[Congressional Record Volume 169, Number 120 (Thursday, July 13, 2023)]
[Senate]
[Pages S2537-S2539]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

  SA 360. Mr. SULLIVAN submitted an amendment intended to be proposed 
by him to the bill S. 2226, to authorize appropriations for fiscal year 
2024 for military activities of the Department of Defense, for military 
construction, and for defense activities of the Department of Energy, 
to prescribe military personnel strengths for such fiscal year, and for 
other purposes; which was ordered to lie on the table; as follows:

       Strike section 1299K and insert the following:

     SEC. 1299K. MODIFICATION OF FOREIGN MILITARY SALES 
                   PROCESSING.

       (a) Deadlines.--
       (1) Responses.--
       (A) Letters of request for pricing and availability.--The 
     Secretary of Defense shall ensure that an eligible foreign 
     purchaser that has submitted a letter of request for pricing 
     and availability data receives a response to the letter not 
     later than 45 days after the date on which the letter is 
     received by a United States security cooperation 
     organization, the Defense Security Cooperation Agency, or 
     other implementing agency.
       (B) Letters of request for letters of offer and 
     acceptance.--The Secretary of Defense and the Secretary of 
     State shall ensure that an eligible foreign purchaser that 
     has submitted a letter of request for a letter of offer and 
     acceptance receives a response--
       (i) in the case of a letter of request for a blanket-order 
     letter of offer and acceptance, cooperative logistics supply 
     support arrangements, or associated amendments and 
     modifications, not later than 45 days after the date on which 
     the letter of request is received by a United States security 
     cooperation organization, the Defense Security Cooperation 
     Agency, or other implementing agency;
       (ii) in the case of a letter of request for a defined-order 
     letter of offer and acceptance or associated amendments and 
     modifications, not later than 100 days after such date; and
       (iii) in the case of a letter of request for a defined-
     order letter of offer and acceptance or associated amendments 
     that involve extenuating factors, as approved by the Director 
     of the Defense Security Cooperation Agency, not later than 
     150 days after such date.
       (C) Waiver.--The Secretary of Defense may waive 
     subparagraphs (A) and (B) if--
       (i) such a waiver is in the national security interests of 
     the United States; and
       (ii) not later than 5 days after exercising such waiver 
     authority, the Secretary provides to the Committee on Foreign 
     Relations of the Senate and the Committee on Foreign Affairs 
     of the House of Representatives notice of the exercise of 
     such authority, including an explanation of the one or more 
     reasons for failing to meet the applicable deadline.
       (2) Expansion of country prioritization.--With respect to 
     foreign military sales to member countries of the North 
     Atlantic Treaty Organization, major non-NATO allies, major 
     defense partners, and major security partners, the Secretary 
     of Defense may assign a Defense Priorities and Allocations 
     System order rating of DX (within the meaning of section 
     700.11 of title 15, Code of Federal Regulations (as in effect 
     on the date of the enactment of this Act)).
       (3) Definitions.--In this subsection:

[[Page S2538]]

       (A) Blanket-order letter of offer and acceptance.--The term 
     ``blanket-order letter of offer and acceptance'' means an 
     agreement between an eligible foreign purchaser and the 
     United States Government for a specific category of items or 
     services (including training) that--
       (i) does not include a definitive listing of items or 
     quantities; and
       (ii) specifies a maximum dollar amount against which orders 
     for defense articles and services may be placed.
       (B) Cooperative logistics supply support arrangement.--The 
     term ``cooperative logistics supply support arrangement'' 
     means a military logistics support arrangement designed to 
     provide responsive and continuous supply support at the depot 
     level for United States-made military materiel possessed by 
     foreign countries or international organizations.
       (C) Defined-order letter of offer and acceptance.--The term 
     ``defined-order letter of offer and acceptance'' means a 
     foreign military sales case characterized by an order for a 
     specific defense article or service that is separately 
     identified as a line item on a letter of offer and 
     acceptance.
       (D) Implementing agency.--The term ``implementing agency'' 
     means the military department or defense agency assigned, by 
     the Director of the Defense Security Cooperation Agency, the 
     responsibilities of--
       (i) preparing a letter of offer and acceptance;
       (ii) implementing a foreign military sales case; and
       (iii) carrying out the overall management of the activities 
     that--

       (I) will result in the delivery of the defense articles or 
     services set forth in the letter of offer and acceptance; and
       (II) was accepted by an eligible foreign purchaser.

       (E) Letter of request.--The term ``letter of request''--
       (i) means a written document--

       (I) submitted to a United States security cooperation 
     organization, the Defense Security Cooperation Agency, or an 
     implementing agency by an eligible foreign purchaser for the 
     purpose of requesting to purchase or otherwise obtain a 
     United States defense article or defense service through the 
     foreign military sales process; and
       (II) that contains all relevant information in such form as 
     may be required by the Secretary of Defense; and

       (ii) includes--

       (I) a formal letter;
       (II) an e-mail;
       (III) signed meeting minutes from a recognized official of 
     the government of an eligible foreign purchaser; and
       (IV) any other form of written document, as determined by 
     the Secretary of Defense or the Director of the Defense 
     Security Cooperation Agency.

