organizations	AECA, Section 36(b)(1)
					All other purchasers – 30 calendar days (plus 20 calendar days advance notification)
Design and Construction for Members of NATO, Australia, Israel, Japan, the Republic of Korea, and New Zealand	Changes to the design and construction costs that bring the total value to $300M or greater	Amendment	Notification	Must be completed prior to offer	15 calendar days	AECA, Section 36(b)(1)
Design and Construction for all other purchasers including NATO organizations	Changes to the design and construction costs that bring the total value up to $200M threshold	Amendment	Notification	Must be completed prior to offer	15 calendar days for NATO organizations	AECA, Section 36(b)(1)
					All other purchasers – 30 calendar days (plus 20 calendar days advance notification)
Enhancements or upgrades in sensitivity of technology or capability	Enhancements to equipment that has been previously notified, has not yet been delivered and is BELOW the section 36(b)(1) financial thresholds	LOA or Amendment	Report	Must be completed prior to delivery of the defense articles or the furnishing of services	45 calendar days	AECA Section 36(b)(5)(A)
Enhancements or upgrades in sensitivity of technology or capability	Enhancements to equipment that has been previously notified, has not yet been delivered and EXCEEDS the section 36(b)(1) financial thresholds	LOA or Amendment	Notification	Must be completed prior to offering the LOA, or Amendment	15 calendar days for NATO, any NATO member country, Australia, Japan, the Republic of Korea, and New Zealand	AECA Section 36(b)(5)(C)
					All other purchasers - 30 calendar days
Transfers to Greece or Turkey	NATO Member Country 36(b) thresholds	LOA or Amendment		Must be completed prior to offering the LOA, or Amendment	15 calendar days	FAA Section 620C(d)

C5.5.4. Classification of AECA, Section 36(b)(1) Congressional Notifications. If a case is subject to AECA, section 36(b) (22 U.S.C. 2776) Congressional Notification, any draft USG response document (e.g., LOA, notification, or Nonrecurring Cost Recoupment Waiver) that relates the country to the sale items is classified Confidential until DSCA notifies the IA that the DoS has authorized either For Official Use Only (FOUO) handling or unclassified formal notification to Congress. IAs must maintain internal procedures to ensure that documents are handled appropriately. As DSAMS is an unclassified system, classified information cannot be entered into this system even on a temporary basis. It is the sum of the parts (purchaser, system, and quantity or value) in the context of their inclusion in a formal USG response that is classified. The individual parts, if unclassified in the LOR, remain unclassified and can be discussed in an unclassified environment provided they are not associated with a USG response that has not yet been formally notified.

C5.5.4.1. Submission of Initial Information. The IA will provide the following details to DSCA (Business Operations Directorate) via Secret Internet Protocol Router Network (SIPRNET) as soon as enough detail exists to provide reliable data:

Table C5.T14. Required Initial Submission Information

#	Required Information
1	Purchaser
2	Description of Major Defense Equipment (MDE) or other main items being sold
3	Quantity
4	Total Case Value
5	Whether annexes classified for other reasons (e.g., Sensitivity of Technology, Offset Certification) will be attached.

C5.5.4.1.1. DSCA (Business Operation Directorate) will forward this data to the DoS, which will advise in writing whether the draft notification may be prepared as FOUO. Details related to potential 36(b) notifications will continue to be classified and prepared on SIPRNET until DoS has determined that a particular case may be handled as FOUO.

C5.5.4.2. Initial Entry into DSAMS. LOA documents for cases requiring 36(b) Congressional Notification will be entered into DSAMS with a case identifier using a “masking” country code, (e.g., “XX”), to ensure the prospective purchaser is not identified. This identifier is used to enter unclassified case information, including item descriptions, into DSAMS. Using the masking case identifier allows most of the case information to be entered and helps case developers continue their work prior to the notification. The purchaser cannot be named in the notes or other supporting data to ensure the information remains unclassified. The user must use caution when entering data under a masking country code. Many pricing waivers and restrictions are programmed in DSAMS under each specific country. When a masking country code is used, these waivers are not applied automatically and the user must apply them individually as appropriate. The application of specific pricing within DSAMS could reveal the purchaser, e.g., entering a specific waiver percentage for CAS could identify a list of potential purchasers. In these instances, the pricing is done off-line and only a total price for the line should be entered.

