TITLE:  State Department--Assistance for Lebanon, B-303268, 
BNUMBER:  B-303268
DATE:     January 3, 2005

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   The Honorable Henry J. Hyde       

   Chairman

   Committee on International Relations

   House of Representatives

   The Honorable Tom Lantos

   Ranking Minority Member

   Committee on International Relations

   House of Representatives

   Subject: State Department Assistance for Lebanon

   This responds to your June 3, 2004, request for our legal opinion
regarding the interpretation of section 1224 of the Foreign Relations
Authorization Act, 2003[1] (section 1224) and section 534(a) of the
Foreign Operations, Expert Financing and Related Appropriations Act, 2003,
as contained in the Consolidated Appropriations Resolution[2] (section
534(a)). You asked whether section 1224 of the authorization act conflicts
with section 534(a) of the appropriations act with regard to funds
appropriated for assistance to Lebanon, and, if so, whether section 1224,
because it was enacted "notwithstanding any other provision of law,"
supersedes section 534(a).  

   On September 30, 2002, Congress enacted section 1224,[3] which provides
that $10 million of funds "made available for fiscal year 2003 or any
subsequent fiscal year" to the Economic Support Fund (ESF)[4] for
assistance to Lebanon shall not be obligated until the President certifies
to the appropriate congressional committees that Lebanon has deployed
armed forces to the border between Lebanon and Israel and that Lebanon has
asserted authority over the same area.  Section 1224 mandates that these
requirements be maintained "[n]othwithstanding any other provision of
law. . . ."

   Subsequently, Congress enacted section 534(a)[5] on February 20, 2003.  It
provided that funds appropriated in Titles I and II of the appropriations
act for the assistance of Lebanon, among other countries, were to be "made
available notwithstanding any other provision of law."  In Title II of the
act, Congress appropriated $2.27 billion to the ESF and earmarked "not
less than $35 million" of that amount for assistance to Lebanon.[6]  The
funds appropriated to the ESF for Lebanon and other countries were
available through the end of fiscal year 2004 (September 30, 2004).  117
Stat. at 166-67.  

   As explained below, we conclude that, for fiscal years 2003 and 2004,
section 534(a), enacted 4 months after section 1224, supersedes section
1224.  As a result, the amounts appropriated in the Consolidated
Appropriations Resolution were available for assistance to Lebanon in
accordance with section 534(a) through fiscal year 2004.

   BACKGROUND

   Your request arises because of your concern that the State Department has
made $10 million available for assistance to Lebanon without regard to
section 1224.  According to the documentation submitted with your request,
the State Department notified you that it intended to use the $10 million
of the ESF to fund wastewater projects and environmental management
projects in the Litani River Basin in southern Lebanon.  Letter from
Richard L. Armitage, Deputy Secretary of State, to the Honorable Tom
Lantos, Mar. 9, 2004.  You protested this use of the ESF because the
State Department did not adhere to the presidential certification
requirement of section 1224 before releasing the funds.  Letter from
Chairman Henry J. Hyde and Ranking Minority Member Tom Lantos to Secretary
of State Colin Powell, Mar. 24, 2004.  The State Department responded
stating that it had determined that section 534(a) of the appropriations
act authorizes the release of moneys from the Economic Support Fund
without the limitation set forth in section 1224.  Letter from Secretary
Colin Powell to Ranking Minority Leader Tom Lantos, Apr. 13, 2004. 

   To address your request, we wrote to the State Department to obtain an
explanation for its conclusion that section 534(a) superseded section
1224's certification requirement.  The State Department replied in a
letter dated October 14, 2004.  Letter from James H. Thessin, Principal
Deputy Legal Advisor, State Department, to Susan A. Poling, Managing
Associate General Counsel, GAO, Oct. 14, 2004.  The State Department
asserted that section 534(a) prevailed over the restrictions of section
1224 because section 534(a) was enacted later in time and the $35 million
earmark in the appropriations act reflected Congress's specific intention
to appropriate funds for assisting Lebanon.  Id.

