Or. Admin. Code § 836-080-0506

Current through Register Vol. 63, No. 11, November 1, 2024

Section 836-080-0506 - Definitions and Examples

The following definitions and examples of definitions apply to the following terms as they are defined or used in ORS 746.600 and used in 746.620, 746.630 and 746.665 or as they are defined or used in OAR 836-080-0501 to 836-080-0551:

(1) "Clear and conspicuous" means that a notice under ORS 746.620 or a disclosure authorization form under 746.630 is reasonably understandable and designed to call attention to the nature and significance of the information in the notice or disclosure authorization form. The following are applicable examples:

(a) Examples of "reasonably understandable." A licensee makes its notice or disclosure authorization form reasonably understandable if it:

(A) Presents the information in the notice or disclosure authorization form in clear, concise sentences, paragraphs and sections;

(B) Uses short explanatory sentences or bullet lists whenever possible;

(C) Uses definite, concrete, everyday words and active voice whenever possible;

(D) Avoids multiple negatives;

(E) Avoids legal and highly technical business terminology whenever possible; and

(F) Avoids explanations that are imprecise and readily subject to different interpretations.

(b) Designed to call attention. A licensee designs its notice or disclosure authorization form to call attention to the nature and significance of the information in it if the licensee:

(A) Uses a plain-language heading to call attention to the notice or disclosure authorization form;

(B) Uses a typeface and type size that are easy to read;

(C) Provides wide margins and ample line spacing;

(D) Uses boldface or italics for key words; and

(E) Uses distinctive type size, style and graphic devices, such as shading or sidebars, when a form combines the licensee's notice or disclosure authorization form with other information.

(c) Notices on web sites. If a licensee provides a notice on a web page, the licensee designs its notice to call attention to the nature and significance of the information in it if the licensee uses text or visual cues to encourage scrolling down the page if necessary to view the entire notice and ensures that other elements on the web site, such as text, graphics, hyperlinks or sound, do not distract attention from the notice, and the licensee either:

(A) Places the notice on a screen that consumers frequently access, such as a page on which transactions are conducted; or

(B) Places a link on a screen that consumers frequently access, such as a page on which transactions are conducted, that connects directly to the notice and is labeled appropriately to convey the importance, nature and relevance of the notice.

(2) "Collect" means to obtain information that the licensee organizes or can retrieve by the name of an individual or by identifying number, symbol or other identifying particular assigned to the individual, irrespective of the source of the underlying information.

(3) The following examples apply to the term "consumer" as it is defined in the definition of "individual" in ORS 746.600 and as it is used in 746.620, 746.630 and 746.665:

(a) An individual who provides personal information to a licensee in connection with obtaining or seeking to obtain financial, investment or economic advisory services relating to an insurance product or service is a consumer regardless of whether the licensee establishes an ongoing advisory relationship.

(b) An applicant for insurance prior to the inception of insurance coverage is a licensee's consumer.

(c) An individual who is a consumer of another financial institution is not a licensee's consumer solely because the licensee is acting as agent for, or provides processing or other services to, that financial institution.

(d) An individual is a licensee's consumer if the licensee discloses personal information about the individual to a nonaffiliated third party other than as permitted under ORS 746.665(1)(a) to (j) or (m) to (q), and:

(A) The individual is a beneficiary of a life insurance policy underwritten by the licensee;

(B) The individual is a claimant under an insurance policy issued by the licensee;

(C) The individual is an insured or an annuitant under an insurance policy or an annuity, respectively, issued by the licensee; or

(D) The individual is a mortgagor of a mortgage covered under a mortgage insurance policy.

(e) If the licensee provides the initial, annual and revised notices under ORS 746.620 to the plan sponsor, group or blanket insurance policyholder or group annuity contract holder, and if the licensee does not disclose personal information about such an individual to a nonaffiliated third party other than as permitted under 746.665(1)(a) to (j) and (m) to (q), an individual is not the consumer of the licensee solely because the individual is:

(A) A participant or a beneficiary of an employee benefit plan that the licensee administers or sponsors or for which the licensee acts as a trustee, insurer or fiduciary; or

(B) Covered under a group or blanket insurance policy or group annuity contract issued by the licensee.

(f) Individuals described in paragraphs (A) and (B) of subsection (e) of this section are consumers of a licensee if the licensee does not meet all of the conditions of subsection (e) of this section. The individuals are not customers for purposes of ORS 746.600, 746.620, 746.630 or 746.665 solely because of their status described in paragraphs (A) and (B) of subsection (e) of this section.

(4) The following examples that indicate whether a continuing relationship exists apply to the term "customer" as it is defined in the definition of "individual" in ORS 746.600:

(a) A consumer has a continuing relationship with a licensee if:

(A) The consumer is a current policyholder of an insurance product issued by or through the licensee; or

(B) The consumer obtains financial, investment or economic advisory services relating to an insurance product or service from the licensee for a fee.

