[Code of Federal Regulations]
[Title 5, Volume 3]
[Revised as of January 1, 2001]
From the U.S. Government Printing Office via GPO Access
[CITE: 5CFR8401.102]

[Page 855-856]
 
                    TITLE 5--ADMINISTRATIVE PERSONNEL
 
     CHAPTER LXXIV--FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
 
PART 8401--SUPPLEMENTAL STANDARDS OF ETHICAL CONDUCT FOR EMPLOYEES OF 
           THE FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
 
Sec. 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


[[Page 856]]

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 Sec. 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.