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Oregon Bulletin

February 1, 2011

 

Department of Consumer and Business Services,
Division of Finance and Corporate Securities
Chapter 441

Rule Caption: Permanently implements the registration requirements for appraisal management companies doing business in Oregon.

Adm. Order No.: FCS 13-2010

Filed with Sec. of State: 12-30-2010

Certified to be Effective: 1-1-11

Notice Publication Date: 11-1-2010

Rules Adopted: 441-674-0005, 441-674-0100, 441-674-0120, 441-674-0130, 441-674-0140, 441-674-0210, 441-674-0220, 441-674-0230, 441-674-0240, 441-674-0250, 441-674-0310, 441-674-0910, 441-674-0915, 441-674-0920

Rules Repealed: 441-674-0005(T), 441-674-0100(T), 441-674-0120(T), 441-674-0130(T), 441-674-0140(T), 441-674-0210(T), 441-674-0220(T), 441-674-0230(T), 441-674-0240(T), 441-674-0250(T), 441-674-0310(T), 441-674-0910(T), 441-674-0915(T), 441-674-0920(T)

Subject: These proposed permanent rules implement the registration requirements of 2010 House Bill 3624, which regulates the activities of appraisal management companies. HB 3624, passed and signed into law on March 23, 2010, requires appraisal management companies doing business in Oregon to register with the Department of Consumer and Business Services (DCBS) by January 1, 2011. These permanent rules clarify registration requirements, establish criteria for verifying the competency of appraisers, adopt standards for dispute resolution processes that allow persons with an interest in a real estate transaction to dispute an appraisal, and set fees. These permanent rules also repeal temporary rules adopted temporary rules on September 1, 2010 in order to meet the time constraints of the law as well as to give appraisal management companies time to comply with the act prior to January 1, 2011.

Rules Coordinator: Shelley Greiner—(503) 947-7484

441-674-0005

Definitions

In addition to the definitions in 2010 Or Laws ch 87, § 1, the following definitions apply unless the context clearly requires otherwise:

(1) “Appraisal report” has the same meaning as the term is defined in OAR 161-002-0000.

(2) “Assignment” means:

(a) An agreement between an appraiser and a client to perform a valuation service; and

(b) The valuation service that is provided as a consequence of such an agreement.

(3) “Board” means the Appraiser Certification and Licensure Board established under ORS 674.305.

(4) “Competency” or “competent” refers to the Competency Rule as contained in the Uniform Standards of Professional Appraisal Practice, 2010-2011 Edition, approved and adopted by the Appraisal Standards Board of the Appraisal Foundation, dated April 27, 1987, as amended on January 1, 2010 and adopted by the board by reference under OAR 161-025-0060.

(5) “Director” means the Director of the Department of Consumer and Business Services.

(6) “Individual” means a natural person.

(7)(a) A “person with an interest in a real estate transaction” includes, but is not limited to, a mortgage lender, mortgage broker, mortgage banker, real estate broker, appraisal management company, employee of an appraisal management company, or a consumer.

(b) A “person with an interest in a real estate transaction” does not include an appraiser.

(8) “Quality control examination” means the examination of an appraisal report for compliance and completeness, including examination for grammatical or typographical errors.

(9) “Real property” has the same meaning as the term is defined in OAR 161-002-0020(3).

(10)(a) “Reviews real estate appraisal activity” means, for purposes of section 2, chapter 87, 2010 Or Laws, the act or process of developing or communicating an opinion about the quality of another appraiser’s work that was performed as part of an appraisal, appraisal review, or appraisal consulting assignment.

(b) “Reviews real estate appraisal activity” does not include a quality control examination.

(11) “System” means an organized or established procedure or method.

Stat. Auth.: 2010 OL Ch. 87, § 1

Stat. Implemented: 2010 OL Ch. 87, § 1-2 & 7

Hist.: FCS 10-2010(Temp), f. & cert. ef. 9-1-10 thru 12-31-10; FCS 13-2010, f. 12-30-10, cert. ef. 1-1-11

441-674-0100

Registration Requirements

(1) A business entity applying for registration as an appraisal management company shall submit to the director all of the following information:

(a) A completed application form listing the information required by 2010 Or Laws ch 87, § 2;

(b) The names, contact information, and percentage of ownership of every person considered a subject individual under OAR 441-674-0210;

(c) For the persons named in subsection (b) of this section, the numbers of the licenses, certificates or registrations issued by any state to do business as an appraiser or an appraisal management company;

(d) Disclosures of any administrative action taken by any state to refuse, deny, cancel or revoke a license, certificate or registration as an appraiser or as an appraisal management company, if any; and

(e) If the business entity reviews real estate appraisal activity, the review appraiser’s name and license or certification number issued by the board, as appropriate.

(2) A business entity applying for registration as an appraisal management company shall attach to the application for registration as an appraisal management company the following:

(a) Applicable fees established in OAR 441-674-0910;

(b) A copy of the surety bond required by 2010 Or Laws ch 87, § 3 in a form and format approved by the director;

(c)(A) A signed statement on a form approved by the director that the business entity established a system to verify the competency of appraisers on the business entity’s panel meeting the minimum requirements in OAR 441-674-0120; and

(B) A short description of the business entity’s system to verify competency meeting the minimum requirements established in OAR 441-674-0120;

(d)(A) A signed statement on a form approved by the director that the business entity established a dispute resolution process meeting the minimum requirements established in OAR 441-674-0130; and

(B) A copy of the clause in the business entity’s contract with an independent contractor appraiser governing the business entity’s dispute resolution process under OAR 441-674-0130;

(e) A signed statement on a form approved by the director that the business entity maintains and retains a detailed record of each appraisal management services request the entity receives and the appraiser who performs the real estate appraisal activity contained in the request for:

(A) Not less than five years after the date of completion of the appraisal to which the record pertains; or

(B) For a period of not less than two years after final disposition of a judicial proceeding in which testimony relating to the records was given, whichever period expires later; and

(f) Sealed envelopes containing fingerprint cards for a “subject individual” under OAR 441-674-0210 containing information specified in OAR 441-674-0230.

