Current through Register Vol. 63, No. 9, September 1, 2024
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.
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