C5.5.4.3. Classified Attachments. If any data or attachments are classified by virtue of the information contained in them, (e.g., Sensitivity of Technology, Qualitative Military Edge (Regional Balance) Assessment, Offset Certificate) then regardless of DoS’ handling determination, those portions are kept on pages separate from the rest of the draft notification and marked with the required level of classification. Each paragraph is marked with the required classification level and the derivative authority “classified by” and “declassify on” data are shown.

C5.5.4.4. Handling Determination and Procedures. As soon as the case has been entered into DSAMS, the IA will inform the Country Financial Manager of the masked case identifier, either in conjunction with submission of the Advance or Statutory Notification Data Memorandum (Figure C5.F7.) or by separate email. Upon receipt of DoS’ determination as to how the case will be handled, the Country Financial Manager will enter the appropriate milestone into DSAMS. If DoS approves FOUO handling, entry of the milestone will permit DSAMS to be updated with the actual country code and give LOA documents an FOUO header and footer until the formal notification is made. If FOUO handling is not approved, the milestone will not permit the actual country code to be entered prior to the unclassified formal notification to Congress. If none of the data or attachments is classified for other reasons, the documents are marked “CONFIDENTIAL” with all paragraphs preceded by “(U)”. The bottom of the first page of each submittal shows: “Declassify On Statutory Notification To Congress Unless Required Otherwise By Competent Authority." In either event, upon entry of the actual country code, the remaining case information may be entered. Pricing that was not entered into the system to protect the classification is entered into DSAMS at this time.

C5.5.5. Information Included in Congressional Notifications.

C5.5.5.1. IA Submissions. Figure C5.F7. through Figure C5.F10. show the data the IAs must submit to support AECA, section 36(b)(1) notifications.

C5.5.5.2. Cost Estimates. Rough Order of Magnitude (ROM) cost estimates, as well as generic descriptions of the proposed sales elements are acceptable for processing Congressional Notifications. For notification purposes, proposed sales should be developed for the maximum reasonable program scope and value.

C5.5.5.3. Sensitivity Of Technology. AECA, section 36(b)(1) (22. U.S.C. 2776) requires that Congressional Notifications for MDE contain a Sensitivity of Technology statement, classified if necessary, identifying the extent of the sensitive technology and classified information, and a justification for the sale in view of the technology sensitivity.

C5.5.5.3.1. Sensitivity of Technology refers to the detrimental effect on national security interests of the United States that could be caused by unauthorized disclosure or diversion of defense equipment, technical data, training, services, or documentation transferred in connection with a proposed sale. This includes special tooling or manufacturing equipment that is sold in connection with a coproduction or co-assembly program.

C5.5.5.3.2. The Sensitivity of Technology statement must address both unclassified and classified sensitive technological information and any restricted information contained in classified components or documentation, which could be transferred by the sale. The Sensitivity of Technology information should not address the risk associated with unauthorized disclosure or diversion (covered by National Disclosure Policy (NDP-1) procedures and USD(AT&L) review) or the foreign policy implications of unauthorized use by the proposed recipient. Figure C5.F8. contains a sample format for this information.

C5.5.5.4. Military Justification. Figure C5.F9. provides a sample format for this information.

C5.5.5.5. Offsets. In accordance with AECA section 36(b)(1) (22 U.S.C. 2776), each notification will indicate whether an offset agreement is proposed in connection with the sale. If so, an Offset Certificate, which is treated as confidential information, pursuant to 50 U.S.C. App. 2411(c) and AECA, section 36(g), (22 U.S.C. 2776) must be included. This certificate should be marked “CONFIDENTIAL” and remains classified even after the statutory notification is made. Figure C5.F14. provides a sample format for this information.

