22 U.S.C. § 3302 — Implementation of United States policy

Page 1330 TITLE 22—FOREIGN RELATIONS AND INTERCOURSE § 3302 ‘‘(4) carry out a program of exchanges of senior military officers and senior officials with Taiwan to improve military-to-military relations, as expressed in section 1284 of the National Defense Authorization Act for Fiscal Year 2017 (Public Law 114–328; 130 Stat. 2544); ‘‘(5) support expanded exchanges focused on prac- tical training for Taiwan personnel by and with United States military units, including exchanges among services; ‘‘(6) conduct bilateral naval exercises, to include pre-sail conferences, in the western Pacific Ocean with the Taiwan navy; and ‘‘(7) consider the advisability and feasibility of re- establishing port of call exchanges between the United States navy and the Taiwan navy.’’ Executive Documents EXECUTIVE ORDER NO. 12143 Ex. Ord. No. 12143, June 22, 1979, 44 F.R. 37191, which provided for facilitation of the maintenance of com- mercial, cultural, and other relations between the peo- ples of the United States and Taiwan, was superseded by Ex. Ord. No. 13014, Aug. 15, 1996, 61 F.R. 42963, set out below. EX. ORD. NO. 13014. MAINTAINING UNOFFICIAL RELATIONS WITH THE PEOPLE ON TAIWAN Ex. Ord. No. 13014, Aug. 15, 1996, 61 F.R. 42963, pro- vided: In light of the recognition of the People’s Republic of China by the United States of America as the sole legal government of China, and by the authority vested in me as President of the United States of America by the Taiwan Relations Act (Public Law 96-8, 22 U.S.C. 3301 et seq.) (‘‘Act’’), and section 301 of title 3, United States Code, in order to facilitate the maintenance of com- mercial, cultural, and other relations between the peo- ple of the United States and the people on Taiwan with- out official representation or diplomatic relations, it is hereby ordered as follows: SECTION 1. Delegation and Reservation of Functions. 1–101. Exclusive of the functions otherwise delegated, or reserved to the President by this order, there are delegated to the Secretary of State (‘‘Secretary’’) all functions conferred upon the President by the Act, in- cluding the authority under section 7(a) of the Act [22 U.S.C. 3306(a)] to specify which laws of the United States relative to the provision of consular services may be administered by employees of the American In- stitute on Taiwan (‘‘Institute’’). In carrying out these functions, the Secretary may redelegate his authority, and shall consult with other departments and agencies as he deems appropriate. 1–102. There are delegated to the Director of the Of- fice of Personnel Management the functions conferred upon the President by paragraphs (1) and (2) of section 11(a) of the Act [22 U.S.C. 3310(a)]. These functions shall be exercised in consultation with the Secretary. 1–103. There are reserved to the President the func- tions conferred upon the President by section 3 [22 U.S.C. 3302], the second sentence of section 9(b) [22 U.S.C. 3308(b)], and the determinations specified in sec- tion 10(a) of the Act [22 U.S.C. 3309(a)]. SEC. 2. Specification of Laws and Determinations. 2–201. Pursuant to section 9(b) of the Act [22 U.S.C. 3308(b)], and in furtherance of the purposes of the Act, the procurement of services may be effected by the In- stitute without regard to the following provisions of law and limitations of authority as they may be amended from time to time: (a) Sections 1301(d) and 1341 of title 31, United States Code, and section 3732 of the Revised Statutes (41 U.S.C. 11) to the extent necessary to permit the indem- nification of contractors against unusually hazardous risks, as defined in Institute contracts, consistent, to the extent practicable, with section 52.228-7 of the Fed- eral Acquisition Regulations; (b) Section 3324 of title 31, United States Code; (c) Sections 3709, 3710, and 3735 of the Revised Stat- utes, as amended (41 U.S.C. 5, 8, and 13); (d) Section 2 of title III of the Act of March 3, 1933 (41 U.S.C. 10a); (e) Title III of the Federal Property and Administra- tive Services Act of 1949, as amended (41 U.S.C. 251-260); (f) The Contract Disputes Act of 1978, as amended (41 U.S.C. 601-613); (g) [Former] Chapter 137 of title 10, United States Code (10 U.S.C. 2301-2316); (h) The Act of May 11, 1954 (the ‘‘Anti-Wunderlich Act’’) (41 U.S.C. 321, 322); and (i) Section (f) of 41 U.S.C. 423. 