Stat. Auth.: 2010 OL Ch. 87, § 2

Stat. Implemented: 2010 OL Ch. 87, § 2

Hist.: FCS 10-2010(Temp), f. & cert. ef. 9-1-10 thru 12-31-10; FCS 13-2010, f. 12-30-10, cert. ef. 1-1-11

441-674-0120

System to Verify Competency

(1) A system to verify the competency of an appraiser under 2010 Or Laws ch 87, § 2 shall meet the following minimum requirements:

(a) An appraisal management company shall require that each independent contractor appraiser furnish the number of the appraiser’s license or certification issued by the board.

(b) An appraisal management company shall require each independent contractor appraiser represent in writing the appraiser’s qualifications and competency, which may include but not be limited to:

(A) The metropolitan statistical areas, metropolitan divisions, areas outside of a metropolitan statistical area, counties, postal codes or other geographic information signifying where the appraiser represents she or he is competent to appraise;

(B) The types or real property the appraiser represents she or he is competent to appraise; and

(C) Other information relevant to the business activities of the business entity and necessary to demonstrate the competency of an appraiser.

(c) An appraisal management company shall include the following information in an assignment to an independent contractor appraiser, to the extent the information has been communicated to the appraisal management company by the appraisal management company’s client:

(A) The geographic location of the real property, which may include the metropolitan statistical area, metropolitan division, area outside of an metropolitan statistical area, county, postal code, legal description or other geographic information identifying where the real property is situated; and

(B) The type of real property the assignment covers.

(2) An assignment meeting the minimum requirements under section (1) of this rule does not relieve an appraiser from meeting any legal obligations related to the appraiser’s license or certification under ORS Chapter 674 and OAR chapter 161.

(3) The board retains jurisdiction over administrative inquiries and actions involving misrepresentations made by an individual appraiser regarding competency.

Stat. Auth.: 2010 OL Ch. 87, § 2

Stat. Implemented: 2010 OL Ch. 87, § 2

Hist.: FCS 10-2010(Temp), f. & cert. ef. 9-1-10 thru 12-31-10; FCS 13-2010, f. 12-30-10, cert. ef. 1-1-11

441-674-0130

Dispute Resolution Process

(1) An appraisal management company shall establish a process that at a minimum allows a person with an interest in a real estate transaction to:

(a) Request the appraiser consider additional, appropriate property information, including the consideration of additional comparable properties to make or support an appraisal;

(b) Request the appraiser provide further detail, substantiation, or explanation for the appraiser’s value conclusion; or

(c) Request the appraiser correct errors in the appraisal report.

(2) A person with an interest in a real estate transaction shall make a request under this rule in writing or in a form easily reduced to writing. The request shall include, as applicable:

(a) Additional, appropriate property information, including additional comparable properties; or

(b) Factual corrections and an explanation for the basis of the corrections.

(3)(a) An appraisal management company that receives a request under this rule shall, within five business days, forward the request to the appraiser.

(b) An appraisal management company that receives a request under this rule and performs quality control examinations shall, within five business days, determine if the request meets the criteria in section (1) of this rule and either:

(A) Reject the request and notify the requestor in writing or in a form easily reduced to writing; or

(B) Forward the request to the appraiser.

(4)(a) An appraisal management company shall require an appraiser to respond to a request under this rule within five business days of the request from the appraisal management company, unless circumstances necessitate a delay in responding to a request under this rule.

(b) An appraisal management company shall notify the person in writing or in a form easily reduced to writing of the circumstance necessitating a delay, and shall provide an estimate of the time the appraisal management company believes is needed to respond to a request.

(5) The appraisal management company shall require the appraiser to communicate in writing or in a form easily reduced to writing that:

(a) The appraiser corrected errors in the report determined to be factual errors, and identify which errors were corrected;

(b) The appraiser fully considered the additional, appropriate property information, including additional comparable properties, provided by the person with an interest in the real estate transaction into the appraisal report;

(c) The appraiser provided further detail, substantiation, or explanation for the appraiser’s value conclusion;

(d) The appraiser fully considered and rejected incorporating the additional, appropriate property information, including additional comparable properties, into the appraisal report; or

(e) The appraiser would not provide further detail, substantiation, or explanation for the appraiser’s value conclusion.

(6) An appraisal management company shall retain a record of each dispute processed under this rule and a record of disputes where circumstances necessitated a delay in meeting the requirements of this section for:

(a) Not less than five years after the date of completion of the appraisal to which the record pertains; or

(b) For a period of not less than two years after final disposition of a judicial proceeding in which testimony relating to the records was given, whichever period expires later.

Stat. Auth.: 2010 OL Ch. 87, § 7

Stat. Implemented: 2010 OL Ch. 87, § 7

Hist.: FCS 10-2010(Temp), f. & cert. ef. 9-1-10 thru 12-31-10; FCS 13-2010, f. 12-30-10, cert. ef. 1-1-11

441-674-0140

Renewal or Reactivation of Registration

(1) An appraisal management company renewing a registration as an appraisal management company shall submit to the director all of the following information:

(a) Renewal fees established in OAR 441-674-0915;

(b) A copy of the surety bond required by 2010 Or Laws ch 87, § 3 in a form and format approved by the director;

(c)(A) A signed statement on a form approved by the director that the appraisal management company continues to maintain a system, as stated on the appraisal management company’s initial application for registration, to verify the competency of appraisers on the business entity’s panel meeting the minimum requirements in OAR 441-674-0120; and

(B) A short description of the business entity’s system to verify competency;

(d)(A) A signed statement on a form approved by the director that the business entity continues to maintain a system, as stated on the appraisal management company’s initial application for registration, a dispute resolution process meeting the minimum requirements established in OAR 441-674-0130; and

(B) A copy of the portion of the business entity’s engagement letter detailing the dispute resolution process;

(e) A signed statement on a form approved by the director that the business entity maintains and retains a detailed record of each appraisal management services request the entity receives and the appraiser who performs the real estate appraisal activity contained in the request for:

(A) Not less than five years after the date of completion of the appraisal to which the record pertains; or

(B) For a period of not less than two years after final disposition of a judicial proceeding in which testimony relating to the records was given, whichever period expires later.

(2)(a) If a business entity does not apply to renew a registration on or before the entity’s renewal date, the business entity shall reactivate the entity’s registration by applying for a new registration as an appraisal management company. For purposes of fees payable to the director under OAR 441-674-0910, the business entity shall pay a nonrefundable renewal fee based on the number of appraisals for which the appraisal management company performed appraisal management services in Oregon or otherwise served as a third-party broker of real estate appraisal activity in Oregon.

