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