71st OREGON LEGISLATIVE ASSEMBLY--2001 Regular Session
NOTE: Matter within { + braces and plus signs + } in an
amended section is new. Matter within { - braces and minus
signs - } is existing law to be omitted. New sections are within
{ + braces and plus signs + } .
LC 596
(Including Amendments to Resolve Conflicts)
B-Engrossed
Senate Bill 269
Ordered by the House May 16
Including Senate Amendments dated April 6 and House Amendments
dated May 16
Printed pursuant to Senate Interim Rule 213.28 by order of the
President of the Senate in conformance with presession filing
rules, indicating neither advocacy nor opposition on the part
of the President (at the request of Governor John A. Kitzhaber,
M.D., for Department of Consumer and Business Services)
SUMMARY
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure.
Specifies when certain information in possession of Department
of Consumer and Business Services is confidential and not subject
to disclosure.
Adds financial holding companies to laws regulating bank
holding companies. Requires that certain rights or options may
not be issued to director, officer or employee of Oregon banking
institution or Oregon stock savings bank unless issuance is to
all shareholders of entity.
Specifies circumstances in which worker medical and vocational
records in possession of workers' compensation insurers may be
disclosed.
Declares emergency, effective on passage.
A BILL FOR AN ACT
Relating to the regulation of financial activities; creating new
provisions; amending ORS 59.015, 59.840, 98.412, 192.502,
205.460, 294.035, 310.651, 646.382, 656.268, 706.005, 706.008,
706.015, 706.690, 706.720, 706.723, 706.730, 707.262, 708A.120,
708A.200, 708A.565, 715.012, 715.017, 715.019, 715.045,
715.055, 715.075, 715.090, 717.210, 722.419, 731.264, 731.312,
731.450, 731.735, 731.750, 731.752, 732.230, 732.523, 732.528,
732.548, 732.586, 733.304, 733.620, 735.425, 735.430, 744.061,
744.346, 744.724, 746.182, 746.185, 746.600, 746.620, 746.630,
746.665, 746.680, 748.603, 750.055, 803.092 and 803.220;
repealing ORS 731.740 and section 45, chapter ___, Oregon Laws
2001 (Enrolled Senate Bill 268); and declaring an emergency.
Be It Enacted by the People of the State of Oregon:
SECTION 1. { + Sections 2 and 3 of this 2001 Act are added to
and made a part of ORS chapter 705. + }
SECTION 2. { + (1) Except as provided in subsection (3) of
this section, any document, material or other information that is
in the possession or control of the Department of Consumer and
Business Services for the purpose of administering ORS 646.380 to
646.396, 697.005 to 697.095, 697.602 to 697.842, 717.200 to
717.320, 717.900 and 717.905, ORS chapters 59, 722, 723, 725 and
726, the Bank Act and the Insurance Code and that is described in
statute as confidential or as not subject to disclosure is not
subject to disclosure under ORS 192.410 to 192.505, is not
subject to subpoena and is not subject to discovery or admissible
in evidence in any private civil action. The Director of the
Department of Consumer and Business Services may use such
confidential documents, materials or other information in
administering ORS 646.380 to 646.396, 697.005 to 697.095, 697.602
to 697.842, 717.200 to 717.320, 717.900 and 717.905, ORS chapters
59, 722, 723, 725 and 726, the Bank Act and the Insurance Code
and in the furtherance of any other regulatory or legal action
brought as a part of the director's duties.
(2) Any document, material or other information to which
subsection (1) of this section applies is subject to the public
officer privilege described in ORS 40.270.
(3) In order to assist in the performance of the director's
duties, the director:
(a) May authorize the sharing of confidential documents,
materials and other information subject to subsection (1) of this
section as appropriate among the administrative divisions and
staff offices of the department created under ORS 705.115 for the
purpose of administering and enforcing the statutes referred to
in subsection (1) of this section, in order to enable the
administrative divisions and staff offices to carry out their
functions and responsibilities.
(b) May share documents, materials and other information,
including the confidential documents, materials and other
information that is subject to subsection (1) of this section or
that is otherwise confidential under ORS 192.501 or 192.502, with
other state, federal, foreign and international regulatory and
law enforcement agencies and with the National Association of
Insurance Commissioners and its affiliates or subsidiaries, if
the recipient agrees to maintain the confidentiality of the
documents, materials and other information.
(c) May receive documents, materials and other information,
including otherwise confidential documents, materials and other
information, from state, federal, foreign and international
regulatory and law enforcement agencies and from the National
Association of Insurance Commissioners and its affiliates or
subsidiaries. The director shall maintain as confidential as
provided in this section any such document, material or other
information received upon notice or with an understanding that it
is confidential or privileged under the laws of the jurisdiction
that is the source of the document, material or other
information.
(4) Neither disclosure of documents, materials or other
information to the director under this section nor the sharing of
documents, materials or other information as authorized in
subsection (3) of this section waives any applicable privilege or
claim of confidentiality in the documents, materials or other
information.
(5) This section does not prohibit the director from releasing
final, adjudicated actions, including suspensions or revocations
of certificates of authority or licenses, when the actions are
otherwise open to public inspection, to a database or other
clearinghouse service maintained by the National Association of
Insurance Commissioners or its affiliates or subsidiaries. + }
SECTION 3. { + (1) The Director of the Department of Consumer
and Business Services may enter into agreements with other state,
federal, foreign and international regulatory and law enforcement
agencies and with the National Association of Insurance
Commissioners and its affiliates or subsidiaries, governing the
sharing and use of information consistent with section 2 of this
2001 Act.
(2) An agreement under this section must specify the duration
of the agreement, the purpose of the agreement, the methods that
may be employed for terminating the agreement and any other
necessary and proper matters.
(3) An agreement under this section does not relieve the
director of any obligation or responsibility imposed by law.
(4) The director may expend funds of the Department of Consumer
and Business Services and may supply services for the purpose of
carrying out an agreement under this section.
(5) Agreements under this section are exempt from ORS 190.410
to 190.440 and 190.480 to 190.490. + }
SECTION 4. ORS 731.264 is amended to read:
731.264. (1) A complaint made to the Director of the Department
of Consumer and Business Services against any person regulated by
the Insurance Code, and the record thereof, shall be confidential
{ - , - } and { - shall - } { + may + } not be disclosed
except as
{ - considered necessary by the director in the administration
of the Insurance Code - } { + provided in section 2 of this
2001 Act + }. No such complaint, or the record thereof, shall be
used in any action, suit or proceeding except to the extent
considered necessary by the director in the prosecution of
apparent violations of the Insurance Code { + or other law + }.
(2) Data gathered pursuant to an investigation by the director
of a complaint shall be confidential, { - and shall - }
{ + may + } not be disclosed { - or - } { + except as
provided in section 2 of this 2001 Act and may not be + } used in
any action, suit or proceeding except to the extent considered
necessary by the director in the investigation or prosecution of
apparent violations of the Insurance Code { + or other law + }.
(3) Notwithstanding subsections (1) and (2) of this section,
the director shall establish by rule a method for publishing an
annual statistical report containing the insurer's name and the
number, percentage, type and disposition of complaints received
by the Department of Consumer and Business Services against each
insurer transacting insurance within this state.
SECTION 5. ORS 731.312 is amended to read:
731.312. (1) Not later than the 60th day after completion of an
examination, the examiner in charge of the examination shall
submit to the Director of the Department of Consumer and Business
Services a full and true report of the examination, verified by
the oath of the examiner. The report shall comprise only facts
appearing upon the books, papers, records, accounts, documents or
computer and other recordings of the person, its agents or other
persons being examined or facts ascertained from testimony of
individuals { - under oath - } concerning the affairs of such
person, together with such conclusions and recommendations as
reasonably may be warranted from such facts.
(2) The director shall make a copy of the report submitted
under subsection (1) of this section available to the person who
is the subject of the examination and shall give the person an
opportunity to review and comment on the report. The director may
request additional information or meet with the person for the
purpose of resolving questions or obtaining additional
information, and may direct the examiner to consider the
additional information for inclusion in the report.
(3) Before the director files the examination report as a final
examination report or makes the report or any matters relating
thereto public, the person being examined shall have an
opportunity for a hearing. A copy of the report must be mailed by
certified mail to the person being examined. The person may
request a hearing not later than the 30th day after the date on
which the report was mailed. This subsection does not limit the
authority of the director to disclose a preliminary or final
examination report as otherwise provided in this section.
(4) The director shall consider comments presented at a hearing
requested under subsection (3) of this section and may direct the
examiner to consider the comments or direct that the comments be
included in documentation relating to the report, although not as
part of the report itself. The director may file the report as a
final examination report at any time after consideration of the
comments or at any time after the period for requesting a hearing
has passed if a hearing is not requested.
(5) A report filed as a final examination report is subject to
public inspection. The director, after filing any report, if the
director considers it for the interest of the public to do so,
may publish any report or the result of any examination as
contained therein in one or more newspapers of the state without
expense to the person examined.
(6) { - Except as provided in subsections (7) and (8) of this
section, or unless, in the sole discretion of the director, - }
{ + All work papers, recorded information, documents and copies
thereof that are produced or obtained by or disclosed to the
director or any other person in the course of an examination or
in the course of analysis by the director of the financial
condition or market conduct of an insurer are confidential and
are exempt from public inspection as provided in section 2 of
this 2001 Act. If + } the director { + , in the director's sole
discretion, + } determines that disclosure is necessary to
protect the public interest, { + the director may make
available + } { - all - } work papers, recorded information,
documents and copies thereof produced by, obtained by or
disclosed to the director or any other person in the course of
the examination { - are confidential and are exempt from public
inspection - } .
{ - (7) In the furtherance of any judicial or administrative
action, the director may use and disclose any facts determined
and conclusions made pursuant to an examination, including but
not limited to disclosure of any final examination report, any
preliminary examination report not otherwise disclosed to the
public, any work papers, recorded information, documents and
copies thereof described in subsection (6) of this section and
any other information discovered or developed during the course
of the examination. - }
{ - (8) - } { + (7) + } The director may disclose the
content of an examination report that has not yet otherwise been
disclosed or may disclose any of the materials described in
subsection (6) of this section { + as provided in section 2 of
this 2001 Act. + } { - to any entity described in this
subsection if the entity, prior to receiving the report or
materials, agrees in writing to hold the report or materials
confidential and in a manner consistent with this section. This
subsection does not require the director to disclose any
information or records revealing the existence or content of any
investigation by or activity of a criminal justice agency. The
entities to whom a report or other materials may be disclosed are
as follows: - }
{ - (a) The insurance department of any other state or
country. - }
{ - (b) Law enforcement officials of this or any other state
or agency of the federal government. - }
{ - (c) The National Association of Insurance
Commissioners. - }
SECTION 6. ORS 731.735 is amended to read:
731.735. { - Neither the Director of the Department of
Consumer and Business Services nor any employee of the Department
of Consumer and Business Services may disclose - } { + All
financial analysis ratios and + } examination synopses concerning
insurers that are submitted to the Director { + of the
Department of Consumer and Business Services + } by the Insurance
Regulatory Information System of the National Association of
Insurance Commissioners { + are confidential as provided in
section 2 of this 2001 Act + }.
SECTION 7. ORS 731.750 is amended to read:
731.750. (1) A report filed with the Director of the Department
of Consumer and Business Services according to requirements
established by rule for disclosure of material acquisitions or
dispositions of assets and disclosure of material nonrenewals,
cancellations and revisions of ceded reinsurance agreements shall
be confidential as provided in { - this - } section { + 2 of
this 2001 Act + }.
(2) The director may direct the insurer to furnish copies of a
report described in subsection (1) of this section to the
National Association of Insurance Commissioners.
(3) { - Except as provided in this subsection, a report
described in subsection (1) of this section shall not be
disclosed by the director or the National Association of
Insurance Commissioners. - } The director may disclose or use a
report as considered necessary by the director in the
administration of the Insurance Code { + or other law + }.
{ - (4) A report described in subsection (1) of this section
shall not be subject to subpoena and shall not be used in any
action or proceeding except to the extent considered necessary by
the director in the administration of the Insurance Code. - }
{ - (5) - } { + (4) + } Information contained in documents
described in subsections (1) to (3) of this section that is also
contained in financial statements of insurers filed under ORS
731.574 or in final examination reports filed under ORS 731.312
is not confidential under this section.
SECTION 8. ORS 731.752 is amended to read:
731.752. (1) A report filed with the Director of the Department
of Consumer and Business Services according to requirements
established by rule for the purpose of determining the amount of
capital or surplus, or any combination thereof, that should be
possessed and maintained by an insurer under ORS 731.554 { + or
by a health care service contractor under ORS 750.045 + }, or
under the laws of another state establishing similar
requirements, shall be confidential and shall not be disclosed
except as { - considered necessary by the director in
administration of the Insurance Code - } { + provided in
section 2 of this 2001 Act + }.
(2) A financial plan of action stating corrective actions to be
taken by an insurer in response to a determination of inadequate
capital or surplus, or any combination thereof, that is filed by
the insurer with the director according to requirements
established by rule shall be confidential and shall not be
disclosed except as { - considered necessary by the director in
administration of the Insurance Code - } { + provided in
section 2 of this 2001 Act + }.
(3) The results or report of any examination or analysis of an
insurer performed by the director in connection with a financial
plan described in subsection (2) of this section and any
corrective order issued by the director pursuant to such an
examination or analysis shall be confidential and shall not be
disclosed except as { - considered necessary by the director in
administration of the Insurance Code - } { + provided in
section 2 of this 2001 Act + }.
{ - (4) Documents described in subsections (1) to (3) of this
section are not subject to subpoena and shall not be used in any
action or proceeding except to the extent considered necessary by
the director in the administration of the Insurance Code. - }
{ - (5) - } { + (4) + } Information contained in documents
described in subsections (1) to (3) of this section that is also
contained in financial statements of insurers filed under ORS
731.574 or in final examination reports filed under ORS 731.312
is not confidential under this section.
SECTION 9. ORS 732.230 is amended to read:
732.230. (1) Whenever the Director of the Department of
Consumer and Business Services determines from any showing or
statement made to the director or from any examination made by
the director that the assets of a domestic insurer are less than
its liabilities plus required capitalization, the director may
proceed immediately under the provisions of ORS chapter 734 or
the director may allow the insurer a period of time, not to
exceed 90 days, in which to make good the amount of the
impairment with cash or authorized investments.
(2) If the amount of any such impairment is not made good
within the time prescribed by the director under subsection (1)
of this section, the director shall proceed under the provisions
of ORS chapter 734.
(3) { - The director may withhold from public inspection - }
An order directing an insurer to cure an impairment { + is
confidential as provided in section 2 of this 2001 Act + }, for
such time as the director considers proper but not exceeding the
time prescribed by the director for making the amount of the
impairment good { - , - } { + . + } If the director determines
that { + the public interest in disclosure outweighs + } the
public interest in protecting or salvaging the solvency of the
insurer { - outweighs the public interest in disclosure - }
{ + , the director may make the order available for public
inspection + }.
SECTION 10. ORS 732.523 is amended to read:
732.523. (1) An acquiring party:
(a) Must file with the Director of the Department of Consumer
and Business Services for approval a statement containing the
information required in this section. If more than one acquiring
party is required to file a statement under this paragraph, any
or all such parties acting in concert may file a joint statement.
(b) Must deliver or mail to the domestic insurer to which the
activity described in ORS 732.521 (1) applies, concurrently with
filing the statement under paragraph (a) of this subsection, a
statement containing the information required by this section. A
statement mailed under this paragraph shall be sent by certified
mail, return receipt requested. If a joint statement is filed
under paragraph (a) of this subsection, the joint statement shall
be the statement mailed or delivered under this paragraph.
(2) The statement to be filed with the director under this
section shall be made under oath or affirmation and shall contain
the following information:
(a) The name and address of the domestic insurer involved and
each acquiring party required to file the statement, and
additional biographical and business information about each
acquiring party required to file the statement, business plans
and information regarding persons who will serve as or perform
functions of directors or officers, as required by the director.
(b) The source, nature and amount of the consideration used or
to be used in effecting the activity, a description of any
transaction in which funds were or are to be obtained for the
activity and the identity of persons furnishing the
consideration. However, when a source of consideration is a loan
made in the lender's ordinary course of business, the identity of
the lender shall remain confidential { + as provided in section
2 of this 2001 Act + }, if the acquiring party filing the
statement so requests.
(c) Fully audited financial information as to the earnings and
financial condition of each acquiring party for the preceding
five fiscal years of the acquiring party, or for such lesser
period as the acquiring party and any predecessors of the
acquiring party have been in existence, and similar unaudited
information as of a date not earlier than 90 days prior to the
filing of the statement.
(d) Any plan or proposals of each acquiring party required to
file a statement to liquidate the insurer, to sell its assets or
merge or consolidate it with any person, or to make any other
material change in its business or corporate structure or
management.
(e) As required by the director, information regarding shares
to be acquired by an acquiring party in connection with the
activity, information regarding related offers or agreements,
information regarding classes of security to be acquired and
related contracts, arrangements or understandings, and
information regarding related purchases of securities and
recommendations to purchase.
(f) Any additional information required by the director.
(3) All requests or invitations for tenders or advertisements
making a tender offer or requesting or inviting tenders of
securities for control of a domestic insurer made by or on behalf
of any acquiring party required to file the statement under this
section shall contain such information specified in subsection
(2) of this section as the director may prescribe. Copies of the
materials shall be filed with the director at least 10 days prior
to the time the materials are first published or sent or given to
security holders. Any additional materials soliciting or
requesting the tenders subsequent to the initial solicitation or
request shall contain such information as the director may
prescribe. Copies of the additional materials shall be filed with
the director at least 10 days prior to the time the materials are
first published or sent or given to security holders.
(4) If any acquiring party required to file the statement under
this section is a partnership, limited partnership, syndicate or
other group, the director may require that the information called
for by subsection (2) of this section be given with respect to
each partner of the partnership or limited partnership, each
member of the syndicate or group and each person who controls the
partner or member. If any such partner, member or person is a
corporation or if the acquiring party is a corporation, the
director may require that the information called for by
subsection (2) of this section be given with respect to the
corporation and each officer and director of the corporation and
each person who is directly or indirectly the beneficial owner of
more than 10 percent of the outstanding securities of the
corporation.
(5) If any material change occurs in the facts set forth in the
statement filed under this section, the party who filed the
statement must file with the director and send to the insurer,
within two business days after the party learns of the change, an
amendment setting forth the change together with copies of all
documents and other material relevant to the change.
(6) If an offer, request, invitation, agreement or acquisition
referred to in ORS 732.521 (1) is proposed to be made by means of
a registration statement under the Securities Act of 1933 or in
circumstances requiring the disclosure of similar information
under the Securities Exchange Act of 1934, or under a state law
requiring similar registration or disclosure, the party or
parties required to file the statement under this section may use
such documents in furnishing the information called for by that
statement.
(7) Any acquiring party may file with the completed statement
or within 10 days thereafter a written request for a hearing on
the acquisition. The insurer to be acquired may file with the
director a written request for a hearing on the acquisition
within 10 days after the filing of the completed statement.
SECTION 11. ORS 732.586 is amended to read:
732.586. (1) All information, documents and copies thereof
obtained by or disclosed to the Director of the Department of
Consumer and Business Services or any other person in the course
of an examination or investigation made pursuant to ORS 732.584
are subject to { - disclosure as provided in - } { + the
provisions of + } ORS 731.312.
(2) All information reported pursuant to ORS 732.552, 732.554,
732.574 and 732.576 { - are exempt from disclosure and shall
not be made public by the director, the National Association of
Insurance Commissioners or any other person. As provided in ORS
731.312, the director may disclose reported information in the
furtherance of a judicial or administrative proceeding and to the
insurance department of any other state or country, the National
Association of Insurance Commissioners and law enforcement
officials of this or any other state or of an agency of the
federal government - } { + is confidential and may not be made
public except as provided in this subsection. The director may
disclose reported information only as provided in section 2 of
this 2001 Act + }. Otherwise, the director may disclose such
reported information only as follows:
(a) If the director obtains the prior written consent of the
insurer to which the reported information pertains; or
(b) If the director, after giving the insurer and its
affiliates who would be affected thereby notice and opportunity
to be heard, determines that the interest of policyholders,
shareholders or the public will be served by the publication
thereof. If the director determines that one or more of such
interests will be so served, the director may publish all or any
part thereof in any manner that the director determines to be
appropriate.
SECTION 12. ORS 733.304 is amended to read:
733.304. (1) Each insurer transacting life insurance in this
state shall submit annually to the Director of the Department of
Consumer and Business Services the opinion of a qualified actuary
as provided in this section. The following provisions apply with
respect to opinions required under this subsection:
(a) The opinion must state whether, in the opinion of the
qualified actuary, the reserves and related actuarial items held
in support of the policies and contracts specified by the
director by rule are computed appropriately, are based on
assumptions that satisfy contractual provisions, are consistent
with prior reported amounts and comply with applicable laws of
this state. The director by rule shall establish the specific
requirements for the opinion and may require any other items that
the director determines to be necessary to its scope.
(b) The opinion shall be submitted with the annual statement
reflecting the valuation of the reserve liabilities for each
year.
(c) The opinion shall apply to all business in force, including
individual and group health insurance plans, in form and
substance acceptable to the director as specified by rule.
(d) The director by rule:
(A) Shall adopt standards on which actuarial opinions under
this subsection must be based. In adopting the standards, the
director shall consider standards established from time to time
by the Actuarial Standards Board of the American Academy of
Actuaries.
(B) Shall define 'qualified actuary' for purposes of this
subsection, by establishing qualifications required of an actuary
for the purpose of giving the opinions. In establishing the
definition, the director shall consider standards established
from time to time by the American Academy of Actuaries.
(C) May also adopt any other rules needed for carrying out this
subsection.
(e) In the case of an opinion required to be submitted by a
foreign or alien insurer, the director may accept the opinion
filed by the insurer with the insurance supervisory official of
another state if the director determines that the opinion
reasonably meets the requirements applicable to a domestic
insurer.
(f) Except in cases of fraud or willful misconduct, a qualified
actuary shall not be liable for damages to any person other than
the insurer or the director for any act, error, omission,
decision or conduct with respect to the actuary's opinion.
(g) For each opinion submitted under this subsection, a
memorandum shall be prepared supporting the opinion. The
memorandum must conform in form and substance to requirements
established by the director by rule.
(h) If an insurer fails to provide a supporting memorandum
within the period specified by rule or if the director determines
that the supporting memorandum provided by the insurer fails to
meet the standards prescribed by rule or is otherwise
unacceptable to the director, the director may engage a qualified
actuary at the expense of the insurer to review the opinion and
the basis for the opinion and prepare any supporting memorandum
that is required by the director.
(i) { - A memorandum in support of an actuarial opinion under
this subsection and any other material provided to the director
in connection therewith shall be confidential and shall not be
disclosed except as considered necessary by the director in the
administration of the Insurance Code. Such a memorandum and such
material also shall not be subject to subpoena, other than for
the purpose of defending an action seeking damages from any
person by reason of any action required by this section or by
rules adopted under this section. - } { + Except as provided in
this paragraph, a memorandum in the possession or control of the
director that is in support of an actuarial opinion, and any
other material provided by the insurer to the director in
connection with the memorandum, is confidential as provided in
section 2 of this 2001 Act. Notwithstanding section 2 of this
2001 Act, such a memorandum and other materials are subject to
subpoena only for the purpose of defending an action seeking
damages from the actuary submitting the memorandum by reason of
any action required by this section or by rules adopted under
this section. + } Once any portion of the confidential memorandum
is cited by the insurer in its marketing or is cited before any
governmental agency other than a state insurance department or is
released by the insurer to the news media, all portions of the
confidential memorandum shall be no longer confidential. { + In
addition to the uses and disclosures allowed under section 2 of
this 2001 Act, + } a memorandum or other material may otherwise
be released by the director:
(A) With the written consent of the insurer; or
(B) To the American Academy of Actuaries upon request thereof,
when the request states that the memorandum or other material is
required for the purpose of professional disciplinary proceedings
and sets forth procedures satisfactory to the director for
preserving the confidentiality of the memorandum or other
material.
(j) Grounds for disciplinary action by the director against the
insurer or the qualified actuary shall be defined by rule.
(2) Unless exempted by the director by rule, each insurer
transacting life insurance in this state shall include in each
opinion required by subsection (1) of this section an opinion by
the same actuary who prepared the opinion required by subsection
(1) of this section. The following provisions apply with respect
to the opinion:
(a) The actuary shall state the actuary's opinion as to whether
the reserves and related actuarial items held in support of the
policies and contracts specified by the director by rule, when
considered in light of the assets held by the insurer with
respect to the reserves and related actuarial items, including
but not limited to the investment earnings on the assets and the
considerations anticipated to be received and retained under the
policies and contracts, make adequate provision for the insurer's
obligations under the policies and contracts, including but not
limited to the benefits under and expenses associated with the
policies and contracts.
(b) The director may provide by rule for a transition period
for establishing any higher reserves that the actuary may deem
necessary in order to render the opinion required under this
subsection.
SECTION 13. ORS 735.425 is amended to read:
735.425. (1) Within 90 days after the placing of any surplus
lines insurance, each surplus lines licensee shall file with the
Director of the Department of Consumer and Business Services:
(a) An affidavit { + regarding the insurance + }, which shall
be kept confidential { + as provided in section 2 of this 2001
Act + }, { - regarding the insurance, - } including the
following:
(A) The name and address of the insured;
(B) The identity of the insurer or insurers;
(C) A description of the subject and location of the risk;
(D) The amount of premium charged for the insurance; and
(E) Such other pertinent information as the director may
reasonably require.