   ANALYSIS

   Both sections 1224 and 534(a) address the $35 million appropriations for
economic assistance through ESF to Lebanon.  Section 1224, a provision of
the authorization act, requires a presidential certification of certain
milestones before $10 million of those funds can be released.  Section
1224 also provides that this restriction governs "[n]otwithstanding any
other provision of law .  .  .  ."  Section 534(a), a provision of the
appropriations act, directs that appropriated funds for Lebanon and other
countries "be made available notwithstanding any other provision of
law."   With regard to the restricted $10 million, the two sections
directly conflict the State Department cannot honor the restriction of
section 1224 while at the same time satisfying the direction of section
534(a).  To determine the effect of both of these sections on the use of
funds appropriated to ESF, we turn to the rules of statutory construction
as explained in federal case law and our previous appropriations
decisions.

   Rules of statutory construction provide that, where two acts address the
same subject in a manner that may present a conflict, effect should be
given to both acts if at all possible.  Posadas v. National City Bank of
New York, 296 U.S. 497, 503 (1936).  Reconciling two similar provisions on
the same subject is in keeping with the "cardinal rule" that repeals by
implication are disfavored.  See id.  Such repeals have been found only
where "the intention of the legislature [is] clear and manifest."  Id. 
However, repeals by implication may be warranted where two statutes
irreconcilably conflict.  See id.; see also Tennessee Valley Authority v.
Hill, 437 U.S. 153 (1978); B-240610, Feb. 2, 1989.   To resolve such
conflicts, we and the federal courts have applied the "last-in-time rule,"
namely, that the statute enacted last supersedes the previously enacted
statute.  See B-247119, Mar. 2, 1992; see also American Federation of
Government Employees, Local 1945 v. Cheney, CV-20PT02453-E (N.D. Ala.
Dec. 21, 1992) (citing B-247119 for the last-in-time rule).   The rule
presumes that the interpretation and application of statutes should
reflect the most recent expression of Congress's intent.[7]  The
later-enacted statute, however, will supersede the earlier-enacted statute
only to the extent of the irreconcilable conflict.  Posadas, 296 U.S.
at 503; B-203900, Feb. 2, 1989.

   With regard to the provisions in question here, we do not see how we can
give effect to the language of both notwithstanding clauses.  Taken
individually, each notwithstanding clause expresses Congress's manifest
intent that the respective statute should supersede all other statutes on
the subject.  Cf. Shomberg v. United States, 348 U.S. 540, 547 (1955)
(notwithstanding clause in Immigration and Nationality Act manifested
Congress's clear intent that certain policies should override other
policies); see also Cisneros v. Alpine Ridge Group, 508 U.S. 10, 17 (1993)
(noting the general agreement among several federal courts of appeal that
a notwithstanding clause is a legislature's clear intent that the
provision supersede all other provisions of law).  We recognize that a
notwithstanding clause may not supersede all other laws, such as those
laws that are not directly related to the object to which a statute seeks
to address.  See B-290125.2, B-290125.3, Dec. 18, 2002.  For example, a
notwithstanding clause in a statute directing the Architect of the Capital
to take all necessary steps to ensure that certain employees be provided
retirement benefits did not supersede the Antideficiency Act.  See
B-303961, Dec. 6, 2004.  Here, however, where both sections 1224 and
534(a) seek to legislate the availability of the appropriations for
Lebanon, there can be little argument that both sections are not directly
related to the same objective.  Yet, we cannot give effect to both
sections; you cannot restrict the use of appropriations, as section 1224
mandates, and simultaneously allow unfettered use, as section 534(a)
mandates.  To the extent that section 534(a) and section 1224 are
irreconcilable, the last-in-time rule provides that the section enacted
last, section 534(a), shall supersede the earlier enacted section.  See
Posadas, 296 U.S. at 503. 

