[Federal Register Volume 74, Number 15 (Monday, January 26, 2009)]
[Presidential Documents]
[Pages 4669-4671]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-1712]



[[Page 4667]]

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Part VIII





The President





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Executive Order 13489--Presidential Records



Executive Order 13490--Ethics Commitments by Executive Branch Personnel



Memorandum of January 21, 2009--Senior White House Staff Pay Freeze
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  Federal Register / Vol. 74, No. 15 / Monday, January 26, 2009 / 
Presidential Documents  

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 Title 3--
 The President

[[Page 4669]]

                Executive Order 13489 of January 21, 2009

                
Presidential Records

                By the authority vested in me as President by the 
                Constitution and the laws of the United States of 
                America, and in order to establish policies and 
                procedures governing the assertion of executive 
                privilege by incumbent and former Presidents in 
                connection with the release of Presidential records by 
                the National Archives and Records Administration (NARA) 
                pursuant to the Presidential Records Act of 1978, it is 
                hereby ordered as follows:

                Section 1. Definitions. For purposes of this order:

                    (a) ``Archivist'' refers to the Archivist of the 
                United States or his designee.
                    (b) ``NARA'' refers to the National Archives and 
                Records Administration.
                    (c) ``Presidential Records Act'' refers to the 
                Presidential Records Act, 44 U.S.C. 2201-2207.
                    (d) ``NARA regulations'' refers to the NARA 
                regulations implementing the Presidential Records Act, 
                36 C.F.R. Part 1270.
                    (e) ``Presidential records'' refers to those 
                documentary materials maintained by NARA pursuant to 
                the Presidential Records Act, including Vice 
                Presidential records.
                    (f) ``Former President'' refers to the former 
                President during whose term or terms of office 
                particular Presidential records were created.
                    (g) A ``substantial question of executive 
                privilege'' exists if NARA's disclosure of Presidential 
                records might impair national security (including the 
                conduct of foreign relations), law enforcement, or the 
                deliberative processes of the executive branch.
                    (h) A ``final court order'' is a court order from 
                which no appeal may be taken.

                Sec. 2. Notice of Intent to Disclose Presidential 
                Records. (a) When the Archivist provides notice to the 
                incumbent and former Presidents of his intent to 
                disclose Presidential records pursuant to section 
                1270.46 of the NARA regulations, the Archivist, using 
                any guidelines provided by the incumbent and former 
                Presidents, shall identify any specific materials, the 
                disclosure of which he believes may raise a substantial 
                question of executive privilege. However, nothing in 
                this order is intended to affect the right of the 
                incumbent or former Presidents to invoke executive 
                privilege with respect to materials not identified by 
                the Archivist. Copies of the notice for the incumbent 
                President shall be delivered to the President (through 
                the Counsel to the President) and the Attorney General 
                (through the Assistant Attorney General for the Office 
                of Legal Counsel). The copy of the notice for the 
                former President shall be delivered to the former 
                President or his designated representative.

                    (b) Upon the passage of 30 days after receipt by 
                the incumbent and former Presidents of a notice of 
                intent to disclose Presidential records, the Archivist 
                may disclose the records covered by the notice, unless 
                during that time period the Archivist has received a 
                claim of executive privilege by the incumbent or former 
                President or the Archivist has been instructed by the 
                incumbent President or his designee to extend the time 
                period for a time certain and with reason for the 
                extension of time provided in the notice. If a shorter 
                period of time is required under the circumstances

[[Page 4670]]

                set forth in section 1270.44 of the NARA regulations, 
                the Archivist shall so indicate in the notice.

                Sec. 3. Claim of Executive Privilege by Incumbent 
                President. (a) Upon receipt of a notice of intent to 
                disclose Presidential records, the Attorney General 
                (directly or through the Assistant Attorney General for 
                the Office of Legal Counsel) and the Counsel to the 
                President shall review as they deem appropriate the 
                records covered by the notice and consult with each 
                other, the Archivist, and such other executive agencies 
                as they deem appropriate concerning whether invocation 
                of executive privilege is justified.

                    (b) The Attorney General and the Counsel to the 
                President, in the exercise of their discretion and 
                after appropriate review and consultation under 
                subsection (a) of this section, may jointly determine 
                that invocation of executive privilege is not 
                justified. The Archivist shall be notified promptly of 
                any such determination.
                    (c) If either the Attorney General or the Counsel 
                to the President believes that the circumstances 
                justify invocation of executive privilege, the issue 
                shall be presented to the President by the Counsel to 
                the President and the Attorney General.
                    (d) If the President decides to invoke executive 
                privilege, the Counsel to the President shall notify 
                the former President, the Archivist, and the Attorney 
                General in writing of the claim of privilege and the 
                specific Presidential records to which it relates. 
                After receiving such notice, the Archivist shall not 
                disclose the privileged records unless directed to do 
                so by an incumbent President or by a final court order.

                Sec. 4. Claim of Executive Privilege by Former 
                President. (a) Upon receipt of a claim of executive 
                privilege by a living former President, the Archivist 
                shall consult with the Attorney General (through the 
                Assistant Attorney General for the Office of Legal 
                Counsel), the Counsel to the President, and such other 
                executive agencies as the Archivist deems appropriate 
                concerning the Archivist's determination as to whether 
                to honor the former President's claim of privilege or 
                instead to disclose the Presidential records 
                notwithstanding the claim of privilege. Any 
                determination under section 3 of this order that 
                executive privilege shall not be invoked by the 
                incumbent President shall not prejudice the Archivist's 
                determination with respect to the former President's 
                claim of privilege.

                    (b) In making the determination referred to in 
                subsection (a) of this section, the Archivist shall 
                abide by any instructions given him by the incumbent 
                President or his designee unless otherwise directed by 
                a final court order. The Archivist shall notify the 
                incumbent and former Presidents of his determination at 
                least 30 days prior to disclosure of the Presidential 
                records, unless a shorter time period is required in 
                the circumstances set forth in section 1270.44 of the 
                NARA regulations. Copies of the notice for the 
                incumbent President shall be delivered to the President 
                (through the Counsel to the President) and the Attorney 
                General (through the Assistant Attorney General for the 
                Office of Legal Counsel). The copy of the notice for 
                the former President shall be delivered to the former 
                President or his designated representative.

                Sec. 5. General Provisions. (a) Nothing in this order 
                shall be construed to impair or otherwise affect:

  (i) authority granted by law to a department or agency, or the head 
thereof; or

  (ii) functions of the Director of the Office of Management and Budget 
relating to budget, administrative, or legislative proposals.

                    (b) This order shall be implemented consistent with 
                applicable law and subject to the availability of 
                appropriations.
                    (c) This order is not intended to, and does not, 
                create any right or benefit, substantive or procedural, 
                enforceable at law or in equity by any party against 
                the United States, its departments, agencies, or 
                entities, its officers, employees, or agents, or any 
                other person.

[[Page 4671]]

                Sec. 6. Revocation. Executive Order 13233 of November 
                1, 2001, is revoked.
                
                
                    (Presidential Sig.)

                THE WHITE HOUSE,

                    January 21, 2009.

[FR Doc. E9-1712
Filed 1-23-09; 8:45 am]
Billing code 3195-W9-P