(b) A business entity in the process of reactivating a registration as an appraisal management company under this section shall cease operating as an appraisal management company or providing appraisal management services until the business entity’s registration is reactivated.

Stat. Auth.: 2010 OL Ch. 87, § 2

Stat. Implemented: 2010 OL Ch. 87, § 2

Hist.: FCS 10-2010(Temp), f. & cert. ef. 9-1-10 thru 12-31-10; FCS 13-2010, f. 12-30-10, cert. ef. 1-1-11

441-674-0210

Subject Individuals

For purposes of OAR 441-674-0220 to 441-674-0250, a “subject individual” means:

(1) The person designated as the controlling person under 2010 Or Laws ch 87, § 2;

(2) Each individual with an ownership interest of ten percent or more of an appraisal management company; and

(3) In cases where ownership interest of ten percent or more of the appraisal management company is held by an entity other than an individual:

(a) An individual who wholly owns a corporation that owns ten percent or more of an appraisal management company;

(b) An individual wholly owning and serving as the only general partner in a limited partnership that owns ten percent or more of an appraisal management company;

(c) An individual wholly owning and managing a limited liability company that owns ten percent or more of an appraisal management company; or

(d) An individual who wholly owns any other type of business entity that owns ten percent or more of an appraisal management company.

Stat. Auth.: ORS 181.534 & 705.135

Stat. Implemented: 2010 OL Ch. 87, § 2, ORS 181.534 & 705.141

Hist.: FCS 10-2010(Temp), f. & cert. ef. 9-1-10 thru 12-31-10; FCS 13-2010, f. 12-30-10, cert. ef. 1-1-11

441-674-0220

Criminal Records Check Required

(1) The director shall conduct a criminal records check on a subject individual as a condition of issuing a registration as an appraisal management company under 2010 Or Laws ch 87, § 2 and OAR chapter 441, division 674.

(2) The director may require additional information from the subject individual as necessary to complete the criminal records check and fitness determination, such as, but not limited to, proof of identity; or additional criminal, judicial, or other background information.

(3) The director may request or conduct a Law Enforcement Data System Criminal Records Check, an Oregon Criminal Records Check, a Nationwide Criminal Records Check, or any combination thereof to meet the requirements of this rule.

(4) If a subject individual refuses to consent to a criminal records check, including fingerprint identification, the director shall not issue a registration as an appraisal management company. A subject individual may not contest any determination made based on a refusal to consent.

Stat. Auth.: ORS 181.534 & 705.135

Stat. Implemented: 2010 OL Ch. 87, § 2, ORS 181.534 & 705.141

Hist.: FCS 10-2010(Temp), f. & cert. ef. 9-1-10 thru 12-31-10; FCS 13-2010, f. 12-30-10, cert. ef. 1-1-11

441-674-0230

Information Required from Subject Individuals

A subject individual shall submit to the director the following information:

(1) A complete, signed copy of a criminal records request form supplied by the director. The criminal records request form shall require the following information: name, birth date, Social Security Number, driver’s license or identification card number, prior residency in other states, and any other identifying information deemed necessary by the director.

(2) A FD-258 standard fingerprint card published by the Federal Bureau of Investigation and completed by a law enforcement agency or a commercial fingerprinting entity.

Stat. Auth.: ORS 181.534 & 705.135

Stat. Implemented: 2010 OL Ch. 87, § 2, ORS 181.534 & 705.141

Hist.: FCS 10-2010(Temp), f. & cert. ef. 9-1-10 thru 12-31-10; FCS 13-2010, f. 12-30-10, cert. ef. 1-1-11

441-674-0240

Potentially Disqualifying Crimes; Process

(1) A “potentially disqualifying crime” means a crime that:

(a) Reflects moral turpitude, or an act or conduct which would cause a reasonable person to have substantial doubts about the individual’s honesty, fairness and respect for the rights of others and for the laws of the state and the nation; and

(b) Is rationally connected to the business entity’s fitness to act as a controlling person or own ten percent or more of an appraisal management company.

(2) The director shall evaluate a crime on the basis of Oregon laws and, if applicable, federal laws or the laws of any other jurisdiction in which a criminal records check indicates a subject individual may have committed a crime, as those laws are in effect at the time of the fitness determination.

(3) A subject individual shall not be denied under these rules on the basis of the existence or contents of a juvenile record that has been expunged under ORS 419A.260 and 419A.262.

(4) If a subject individual is denied as not fit, the business entity may not obtain a registration as an appraisal management company unless the subject individual divests all or part of the individual’s ownership interest in the business entity or the business entity designates another control person, whichever is applicable.

(5) The director shall inform the subject individual who has been determined not to be fit on the basis of a criminal records check, via courier, or registered or certified mail to the most current address provided by the subject individual of the disqualification. Responsibility for furnishing the most current address remains with the subject individual.

(6) A final fitness determination is a final order of the director unless the affected subject individual requests a contested case hearing under ORS Chapter 183. A subject individual may contest a fitness determination made under these rules that he or she is fit or not fit to act as a controlling person or own ten percent or more of an appraisal management company under ORS Chapter 183.

Stat. Auth.: ORS 181.534 & 705.135

Stat. Implemented: 2010 OL Ch. 87, § 2, ORS 181.534 & 705.141

Hist.: FCS 10-2010(Temp), f. & cert. ef. 9-1-10 thru 12-31-10; FCS 13-2010, f. 12-30-10, cert. ef. 1-1-11

441-674-0250

Fees for Fingerprinting and Background Checks

Each person subject to 441-674-0210 to 441-674-0250 shall pay to the director an amount not to exceed the fees charged to the director for the purpose of processing criminal record checks.

Stat. Auth.: ORS 181.534 & 705.135

Stat. Implemented: 2010 OL Ch. 87, § 2, ORS 181.534 & 705.141

Hist.: FCS 10-2010(Temp), f. & cert. ef. 9-1-10 thru 12-31-10; FCS 13-2010, f. 12-30-10, cert. ef. 1-1-11

441-674-0310

Termination or Cancellation of Surety Bond or Letter of Credit

(1) If the surety bond or letter of credit an appraisal management company maintains is terminated or cancelled, the appraisal management company shall file a replacement surety bond or letter of credit as soon as practicable or within five days of the cancellation or termination, whichever occurs sooner.

