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PART 8401—SUPPLEMENTAL STANDARDS OF ETHICAL CONDUCT 

FOR EMPLOYEES OF THE FEDERAL 

MINE SAFETY AND HEALTH REVIEW COMMISSION 

Sec. 

8401.101 General. 

8401.102 Prohibited financial interests. 

8401.103 Prior approval for outside employment. 

AUTHORITY: 5 U.S.C. 7301; 5 U.S.C. App. 

(Ethics in Government Act of 1978); E.O. 

12674, 54 FR 15159, 3 CFR, 1989 Comp., p. 215, 

as modified by E.O. 12731, 55 FR 42547, 3 CFR, 

1990 Comp. p. 306; 5 CFR 2635.105, 2635.403(a), 

2635.802(a), 2635.803. 

SOURCE: 61 FR 39871, July 31, 1996, unless 

otherwise noted. 

§ 8401.101 General. 

In accordance with 5 CFR 2635.105, 

the regulations in this part apply to 

the employees of the Federal Mine 

Safety and Health Review Commission 

(Commission) and supplement the 

Standards of Ethical Conduct for Employees of the Executive Branch at 5 

CFR part 2635. Commission employees 

also are subject to the executive 

branch financial disclosure regulations 

at 5 CFR part 2634. 

§ 8401.102 Prohibited financial interests. 

(a) Prohibition. Except as provided in 

this section, no employee (other than a 

special Government employee), or 

spouse or minor child of such an employee, shall have a financial interest, 

including compensated employment or 

indebtedness, in any company or other 

person engaged in mining activities 

subject to the Federal Mine Safety and 

Health Act of 1977 (Federal Mine Safety 

and Health Act), 30 U.S.C. 801 et seq. 

(b) Exceptions. (1) This section does 

not prohibit an employee, or the spouse 

or minor child of an employee, from investing in a publicly traded or publicly 

available investment fund which, in its 

prospectus, does not indicate the objective or practice of concentrating its investments in the securities of any company or other person engaged in mining activities subject to the Federal 

Mine Safety and Health Act, provided 

that the employee neither: 

(i) Exercises control over the financial interests held in the fund; nor 

(ii) Has the ability to exercise control over the financial interests held in 

the fund. 

(2)(i) Unless divestiture is required by 

paragraph (c) of this section, this section does not prohibit an employee, or 

the spouse or minor child of an employee, from owning or controlling securities of any company or other person engaged in mining activities subject to the Federal Mine Safety and 

Health Act, whenever: 

(A) Ownership or control was acquired prior to the employee’s commencement of employment, through a 

change in marital status, or through 

circumstances beyond the employee’s 

control and without the appearance of 

attempting to circumvent the prohibitions in this section, such as acquisition by inheritance, gift, or merger, acquisition or other change in corporate 

ownership, provided that: (1) The employee makes full, written disclosure 

to the designated agency ethics official 

within 30 days after the security is acquired or the employment is commenced; and 

(2) The employee is disqualified from 

participating in any decision, examination, audit, or other particular matter 

having a direct and predictable effect 

on such company or other person, in 

which the employee holds a direct or 

indirect interest. 

(B) The securities result from a stock 

split, stock dividend or the exercise of 

preemptive rights arising out of securities permitted by paragraph (b)(2)(i)(A) 

of this section. This paragraph does not 

permit the holding of stocks purchased 

through voluntary reinvestment of 

cash dividends. 

(ii) For purposes of this section, the 

term ‘‘securities’’ includes all interests 

in debt or equity instruments. The 

term includes, without limitation, secured and unsecured bonds, debentures, 

notes, securitized assets and commercial paper, as well as all types of preferred and common stock. The term encompasses both current and contingent 

ownership interests, including any beneficial or legal interest derived from a 

trust. It extends to any right to acquire or dispose of any long or short 


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§ 8401.103 5 CFR Ch. LXXIV (1–1–10 Edition) 

position in such securities and includes, without limitation, interests 

convertible into such securities, as well 

as options, rights, warrants, puts, calls, 

and straddles with respect thereto. 

(c) Divestiture. The designated agency 

ethics official may require an employee 

to divest a security the employee is 

otherwise authorized to retain under 

paragraph (b)(2) of this section, based 

on a determination of substantial conflict under §2635.403(b) of this title. 

(d) Waivers. The designated agency 

ethics official may grant a written 

waiver from the prohibition contained 

in this section based on a determination that the waiver is not inconsistent 

with 5 CFR part 2635 or otherwise prohibited by law and that, under the particular circumstances, application of 

the prohibition is not necessary to 

avoid the appearance of misuse of position or loss of impartiality, or otherwise to ensure confidence in the impartiality and objectivity with which 

Commission programs are administered. A waiver under this paragraph 

may be accompanied by appropriate 

conditions, such as requiring execution 

of a written statement of disqualification. Notwithstanding the grant of any 

waiver, an employee remains subject to 

the disqualification requirements of 5 

CFR 2635.402 and 2635.502. 

§ 8401.103 Prior approval for outside 

employment. 

(a) Prior approval requirement. (1) Before engaging in any outside employment, whether or not for compensation, a Commission employee who is 

classified at GS–13 or above, as well a 

Commission attorney at any grade 

level, must obtain the written approval 

of the employee’s immediate supervisor and the designated agency ethics 

official. This requirement does not 

apply to a special Government employee of the Commission. 

(2) Requests for approval shall be forwarded through the employee’s immediate supervisor to the designated 

agency ethics official and shall include 

at a minimum the name of the person, 

group, or organization for whom the 

work is to be performed; the type of 

work to be performed; and the proposed 

hours of work and approximate dates of 

employment. 

(b) Standard for approval. Approval 

shall be granted only upon a determination that outside employment is 

not expected to involve conduct prohibited by statute or Federal regulation, 

including 5 CFR 2635 and this part. 

(c) Definitions. For purposes of this 

section: 

(1) Employment means any form of 

non-Federal employment or business 

relationship involving the provision of 

personal services by the employee. It 

includes but is not limited to personal 

services as an officer, director, employee, agent, attorney, consultant, 

contractor, general partner, trustee or 

teacher. It also includes writing when 

done under an arrangement with another person for production or publication of the written product. It does not, 

however, include participation in the 

activities of a nonprofit charitable, religious, professional, social, fraternal, 

educational, recreational, public service or civic organization, unless such 

activities involve the provision of professional services or advice or are for 

compensation other than reimbursement expenses. 

(2) Professional services means the provision of personal services by an employee, including the rendering of advice or consultation, which involves 

application of the skills of a profession 

as defined in 5 CFR 2636.305(b)(1). 


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