(b) A statement on a standardized form furnished by the
director, as to the diligent efforts by the producing agent to
place the coverage with admitted insurers and the results
thereof. The statement shall affirm that the insured was
expressly advised prior to placement of the insurance that:
(A) The surplus lines insurer with whom the insurance was to be
placed is not licensed in this state and is not subject to its
supervision; and
(B) In the event of the insolvency of the surplus lines
insurer, losses will not be paid by the state insurance guaranty
fund.
(2) The director may direct that filings required under this
section be made to the Surplus Lines Association of Oregon.
SECTION 13a. { + If Senate Bill 268 becomes law, section 45,
chapter ___, Oregon Laws 2001 (Enrolled Senate Bill 268)
(amending ORS 735.425), is repealed and ORS 735.425, as amended
by section 13 of this 2001 Act, is amended to read: + }
735.425. (1) Within 90 days after the placing of any surplus
lines insurance { + in this state + }, each surplus lines
licensee shall file with the Director of the Department of
Consumer and Business Services:
(a) An affidavit { + signed by the licensee + } regarding the
insurance, which shall be kept confidential as provided in
section 2 of this 2001 Act, including the following:
(A) The name and address of the insured;
(B) The identity of the insurer or insurers;
(C) A description of the subject and location of the risk;
(D) The amount of premium charged for the insurance; and
(E) Such other pertinent information as the director may
reasonably require.
(b) A statement on a standardized form furnished by the
director, as to the diligent efforts by the producing agent to
place the coverage with admitted insurers and the results
thereof. The statement shall { + be signed by the producing
agent and shall + } affirm that the insured was expressly advised
prior to placement of the insurance that:
(A) The surplus lines insurer with whom the insurance was to be
placed is not licensed in this state and is not subject to its
supervision; and
(B) In the event of the insolvency of the surplus lines
insurer, losses will not be paid by the state insurance guaranty
fund.
(2) The director may direct that filings required under { +
subsection (1) of + } this section be made to the Surplus Lines
Association of Oregon. { + The director may also require that
such filings be made electronically but may exempt a licensee
from the requirement for good cause shown.
(3) A nonresident surplus lines licensee or nonresident
insurance producer who places a surplus lines policy on a risk
with exposures located both in this state and outside this state
shall satisfy filing requirements established by the director by
rule. The director shall ensure that the rules facilitate
interstate regulation of surplus lines insurance
transactions. + }
SECTION 13b. { + (1) The amendments to ORS 735.425 by section
13a of this 2001 Act become operative on January 1, 2002. + }
{ + (2) The Director of the Department of Consumer and
Business Services may take any action before the operative date
of the amendments to ORS 735.425 by section 13a of this 2001 Act
that is necessary to enable the director to exercise, on and
after the operative date of the amendments to ORS 735.425 by
section 13a of this 2001 Act, all the duties, functions and
powers conferred on the director by the amendments to ORS 735.425
by section 13a of this 2001 Act. + }
SECTION 14. ORS 735.430 is amended to read:
735.430. (1) The Surplus Lines Association of Oregon shall be
the advisory organization of surplus lines licensees to:
(a) Facilitate and encourage compliance by its members with the
laws of this state and the rules of the Director of the
Department of Consumer and Business Services relative to surplus
lines insurance;
(b) Provide means for the examination, which shall remain
confidential { + as provided in section 2 of this 2001 Act + },
of all surplus lines coverage written by its members to determine
whether such coverages comply with such laws;
(c) Communicate with organizations of admitted insurers with
respect to the proper use of the surplus lines market;
(d) Receive and disseminate to its members information relative
to surplus lines coverages; and
(e) Receive and collect on behalf of the state and remit to the
state premium receipts tax for surplus lines insurance.
(2) The Surplus Lines Association of Oregon shall file with the
director:
(a) A copy of its constitution, articles of agreement or
association or certificate of incorporation;
(b) A copy of its bylaws and rules governing its activities;
(c) A current list of members;
(d) The name and address of a resident of this state upon whom
notices or orders of the director or processes issued at the
direction of the director may be served;
(e) An agreement that the director may examine the Surplus
Lines Association of Oregon in accordance with the provisions of
this section; and
(f) A schedule of membership fees and charges.
(3) The director may make or cause to be made an examination of
the surplus lines advisory organization. The reasonable cost of
any such examination shall be paid by the surplus lines advisory
organization upon presentation to it by the director of a
detailed account of each cost. The officers, managers, agents and
employees of the surplus lines advisory organization may be
examined at any time, under oath, and shall exhibit all books,
records, accounts, documents or agreements governing its method
of operation. The director shall furnish two copies of the
examination report to the surplus lines advisory organization
examined and shall notify such organization that it may, within
20 days thereof, request a hearing on the report or on any facts
or recommendations therein. If the director finds the surplus
lines advisory organization or any member thereof to be in
violation of ORS 735.400 to 735.495, the director may issue an
order requiring the discontinuance of such violation.
SECTION 15. ORS 744.346 is amended to read:
744.346. (1) The Director of the Department of Consumer and
Business Services may examine the business and practices of any
licensee or applicant for a license when the director determines
an examination to be necessary. The director may order a licensee
or applicant to produce any records, books, files or other
information reasonably necessary to ascertain whether or not the
licensee or applicant is acting or has acted in violation of the
law or otherwise contrary to the interests of the public. The
expenses incurred in conducting any examination shall be paid by
the licensee or applicant.
(2) A life settlement provider shall maintain records of all
transactions of life settlement contracts of the life settlement
provider and must make the records available to the director for
inspection during reasonable business hours. The records must be
maintained for a period of not later than five years from the
date of their creation.
(3) The director at any time may require a licensee to fully
disclose the identity of all stockholders, partners, officers and
employees.
(4) Names of, and individual identification data for, all
policyholders and certificate holders who have entered life
settlement contracts with life settlement providers shall be
confidential { - and shall not be disclosed except as
considered necessary by the director in administration of the
Insurance Code - } { + as provided in section 2 of this 2001
Act + }.
SECTION 16. ORS 744.724 is amended to read:
744.724. (1) Except as provided in subsection (4) of this
section, a third party administrator shall maintain and make
available to the insurer complete books and records of each
transaction performed on behalf of the insurer. The books and
records shall be maintained in accordance with prudent standards
of insurance recordkeeping and must be maintained for a period of
not less than five years from the date of their creation.
(2) The Director of the Department of Consumer and Business
Services shall have access to the books and records maintained
under subsection (1) of this section for the purpose of
examination, audit and inspection. { - The director shall keep
confidential any trade secrets contained in the books and
records, including the identity and addresses of policyholders
and certificate holders, except that the director may use any
such information in any proceedings instituted against the third
party administrator. - } { + Any document, material or other
information in the possession or control of the director that is
furnished by a third party administrator, an insurer, an agent or
an employee or an agent acting on behalf of the third party
administrator, insurer or agent, or that is obtained by the
director in an investigation, shall be confidential as provided
in section 2 of this 2001 Act. + }
(3) An insurer that has entered into an agreement with a third
party administrator shall own the records generated by the third
party administrator pertaining to the insurer. However, the third
party administrator has the right to continuing access to the
books and records to permit the third party administrator to
fulfill all of its contractual obligations to insured parties,
claimants and the insurer.
(4) If an insurer and third party administrator cancel their
agreement, the third party administrator may agree in writing
with the insurer to transfer all records to a successor third
party administrator. If the agreement includes provisions to
transfer the records, the third party administrator is no longer
responsible for retaining the records for the five-year period.
The successor third party administrator shall acknowledge in
writing as part of its agreement with the insurer that it is
responsible for retaining the records of the prior third party
administrator as required in subsection (1) of this section.
SECTION 17. ORS 192.502 is amended to read:
192.502. The following public records are exempt from
disclosure under ORS 192.410 to 192.505:
(1) Communications within a public body or between public
bodies of an advisory nature to the extent that they cover other
than purely factual materials and are preliminary to any final
agency determination of policy or action. This exemption shall
not apply unless the public body shows that in the particular
instance the public interest in encouraging frank communication
between officials and employees of public bodies clearly
outweighs the public interest in disclosure.
(2) Information of a personal nature such as but not limited to
that kept in a personal, medical or similar file, if the public
disclosure thereof would constitute an unreasonable invasion of
privacy, unless the public interest by clear and convincing
evidence requires disclosure in the particular instance. The
party seeking disclosure shall have the burden of showing that
public disclosure would not constitute an unreasonable invasion
of privacy.
(3)(a) Public body employee or volunteer addresses, dates of
birth and telephone numbers contained in personnel records
maintained by the public body that is the employer or the
recipient of volunteer services. This exemption does not apply:
(A) To such employees or volunteers if they are elected
officials, except that a judge or district attorney subject to
election may seek to exempt the judge's or district attorney's
address or telephone number, or both, under the terms of ORS
192.445;
(B) To such employees or volunteers to the extent that the
party seeking disclosure shows by clear and convincing evidence
that the public interest requires disclosure in a particular
instance; or
(C) To a substitute teacher as defined in ORS 342.815 when
requested by a professional education association of which the
substitute teacher may be a member.
(b) Nothing in this subsection exempting employee records from
disclosure relieves a public employer of any duty under ORS
243.650 to 243.782.
(4) Information submitted to a public body in confidence and
not otherwise required by law to be submitted, where such
information should reasonably be considered confidential, the
public body has obliged itself in good faith not to disclose the
information, and when the public interest would suffer by the
disclosure.
(5) Information or records of the Department of Corrections,
including the State Board of Parole and Post-Prison Supervision,
to the extent that disclosure thereof would interfere with the
rehabilitation of a person in custody of the department or
substantially prejudice or prevent the carrying out of the
functions of the department, if the public interest in
confidentiality clearly outweighs the public interest in
disclosure.
(6) Records, reports and other information received or compiled
by the Director of the Department of Consumer and Business
Services in the administration of ORS chapters 723 and 725 not
otherwise required by law to be made public, to the extent that
the interests of lending institutions, their officers, employees
and customers in preserving the confidentiality of such
information outweighs the public interest in disclosure.
(7) Reports made to or filed with the court under ORS 137.077
or 137.530.
(8) Any public records or information the disclosure of which
is prohibited by federal law or regulations.
(9) Public records or information the disclosure of which is
prohibited or restricted or otherwise made confidential or
privileged under Oregon law.
(10) Public records or information described in this section,
furnished by the public body originally compiling, preparing or
receiving them to any other public officer or public body in
connection with performance of the duties of the recipient, if
the considerations originally giving rise to the confidential or
exempt nature of the public records or information remain
applicable.
(11) Records of the Energy Facility Siting Council concerning
the review or approval of security programs pursuant to ORS
469.530.
(12) Employee and retiree address, telephone number and other
nonfinancial membership records and employee financial records
maintained by the Public Employees Retirement System pursuant to
ORS chapter 238 and ORS 238.410.
(13) Records submitted by private persons or businesses to the
State Treasurer or the Oregon Investment Council relating to
proposed acquisition, exchange or liquidation of public
investments under ORS chapter 293 may be treated as exempt from
disclosure when and only to the extent that disclosure of such
records reasonably may be expected to substantially limit the
ability of the Oregon Investment Council to effectively compete
or negotiate for, solicit or conclude such transactions. Records
which relate to concluded transactions are not subject to this
exemption.
(14) The monthly reports prepared and submitted under ORS
293.761 and 293.766 concerning the Public Employees Retirement
Fund and the Industrial Accident Fund may be uniformly treated as
exempt from disclosure for a period of up to 90 days after the
end of the calendar quarter.
(15) Reports of unclaimed property filed by the holders of such
property to the extent permitted by ORS 98.352.
(16) The following records, communications and information
submitted to the Oregon Economic and Community Development
Commission, the Economic and Community Development Department,
the State Department of Agriculture, the Oregon Resource and
Technology Development Account or the Oregon Resource and
Technology Development Account Board, the Port of Portland or
other ports, as defined in ORS 777.005, by applicants for
investment funds, loans or services including, but not limited
to, those described in ORS 285A.224:
(a) Personal financial statements.
(b) Financial statements of applicants.
(c) Customer lists.
(d) Information of an applicant pertaining to litigation to
which the applicant is a party if the complaint has been filed,
or if the complaint has not been filed, if the applicant shows
that such litigation is reasonably likely to occur; this
exemption does not apply to litigation which has been concluded,
and nothing in this paragraph shall limit any right or
opportunity granted by discovery or deposition statutes to a
party to litigation or potential litigation.
(e) Production, sales and cost data.
(f) Marketing strategy information that relates to applicant's
plan to address specific markets and applicant's strategy
regarding specific competitors.
(17) Records, reports or returns submitted by private concerns
or enterprises required by law to be submitted to or inspected by
a governmental body to allow it to determine the amount of any
transient lodging tax payable and the amounts of such tax payable
or paid, to the extent that such information is in a form which
would permit identification of the individual concern or
enterprise. Nothing in this subsection shall limit the use which
can be made of such information for regulatory purposes or its
admissibility in any enforcement proceedings. The public body
shall notify the taxpayer of the delinquency immediately by
certified mail. However, in the event that the payment or
delivery of transient lodging taxes otherwise due to a public
body is delinquent by over 60 days, the public body shall
disclose, upon the request of any person, the following
information:
(a) The identity of the individual concern or enterprise that
is delinquent over 60 days in the payment or delivery of the
taxes.
(b) The period for which the taxes are delinquent.
(c) The actual, or estimated, amount of the delinquency.
(18) All information supplied by a person under ORS 151.430 to
151.491 for the purpose of requesting court-appointed counsel,
and all information supplied to the State Court Administrator
from whatever source for the purpose of verifying indigency of a
person pursuant to ORS 151.430 to 151.491.
(19) Workers' compensation claim records of the Department of
Consumer and Business Services, except in accordance with rules
adopted by the Director of the Department of Consumer and
Business Services, in any of the following circumstances:
(a) When necessary for insurers, self-insured employers and
third party claim administrators to process workers' compensation
claims.
(b) When necessary for the director, other governmental
agencies of this state or the United States to carry out their
duties, functions or powers.
(c) When the disclosure is made in such a manner that the
disclosed information cannot be used to identify any worker who
is the subject of a claim.
(d) When a worker or the worker's representative requests
review of the worker's claim record.
(20) Sensitive business records or financial or commercial
information of the Oregon Health Sciences University that is not
customarily provided to business competitors.
(21) Records of Oregon Health Sciences University regarding
candidates for the position of president of the university.
(22) The records of a library, including circulation records,
showing use of specific library material by a named person or
consisting of the name of a library patron together with the
address or telephone number, or both, of the patron.
(23) The following records, communications and information
submitted to the Housing and Community Services Department by
applicants for and recipients of loans, grants and tax credits:
(a) Personal and corporate financial statements and
information, including tax returns.
(b) Credit reports.
(c) Project appraisals.
(d) Market studies and analyses.
(e) Articles of incorporation, partnership agreements and
operating agreements.
(f) Commitment letters.
(g) Project pro forma statements.
(h) Project cost certifications and cost data.
(i) Audits.
(j) Project tenant correspondence requested to be confidential.
(k) Tenant files relating to certification.
(L) Housing assistance payment requests.
(24) Raster geographic information system (GIS) digital
databases, provided by private forestland owners or their
representatives, voluntarily and in confidence to the State
Forestry Department, that is not otherwise required by law to be
submitted.
(25) Sensitive business, commercial or financial information
furnished to or developed by a public body engaged in the
business of providing electricity or electricity services, if the
information is directly related to a transaction described in ORS
261.348, or if the information is directly related to a bid,
proposal or negotiations for the sale or purchase of electricity
or electricity services, and disclosure of the information would
cause a competitive disadvantage for the public body or its
retail electricity customers. This subsection does not apply to
cost-of-service studies used in the development or review of
generally applicable rate schedules.
(26) Sensitive business, commercial or financial information
furnished to or developed by the City of Klamath Falls, acting
solely in connection with the ownership and operation of the
Klamath Cogeneration Project, if the information is directly
related to a transaction described in ORS 225.085 and disclosure
of the information would cause a competitive disadvantage for the
Klamath Cogeneration Project. This subsection does not apply to
cost-of-service studies used in the development or review of
generally applicable rate schedules.
(27) Personally identifiable information about customers of a
municipal electric utility or a people's utility district. The
utility or district may, however, release such information to a
third party if the customer consents in writing or
electronically, if the disclosure is necessary to render utility
or district services to the customer, or if the disclosure is
required pursuant to a court order. The utility or district may
charge as appropriate for the costs of providing such
information. The utility or district may make customer records
available to third party credit agencies on a regular basis in
connection with the establishment and management of customer
accounts or in the event such accounts are delinquent.
(28) A record of the street and number of an employee's address
submitted to a special district to obtain assistance in promoting
an alternative to single occupant motor vehicle transportation.
(29) Except under the provisions of section 8 (2), chapter
1059, Oregon Laws 1999, pesticide sales or use reporting data
obtained by the State Department of Agriculture exclusively under
the provisions of sections 2 to 9, chapter 1059, Oregon Laws
1999, that would reveal the identity or specific location of the
owner or lessee of a specific property where a pesticide has been
applied for a private agriculture or forestry production
operation, or other nonpublic facility on private property.
Nothing in this subsection shall limit the use that may be made
of such information for regulatory purposes or its admissibility
in any enforcement proceedings.
(30) Sensitive business records, capital development plans or
financial or commercial information of Oregon Corrections
Enterprises that is not customarily provided to business
competitors.
{ + (31) Documents, materials or other information submitted
to the Director of the Department of Consumer and Business
Services in confidence by a state, federal, foreign or
international regulatory or law enforcement agency or by the
National Association of Insurance Commissioners, its affiliates
or subsidiaries under ORS 646.380 to 646.396, 697.005 to 697.095,
697.602 to 697.842, 717.200 to 717.320, 717.900 or 717.905, ORS
chapter 59, 722, 723, 725 or 726, the Bank Act or the Insurance
Code or section 2 of this 2001 Act when:
(a) The document, material or other information is received
upon notice or with an understanding that it is confidential or
privileged under the laws of the jurisdiction that is the source
of the document, material or other information; and
(b) The director has obligated the Department of Consumer and
Business Services not to disclose the document, material or other
information. + }
SECTION 18. ORS 192.502, as amended by section 16, chapter
1059, Oregon Laws 1999, is amended to read:
192.502. The following public records are exempt from
disclosure under ORS 192.410 to 192.505:
(1) Communications within a public body or between public
bodies of an advisory nature to the extent that they cover other
than purely factual materials and are preliminary to any final
agency determination of policy or action. This exemption shall
not apply unless the public body shows that in the particular
instance the public interest in encouraging frank communication
between officials and employees of public bodies clearly
outweighs the public interest in disclosure.
(2) Information of a personal nature such as but not limited to
that kept in a personal, medical or similar file, if the public
disclosure thereof would constitute an unreasonable invasion of
privacy, unless the public interest by clear and convincing
evidence requires disclosure in the particular instance. The
party seeking disclosure shall have the burden of showing that
public disclosure would not constitute an unreasonable invasion
of privacy.
(3)(a) Public body employee or volunteer addresses, dates of
birth and telephone numbers contained in personnel records
maintained by the public body that is the employer or the
recipient of volunteer services. This exemption does not apply:
(A) To such employees or volunteers if they are elected
officials, except that a judge or district attorney subject to
election may seek to exempt the judge's or district attorney's
address or telephone number, or both, under the terms of ORS
192.445;
(B) To such employees or volunteers to the extent that the
party seeking disclosure shows by clear and convincing evidence
that the public interest requires disclosure in a particular
instance; or
(C) To a substitute teacher as defined in ORS 342.815 when
requested by a professional education association of which the
substitute teacher may be a member.
(b) Nothing in this subsection exempting employee records from
disclosure relieves a public employer of any duty under ORS
243.650 to 243.782.
(4) Information submitted to a public body in confidence and
not otherwise required by law to be submitted, where such
information should reasonably be considered confidential, the
public body has obliged itself in good faith not to disclose the
information, and when the public interest would suffer by the
disclosure.
(5) Information or records of the Department of Corrections,
including the State Board of Parole and Post-Prison Supervision,
to the extent that disclosure thereof would interfere with the
rehabilitation of a person in custody of the department or
substantially prejudice or prevent the carrying out of the
functions of the department, if the public interest in
confidentiality clearly outweighs the public interest in
disclosure.
(6) Records, reports and other information received or compiled
by the Director of the Department of Consumer and Business
Services in the administration of ORS chapters 723 and 725 not
otherwise required by law to be made public, to the extent that
the interests of lending institutions, their officers, employees
and customers in preserving the confidentiality of such
information outweighs the public interest in disclosure.
(7) Reports made to or filed with the court under ORS 137.077
or 137.530.
(8) Any public records or information the disclosure of which
is prohibited by federal law or regulations.
(9) Public records or information the disclosure of which is
prohibited or restricted or otherwise made confidential or
privileged under Oregon law.
(10) Public records or information described in this section,
furnished by the public body originally compiling, preparing or
receiving them to any other public officer or public body in
connection with performance of the duties of the recipient, if
the considerations originally giving rise to the confidential or
exempt nature of the public records or information remain
applicable.
(11) Records of the Energy Facility Siting Council concerning
the review or approval of security programs pursuant to ORS
469.530.
(12) Employee and retiree address, telephone number and other
nonfinancial membership records and employee financial records
maintained by the Public Employees Retirement System pursuant to
ORS chapter 238 and ORS 238.410.
(13) Records submitted by private persons or businesses to the
State Treasurer or the Oregon Investment Council relating to
proposed acquisition, exchange or liquidation of public
investments under ORS chapter 293 may be treated as exempt from
disclosure when and only to the extent that disclosure of such
records reasonably may be expected to substantially limit the
ability of the Oregon Investment Council to effectively compete
or negotiate for, solicit or conclude such transactions. Records
which relate to concluded transactions are not subject to this
exemption.
(14) The monthly reports prepared and submitted under ORS
293.761 and 293.766 concerning the Public Employees Retirement
Fund and the Industrial Accident Fund may be uniformly treated as
exempt from disclosure for a period of up to 90 days after the
end of the calendar quarter.
(15) Reports of unclaimed property filed by the holders of such
property to the extent permitted by ORS 98.352.
(16) The following records, communications and information
submitted to the Oregon Economic and Community Development
Commission, the Economic and Community Development Department,
the State Department of Agriculture, the Oregon Resource and
Technology Development Account or the Oregon Resource and
Technology Development Account Board, the Port of Portland or
other ports, as defined in ORS 777.005, by applicants for
investment funds, loans or services including, but not limited
to, those described in ORS 285A.224:
(a) Personal financial statements.
(b) Financial statements of applicants.
(c) Customer lists.
(d) Information of an applicant pertaining to litigation to
which the applicant is a party if the complaint has been filed,
or if the complaint has not been filed, if the applicant shows
that such litigation is reasonably likely to occur; this
exemption does not apply to litigation which has been concluded,
and nothing in this paragraph shall limit any right or
opportunity granted by discovery or deposition statutes to a
party to litigation or potential litigation.
(e) Production, sales and cost data.
(f) Marketing strategy information that relates to applicant's
plan to address specific markets and applicant's strategy
regarding specific competitors.
(17) Records, reports or returns submitted by private concerns
or enterprises required by law to be submitted to or inspected by
a governmental body to allow it to determine the amount of any
transient lodging tax payable and the amounts of such tax payable
or paid, to the extent that such information is in a form which
would permit identification of the individual concern or
enterprise. Nothing in this subsection shall limit the use which
can be made of such information for regulatory purposes or its
admissibility in any enforcement proceedings. The public body
shall notify the taxpayer of the delinquency immediately by
certified mail. However, in the event that the payment or
delivery of transient lodging taxes otherwise due to a public
body is delinquent by over 60 days, the public body shall
disclose, upon the request of any person, the following
information:
(a) The identity of the individual concern or enterprise that
is delinquent over 60 days in the payment or delivery of the
taxes.
(b) The period for which the taxes are delinquent.
(c) The actual, or estimated, amount of the delinquency.
(18) All information supplied by a person under ORS 151.430 to
151.491 for the purpose of requesting court-appointed counsel,
and all information supplied to the State Court Administrator
from whatever source for the purpose of verifying indigency of a
person pursuant to ORS 151.430 to 151.491.
(19) Workers' compensation claim records of the Department of
Consumer and Business Services, except in accordance with rules
adopted by the Director of the Department of Consumer and
Business Services, in any of the following circumstances:
(a) When necessary for insurers, self-insured employers and
third party claim administrators to process workers' compensation
claims.
(b) When necessary for the director, other governmental
agencies of this state or the United States to carry out their
duties, functions or powers.
(c) When the disclosure is made in such a manner that the
disclosed information cannot be used to identify any worker who
is the subject of a claim.
(d) When a worker or the worker's representative requests
review of the worker's claim record.
(20) Sensitive business records or financial or commercial
information of the Oregon Health Sciences University that is not
customarily provided to business competitors.
(21) Records of Oregon Health Sciences University regarding
candidates for the position of president of the university.
(22) The records of a library, including circulation records,
showing use of specific library material by a named person or
consisting of the name of a library patron together with the
address or telephone number, or both, of the patron.
(23) The following records, communications and information
submitted to the Housing and Community Services Department by
applicants for and recipients of loans, grants and tax credits:
(a) Personal and corporate financial statements and
information, including tax returns.
(b) Credit reports.
(c) Project appraisals.
(d) Market studies and analyses.
(e) Articles of incorporation, partnership agreements and
operating agreements.
(f) Commitment letters.
(g) Project pro forma statements.
(h) Project cost certifications and cost data.
(i) Audits.
(j) Project tenant correspondence requested to be confidential.
(k) Tenant files relating to certification.
(L) Housing assistance payment requests.
(24) Raster geographic information system (GIS) digital
databases, provided by private forestland owners or their
representatives, voluntarily and in confidence to the State
Forestry Department, that is not otherwise required by law to be
submitted.