(2) An appraisal management company that does not file a replacement surety bond or letter of credit under section (1) of this rule shall surrender the appraisal management company’s registration and cease operating as an appraisal management company.

Stat. Auth.: 2010 OL Ch. 87, § 3

Stat. Implemented: 2010 OL Ch. 87, § 3

Hist.: FCS 10-2010(Temp), f. & cert. ef. 9-1-10 thru 12-31-10; FCS 13-2010, f. 12-30-10, cert. ef. 1-1-11

441-674-0910

Initial Fees Payable to the Director

(1) A business entity that has not previously conducted business in Oregon, a business entity performing appraisal management services for not more than 1,000 instances of real estate appraisal activity in Oregon in the previous calendar year, or a business entity otherwise serving as a third-party broker of real estate appraisal activity for not more than 1,000 instances of real estate appraisal activity in Oregon in the previous calendar year, shall pay to the director:

(a) A nonrefundable application fee of $1,000;

(b) A nonrefundable registration fee of $1,500; and

(c) Subject to section (4) of this rule, an audit fee of $450.

(2) A business entity performing appraisal management services for more than 1,000 but less than 5,000 instances of real estate appraisal activity in Oregon in the previous calendar year, or a business entity otherwise serving as a third-party broker of real estate appraisal activity for more than 1,000 but less than 5,000 instances of real estate appraisal activity in Oregon in the previous calendar year, shall pay to the director:

(a) A nonrefundable application fee of $1,500;

(b) A nonrefundable registration fee of $3,500; and

(c) Subject to section (4) of this rule, an audit fee of $750.

(3) A business entity performing appraisal management services for more than 5,000 instances of real estate appraisal activity in Oregon in the previous calendar year, or a business entity otherwise serving as a third-party broker of real estate appraisal activity for more than 5,000 instances of real estate appraisal activity in Oregon in the previous calendar year, shall pay to the director:

(a) A nonrefundable application fee of $2,000;

(b) A nonrefundable registration fee of $6,000; and

(c) Subject to section (4) of this rule, an audit fee of $1,500.

(4) If the director collects from each appraisal management company the actual cost of an examination as permitted by applicable law, the director shall apply any audit fees paid by a business entity under sections (1) to (3) of this rule toward the business entity’s audit.

Stat. Auth.: 2010 OL Ch. 87, § 2

Stat. Implemented: 2010 OL Ch. 87, § 2

Hist.: FCS 10-2010(Temp), f. & cert. ef. 9-1-10 thru 12-31-10; FCS 13-2010, f. 12-30-10, cert. ef. 1-1-11

441-674-0915

Renewal Fees Payable to the Director

(Reserved)

Stat. Auth.: 2010 OL Ch. 87, § 2

Stat. Implemented: 2010 OL Ch. 87, § 2

Hist.: FCS 10-2010(Temp), f. & cert. ef. 9-1-10 thru 12-31-10; FCS 13-2010, f. 12-30-10, cert. ef. 1-1-11

441-674-0920

Annual Reports

For calendar year 2011 and each year thereafter, an appraisal management company shall submit to the director on March 31 of the following year a report disclosing the following information on a form approved by the director:

(1) The number of appraisals for which the appraisal management company performed appraisal management services in Oregon or otherwise served as a third-party broker of real estate appraisal activity in Oregon.

(2) Any change in the designated controlling person.

(3) Any changes in ownership that result in an individual or wholly-owned and managed business entity owning more than 10 percent of an appraisal management company or less than 10 percent of the appraisal management company.

(4) Any action taken by a state to refuse to issue, deny, cancel or revoke a license, certification or registration to act as an appraiser or as an appraisal management company.

Stat. Auth.: 2010 OL Ch. 87, § 2

Stat. Implemented: 2010 OL Ch. 87, § 2

Hist.: FCS 10-2010(Temp), f. & cert. ef. 9-1-10 thru 12-31-10; FCS 13-2010, f. 12-30-10, cert. ef. 1-1-11

 

Rule Caption: Revise administrative and reporting requirements and fees for certified providers and master trustees in Oregon.

Adm. Order No.: FCS 14-2010

Filed with Sec. of State: 12-30-2010

Certified to be Effective: 1-1-11

Notice Publication Date: 11-1-2010

Rules Adopted: 441-930-0035, 441-930-0045, 441-930-0065, 441-930-0068, 441-930-0255, 441-930-0267

Rules Amended: 441-930-0010, 441-930-0030, 441-930-0070, 441-930-0080, 441-930-0210, 441-930-0220, 441-930-0230, 441-930-0240, 441-930-0250, 441-930-0260, 441-930-0270, 441-930-0290, 441-930-0300, 441-930-0310, 441-930-0320, 441-930-0330, 441-930-0350, 441-930-0360

Rules Repealed: 441-930-0280, 441-930-0340

Subject: The proposed rules address recent problems related to the trusting of prearrangement funds, as well as consultation with industry leaders. They clarify requirements related to certified providers authorized to sell prearrangement or preconstruction sales contracts and those for master trustees which have the fiduciary responsibility for trusted funds from such sales. The rules would increase fees for master trustees and certified providers, change reporting requirements, delete provisions already addressed in ORS 97, clarify the use of irrevocable contracts, and clarify the responsibilities for limited operation certified providers. They would also clarify the timeline for cancellation of sureties required for certain endowment care cemeteries.

Rules Coordinator: Shelley Greiner—(503) 947-7484

441-930-0010

Definitions

In addition to the definitions in ORS 97.010 and 97.923, the following definitions apply to OAR 441-930-0010 to 441-930-0360:

(1) “Applicant” means an entity applying to the director for a certification concerning prearrangement plans or for a registration to serve as a master trustee.

(2) “Director” means the Director of the Department of Consumer and Business Services.

(3) “Limited Operations Certified Provider” means a certified provider responsible for administering 10 or fewer prearrangement or preconstruction sales contracts which have a cumulative value of less than $20,000.

(4) “Registrant” means an entity holding a registration for a master trustee, issued by the director.

(5) “Trust Agreement” means any agreement governing a trust fund established to receive the proceeds of a prearrangement or preconstruction plan and administered by a registered master trustee.