2–202. (a) With respect to cost-type contracts with the Institute under which no fee is charged or paid, amend- ments and modifications of such contracts may be made with or without consideration and may be uti- lized to accomplish the same things as any original contract could have accomplished, irrespective of the time or circumstances of the making, or the form of the contract amended or modified, or of the amending or modifying contract and irrespective of rights that may have accrued under the contractor [contract] the amendments or modifications thereof. (b) With respect to contracts heretofore or hereafter made under the Act, other than those described in sub- section (a) of this section, amendments and modifica- tions of such contracts may be made with or without consideration and may be utilized to accomplish the same things as any original contract could have accom- plished, irrespective of the time or circumstances of the making, or the form of the contract amended or modified, or of the amending or modifying contract, and irrespective of rights that may have accrued under the contract or the amendments or modifications thereof, if the Secretary determines in each case that such action is necessary to protect the foreign policy interests of the United States. 2–203. Pursuant to section 10(a) of the Act [22 U.S.C. 3309(a)], the Taipei Economic and Cultural Representa- tive Office in the United States (‘‘TECRO’’), formerly the Coordination Council for North America Affairs (‘‘CCNAA’’), is determined to be the instrumentality established by the people on Taiwan having the nec- essary authority under the laws applied by the people on Taiwan to provide assurances and take other actions on behalf of Taiwan in accordance with the Act. Noth- ing contained in this determination or order shall af- fect, or be construed to affect, the continued validity of agreements, contracts, or other undertakings, of what- ever kind or nature, entered into previously by CCNAA. SEC. 3. President’s Memorandum of December 30, 1978. 3–301. Agreements and arrangements referred to in paragraph (B) of President Carter’s memorandum of December 30, 1978, entitled ‘‘Relations With the People on Taiwan’’ (44 FR 1075) shall, unless otherwise termi- nated or modified in accordance with law, continue in force and be performed in accordance with the Act and this order. SEC. 4. General. This order supersedes Executive Order No. 12143 of June 22, 1979. WILLIAM J. CLINTON. § 3302. Implementation of United States policy with regard to Taiwan (a) Defense articles and services In furtherance of the policy set forth in sec- tion 3301 of this title, the United States will make available to Taiwan such defense articles and defense services in such quantity as may be necessary to enable Taiwan to maintain a suffi- cient self-defense capability. (b) Determination of Taiwan’s defense needs The President and the Congress shall deter- mine the nature and quantity of such defense ar- Page 1331 TITLE 22—FOREIGN RELATIONS AND INTERCOURSE § 3302 ticles and services based solely upon their judg- ment of the needs of Taiwan, in accordance with procedures established by law. Such determina- tion of Taiwan’s defense needs shall include re- view by United States military authorities in connection with recommendations to the Presi- dent and the Congress. (c) United States response to threats to Taiwan or dangers to United States interests The President is directed to inform the Con- gress promptly of any threat to the security or the social or economic system of the people on Taiwan and any danger to the interests of the United States arising therefrom. The President and the Congress shall determine, in accordance with constitutional processes, appropriate ac- tion by the United States in response to any such danger. (Pub. L. 96–8, § 3, Apr. 10, 1979, 93 Stat. 15.) Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section effective as of January 1, 1979, see section 18 of Pub. L. 96–8, set out as a note under section 3301 of this title. ESTABLISHMENT OF PROGRAM BETWEEN THE UNITED STATES AND TAIWAN FOR MILITARY TRAUMA CARE Pub. L. 118–159, div. A, title XIII, § 1322, Dec. 23, 2024, 138 Stat. 2114, provided that: ‘‘(a) IN GENERAL.—The Secretary of Defense, in con- sultation with the Secretary of State, may establish a joint program on military trauma care with appro- priate personnel of the military forces of Taiwan, con- sistent with the Taiwan Relations Act (22 U.S.C. 3301 et seq.). ‘‘(b) ACTIVITIES.