       (F) Major defense partner.--The term ``major defense 
     partner'' means--
       (i) India; and
       (ii) any other country, as designated by the Secretary of 
     Defense.
       (G) Major non-nato ally.--The term ``major non-NATO 
     ally''--
       (i) has the meaning given the term in section 644 of the 
     Foreign Assistance Act of 1961 (22 U.S.C. 2403)); and
       (ii) includes Taiwan, as required by section 1206 of the 
     Security Assistance Act of 2002 (Public Law 107-228; 22U.S.C. 
     2321k note).
       (H) Major security partner.--The term ``major security 
     partner'' means--
       (i) the United Arab Emirates;
       (ii) Bahrain;
       (iii) Saudi Arabia; and
       (iv) any other country, as designated by the Secretary of 
     Defense, in consultation with the Secretary of State and the 
     Director of National Intelligence.
       (b) Limitation on Period of Department of State 
     Consultation With Respect to Proposed Foreign Military Sales 
     to Certain Countries.--
       (1) In general.--Any period of consultation between the 
     Secretary of State and Congress with respect to a proposed 
     foreign military sale to Israel, Japan, the Republic of 
     Korea, New Zealand, Australia, or an eligible foreign 
     purchaser that is a member of the North Atlantic Treaty 
     Organization may not be longer than 10 days.
       (2) Notification.--In the case of a proposed foreign 
     military sale described in paragraph (1) for which the 10-day 
     period under that paragraph has elapsed without objection 
     from the Committee on Foreign Relations of the Senate or the 
     Committee on Foreign Affairs of the House of Representatives, 
     such sale shall be considered approved for formal 
     notification under section 36(c)(2) of the Arms Export 
     Control Act (22 U.S.C. 2776(c)(2)).
       (c) Limitations on Price Modifications for Sale of Defense 
     Articles or Services.--
       (1) In general.--With respect to the dollar amount of an 
     offer to sell or the sale of United States defense articles 
     or services developed by a military department and the 
     Defense Security Cooperation Agency for purposes of the 
     foreign military sales process documented in a letter of 
     offer to an eligible foreign purchaser and submitted to the 
     Secretary of State for review, the Secretary of Defense may 
     subsequently direct an increase of--
       (A) not more than 20 percent of such dollar amount to 
     account for supply chain disruptions, including the 
     unavailability of materials and inflation; and
       (B) not less than 20 percent of such dollar amount, subject 
     to review by the Foreign Military Sales Cost Review Board.
       (2) Foreign military sales cost review board.--
       (A) Establishment.--The Secretary of Defense shall 
     establish within the Department of Defense a board, to be 
     known as the ``Foreign Military Sales Cost Review Board'' (in 
     this paragraph referred to as the ``Board'')--
       (i) to review requests by the Director of the Defense 
     Security Cooperation Agency for an increase in the dollar 
     amount described in paragraph (1) that is more than 20 
     percent of the dollar amount documented in a letter of offer 
     and acceptance to an eligible foreign purchaser and submitted 
     to the Secretary of State for review; and
       (ii) to make recommendations to the Secretary of Defense as 
     to whether such an increase in such dollar amount should be 
     directed, and if so, the recommended amount of such increase 
     to be implemented.
       (B) Consultation.--The Board shall conduct reviews under 
     subparagraph (A)(i) in consultation with the eligible foreign 
     purchaser concerned.
       (3) Justification for price increase.--In the case of an 
     increase in the dollar amount described in paragraph (1), the 
     Secretary of Defense shall provide to the eligible foreign 
     purchaser and the primary defense industry provider concerned 
     documentation justifying such increase.
       (4) Report.--Beginning on December 15, 2025, and annually 
     thereafter, the Under Secretary of Defense for Acquisition 
     and Sustainment and the Under Secretary of Defense for Policy 
     shall submit a report, and provide a briefing, to the 
     Committees on Armed Services of the Senate and the House of 
     Representatives on each request for a dollar amount increase 
     reviewed by the Board during the fiscal year ending on 
     September 30 of the applicable year.
       (d) Clarification With Respect to Special Defense 
     Acquisition Fund.--Section 51 of the Arms Export Control Act 
     (22 U.S.C. 2795) is amended by adding at the end the 
     following new subsection:
       ``(d) Decisions with respect to the use of a portion of the 
     Fund for the acquisition of defense articles and defense 
     services in anticipation of their transfer pursuant to this 
     Act, the Foreign Assistance Act of 1961 (22 U.S.C. 2151 et 
     seq.), or as otherwise authorized by law, to eligible foreign 
     countries and international organizations shall be made 
     independently of acquisition decisions relating to the 
     requirements of the United States Armed Forces.''.
       (e) Expedited Deliveries to Priority Foreign Purchasers.--
       (1) Acquisition strategies.--
       (A) In general.--With respect to a foreign country or 
     capability identified by the Secretary of Defense as a 
     regional or country-level foreign defense capability-building 
     priority, the Secretary shall establish a requirement that, 
     in developing letters of offer and acceptance, the 
     acquisition program office of each military department shall 
     develop, at program inception--
       (i) an acquisition strategy that documents the standard 
     acquisition path; and
       (ii) an acquisition strategy that documents the fastest 
     acquisition path.
       (B) Associated risk.--In developing each acquisition 
     strategy required by clauses (i) and (ii) of subparagraph 
     (A), the acquisition program office of the military 
     department concerned shall--
       (i) measure, and justify with respect to the urgency of 
     delivering a capability in full or in phases, the associated 
     risk, risk mitigation, and risk cost; and
       (ii) provide, in coordination with the appropriate regional 
     directorate of the Office of the Under Secretary of Defense 
     for Policy and the Director of the Defense Security 
     Cooperation Agency, to the acquisition leadership of such 
     military department a briefing on the results of the 
     measurements under clause (i).
       (C) Decision.--Not later than 30 days after the date of a 
     briefing under subparagraph (B)(ii), the acquisition 
     leadership of the military department concerned shall issue a 
     decision with respect to the acquisition strategy selected.
       (2) Input from eligible foreign purchaser.--
       (A) In general.--The Secretary of Defense shall ensure 
     that, in the development of acquisition strategies for 
     priority countries and capabilities under paragraph (1), the 
     foreign purchaser is provided an opportunity to provide input 
     with respect to risk tolerance.
       (B) Information sharing.--In carrying out subparagraph (A), 
     the Secretary of Defense shall ensure that a foreign 
     purchaser is briefed on risks identified, alternate 
     approaches that may be taken, and the schedule, cost, and 
     capability tradeoffs associated with such alternate 
     approaches.
       (C) Inclusion in briefing.--Foreign purchaser input 
     gathered under this paragraph shall be included in the 
     briefing required by paragraph (1)(B)(ii) and appropriately 
     weighted in making final a decision with respect to the 
     appropriate acquisition approach.
       (3) Agreements with manufacturers.--
       (A) In general.--The Secretary of Defense shall allow 
     United States companies to enter into agreements with 
     manufacturers to begin the process of acquiring long-lead 
     Government-furnished equipment on forecast.
       (B) High-demand systems.--United States companies that 
     produce high-demand systems shall purchase certain sensitive 
     and closely controlled items, such as communications security 
     devices, military grade