(6) “Unconscionable tactics” include, but are not limited to, actions by which a person:

(a) Knowingly takes advantage of a customer’s physical infirmity, ignorance, illiteracy or inability to understand the language of the agreement; or

(b) Knowingly permits a customer to enter into a transaction from which the customer will derive no material benefit.

Stat. Auth.: ORS 97.926

Stats. Implemented: ORS 97.926

Hist.: DO 1-2002, f. & cert. ef. 1-10-02; Renumbered from 440-300-0010; FCS 3-2004, f. & cert. ef. 9-30-04; FCS 2-2006, f. & cert. ef. 2-22-06; FCS 5-2007, f. 10-11-07, cert. ef. 1-1-08; FCS 14-2010, f. 12-30-10, cert. ef. 1-1-11

441-930-0030

Applications for Registration of Master Trustees

(1) Each entity desiring to register as master trustee shall apply by submitting a written application with the director.

(2) The application must contain the following on a form prescribed by the director:

(a) Information concerning the applicant’s identity and business address(es);

(b) A list of all officers, directors, and owners of the business;

(c) Personal background and business, professional, or work history of all persons identified in subsection (2)(b) of this rule;

(d) Proof that the entity is legally qualified to conduct business in this state, having made the appropriate filings with the Secretary of State;

(e) The depositories the applicant will use for funds received under the appointment from the certified provider;

(f) Financial statements including:

(A) A copy of the applicant’s most recent audited financial statement, including balance sheet, statement of income or loss, statement of changes in shareholder equity, and statement of changes in financial position. All financial statements must be prepared by an independent certified public accountant in accordance with generally accepted accounting principles;

(B) If the audited financial statement is more than six months old, an internally prepared statement for the most recent month end; and

(g) A registration fee as set in OAR 441-930-0270.

(3) The director may conduct a background check of any of the officers, directors, and owners applying for registration. The background check may include information solicited from the Oregon State Police.

(4) A registration is continuing and remains in effect until it is surrendered by the registrant or revoked or suspended by the director.

Stat. Auth.: ORS 97.926 & 97.935

Stats. Implemented: ORS 97.935

Hist.: DO 1-2002, f. & cert. ef. 1-10-02; Renumbered from 440-300-0030; FCS 3-2004, f. & cert. ef. 9-30-04; FCS 7-2004, f. 12-14-04, cert. ef. 1-1-05; FCS 2-2006, f. & cert. ef. 2-22-06; FCS 14-2010, f. 12-30-10, cert. ef. 1-1-11

441-930-0035

Renewal Procedure

Submission of the annual report pursuant to OAR 441-930-0068 and the fees pursuant to 441-930-0270 shall constitute renewal of the application for registration.

Stat. Auth.: ORS 97.926 & 97.935

Stats. Implemented: ORS 97.935

Hist.: FCS 14-2010, f. 12-30-10, cert. ef. 1-1-11

441-930-0045

Material Changes, Notice of Civil and Criminal Actions

A master trustee must provide information to the director within 30 days of a material change to any information contained in the original application or any documents submitted with or as part of the application, including:

(1) Bankruptcy;

(2) Civil or criminal actions described on the application;

(3) Disciplinary disclosure answers;

(4) Change in additional affiliated business entity name;

(5) Change in control or ownership;

(6) Change in form of organization;

(7) Change of address;

(8) Change in scope of business; or

(9) Change in the depository used by a master trustee.

Stat. Auth.: ORS 97.926 & 97.935

Stats. Implemented: ORS 97.935

Hist.: FCS 14-2010, f. 12-30-10, cert. ef. 1-1-11

441-930-0065

When Application Deemed Abandoned

(1) For purposes of this rule, the term “application” includes all documents, information and fees prescribed for the registration of a master trustee.

(2) An application shall be deemed deficient when:

(a) The applicant has paid insufficient fees and the director has notified the applicant that fees are insufficient;

(b) Documents required to be submitted to the director by OAR 441-930-0030 and 441-930-0035 have not been submitted by the applicant; or

(c) The applicant has not submitted information requested by the director.

(3) An application shall be deemed abandoned if:

(a) The application has been on file for a minimum of 60 days;

(b) The application is deficient; and

(c) The applicant has failed to respond within 30 days to the director’s written notice of warning of abandonment.

(4) An applicant whose application has been abandoned may reapply by submitting a new application and registration fee.

Stat. Auth.: ORS 97.926 & 97.935

Stats. Implemented: ORS 97.935

Hist.: FCS 14-2010, f. 12-30-10, cert. ef. 1-1-11

441-930-0068

Annual Report

Each master trustee is responsible for and shall file an annual report with the director by April 1 of each year on forms provided by the director. The report shall cover the preceding calendar year and shall include information on trusted funds:

(1) The actual value at the beginning and end of the calendar year;

(2) Deposits and withdrawals;

(3) Income earned and fees paid;

(4) Taxes paid for beneficiaries;

(5) Gains and losses; and

(6) The balance of all trust accounts as of December 31.

Stat. Auth.: ORS 97.926 & 97.935

Stats. Implemented: ORS 97.935

Hist.: FCS 14-2010, f. 12-30-10, cert. ef. 1-1-11

441-930-0070

Examination of Master Trustee

(1) Each master trustee that is or should be registered may be subject to an annual examination by the director. The director may, conduct an examination at the office of the master trustee or at the office of the director. The examination will be of the condition and resources of the master trustee, including:

(a) A review of the minutes of the annual meeting of owners and any special meeting;

(b) A review of all board or management meetings;

(c) Operating policies and procedures;

(d) Security of funds, including documentation demonstrating that all trust funds are received from each certified provider;

(e) Investment vehicles;

(f) Receipt and dispersal of funds;

(g) Investment and banking accounts;

(h) Audit reports; and

(i) Regulatory audit reports.

(2) A master trustee shall pay to the director the fees and costs of examination described in OAR 441-930-0270.

(3) At the discretion of the director, a master trustee located outside Oregon may make the books and records available for examination in Oregon.

(4) Upon completion of an examination conducted pursuant to OAR 441-930-0070 or 441-930-0260 the director shall issue a written report to the master trustee indicating the examination procedures applied and the examination findings.