(b) A consumer does not have a continuing relationship with a licensee if:

(A) The consumer applies for insurance but does not purchase the insurance;

(B) The licensee sells the consumer airline travel insurance in an isolated transaction;

(C) The individual is no longer a current policyholder of an insurance product or no longer obtains insurance services with or through the licensee;

(D) The consumer is a beneficiary or claimant under a policy and has submitted a claim under a policy choosing a settlement option involving an ongoing relationship with the licensee.

(E) The consumer is a beneficiary or a claimant under a policy and has submitted a claim under that policy choosing a lump sum settlement option;

(F) The customer's policy is lapsed, expired or otherwise inactive or dormant under the licensee's business practices, and the licensee has not communicated with the customer about the relationship for a period of 12 consecutive months, other than for annual privacy notices, material required by law or rule, communication at the direction of a state or federal authority, or promotional materials.

(G) The individual is an insured or an annuitant under an insurance policy or annuity, respectively, but is not the policyholder or owner of the insurance policy or annuity; or

(H) For the purposes of this rule, the individual's last known address according to the licensee's records is deemed invalid. An address of record is deemed invalid if mail sent to that address by the licensee has been returned by the postal authorities as undeliverable and if subsequent attempts by the licensee to obtain a current valid address for the individual have been unsuccessful.

(5) "Financial institution" means any institution the business of which is engaging in activities that are financial in nature or incidental to such financial activities as described in section 4(k) of the Bank Holding Company Act of 1956 (12 USC 1843(k)). "Financial institution" does not include:

(a) Any person or entity with respect to any financial activity that is subject to the jurisdiction of the Commodity Futures Trading Commission under the Commodity Exchange Act (7 USC 1 et seq.).

(b) The Federal Agricultural Mortgage Corporation or any entity charged and operating under the Farm Credit Act of 1971 (12 USC 2001 et seq.); or

(c) Institutions chartered by Congress specifically to engage in securitizations, secondary market sales, including sales of servicing rights or similar transactions related to a transaction of a consumer, as long as the institutions do not sell or transfer nonpublic personal information to a nonaffiliated third party.

(6) "Financial product or service" means any product or service that a financial holding company could offer by engaging in an activity that is financial in nature or incidental to such a financial activity under Section 4(k) of the Bank Holding Company Act of 1956 (12 USC 1843(k)). The term includes a financial institution's evaluation or brokerage of information that the financial institution collects in connection with a request or an application from a consumer for a financial product or service.

(7) The term "licensee" as defined in ORS 746.600 also includes an unauthorized insurer that accepts business placed through a licensed surplus lines agent in this state, but only with regard to the surplus lines placements placed pursuant to 735.400 to 735.495.

(8) The term "nonaffiliated third party" as defined in ORS 746.600 also includes any company that is an affiliate solely because of the direct or indirect ownership or control of the company by the licensee or its affiliate in conducting merchant banking or investment banking activities of the type described in section 4(k)(4)(H) or insurance company investment activities of the type described in section 4(k)(4)(I) of the federal Bank Holding Company Act (12 USC 1843(k)(4)(H) and (I)).

(9) "Personal financial information" is the category of personal information that does not include medical record information but includes any of the following information:

(a) Information that a consumer provides to a licensee to obtain an insurance product or service from the licensee.

(b) Information about a consumer resulting from a transaction involving an insurance product or service between a licensee and a consumer.

(c) Information that the licensee otherwise obtains about a consumer in connection with providing an insurance product or service to the consumer.

(d) Any list, description or other grouping of consumers, and publicly available information pertaining to those consumers, that is derived using any personal financial information that is not publicly available.

(10) The definition of "personal information" in ORS 746.600 provides that "'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." For purposes of this exemption:

(a) A licensee has a reasonable basis to believe the information is lawfully made available to the general public if the licensee has taken steps to determine:

(A) That the information is of the type that is available to the general public; and

(B) Whether an individual can direct that the information not be made available to the general public and, if so, that the licensee's consumer has not done so.

(b) The following are examples:

(A) Government records. Information in government records that is not "personal information" includes information in government real estate records and security interest filings.

(B) Widely distributed media. Information from widely distributed media that is not "personal information" includes information from a telephone book, a television or radio program, a newspaper or a web site that is available to the general public on an unrestricted basis. A web site is not restricted merely because an Internet service provider or a site operator requires a fee or a password, so long as access is available to the general public.

(C) Reasonable basis examples:

(i) A licensee has a reasonable basis to believe that mortgage information is lawfully made available to the general public if the licensee has determined that the information is of the type included on the public record in the jurisdiction where the mortgage would be recorded.

(ii) A licensee has a reasonable basis to believe that an individual's telephone number is lawfully made available to the general public if the licensee has located the telephone number in the telephone book or the consumer has informed the licensee that the telephone number is not unlisted.

Or. Admin. Code § 836-080-0506

ID 8-2002, f. & cert. ef. 2-15-02

Stat. Auth.: ORS 731.244, ORS 746.600 & ORS 746.620

Stats. Implemented: ORS 746.600, ORS 746.620, ORS 746.630 & ORS 746.665