   Apart from the amounts addressed in both sections, the extent of the
conflict between sections 534(a) and 1224 is defined by the length of time
each section is in effect.  Section 534(a), as a provision in an
appropriations act, is presumed to be nonpermanent legislation that will
expire at the end of the fiscal year unless otherwise specified.  65 Comp.
Gen. 588, 589 (1986).  A provision in an appropriations act may overcome
this presumption if the provision contains "words of futurity," indicating
that Congress intended the provision to be permanent.  See B-271412,
June 13, 1996; see, e.g., 36 Comp. Gen. 434, 436 (1956).  Here, section
534(a) has no words that would indicate that Congress intended
permanence.  Nevertheless, while section 534(a) clearly is not permanent
legislation, section 534(a) does apply to "funds appropriated in titles I
and II of this Act that are made available for Lebanon," and would apply
during the time period of availability of those appropriations.  Congress
appropriated funds for Lebanon through September 30, 2004. 117 Stat. at
166-67 (stating that funds appropriated for the ESF, including the $35
million for assistance to Lebanon, remain available until September 30,
2004).[8]  Section 534(a), then, with regard to the $10 million for
Lebanon, applied through fiscal year 2004, until September 30, 2004.  

   On the other hand, Congress clearly intended section 1224 of the
authorization act to be permanent legislation.  Despite the title of the
authorization act indicating that the statute authorized appropriations to
be available for fiscal year 2003, section 1224 states that its
certification requirements for obligating $10 million apply to "amounts
made available for fiscal year 2003 or any subsequent fiscal year."  116
Stat. at 1432 (emphasis added). 

   In B-271412, June 13, 1996, we examined a similar situation involving an
appropriation for assistance to Azerbaijan.  In that case, subsection (w)
of the 1996 Foreign Operations, Expert Financing, and Related Programs
Appropriations Act appropriated a lump sum for assistance provided to the
Government of Azerbaijan for humanitarian purposes for fiscal years 1996
and 1997.  Id.  Section 907 of the FREEDOM Support Act, however,
proscribed monetary assistance "until the President determines, and so
reports to the Congress, that the Government of Azerbaijan is taking
demonstrable steps to cease all blockades and other offensive uses of
force against Armenia and Nagorno-Karabakh."  Id.  We held that subsection
(w) did not permanently supersede section 907 of the FREEDOM Support Act,
but temporarily suspended its effectiveness for fiscal years 1996 and
1997.  Id.  Similarly, here, where section 534(a)'s authority extends only
through fiscal year 2004 and section 1224's authority is permanent,
section 534(a) would only supersede the requirements of section 1224
through September 30, 2004.  Accordingly, the State Department was not
required to meet the certification requirements of section 1224 before
obligating the funds in March 2004.  The enactment of section 534(a)
eliminated the requirement for fiscal year 2004.[9]  

   In the materials provided to us with your request, you noted federal cases
in which the courts found that a notwithstanding clause in a federal
statute did not preempt state law or did not apply to other federal
statutory schemes.  See Oregon Natural Resources Council v. Thomas, 92
F.3d 792, 797-98 (9th Cir. 1996); E.P. Paup Co. v. United States Dept. of
Labor, 999 F.2d 1341, 1349-50 (9th Cir. 1993); In re Glacier Bay, 944 F.2d
577, 581-83 (9th Cir. 1991); Golden Nugget, Inc. v. American Stock
Exchange, 828 F.2d 586, 589-90 (9th Cir. 1987).  We note, in the first
instance, that none of these cases construed two statutes each of which
had a notwithstanding clause.  Instead, the courts were asked to address
whether a notwithstanding clause superseded another statute.  The holdings
of these cases are consistent with our determination here.  In each of
these cases, the respective courts found that an important factor in
determining whether a statute with a notwithstanding clause superseded
another statute was whether the two statutes at issue were in conflict. 
For example, in In re Glacier Bay, the Court of Appeals for the Ninth
Circuit did, indeed, determine that the phrase "notwithstanding the
provision of any other law" in a provision of the Trans-Alaska Pipeline
Authorization Act (TAPAA) was not dispositive of whether TAPAA implicitly
repealed the liability provisions of the Limitation of Vessel Owner's
Liability Act (Limitation Act).  Id. at 582-83.  TAPAA, enacted subsequent
to the Limitation Act, imposed a strict liability scheme on vessel owners
for damages arising out of transportation of trans-Alaska oil, and the
Limitation Act allowed vessel owners to virtually eliminate their
liability for damages.    The court, however, did not end its analysis by
looking at TAPAA's notwithstanding clause; it looked at both acts and
determined that, because TAPAA's strict liability scheme could not be
reconciled with the liability scheme of the Limitation Act, Congress
intended that TAPAA supersede the liability scheme of the Limitation Act. 
Id. at 583.   As we noted above, and in accord with In re Glacier Bay, it
is inappropriate to assume that a notwithstanding clause negates the
application of any and all other laws.  The point of In re Glacier Bay is
that when confronted with two laws in irreconcilable conflict, we must
apply rules of construction to determine which law takes precedence.