Stat. Auth.: ORS 97.926, 97.935, & 97.947

Stats. Implemented: ORS 97.935 & 97.947

Hist.: DO 1-2002, f. & cert. ef. 1-10-02; Renumbered from 440-300-0070; FCS 3-2004, f. & cert. ef. 9-30-04; FCS 2-2006, f. & cert. ef. 2-22-06; FCS 14-2010, f. 12-30-10, cert. ef. 1-1-11

441-930-0080

Master Trustee Rules of Conduct

(1) A master trustee is a fiduciary and has a duty to act solely for the benefit of purchasers of prearrangement sales contracts.

(2) The fees to be charged shall be described in a written agreement between the master trustee and each certified provider that has appointed the master trustee.

(3) A master trustee may delegate administration, record keeping, custody, investment or management functions that a prudent trustee of comparable skills could properly delegate under the circumstances. The master trustee may not delegate, and shall exercise reasonable care, skill and caution in:

(a) Selecting an agent;

(b) Establishing the scope and terms of the delegation, consistent with the purposes and terms of the trust;

(c) Periodically reviewing the agent’s actions to monitor and ensure the agent’s performance and compliance with the terms of the delegation; and

(d) Ensuring that all trust funds received are from a certified provider by a sales contract, including, but not limited to ensuring that all contracts are accounted for and ensuring certification of providers from whom they accept trust funds.

(4) A master trustee shall invest and manage trust assets as a prudent investor would. A master trustee that complies with ORS 130.755 satisfies this requirement.

(5) In investing and managing trust assets, regardless of whether those functions have been delegated, a master trustee may only incur fees and expenses that are appropriate and reasonable in relation to the assets, the purposes of the trust and the skills of the master trustee, not to exceed the maximum specified in ORS 97.943.

Stat. Auth.: ORS 97.926 & 97.935

Stats. Implemented: ORS 97.935

Hist.: FCS 2-2006, f. & cert. ef. 2-22-06; FCS 5-2007, f. 10-11-07, cert. ef. 1-1-08; FCS 14-2010, f. 12-30-10, cert. ef. 1-1-11

441-930-0210

Application for Certification

(1) Each entity desiring to obtain a certification shall apply by submitting a written application with the director.

(2) An application must contain the following on or with a form prescribed by the director:

(a) A list of all officers, directors, and owners of the business;

(b) Information concerning the applicant’s identity and business address(es);

(c) If the applicant is an individual or sole proprietorship, the applicant’s social security number. Provision of this number is mandatory and failure to provide the applicant’s social security number shall be considered grounds for denying certification to the applicant.

(d) The business, professional or work history of all persons identified in subsection (2)(a) of this rule;

(e) Proof that the entity is legally qualified to conduct business in this state, having made the appropriate filings with the Secretary of State;

(f) The master trustee and depository(ies) the applicant intends to use for funds received from the sale of the prearrangement plans;

(g) For certified providers who place trust funds in a depository and will not be using a master trustee for long-term trust investment, financial statements including:

(A) A copy of the applicant’s most recent audited financial statement, including balance sheet, statement of income or loss, statement of changes in shareholder equity and statement of changes in financial position. All financial statements must be prepared by an independent certified public accountant in accordance with generally accepted accounting principles; and

(B) If the audited financial statement is more than six months old, an internally prepared statement for the most recent month;

(h) A list of prearrangement plans to which the applicant was a party at the date of application; and

(i) A certification fee as set in OAR 441-930-0270.

(3) The director may conduct a background check of any officer, director, or owner applying for certification. The background check may include information solicited from Oregon State Police.

(4) Authority for operation as a certified provider is continuing and remains in effect until surrendered by the provider or revoked or suspended by the director.

Stat. Auth.: ORS 97.926, 97.933, & 97.948

Stats. Implemented: ORS 97.933 & 97.948

Hist.: DO 1-2002, f. & cert. ef. 1-10-02; DOC 2-2002(Temp) f. & cert. ef. 2-12-02 thru 8-1-02; DO 3-2002, f. & cert. ef. 5-23-02; Renumbered from 440-300-0210; FCS 3-2004, f. & cert. ef. 9-30-04; FCS 7-2004, f. 12-14-04, cert. ef. 1-1-05; FCS 2-2006, f. & cert. ef. 2-22-06; FCS 5-2007, f. 10-11-07, cert. ef. 1-1-08; FCS 14-2010, f. 12-30-10, cert. ef. 1-1-11

441-930-0220

Renewal Procedure

Submission of the annual report pursuant to OAR 441-930-0250 and the fees pursuant to 441-930-0270 shall constitute renewal of the application for certification.

Stat. Auth.: ORS 97.926 & 97.933

Stats. Implemented: ORS 97.933

Hist.: DO 1-2002, f. & cert. ef. 1-10-02; Renumbered from 440-300-0220; FCS 3-2004, f. & cert. ef. 9-30-04; FCS 2-2006, f. & cert. ef. 2-22-06; FCS 14-2010, f. 12-30-10, cert. ef. 1-1-11

441-930-0230

Material Changes, Notice of Civil and Criminal Actions

A certified provider must provide information to the director within 30 days of a material change to any information contained in the original application or any documents submitted with or as a part of the application, including:

(1) Bankruptcy;

(2) Civil or criminal actions described on the application;

(3) Disciplinary disclosure answers on the application;

(4) Change in additional affiliated business entity name;

(5) Change in control or ownership;

(6) Change in form of organization;

(7) Change of address for a master trustee;

(8) Change in scope of business;

(9) Change in any depository used by the certified provider; or

(10) Change in the master trustee being used by the certified provider.

Stat. Auth.: ORS 97.926 & 97.933

Stats. Implemented: ORS 97.933

Hist.: DO 1-2002, f. & cert. ef. 1-10-02; Renumbered from 440-300-0230; FCS 3-2004, f. & cert. ef. 9-30-04; FCS 2-2006, f. & cert. ef. 2-22-06; FCS 14-2010, f. 12-30-10, cert. ef. 1-1-11

441-930-0240

When Application Deemed Abandoned

(1) For purposes of this rule, the term “application” includes all documents, information and fees prescribed for a certified provider as set forth in ORS 97.923 to 97.949, OAR 441-930-0030, 441-930-0210 and 441-930-0270.

