B-230656, Apr 4, 1988

B-230656, Apr 4, 1988

MISCELLANEOUS TOPICS - National Security/International Affairs - Foreign aid programs - Funding restrictions - Exports APPROPRIATIONS/FINANCIAL MANAGEMENT - Appropriation Availability - Purpose availability - Specific purpose restrictions - Foreign aid programs DIGEST: Section 569 of the Foreign Operations, Export Assistance and Related Programs Appropriations Act, 1988, Pub. L. No. 100202, Sec. 101(e), 101 Stat. 1329-131, restricts "United States assistance ... for Haiti." Assistance is not defined, but the section provides that the term does not include seven itemized programs. The exemption list does not include either the Peace Corps or the Overseas Private Investment Corporation (OPIC). The statute provides no basis to decide that the Peace Corps or OPIC do not fall within its broad prohibition, since these programs are assistance by any definition.

The Honorable Daniel K. Inouye Chairman, Subcomittee on Foreign Operations Committee on Appropriations, United States Senate:

Your letter of February 23, 1988 requested our interpretation of section 569 of the Foreign Operations, Export Financing and Related Programs Appropriations Act, 1988, as enacted by Pub. L. No. 100-202, Sec. 101(e), 101 Stat. 1329131, 1329-173. With certain specifically enumerated exceptions, that section prohibits "United States assistance ... for Haiti" during fiscal year 1988 unless the March 29, 1987 Haitian Constitution is complied with. You point out that the Overseas Private Investment Corporation (OPIC) and the Peace Corps have questioned the impact of section 569 on their activities in Haiti. In our opinion, section 569 would not permit either of those agencies to operate in Haiti during fiscal year 1988 unless their operations either fell within one of the specifically enumerated exceptions set out in subsection (b) of section 569 or the suspension of United States assistance was lifted.

Section 569 reads in pertinent part as follows:

"(a) Suspension of Assistance.-- During fiscal year 1988, none of the funds made available by this Act or by any other Act or joint resolution may be obligated or expended to provide United States assistance including any such assistance appropriated and previously obligated for Haiti other than assistance described in subsection (b) of this section unless the democratic process set forth in the Haitian Constitution approved by the Haitian people on March 29, 1987, especially those provisions relating to the provisional Electoral Council, is being fully and faithfully adhered to by the Government of Haiti.

"(b) Exceptions.-- The term "United States assistance" does not include -

(1) assistance under chapter 1 of part I of the Foreign Assistance Act of 1961 insofar as such assistance is provided through private and voluntary organizations or other nongovernmental agencies;

"(2) assistance which involves the donations of food or medicine;

"(3) disaster relief assistance including any assistance under chapter 9 of part I of the Foreign Assistance Act of 1961;

"(4) assistance for refugees;

"(5) assistance under the Inter-American Foundation Act;

"(6) assistance necessary for the continued financing of education for Haitians in the United States; or

"(7) assistance provided in order to enable the continuation of migrant and narcotics interdiction operations."

The provision further expresses the sense of the Congress that the President should drop Haiti from Caribbean Basin Economic Recovery Act eligibility, and impose an international arms embargo and comprehensive trade and financial sanctions as well.

The question you presented, as we understand it, is whether the restriction on "United States assistance" was meant to apply only to aid that is provided directly to the government of Haiti, or whether it extends to assistance that is not provided directly to the Haitian government, but nonetheless benefits individual Haitians. /1/ It is our opinion that subsection (a) of section 569 prohibits all assistance not specifically exempted by subsection (b) of the section.

As previously stated, subsection (a) bans any and all federal obligations or expenditures -

"to provide United States assistance including any such assistance appropriated and previously obligated for Haiti other than assistance described in subsection (b) of this section ..."

The logical interpretation of the emphasized language is that all assistance activities not specifically exempted are banned. It seems clear that OPIC and Peace Corps activities constitute "assistance" to a foreign country as set forth in their respective legislative authorizations. Both are "agencies of the United States" which receive annual appropriations in the Foreign Operations Appropriations Act, and carry out their activities in support of the foreign policy objectives of the United States. See 22 U.S.C. Secs. 2191 and 2501 (1982). /2/

The next question is whether these agencies are covered by any of the specific exceptions to the restriction. From a reading of their legislative authority it appears to us that neither OPIC nor the Peace Corps activities are exempt. However, we have not discussed our analysis of the specific exemptions with either agency because time constraints on our response. We recognize that some part of these agencies' normal activities in Haiti might fall under one of the 7 exceptions.

In our view the statute is clear on its face. It is not necessary to resort to the legislative history for interpretation. We note that the legislative history of section 569 is for the most part inconclusive on the question at issue. However, the Conference Report on Public Law 100- 202 invites some doubt as to congressional intent. In the Joint Explanatory Statement of the Committee of Conference, the Report gives conferees interpretation of the language in section 569 as follows:

The conferees agree to the provision suspending all United States assistance to the Government of Haiti until the democratic process set forth in the Haitian Constitution ... is being fully and faithfully adhered to by the Government of Haiti."

H. R. Rep. No. 498, 100th Cong., 1st Sess. 833-34 (1987). The conferees' statement arguably supports the interpretation that direct aid to the Haitian government is the only "United States assistance" subject to the restriction.

However, as we see it, this isolated reference to assistance to the Government of Haiti does not overcome the clear import of subsection (a) of section 569. First, it is not readily apparent what distinguishes assistance "for Haiti" from assistance "to the Government of Haiti". Second, and more important, the forms of assistance specifically listed as exempt from the prohibition include assistance that is provided other than to the Government of Haiti in the same sense that the Peace Corps and OPIC can be said to provide assistance other than to the government of Haiti. There would have been no need to exempt such forms of assistance if the intent of the prohibition was to exclude them by definition.

We trust this information will be helpful to you. Under our usual arrangements, this letter will be available to the public 30 days from its date.

/1/ Such benefits to individuals could include employment opportunities created in industries stimulated by OPIC subsidized United States investors or facilities or services delivered to individuals, with the participation of Peace Corps volunteers.

/2/ In fact, OPIC's statutory authority is the Foreign Assistance Act of 1961, as amended. See 22 U.S.C. Sec. 2191 note.