—The program authorized by sub- section (a) may consist of the following activities be- tween personnel of the United States military health system and the medical personnel of Taiwan’s military forces related to general trauma care, amputation and amputee care, post-traumatic stress disorder, trau- matic brain injuries, and any other mental health con- dition associated with post-traumatic stress disorder or traumatic brain injuries: ‘‘(1) Dialogue on best practices for general trauma care, with a focus on amputation and amputee care, including the following elements of amputee care: ‘‘(A) Use of prosthetics. ‘‘(B) Wound care. ‘‘(C) Rehabilitative therapy. ‘‘(D) Family counseling. ‘‘(E) Mental health therapy. ‘‘(2) Training and support on trauma care, to in- clude amputation and amputee care. ‘‘(3) The conduct of relevant joint conferences and exchanges with military medical professionals. ‘‘(4) Opportunities for personnel to attend classes on best practices for trauma and amputee rehabilita- tion. ‘‘(5) Any other relevant military trauma care edu- cational activities that the Secretary of Defense and appropriate officials from Taiwan’s military forces determine appropriate. ‘‘(c) USE OF AUTHORITIES.—In carrying out the joint program authorized by subsection (a), the Secretary of Defense may use the authorities under chapter 16 of title 10, United States Code, and other applicable statu- tory authorities available to the Secretary.’’ TAIWAN SECURITY COOPERATION INITIATIVE Pub. L. 118–159, div. A, title XIII, § 1323, Dec. 23, 2024, 138 Stat. 2115, provided that: ‘‘(a) AUTHORITY TO PROVIDE ASSISTANCE.— ‘‘(1) IN GENERAL.—Consistent with the Taiwan Rela- tions Act (22 U.S.C. 3301 et. [sic] seq.), the Secretary of Defense, with the concurrence of the Secretary of State, may provide, for the purpose described in para- graph (2), appropriate assistance as defined in sub- section (b) to— ‘‘(A) the military, central government security forces, and central government security agencies of Taiwan; and ‘‘(B) civilian central government entities of Tai- wan that have among their functional responsibil- ities the support of military and central govern- ment security forces. ‘‘(2) PURPOSE.—The purpose described in this para- graph is to enable Taiwan to maintain sufficient self- defense capabilities, including through one or more of the following: ‘‘(A) The capabilities of the military, central gov- ernment security forces, and central government security agencies of Taiwan to defend against coer- cion and aggression. ‘‘(B) The ability of the civilian central govern- mental institutions of Taiwan to provide oversight and support, ensure accountability of, or manage, such forces. ‘‘(b) APPROPRIATE ASSISTANCE DEFINED.— ‘‘(1) For purposes of subparagraph (A) of subsection (a)(1), the term ‘appropriate assistance’ includes the following: ‘‘(A) Modifications to equipment provided by the United States for exportability or technology secu- rity. ‘‘(B) Technology or services for effective end-use monitoring. ‘‘(C) Intelligence, surveillance, and reconnais- sance capabilities or support. ‘‘(D) Anti-armor capabilities. ‘‘(E) Radars. ‘‘(F) Manned and unmanned aerial capabilities. ‘‘(G) Defensive cyber capabilities. ‘‘(H) Long-range precision fires. ‘‘(I) Integrated air and missile defense systems. ‘‘(J) Anti-ship missiles. ‘‘(K) Electronic warfare and counter-electronic warfare capabilities or support. ‘‘(L) Secure communications equipment and other electronic protection systems. ‘‘(M) Undersea warfare capabilities. ‘‘(N) Survivable swarming maritime assets. ‘‘(O) Integrated air and missile defense systems or capabilities. ‘‘(P) Mine and counter-mine capabilities. ‘‘(Q) Littoral-zone and coastal defense vessels. ‘‘(R) Coastal defense capabilities. ‘‘(S) Transportation capabilities. ‘‘(T) Command and control capabilities. ‘‘(U) Munitions. ‘‘(V) Training for critical operations and as re- quired to maintain or employ systems and capabili- ties specified in subparagraphs (B) through (U). ‘‘(2) For purposes of subparagraph (B) of subsection (a)(1), the term ‘appropriate assistance’ includes the following: ‘‘(A) Modifications to equipment provided by the United States for exportability or technology secu- rity. ‘‘(B) Technology or services for effective end-use monitoring. ‘‘(C) Intelligence, surveillance, and reconnais- sance capabilities or support. ‘‘(D) Radars. ‘‘(E) Manned and unmanned aerial capabilities. ‘‘(F) Defensive cyber capabilities or support. ‘‘(G) Secure communications equipment and other electronic protection systems. ‘‘(H) Transportation capabilities. ‘‘(I) Command and control capabilities. ‘‘(J) Training for critical operations and as re- quired to maintain or employ systems and capabili- ties specified in subparagraphs (B) through (I). Page 1332 TITLE 22—FOREIGN RELATIONS AND INTERCOURSE § 3302 ‘‘(c) CONSTRUCTION OF AUTHORIZATION.