Congressional Notification in Foreign Military Sales

The President (delegated to the Secretary of Defense) shall submit a numbered certification (with justification, impact, etc.) to the Congress before issuing a foreign military sale (FMS) letter of offer and acceptance (LOA) to sell defense articles or services for $50 million or more, or any design and construction services for $200 million or more, or major defense equipment (MDE) for $14 million or more. The higher dollar thresholds for notification for NATO countries, Japan, Australia, Republic of Korea, Israel, and New Zealand are $100 million, $300 million, and $25 million respectively. Approval for FMS must be provided by the DOS to the DOD prior to any Congressional notification. Once a potential FMS is approved by the DOS, the Defense Security Cooperation Agency (DSCA) provides the official notification to Congress. The DSCA FMS notifications are generally announced and published almost immediately on the DSCA website and later in the Federal Register.

SAMM Figures C5.F14 through C5.F19 are templates for the information to be provided by the IA. Upon receipt of the information, DSCA prepares the notification package and coordinates with the DOS/PM and congressional staff personnel to ensure potential concerns and sensitivities are resolved prior to providing the notification package to Congress.

The LOA shall not be issued if Congress, within thirty calendar days after receiving such certification, adopts a joint resolution stating it objects to the proposed sale. However, such action by Congress does not apply if the President states in his certification that an emergency exists that requires such sale in the national security interests of the U.S. [Section 36(b)(1), AECA].

An exception to the above thirty-day procedure exists for NATO, and NATO member countries, Australia, Japan, Republic of Korea, Israel, and New Zealand.

Congress can object to a proposed case by passing a joint resolution. In the absence of a joint resolution prior to expiration of the statutory notification period, DSCA may electronically countersign the LOA at the end of the notification period and then release it to the IA for official offer to the international partner.

The AECA contains provisions for the congressional rejection of proposals for FMS and DCS, third-country transfers, and leases of U.S. defense articles. The mechanism for such congressional action is a joint resolution. While a joint resolution can be a statement of approval or disapproval, in this context, it will most likely be a statement of disapproval of a proposed sale, transfer, or lease, which is passed by simple majority votes in both the Senate and the House of Representatives. For the resolution to become a law or statute, the President must approve and sign. If the President is unlikely to approve and sign, it may be returned to Congress to override the presidential veto. Unless Congress is able to override the President’s veto by obtaining a two-thirds majority vote in each house in support of the original resolution of rejection, the sale, transfer, or lease will be permitted. Should Congress, however, muster sufficient votes to override the President’s veto, the proposed sale, transfer, or lease would not be authorized.

At the start of the statutory notification period, the notification data becomes public domain information and is posted in the Federal Register and on DSCA’s website. Also, when the statutory notification period begins, the IA may, with DSCA approval, give the international partner an advance copy of the LOA. However, this advance copy must be unsigned and annotated as a draft, and is therefore not considered an official offer.

While Congress does not have to be in session at the start of the statutory notification period, it is prudent for international partners, SCOs, and IAs to consider the congressional calendar when planning key milestones for FMS programs.