(25) Sensitive business, commercial or financial information
furnished to or developed by a public body engaged in the
business of providing electricity or electricity services, if the
information is directly related to a transaction described in ORS
261.348, or if the information is directly related to a bid,
proposal or negotiations for the sale or purchase of electricity
or electricity services, and disclosure of the information would
cause a competitive disadvantage for the public body or its
retail electricity customers. This subsection does not apply to
cost-of-service studies used in the development or review of
generally applicable rate schedules.
(26) Sensitive business, commercial or financial information
furnished to or developed by the City of Klamath Falls, acting
solely in connection with the ownership and operation of the
Klamath Cogeneration Project, if the information is directly
related to a transaction described in ORS 225.085 and disclosure
of the information would cause a competitive disadvantage for the
Klamath Cogeneration Project. This subsection does not apply to
cost-of-service studies used in the development or review of
generally applicable rate schedules.
(27) Personally identifiable information about customers of a
municipal electric utility or a people's utility district. The
utility or district may, however, release such information to a
third party if the customer consents in writing or
electronically, if the disclosure is necessary to render utility
or district services to the customer, or if the disclosure is
required pursuant to a court order. The utility or district may
charge as appropriate for the costs of providing such
information. The utility or district may make customer records
available to third party credit agencies on a regular basis in
connection with the establishment and management of customer
accounts or in the event such accounts are delinquent.
(28) A record of the street and number of an employee's address
submitted to a special district to obtain assistance in promoting
an alternative to single occupant motor vehicle transportation.
(29) Sensitive business records, capital development plans or
financial or commercial information of Oregon Corrections
Enterprises that is not customarily provided to business
competitors.
{ + (30) Documents, materials or other information submitted
to the Director of the Department of Consumer and Business
Services in confidence by a state, federal, foreign or
international regulatory or law enforcement agency or by the
National Association of Insurance Commissioners, its affiliates
or subsidiaries under ORS 646.380 to 646.396, 697.005 to 697.095,
697.602 to 697.842, 717.200 to 717.320, 717.900 or 717.905, ORS
chapter 59, 722, 723, 725 or 726, the Bank Act or the Insurance
Code or section 2 of this 2001 Act when:
(a) The document, material or other information is received
upon notice or with an understanding that it is confidential or
privileged under the laws of the jurisdiction that is the source
of the document, material or other information; and
(b) The director has obligated the Department of Consumer and
Business Services not to disclose the document, material or other
information. + }
SECTION 19. ORS 748.603 is amended to read:
748.603. (1) Societies shall be governed by this chapter and
shall be exempt from all other provisions of the insurance laws
of this state unless expressly designated therein, or unless
specifically made applicable by this chapter.
(2) ORS 731.004 to 731.026, 731.032 to 731.136, 731.146 to
731.156, 731.162, 731.166, 731.170, 731.216 to 731.268, 731.296,
731.324, 731.328, 731.354, 731.356, 731.358, 731.378, 731.380,
731.381, 731.382, 731.385, 731.386, 731.390, 731.394, 731.396,
731.398, 731.402, 731.406, 731.410, 731.422 to 731.434, 731.446
to 731.454, 731.488, 731.504, 731.508, 731.509, 731.510, 731.511,
731.512, 731.592, 731.594, 731.730, 731.731, 731.735, 731.737,
{ - 731.740, - } 731.750, 731.804, 731.844 to 731.992,
732.245, 732.250, 732.320, 732.325, 733.010 to 733.050, 733.080,
733.140 to 733.210, 733.220, 733.510, 733.652 to 733.658, 733.730
to 733.750, 735.600 to 735.650, 742.001, 742.003, 742.005,
742.007, 742.009, 742.013 to 742.021, 742.028, 742.038, 742.041,
742.046, 742.051, 742.150 to 742.162 and 744.700 to 744.740 and
ORS chapters 734 and 743 { + and sections 2 and 3 of this 2001
Act + } shall apply to fraternal benefit societies to the extent
so applicable and not inconsistent with the express provisions of
this chapter.
(3) For the purposes of this subsection and subsection (2) of
this section, fraternal benefit societies shall be deemed
insurers, and benefit certificates issued by fraternal benefit
societies shall be deemed policies.
(4) Every society authorized to do business in this state shall
be subject to the provisions of ORS chapter 746 relating to
unfair trade practices. However, nothing in ORS chapter 746 shall
be construed as applying to or affecting the right of any society
to determine its eligibility requirements for membership, or be
construed as applying to or affecting the offering of benefits
exclusively to members or persons eligible for membership in the
society by a subsidiary corporation or affiliated organization of
the society.
SECTION 20. ORS 750.055 is amended to read:
750.055. (1) The following provisions of the Insurance Code
shall apply to health care service contractors to the extent so
applicable and not inconsistent with the express provisions of
ORS 750.005 to 750.095:
(a) ORS 731.004 to 731.150, 731.162, 731.216 to 731.362,
731.382, 731.385, 731.386, 731.390, 731.398 to 731.430, 731.450,
731.454, 731.488, 731.504, 731.508, 731.509, 731.510, 731.511,
731.512, 731.574 to 731.620, 731.592, 731.594, 731.640 to
731.652, 731.730, 731.731, 731.735, 731.737, { - 731.740, - }
731.750, { + 731.752, + } 731.804 and 731.844 to 731.992 { +
and sections 2 and 3 of this 2001 Act + }.
(b) ORS 732.215, 732.220, 732.230, 732.245, 732.250, 732.320,
732.325 and 732.517 to 732.592, not including ORS 732.549 and
732.574 to 732.592.
(c)(A) ORS 733.010 to 733.050, 733.080, 733.140 to 733.170,
733.210, 733.510 to 733.620, 733.635 to 733.680 and 733.695 to
733.780 apply to not-for-profit health care service contractors.
(B) ORS chapter 733, not including ORS 733.630, applies to
for-profit health care service contractors.
(d) ORS chapter 734.
(e) ORS 742.001 to 742.009, 742.013, 742.061, 742.065, 742.150
to 742.162, 742.400, 742.520 to 742.540, 743.010, 743.013,
743.018 to 743.030, 743.050, 743.100 to 743.109, 743.402,
743.412, 743.472, 743.492, 743.495, 743.498, 743.522, 743.523,
743.524, 743.526, 743.527, 743.528, 743.529, 743.549 to 743.555,
743.556, 743.560, 743.600 to 743.610, 743.650 to 743.656,
743.693, 743.697, 743.699, 743.701, 743.704, 743.706 to 743.712,
743.721, 743.722, 743.726, 743.727, 743.728, 743.729, 743.804,
743.807, 743.808, 743.809, 743.814 to 743.839, 743.842, 743.845
and 743.847.
(f) The provisions of ORS chapter 744 relating to the
regulation of agents.
(g) ORS 746.005 to 746.140, 746.160, 746.180, 746.220 to
746.370 and 746.600 to 746.690.
(h) ORS 743.714, except in the case of group practice health
maintenance organizations that are federally qualified pursuant
to Title XIII of the Public Health Service Act unless the patient
is referred by a physician associated with a group practice
health maintenance organization.
(i) ORS 735.600 to 735.650.
(j) ORS 743.680 to 743.689.
(k) ORS 744.700 to 744.740.
(L) ORS 743.730 to 743.773.
(m) ORS 731.485, except in the case of a group practice health
maintenance organization that is federally qualified pursuant to
Title XIII of the Public Health Service Act and that wholly owns
and operates an in-house drug outlet.
(2) For the purposes of this section only, health care service
contractors shall be deemed insurers.
(3) Any for-profit health care service contractor organized
under the laws of any other state which is not governed by the
insurance laws of such state, will be subject to all requirements
of ORS chapter 732.
(4) The Director of the Department of Consumer and Business
Services may, after notice and hearing, adopt reasonable rules
not inconsistent with this section and ORS 750.003, 750.005,
750.025 and 750.045 that are deemed necessary for the proper
administration of these provisions.
SECTION 21. ORS 706.720 is amended to read:
706.720. (1) The Director of the Department of Consumer and
Business Services shall receive and file in the Department of
Consumer and Business Services all reports required by the Bank
Act.
(2) Except as provided in subsection (3) of this section and
ORS 706.730, the records of the Department of Consumer and
Business Services pertaining to the administration of the Bank
Act are available for public inspection unless the director
determines in the particular instance that the public interest in
disclosure of the records is outweighed by the interests of an
Oregon operating institution or its directors, stockholders,
officers, employees and customers in keeping the records
confidential, or that the records are exempt from disclosure
under ORS 192.501 to 192.505. A determination by the director
under this subsection is subject to review under ORS 192.410 to
192.505.
(3) Except as provided in subsections (4) and (5) of this
section, the following records of the department are exempt from
disclosure or production { + and shall be treated as
confidential as provided in section 2 of this 2001 Act + }:
(a) Examination reports and work papers, directives, orders and
correspondence that relate to examination reports.
(b) Investigatory information concerning persons subject to
investigation by the director under ORS 707.070, 707.080,
707.110, 707.140, 707.145, 707.155 or 707.705 and financial
statements of such persons.
(c) Proprietary information.
(d) Reviews of financial statements submitted to the director.
(e) Reports filed under ORS 706.655.
(f) Stockholder lists.
(4) Notwithstanding subsection (3) of this section, the
director may disclose any record of the department specified in
this subsection pertaining to an Oregon operating institution
that has been liquidated under ORS 711.400 to 711.615 if the
director determines in the particular instance that the public
interest in disclosure of the record outweighs the interests of
the Oregon operating institution or its directors, stockholders,
officers, employees or customers in keeping the record
confidential. Under no circumstances, however, shall the director
disclose any such record or portion thereof that contains any
proprietary information or any information relating to the
individual financial activities or affairs of persons unless the
director concludes that those activities or affairs were a direct
and substantial contributing factor in the failure of the Oregon
operating institution. This subsection applies to the following
records of the department:
(a) Examination reports and work papers, directives, orders and
correspondence relating to examination reports;
(b) Investigatory information concerning persons subject to
investigation by the director under ORS 707.070, 707.080,
707.110, 707.140, 707.145, 707.155 or 707.705;
(c) Reviews of financial statements; and
(d) Reports filed under ORS 706.655.
(5) Notwithstanding ORS 40.270, an officer of the department
may be examined concerning records that are exempt from
disclosure under subsection (2) or (3) of this section and ORS
706.730 and the records are subject to production if the court
before which a civil or criminal action is pending finds that
such examination and production is essential for establishing a
claim or defense. In making a finding under this subsection, if
the court views the records, the court shall do so in camera.
(6) A civil penalty imposed by the director under the Bank Act
shall become subject to public inspection after the 20th day
after the director imposes the civil penalty.
(7) All records of the department pertaining to the condition
of Oregon operating institutions may be furnished to:
(a) The Federal Reserve Bank and its examiners.
(b) The Comptroller of the Currency of the United States and
national bank examiners.
(c) The Federal Deposit Insurance Corporation and its
examiners.
(d) The Federal Home Loan Bank of which the operating
institution is a member or to which the operating institution has
applied for membership.
(e) The State Treasurer if the Oregon operating institution is
a depository of public fund deposits.
(f) Any supervisory authority that regulates financial
institutions { + , financial holding companies + } or bank
holding companies.
(g) The respective Oregon operating institution, or the { +
financial holding company or + } bank holding company that
controls an Oregon operating institution.
(8) The director shall prescribe and furnish to interested
persons the forms for all reports required by the Bank Act.
(9) If the director is requested to disclose any record subject
to this section and the record contains both material that is
exempt from disclosure under this section or any other provision
of law and material that is not exempt from disclosure, the
director shall separate the exempt and nonexempt material and
shall disclose only the nonexempt material.
SECTION 22. ORS 706.723 is amended to read:
706.723. (1) Notwithstanding any other provision of law:
(a) Compliance review documents shall be confidential { + as
provided in section 2 of this 2001 Act + } and shall not be
discoverable or admissible as evidence in any civil action or
administrative proceeding.
(b) Compliance review documents delivered to a state, federal
or foreign governmental or regulatory agency remain confidential
{ + as provided in section 2 of this 2001 Act + } and shall not
be discoverable or admissible in any civil action or
administrative proceeding.
(c) A person serving on a compliance review committee or acting
at the request of a compliance review committee may not be
required to testify in any civil action as to:
(A) The contents or conclusions of a compliance review
document; or
(B) The actions taken by a compliance review committee.
(2) This section does not limit the discovery or admissibility
in any civil action or administrative proceeding of any documents
that are not compliance review documents.
(3) Upon motion by any party, a court shall determine a claim
of confidentiality under this section after an in camera review
of the materials or information claimed to be confidential. If
the court determines that part, but not all, of the materials or
information is confidential under this section, the court shall
ensure that only the materials or information that is not
confidential is disclosed.
(4) The provisions of this section do not affect the ability of
a person to claim any privilege that may be provided by law,
including but not limited to a claim of privilege under ORS
40.225.
(5) For the purposes of this section:
(a) 'Compliance review committee' means a person or persons
assigned by a board of directors of a financial institution, or
by the management of a financial institution, to test, review or
evaluate the conduct of the financial institution, the
transactions of the financial institution or the potential
transactions of the financial institution for the purpose of
monitoring, improving and enforcing compliance with:
(A) Safe, sound and fair lending practices;
(B) Financial reporting to state or federal regulatory
agencies;
(C) The financial institution's own policies and procedures; or
(D) Federal or state statutory or regulatory requirements
relating to financial institutions.
(b) 'Compliance review document' means any document prepared
for or created by a compliance review committee.
SECTION 23. ORS 706.730 is amended to read:
706.730. (1) { + The name of a person who is a depositor or
debtor of a bank and the amount of the person's deposit or debt
are confidential as provided in section 2 of this 2001 Act. + }
The Director of the Department of Consumer and Business Services
or any other person employed by the Department of Consumer and
Business Services shall not knowingly disclose the name of a
person who is a depositor or debtor of a bank, or the amount of
the person's deposit or debt, except that the director or the
employee may disclose such information as may be required under
ORS 706.720 (5) or as may be necessary in the performance of the
director's or employee's official duty including any duty under
ORS 295.018.
(2) Subsection (1) of this section does not prohibit disclosure
of the name of any debtor or the amount of the person's debt
included in reports that are filed under ORS 706.655, if the
reports were filed by a banking institution that has been
liquidated or is in the process of being liquidated under ORS
711.400 to 711.615 and if disclosure is otherwise allowed under
ORS 706.720.
SECTION 24. ORS 722.419 is amended to read:
722.419. (1) Except as provided in subsections (2) and (3) of
this section, the records of the Department of Consumer and
Business Services pertaining to the administration of this
chapter are available for public inspection unless the Director
of the Department of Consumer and Business Services determines in
the particular instance that the public interest in disclosure of
the records is outweighed by the interests of an association or
its directors, officers, employees, members and customers in
keeping the records confidential, or that the records are exempt
from disclosure under ORS 192.501 to 192.505. A determination by
the director under this subsection is subject to review under ORS
192.410 to 192.505.
(2) Except as provided in subsections (6) and (7) of this
section, the following records of the department pertaining to
the administration of this chapter are exempt from disclosure or
production { + and shall be treated as confidential as provided
in section 2 of this 2001 Act + }:
(a) Examination reports and work papers, directives, orders and
correspondence that relate to examination reports.
(b) Investigatory information concerning persons subject to
investigation by the director under ORS 722.024, 722.026,
722.036, 722.134, 722.459 or 722.506, and financial statements of
such persons.
(c) Proprietary information.
(d) Audits submitted to the director under ORS 722.434 (3).
(e) Reports submitted to the director under ORS 722.458.
(f) Stockholder lists.
{ + (g) The name of a depositor or debtor described in
subsection (3) of this section and the amount of the person's
deposit or debt. + }
(3) The director or any other person employed by the department
and acting under this chapter shall not knowingly disclose the
name of any person who is a depositor or debtor of an
association, or the amount of the person's deposit or debt,
except that the director or the employee may disclose such
information as may be necessary in the performance of the
director's or employee's official duty including any duty under
ORS 295.018.
(4) Statements of financial condition filed under ORS 722.434
(1) are not confidential.
(5) A civil penalty imposed by the director shall become
subject to public inspection after the 20th day after the
director imposes the civil penalty.
(6) Notwithstanding subsection (2) of this section, the
director may disclose any record of the section specified in this
subsection pertaining to an association that has been liquidated
if the director determines in the particular instance that the
public interest in disclosure of the record outweighs the
interests of the association or its directors, stockholders,
officers, employees or customers in keeping the record
confidential. Under no circumstances, however, shall the director
disclose any such record or portion thereof that contains any
proprietary information or any information relating to the
individual financial activities or affairs of persons unless the
director concludes that those activities or affairs were a direct
and substantial contributing factor in the failure of the
association. This subsection applies to the following records of
the section:
(a) Examination reports and work papers, directives, orders and
correspondence relating to examination reports;
(b) Investigatory information concerning persons subject to
investigation by the director under ORS 722.024, 722.026,
722.036, 722.134, 722.459 or 722.506;
(c) Audits submitted to the director under ORS 722.434 (3); and
(d) Reports filed under ORS 722.458.
(7) Notwithstanding ORS 40.270, an officer of the department
may be examined concerning records that are exempt from
disclosure under subsection (1), (2) or (3) of this section and
the records are subject to production if the court before which a
civil or criminal action is pending finds that such examination
and production is essential for establishing a claim or defense.
In making a finding under this subsection, if the court views the
records, the court shall do so in camera.
(8) { + In addition to the authority granted the director in
section 2 of this 2001 Act, + } all records of the department
pertaining to the condition of associations may be furnished to:
(a) Representatives of savings and loan departments of other
states.
(b) Representatives of the Federal Housing Finance Board,
Washington, D.C., a Federal Home Loan Bank or other federal or
state financial agency organized under the laws of the United
States or of this state and authorized to loan to or otherwise
act as a reserve or insuring agency for savings associations.
(c) The State Treasurer if the association is a depository of
public fund deposits.
(9) If the director is requested to disclose any record subject
to this section and the record contains both material that is
exempt from disclosure under this section or any other provision
of law and material that is not exempt from disclosure, the
director shall separate the exempt and nonexempt material and
shall disclose only the nonexempt material.
SECTION 25. ORS 746.600 is amended to read:
746.600. As used in ORS 746.600 to 746.690 and 750.055:
(1) 'Adverse underwriting decision' means, except as provided
in subsection (2) of this section, any of the following actions
with respect to insurance transactions involving insurance
coverage which is individually underwritten:
(a) A declination of insurance coverage.
(b) A termination of insurance coverage.
(c) Failure of an agent to apply for insurance coverage with a
specific insurer which the agent represents and which is
requested by an applicant.
(d) In the case of life or health insurance coverage, an offer
to insure at higher than standard rates.
(e) In the case of other kinds of insurance coverage:
(A) Placement by an insurer or agent of a risk with a residual
market mechanism, an unauthorized insurer or an insurer which
specializes in substandard risks.
(B) The charging of a higher rate on the basis of information
which differs from that which the applicant or policyholder
furnished.
(2) 'Adverse underwriting decision' does not include the
following actions, but the insurer or agent responsible for the
occurrence of the action shall nevertheless provide the applicant
or policyholder with the specific reason or reasons for the
occurrence:
(a) The termination of an individual policy form on a class or
statewide basis.
(b) A declination of insurance coverage solely because the
coverage is not available on a class or statewide basis.
(c) The rescission of a policy.
(3) 'Affiliate of' a specified person or 'person affiliated
with' a specified person means a person who directly, or
indirectly, through one or more intermediaries, controls, or is
controlled by, or is under common control with, the person
specified.
(4) 'Agent' means a person licensed by the Director of the
Department of Consumer and Business Services as an insurance
agent, or a person to whom the director has issued a nonresident
broker's permit.
(5) 'Applicant' means a person who seeks to contract for
insurance coverage, other than a person seeking group insurance
coverage which is not individually underwritten.
(6) 'Consumer report' means any written, oral or other
communication of information bearing on a natural person's
creditworthiness, credit standing, credit capacity, character,
general reputation, personal characteristics or mode of living
which is used or expected to be used in connection with an
insurance transaction.
(7) 'Consumer reporting agency' means a person who:
(a) Regularly engages, in whole or in part, in assembling or
preparing consumer reports for a monetary fee;
(b) Obtains information primarily from sources other than
insurers; and
(c) Furnishes consumer reports to other persons.
(8) 'Control' means, and the terms 'controlled by' or ' under
common control with' refer to, the possession, directly or
indirectly, of the power to direct or cause the direction of the
management and policies of a person, whether through the
ownership of voting securities, by contract other than a
commercial contract for goods or nonmanagement services, or
otherwise, unless the power of the person is the result of a
corporate office held in, or an official position held with, the
controlled person.
(9) 'Declination of insurance coverage' means a denial, in
whole or in part, by an insurer or agent of requested insurance
coverage.
(10) 'Individual' { - means a natural person who - } :
{ + (a) Means, for purposes of ORS 746.600 to 746.690 and
750.055, except as provided in paragraph (b) of this subsection,
a natural person who: + }
{ - (a) - } { + (A) + } In the case of life or health
insurance, is a past, present or proposed principal insured or
certificate holder;
{ - (b) - } { + (B) + } In the case of other kinds of
insurance, is a past, present or proposed named insured or
certificate holder;
{ - (c) - } { + (C) + } Is a past, present or proposed
policyowner;
{ - (d) - } { + (D) + } Is a past or present applicant;
{ - (e) - } { + (E) + } Is a past or present claimant; or
{ - (f) - } { + (F) + } Derived, derives or is proposed to
derive insurance coverage under an insurance policy or
certificate which is subject to ORS 746.600 to 746.690 and
750.055.
{ + (b) Comprises, for purposes of ORS 746.620, 746.630 and
746.665, and for purposes of terms defined in this section as
those terms are used in ORS 746.620, 746.630 and 746.665, the
following categories of natural persons:
(A) 'Consumer,' which means an individual, or the individual's
representative, who seeks to obtain, obtains or has obtained an
insurance product or service from a licensee that is to be used
primarily for personal, family or household purposes, and about
whom the licensee has personal information.
(B) 'Customer,' which means a consumer who has a continuing
relationship with a licensee under which the licensee provides
one or more insurance products or services to the consumer that
are to be used primarily for personal, family or household
purposes. + }
(11) 'Institutional source' means a person or governmental
entity which provides information about an individual to an
insurer, agent or insurance-support organization, other than:
(a) An agent;
(b) The individual who is the subject of the information; or
(c) A natural person acting in a personal capacity rather than
in a business or professional capacity.
(12) 'Insurance-support organization' means, except as provided
in subsection (13) of this section, a person who regularly
engages, in whole or in part, in assembling or collecting
information about natural persons for the primary purpose of
providing the information to an insurer or agent for insurance
transactions, including:
(a) The furnishing of consumer reports to an insurer or agent
for use in connection with insurance transactions; and
(b) The collection of personal information from insurers,
agents or other insurance-support organizations for the purpose
of detecting or preventing fraud, material misrepresentation or
material nondisclosure in connection with insurance underwriting
or insurance claim activity.
(13) 'Insurance-support organization' does not include
insurers, agents, governmental institutions, medical care
institutions or medical professionals.
(14) 'Insurance transaction' means any transaction involving
insurance primarily for personal, family or household needs
rather than business or professional needs and which entails:
(a) The determination of an individual's eligibility for an
insurance coverage, benefit or payment; or
(b) The servicing of an insurance application, policy or
certificate.
(15) 'Insurer,' as defined in ORS 731.106, includes every
person engaged in the business of entering into policies of
insurance.
(16) 'Investigative consumer report' means a consumer report,
or portion of a consumer report, for which information about a
natural person's character, general reputation, personal
characteristics or mode of living is obtained through personal
interviews with the person's neighbors, friends, associates,
acquaintances or others who may have knowledge concerning such
items of information.
{ + (17) 'Licensee' means an insurer, agent or other person
authorized or required to be authorized, or licensed or required
to be licensed, pursuant to the Insurance Code. + }
{ - (17) - } { + (18) + } 'Medical care institution' means
a facility or institution which is licensed to provide health
care services to natural persons, and includes but is not limited
to health maintenance organizations, home health agencies,
hospitals, medical clinics, public health agencies,
rehabilitation agencies and skilled nursing facilities.
{ - (18) - } { + (19) + } 'Medical professional' means a
person licensed or certified to provide health care services to
natural persons, and includes but is not limited to
chiropractors, clinical dieticians, clinical psychologists,
dentists, naturopaths, nurses, occupational therapists,
optometrists, pharmacists, physical therapists, physicians,
podiatrists, psychiatric social workers and speech therapists.
{ - (19) - } { + (20) + } 'Medical record information'
means personal information { - which - } { + except age or
gender, whether oral or recorded in any form or medium, created
by or derived from a health care provider or the consumer that
relates to + }:
{ - (a) Relates to an individual's physical or mental
condition, medical history or medical treatment; and - }
{ - (b) Is obtained from a medical professional, a medical
care institution, the individual, or the individual's spouse,
parent or legal guardian. - }
{ + (a) The past, present or future physical, mental or
behavioral health or condition of an individual;
(b) The provision of health care to an individual; or
(c) Payment for the provision of health care to an individual.
(21) 'Nonaffiliated third party' means any person except:
(a) An affiliate of a licensee;
(b) A person that is employed jointly by a licensee and by a
person that is not an affiliate of the licensee; and
(c) As designated by the director by rule. + }
{ - (20) - } { + (22) + } 'Personal information' means
information which is identifiable with an individual, which is
gathered in connection with an insurance transaction and from
which information judgments can be made about the individual's
character, habits, avocations, finances, occupations, general
reputation, credit, health or any other personal characteristics.