—Nothing in this section may be construed to constitute a specific statuary authorization for the introduction of United States Armed Forces into hostilities or into situations wherein hostilities are clearly indicated by the cir- cumstances. ‘‘(d) FUNDING.—Of the amounts authorized to be ap- propriated for fiscal year 2025 for the Department of Defense, not more than $300,000,000 may be made avail- able for the purposes of subsection (a). ‘‘(e) ADDITIONAL AUTHORITY FOR USE OF UNITED STATES INVENTORY.—The Secretary of Defense, with the concurrence of the Secretary of State, may, in such quantity as the Secretary of Defense determines appro- priate to achieve the purposes of subsection (a)(2)— ‘‘(1) make available to the military, central govern- ment security forces, and central government secu- rity agencies of Taiwan defense articles from the United States inventory and defense services, and to recover or dispose of such defense articles; or ‘‘(2) make available to the foreign military and na- tional security forces and ministries of defense (or se- curity agencies serving a similar defense function) of foreign partners defense articles to replenish com- parable stocks that such governments have provided to the military, central government security forces, and central government security agencies of Taiwan. ‘‘(f) NOTIFICATION TO CONGRESS.— ‘‘(1) IN GENERAL.—Not later than 15 days before pro- viding assistance or support under subsection (a)(1) or (e), the Secretary of Defense shall submit to the ap- propriate committees of Congress a notice containing a description of the defense articles or defense serv- ices that will be provided. ‘‘(2) ASSISTANCE OR SUPPORT PROVIDED UNDER SUB- SECTION (a).—A report under paragraph (1) with re- spect to the provision of assistance or support under subsection (a)(1) shall include the following: ‘‘(A) An identification of the specific recipient of the defense articles or defense services. ‘‘(B) Objectives of providing the defense articles or defense services. ‘‘(C) The cost of providing the defense articles or defense services. ‘‘(D) The anticipated timeline for delivery of the defense articles or defense services. ‘‘(3) ASSISTANCE OR SUPPORT PROVIDED UNDER SUB- SECTION (e).—A report under paragraph (1) with re- spect to the provision of assistance or support under subsection (e) shall include the following: ‘‘(A) An identification of the recipient foreign country. ‘‘(B) A detailed description of the articles to be provided, including the dollar value, origin, and ca- pabilities associated with the articles. ‘‘(C) A detailed description of the articles pro- vided to Taiwan to be replenished, including the dollar value, origin, and capabilities associated with the articles. ‘‘(D) The impact on United States inventory and readiness of transferring the articles. ‘‘(E) An assessment of any security, intellectual property, or end use monitoring issues associated with transferring the articles. ‘‘(4) APPROPRIATE COMMITTEES OF CONGRESS DE- FINED.—In this subsection, the term ‘appropriate committees of Congress’ means— ‘‘(A) the Committee on Armed Services, the Com- mittee on Appropriations, and the Committee on Foreign Relations of the Senate; and ‘‘(B) the Committee on Armed Services, the Com- mittee on Appropriations, and the Committee on Foreign Affairs of the House of Representatives. ‘‘(g) RULE OF CONSTRUCTION.—Nothing in this section may be construed as circumventing the applicable re- quirements of the Arms Export Control Act (22 U.S.C. 2751 et seq.). ‘‘(h) TERMINATION.—The authority provided by this section shall terminate on December 31, 2029.’’ NORMALIZING THE TRANSFER OF DEFENSE ARTICLES AND DEFENSE SERVICES TO TAIWAN Pub. L. 115–91, div. A, title XII, § 1259A, Dec. 12, 2017, 131 Stat. 1685, as amended by Pub. L. 118–159, div. A, title XIII, § 1321, Dec. 23, 2024, 138 Stat. 2114, provided that: ‘‘(a) SENSE OF CONGRESS.—It is the sense of Congress that any requests from the Government of Taiwan for defense articles and defense services should receive a case-by-case review by the Secretary of Defense, in consultation with the Secretary of State, that is con- sistent with the standard processes and procedures in an effort to normalize the arms sales process with Tai- wan. ‘‘(b) REPORT.— ‘‘(1) IN GENERAL.