[Federal Register Volume 74, Number 15 (Monday, January 26, 2009)]
[Presidential Documents]
[Pages 4673-4678]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-1719]


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  Federal Register / Vol. 74, No. 15 / Monday, January 26, 2009 / 
Presidential Documents  

[[Page 4673]]


                Executive Order 13490 of January 21, 2009

                
Ethics Commitments by Executive Branch Personnel

                By the authority vested in me as President by the 
                Constitution and the laws of the United States of 
                America, including section 301 of title 3, United 
                States Code, and sections 3301 and 7301 of title 5, 
                United States Code, it is hereby ordered as follows:

                Section 1. Ethics Pledge. Every appointee in every 
                executive agency appointed on or after January 20, 
                2009, shall sign, and upon signing shall be 
                contractually committed to, the following pledge upon 
                becoming an appointee:

                ``As a condition, and in consideration, of my 
                employment in the United States Government in a 
                position invested with the public trust, I commit 
                myself to the following obligations, which I understand 
                are binding on me and are enforceable under law:

                ``1. Lobbyist Gift Ban. I will not accept gifts from 
                registered lobbyists or lobbying organizations for the 
                duration of my service as an appointee.

                ``2. Revolving Door Ban--All Appointees Entering 
                Government. I will not for a period of 2 years from the 
                date of my appointment participate in any particular 
                matter involving specific parties that is directly and 
                substantially related to my former employer or former 
                clients, including regulations and contracts.

                ``3. Revolving Door Ban--Lobbyists Entering Government. 
                If I was a registered lobbyist within the 2 years 
                before the date of my appointment, in addition to 
                abiding by the limitations of paragraph 2, I will not 
                for a period of 2 years after the date of my 
                appointment:

                    (a) participate in any particular matter on which I 
                lobbied within the 2 years before the date of my 
                appointment;
                    (b) participate in the specific issue area in which 
                that particular matter falls; or
                    (c) seek or accept employment with any executive 
                agency that I lobbied within the 2 years before the 
                date of my appointment.

                ``4. Revolving Door Ban--Appointees Leaving Government. 
                If, upon my departure from the Government, I am covered 
                by the post-employment restrictions on communicating 
                with employees of my former executive agency set forth 
                in section 207(c) of title 18, United States Code, I 
                agree that I will abide by those restrictions for a 
                period of 2 years following the end of my appointment.

                ``5. Revolving Door Ban--Appointees Leaving Government 
                to Lobby. In addition to abiding by the limitations of 
                paragraph 4, I also agree, upon leaving Government 
                service, not to lobby any covered executive branch 
                official or non-career Senior Executive Service 
                appointee for the remainder of the Administration.

                ``6. Employment Qualification Commitment. I agree that 
                any hiring or other employment decisions I make will be 
                based on the candidate's qualifications, competence, 
                and experience.

                ``7. Assent to Enforcement. I acknowledge that the 
                Executive Order entitled 'Ethics Commitments by 
                Executive Branch Personnel,' issued by the President on 
                January 21, 2009, which I have read before signing this 
                document, defines certain of the terms applicable to 
                the foregoing obligations and sets forth

[[Page 4674]]

                the methods for enforcing them. I expressly accept the 
                provisions of that Executive Order as a part of this 
                agreement and as binding on me. I understand that the 
                terms of this pledge are in addition to any statutory 
                or other legal restrictions applicable to me by virtue 
                of Federal Government service.''

                Sec. 2. Definitions. As used herein and in the pledge 
                set forth in section 1 of this order:

                    (a) ``Executive agency'' shall include each 
                ``executive agency'' as defined by section 105 of title 
                5, United States Code, and shall include the Executive 
                Office of the President; provided, however, that for 
                purposes of this order ``executive agency'' shall 
                include the United States Postal Service and Postal 
                Regulatory Commission, but shall exclude the Government 
                Accountability Office.
                    (b) ``Appointee'' shall include every full-time, 
                non-career Presidential or Vice-Presidential appointee, 
                non-career appointee in the Senior Executive Service 
                (or other SES-type system), and appointee to a position 
                that has been excepted from the competitive service by 
                reason of being of a confidential or policymaking 
                character (Schedule C and other positions excepted 
                under comparable criteria) in an executive agency. It 
                does not include any person appointed as a member of 
                the Senior Foreign Service or solely as a uniformed 
                service commissioned officer.
                    (c) ``Gift''

  (1) shall have the definition set forth in section 2635.203(b) of title 
5, Code of Federal Regulations;

  (2) shall include gifts that are solicited or accepted indirectly as 
defined at section 2635.203(f) of title 5, Code of Federal Regulations; and

  (3) shall exclude those items excluded by sections 2635.204(b), (c), 
(e)(1) & (3) and (j)-(l) of title 5, Code of Federal Regulations.