' Personal information' includes an individual's name and
address { + , an individual's policy number or similar form of
access code for the individual's policy + } and 'medical record
information' but does not include 'privileged information '
except for privileged information which has been disclosed in
violation of ORS 746.665. { + ' Personal information' does not
include information that a licensee has a reasonable basis to
believe is lawfully made available to the general public from
federal, state or local government records, widely distributed
media or disclosures to the public that are required by federal,
state or local law. + }
{ - (21) - } { + (23) + } 'Policyholder' means a person
who:
(a) In the case of individual policies of life or health
insurance, is a current policyowner;
(b) In the case of individual policies of other kinds of
insurance, is currently a named insured; or
(c) In the case of group policies of insurance under which
coverage is individually underwritten, is a current certificate
holder.
{ - (22) - } { + (24) + } 'Pretext interview' means an
interview wherein the interviewer, in an attempt to obtain
information about a natural person, does one or more of the
following:
(a) Pretends to be someone the interviewer is not.
(b) Pretends to represent a person the interviewer is not in
fact representing.
(c) Misrepresents the true purpose of the interview.
(d) Refuses upon request to identify the interviewer.
{ - (23) - } { + (25) + } 'Privileged information' means
information which is identifiable with an individual and which:
(a) Relates to a claim for insurance benefits or a civil or
criminal proceeding involving the individual; and
(b) Is collected in connection with or in reasonable
anticipation of a claim for insurance benefits or a civil or
criminal proceeding involving the individual.
{ - (24) - } { + (26) + } 'Residual market mechanism' means
an association, organization or other entity involved in the
insuring of risks under ORS 735.005 to 735.145, 737.312 or other
provisions of the Insurance Code relating to insurance applicants
who are unable to procure insurance through normal insurance
markets.
{ - (25) - } { + (27) + } 'Termination of insurance
coverage' or ' termination of an insurance policy' means either a
cancellation or a nonrenewal of an insurance policy, in whole or
in part, for any reason other than the failure of a premium to be
paid as required by the policy.
SECTION 26. ORS 746.620 is amended to read:
746.620. (1) { - An insurer or agent - } { + A licensee + }
shall provide a { + clear and conspicuous + } notice of
information practices to { - all applicants or
policyholders - } { + individuals + } in connection with
insurance transactions under the circumstances and at the times
as follows:
{ - (a) In the case of an application for insurance, a notice
shall be provided no later than: - }
{ - (A) At the time of delivery of the insurance policy or
certificate, if personal information is collected only from the
applicant or from public records; or - }
{ - (B) At the time the collection of personal information is
initiated, if personal information is collected from a source
other than the applicant or public records. - }
{ - (b) In the case of a policy renewal, a notice shall be
provided no later than the policy renewal date, except that no
notice shall be required in connection with a policy renewal
if: - }
{ - (A) Personal information is collected only from the
policyholder or from public records; or - }
{ - (B) A notice meeting the requirements of this section has
been given within the previous 24 months. - }
{ - (c) In the case of a policy reinstatement or change in
insurance benefits, a notice shall be provided no later than the
time a request for the policy reinstatement or change in
insurance benefits is received by the insurer, except that no
notice shall be required if personal information is collected
only from the policyholder or from public records. - }
{ - (2) The notice required by subsection (1) of this section
shall be in writing and shall state: - }
{ - (a) Whether personal information may be collected from
persons other than the individual or individuals proposed for
coverage; - }
{ - (b) The types of personal information which may be
collected and the types of sources and investigative techniques
which may be used to collect the information; - }
{ - (c) The types of disclosures identified in ORS 746.665
(1)(b) to (f), (i), (k), (L) and (n) and the circumstances under
which these disclosures may be made without prior authorization.
However, only those circumstances need be described which occur
with such frequency as to indicate a general business
practice; - }
{ - (d) A description of the rights established under ORS
746.640 and 746.645 and the manner in which such rights may be
exercised; and - }
{ - (e) That information obtained from a report prepared by
an insurance-support organization may be retained by the
insurance-support organization and disclosed to other
persons. - }
{ + (a) Except as provided in this paragraph, to a consumer
who becomes a customer of the licensee, not later than the date
that the licensee establishes a continuing relationship under
which the licensee provides one or more insurance products or
services to the consumer that are to be used primarily for
personal, family or household purposes. A licensee may provide
the notice within a reasonable time after the date the licensee
establishes a customer relationship if:
(A) Establishing the customer relationship is not at the
customer's election; or
(B) Providing notice not later than the date that the licensee
establishes a customer relationship would substantially delay the
customer's transaction and the customer agrees to receive the
notice at a later time.
(b) To a consumer other than as described in paragraph (a) of
this subsection, before the licensee discloses any personal
information about the consumer pursuant to the requirements of
ORS 746.665, unless the disclosure meets one or more of the
conditions specified in ORS 746.665.
(2) A licensee shall provide a clear and conspicuous notice to
a customer that accurately reflects the privacy policies and
practices not less than annually during the continuation of the
relationship described in subsection (1)(a) of this section. For
the purpose of this subsection, a notice is given annually if it
is given at least once in any period of 12 consecutive months
during which the relationship exists. A licensee may define the
period of 12 consecutive months, but the licensee must apply the
period to the customer on a consistent basis.
(3) The privacy notice required by subsections (1) and (2) of
this section shall be in writing and clear and conspicuous. The
notice may be provided in electronic form if the recipient
agrees. In addition to any other information the licensee wishes
to provide, the notice shall include the following items of
information that apply to the licensee and to the individuals to
whom the licensee sends the notice:
(a) The categories of personal information that the licensee
collects.
(b) The categories of personal information that the licensee
discloses.
(c) The categories of affiliates and nonaffiliated third
parties to whom the licensee discloses personal information other
than persons to whom the licensee discloses information under ORS
746.665.
(d) The categories of personal information about former
customers of the licensee that the licensee discloses and the
categories of affiliates and nonaffiliated third parties to whom
the licensee discloses personal information about the licensee's
former customers, other than persons to whom the licensee
discloses information under ORS 746.665.
(e) If a licensee discloses personal information to a
nonaffiliated third party under ORS 746.665, a separate
description of the categories of information the licensee
discloses and the categories of nonaffiliated third parties with
whom the licensee has contracted.
(f) An explanation of the individual's right under ORS 746.630
to authorize disclosure of personal information, including the
methods by which the individual may exercise that right.
(g) Any disclosure that the licensee makes under section
603(d)(2)(A)(iii) of the federal Fair Credit Reporting Act (15
U.S.C. 1681a(d)(2)(A)(iii)) regarding the ability to opt out of
disclosures of information among affiliates.
(h) The policies and practices of the licensee with respect to
protecting the confidentiality and security of personal
information.
(i) Any disclosure that the licensee makes under subsection (4)
of this section.
(j) A description of the rights established under ORS 746.640
and 746.645 and the manner in which such rights may be exercised.
(4) If a licensee discloses personal information as authorized
under ORS 746.665, the licensee need not list those exceptions in
the privacy notices required by this section. When describing the
categories of parties to whom disclosure is made, the licensee
must state only that the licensee makes disclosures to other
affiliated parties or nonaffiliated third parties, as applicable,
as authorized by law. + }
{ - (3) - } { + (5) + } In lieu of the notice prescribed in
subsection
{ - (2) - } { + (3) + } of this section, the { - insurer or
agent - } { + licensee + } may provide { + to a consumer + }
an abbreviated notice { + , in writing or in electronic form if
the consumer agrees, + } informing the { - applicant or
policyholder - } { + consumer + } that:
(a) Personal information may be collected from persons other
than the { - individual or individuals - } { + consumer + }
proposed for coverage;
(b) Such information as well as other personal or privileged
information subsequently collected by the { - insurer or
agent - } { + licensee + } may in certain circumstances be
disclosed to third parties without authorization;
(c) A right of access and correction exists with respect to all
personal information collected; and
(d) The notice prescribed in subsection { - (2) - }
{ + (3) + } of this section will be furnished to the
{ - applicant or policyholder - } { + consumer + } upon
request.
{ + (6) The Director of the Department of Consumer and
Business Services by rule may apply the categories of consumer
and customer as described in ORS 746.600 for the purpose of
establishing specific requirements for notice of information
practices, authorization for disclosure of personal information,
conditions for disclosure of personal information under this
section and ORS 746.630 and 746.665, and exceptions. The director
shall consider applicable definitions and terms used in the
federal Gramm-Leach-Bliley Act (P.L. 106-102), applicable
definitions and requirements used in the model 'Privacy of
Consumer Financial and Health Information Regulation' adopted by
the National Association of Insurance Commissioners and other
sources as may be needed so that the terms defined in ORS 746.600
and applicable to this section and ORS 746.630 and 746.665:
(a) Facilitate compliance with requirements in federal law and
the laws of other states that establish protections of nonpublic
personal information; and
(b) Establish separate and discrete requirements relating to
the privacy notice and its contents and delivery for customers
and consumers, so that the requirements provide reasonable notice
and facilitate compliance with requirements in federal law and in
the laws of other states.
(7) The director shall determine by rule:
(a) When a privacy notice must be provided to a certificate
holder or beneficiary of a group policy and to a third-party
claimant.
(b) When the obligation to provide annual notice ceases.
(c) Requirements for revision of the notice by a licensee.
(8) An agent is not subject to the requirements of this section
when the insurer on whose behalf the agent acts otherwise
complies with the requirements of this section and the agent does
not disclose any personal information to any person other than
the insurer or its affiliate, or as otherwise authorized by law.
(9) A licensee may provide a joint notice from the licensee and
one or more of its affiliates or other financial institutions, as
identified in the notice, as long as the notice is accurate with
respect to the licensee and the other institutions. A licensee
may also provide a notice on behalf of a financial
institution. + }
{ - (4) - } { + (10) + } The obligations imposed by this
section upon { - an insurer or agent - } { + a licensee + }
may be satisfied by another { - insurer or agent - }
{ + licensee + } authorized to act on behalf of the first
{ - insurer or agent - } { + licensee + }.
{ + (11) For purposes of this section and ORS 746.630 and
746.665, an individual is not the consumer of a licensee solely
because the individual is covered under a group life or health
insurance policy issued by the licensee or is a participant or
beneficiary of an employee benefit plan that the licensee
administers or sponsors or for which the licensee acts as a
trustee, insurer or fiduciary, if:
(a) The licensee provides to the policyholder the initial,
annual and revised notices under this section; and
(b) The licensee does not disclose to a nonaffiliated third
party personal information about the individual other than as
permitted by ORS 746.665.
(12) When an individual becomes a consumer of a licensee under
subsection (11) of this section, this section and ORS 746.630 and
746.665 apply to the licensee with respect to the individual. + }
SECTION 27. ORS 746.630 is amended to read:
746.630. (1) Notwithstanding any other law of this state,
{ - no insurer, agent - } { + a licensee + } or
insurance-support organization may { + not + } utilize as its
disclosure authorization form in connection with insurance
transactions a form or statement which authorizes the disclosure
of personal or privileged information about an individual to the
{ - insurer, agent - } { + licensee + } or insurance-support
organization unless the form or statement { + is clear and
conspicuous, and contains all of the following + }:
{ - (a) Is written in plain language; - }
{ - (b) Is dated; - }
{ - (c) Specifies the types of persons authorized to disclose
information about the individual; - }
{ - (d) Specifies the nature of the information authorized to
be disclosed; - }
{ - (e) Names the insurer or agent and identifies by generic
reference the representatives of the insurer to whom the
individual is authorizing information to be disclosed; - }
{ - (f) Specifies the purposes for which the information is
collected; - }
{ - (g) Specifies the length of time such authorization will
remain valid, which shall be no longer than: - }
{ - (A) In the case of authorizations signed for the purpose
of collecting information in connection with an application for
an insurance policy, a policy reinstatement or a request for
change in policy benefits: - }
{ - (i) Thirty months from the date the authorization is
signed if the application or request involves life or health
insurance; or - }
{ - (ii) Twelve months from the date the authorization is
signed if the application or request involves other kinds of
insurance. - }
{ - (B) In the case of authorizations signed for the purpose
of collecting information in connection with a claim for benefits
under an insurance policy: - }
{ - (i) The term of coverage of the policy and the duration
of any claim extending after the term of coverage if the claim is
for a health insurance benefit; or - }
{ - (ii) The duration of the claim if the claim is not for a
health insurance benefit; and - }
{ - (h) Advises the individual or a person authorized to act
on behalf of the individual that the individual or the
individual's authorized representative is entitled to receive a
copy of the authorization form. - }
{ + (a) The identity of the individual who is the subject of
the personal information.
(b) A general description of the categories of personal
information to be disclosed.
(c) General descriptions of the parties to whom the licensee
discloses personal information, the purpose of the disclosure and
how the information will be used.
(d) The signature of the individual who is the subject of the
personal information or the individual who is legally empowered
to grant authority and the date signed.
(e) Notice of the length of time for which the authorization is
valid, that the individual may revoke the authorization at any
time and the procedure for making a revocation.
(2) An authorization may not remain valid for more than 24
months.
(3) An individual who is the subject of personal information
may revoke an authorization provided pursuant to this section at
any time, subject to the rights of any individual who acted in
reliance on the authorization prior to notice of the revocation.
(4) A licensee shall retain the authorization of an individual
or a copy thereof in the record of the individual who is the
subject of the personal information. + }
{ - (2) - } { + (5) + } A disclosure authorization obtained
by an insurer, agent or insurance-support organization from an
individual prior to January 1, 1983, shall be considered to be in
compliance with this section.
SECTION 27a. { + (1) The amendments to ORS 746.620 and 746.630
by sections 26 and 27 of this 2001 Act apply on and after July 1,
2003, to an insurer with respect to health insurance policies
issued by the insurer to which the federal Health Insurance
Portability and Accountability Act of 1996 (P.L. 104-191)
applies. The Director of the Department of Consumer and Business
Services may adopt rules that take effect on or after July 1,
2003, with respect to such policies. The rules may:
(a) Apply the requirements of federal regulations governing
privacy adopted under the authority of the federal Health
Insurance Portability and Accountability Act of 1996 if the
requirements of the federal regulations are more stringent than
the requirements of ORS 746.620 and 746.630 as amended by
sections 26 and 27 of this 2001 Act; or
(b) Apply the requirements of ORS 746.620 and 746.630 as
amended by sections 26 and 27 of this 2001 Act.
(2) Nothing in this section may be construed to exempt an
insurer transacting health insurance from other applicable
requirements in state or federal law concerning the use of
personal information in insurance transactions.
(3) The director shall determine under subsection (1) of this
section whether the requirements of the federal regulations are
more stringent than the requirements of ORS 746.620 and 746.630
as amended by sections 26 and 27 of this 2001 Act on the basis of
the federal regulations as a whole. If the director determines
that the federal regulations with respect to a particular matter
are less stringent than the requirements of ORS 746.620 and
746.630 as amended by sections 26 and 27 of this 2001 Act, the
director may require compliance with the state law on that
matter. + }
SECTION 28. ORS 746.665 is amended to read:
746.665. (1) { - An insurer, agent - } { + A licensee + }
or insurance-support organization shall not disclose any personal
or privileged information about an individual collected or
received in connection with an insurance transaction unless the
disclosure meets one or more of the following conditions:
(a) Is with the written authorization of the individual, and:
(A) If the authorization is submitted by another { - insurer,
agent - } { + licensee + } or insurance-support organization,
the authorization meets the requirements of ORS 746.630; or
(B) If the authorization is submitted by a person other than
{ - an insurer, agent - } { + a licensee + } or
insurance-support organization, the authorization is:
(i) Dated;
(ii) Signed by the individual; and
(iii) Obtained one year or less prior to the date a disclosure
is sought pursuant to this subsection.
(b) Is to a person other than { - an insurer, agent - }
{ + a licensee + } or insurance-support organization, if the
disclosure is reasonably necessary to enable the person to:
(A) Perform a business, professional or insurance function for
the disclosing { - insurer, agent - } { + licensee + } or
insurance-support organization and the person agrees not to
disclose the information further without the individual's written
authorization unless the further disclosure:
(i) Would otherwise be permitted by this section if made by
{ - an insurer, agent, - } { + a licensee + } or
insurance-support organization; or
(ii) Is reasonably necessary for the person to perform its
function for the disclosing { - insurer, agent - }
{ + licensee + } or insurance-support organization; or
(B) Provide information to the disclosing { - insurer,
agent - } { + licensee + } or insurance-support organization for
the purpose of:
(i) Determining an individual's eligibility for an insurance
benefit or payment; or
(ii) Detecting or preventing criminal activity, fraud, material
misrepresentation or material nondisclosure in connection with an
insurance transaction.
(c) Is to { - an insurer, agent - } { + a licensee + },
insurance-support organization or self-insurer, if the
information disclosed is limited to that which is reasonably
necessary:
(A) To detect or prevent criminal activity, fraud, material
misrepresentation or material nondisclosure in connection with
insurance transactions; or
(B) For either the disclosing or receiving { - insurer,
agent - } { + licensee + } or insurance-support organization to
perform its function in connection with an insurance transaction
involving the individual.
(d) Is to a medical care institution or medical professional
and discloses only such information as is reasonably necessary to
accomplish one or more of the following purposes:
(A) Verifying insurance coverage or benefits.
(B) Informing an individual of a medical problem of which the
individual may not be aware.
(C) Conducting an operations or services audit.
(e) Is to an insurance regulatory authority.
(f) Is to a law enforcement or other governmental authority:
(A) To protect the interests of the { - insurer, agent - }
{ + licensee + } or insurance-support organization in preventing
or prosecuting the perpetration of fraud upon it; or
(B) If the { - insurer, agent - } { + licensee + } or
insurance-support organization reasonably believes that illegal
activities have been conducted by the individual.
(g) Is otherwise permitted or required by law.
(h) Is in response to a facially valid administrative or
judicial order, including a search warrant or subpoena.
(i) Is made for the purpose of conducting actuarial or research
studies, if:
(A) No individual may be identified in any resulting actuarial
or research report;
(B) Materials allowing the individual to be identified are
returned or destroyed as soon as they are no longer needed; and
(C) The actuarial or research organization agrees not to
disclose the information unless the disclosure would otherwise be
permitted by this section if made by { - an insurer, agent - }
{ + a licensee + } or insurance-support organization.
(j) Is to a party or a representative of a party to a proposed
or consummated sale, transfer, merger or consolidation of all or
part of the business of the { - insurer, agent - }
{ + licensee + } or insurance-support organization, if:
(A) Prior to the consummation of the sale, transfer, merger or
consolidation only such information is disclosed as is reasonably
necessary to enable the recipient to make business decisions
about the purchase, transfer, merger or consolidation; and
(B) The recipient agrees not to disclose the information unless
the disclosure would otherwise be permitted by this section if
made by { - an insurer, agent - } { + a licensee + } or
insurance-support organization.
(k) Is to a { - person - } { + nonaffiliated third
party + } whose only use of the information will be in connection
with the marketing of a product or service, if { + all of the
following conditions are met + }:
(A) No medical record information, privileged information or
personal information relating to an individual's character,
personal habits, mode of living or general reputation is
disclosed, and no classification derived from such information
{ - is disclosed; - } { + may be disclosed. + }
(B) The individual { - has - } { + must have + } been given
{ + the notice described in ORS 746.620 and + } an opportunity
to indicate that the individual does not want personal
information disclosed for marketing purposes and { - has - }
{ + must have + } given no indication that the individual does
not want the information disclosed { - ; and - } { + . The
individual need not have been given the opportunity described in
this subparagraph if the disclosure is made pursuant to a joint
marketing agreement. As used in this subparagraph, 'joint
marketing agreement' means a formal written contract pursuant to
which an insurer jointly offers, endorses or sponsors a financial
product or service with a financial institution. When the
opportunity is required, the statement that offers the
opportunity must state that the insurer may disclose personal
information to nonaffiliates and that the individual has a right
to indicate that the individual does not want personal
information disclosed for marketing purposes, and must describe
the method for exercising that right. The statement must be in
writing but may be in an electronic form if the individual
agrees. The individual who is given the opportunity must be
provided a reasonable time to exercise the opportunity. An
individual may exercise the opportunity at any time. A statement
by an individual barring disclosure of personal information
remains effective until the individual who made the statement
revokes the statement in writing or, if the individual agrees, in
electronic form. + }
(C) The person receiving the information { - agrees - }
{ + must agree + } not to use it except in connection with the
marketing of a product or service.
(L) Is to an affiliate whose only use of the information will
be in connection with an audit of the { - insurer or agent - }
{ + licensee + } or the marketing of { - an insurance - }
{ + a financial + } product or service, and the affiliate agrees
not to disclose the information for any other purpose or to
unaffiliated persons. { + This paragraph does not apply to the
disclosure of medical record information for the purpose of
marketing a financial product or service. + }
(m) Is by a consumer reporting agency, and the disclosure is to
a person other than { - an insurer or agent - } { + a
licensee + }.
(n) Is to a group policyholder for the purpose of reporting
claims experience or conducting an audit of the { - insurer's
or agent's - } { + licensee's + } operations or services, and
the information disclosed is reasonably necessary for the group
policyholder to conduct the review or audit.
(o) Is to a professional peer review organization for the
purpose of reviewing the service or conduct of a medical care
institution or medical professional.
(p) Is to a governmental authority for the purpose of
determining the individual's eligibility for health benefits for
which the governmental authority may be liable.
(q) Is to a policyholder or certificate holder for the purpose
of providing information regarding the status of an insurance
transaction.
(2) Personal or privileged information may be acquired by a
group practice prepayment health care service contractor from
providers which contract with the contractor and may be
transferred among providers which contract with the contractor
for the purpose of administering plans offered by the contractor.
The information may not be disclosed otherwise by the contractor
except in accordance with ORS 746.600 to 746.690 and 750.055.
SECTION 28a. ORS 746.680 is amended to read:
746.680. (1) If any insurer, agent or insurance-support
organization fails to comply with ORS 746.640, 746.645 or
746.650, any person whose rights granted under those sections are
violated may apply to the circuit court for the county in which
the person resides, or any other court of competent jurisdiction,
for appropriate equitable relief.
(2) { - An insurer, agent - } { + A licensee + } or
insurance-support organization { - which - } { + that + }
discloses information in violation of ORS 746.665 shall be liable
for damages sustained by the individual about whom the
information relates. However, no individual shall be entitled to
a monetary award { - which - } { + that + } exceeds the
actual damages sustained by the individual as a result of the
violation of ORS 746.665.
(3) In any action brought pursuant to this section, the court
may award the cost of the action and reasonable attorney fees to
the prevailing party.
(4) An action under this section must be brought within two
years from the date the alleged violation is or should have been
discovered.
(5) Except as specifically provided in this section, there
shall be no remedy or recovery available to individuals, in law
or in equity, for occurrences constituting a violation of any
provision of ORS 746.600 to 746.690 and 750.055.
SECTION 28b. { + Section 28c of this 2001 Act is added to and
made a part of ORS 746.600 to 746.690. + }
SECTION 28c. { + Nothing in ORS 746.620, 746.630 or 746.665
may be construed to modify, limit or supersede the operation of
the federal Fair Credit Reporting Act (15 U.S.C. 1681 et seq.)
and no inference may be drawn on the basis of ORS 746.620,
746.630 or 746.665 regarding whether information is transaction
information or experience information under section 603 of the
federal Fair Credit Reporting Act (15 U.S.C. 1681 et seq.). + }
SECTION 29. ORS 706.008 is amended to read:
706.008. As used in the Bank Act, unless the context requires
otherwise:
(1) 'Bank' means a company, other than an extranational
institution, that accepts deposits insured to any extent by the
Bank Insurance Fund under the provisions of the Federal Deposit
Insurance Act, as amended, 12 U.S.C. 1811, et seq.
(2) 'Bank holding company' means any company that is a bank
holding company under the federal Bank Holding Company Act of
1956, as amended, 12 U.S.C. 1841, et seq.
(3) 'Bank service corporation' means a corporation, all of the
capital stock of which is owned by one or more banking
institutions or national banks, that is organized to perform
services authorized by ORS 708A.145.
(4) 'Banking institution' means an Oregon commercial bank, an
Oregon trust company or an Oregon savings bank.
(5) 'Company' means an entity that is a company under the
federal Bank Holding Company Act of 1956, as amended, 12 U.S.C.
1841, et seq.
(6) 'Extranational institution' means a corporation,
unincorporated company, partnership or association of two or more
persons organized under the laws of a nation other than the
United States, any territory of the United States, Puerto Rico,
Guam, American Samoa or the Virgin Islands, that engages directly
in a banking business.
(7) 'Federal bank' means a national bank or any other bank
organized under the laws of the United States.
(8) 'Federal savings bank' means a corporation chartered as a
federal savings bank under the provisions of 12 U.S.C. 1464.
{ + (9) 'Financial holding company' means a company as
referred to in section 103 of the federal Gramm-Leach-Bliley Act
(P.L. 106-102). + }
{ - (9) - } { + (10) + } 'Financial institution' means
insured institutions, extranational institutions, credit unions
as defined in ORS 723.006, out-of-state credit unions under ORS
723.042 and federal credit unions.
{ - (10) - } { + (11) + } 'In-state federal stock bank'
means a federal bank that issues capital stock, the home state of
which is Oregon.
{ - (11) - } { + (12) + } 'Institution' means an Oregon
commercial bank or an Oregon trust company.
{ - (12) - } { + (13) + } 'Insured institution' means a
company, the deposits of which are insured under the provisions
of the Federal Deposit Insurance Act, as amended, 12 U.S.C. 1811,
et seq.
{ - (13) - } { + (14) + } 'Insured nonstock institution'
means an insured institution that does not issue capital stock.
{ - (14) - } { + (15) + } 'Insured stock institution' means
an insured institution that issues capital stock.
{ - (15) - } { + (16) + } 'National bank' means a bank that
was organized under the provisions of the National Bank Act, as
amended, 12 U.S.C. 21, et seq.
{ - (16) - } { + (17) + } 'Non-Oregon institution' means:
(a) An out-of-state state bank engaging in banking business in
Oregon;
(b) An out-of-state trust company transacting trust business in
Oregon; and
(c) An extranational institution engaging in banking business
in Oregon.