—Not later than 120 days after the date on which the Secretary of Defense receives a Letter of Request from Taiwan with respect to the transfer of a defense article or defense service to Tai- wan, the Secretary, in consultation with the Sec- retary of State, shall submit to the appropriate con- gressional committees a report that includes— ‘‘(A) the status of such request; ‘‘(B) if the transfer of such article or service would require a certification or report to Congress pursuant to any applicable provision of section 36 of the Arms Export Control Act (22 U.S.C. 2776), the status of any Letter of Offer and Acceptance the Secretary of Defense intends to issue with respect to such request; and ‘‘(C) an assessment of whether the transfer of such article or service would be consistent with United States obligations under the Taiwan Rela- tions Act (Public Law 96–8; 22 U.S.C. 3301 et seq.). ‘‘(2) ELEMENTS.—Each report required under para- graph (1) shall specify the following: ‘‘(A) The date the Secretary of Defense received the Letter of Request. ‘‘(B) The value of the sale proposed by such Let- ter of Request. ‘‘(C) A description of the defense article or de- fense service proposed to be transferred. ‘‘(D) The view of the Secretary of Defense with re- spect to such proposed sale and whether such sale would be consistent with United States defense ini- tiatives with Taiwan. ‘‘(3) FORM.—Each report required under paragraph (1) may be submitted in classified form. ‘‘(c) BRIEFING.—Not later than 180 days after the date of the enactment of this Act [Dec. 12, 2017], and every 180 days thereafter, the Secretary of Defense, in coordi- nation with the Secretary of State, shall provide a briefing to the appropriate congressional committees with respect to the security challenges faced by Taiwan and the military cooperation between the United States and Taiwan, including a description of any re- quests from Taiwan for the transfer of defense articles or defense services and the status, whether signed or unsigned, of any Letters of Offer and Acceptance with respect to such requests. ‘‘(d) DEFINITIONS.—In this section: ‘‘(1) APPROPRIATE CONGRESSIONAL COMMITTEES.—The term ‘appropriate congressional committees’ means— ‘‘(A) the Committee on Armed Services and the Committee on Foreign Affairs of the House of Rep- resentatives; and ‘‘(B) the Committee on Armed Services and the Committee on Foreign Relations of the Senate. ‘‘(2) DEFENSE ARTICLE; DEFENSE SERVICE.—The terms ‘defense article’ and ‘defense service’ have the meanings given such terms in section 47 of the Arms Export Control Act (22 U.S.C. 2794). ‘‘(3) LETTER OF REQUEST; LETTER OF OFFER AND AC- CEPTANCE.—The terms ‘Letter of Request’ and ‘Letter of Offer and Acceptance’ have the meanings given such terms for purposes of Chapter 5 of the Security Assistance Management Manual of the Defense Secu- rity Cooperation Agency, as in effect on the date of the enactment of this Act.’’ Page 1333 TITLE 22—FOREIGN RELATIONS AND INTERCOURSE § 3303 CONSULTATION WITH CONGRESS WITH REGARD TO TAIWAN Pub. L. 107–228, div. B, title XII, § 1263, Sept. 30, 2002, 116 Stat. 1434, provided that: ‘‘Beginning 180 days after the date of enactment of this Act [Sept. 30, 2002], and every 180 days thereafter, the President shall provide detailed briefings to and consult with the appropriate congressional committees regarding the United States security assistance to Taiwan, including the provision of defense articles and defense services.’’ [For definitions of ‘‘appropriate congressional com- mittees’’, ‘‘defense article’’, and ‘‘defense service’’ as used in section 1263 of Pub. L. 107–228, set out above, see section 3 of Pub. L. 107–228, set out as a note under sec- tion 2651 of this title and section 1002 of Pub. L. 107–228, set out as a note under section 2151 of this title.] TRANSFER OF WAR RESERVE MATERIEL AND OTHER PROPERTY TO TAIWAN Pub. L. 96–92, § 23, Oct. 29, 1979, 93 Stat. 710, authorized President, during calendar year 1980, to transfer to Tai- wan, under such terms and conditions as he may deem appropriate, United States war reserve materiel that was located on Taiwan on Jan. 1, 1979, and during cal- endar years 1979 and 1980, to transfer to Taiwan, under such terms and conditions as he may deem appropriate, rights of the United States in property (other than war reserve materiel) that was located on Taiwan on Jan. 1, 1979. § 3303. Application to Taiwan of laws and inter- national agreements (a) Application of United States laws generally The absence of diplomatic relations or rec- ognition shall not affect the application of the laws of