   You also ask whether sections 1224 and 534(a) can be reconciled by reading
section 534(a) to apply to all other funds other than those appropriated
to the ESF and whether the notwithstanding clause of section 534(a) would
apply not to section 1224 but only to older statutes dealing with concerns
regarding narcotics, human rights, and terrorism restrictions.  The
statutory language does not support either interpretation.  Indeed,
section 534(a) applies to funds appropriated in titles I and II of
division E of Public Law 108-7.  Title II of that division appropriates
funds to ESF.[10]  Consequently, we must conclude that section 534(a)
applies to funds appropriated to ESF, not just to all other funds. Furthermore, we cannot conclude that section 534(a) applies not to section
1224 but only to older statutes.  Any attempt to reconcile the language of
sections 1224 and 534(a) in a manner in which appropriations for the
assistance of Lebanon through September 24, 2004, are subject to the
section 1224 certification would improperly annul the notwithstanding
clause of section 534(a), which requires that appropriated funds in titles
I and II of the appropriations act be made available to Lebanon without
any existing restriction.

   Finally, you note that the legislative history of section 1224 indicates
that the notwithstanding clause of that section was intended to apply to
section 534(a).  You suggest that, by inserting a notwithstanding clause
into section 1224, Congress, aware of the notwithstanding clause in the
then-contemplated, but not yet enacted, section 534(a), intended to
counteract the notwithstanding clause of section 534(a).  To accept this
argument, we would have to find that Congress, in passing section 1224 in
September 30, 2002, could constitutionally override the legislative effect
of a statute not yet enacted.   The 107th Congress enacted section 1224,
and the 108th Congress enacted section 534(a).  To adopt the suggestion
that Congress, with section 1224, intended to limit the application of the
later-enacted section 534(a) contradicts the accepted notion that one act
of Congress cannot abridge the legislative powers of a succeeding
Congress.  See generally Fletcher v. Peck, 10 U.S. (6 Cranch) 87, 133
(1810).  Moreover, while the legislative history of section 1224 may be
instructive in resolving some statutory ambiguities subsequently, it could
not counteract the plain unambiguous statutory language subsequently
enacted into law.  See Lincoln v. Vigil, 508 U.S. 182, 192 (1993). 

   CONCLUSION

   The notwithstanding clauses present an irreconcilable conflict between
sections 1224 and 534(a) in the use of funds appropriated to the ESF
available for assistance to Lebanon through fiscal year 2004.  Because
section 534(a) was passed later in time, under applicable rules of
statutory construction, section 534(a) will supersede section 1224 to the
extent that the two provisions conflict.   As a result, the State
Department was permitted to use amounts appropriated in the Consolidated
Appropriations Resolution available for assistance to Lebanon without the
certification requirements of section 1224.

   If you have any questions, please contact Susan A. Poling, Managing
Associate General Counsel, at (202) 512-2667 or Thomas H. Armstrong,
Assistant General Counsel, at (202) 512-8257.

   Sincerely yours,

   /signed/

   Anthony H. Gamboa

   General Counsel

   ------------------------

   [1]   Pub. L. No. 107-228, S 1224, 116 Stat. 1350, 1432 (Sept. 30, 2002).
   [2]   Pub. L. No. 108-7, div. E, title V, S 534(a), 117 Stat. 11, 193
(Feb. 20, 2003).

   [3]  The full text of section 1224 states the following:

   "(a) PROHIBITION.'' Notwithstanding any other provision of law, $10,000,000
of the amounts made available for fiscal year 2003 or any subsequent
fiscal year that are allocated for assistance to Lebanon under chapter 4
of part II of the Foreign Assistance Act of 1961 (22 U.S.C. 2346 et seq.;
relating to the economic support fund) may not be obligated unless and
until the President certifies to the appropriate congressional committees
that-
(1) the armed forces of Lebanon have been deployed to the internationally
recognized border between Lebanon and Israel; and
(2) the Government of Lebanon is effectively asserting its authority in
the area in which such armed forces have been deployed.