                    (d) ``Covered executive branch official'' and 
                ``lobbyist'' shall have the definitions set forth in 
                section 1602 of title 2, United States Code.
                    (e) ``Registered lobbyist or lobbying 
                organization'' shall mean a lobbyist or an organization 
                filing a registration pursuant to section 1603(a) of 
                title 2, United States Code, and in the case of an 
                organization filing such a registration, ``registered 
                lobbyist'' shall include each of the lobbyists 
                identified therein.
                    (f) ``Lobby'' and ``lobbied'' shall mean to act or 
                have acted as a registered lobbyist.
                    (g) ``Particular matter'' shall have the same 
                meaning as set forth in section 207 of title 18, United 
                States Code, and section 2635.402(b)(3) of title 5, 
                Code of Federal Regulations.
                    (h) ``Particular matter involving specific 
                parties'' shall have the same meaning as set forth in 
                section 2641.201(h) of title 5, Code of Federal 
                Regulations, except that it shall also include any 
                meeting or other communication relating to the 
                performance of one's official duties with a former 
                employer or former client, unless the communication 
                applies to a particular matter of general applicability 
                and participation in the meeting or other event is open 
                to all interested parties.
                    (i) ``Former employer'' is any person for whom the 
                appointee has within the 2 years prior to the date of 
                his or her appointment served as an employee, officer, 
                director, trustee, or general partner, except that 
                ``former employer'' does not include any executive 
                agency or other entity of the Federal Government, State 
                or local government, the District of Columbia, Native 
                American tribe, or any United States territory or 
                possession.
                    (j) ``Former client'' is any person for whom the 
                appointee served personally as agent, attorney, or 
                consultant within the 2 years prior to the date of his 
                or her appointment, but excluding instances where the 
                service provided was limited to a speech or similar 
                appearance. It does not include clients

[[Page 4675]]

                of the appointee's former employer to whom the 
                appointee did not personally provide services.
                    (k) ``Directly and substantially related to my 
                former employer or former clients'' shall mean matters 
                in which the appointee's former employer or a former 
                client is a party or represents a party.
                    (l) ``Participate'' means to participate personally 
                and substantially.
                    (m) ``Post-employment restrictions'' shall include 
                the provisions and exceptions in section 207(c) of 
                title 18, United States Code, and the implementing 
                regulations.
                    (n) ``Government official'' means any employee of 
                the executive branch.
                    (o) ``Administration'' means all terms of office of 
                the incumbent President serving at the time of the 
                appointment of an appointee covered by this order.
                    (p) ``Pledge'' means the ethics pledge set forth in 
                section 1 of this order.
                    (q) All references to provisions of law and 
                regulations shall refer to such provisions as in effect 
                on January 20, 2009.

                Sec. 3. Waiver. (a) The Director of the Office of 
                Management and Budget, or his or her designee, in 
                consultation with the Counsel to the President or his 
                or her designee, may grant to any current or former 
                appointee a written waiver of any restrictions 
                contained in the pledge signed by such appointee if, 
                and to the extent that, the Director of the Office of 
                Management and Budget, or his or her designee, 
                certifies in writing (i) that the literal application 
                of the restriction is inconsistent with the purposes of 
                the restriction, or (ii) that it is in the public 
                interest to grant the waiver. A waiver shall take 
                effect when the certification is signed by the Director 
                of the Office of Management and Budget or his or her 
                designee.

                    (b) The public interest shall include, but not be 
                limited to, exigent circumstances relating to national 
                security or to the economy. De minimis contact with an 
                executive agency shall be cause for a waiver of the 
                restrictions contained in paragraph 3 of the pledge.

                Sec. 4. Administration. (a) The head of every executive 
                agency shall, in consultation with the Director of the 
                Office of Government Ethics, establish such rules or 
                procedures (conforming as nearly as practicable to the 
                agency's general ethics rules and procedures, including 
                those relating to designated agency ethics officers) as 
                are necessary or appropriate to ensure that every 
                appointee in the agency signs the pledge upon assuming 
                the appointed office or otherwise becoming an 
                appointee; to ensure that compliance with paragraph 3 
                of the pledge is addressed in a written ethics 
                agreement with each appointee to whom it applies, which 
                agreement shall also be approved by the Counsel to the 
                President or his or her designee prior to the appointee 
                commencing work; to ensure that spousal employment 
                issues and other conflicts not expressly addressed by 
                the pledge are addressed in ethics agreements with 
                appointees or, where no such agreements are required, 
                through ethics counseling; and generally to ensure 
                compliance with this order within the agency.

                    (b) With respect to the Executive Office of the 
                President, the duties set forth in section 4(a) shall 
                be the responsibility of the Counsel to the President 
                or his or her designee.
                    (c) The Director of the Office of Government Ethics 
                shall:

  (1) ensure that the pledge and a copy of this order are made available 
for use by agencies in fulfilling their duties under section 4(a) above;

  (2) in consultation with the Attorney General or the Counsel to the 
President or their designees, when appropriate, assist designated agency 
ethics officers in providing advice to current or former appointees 
regarding the application of the pledge; and

  (3) in consultation with the Attorney General and the Counsel to the 
President or their designees, adopt such rules or procedures as are 
necessary or appropriate:

[[Page 4676]]