Figure C5.F7. Advance or Statutory Notification Data

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Figure C5.F8. Sensitivity of Technology Statement

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Figure C5.F9. Military Justification Data

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Figure C5.F10. Offset Certificate

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C5.5.5.6. Committee Requests. In accordance with AECA, section 36(b)(1), Congressional committees may request the following information be submitted with any notification:

C5.5.5.6.1. A detailed description of the defense articles or services, or design and construction services offered, including a description of the article's capabilities;

C5.5.5.6.2. An estimate of the number of officers and employees of the USG and of U.S. civilian contract personnel needed in-country to carry out the proposed sale;

C5.5.5.6.3. The names of contractors expected to provide the defense articles or services, or design and construction services and a description of any proposed offset agreements;

C5.5.5.6.4. An evaluation, prepared by the Secretary of State in consultation with the Secretary of Defense and the Director of Central Intelligence Agency, of the manner, if any, in which the proposed sale would: Contribute to an arms race, support international terrorism, increase the possibility of an outbreak or escalation of conflict, prejudice the negotiation of any arms controls, or adversely affect the arms control policy of the United States;

C5.5.5.6.5. The reasons why the foreign country or international organization needs the defense articles or services, or design and construction services, and how the country or organization intends to use the defense articles or services, or design and construction services;

C5.5.5.6.6. An analysis by the President of the impact of the sale on the military stocks and the military preparedness of the United States;

C5.5.5.6.7. The reasons why the sale is in the national interest of the United States;

C5.5.5.6.8. An analysis by the President of the impact of the sale on the military capabilities of the foreign country or international organization;

C5.5.5.6.9. An analysis by the President of how the sale would affect the relative military strengths of countries in the region and whether other countries in the region have comparable kinds and amounts of defense articles or services, or design and construction services;

C5.5.5.6.10. An estimate of the levels of trained personnel and maintenance facilities of the foreign country or international organization which are needed and available to effectively utilize the defense articles or services, or design and construction services;

C5.5.5.6.11. An analysis of the extent to which comparable kinds and amounts of defense articles or services, or design and construction services are available from other countries;

C5.5.5.6.12. An analysis of the impact of the sale on U.S. relations with other countries in the same region;

C5.5.5.6.13. For any agreement proposed to be entered into by the United States for the purchase by the United States of equipment or services of the foreign country or international organization in connection with, or as consideration for, such LOA, a detailed description of the agreement including an analysis of the impact upon U.S. business concerns which might otherwise have provided such equipment to the United States, an estimate of the costs to be incurred by the United States compared with costs which would otherwise have been incurred, an estimate of the economic impact and unemployment which would result, and an analysis of whether such costs and domestic economic impact justify entering into the agreement;

C5.5.5.6.14. The projected delivery dates of the defense articles or services, or design and construction services;

C5.5.5.6.15. A detailed description of weapons and levels of munitions that may be required as support for the sale; and

C5.5.5.6.16. An analysis of the relationship of the proposed sale to projected procurements of the same item.

C5.5.6. Responsibilities for Congressional Notification. Under E.O. 11958, the President has delegated the responsibility of implementing AECA, section 36(b) to the Secretary of Defense in consultation with the Secretary of State. Congressional Notification responsibilities are summarized in Table C5.T15.

Table C5.T15. Congressional Notification Responsibilities

Organization	Responsibility
Congress	Initiates committee requests
DoS	Consults with the DoD on Congressional Notifications Prepares FAA, section 620 certifications on Greece and Turkey Evaluates proposed sale regarding support for foreign policy goals, regional stability, consistency with international agreements, and arms control initiatives
DSCA	Prepares and submits Congressional Notifications and Reports after DoS clearance Develops the Sensitivity of Technology Statement
Implementing Agencies	Provides necessary data to DSCA

C5.5.7. Congressional Notification Process.

C5.5.7.1. Processing AECA, Section 36(b)(1) Notifications.

C5.5.7.1.1. Implementing Agencies Prepare Data. Within 10 days of receipt of a valid LOR that meets the Table C5.T10. criteria, the IA prepares and submits the data required for a Congressional Notification to DSCA (Business Operations Directorate). See Figures C5.F7. through C5.F10. for more information.

C5.5.7.1.2. DSCA Prepares Notification. Upon receipt of the data, DSCA prepares the required notification documents, coordinates with the DoS, and submits the notification to Congress. DSCA assigns a Transmittal Number on each statutory notification, which identifies the year and sequential number of the transmittal (e.g. 03-30). This number must be included on the LOA and all subsequent Amendments and Modifications. When the notification is submitted to Congress, DSCA provides the Transmittal Number and a copy of the Congressional transmittal letter(s) to the IA. After receipt of the Transmittal Number, the IA can provide a draft LOA to the Purchaser.