(2) An application shall be deemed deficient when:

(a) Insufficient fees have been paid and the director has notified the applicant that fees are insufficient;

(b) Documents required to be submitted to the director by OAR 441-930-0210 or 441-930-0020 have not been submitted by the applicant; or

(c) Information requested by the director has not been submitted by the applicant.

(3) An application shall be deemed abandoned if:

(a) The application has been on file for a minimum of 60 days;

(b) The application is deficient; and

(c) The applicant has failed to respond within 30 days to the director’s written notice of warning of abandonment.

(4) An applicant whose application has been abandoned may reapply by submitting a new application, including fees.

Stat. Auth.: ORS 97.926 & 97.933

Stats. Implemented: ORS 97.933

Hist.: DO 1-2002, f. & cert. ef. 1-10-02; Renumbered from 440-300-0240; FCS 3-2004, f. & cert. ef. 9-30-04; FCS 2-2006, f. & cert. ef. 2-22-06; FCS 5-2007, f. 10-11-07, cert. ef. 1-1-08; FCS 14-2010, f. 12-30-10, cert. ef. 1-1-11

441-930-0250

Annual Report

Each certified provider is responsible for and shall file an annual report with the director by April 1 of each year on forms provided by the director. The report shall cover the preceding calendar year and shall include:

(1) The actual value at of all trusted funds at the beginning and end of the calendar year;

(2) Deposits and withdrawals from trusted funds;

(3) Income earned and fees paid on trust accounts;

(4) Withdrawals from principal of the trust account;

(5) Expenses withdrawn from trust account income for master trustee, accounting, record keeping and administration, depository and investment fees;

(6) Taxes paid for the benefit of beneficiaries;

(7) Gains and losses of trusted funds;

(8) For certified providers who have placed trust funds with a depository, a copy of their most recent audited annual financial statement, including a balance sheet, statement of income or loss, statement of changes in shareholder equity and statement of changes in financial position. All financial statements must be prepared by an independent certified public accountant in accordance with generally accepted accounting principles; and

(9) An inventory of the details of the merchandise specified in ORS 97.933 from a certified provider that has sold and delivered funeral merchandise, cemetery merchandise, or a combination,.

Stat. Auth.: ORS 97.926 & 97.933

Stats. Implemented: ORS 97.933

Hist.: DO 1-2002, f. & cert. ef. 1-10-02; DOC 2-2002(Temp) f. & cert. ef. 2-12-02 thru 8-1-02; DO 3-2002, f. & cert. ef. 5-23-02; Renumbered from 440-300-0250; FCS 3-2004, f. & cert. ef. 9-30-04; FCS 2-2006, f. & cert. ef. 2-22-06; FCS 5-2007, f. 10-11-07, cert. ef. 1-1-08; FCS 14-2010, f. 12-30-10, cert. ef. 1-1-11

441-930-0255

Reporting by Limited Operations Certified Provider

A limited operations certified provider must report the following activities to the director within 15 days of the occurrence:

(1) Transfer of any contract to another certified provider; or

(2) Sale of any new prearrangement or preconstruction contract.

Stat. Auth.: ORS 97.926

Stats. Implemented: ORS 97.933

Hist.: FCS 14-2010, f. 12-30-10, cert. ef. 1-1-11

441-930-0260

Examination of Certified Providers

(1) Each provider that is or should be certified is subject to an examination by the director. The director may conduct an examination of the condition and resources, including a review of the sales contracts used by the certified provider, to determine whether the provider is complying with requirements of ORS 97.923 to 97.949, the laws of this state and the rules of the director.

(2) A provider shall pay to the director all fees and costs of an examination pursuant to the provisions of OAR 441-930-0270.

(3) Upon the motion of the director or upon receipt of a complaint by a customer of the provider, the director may examine the provider with respect to any violation. In lieu of an annual on-site examination, the director may accept a report prepared by an independent accounting firm. Reports so accepted are considered for all purposes as an official report of the director.

(4) The director may examine a record relating to a prearrangement plan at any place and in any manner the director considers necessary to protect the interests of the purchasers or beneficiaries.

(5) Certified providers who maintain books and records outside the state of Oregon may, at the discretion of the director, produce the records in Oregon for examination.

(6) Upon completion of an examination conducted by the director shall issue a written report to the certified provider indicating the examination procedures applied and the examination findings.

Stat. Auth.: ORS 97.926, 97.933, & 97.947

Stats. Implemented: ORS 97.947

Hist.: DO 1-2002, f. & cert. ef. 1-10-02; Renumbered from 440-300-0260; FCS 3-2004, f. & cert. ef. 9-30-04; FCS 2-2006, f. & cert. ef. 2-22-06; FCS 14-2010, f. 12-30-10, cert. ef. 1-1-11

441-930-0267

Irrevocable Prearrangement Sales Contracts

(1) Certified providers may only issue an irrevocable prearrangement sales contract in limited circumstances. The certified provider must receive proof from the purchaser or beneficiary that the beneficiary of the trust is:

(a) Currently receiving public assistance; or

(b) Has filed the necessary papers and started the formal process to receive benefits.

(2) An irrevocable trust may not be cancelled, changed, or revised to become any other type of preneed funding mechanism and may not be distributed for any purpose other than the death of the beneficiary.

(3) A revocable contract may be converted to an irrevocable contract upon agreement of all parties to reflect a change of circumstances of the beneficiary of the sales contract.

Stat. Auth.: ORS 97.926

Stats. Implemented: ORS 97.939 & 97.943

Hist.: FCS 14-2010, f. 12-30-10, cert. ef. 1-1-11

441-930-0270

Fees Assessed to Certified Providers and Registered Master Trustees

The director shall annually assess the following fees for each registered master trustee, certified provider, or applicant:

(1) Certification Fee — $450 per certified provider. Each location is a separate entity for purposed of this fee.

(2) Registration Fee — $450 per master trustee.

(3) Limited Operations Fee — $150.

(4) Exam Fees — $75 per hour for each examiner, plus costs of an examination.

(5) If the books and records are located outside Oregon, the certified provider or master trustee must pay travel and per diem expenses.