                      (i) to carry out the foregoing responsibilities;
                      (ii) to apply the lobbyist gift ban set forth in 
                    paragraph 1 of the pledge to all executive branch 
                    employees;
                      (iii) to authorize limited exceptions to the 
                    lobbyist gift ban for circumstances that do not 
                    implicate the purposes of the ban;
                      (iv) to make clear that no person shall have 
                    violated the lobbyist gift ban if the person 
                    properly disposes of a gift as provided by section 
                    2635.205 of title 5, Code of Federal Regulations;
                      (v) to ensure that existing rules and procedures 
                    for Government employees engaged in negotiations 
                    for future employment with private businesses that 
                    are affected by their official actions do not 
                    affect the integrity of the Government's programs 
                    and operations;
                      (vi) to ensure, in consultation with the Director 
                    of the Office of Personnel Management, that the 
                    requirement set forth in paragraph 6 of the pledge 
                    is honored by every employee of the executive 
                    branch;

  (4) in consultation with the Director of the Office of Management and 
Budget, report to the President on whether full compliance is being 
achieved with existing laws and regulations governing executive branch 
procurement lobbying disclosure and on steps the executive branch can take 
to expand to the fullest extent practicable disclosure of such executive 
branch procurement lobbying and of lobbying for presidential pardons, and 
to include in the report both immediate action the executive branch can 
take and, if necessary, recommendations for legislation; and

  (5) provide an annual public report on the administration of the pledge 
and this order.

                    (d) The Director of the Office of Government Ethics 
                shall, in consultation with the Attorney General, the 
                Counsel to the President, and the Director of the 
                Office of Personnel Management, or their designees, 
                report to the President on steps the executive branch 
                can take to expand to the fullest extent practicable 
                the revolving door ban set forth in paragraph 5 of the 
                pledge to all executive branch employees who are 
                involved in the procurement process such that they may 
                not for 2 years after leaving Government service lobby 
                any Government official regarding a Government contract 
                that was under their official responsibility in the 
                last 2 years of their Government service; and to 
                include in the report both immediate action the 
                executive branch can take and, if necessary, 
                recommendations for legislation.
                    (e) All pledges signed by appointees, and all 
                waiver certifications with respect thereto, shall be 
                filed with the head of the appointee's agency for 
                permanent retention in the appointee's official 
                personnel folder or equivalent folder.

                Sec. 5. Enforcement. (a) The contractual, fiduciary, 
                and ethical commitments in the pledge provided for 
                herein are solely enforceable by the United States 
                pursuant to this section by any legally available 
                means, including debarment proceedings within any 
                affected executive agency or judicial civil proceedings 
                for declaratory, injunctive, or monetary relief.

                    (b) Any former appointee who is determined, after 
                notice and hearing, by the duly designated authority 
                within any agency, to have violated his or her pledge 
                may be barred from lobbying any officer or employee of 
                that agency for up to 5 years in addition to the time 
                period covered by the pledge. The head of every 
                executive agency shall, in consultation with the 
                Director of the Office of Government Ethics, establish 
                procedures to implement this subsection, which 
                procedures shall include (but not be limited to) 
                providing for factfinding and investigation of possible 
                violations of this order and for referrals to the 
                Attorney General for his or her consideration pursuant 
                to subsection (c).
                    (c) The Attorney General or his or her designee is 
                authorized:

[[Page 4677]]

  (1) upon receiving information regarding the possible breach of any 
commitment in a signed pledge, to request any appropriate Federal 
investigative authority to conduct such investigations as may be 
appropriate; and

  (2) upon determining that there is a reasonable basis to believe that a 
breach of a commitment has occurred or will occur or continue, if not 
enjoined, to commence a civil action against the former employee in any 
United States District Court with jurisdiction to consider the matter.

                    (d) In any such civil action, the Attorney General 
                or his or her designee is authorized to request any and 
                all relief authorized by law, including but not limited 
                to:

  (1) such temporary restraining orders and preliminary and permanent 
injunctions as may be appropriate to restrain future, recurring, or 
continuing conduct by the former employee in breach of the commitments in 
the pledge he or she signed; and

  (2) establishment of a constructive trust for the benefit of the United 
States, requiring an accounting and payment to the United States Treasury 
of all money and other things of value received by, or payable to, the 
former employee arising out of any breach or attempted breach of the pledge 
signed by the former employee.

                Sec. 6. General Provisions. (a) No prior Executive 
                Orders are repealed by this order. To the extent that 
                this order is inconsistent with any provision of any 
                prior Executive Order, this order shall control.

                    (b) If any provision of this order or the 
                application of such provision is held to be invalid, 
                the remainder of this order and other dissimilar 
                applications of such provision shall not be affected.
                    (c) Nothing in this order shall be construed to 
                impair or otherwise affect:

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

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

                    (d) This order shall be implemented consistent with 
                applicable law and subject to the availability of 
                appropriations.
                    (e) 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 4678]]

                    (f) The definitions set forth in this order are 
                solely applicable to the terms of this order, and are 
                not otherwise intended to impair or affect existing 
                law.
                
                
                    (Presidential Sig.)

                THE WHITE HOUSE,

                    January 21, 2009.

[FR Doc. E9-1719
Filed 1-23-09; 8:45 am]
Billing code 3195-W9-P