the United States with respect to Tai- wan, and the laws of the United States shall apply with respect to Taiwan in the manner that the laws of the United States applied with re- spect to Taiwan prior to January 1, 1979. (b) Application of United States laws in specific and enumerated areas The application of subsection (a) of this sec- tion shall include, but shall not be limited to, the following: (1) Whenever the laws of the United States refer or relate to foreign countries, nations, states, governments, or similar entities, such terms shall include and such laws shall apply with respect to Taiwan. (2) Whenever authorized by or pursuant to the laws of the United States to conduct or carry out programs, transactions, or other re- lations with respect to foreign countries, na- tions, states, governments, or similar entities, the President or any agency of the United States Government is authorized to conduct and carry out, in accordance with section 3305 of this title, such programs, transactions, and other relations with respect to Taiwan (in- cluding, but not limited to, the performance of services for the United States through con- tracts with commercial entities on Taiwan), in accordance with the applicable laws of the United States. (3)(A) The absence of diplomatic relations and recognition with respect to Taiwan shall not abrogate, infringe, modify, deny, or other- wise affect in any way any rights or obliga- tions (including but not limited to those in- volving contracts, debts, or property interests of any kind) under the laws of the United States heretofore or hereafter acquired by or with respect to Taiwan. (B) For all purposes under the laws of the United States, including actions in any court in the United States, recognition of the Peo- ple’s Republic of China shall not affect in any way the ownership of or other rights or inter- ests in properties, tangible and intangible, and other things of value, owned or held on or prior to December 31, 1978, or thereafter ac- quired or earned by the governing authorities on Taiwan. (4) Whenever the application of the laws of the United States depends upon the law that is or was applicable on Taiwan or compliance therewith, the law applied by the people on Taiwan shall be considered the applicable law for that purpose. (5) Nothing in this chapter, nor the facts of the President’s action in extending diplomatic recognition to the People’s Republic of China, the absence of diplomatic relations between the people on Taiwan and the United States, or the lack of recognition by the United States, and attendant circumstances thereto, shall be construed in any administrative or ju- dicial proceeding as a basis for any United States Government agency, commission, or department to make a finding of fact or deter- mination of law, under the Atomic Energy Act of 1954 [42 U.S.C. 2011 et seq.] and the Nuclear Non-Proliferation Act of 1978 [22 U.S.C. 3201 et seq.], to deny an export license application or to revoke an existing export license for nu- clear exports to Taiwan. (6) For purposes of the Immigration and Na- tionality Act [8 U.S.C. 1101 et seq.], Taiwan may be treated in the manner specified in the first sentence of section 202(b) of that Act [8 U.S.C. 1152(b)]. (7) The capacity of Taiwan to sue and be sued in courts in the United States, in accord- ance with the laws of the United States, shall not be abrogated, infringed, modified, denied, or otherwise affected in any way by the ab- sence of diplomatic relations or recognition. (8) No requirement, whether expressed or im- plied, under the laws of the United States with respect to maintenance of diplomatic relations or recognition shall be applicable with respect to Taiwan. (c) Treaties and other international agreements For all purposes, including actions in any court in the United States, the Congress ap- proves the continuation in force of all treaties and other international agreements, including multilateral conventions, entered into by the United States and the governing authorities on Taiwan recognized by the United States as the Republic of China prior to January 1, 1979, and in force between them on December 31, 1978, un- less and until terminated in accordance with law. (d) Membership in international financial insti- tutions and other international organizations Nothing in this chapter may be construed as a basis for supporting the exclusion or expulsion of Taiwan from continued membership in any international financial institution or any other international organization.