   "(b) REQUIREMENT RELATING TO FUNDS WITHHELD. Notwithstanding any other
provision of law, any funds withheld pursuant to subsection (a) may not be
programmed in order to be used for a purpose other than for assistance to
Lebanon until the last month of the fiscal year in which the authority to
obligate such funds lapses."

   Pub. L. No. 107-228, S 1224 (emphasis added).

   [4]  The Economic Support Fund, codified in 22 U.S.C. S 2346, provides
economic support to countries in which economic, political, or security
conditions require such support in the interests of national security for
the United States.  See 22 U.S.C. SA 2346(a).

   [5]  The full text of section 534(a) is as follows: 

   "AFGHANISTAN, LEBANON, MONTENEGRO, VICTIMS OF WAR, DISPLACED CHILDREN, AND
DISPLACED BURMESE. Funds appropriated by this Act that are made available
for assistance for Afghanistan may be made available notwithstanding 
section 512 of this Act and any similar provision of law, and funds
appropriated in titles I and II of this Act that are made available for
Lebanon, Montenegro, and for victims of war, displaced children, and
displaced Burmese, and to assist victims of trafficking in persons and,
subject to the regular notification procedures of the Committees on
Appropriations, to combat such trafficking, may be made available
notwithstanding any other provision of law."

   Pub. L. No. 108-7, div. E, title V, S 534(a), 117 Stat. at 193 (emphasis
added).

   [6]   Pub. L. No. 108-7, div. E, title II, 117 Stat. at 166, 167.

   [7]  The rationale for the "last-in-time" rule is, in this sense, a
consistent application of the longstanding rule that a Congress may not
bind future Congresses.  We discuss this rule below on page 7. 

   [8]   The appropriations specifically states that amounts appropriated
"[f]or necessary expenses to carry out the provisions of chapter 4 of part
II [of the Foreign Assistance Act of 1961 as codified in 22 U.S.C. S
2346]" are "to remain available until September 30, 2004." 117 Stat. at
166.   As noted above, this statutory reference is to the ESF.  

   [9]   While section 534(a) was enacted in the State Department's fiscal
year 2003 appropriations act, the requirement that the appropriations for
assistance to Lebanon be available "notwithstanding any other provision of
law" was extended by State's fiscal year 2004 appropriations act, the
Consolidated Appropriations Act, 2004, Pub. L. No. 108-199, 118 Stat. 3
(Jan. 23, 2004).   In this act, Congress appropriated an additional $35
million to the ESF to be available through September 30, 2005.  See
118 Stat. at 151.  Recently, Congress again extended the requirement that
appropriations for assistance to Lebanon be available "notwithstanding any
other provision of law."  Consolidated Appropriations Act, 2005, Pub. L.
No. 108-447 (Dec. 8, 2004).   In the 2005 Act, Congress appropriated
another $35 million to the ESF for assistance to Lebanon to be available
through September 30, 2006.  See Pub. L. No. 108-447, div. D, title II. 
Both the 2004 Act and the 2005 Act contain provisions with the same
language as section 534(a).  See 118 Stat. at 181; see also Pub. L. No.
108-447, div. D, title V, S 534(a).  The statutory conflict that we
address in this opinion will arise in the future only to the extent that
the Congress continues to enact legislation with similar language as found
in section 534(a).  Cf. 39 Comp. Gen. 665 (1960) (noting that Congress may
continue with limitations enacted in temporary appropriations legislation
by taking legislative action to extend the limitations). 

   [10]   Section 534(a) states that the provision applies to funds
appropriated in titles I and II of "this Act" that are made available to
Lebanon and other listed countries.  Section 3 of the Act provides:
"Except as expressly provided otherwise, any reference to `this Act'
contained in any division of this joint resolution shall be treated as
referring only to the provisions of that division."  Accordingly, the
reference in section 534(a) to titles I and II of this Act is referring to
titles I and II of division E of Pub. L. No. 108-7. 
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