{ - (17) - } { + (18) + } 'Nonstock bank' means a bank that
does not issue capital stock.
{ - (18) - } { + (19) + } 'Oregon bank' means an Oregon
stock bank or Oregon nonstock bank.
{ - (19) - } { + (20) + } 'Oregon commercial bank' means an
Oregon stock bank that was chartered under ORS chapter 707 as a
bank other than a stock savings bank.
{ - (20) - } { + (21) + } 'Oregon nonstock bank' means a
state nonstock bank, the home state of which is Oregon.
{ - (21) - } { + (22) + } 'Oregon operating institution'
means:
(a) A bank that is engaging in banking business in this state;
(b) An extranational institution that is engaging in banking
business in this state; or
(c) A trust company that is transacting trust business in this
state.
{ - (22) - } { + (23) + } 'Oregon savings bank' or 'savings
bank' means an Oregon stock savings bank or an Oregon nonstock
bank.
{ - (23) - } { + (24) + } 'Oregon stock bank' means a state
stock bank, the home state of which is Oregon.
{ - (24) - } { + (25) + } 'Oregon stock savings bank' means
an Oregon stock bank that was initially chartered as or was
converted to a stock savings bank under the Bank Act.
{ - (25) - } { + (26) + } 'Oregon trust company' means a
trust company that was organized under the provisions of ORS
chapter 707.
{ - (26) - } { + (27) + } 'Out-of-state bank' means an
out-of-state state bank or an out-of-state federal bank.
{ - (27) - } { + (28) + } 'Out-of-state bank holding
company' means a bank holding company whose home state is not
Oregon, and that is not the bank holding company of an Oregon
stock bank or an in-state federal stock bank.
{ - (28) - } { + (29) + } 'Out-of-state federal bank' means
a federal bank, the home state of which is a state other than
Oregon.
{ + (30) 'Out-of-state financial holding company' means a
financial holding company whose home state is not Oregon, and
that is not the financial holding company of an Oregon stock bank
or an in-state federal stock bank. + }
{ - (29) - } { + (31) + } 'Out-of-state state bank' means a
state bank, the home state of which is a state other than Oregon.
{ - (30) - } { + (32) + } 'Out-of-state trust company'
means a trust company that was organized under the laws of
another state.
{ - (31) - } { + (33) + } 'State bank' means a bank that
was organized under the laws of a state.
{ - (32) - } { + (34) + } 'State nonstock bank' means a
nonstock bank that was organized under the laws of a state.
{ - (33) - } { + (35) + } 'State stock bank' means a stock
bank that was organized under the laws of a state.
{ - (34) - } { + (36) + } 'Stock bank' means a bank that
issues capital stock.
{ - (35) - } { + (37) + } 'Trust company' means any company
that is authorized under the provisions of ORS chapter 709 to
transact trust business, and includes the trust department of a
bank, but does not include a corporation appointed by a United
States Bankruptcy Court to serve as a bankruptcy trustee under
Title 11, United States Code, when the corporation is acting in
its capacity as a bankruptcy trustee.
SECTION 30. ORS 715.012 is amended to read:
715.012. (1) If a company proposes to become a { + financial
holding company or a + } bank holding company of an Oregon stock
bank, when the company files its application and any related
materials with the Federal Reserve Board, the company shall
submit to the Director of the Department of Consumer and Business
Services copies of the application and related materials.
(2) The director may submit comments and recommendations for
approval or disapproval to the Federal Reserve Board concerning
any application to become a { + financial holding company or
a + } bank holding company of an Oregon stock bank that is filed
with the Federal Reserve Board.
(3) Following the filing of an application to become a { +
financial holding company or a + } bank holding company and the
submission to the director of the materials described in
subsection (1) of this section, the company shall submit to the
director copies of any written communications between itself and
the Federal Reserve Board that relate to the application,
including copies of any written approval or denial of the
application. A copy of each such written communication shall be
submitted to the director within 10 days after the original
thereof is sent or received by the company.
SECTION 31. ORS 715.017 is amended to read:
715.017. An out-of-state { + financial holding company or an
out-of-state + } bank holding company may become the
{ + financial holding company or the + } bank holding company
of:
(1) An Oregon stock bank or an in-state federal stock bank, by
itself or together with any predecessor, only if the Oregon stock
bank or in-state federal stock bank has been engaged in the
business of banking in this state for a period of not less than
three years prior to the date on which the out-of-state
{ + financial holding company or the out-of-state + } bank
holding company becomes the { + financial holding company or
the + } bank holding company of the Oregon stock bank or in-state
federal stock bank.
(2) An Oregon stock bank organized under ORS 707.025 that has
merged with or acquired all or substantially all of the assets
and liabilities of an Oregon stock bank or in-state federal stock
bank, by itself or together with any predecessor, only if the
Oregon stock bank or in-state federal stock bank has been engaged
in the business of banking in this state for a period of not less
than three years prior to the date on which the out-of-state
{ + financial holding company or the out-of-state + } bank
holding company becomes the { + financial holding company or
the + } bank holding company of the Oregon stock bank.
SECTION 32. ORS 715.019 is amended to read:
715.019. (1) An Oregon nonstock bank may, pursuant to rules
adopted by the Director of the Department of Consumer and
Business Services, reorganize so that the resulting entities are
an Oregon stock savings bank, controlled by a mutual
{ + financial holding company or a mutual + } bank holding
company. For purposes of this section, a 'mutual { + financial
holding company or a mutual + }bank holding company' is a
{ + financial holding company or a + } bank holding company that
does not issue capital stock. { + The mutual financial holding
company shall be mutually owned by the depositors of the
reorganizing Oregon nonstock bank and shareholders of other
companies under the control of the mutual financial holding
company. + } The mutual bank holding company shall be mutually
owned by the depositors of the reorganizing Oregon nonstock bank.
(2) A mutual bank holding company may acquire or invest in the
stock of one or more stock savings banks.
(3) A mutual bank holding company may merge with or acquire
another mutual bank holding company.
(4) A mutual bank holding company formed under this section
shall be subject to the provisions of this chapter.
(5) The director is authorized to adopt rules to carry out the
provisions of this section.
SECTION 33. ORS 715.045 is amended to read:
715.045. (1) The Director of the Department of Consumer and
Business Services may examine the books, accounts, records and
files of a { + financial holding company or a + } bank holding
company of an Oregon stock bank when the director considers it
necessary to evaluate the condition of the Oregon stock bank that
is a subsidiary of the { + financial holding company or the + }
bank holding company.
(2) { + The financial holding company or + } the bank holding
company examined shall pay to the director the actual cost of the
examination, as determined by the director.
SECTION 34. ORS 715.055 is amended to read:
715.055. (1) A { + financial holding company or a + } bank
holding company of an Oregon stock bank shall submit to the
Director of the Department of Consumer and Business Services
copies of all reports that the { + financial holding company or
the + } bank holding company is required to submit to the Federal
Reserve Board. The copies shall be submitted to the director
within the time periods required by applicable federal law and
regulation for the filing of the originals with the Federal
Reserve Board.
(2) The director may call for additional information from a
{ + financial holding company or a + }bank holding company, in
such form as the director may prescribe by rule or order, if the
director considers it necessary in order to obtain full knowledge
of the condition of the Oregon stock bank which the
{ + financial holding company or the + } bank holding company
controls. The { + financial holding company or the + } bank
holding company shall submit the report to the director within
the time period prescribed by the director.
(3) If a { + financial holding company or a + } bank holding
company fails to submit a report or additional information as
required by this section, the { + financial holding company or
the + } bank holding company shall pay to the director a penalty
of up to $1,000 for each day it fails to comply. If the
{ + financial holding company or the + } bank holding company
delays or refuses to pay the penalty upon demand by the director,
the director may maintain an action in the director's name
against the delinquent { + financial holding company or + }bank
holding company for the recovery of the penalty.
SECTION 35. ORS 715.075 is amended to read:
715.075. A { + financial holding company or a + } bank holding
company may acquire and hold all or part of the stock of a
corporation which is or may thereafter be licensed under ORS
744.002 as an agent to transact one or more of the classes of
insurance described in ORS 744.115 except for title insurance,
subject to the following requirements:
(1) The acquisition and holding of such stock shall be subject
to the approval of the Director of the Department of Consumer and
Business Services. The director shall base consideration for
approval on the condition of the { + financial holding company
or the + } bank holding company, the adequacy of a formal
business plan for the insurance activities and the existence of
satisfactory management for the corporation.
(2) The director may revoke or restrict the ongoing authority
of the { + financial holding company or the + } bank holding
company to hold stock in the corporation if the condition of the
{ + financial holding company or the + } bank holding company or
of any bank owned by it substantially deteriorates or if the
insurance activities are adversely affecting the { + financial
holding company or the + } bank holding company or any bank owned
by it.
(3) If the corporation conducts the insurance agency activity
in any branch or office in which any bank owned by the
{ + financial holding company or the + } bank holding company
carries on its banking business, the insurance agency activity
shall be physically separated from those parts of the premises in
which the bank carries on the banking business.
(4) No person who acts on behalf of the corporation to transact
insurance, as that term is defined in ORS 731.146, shall while
employed by the corporation engage on behalf of the { +
financial holding company or the bank + } holding company or any
bank owned by it in any activities relating to the making of
loans or the granting of other credits to the customers of any
bank owned by the { + financial holding company or the bank + }
holding company, including but not limited to serving as a loan
officer or as a member of a loan committee or any other group
charged with approval of loans and other credits.
(5) The name of the corporation and any assumed business name
used by it shall not be identical to that of any bank owned by
the { + financial holding company or the + } bank holding
company.
(6) Prior to selling any policy of insurance, the corporation
shall give substantially the following notice in writing to the
purchaser in at least 10-point boldfaced type:
_________________________________________________________________
NOTICE
______ (Name of corporation licensed as an agent) is owned by
______ (Name of { + financial holding company or + }bank
holding company) which also owns ________ (Name of institution or
savings bank). You are not required to purchase any insurance
from it as a condition of obtaining any service from or engaging
in any transaction with the institution, savings bank { + ,
financial holding company + } or bank holding company. Before
committing to purchase any policy of insurance, you should shop
for the coverage by carefully comparing information obtained from
two or more agents on prices, benefits, services, terms of
renewal and other policy features. You hereby acknowledge receipt
of a copy of this notice.
____NOTE_TO_GOPHER_CUSTOMERS:__________________________________
THE FOLLOWING TABULAR TEXT MAY BE IRREGULAR.
FOR COMPLETE INFORMATION PLEASE SEE THE PRINTED MEASURE.
_______________________________________________________________
________
____
Customer's signatureDate
____________________________________________________________
END OF POSSIBLE IRREGULAR TABULAR TEXT
____________________________________________________________
_________________________________________________________________
(7) For each calendar year during which a { + financial
holding company or a + } bank holding company owns all or part of
any corporation licensed under ORS 744.002 as an agent, the
{ + financial holding company or the + } bank holding company
shall file a written report with the director. The report shall
be filed no later than March 31 of the following year and shall
disclose the insurance activities of the corporation. The
required contents of the report shall be established by the
director by rule. The reports filed with the director under this
paragraph shall be available for public inspection in the office
of the director.
(8) The corporation shall not in any manner use customer
information obtained by the institution from another insurance
agent to promote, develop or solicit insurance business for the
corporation unless the other insurance agent consents to such use
of the customer information.
(9) The corporation shall be subject to the limitations
applicable to lending institutions under ORS 746.180 and 746.185
to 746.211. For the purpose of this subsection, the term 'lending
institution' has the meaning set forth in ORS 746.185.
SECTION 36. ORS 715.090 is amended to read:
715.090. (1) A { + financial holding company or + } bank
holding company may share financial and credit information
concerning its customers with any company of which it directly or
indirectly controls 50 percent or more of the voting shares. Any
company so controlled by a { + financial holding company or + }
bank holding company may share information concerning its
customers with the { + financial holding company or + } bank
holding company and with any other company so controlled by the
same { + financial holding company or + } bank holding company.
This section shall not be construed as otherwise permitting or
limiting the sharing or disclosure of information.
(2) For purposes of this section, 'customers' includes but is
not limited to depositors, borrowers, credit card holders,
lessees, purchasers under contracts and applicants for credit.
SECTION 37. ORS 732.528 is amended to read:
732.528. (1) { + Except as provided in this subsection, + }
the Director of the Department of Consumer and Business Services
shall approve the proposed activity described in ORS 732.521 (1)
within 30 days after filing of the completed statement or, if a
hearing is called and held, within 30 days after the record for
the hearing is closed, unless the director finds that any of the
{ - following applies - } { + grounds specified in this
subsection apply + }to the proposed activity { + . If a proposed
activity described in ORS 732.521 (1) involves a financial
holding company or is otherwise subject to the federal
Gramm-Leach-Bliley Act (P.L. 106-102), the director shall approve
the activity not later than the 60th day before the effective
date of the activity unless the director finds that any of the
grounds specified in this subsection apply to the proposed
activity. The grounds upon which the director may refuse to
approve a proposed activity are as follows + }:
(a) The activity is contrary to law or would result in a
prohibited combination of risks or classes of insurance.
(b) The activity is inequitable or unfair to the policyholders
or shareholders of any insurer involved or to any other person
affected by the proposed activity. However, in connection with an
acquisition of the voting securities of an insurer from the
shareholders of the insurer, the director shall evaluate the
fairness of the proposed acquisition to the shareholders of the
insurer to be acquired only with respect to any shareholders
remaining after consummation of the acquisition who are
unaffiliated with the acquiring party or parties.
(c) The activity would substantially reduce the security of and
service to be rendered to policyholders of any domestic insurer
involved, or would otherwise prejudice the interests of such
policyholders in this state or elsewhere.
(d) The activity provides for a foreign or alien insurer to be
an acquiring party, and the director further finds that the
insurer cannot satisfy the requirements of this state for
transacting an insurance business involving the classes of
insurance affected by the activity.
(e) The activity or its consummation would substantially lessen
competition in insurance in this state or tend to create a
monopoly.
(f) After the change of control or ownership, the domestic
insurer to which the activity described in ORS 732.521 (1)
applies would not be able to satisfy the requirements for the
issuance of a certificate of authority to transact the line or
lines of insurance for which it is currently authorized.
(g) The financial condition of any acquiring party might
jeopardize the financial stability of the insurer.
(h) The plans or proposals that the acquiring party has to
liquidate the insurer, sell its assets or consolidate or merge it
with any person, or to make any other material change in its
business or corporate structure or management, are unfair and
unreasonable to policyholders of the insurer and not in the
public interest.
(i) The competence, experience and integrity of those persons
who would control the operation of the insurer are such that it
would not be in the interest of policyholders of the insurer and
of the public to permit the activity or its consummation.
(j) The activity or its consummation is likely to be hazardous
or prejudicial to the insurance-buying public.
(k) The activity is subject to other material and reasonable
objections.
(2) If the director does not approve the proposed activity, the
director shall promptly notify each insurer and each acquiring
party to the proposed activity in writing, specifying the bases,
factors and reasons for the disapproval and giving each insurer
and each acquiring party who filed the statement relating to the
proposed activity an opportunity to amend the statement, if
possible, to obviate the director's objections.
(3) Any amendment to the statement filed under ORS 732.523
pursuant to the director's objection shall be filed by the
acquiring party or parties filing the statement and, if a hearing
was held on the proposed activity, shall be resubmitted at a
hearing held pursuant to this section unless the director finds
that such a hearing is not necessary for the protection of the
policyholders, shareholders or any other person affected by the
proposed activity.
(4) The director may retain at the acquiring person's expense
any actuaries, accountants and other experts not otherwise a part
of the director's staff as may be reasonably necessary to assist
the director in reviewing the proposed activity.
(5) The director may establish the effective date of an
activity to which ORS 732.521 (1) applies in the order approving
the activity.
(6) Any insurer or other party to a proposed activity,
including the insurer proposed to be acquired, within 60 days
after receipt of a notice of approval or disapproval, may appeal
the final order of the director as provided in ORS 183.310 to
183.550. For purposes of the judicial review the specifications
required to be set forth in the written notice from the director
shall be deemed the findings of fact and conclusions of law of
the department.
(7) On petition to the court, the court's power shall extend to
affirming the order of the director, modifying all or any part of
the director's objections, adding additional objections,
approving the proposed activity as submitted or subject to such
modifications or changes as the court may find proper, and
requiring resubmission to the boards of directors or other
governing bodies or for hearing as provided in ORS 732.526.
SECTION 38. ORS 732.548 is amended to read:
732.548. As used in ORS 732.517 to 732.592:
(1) 'Affiliate' of, or person 'affiliated' with, a specified
person means a person that directly, or indirectly through one or
more intermediaries, controls, or is controlled by, or is under
common control with, the person specified.
(2) 'Control,' including its use in the terms ' controlling,'
'controlled,' 'controlled by' and 'under common control with,'
means the possession, direct or indirect, of the power to direct
or cause the direction of the management and policies of a
person, whether through the ownership of voting securities, by
contract other than a commercial contract for goods or
nonmanagement services, or otherwise, unless the power is the
result of an official position with or corporate office held by
the person. Control shall be presumed to exist if any person,
directly or indirectly, owns, controls, holds with the power to
vote, or holds proxies representing, 10 percent or more of the
voting securities of any other person. This presumption may be
rebutted by a showing made in the manner provided by ORS 732.568
that control does not exist in fact. The Director of the
Department of Consumer and Business Services may determine, after
furnishing all persons in interest notice and opportunity to be
heard and making specific findings of fact to support such
determination, that control exists in fact, notwithstanding the
absence of a presumption to that effect.
(3) 'Insurance holding company system' means two or more
affiliated persons, one or more of which is an insurer { + , and
includes a financial holding company as referred to in section
103 of the federal Gramm-Leach-Bliley Act (P.L. 106-102) + }.
(4) A 'subsidiary' of a specified person is an affiliate
controlled by the specified person directly or indirectly through
one or more intermediaries.
(5) A 'voting security' includes any security convertible into
a voting security or evidencing a right to acquire a voting
security.
SECTION 39. ORS 733.620 is amended to read:
733.620. (1) Funds of an insurer may be invested in stocks
(including trust certificates) of solvent corporations organized
and carrying on a business under the laws of a sovereign as
follows:
(a) Preferred or guaranteed stocks if the corporation is not in
default or arrears as to any preferred or guaranteed dividend and
has continuously and regularly paid such dividends during the
preceding three years or has paid cash dividends for five years
on common stock.
(b) Common stocks as provided in paragraph (c) of this
subsection if:
(A) The obligations and preferred stock, if any, of such
corporation are eligible for investment under ORS 733.510 to
733.780; and
(B) The stock is registered on a national securities exchange
regulated under the Securities Exchange Act, or if of a type not
commonly so registered is regularly traded on a broad national or
regional basis.
(c) Notwithstanding ORS 733.780 (1), not more than 25 percent
of admitted assets may be in common stocks that have not paid a
cash dividend during each of the five years preceding the date of
acquisition.
(2) An insurer shall not invest so as to own or control more
than five percent of the voting power outstanding of a
corporation, nor shall it invest in the obligations or stocks of
a corporation if the insurer, directors, trustees and officers
own or control, or as a result thereof shall own and control, in
the aggregate more than 50 percent of the voting power. { + This
subsection does not apply to limit the amount of an insurer's
assets that may be invested in the voting securities of a
depository institution or any company that controls the
depository institution. + }
SECTION 39a. ORS 59.015 is amended to read:
59.015. As used in the Oregon Securities Law, unless the
context otherwise requires:
(1) 'Broker-dealer' means a person who engages, all or part of
the time, in effecting transactions in securities for the account
of others or for the person's own account. ' Broker-dealer' does
not include:
(a) An issuer effecting sales in its own securities;
(b) The following institutions:
(A) A financial institution or trust company, as defined in ORS
706.008; or
(B) A { + financial holding company or a + } bank holding
company, as defined in ORS 706.008, holding an institution
described in subparagraph (A) of this paragraph; a savings and
loan holding company as defined in section 408 of the National
Housing Act, 12 U.S.C. section 1730a, holding an association
described in subparagraph (A) of this paragraph; the subsidiaries
and affiliates of the { + financial holding company, + } bank
holding company or savings and loan holding company; or
subsidiaries and affiliates of institutions described in
subparagraph (A) of this paragraph, if the appropriate statutory
regulatory authority is exercising control over, or is regulating
or supervising the person in the sale of securities in accord
with the purposes of the Oregon Securities Law;
(c) A person who has no place of business in this state
effecting transactions in this state exclusively with
broker-dealers;
(d) A person effecting sales exempted by ORS 59.035;
(e) A salesperson, as defined in this section;
(f) A person effecting sales of securities owned by the person
registered for sale pursuant to ORS 59.065;
(g) A person effecting sales of securities exempted by ORS
59.025 (7);
(h) A person licensed as a mortgage banker or a mortgage broker
under ORS 59.840 to 59.965 when effecting sales of securities
involving real estate paper registered for sale pursuant to ORS
59.065; or
(i) A person designated by rule or order by the director.
(2) 'Control' means the possession, directly or indirectly, of
the power to direct or cause the direction of the management and
policies of a person, whether through the ownership of voting
securities, by contract, or otherwise.
(3) 'Director' means the Director of the Department of Consumer
and Business Services.
(4) 'Federal covered investment adviser' means a person who is
registered as an investment adviser pursuant to section 203 of
the Investment Advisers Act of 1940, as amended.
(5) 'Federal covered security' means any security that is a
covered security under section 18 of the Securities Act of 1933,
as amended, and for which such Act provides that the director may
require filing of a notice and payment of a fee.
(6) 'Fraud,' 'deceit' and 'defraud' are not limited to
common-law deceit.
(7) 'Guaranteed' means guaranteed as to payment of principal,
interest or dividends.
(8)(a) 'Investment adviser representative' means any partner,
officer, director or person occupying a similar status or
performing a similar function, or other individual, except
clerical or ministerial personnel, who is employed by or
associated with:
(A) A state investment adviser that is licensed or required to
be licensed in this state and who does any of the following:
(i) Makes any recommendations or otherwise renders advice
regarding securities;
(ii) Manages accounts or portfolios of clients;
(iii) Determines which recommendation or advice regarding
securities should be given;
(iv) Solicits, offers or negotiates for the sale of or sells
investment advisory services; or
(v) Supervises employees acting under this subparagraph; or
(B) A federal covered investment adviser, subject to the
limitations of section 203A of the Investment Advisers Act of
1940, as amended, as the director may designate by rule or order.
(b) 'Investment adviser representative' does not include a
person designated by rule or order of the director.
(9) 'Issuer' means a person who issues, proposes to issue or
has issued a security and includes an issuer to be formed. With
respect to certificates of deposit, voting-trust certificates or
collateral-trust certificates, or with respect to certificates of
interest or shares in an unincorporated investment trust not
having a board of directors or persons performing similar
functions or of the fixed, restricted management or unit type,
the ' issuer' is the person or persons performing the acts and
assuming the duties of depositor or manager pursuant to the
provisions of the trust or other instrument or agreement under
which the security is issued.
(10) 'License' means a license as provided under the Oregon
Securities Law.
(11) 'Mortgage banker' means a mortgage banker as defined in
ORS 59.840.
(12) 'Mortgage broker' means a mortgage broker as defined in
ORS 59.840.
(13) 'Offer' or 'offer to sell' includes every attempt or offer
to dispose of, or solicitation of an offer to buy, a security or
interest in a security for value. Every sale or offer of a
warrant or right to purchase or subscribe to another security of
the same or another issuer, as well as every sale or offer of a
security which gives the holder a present or future right or
privilege to convert into another security of the same or another
issuer, is considered to include an offer of the other security.
(14) 'Person' includes an individual, a joint venture, a
partnership, a cooperative, a limited liability company, an
association, a joint stock company, a corporation, a trust, an
unincorporated organization or a government or political
subdivision of a government.
(15) 'Real estate paper' means any obligation secured or
purportedly secured by an interest in real property. Real estate
paper includes, but is not limited to, mortgage-backed
securities, collateralized mortgage obligations, and real estate
mortgage investment conduits.
(16) 'Registered' means registered as provided in the Oregon
Securities Law.
(17)(a) 'Sale' or 'sell' includes every contract of sale of,
contract to sell, or disposition of, a security or interest in a
security for value. Any security given or delivered with, or as a
bonus on account of, a purchase of securities or any other thing
shall constitute a part of the subject of the purchase and shall
have been offered and sold for value. A gift of assessable stock
by or for any issuer or promoter shall constitute a sale.
(b) For purposes of the authority of the director under ORS
59.245 and 59.255, the terms 'sale' and 'sell' include the terms
'offer' and 'offer to sell' as defined in this section.
(c) 'Sale' and 'sell' do not include:
(A) A bona fide pledge or loan of securities;
(B) A bona fide security dividend, whether the corporation
distributing the dividend is the issuer of the security or not,
if nothing of value is given by the recipients for the dividend
other than payments in connection with the elimination of
fractional shares; or
(C) An act incident to a judicially approved reorganization in
which a security is issued in exchange for one or more
outstanding securities, claims or property interests, or partly
in such exchange and partly for cash.
(18)(a) 'Salesperson' means:
(A) A person, other than a broker-dealer, who represents or
purports to represent a broker-dealer, issuer or owner of
securities in effecting or attempting to effect in any manner
transactions in securities.
(B) A person, other than a person licensed as a mortgage banker
or mortgage broker under ORS 59.840 to 59.965, who represents or
purports to represent the issuer, owner, or mortgage banker or
mortgage broker licensed under ORS 59.840 to 59.965 in effecting
sales of securities or involving real estate paper registered for
sale pursuant to ORS 59.065.