[[Page S2539]]

     GPS, and anti-spoofing devices, as Government-furnished 
     equipment.
       (C) Department of defense policy.--
       (i) In general.--The Secretary of Defense shall implement 
     policies, and ensure that the head of each military 
     department implements policies, that allow United States 
     companies to enter into agreements with manufacturers of 
     Government-furnished equipment so that production on long-
     lead Government-furnished equipment may begin before the 
     execution of a signed commercial contract or the issuance of 
     a letter of offer and acceptance.
       (ii) Elements.--The policies required by clause (i) shall 
     require that--

       (I) United States companies shall--

       (aa) before entering into an agreement under this 
     paragraph, obtain the concurrence or approval of the head of 
     the military department concerned to do so; and
       (bb) be responsible for--
       (AA) negotiating directly with the manufacturer of 
     Government-furnished equipment; and
       (BB) providing any payment to such manufacturer; and

       (II) transfer of Government-furnished equipment from such 
     manufacturer to the purchasing company shall not occur until 
     the date on which a letter of offer and acceptance or 
     commercial contract is produced.

       (D) Recovery of costs for certain sales.--In the case of 
     defense sales, purchasing companies may recoup costs 
     associated with ordering the Government-furnished equipment 
     described in the applicable letter of offer and acceptance.
       (f) Modifications to Reporting and Notification 
     Requirements for Foreign Military Sales.--Section 36 of the 
     Arms Export Control Act (22 U.S.C. 2776) is amended--
       (1) in subsection (a)--
       (A) in paragraph (11)(D), by striking ``; and'' and 
     inserting a semicolon;
       (B) in paragraph (12), by striking the period at the end 
     and inserting ``; and''; and
       (C) by inserting after paragraph (12) the following new 
     paragraph:
       ``(13) with respect to each letter of offer listed under 
     paragraph (1), the date on which the corresponding letter of 
     request for a letter of offer and acceptance was 
     submitted.'';
       (2) in subsection (b), by adding at the end the following 
     new paragraph:
       ``(7) In addition to the other information required to be 
     contained in a certification submitted to Congress under this 
     subsection, each such certification shall include the date on 
     which the corresponding letter of request for a letter of 
     offer and acceptance was submitted.''; and
       (3) in subsection (c), by adding at the end the following 
     new paragraph:
       ``(7) In addition to the other information required to be 
     contained in a certification submitted to Congress under this 
     subsection, each such certification shall include the date on 
     which the corresponding letter of request for a letter of 
     offer and acceptance was submitted.''.
                                 ______