Preparing a 36(b) notification package

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1. What the implementing agency sends

Formal notice of a sale to Congress under section 36(b) of the Arms Export Control Act (AECA) starts with a package. The implementing agency (IA) prepares the initial notification package for the Defense Security Cooperation Agency (DSCA) (SAMM C5.7.5). The Security Assistance Management Manual sets out what that package must contain. Some parts go to Congress, and others are used only for processing. When a notification is required, and what happens after it goes in, is covered in congressional notification of arms sales under 36(b).

2. Classification and public release

To the greatest extent possible, congressional notifications should be unclassified (SAMM C5.7.5.1.1). Unclassified notifications go to the DSCA notification team over the unclassified military network. Until formal notification, all the documentation is marked and handled as Controlled Unclassified Information and as pre-decisional, unless DSCA or the State Department directs otherwise (SAMM C5.7.5.1.1.1).

After formal notification, the full text of an unclassified notification is published in the Congressional Record (SAMM C5.7.5.1.1.2). Apart from classified notifications and annexes, the full texts of 36(b)(1) and 36(b)(5)(C) notifications also appear in the Federal Register. Details of 36(b)(1) notifications appear on the Major Arms Sales page of the DSCA website. For that reason, unclassified notification documents may not contain controlled, unreleasable or classified information.

Some notifications need classified supporting material, such as country team assessments, combatant command endorsements or offset certificates (SAMM C5.7.5.1.1.3). Those portions sit on pages separate from the unclassified draft. They are marked and portion marked, and go to the notification team over the secret network at the same time as the unclassified package.

3. Sensitive and classified notifications

In rare cases, DSCA or the State Department may judge a draft response to an unclassified request politically sensitive (SAMM C5.7.5.1.1.4). It is then handled as Confidential until State approves controlled unclassified handling. That covers the offer, the notification and any nonrecurring cost recoupment waiver. What is protected is the combination of parts, such as purchaser, system, quantity and value. Individual parts that were unclassified in the request stay unclassified, provided they are not tied to a response not yet notified.

Such a case is entered in the Defense Security Assistance Management System (DSAMS) under a masked country code, so that the purchaser is not identified (SAMM C5.7.5.1.1.4.1). Many pricing waivers stored under each country code are then not applied automatically. Specific pricing that could reveal the purchaser is done separately, and only a line total is entered. Once State approves controlled handling, or the formal notification is made, the actual country code and the withheld pricing go into DSAMS (SAMM C5.7.5.1.1.4.3).

A fully classified notification is allowed by the AECA only if public disclosure would be detrimental to American security (SAMM C5.7.5.1.2). Each must come with a description of the damage that disclosure could be expected to cause, and decisions to classify are granted only on exceptionally rare occasions. A purchaser’s request, or a claim of damage to its own national security, does not meet the legal standard.

4. Before the package goes in

Before notification, the IA must tell DSCA and the country portfolio director of any program difficulties or changes that may constrain the sale (SAMM C5.7.5.1.4). The manual’s examples are domestic budget cuts, projected termination of domestic production contracts, unfavorable test and evaluation results and program cost increases.

Each package comes with an IA cover memorandum signed at general officer, flag officer or Senior Executive Service level or higher (SAMM C5.7.5.2). It is for DSCA processing and is not sent to Congress. A country team assessment is included when required, and is generally dated within two years of the package, unless DSCA asks for a newer one (SAMM C5.7.5.3). It too is used only for processing. A combatant command endorsement should go with it if the sale is the first introduction of a technology or capability to a country or region (SAMM C5.7.5.4).

5. What Congress receives

The IA drafts the transmittal document from the manual’s templates, which differ for 36(b)(1) packages and for 36(b)(5)(A) and 36(b)(5)(C) packages (SAMM C5.7.5.5). With the policy justification and any sensitivity of technology statement, it forms the formal package delivered to Congress. Section 36(b) requires major defense equipment (MDE) to be separately identified and quantified in the transmittal. MDE cannot be offered on an offer or amendment unless the notification identified and quantified it, even when the MDE value is below the thresholds.

A separate policy justification is required for 36(b)(1) notifications (SAMM C5.7.5.6). For 36(b)(5)(A) and 36(b)(5)(C) notifications, a brief summary of the justification goes in the transmittal instead. A 36(b)(1) notification also needs a sensitivity of technology annex, covering all MDE and any other articles or services that are sensitive or classified (SAMM C5.7.5.7). It describes the technology’s capability, the highest classification involved and the potential impact if an adversary learned of it. It also covers the protection the purchaser can offer, and whether the sale is necessary from a policy perspective. It should not address National Disclosure Policy procedures, or the foreign policy implications of unauthorized use. Because the text is published, it cannot contain controlled or classified information.

6. Offsets and further questions

The policy justification must say, if known, whether an offset agreement is proposed with the sale (SAMM C5.7.5.8). If the details are known, the IA should submit an offset certificate. The certificate is treated as classified confidential information under section 36(g) of the AECA, and stays classified after the notification is made.

Congress may request further information under section 36(b), and the IA should be ready to provide it (SAMM C5.7.5.9). The manual’s list includes the sale’s effect on American military stocks and preparedness, on the purchaser’s capabilities and on the relative military strength of countries in the region. It also covers the trained personnel and facilities the purchaser needs, and comparable items available from other countries. Some notifications also need further documents prepared by the State Department (SAMM C5.7.5.10).

Key terms

Notification package	The documents an implementing agency submits to DSCA before a sale is notified to Congress.
Transmittal document	The core notice delivered to Congress, which must identify and quantify major defense equipment.
Policy justification	The attachment explaining the policy case for a 36(b)(1) sale.
Sensitivity of technology annex	The published description of sensitive technology in a sale and how it is protected.
Masked country code	A placeholder code that keeps a sensitive purchaser unidentified before notification.
Offset certificate	A classified statement of a proposed offset agreement, kept classified after notification.

Every statement above links to the document behind it. The full source list for this piece is on the sources page.

This page describes public United States government programs for general information. It is not legal, regulatory or procurement advice, and it does not address the facts of any particular case.

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