(b) 'Salesperson' does not include:
(A) A person who represents an issuer in effecting sales in a
security exempted by ORS 59.025;
(B) A person who represents an issuer in effecting sales
exempted by ORS 59.035;
(C) A person who represents an issuer in effecting sales with
existing partners or directors of the issuer, if no commission or
other remuneration is paid or given directly or indirectly for
soliciting any person in this state;
(D) An employee of an institution or organization described in
subsection (1)(b) of this section to the extent the employee is
not a dual employee of the institution and a broker-dealer;
(E) A person effecting transactions in this state limited to
those transactions described in section 15(h)(2) and (3) of the
Securities Exchange Act of 1934, as amended; or
(F) A person designated by rule or order by the director.
(c) A person who is a partner, director or officer of a
broker-dealer, issuer or owner of securities, or a person who
occupies a similar status or performing similar functions, is a '
salesperson' only if the person otherwise comes within this
definition.
(19)(a) 'Security' means a note, stock, treasury stock, bond,
debenture, evidence of indebtedness, certificate of interest or
participation in a pension plan or profit-sharing agreement,
collateral-trust certificate, preorganization certificate or
subscription, transferable share, investment contract,
voting-trust certificate, certificate of deposit for a security,
certificate of interest or participation in an oil, gas, or
mining title or lease or in payments out of production under such
title or lease, real estate paper sold by a broker-dealer,
mortgage banker, mortgage broker or a person described in
subsection (1)(b) of this section to persons other than persons
enumerated in ORS 59.035 (4), or, in general, any interest or
instrument commonly known as a 'security,' or any certificate of
interest or participation in, temporary or interim certificates
for, receipt for, guarantee of, or warrant or right to subscribe
to or purchase any of the foregoing.
(b) 'Security' does not include:
(A) An insurance or endowment policy or annuity contract under
which an insurance company promises to pay a fixed or variable
sum of money either in a lump sum or periodically for life or
some other specified period;
(B) A beneficial interest in a voluntary inter vivos trust
unless the trust is created solely for the purpose of voting or
is part of an attempt to evade the provisions of ORS 59.005 to
59.370; or
(C) A beneficial interest in a testamentary trust.
(20)(a) 'State investment adviser' means a person who, for
compensation:
(A) Engages all or part of the time of the person, in this
state, in the business of advising others, either directly or by
mail or through publication or writing, as to the value of
securities or as to the advisability of investing in, purchasing
or selling securities;
(B) Engages all or part of the time of the person, in this
state, in the business of managing an investment or trading
account in securities for other persons; or
(C) Issues or promulgates, as part of a regular business in
this state, analyses or reports concerning securities.
(b) 'State investment adviser' does not include:
(A) An investment adviser representative;
(B) An institution or organization described in subsection
(1)(b) of this section;
(C) A licensed broker-dealer whose performance of investment
advisory services is solely incidental to the conduct of business
as a broker-dealer and who receives no special compensation for
such services;
(D) A salesperson licensed to a broker-dealer whose performance
of investment advisory services is solely incidental to that
person's activities as a salesperson and who receives no special
compensation for such services;
(E) A publisher of or contributor to a bona fide newspaper,
newsmagazine, investment manual or service, or business or
financial publication of general, regular and paid circulation;
(F) A person whose only clients are federal covered investment
advisers, state investment advisers, broker-dealers, mortgage
bankers, mortgage brokers, banks, savings institutions or trust
companies, insurance companies, investment companies as defined
in the Investment Company Act of 1940, as amended, pension or
profit-sharing trusts, or other financial institutions or
institutional buyers, whether acting for themselves or as
trustees;
(G) A duly licensed lawyer, engineer or accountant whose
performance of investment advisory services is solely incidental
to the practice of the profession;
(H) A person whose advice, analyses or reports relate only to
securities exempted by ORS 59.025 (1);
(I) A federal covered investment adviser in compliance with ORS
59.165 (7);
(J) A person, advising others, that has no place of business in
this state and during the preceding 12-month period has had fewer
than six clients, other than those persons included in
subparagraph (F) of this paragraph, who are residents of this
state; or
(K) Such other persons as the director may by rule or order
designate.
SECTION 40. ORS 59.840 is amended to read:
59.840. As used in ORS 59.840 to 59.965:
(1) 'Director' means the Director of the Department of Consumer
and Business Services.
(2) 'Fraud,' 'deceit' and 'defraud' are not limited to
common-law deceit.
(3) 'License' means a license issued to a mortgage banker or
mortgage broker under ORS 59.840 to 59.965.
(4) 'Mortgage banker':
(a) Means any person who for compensation or in the expectation
of compensation:
(A) Either directly or indirectly makes, negotiates or offers
to make or negotiate a mortgage banking loan or a mortgage loan;
and
(B) Services or sells a mortgage banking loan.
(b) Does not include:
(A) A financial institution, as defined in ORS 706.008.
(B) A { + financial holding company or a + } bank holding
company, as defined in ORS 706.008, holding an institution
described in subparagraph (A) of this paragraph; a savings and
loan holding company as defined in section 408 of the National
Housing Act, 12 U.S.C. 1730a (1982), holding an association
described in subparagraph (A) of this paragraph; the subsidiaries
and affiliates of the { + financial holding company, + }bank
holding company or savings and loan holding company; or
subsidiaries and affiliates of institutions described in
subparagraph (A) of this paragraph, provided that the appropriate
statutory regulatory authority is exercising control over or is
regulating or supervising the persons listed in this subparagraph
in their mortgage banking activities in accordance with the
purposes of ORS 59.840 to 59.965.
(C) A person who makes a loan secured by an interest in real
estate with the person's own moneys, for the person's own
investment and who is not engaged in the business of making loans
secured by an interest in real estate.
(D) An attorney licensed in this state who negotiates mortgage
banking loans or mortgage loans in the ordinary course of
business, unless the business of negotiating mortgage banking
loans or mortgage loans constitutes substantially all of the
attorney's professional activity.
(E) A person who, as seller of real property, receives one or
more mortgages or deeds of trust as security for a separate money
obligation.
(F) An agency of any state or of the United States.
(G) A person who receives a mortgage or deed of trust on real
property as security for an obligation payable on an installment
or deferred payment basis and arising out of materials furnished
or services rendered in the improvement of that real property or
any lien created without the consent of the owner of the real
property.
(H) A person who funds a mortgage banking loan or mortgage loan
which has been originated and processed by a licensee or by an
exempt person and who does not maintain a place of business in
this state in connection with funding mortgage banking loans or
mortgage loans, does not directly or indirectly solicit borrowers
in this state for the purpose of making mortgage banking loans or
mortgage loans and does not participate in the negotiation of
mortgage banking loans or mortgage loans. For the purpose of this
subparagraph, 'negotiation of mortgage banking loans or mortgage
loans' does not include setting the terms under which a person
may buy or fund a mortgage banking loan or a mortgage loan
originated by a licensee or exempt person.
(I) A nonprofit federally tax exempt corporation certified by
the United States Small Business Administration and organized to
promote economic development within this state whose primary
activity consists of providing financing for business expansion.
(J) A licensee licensed under ORS chapter 725 or a mortgage
broker.
(K) A retirement or pension fund.
(L) An insurer as defined in ORS 731.106.
(M) A court appointed fiduciary.
(N) Any other person designated by rule or order of the
director.
(5) 'Mortgage banking loan' means a loan, extension of credit
or a retail sales contract that is funded exclusively from the
mortgage banker's own resources, which is directly or indirectly
secured by a mortgage or deed of trust or any lien interest on
real estate and which is created with the consent of the owner of
the real property. For purposes of this subsection, ' own
resources' means any of the following:
(a) Cash, corporate capital, warehouse credit lines at
financial institutions defined in ORS 706.008 or other sources
that are liability items of the mortgage banker's financial
statements for which its assets are pledged;
(b) Correspondent contracts between the mortgage banker and a
bank, savings bank, trust company, savings and loan association,
credit union, profit sharing or pension trust, a licensee under
ORS chapter 725 or an insurance company; or
(c) The mortgage banker's affiliates' cash, corporate capital,
warehouse credit lines at financial institutions defined in ORS
706.008 or other sources that are liability items on the
affiliates' financial statements for which the affiliates' assets
are pledged. As used in this paragraph, 'affiliates' means
entities that, directly or indirectly, through one or more
intermediaries controls, are controlled by or are under common
control with the entity specified.
(6) 'Mortgage broker':
(a) Means a person who:
(A) Engages all or part of the time, for the account of others
or for the person's own account, in the business of selling real
estate paper whether as issuer, agent or principal to persons
other than persons enumerated in ORS 59.035 (4);
(B) Engages all or part of the time, for the account of others
or for the person's own account, in the business of accepting
funds from one or more persons other than persons enumerated in
ORS 59.035 (4) for investment in real estate paper; or
(C) For compensation, or in the expectation of compensation,
either directly or indirectly makes, negotiates or offers to make
or negotiate a mortgage loan.
(b) Does not include:
(A) A financial institution, as defined in ORS 706.008.
(B) A { + financial holding company or a + } bank holding
company, as defined in ORS 706.008, holding an institution
described in subparagraph (A) of this paragraph; a savings and
loan holding company as defined in section 408 of the National
Housing Act, 12 U.S.C. 1730a (1982), holding an association
described in subparagraph (A) of this paragraph; the subsidiaries
and affiliates of the { + financial holding company, + }bank
holding company or savings and loan holding company; or
subsidiaries and affiliates of institutions described in
subparagraph (A) of this paragraph, provided that the appropriate
statutory regulatory authority is exercising control over or is
regulating or supervising the persons listed in this subparagraph
in their mortgage brokering activities in accordance with the
purposes of ORS 59.840 to 59.965.
(C) A person who purchases real property and issues an
obligation to finance the transaction to the seller incidentally
to the sale.
(D) A real estate licensee as defined in ORS 696.010 who
performs services solely incidental to the practice of
professional real estate activity as defined in ORS 696.010,
unless the real estate licensee performs the functions of a
mortgage banker or a mortgage broker as defined in this section.
(E) A person licensed under the provisions of ORS chapter 725
or a mortgage banker.
(F) A person who makes a loan secured by an interest in real
estate with the person's own moneys, for the person's own
investment and who is not engaged in the business of making loans
secured by an interest in real estate.
(G) An attorney licensed in this state who negotiates mortgage
loans in the ordinary course of business, unless the business of
negotiating mortgage loans constitutes substantially all of the
attorney's professional activity.
(H) A person who, as seller of real property, receives one or
more mortgages or deeds of trust as security for a separate money
obligation.
(I) An agency of any state or of the United States.
(J) A person who receives a mortgage or deed of trust on real
property as security for an obligation payable on an installment
or deferred payment basis and arising out of materials furnished
or services rendered in the improvement of that real property or
any lien created without the consent of the owner of the real
property.
(K) A person who funds a mortgage loan which has been
originated and processed by a licensee or by an exempt person and
who does not maintain a place of business in this state in
connection with funding mortgage loans, does not directly or
indirectly solicit borrowers in this state for the purpose of
making mortgage loans and does not participate in the negotiation
of mortgage loans. For the purpose of this subparagraph, '
negotiation of mortgage loans' does not include setting the terms
under which a person may buy or fund a mortgage loan originated
by a licensee or exempt person.
(L) A nonprofit federally tax exempt corporation certified by
the United States Small Business Administration and organized to
promote economic development within this state whose primary
activity consists of providing financing for business expansion.
(M) A person licensed under ORS 822.020 who provides services
customarily associated with the retail sales of manufactured
dwellings, including communication of generally available
information regarding mortgage loans, unless:
(i) The person receives from a purchaser a fee or commission as
a mortgage broker or mortgage banker that is disclosed in the
sales contract, purchase agreement or applicable federal
documents;
(ii) For the benefit of a potential purchaser, the person
completes a loan application form or other document that is part
of a mortgage banking loan and completes a good faith estimate
under the federal Real Estate Settlement Procedures Act (12
U.S.C. 2601 et seq.);
(iii) The person solicits or receives credit information from a
prospective purchaser for the purpose of making credit decisions;
or
(iv) The person negotiates with a potential purchaser the terms
of a mortgage loan including but not limited to points, interest
rates, length of loan or other loan conditions.
(N) Any other person designated by rule or order of the
director.
(7) 'Mortgage loan' means a loan, extension of credit or retail
sales contract, other than a mortgage banking loan, secured by a
mortgage or deed of trust or any lien interest on real estate
that is created with the consent of the owner of the real estate.
(8) 'Residential mortgage transaction' means a transaction in
which a mortgage, deed of trust, purchase money security interest
arising under an installment sales contract, or equivalent
consensual security interest is created or retained in property
upon which four or fewer residential dwelling units are planned
or situated, including but not limited to individual units or
condominiums and cooperatives. As used in this subsection, '
residential dwelling unit' means an improvement designed for
residential occupancy.
SECTION 41. ORS 98.412 is amended to read:
98.412. (1) The Division of State Lands may require a person
who has not filed a report to file a verified report stating
whether or not the person is holding any unclaimed property
reportable or deliverable under ORS 98.352.
(2) The division may at reasonable times and upon reasonable
notice examine the records of any person to determine whether the
person has complied with the provisions of ORS 98.352. The
division may conduct the examination even if the person believes
it is not in possession of any property reportable or deliverable
under this section.
(3) To the extent possible, the division shall enter into
agreements with state and federal agencies that regularly examine
the records of financial institutions, trust companies { + ,
financial holding companies + } and bank holding companies, as
defined in ORS 706.008, and of subsidiaries of such financial
institutions, trust companies { + , financial holding
companies + } and bank holding companies. Under the agreements,
the state and federal agencies shall examine the records of the
financial institution, trust company, { + financial holding
company, + }bank holding company or subsidiary to determine
compliance with ORS 98.352. If a state or federal agency does not
enter into an agreement with the division under this subsection,
the division shall conduct the examination of the records of
financial institutions, trust companies { + , financial holding
companies + } and bank holding companies to determine compliance
with ORS 98.352.
(4) If a holder fails after August 3, 1983, to maintain the
records required by ORS 98.354 and the records of the holder
available for the periods subject to ORS 98.302 to 98.436 and
98.992 are insufficient to permit the preparation of a report,
the division may require the holder to report and pay the amounts
which the division reasonably estimates from the report and
available records.
SECTION 42. ORS 205.460 is amended to read:
205.460. (1) A person whose property is subject to an invalid
claim of encumbrance may petition the circuit court of the county
in which the person resides or in which the property is located
for an order, which may be granted ex parte, directing the
encumbrance claimant to appear at a hearing before the court and
show cause why the claim of encumbrance should not be stricken
and other relief provided by this section should not be granted.
The court shall schedule the hearing no earlier than seven days
after the date of the order. The scheduled date of the hearing
shall allow adequate time for notice of the hearing under
subsection (4) of this section.
(2) A petition under this section shall state the grounds upon
which relief is requested, and shall be supported by the
affidavit of the petitioner or the petitioner's attorney setting
forth a concise statement of the facts upon which the motion is
based.
(3) The petition and affidavit described in subsection (2) of
this section shall be in substantially the following form:
_________________________________________________________________
IN THE CIRCUIT COURT OF
THE STATE OF OREGON
FOR THE COUNTY OF ______
____NOTE_TO_GOPHER_CUSTOMERS:__________________________________
THE FOLLOWING TABULAR TEXT MAY BE IRREGULAR.
FOR COMPLETE INFORMATION PLEASE SEE THE PRINTED MEASURE.
_______________________________________________________________
______
, )
Petitioner, Case No. ___
)
PETITION FOR AN
ORDER STRIKING
v. AND RELEASING
ENCUMBRANCES,
AWARDING COSTS
AND ATTORNEY FEES
______
, AND ORDER TO
Respondent. ) SHOW CAUSE
____________________________________________________________
END OF POSSIBLE IRREGULAR TABULAR TEXT
____________________________________________________________
Petitioner, ______ (insert name), by and through ______ (insert
name and title of attorney for petitioner, if applicable),
petitions this court, pursuant to ORS 205.460, for an order
striking and releasing purported encumbrances, filed or recorded
against Petitioner by Respondent, ______ (insert name or names)
filed or recorded in book/reel/volume No. ___ on page ___ or
document/fee/ file/instrument/microfilm No. ___ in the
______ (insert name of office where document was filed or
recorded), and for an order, pursuant to ORS 205.460, for costs
and attorney fees required to bring this action, on the grounds
that the purported encumbrances have no basis in law or fact.
Petitioner further requests that this court enter an order
requiring Respondent to appear before this court and to show
cause why the above order should not be entered. Finally,
Petitioner requests an order from the court requiring Respondent
to pay penalties and damages as provided in ORS 205.470.
DATED this __ day of ____, __.
_______________
Petitioner or Petitioner's Attorney
_________________________________________________________________
_________________________________________________________________
IN THE CIRCUIT COURT OF
THE STATE OF OREGON
FOR THE COUNTY OF ______
____NOTE_TO_GOPHER_CUSTOMERS:__________________________________
THE FOLLOWING TABULAR TEXT MAY BE IRREGULAR.
FOR COMPLETE INFORMATION PLEASE SEE THE PRINTED MEASURE.
_______________________________________________________________
______
, )
Petitioner, Case No. ___
)
AFFIDAVIT OF
V. )_______
_
)
)
______
, )
Respondent. )
____NOTE_TO_GOPHER_CUSTOMERS:__________________________________
THE FOLLOWING TABULAR TEXT MAY BE IRREGULAR.
FOR COMPLETE INFORMATION PLEASE SEE THE PRINTED MEASURE.
_______________________________________________________________
________
)
STATE OF OREGON )
) ss.
County of ______
)
____________________________________________________________
END OF POSSIBLE IRREGULAR TABULAR TEXT
____________________________________________________________
I, ______ (insert name of affiant), after being duly sworn,
depose and say:
1. I am the above-entitled petitioner (or the attorney for the
petitioner) in this matter.
2. The information contained in this affidavit is of my own
personal knowledge.
3. Attached as numbered exhibits are true and correct copies of
the following documents that were filed or recorded in the ______
(insert name of office where documents were filed or recorded) on
______ (insert date):
(List and attach document(s))
4. For any purported encumbrances identified above the
following is true. The encumbrance is not authorized by statute,
was not entered into consensually, and is not an equitable,
constructive or other encumbrance imposed by a court of competent
jurisdiction.
DATED this __ day of ____, __.
_______________
(Petitioner or Petitioner's Attorney)
SUBSCRIBED AND SWORN to before me this __ day of ______ , __.
_______________.
NOTARY PUBLIC FOR OREGON
My commission expires: ____
_________________________________________________________________
(4) A copy of the petition and the order directing the
encumbrance claimant to appear under this section shall be served
upon the encumbrance claimant:
(a) By service in the manner provided for personal service of
summons under ORCP 7; or
(b) By mailing a true copy of the petition, affidavit and order
to the encumbrance claimant at the encumbrance claimant's
last-known address, both by first class mail and by certified or
registered mail, return receipt requested. A notice mailed under
this paragraph is effective on the date that the notice is
deposited with the United States Postal Service, properly
addressed and postage prepaid.
(5) The order to show cause shall be in substantially the
following form and shall clearly state that if the encumbrance
claimant fails to appear at the time and place noted, the claim
of encumbrance shall be stricken and released and that the
encumbrance claimant shall be ordered to pay the costs and
reasonable attorney fees incurred by the petitioner at trial and
on appeal:
_________________________________________________________________
IN THE CIRCUIT COURT OF
THE STATE OF OREGON
FOR THE COUNTY OF ______
____NOTE_TO_GOPHER_CUSTOMERS:__________________________________
THE FOLLOWING TABULAR TEXT MAY BE IRREGULAR.
FOR COMPLETE INFORMATION PLEASE SEE THE PRINTED MEASURE.
_______________________________________________________________
______
, )
Petitioner, Case No. ___
)
ORDER TO
v. SHOW CAUSE
)
)
______
, )
Respondent. )
____________________________________________________________
END OF POSSIBLE IRREGULAR TABULAR TEXT
____________________________________________________________
THIS MATTER came before the court on ______ (insert date) on
Petitioner's Petition for an Order Striking and Releasing
Encumbrances, Awarding Costs and Attorney Fees and Order to Show
Cause. The court, having considered the petition, the Affidavit
of ______ (insert name) and the attached exhibits, and it
appearing to the court that there are sufficient grounds to issue
an order to show cause,
IT IS HEREBY ORDERED that the Respondent, ______ (insert name),
appear before this court on ______ (insert date), at ____ (insert
time), to show cause why the petition should not be granted in
its entirety.
IMPORTANT NOTICE:
IF YOU FAIL TO APPEAR AT THE ABOVE TIME AND PLACE, THE COURT
MAY ENTER AN ORDER STRIKING AND RELEASING YOUR ENCUMBRANCE CLAIMS
FILED AGAINST PETITIONER AND YOU MAY BE ORDERED TO PAY COSTS AND
REASONABLE ATTORNEY FEES INCURRED BY THE PETITIONER.
DATED this __ day of ____, __.
_______________
Circuit Court Judge
_________________________________________________________________
(6) If the court determines that the claim of encumbrance is
invalid, the court shall issue an order striking and releasing
the claim of encumbrance and may award costs and reasonable
attorney fees at trial and on appeal to the petitioner to be paid
by the encumbrance claimant. If the court determines that the
claim of encumbrance is valid, the court shall issue an order so
stating and may award costs and reasonable attorney fees at trial
and on appeal to the encumbrance claimant to be paid by the
petitioner.
(7) The procedure set forth in this section is not available
against a person lawfully conducting business as:
(a) An institution, a savings bank, a national bank, an
out-of-state bank, a federal savings bank or an extranational
institution, as those terms are defined in ORS 706.008, or a
subsidiary of an entity described in this paragraph;
(b) A savings association or a federal association, as those
terms are defined in ORS 722.004, or a subsidiary of an entity
described in this paragraph;
(c) A { + financial holding company, + } { + a + } bank
holding company, a savings and loan holding company or a
subsidiary of a { + financial holding company, a + } bank
holding company or a savings and loan holding company;
(d) A credit union, as defined in ORS 723.006, or a federal
credit union;
(e) A consumer finance company subject to the provisions of ORS
chapter 725;
(f) A mortgage banker or a mortgage broker, as those terms are
defined in ORS 59.840, a mortgage servicing company or any other
mortgage company; or
(g) An insurer as defined in ORS 731.106.
(8) The procedure set forth in this section is not available
against:
(a) An officer, agency, department or instrumentality of the
federal government;
(b) An officer, agency, department or instrumentality of this
state; or
(c) An officer, agency, department or instrumentality of a
political subdivision or public corporation in this state.
SECTION 43. ORS 294.035 is amended to read:
294.035. Subject to ORS 294.040 and 294.135 to 294.155, the
custodial officer may, after having obtained a written order from
the governing body of the county, municipality, political
subdivision or school district, which order shall be spread upon
the minutes or journal of the governing body, invest any sinking
fund, bond fund or surplus funds in the custody of the custodial
officer in the bank accounts, classes of securities at current
market prices, insurance contracts and other investments listed
in this section. However, the custodial officer of any county
shall make no such investment of funds belonging to any
municipality, political subdivision or school district, unless
and until the custodial officer has received a written order from
the governing body of the municipality, political subdivision or
school district to which the funds belong, which order authorizes
the custodial officer to invest the funds, and which order has
been spread upon the minutes or journal of the governing body.
This section, however, shall not limit the authority of the
custodial officer to invest surplus funds in other investments
when the investment is specifically authorized by another
statute. Investments authorized by this section are:
(1) Lawfully issued general obligations of the United States,
the agencies and instrumentalities of the United States or
enterprises sponsored by the United States Government.
(2) Lawfully issued debt obligations of the agencies and
instrumentalities of the State of Oregon and its political
subdivisions that have a long-term rating of A or an equivalent
rating or better or are rated on the settlement date in the
highest category for short-term municipal debt by a nationally
recognized statistical rating organization.
(3) Lawfully issued debt obligations of the States of
California, Idaho and Washington and political subdivisions of
those states if the obligations have a long-term rating of AA or
an equivalent rating or better or are rated on the settlement
date in the highest category for short-term municipal debt by a
nationally recognized statistical rating organization.
(4) Time deposit open accounts, certificates of deposit and
savings accounts in insured institutions as defined in ORS
706.008 that maintain a head office or a branch in this state.
(5) Share accounts and savings accounts in credit unions in the
name of, or for the benefit of, a member of the credit union
pursuant to a plan of deferred compensation.
(6) Fixed or variable life insurance or annuity contracts as
defined by ORS 731.170 and guaranteed investment contracts issued
by life insurance companies authorized to do business in this
state.
(7) Trusts in which deferred compensation funds from other
public employers are pooled, if:
(a) The purpose is to establish a deferred compensation plan;
(b) The trust is a public instrumentality of such public
employers and described in section (2)(b) of the Investment
Company Act of 1940, 15 U.S.C. 80a-2(b), as amended, in effect on
September 20, 1985, or the trust is a common trust fund described
in ORS 709.170;
(c) Under the terms of the plan the net income from or gain or
loss due to fluctuation in value of the underlying assets of the
trust, or other change in such assets, is reflected in an equal
increase or decrease in the amount distributable to the employee
or the beneficiary thereof and, therefore, does not ultimately
result in a net increase or decrease in the worth of the public
employer or the state; and
(d) The fidelity of the trustees and others with access to such
assets, other than a trust company, as defined in ORS 706.008, is
insured by a surety bond that is satisfactory to the public
employer, issued by a company authorized to do a surety business
in this state and in an amount that is not less than 10 percent
of the value of such assets.
(8)(a) Banker's acceptances, if the banker's acceptances are:
(A) Guaranteed by, and carried on the books of, a qualified
financial institution;
(B) Eligible for discount by the Federal Reserve System; and
(C) Issued by a qualified financial institution whose
short-term letter of credit rating is rated in the highest
category by one or more nationally recognized statistical rating
organizations.