C5.5.7.1.3. Expedited Processing. In the event of circumstances which require expedited processing of a notification (e.g. the need to exercise contract options by a specific date, termination of a current production program), the IA should provide justification in the cover memorandum to the AECA, section 36(b)(1) submission to DSCA so that the DoS and other coordinating agencies are aware of the notification urgency.

C5.5.7.1.4. Program Issues Impacting Sales. The IA must advise DSCA (Business Operations and Operations Directorates) of program difficulties or changes that impact or constrain the potential sale. For example, domestic program budget cuts, projected termination of domestic production contracts, unfavorable test and evaluation results, or program cost increases could have a detrimental effect on a potential sale and affect the Congressional Notification process.

C5.5.7.1.5. After Expiration. Upon expiration of the statutory 15 or 30 day review period and provided that Congress has not enacted a joint resolution objecting to the proposed sale, the LOA document may be coordinated, countersigned, and offered to the purchaser. AECA, section 36(f) requires the publication of the full-unclassified text of each numbered certification submitted pursuant to subsection (b) and each notification of a proposed commercial sale submitted under subsection (c). DSCA posts information regarding major arms sales notifications to Congress at http://www.dsca.mil.

C5.5.7.1.6. Period of Validity. A Congressional Notification that has not resulted in any accepted LOA(s) by a foreign government remains a valid notification against which LOAs may be accepted and implemented for a period not to exceed five years.

C5.5.7.1.7. When Congress Objects. If Congress adopts a joint resolution objecting to a proposed sale, DSCA (Operations Directorate) will notify the IA and the LOA is not offered to the prospective purchaser.

C5.5.7.1.8. Emergency Circumstances. If the President states in the AECA, section 36(b)(1) certification that an emergency exists that requires the proposed sale in the U.S. national security interest, the Congressional review requirements are waived and the LOA is offered before the 15 or 30-day notification period has expired. The President must provide a detailed justification for his or her determination, a description of the emergency circumstances that necessitate the immediate issuance of the LOA, and the national security interests involved.

C5.5.7.2. Processing Section 36(b)(5)(A) Reports. Figure C5.F11. illustrates the data submitted by the IAs to support AECA, section 36(b)(5)(A) reports for applicable sales. The section 36(b)(5)(A) report is required for 10 years after the original Congressional Notification unless deliveries are completed sooner. The IAs should consolidate all upgrades resulting in improved or enhanced capabilities and provide these reports as a package submission to DSCA (Business Operations Directorate).

Figure C5.F11. Enhancement or Upgrade of Sensitivity of Technology of Items Planned to be Delivered, AECA, Section 36(b)(5)(A) Report

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C5.5.7.3. Processing Section 36(b)(5)(C) Enhancement Notifications. Figure C5.F12. illustrates the data submitted by the IAs to support AECA, section 36(b)(5)(C) notifications for applicable sales. The IAs should consolidate upgrades resulting in improved or enhanced mission capabilities and provide these reports as a package submission to DSCA (Business Operations Directorate).

Figure C5.F12. Statutory Notification Data On Enhancement, Upgrade of Capability, or Sensitivity of Technology, AECA, Section 36(b)(5)(C) Report

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C5.5.8. Programs with Long Lead-time Items.

C5.5.8.1. An LOA can be used for the long lead-time items of the major program without Congressional Notification of the initial LOA. The value of this initial LOA for long lead-time items must fall below Congressional Notification thresholds.

C5.5.8.2. A 36(b) Congressional Notification should be submitted using an Amendment to the LOA for the long lead-time item for the remainder of the program. The notification must include a reference to this long lead-time item LOA under “Prior Related Programs” even though this section usually lists only prior related 36(b) LOAs. If the notification is disapproved, the Amendment will not be offered and the existing long-lead time item LOA will cover only costs already incurred. See Appendix 6, LOA Notes, for the applicable note that must be included in the LOA.

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