(b) For the purposes of this subsection, 'qualified financial
institution' means:
(A) A financial institution that is located and licensed to do
banking business in the State of Oregon; or
(B) A financial institution that is wholly owned by a { +
financial holding company or a + } bank holding company that owns
a financial institution that is located and licensed to do
banking business in the State of Oregon.
(c) A custodial officer shall not permit more than 25 percent
of the moneys of a local government that are available for
investment, as determined on the settlement date, to be invested
in banker's acceptances of any qualified financial institution.
(9)(a) Corporate indebtedness subject to a valid registration
statement on file with the Securities and Exchange Commission or
issued under the authority of section 3(a)(2) or 3(a)(3) of the
Securities Act of 1933, as amended. Corporate indebtedness
described in this subsection does not include banker's
acceptances. The corporate indebtedness must be issued by a
commercial, industrial or utility business enterprise, or by or
on behalf of a financial institution, including a holding company
owning a majority interest in a qualified financial institution.
(b) Corporate indebtedness must be rated on the settlement date
P-1 or Aa or better by Moody's Investors Service or A-1 or AA or
better by Standard & Poor's Corporation or equivalent rating by
any nationally recognized statistical rating organization.
(c) Notwithstanding paragraph (b) of this subsection, the
corporate indebtedness must be rated on the settlement date P-2
or A or better by Moody's Investors Service or A-2 or A or better
by Standard & Poor's Corporation or equivalent rating by any
nationally recognized statistical rating organization when the
corporate indebtedness is:
(A) Issued by a business enterprise that has its headquarters
in Oregon, employs more than 50 percent of its permanent
workforce in Oregon or has more than 50 percent of its tangible
assets in Oregon; or
(B) Issued by a holding company owning not less than a majority
interest in a qualified financial institution, as defined in
subsection (8) of this section, located and licensed to do
banking business in Oregon or by a holding company owning not
less than a majority interest in a business enterprise described
in subparagraph (A) of this paragraph.
(d) A custodial officer shall not permit more than 35 percent
of the moneys of a local government that are available for
investment, as determined on the settlement date, to be invested
in corporate indebtedness, and shall not permit more than five
percent of the moneys of a local government that are available
for investment to be invested in corporate indebtedness of any
single corporate entity and its affiliates or subsidiaries.
(10) Securities of any open-end or closed-end management
investment company or investment trust, if the securities are of
the types specified in subsections (1) to (3), (8) and (9) of
this section and if the investment does not cause the county,
municipality, political subdivision or school district to become
a stockholder in a joint company, corporation or association. A
trust company or trust department of a national bank while acting
as indenture trustee may invest funds held by it as indenture
trustee in any open-end or closed-end management investment
company or investment trust for which the trust company or trust
department of a national bank or an affiliate of the trust
company or trust department of a national bank acts as investment
adviser or custodian or provides other services. However, the
securities of the investment company or investment trust in which
such funds are invested must be of the types specified in
subsections (1) to (3), (8) and (9) of this section and the
investment must not cause the county, municipality, political
subdivision or school district whose funds are invested to become
a stockholder in a joint company, corporation or association. For
purposes of this subsection, companies are affiliated if they are
members of the same affiliated group under section 1504 of the
Internal Revenue Code of 1986 (26 U.S.C. 1504).
(11) Repurchase agreements whereby the custodial officer
purchases securities from a financial institution or securities
dealer subject to an agreement by the seller to repurchase the
securities. The repurchase agreement must be in writing and
executed in advance of the initial purchase of the securities
that are the subject of the repurchase agreement. Only securities
described in subsection (1) of this section shall be used in
conjunction with a repurchase agreement and such securities shall
have a maturity of not longer than three years. The price paid by
the custodial officer for such securities may not exceed amounts
or percentages prescribed by written policy of the Oregon
Investment Council or the Oregon Short Term Fund Board created by
ORS 294.885.
SECTION 44. ORS 646.382 is amended to read:
646.382. As used in ORS 646.382 to 646.396:
(1) 'Consumer' means any individual who is solicited to
purchase or who purchases the services of a credit services
organization.
(2)(a) 'Credit services organization' means any person who,
with respect to the extension of credit by others, sells,
provides, performs, or represents that the organization can or
will sell, provide or perform, in return for the payment of money
or other valuable consideration, any of the following services:
(A) Improving, saving or preserving a consumer's credit record,
history or rating.
(B) Obtaining an extension of credit for a consumer.
(C) Providing advice, assistance, instruction or instructional
materials to a consumer with regard to either subparagraph (A) or
(B) of this paragraph.
(b) 'Credit services organization' does not include:
(A) Any person authorized to make loans or extensions of credit
under the laws of this state or the United States who is subject
to regulation and supervision by this state or the United States
or a lender approved by the Secretary of Housing and Urban
Development for participation in any mortgage insurance program
under the National Housing Act.
(B) Any financial institution { + , financial holding company
+ }or bank holding company as those terms are defined in ORS
706.008 or any subsidiary or affiliate of a financial
institution { + , financial holding company + } or bank holding
company.
(C) A mortgage banker or mortgage broker as defined in ORS
59.840.
(D) Any nonprofit organization exempt from taxation under
section 501(c)(3) of the Internal Revenue Code, provided that the
organization does not require a fee for its services and does not
receive any money or other valuable consideration prior to the
rendering of any services by the organization for the consumer.
(E) Any person licensed as a real estate broker by this state
if the person is acting within the course and scope of that
license.
(F) Any person licensed to practice law in this state if the
person renders services within the course and scope of practice
as an attorney.
(G) Any broker-dealer registered with the Securities and
Exchange Commission or the Commodity Futures Trading Commission
if the broker-dealer is acting within the course and scope of
that regulation.
(H) Any consumer reporting agency as defined in the Federal
Fair Credit Reporting Act, 15 U.S.C. 1681 et seq.
(I) Any licensee licensed under ORS chapter 725.
(3) 'Department' means the Department of Consumer and Business
Services.
(4) 'Director' means the director of the department or the
director's designees.
(5) 'Extension of credit' means the right to defer payment of
debt or to incur debt and defer its payment offered or granted
primarily for personal, family or household purposes.
SECTION 45. ORS 706.005 is amended to read:
706.005. As used in the Bank Act, unless the context requires
otherwise:
(1) 'Access area' means any paved walkway or sidewalk within 50
feet of an automated teller machine or night deposit facility.
'Access area' does not include publicly maintained sidewalks or
roads.
(2) 'Access device' means:
(a) An 'access device' as defined in Federal Reserve Board
Regulation E (12 C.F.R. Part 205) adopted under the Electronic
Fund Transfer Act (15 U.S.C. 1601, et seq.); or
(b) A key or other mechanism issued by a financial institution
to a customer to give the customer access to the institution's or
bank's night deposit facility.
(3) 'Acquisition transaction' means:
(a) The sale and purchase of all or substantially all of the
assets of a bank that is not in the ordinary course of business
of such bank; or
(b) The transfer and assumption of all or substantially all of
the liabilities of a bank.
(4) 'Automated teller machine' or 'ATM' means any electronic
information processing device located in this state that:
(a) Accepts or dispenses cash in connection with a credit,
deposit or convenience account, provides information and
initiates transactions in accordance with the request or
instruction of a customer or the customer's agent; and
(b) Is unstaffed except for persons installing the device,
providing security or providing periodic servicing, maintenance
or repair. The term does not include devices used solely to
facilitate check guarantees or check authorizations, or used in
connection with the acceptance or dispensing of cash on a person
to person basis, such as by a store cashier.
(5) 'Bank Act' means ORS chapters 706 to 716.
(6) 'Banking business' or 'business of banking' means the
business of receiving or accepting money or its equivalent on
deposit as a regular business whether the deposit is made subject
to check or is evidenced by a certificate of deposit, a pass book
or other writing or evidence, but does not include:
(a) Depositing money or its equivalent in escrow or with an
agent, pending investments in real estate or securities for or on
account of a principal;
(b) The business of a savings and loan association or a credit
union;
(c) Deposits accepted in connection with the purchase or lease
of property or services; or
(d) Accepting deposits through an ATM or night deposit
facility.
(7) 'Banking day' has the meaning given that term in ORS
708A.650.
(8) 'Branch' means an office or other place, except a principal
place of business or an ATM, at which:
(a) A bank engages in banking business; or
(b) A trust company transacts trust business.
(9) 'Candlefoot power' means a light intensity of candles on a
horizontal plane at 36 inches above ground level and 5 feet in
front of the area to be measured.
(10) 'Capital debentures' means capital notes, capital
debentures and any other form of unsecured obligations issued by
an institution or stock savings bank to evidence borrowings where
the rights of the lender are subordinate to the rights of the
depositors.
(11)(a) 'Defined parking area' means that portion of any
parking area opened for customer parking that is:
(A) Contiguous to the access area of an ATM or night deposit
facility;
(B) Regularly, principally and lawfully used for parking by
users of the ATM or night deposit facility while the users
conduct transactions during hours of darkness; and
(C) Owned or leased by the operator of the ATM or night deposit
facility or owned or controlled by the party leasing the ATM or
night deposit facility site to the operator.
(b) 'Defined parking area' does not include any parking area
that is not open or regularly used for parking by users of the
ATM or night deposit facility who are conducting transactions
during the hours of darkness. A parking area is not open if it is
physically closed to access or if conspicuous signs indicate that
it is closed. If a multiple level parking area satisfies the
conditions of paragraph (a) of this subsection and would
therefore otherwise be a defined parking area, only the single
parking level designated by the operator of the ATM and night
deposit facility to be the most directly accessible to the users
of the ATM and night deposit facility shall be a defined parking
area.
(12) 'Department' means the Department of Consumer and Business
Services.
(13) 'Director' means the Director of the Department of
Consumer and Business Services.
(14) 'Document of title' means document of title as defined in
ORS 71.2010.
(15) 'Federal Reserve Act' means the Act of Congress approved
December 23, 1913 (38 Stat. 251), as amended.
(16) 'Federal Reserve Bank' means the Federal Reserve Banks
created and organized under the authority of the Federal Reserve
Act.
(17) 'Federal Reserve Board' means the Federal Reserve Board
created and described in the Federal Reserve Act.
(18) 'Home state' means:
(a) With respect to a state bank, the state under the laws of
which the state bank is incorporated or otherwise organized;
(b) With respect to a federal bank, the state in which the main
office of the federal bank is located;
(c) With respect to an extranational institution, the state
determined to be the home state by election of the extranational
institution, or in default of such election, by the Board of
Governors of the Federal Reserve System; and
(d) With respect to a { + financial holding company or a + }
bank holding company, the state in which the total deposits of
all banking subsidiaries of such company are the largest on the
date on which the company becomes a { + financial holding
company or a + }bank holding company.
(19) 'Hours of darkness' means the period that commences 30
minutes after sunset and ends 30 minutes before sunrise.
(20) 'Loan production office' means a physical location in this
state at which representatives of a financial institution hold
themselves out to the public as providing loan origination
services, leasing services or services of a similar nature, but
at which representatives of the financial institution do not
conduct banking business.
(21) 'Merger' includes consolidation.
(22) 'Night deposit facility' means a receptacle that is
provided by a financial institution for the use of the
institution's customers in delivering cash, checks and other
items to the financial institution.
(23) 'Obligations' includes:
(a) The direct liability of the maker or acceptor of paper
discounted with or sold to an institution;
(b) The liability of the drawer, indorser or assignor;
(c) If obligations of a copartnership or association, the
obligations of the several members of the copartnership or
association;
(d) If obligations of a corporation, the obligations of all
subsidiaries of the corporation in which the corporation owns or
controls 50 percent or more of the capital stock; and
(e) The liability of a lessee under a lease.
(24) 'Officer' of a banking institution means a chief executive
officer, president, any vice president, secretary, treasurer or
cashier.
(25) 'Operator' means any financial institution or other
business entity, or any person who operates an ATM or night
deposit facility.
(26) 'Paid-in capital' means the aggregate amount received by
an institution or stock savings bank from the issuance of its
stock or transferred from retained earnings.
(27) 'Person' means an individual, corporation, limited
liability company, partnership, association, joint stock company,
business trust or unincorporated organization.
(28) 'Stockholders' equity' means the aggregate of paid-in
capital and retained earnings of an institution or Oregon stock
savings bank.
(29) 'Trust business' means:
(a) Acting as a trustee of a trust, as defined in ORS 128.005;
(b) Acting as a fiduciary, as defined in ORS 125.005;
(c) Acting as a personal representative, as defined in ORS
111.005;
(d) Acting as a receiver, trustee or assignee for the benefit
of creditors; or
(e) Acting in a court-appointed position of trust or any other
position of trust.
SECTION 46. ORS 706.690 is amended to read:
706.690. (1) If the Director of the Department of Consumer and
Business Services determines that the condition of an institution
or Oregon stock savings bank is such that any transfer of the
capital stock of the institution or Oregon stock savings bank
would jeopardize the interest of its depositors, the director
shall notify the institution or Oregon stock savings bank in
writing that when any shares of the capital stock of the
institution or Oregon stock savings bank are to be transferred on
the books or records of the institution or Oregon stock savings
bank, the officer proposing to make the transfer shall report in
writing to the director the proposed transfer of stock. A
transfer of stock shall not be made, after the date such a notice
is issued, unless the transfer agent first obtains the written
consent of the director. The director shall notify the
institution or Oregon stock savings bank of the director's
decision within 30 days after receiving the report.
(2) If a director or officer of an institution or Oregon stock
savings bank, a transfer agent, vendee or vendor has reason to
believe that a transfer of stock creates or changes a controlling
interest in an institution or Oregon stock savings bank, that
person shall immediately notify the director of the transfer. A
transfer that creates a controlling interest in, or changes the
control of, an institution or Oregon stock savings bank shall not
be entered upon the books of the institution or Oregon stock
savings bank or become effective until:
(a) Notice has been received at the office of the director; and
(b) The sale, exchange or other disposition has been approved
in writing by the director.
(3) For purposes of this section, a controlling interest of an
institution or Oregon stock savings bank exists if a person,
directly or indirectly, acting through one or more other persons,
owns or has power to vote 25 percent or more of any class of
voting stock of an institution or Oregon stock savings bank or of
a corporation that is or becomes a { + financial holding company
or a + } bank holding company as defined in ORS 706.008 unless:
(a) The stock of the institution or Oregon stock savings bank
is held in a fiduciary capacity and not for the benefit of the
person or of the stockholders, employees or members of the
person; or
(b) The stock is acquired, not as a means of circumventing ORS
chapter 715, but by the person in the ordinary course of business
to secure or collect a debt previously contracted in good faith
and the person disposes of the stock within two years after the
acquisition of the stock. The director may extend the period if
an extension will not be detrimental to the public interest or in
contravention of any other law.
(4) The director shall approve or disapprove the transfer in
accordance with the standards provided by ORS 707.080 (1). The
director also may disapprove a transfer under subsection (2) of
this section if any of the reasons stated by ORS 707.145 apply to
the proposed new owner of the shares.
(5) Notwithstanding subsections (2) to (4) of this section, if
the person acquiring a controlling interest in an institution or
Oregon stock savings bank is or will through such acquisition
become a { + financial holding company or a + } bank holding
company, the provisions of ORS chapter 715 apply to the change in
controlling interest in lieu of the provisions of subsections (2)
to (4) of this section.
SECTION 47. ORS 708A.120 is amended to read:
708A.120. (1) An institution shall not invest any of its assets
in the capital stock of any other corporation, except:
(a) In the capital stock of the Federal Reserve Bank.
(b) In stock acquired or purchased to save a loss on a
preexisting debt. The stock shall be sold within two years of the
date acquired or purchased. The Director of the Department of
Consumer and Business Services may extend the time if the
director finds that an extension will not be detrimental to the
public interest and will not contravene any other law.
(c) In the capital stock of any safe deposit company doing an
exclusive safe deposit business on premises owned or leased by
the institution upon 30 days' advance notice to the director
subject to the same limitations applicable to a national bank.
(d) In the capital stock of agricultural and livestock finance
companies, subject to the same limitations applicable to national
banks and to the approval of the director.
(e) In the capital stock, eligible for purchase by national
banks, of small business investment companies, but the aggregate
investment in the stock shall not exceed two percent of the
capital of the institution.
(f) In the common stock of any federally chartered corporation
that is chartered for the purpose of providing secondary markets
for the sale of mortgages by institutions.
(g) In the stock of the Federal Home Loan Bank.
(h) In the capital stock of a corporation exclusively engaged
in a trust business or a banker's bank, subject to the same
limitations applicable to national banks.
(i) In the capital stock of bank service corporations as
provided in ORS 708A.130 to 708A.145.
(j) In the capital stock of a community development corporation
as provided in ORS 708A.150.
(k) If a trust company is not engaged in a banking business and
if the investment is first approved by the director, the trust
company may invest an amount not to exceed 20 percent of the
capital of the trust company:
(A) In the capital stock of a subsidiary investment company
defined in the Investment Company Act of 1940, as amended; or
(B) In a company one of the purposes of which is to act as a
federal covered investment adviser or a state investment adviser,
as defined in ORS 59.015, with all the powers customarily
exercised by a federal covered investment adviser or a state
investment adviser.
(L) In adjustable rate preferred stock of the Student Loan
Marketing Association established in 20 U.S.C. 1087-2, but the
aggregate investment in the stock shall not exceed 15 percent of
the capital of the institution.
(m) In the capital stock of a company acquired for the purpose
of strengthening the institution's capital structure or the
elimination of undesirable assets as provided in ORS 708A.125.
(n) In the capital stock of banks and corporations engaged in
international or foreign banking or foreign banking in a
dependency or insular possession of the United States, as
provided in ORS 708A.155.
(o) In the capital stock of a corporation created to establish
ATMs as provided in ORS 708A.160.
(2) An institution may invest its assets in shares of any
mutual fund, the assets of which are invested solely in
obligations of the type described in and limited under ORS
708A.115.
(3) An institution may, subject to the approval of the
director, acquire or continue to hold the fully paid stock of a
corporation, one of the purposes of which is to assist the
institution in handling real estate, claims, judgments or other
assets or in holding title to the assets.
(4) An institution may acquire or continue to hold the fully
paid stock of a corporation the purpose of which is to permit the
institution to engage in any business in which a { + financial
holding company, a + } bank holding company or a nonbank
subsidiary of a { + financial holding company or a + }bank
holding company is authorized to engage. This subsection does not
apply unless the institution is the owner of at least 80 percent
of the common stock of the subsidiary corporation, except
qualifying shares of directors.
(5) An institution may, subject to the approval of the director
and to rules promulgated by the director, acquire and continue to
hold at least 80 percent of the fully paid stock of a corporation
engaged in any business in which an institution is authorized to
engage. Except as otherwise permitted by statute or rule, the
investment limitations applicable to the institution apply to the
subsidiary.
(6) An institution may, subject to the approval of the director
and under rules promulgated by the director, acquire and continue
to hold all the fully paid stock of a subsidiary corporation
engaged in the business of purchasing the stock of the
institution for purposes of holding that stock and making a
market for that stock, if not more than 20 percent of the net
profit of the banking institution is disbursed to the subsidiary
in any one fiscal year. Except as otherwise permitted by statute
or rule, the investment limitations applicable to the institution
apply to the subsidiary. Acquisitions under this subsection shall
not exceed 15 percent of the capital of the institution.
(7) An institution may acquire and hold all or part of the
stock of a corporation that is or may thereafter be licensed
under ORS 744.002 as an agent to transact one or more of the
classes of insurance described in ORS 744.115, except for title
insurance, subject to the following requirements:
(a) The acquisition and holding of such stock shall be subject
to the approval of the director. The director shall base
consideration for approval on the condition of the institution,
the adequacy of a formal business plan for the insurance
activities, and the existence of satisfactory management for the
corporation.
(b) The director may revoke or restrict the ongoing authority
of the institution to hold stock in the corporation if the
condition of the institution substantially deteriorates or if the
insurance activities are adversely affecting the institution.
(c) If the corporation conducts the insurance agency activity
in a branch or office in which the institution carries on its
banking business, the insurance agency activity shall be
physically separated from those parts of the premises in which
the institution carries on the banking business.
(d) No person who acts on behalf of the corporation to transact
insurance, as that term is defined in ORS 731.146, shall while
employed by the corporation engage on behalf of the corporation
in any activities relating to the making of loans or to the
granting of other credits to the customers of the corporation,
including but not limited to serving as a loan officer or as a
member of a loan committee or other group charged with approval
of loans and other credits.
(e) The name of the corporation and any assumed business name
used by it shall not be identical to that of the institution.
(f) Prior to selling any policy of insurance, the corporation
shall give substantially the following notice in writing to the
purchaser in at least 10-point boldfaced type:
_________________________________________________________________
NOTICE
______ (Name of corporation licensed as an agent) is owned by
______ (Name of institution). You are not required to purchase
any insurance from it as a condition of obtaining any service
from or engaging in any transaction with the institution. Before
committing to purchase any policy of insurance, you should shop
for the coverage by carefully comparing information obtained from
two or more agents on prices, benefits, services, terms of
renewal and other policy features. You hereby acknowledge receipt
of a copy of this notice.
____NOTE_TO_GOPHER_CUSTOMERS:__________________________________
THE FOLLOWING TABULAR TEXT MAY BE IRREGULAR.
FOR COMPLETE INFORMATION PLEASE SEE THE PRINTED MEASURE.
_______________________________________________________________
________
____
Customer's signatureDate
____________________________________________________________
END OF POSSIBLE IRREGULAR TABULAR TEXT
____________________________________________________________
_________________________________________________________________
(g) For each calendar year during which an institution owns all
or part of any corporation licensed under ORS 744.002 as an
agent, the institution shall file a written report with the
director. The report shall be filed no later than March 31 of the
following year and shall disclose the insurance activities of the
corporation. The required contents of the report shall be
established by the director by rule. The reports filed with the
director under this paragraph shall be available for public
inspection in the office of the director.
(h) The corporation shall not in any manner use customer
information obtained by the institution from another insurance
agent to promote, develop or solicit insurance business for the
corporation unless the other insurance agent consents to such use
of the customer information.
(i) The corporation shall be subject to the limitations
applicable to lending institutions under ORS 746.180 and 746.185
to 746.211. For the purpose of this paragraph, the term 'lending
institution' has the meaning set forth in ORS 746.185.
(8) An institution may invest up to 15 percent of its capital
in the stock of the Oregon Capital Corporation authorized to be
created under ORS 284.750 to 284.795, 315.504, 317.084, 317.267
and 318.031.
SECTION 48. ORS 708A.200 is amended to read:
708A.200. Nothing in ORS 708A.005, 708A.010, 715.075, 716.594,
716.610, 744.066, 744.115, 746.195 and 746.211 shall be construed
to permit a banking institution, { + a financial holding
company, + } a bank holding company or any subsidiary of a
banking institution { + , financial holding company + } or bank
holding company to act as insurer, as defined in ORS 731.106.
SECTION 49. ORS 708A.565 is amended to read:
708A.565. Investments in stock of a company that engages in
activities in which a { + financial holding company, a + } bank
holding company or a non-banking subsidiary of a { + financial
holding company or + }bank holding company could engage under
ORS 708A.120 (4) shall be carried on the books of the institution
at a value not exceeding 15 percent of the stockholders' equity
of the institution.
SECTION 50. ORS 717.210 is amended to read:
717.210. (1) ORS 717.200 to 717.320, 717.900 and 717.905 do not
apply to:
(a) Any company that accepts deposits in this state and that is
insured under the Federal Deposit Insurance Act, 12 U.S.C. 1811
et seq., as amended.
(b) Credit unions or trust companies.
(c) The United States Government or any department, agency or
instrumentality thereof.
(d) The United States Postal Service.
(e) Any state or political subdivision of a state.
(f) The provision or electronic transfer of government benefits
for any federal, state or county government or other agency as
defined in the Federal Reserve Board Regulation E (12 C.F.R. part
205), by a contractor for and on behalf of the United States
Government or any department, agency or instrumentality of the
United States, or any state or any political subdivision of a
state.
(g) The provision or handling of electronic or other transfer
of escrowed moneys by an escrow agent licensed under ORS 696.511.
(h) Authorized delegates of a licensee, acting within the scope
of authority conferred by a written contract as described in ORS
717.270.
(i) Any bank holding company as defined in the federal Bank
Holding Company Act of 1956, 12 U.S.C. 1841 et seq., as
amended { + , or any financial holding company as defined in ORS
706.008 + }.
(j) Any savings and loan holding company as defined in 12
U.S.C. 1467a (a)(1)(D), as amended.
(2) The Director of the Department of Consumer and Business
Services by rule or order may modify or waive the application of
ORS 717.200 to 717.320, 717.900 and 717.905 to any person or
group of persons if the director determines that adequate
regulation of the person or group of persons is provided by law
or by another agency of this state.
(3) The director by rule or order may temporarily suspend the
application of ORS 717.200 to 717.320, 717.900 and 717.905 to any
person or group of persons while the director considers whether
an exemption should be granted and during the pendency of any
rulemaking proceeding proposing to create an exemption.
SECTION 51. ORS 744.061 is amended to read:
744.061. Nothing in the Insurance Code shall be construed to
limit or prohibit the licensing of a banking institution, as
defined in ORS 706.008, a corporation owned in whole or part by a
banking institution under ORS 708A.120, 716.588 or 716.594, or a
corporation owned in whole or part by a { + financial holding
company or a + } bank holding company, as defined in ORS 706.008,
as an agent to transact one or more of the classes of insurance
described in ORS 744.115, except for title insurance.
SECTION 52. ORS 746.182 is amended to read:
746.182. (1) Prior to selling any policy of insurance, other
than a policy for a class of insurance referred to in subsection
(2) of this section:
(a) Any agent that is an institution as defined in ORS 706.008,
shall give the purchaser the notice required under ORS 708A.005
(2)(e);
(b) Any agent that is a corporation, all or part of the stock
of which is held by an institution, shall give the purchaser the
notice required under ORS 708A.120 (7)(f);
(c) Any agent that is a corporation, all or part of the stock
of which is held by a { + financial holding company or a + }
bank holding company as defined in ORS 706.008, shall give the
purchaser the notice required under ORS 715.075 (6);
(d) Any agent that is a corporation, all or part of the stock
of which is held by a savings bank, as defined by ORS 706.008,
shall give the purchaser the notice required under ORS 716.594
(6); and
(e) Any agent that is a savings bank, as defined in ORS
706.008, shall give the purchaser the notice required under ORS
716.610 (10)(e).
(2) The requirement under subsection (1) of this section does
not apply to any policy for livestock insurance, mortgage
insurance, motor vehicle physical damage insurance, credit life
insurance, credit health insurance, credit involuntary
unemployment insurance, credit insurance or lender's property
insurance, as these classes of insurance are described in ORS
744.115.
SECTION 52a. ORS 746.185 is amended to read:
746.185. As used in ORS 746.185 to 746.211, 'lending
institution' means a financial institution { + , financial
holding company + } or bank holding company as those terms are
defined in ORS 706.008.
SECTION 53. ORS 803.092 is amended to read:
803.092. (1) Except as otherwise provided in this section, upon
the transfer of any interest in a vehicle covered by an Oregon
title the transferee shall submit an application for title to the
Department of Transportation. Such application shall be submitted
to the department within 30 days of the date of transfer of
interest.
(2) Notwithstanding subsection (1) of this section, application
is not required under this section when:
(a) The change involves only a change in the security interest
where the security interest holder or lessor is a financial
institution { + , a financial holding company + } or a bank
holding company, as those terms are defined in ORS 706.008, a
licensee under ORS chapter 725, or any subsidiary or affiliate of
any of the foregoing and the transfer of the interest of the
security interest holder or lessor:
(A) Results from the merger, conversion, reorganization,
consolidation or acquisition of the security interest holder or
lessor;
(B) Is to an entity that is a member of the same affiliated
group as the security holder or lessor; or
(C) Is made in connection with a transfer in bulk.
(b) The vehicle is transferred to a vehicle dealer and the
vehicle will become part of the dealer's inventory for resale.
Upon the transfer of a vehicle to a dealer, however, the dealer
shall immediately notify the department of such transfer. This
exemption from the requirement to apply for title does not apply
if the department determines that application for title is
necessary in order to comply with odometer disclosure
requirements. If the department determines that application for
title is not required, it may require filing of documents under
ORS 803.126.
(c) The vehicle is to be titled in another jurisdiction.
(d) The vehicle has been totaled, wrecked, dismantled,
disassembled, substantially altered or destroyed, in which case
the provisions of ORS 819.010, 819.012, 819.014 or 822.135
relating to notice and surrender of title documents shall be
complied with.
(e) The transfer involves the creation or termination of a
leasehold interest in a vehicle that is proportionally registered
under ORS 826.009 or 826.011, if the department is furnished with
satisfactory proof of the lease.
(3) Except as provided in subsection (2) of this section, the
transferee shall:
(a) Submit an application that meets requirements for title
under ORS 803.045 and 803.050 and any applicable rules of the
department.
(b) Submit the title transfer fees as required under ORS
803.090.
(c) Comply with the provisions of ORS 803.065 and any
applicable rules of the department under that statute and submit
the duplicate or replacement title fee as provided under ORS
803.090, if the transfer includes an application for duplicate or
replacement title and transfer of title.
(d) Submit an odometer disclosure containing information
required by the department for the kind of transaction involved.
(e) Submit any late presentation of certificate of title fee as
provided under ORS 803.090 if such fee is required under ORS
803.105.
(4) For purposes of this section:
(a) 'Affiliated group' has the meaning given to the term in
section 1504(a) of the Internal Revenue Code of 1986, as amended
(26 U.S.C. 1504(a)).
(b) A 'transfer in bulk' is:
(A) The sale or assignment of, the grant of a security interest
in, or any other transfer of either a group of loans secured by
vehicles, leases of vehicles or both or a participation or other
interest in the group of loans;
(B) The creation of asset-backed securities or other securing
of assets involving the loans or leases; or
(C) Any similar transaction involving the loans or leases.
SECTION 54. ORS 803.220 is amended to read:
803.220. (1) A person commits the offense of unlawful failure
to notify the Department of Transportation of a name and address
change if the person:
(a) Has any interest in a vehicle registered or titled by this
state that is shown on the title;
(b) Changes names, by marriage or otherwise, from that shown on
the title or changes the person's address from that shown on the
registration; and
(c) Does not comply with the requirements under this section.
(2) To comply with the requirements of this section, a person
must do all the following:
(a) The person must notify the department of the change.
Notice of a change of name or address must be given to the
department within 30 days of the change.
(b) If the person changes names, by marriage or otherwise, from
that shown on the title and a certificate of title is being held
by a security interest holder, the person must notify the
security interest holder within 30 days after the change who, in
turn, must notify the department in a timely manner.
(c) Any time the name is changed from that on the title, any
certificate of title that has been issued must be submitted to
the department with the notice and the appropriate fee under ORS
803.090.
(3) A person may obtain a new certificate of title reflecting a
change of name or address by making application therefor and
paying the appropriate fee under ORS 803.090.
(4) If title has been issued in a form other than a
certificate, a person requesting a change in name shall provide
authorization from the primary security interest holder, if any,
to have the title changed. If the authorization is not received,
the department shall continue to reflect the previous name on the
title. Nothing in this subsection precludes the department from
including the new name in records maintained in conjunction with
title whether or not authorization is received.
(5) Upon receipt of notice of a change and any authorization
required under this section, the department shall note the change
in its records. Upon receipt of the notice and the fee required
under ORS 803.090, the department shall issue a new certificate
of title indicating the change.
(6) This section does not apply to a change of name or address
of a security interest holder or lessor that is a financial
institution { + , a financial holding company + } or a bank
holding company, as those terms are defined in ORS 706.008, a
licensee under ORS chapter 725, or any subsidiary or affiliate of
any of the foregoing.
(7) The offense described in this section, unlawful failure to
notify the department of a name or address change, is a Class D
traffic violation.
SECTION 55. ORS 310.651 is amended to read:
310.651. For purposes of ORS 310.652:
(1) 'Evidence of debt' means all bonds, notes, demands, claims,
deposits or investments however evidenced and whether secured by
mortgage, deed of trust, judgment or otherwise or not so secured,
and includes but is not limited to:
(a) Personal and business notes receivable.
(b) Mortgage notes receivable.
(c) Commercial paper.
(d) Conditional sales contracts (written agreements whereby
title to the property remains with the seller until the goods are
paid for).
(e) Notes and other receivables, evidenced by written
agreement, due from affiliated companies.
(f) Participation certificates.
(g) Bonds and debentures of both domestic and foreign
corporations.
(h) Bonds and evidence of debt of other states and their
political subdivisions.
(i) Bonds, debentures and capital notes (not certificates of
deposit) issued by banks and other organizations in direct
competition with banks.
(j) Cashiers' checks, treasurers' checks, certified checks,
purchase drafts and similar instruments drawn for the benefit or
convenience of any party or parties other than banks.
(k) Investment contracts and accumulation plans issued by
investment syndicates, investment brokers and other similar
companies.
(L) Loans, advances, demands, claims and other receivables
which are evidenced by written agreement.
(2) 'Funds on deposit' means all funds accrued or accruing by
virtue of the death of the insured or the original maturity of a
policy contract where the party or parties entitled to receive
such funds might withdraw same at their option upon stipulated
notice.
(3) 'Money on deposit' means money, whether actually within or
without this state, having a business, commercial or taxable
situs in this state, without deduction for any indebtedness or
liabilities of the taxpayer, and includes but is not limited to:
(a) Amounts in checking and savings accounts.
(b) Certificates of deposit.
(c) Payroll and escrow accounts.
(d) Deposits as of any one or more of the four quarterly
valuation dates.
(e) Deposits of trustees, executors, administrators and other
fiduciaries.
(f) Social security and withholding tax accounts.
(g) Accommodation loan accounts.
(h) Deposits of savings and loan or building and loan
associations.
(i) Deposits of insurance companies.
(4) 'Money on hand' includes but is not limited to:
(a) Currency and bills of exchange.
(b) Money in cash registers.
(c) Petty cash.
(d) Deposits in transit.
(e) Money in safe deposit boxes.
(5) 'Shares of stock' includes but is not limited to:
(a) Capital stock, common stock and preferred stock of both
domestic and foreign corporations.
(b) Shares of stock held in brokerage accounts, including
shares purchased on margin.
(c) Unregistered stock, restricted stock, letter stock and
stocks owned in 'closed' corporations.
(d) Shares in mutual funds and investment trusts.
(e) Shares of stock in banks (including national banks).
(f) Shares of stock in holding companies, including
{ + financial holding companies, + } bank { + holding
companies + } and insurance holding companies.
(g) Stocks held by trustees or guardians which should be
reported under the names of the beneficiary.
(h) Stocks held by executors or administrators of estates which
should be reported in the name of the estate.
(i) Stocks owned by minor children which should be reported
under the minor's name, in care of the parent or guardian.
(j) Stocks owned by investment clubs which should be reported
in the name of the investment club.
(k) Stocks acquired by purchase, gift, inheritance or any other
means, even if the stock certificates have not been received and
are not in the taxpayer's possession as of the asset
determination date.
(L) Shares of stock owned by or registered to residents of this
state even though the stock certificates may be physically
located in another state.
SECTION 56. ORS 706.015 is amended to read:
706.015. References in the Bank Act to federal statutes and
regulations shall, except as otherwise provided in the Bank Act,
be construed to refer to the statutes or regulations as they are
in effect on { - October 23, 1999 - } { + January 1,
2002 + }. The Director of the Department of Consumer and Business
Services may adopt rules providing that one or more of the
federal statutes and regulations shall be construed to refer to
the statutes and regulations as they are in effect on a later
date.
SECTION 57. ORS 731.450 is amended to read:
731.450. { + Except as authorized by the federal
Gramm-Leach-Bliley Act (P.L. 106-102), + } { - no - }
{ + an + } insurer { - shall - } { + may not + } engage in
any business except the making of insurance or a kind of business
related to the insurance business. However, a foreign or alien
insurer may engage, outside this state, in any business permitted
by its articles of incorporation and the laws of the state of its
domicile; and a title insurer also may engage in business as an
escrow agent; provided, however, that a title insurer engaging in
business as an escrow agent shall be subject to the provisions of
ORS 696.505 to 696.590 in respect to its escrow activities.
SECTION 58. ORS 707.262 is amended to read:
707.262. { + (1) + } Subject to any provisions set forth in
its articles of incorporation and subject to preemptive rights,
if any, of existing shareholders, an institution or Oregon stock
savings bank may create and issue, whether or not in connection
with the issuance and sale of any of its shares or other
securities, rights or options entitling the holders thereof to
purchase from the institution or Oregon stock savings bank shares
of any class or classes. Such rights or options shall be
evidenced in such manner as the board of directors shall approve
and, subject to the provisions of the articles of incorporation,
shall set forth the terms upon which, the time or times within
which and the price or prices at which such shares may be
purchased from the institution or Oregon stock savings bank on
the exercise of any such right or option.
{ + (2) + } { - No such - } { + The + } rights or options
{ - shall - } { + described in subsection (1) of this section
may not + } be issued to a director, officer or employee of the
institution or Oregon stock savings bank or of any subsidiary
thereof unless the issuance { + :
(a) Is to all shareholders of the institution, Oregon stock
savings bank or subsidiary thereof;
(b) + } Is approved at the annual meeting or a special meeting
by the holders of at least two-thirds of the outstanding shares
entitled to vote thereon { - , or unless such issuance - }
{ + ; or
(c) + } Is pursuant to a plan previously so approved.
{ + (3) + } In the absence of fraud in the transaction, the
judgment of the board of directors as to the adequacy of the
consideration received for { - such - } { + the + } rights or
options { + described in subsection (1) of this section + }
shall be conclusive.
SECTION 59. { + ORS 731.740 is repealed. + }
SECTION 60. { + Sections 61 and 62 of this 2001 Act are added
to and made a part of ORS chapter 656. + }
SECTION 61. { + Insurers and their assigned claims agents
shall maintain the confidentiality of worker medical and
vocational claim records. Worker medical and vocational claim
records may not be disclosed to persons other than the worker
unless the disclosure is:
(1) Made with the consent of the worker or the worker's
beneficiary;
(2) Reasonably necessary for the insurer or its assigned claims
agent to manage, defend or adjust claims, suits or actions or to
perform any other function required by or arising out of ORS
chapter 654, 655 or 656 or the insurance contract;
(3) To detect or prevent criminal activity, fraud, material
misrepresentation or nondisclosure;
(4) Pursuant to a written agreement that requires the receiving
party to maintain the confidentiality of the records; or
(5) Otherwise required or permitted by law. + }
SECTION 62. { + (1) A cause of action in the nature of
defamation, invasion of privacy or negligence may not arise
against:
(a) Any insurer or assigned claims agent for disclosing worker
medical and vocational claim records in accordance with section
61 of this 2001 Act; or
(b) Any person for furnishing worker medical and vocational
claim records to an insurer or assigned claims agent in
accordance with section 61 of this 2001 Act.
(2) Subsection (1) of this section does not apply to the
disclosure or furnishing of false information with malice or
willful intent to injure any person. + }
SECTION 63. ORS 656.268 is amended to read:
656.268. (1) One purpose of this chapter is to restore the
injured worker as soon as possible and as near as possible to a
condition of self support and maintenance as an able-bodied
worker. The insurer or self-insured employer shall close the
worker's claim, as prescribed by the Director of the Department
of Consumer and Business Services, and determine the extent of
the worker's permanent disability, provided the worker is not
enrolled and actively engaged in training according to rules
adopted by the director pursuant to ORS 656.340 and 656.726,
when:
(a) The worker has become medically stationary and there is
sufficient information to determine permanent impairment;
(b) The accepted injury is no longer the major contributing
cause of the worker's combined or consequential condition or
conditions pursuant to ORS 656.005 (7). When the claim is closed
because the accepted injury is no longer the major contributing
cause of the worker's combined or consequential condition or
conditions, and there is sufficient information to determine
permanent impairment, the likely impairment and adaptability that
would have been due to the current accepted condition shall be
estimated; or
(c) Without the approval of the attending physician, the worker
fails to seek medical treatment for a period of 30 days or the
worker fails to attend a closing examination, unless the worker
affirmatively establishes that such failure is attributable to
reasons beyond the worker's control.
(2) If the worker is enrolled and actively engaged in training
according to rules adopted pursuant to ORS 656.340 and 656.726,
the temporary disability compensation shall be proportionately
reduced by any sums earned during the training.
(3) A copy of all medical reports and reports of vocational
rehabilitation agencies or counselors shall be furnished to the
worker { - and to the employer - } , if requested by the worker
{ - or employer - } .
(4) Temporary total disability benefits shall continue until
whichever of the following events first occurs:
(a) The worker returns to regular or modified employment;
(b) The attending physician advises the worker and documents in
writing that the worker is released to return to regular
employment;
(c) The attending physician advises the worker and documents in
writing that the worker is released to return to modified
employment, such employment is offered in writing to the worker
and the worker fails to begin such employment; or
(d) Any other event that causes temporary disability benefits
to be lawfully suspended, withheld or terminated under ORS
656.262 (4) or other provisions of this chapter.
(5)(a) Findings by the insurer or self-insured employer
regarding the extent of the worker's disability in closure of the
claim shall be pursuant to the standards prescribed by the
Director of the Department of Consumer and Business Services. The
insurer or self-insured employer shall issue a notice of closure
of such a claim to the worker, to the worker's attorney if the
worker is represented, and to the director. The notice must
inform:
(A) The parties, in boldfaced type, of the proper manner in
which to proceed if they are dissatisfied with the terms of the
notice;
(B) The worker of the amount of any further compensation,
including permanent disability compensation to be awarded; of the
duration of temporary total or temporary partial disability
compensation; of the right of the worker to request
reconsideration by the director under this section within 60 days
of the date of the notice of claim closure; of the aggravation
rights; and of such other information as the director may
require; and
(C) Any beneficiaries of death benefits to which they may be
entitled pursuant to ORS 656.204 and 656.208.
(b) If the worker has returned to work but the insurer or
self-insured employer has not issued a notice of closure, the
worker may request closure. Within 10 days of receipt of a
written request from the worker, the insurer or self-insured
employer shall issue a notice of closure if the requirements of
this section have been met or a notice of refusal to close if the
requirements of this section have not been met. A notice of
refusal to close shall advise the worker of the decision not to
close; of the right of the worker to request a hearing pursuant
to ORS 656.283 within 60 days of the date of the notice of
refusal to close the claim; of the right to be represented by an
attorney; and of such other information as the director may
require.
(c) If a worker objects to the notice of closure, the worker
first must request reconsideration by the director under this
section. The request for reconsideration must be made within 60
days of the date of the notice of closure.
(d) If an insurer or self-insured employer has closed a claim
or refused to close a claim pursuant to this section, if the
correctness of that notice of closure or refusal to close is at
issue in a hearing on the claim and if a finding is made at the
hearing that the notice of closure or refusal to close was not
reasonable, a penalty shall be assessed against the insurer or
self-insured employer and paid to the worker in an amount equal
to 25 percent of all compensation determined to be then due the
claimant.
(e) If, upon reconsideration of a claim closed by an insurer or
self-insured employer, the director orders an increase by 25
percent or more of the amount of compensation to be paid to the
worker for either a scheduled or unscheduled permanent disability
and the worker is found upon reconsideration to be at least 20
percent permanently disabled, a penalty shall be assessed against
the insurer or self-insured employer and paid to the worker in an
amount equal to 25 percent of all compensation determined to be
then due the claimant. If the increase in compensation results
from new information obtained through a medical arbiter
examination or from the adoption of a temporary emergency rule,
the penalty shall not be assessed.
(6)(a) Notwithstanding any other provision of law, only one
reconsideration proceeding may be held on each notice of closure.
At the reconsideration proceeding, the worker or the insurer or
self-insured employer may correct information in the record that
is erroneous and may submit any medical evidence that should have
been but was not submitted by the attending physician at the time
of claim closure. If the director determines that a claim was not
closed in accordance with subsection (1) of this section, the
director may rescind the closure.
(b) If necessary, the director may require additional medical
or other information with respect to the claims and may postpone
the reconsideration for not more than 60 additional calendar
days.
(c) In any reconsideration proceeding under this section in
which the worker was represented by an attorney, the director
shall order the insurer or self-insured employer to pay to the
attorney, out of the additional compensation awarded, an amount
equal to 10 percent of any additional compensation awarded to the
worker.
(d) The reconsideration proceeding shall be completed within 18
working days from the date the reconsideration proceeding begins,
and shall be performed by a special evaluation appellate unit
within the department. The deadline of 18 working days may be
postponed by an additional 60 calendar days if within the 18
working days the department mails notice of review by a medical
arbiter. If an order on reconsideration has not been mailed on or
before 18 working days from the date the reconsideration
proceeding begins, or within 18 working days plus the additional
60 calendar days where a notice for medical arbiter review was
timely mailed or the director postponed the reconsideration
pursuant to paragraph (b) of this subsection, or within such
additional time as provided in subsection (7) of this section
when reconsideration is postponed further because the worker has
failed to cooperate in the medical arbiter examination,
reconsideration shall be deemed denied and any further
proceedings shall occur as though an order on reconsideration
affirming the notice of closure was mailed on the date the order
was due to issue.
(e) The period for completing the reconsideration proceeding
described in paragraph (d) of this subsection begins upon receipt
by the director of a worker's request for reconsideration
pursuant to subsection (5)(c) of this section. The insurer may
fully participate in the reconsideration proceeding.
(f) Any medical arbiter report may be received as evidence at a
hearing even if the report is not prepared in time for use in the
reconsideration proceeding.
(g) If any party objects to the reconsideration order, the
party may request a hearing under ORS 656.283 within 30 days from
the date of the reconsideration order.
(7)(a) If the basis for objection to a notice of closure issued
under this section is disagreement with the impairment used in
rating of the worker's disability, the director shall refer the
claim to a medical arbiter appointed by the director.
(b) If neither party requests a medical arbiter and the
director determines that insufficient medical information is
available to determine disability, the director may refer the
claim to a medical arbiter appointed by the director.
(c) At the request of either of the parties, a panel of three
medical arbiters shall be appointed.
(d) The arbiter, or panel of medical arbiters, shall be chosen
from among a list of physicians qualified to be attending
physicians referred to in ORS 656.005 (12)(b)(A) who were
selected by the director in consultation with the Board of
Medical Examiners for the State of Oregon and the committee
referred to in ORS 656.790.
(e)(A) The medical arbiter or panel of medical arbiters may
examine the worker and perform such tests as may be reasonable
and necessary to establish the worker's impairment.
(B) If the director determines that the worker failed to attend
the examination without good cause or failed to cooperate with
the medical arbiter, or panel of medical arbiters, the director
shall postpone the reconsideration proceedings for up to 60 days
from the date of the determination that the worker failed to
attend or cooperate, and shall suspend all disability benefits
resulting from this or any prior opening of the claim until such
time as the worker attends and cooperates with the examination or
the request for reconsideration is withdrawn. Any additional
evidence regarding good cause must be submitted prior to the
conclusion of the 60-day postponement period.
(C) At the conclusion of the 60-day postponement period, if the
worker has not attended and cooperated with a medical arbiter
examination or established good cause, there shall be no further
opportunity for the worker to attend a medical arbiter
examination for this claim closure. The reconsideration record
shall be closed, and the director shall issue an order on
reconsideration based upon the existing record.
(D) All disability benefits suspended pursuant to this
subsection, including all disability benefits awarded in the
order on reconsideration, or by an Administrative Law Judge, the
Workers' Compensation Board or upon court review, shall not be
due and payable to the worker.
(f) The costs of examination and review by the medical arbiter
or panel of medical arbiters shall be paid by the insurer or
self-insured employer.
(g) The findings of the medical arbiter or panel of medical
arbiters shall be submitted to the director for reconsideration
of the notice of closure.
(h) After reconsideration, no subsequent medical evidence of
the worker's impairment is admissible before the director, the
Workers' Compensation Board or the courts for purposes of making
findings of impairment on the claim closure.
(i)(A) When the basis for objection to a notice of closure
issued under this section is a disagreement with the impairment
used in rating the worker's disability, and the director
determines that the closure was not made pursuant to this
section, the director is not required to appoint a medical
arbiter prior to the completion of the reconsideration
proceeding.
(B) If the worker's condition has substantially changed since
the notice of closure, upon the consent of all the parties to the
claim, the director shall postpone the proceeding until the
worker's condition is appropriate for claim closure under
subsection (1) of this section.
(8) No hearing shall be held on any issue that was not raised
and preserved before the director at reconsideration. However,
issues arising out of the reconsideration order may be addressed
and resolved at hearing.
(9) If, after the notice of closure issued pursuant to this
section, the worker becomes enrolled and actively engaged in
training according to rules adopted pursuant to ORS 656.340 and
656.726, any permanent disability payments due under the closure
shall be suspended, and the worker shall receive temporary
disability compensation while the worker is enrolled and actively
engaged in the training. When the worker ceases to be enrolled
and actively engaged in the training, the insurer or self-insured
employer shall again close the claim pursuant to this section if
the worker is medically stationary or if the worker's accepted
injury is no longer the major contributing cause of the worker's
combined or consequential condition or conditions pursuant to ORS
656.005 (7). The closure shall include the duration of temporary
total or temporary partial disability compensation. Permanent
disability compensation shall be redetermined for unscheduled
disability only. If the worker has returned to work or the
worker's attending physician has released the worker to return to
regular or modified employment, the insurer or self-insured
employer shall again close the claim. This notice of closure may
be appealed only in the same manner as are other notices of
closure under this section.
(10) If the attending physician has approved the worker's
return to work and there is a labor dispute in progress at the
place of employment, the worker may refuse to return to that
employment without loss of reemployment rights or any vocational
assistance provided by this chapter.
(11) Any notice of closure made under this section may include
necessary adjustments in compensation paid or payable prior to
the notice of closure, including disallowance of permanent
disability payments prematurely made, crediting temporary
disability payments against current or future permanent or
temporary disability awards or payments and requiring the payment
of temporary disability payments which were payable but not paid.
(12) An insurer or self-insured employer may take a credit or
offset of previously paid workers' compensation benefits or
payments against any further workers' compensation benefits or
payments due a worker from that insurer or self-insured employer
when the worker admits to having obtained the previously paid
benefits or payments through fraud, or a civil judgment or
criminal conviction is entered against the worker for having
obtained the previously paid benefits through fraud. Benefits or
payments obtained through fraud by a worker shall not be included
in any data used for ratemaking or individual employer rating or
dividend calculations by a guaranty contract insurer, a rating
organization licensed pursuant to ORS chapter 737, the State
Accident Insurance Fund Corporation or the director.
(13)(a) An insurer or self-insured employer may offset any
compensation payable to the worker to recover an overpayment from
a claim with the same insurer or self-insured employer. When
overpayments are recovered from temporary disability or permanent
total disability benefits, the amount recovered from each payment
shall not exceed 25 percent of the payment, without prior
authorization from the worker.
(b) An insurer or self-insured employer may suspend and offset
any compensation payable to the beneficiary of the worker, and
recover an overpayment of permanent total disability benefits
caused by the failure of the worker's beneficiaries to notify the
insurer or self-insured employer about the death of the worker.
(14) Conditions that are direct medical sequelae to the
original accepted condition shall be included in rating permanent
disability of the claim unless they have been specifically
denied.
SECTION 64. { + This 2001 Act being necessary for the
immediate preservation of the public peace, health and safety, an
emergency is declared to exist, and this 2001 Act takes effect on
its passage. + }
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