Stat. Auth.: ORS 97.926, 97.933 & 97.935

Stats. Implemented: ORS 97.933 & 97.935

Hist.: DO 1-2002, f. & cert. ef. 1-10-02; Renumbered from 440-300-0270; FCS 3-2004, f. & cert. ef. 9-30-04; FCS 7-2004, f. 12-14-04, cert. ef. 1-1-05; FCS 3-2005, f. & cert. ef. 9-6-05; FCS 2-2006, f. & cert. ef. 2-22-06; FCS 8-2008, f. & cert. ef. 8-28-08; FCS 14-2010, f. 12-30-10, cert. ef. 1-1-11

441-930-0290

Unprofessional Conduct

An entity engaging in the following conduct is subject to probation, suspension, revocation, or denial of a certification or registration and assessment of a civil penalty pursuant to ORS 97.948 and OAR 441-930-0310:

(1) Furnishing false or misleading information to the director in connection with:

(a) Obtaining, renewing, reinstating, or maintaining certification or registration;

(b) The filing of an annual report; or

(c) An investigation;

(2) Failing to furnish accurate and understandable price information to consumers;

(3) Employing any unconscionable tactic in connection with the offer or sale of a prearrangement plan;

(4) Failing to make and verify trust deposits in the amounts and within the times specified in ORS 97.941;

(5) Withdrawing principal or income of a trust account in excess of what is permitted pursuant to ORS 97.943;

(6) Failing to comply with the annual reporting requirements as required by ORS 97.933 or these rules;

(7) Failing to provide the goods and services agreed to in a sales contract;

(8) Using trust funds for non-trust purposes;

(9) Failing to release trust funds to the rightful payee within 30 days of the date of request for release; or

(10) Failing to comply with any other provision of ORS 97.923 to 97.949, or these rules.

Stat. Auth.: ORS 97.926, 97.933, & 97.935

Stats. Implemented: ORS 97.933, 97.935, 97.941, & 97.948

Hist.: DO 1-2002, f. & cert. ef. 1-10-02; Renumbered from 440-300-0290; FCS 3-2004, f. & cert. ef. 9-30-04; FCS 2-2006, f. & cert. ef. 2-22-06; FCS 14-2010, f. 12-30-10, cert. ef. 1-1-11

441-930-0300

Notice of Complaint

(1) Each certified provider and each master trustee who has filed a complaint against any of its partners, officers, or directors, or, associated persons located in Oregon, with any law enforcement agency, any other regulatory agency with jurisdiction over prearrangement plans, or any bonding company regarding any loss arising from alleged acts of such person, shall send a copy of the complaint to the director within ten calendar days following its filing with the other agency or bonding company.

(2) The certified provider or master trustee shall notify the director within ten calendar days of learning of any action initiated by a law enforcement agency or regulatory agency against any of its partners, officers, or directors, or associated persons located in Oregon on the basis of something other than a complaint from the certified provider or master trustee.

(3) The certified provider or master trustee shall file a copy of any finding, censure, fine, suspension, or expulsion made as a result of an action by any law enforcement agency or other regulatory agency with the director within ten calendar days following receipt of the document.

Stat. Auth.: ORS 97.926

Stats. Implemented: ORS 97.933 & 97.935

Hist.: DO 1-2002, f. & cert. ef. 1-10-02; Renumbered from 440-300-0300; FCS 3-2004, f. & cert. ef. 9-30-04; FCS 2-2006, f. & cert. ef. 2-22-06; FCS 14-2010, f. 12-30-10, cert. ef. 1-1-11

441-930-0310

Revocation, Suspension and Denial of Certificate or Registration

The director may impose a civil penalty or probation, or revoke, suspend, or deny a certification of a certified provider or a registration of a master trustee when one or more of the following conditions exist:

(1) The certified provider’s license under ORS 692.160 expires or is suspended or revoked by the State Mortuary and Cemetery Board;

(2) The certified provider or master trustee fails to submit an annual report required by ORS 97.933;

(3) The certified provider or master trustee fails to submit the certification or registration fee required by OAR 441-930-0270;

(4) The certified provider or master trustee fails to maintain or denies the director access to the financial records and supporting documents necessary to examine their annual report;

(5) The certified provider or master trustee has filed a materially false or misleading report with the director;

(6) The certified provider fails to deliver or deposit prearrangement plan receipts to the master trustee or depository within five business days as required by ORS 97.941;

(7) The certified provider or master trustee fails to account to interested persons for monies received;

(8) The certified provider or master trustee has willfully or repeatedly violated or failed to comply with any provision of ORS 97.923 to 97.949, or OAR 441-930-0030 through 441-930-0360;

(9) The certified provider or master trustee is permanently or temporarily enjoined by a court of competent jurisdiction from engaging in or continuing any conduct or practice involving any aspect of the business of a certified provider or master trustee, respectively;

(10) The certified provider or master trustee is the subject of disciplinary action by another state or government agency provided the activity subject to discipline would constitute a violation of Oregon law or administrative rules;

(11) The director finds that the certified provider, master trustee, or an applicant for certification or for registration has been convicted of a felony or a misdemeanor that involved dishonesty or fraud, in this state or any other state;

(12) The director finds that an administrative agency, in this state or any other state, has issued a final order against the certified provider, master trustee, or an applicant for certification or for registration;

(13) The director finds that the certified provider, master trustee, or an applicant for certification or for registration has an outstanding judgment by a court, in this state or any other state; or

(14) The director finds that the applicant or an officer, director, or owner of the applicant does not possess the financial and business experience required by these rules.

Stat. Auth.: ORS 97.926, 97.933 & 97.935

Stats. Implemented: ORS 97.948

Hist.: DO 1-2002, f. & cert. ef. 1-10-02; Renumbered from 440-300-0310; FCS 3-2004, f. & cert. ef. 9-30-04; FCS 2-2006, f. & cert. ef. 2-22-06; FCS 14-2010, f. 12-30-10, cert. ef. 1-1-11

441-930-0320

Notice Requirements

(1) The director shall provide written notice to the certified provider, master trustee, or applicant and to the State Mortuary and Cemetery Board of the director’s intent to impose discipline pursuant to ORS 97.936, 97.948, or to deny an application.

(2) The director shall provide written notice of the Director’s Final Order to impose discipline pursuant to ORS 97.936, 97.948, or to deny an application from:

(a) A certified provider or certified provider applicant that sells or is responsible for administering a prearrangement or preconstruction plan trust accounts; or

(b) A master trustee or master trustee applicant, holding trust funds from a certified provider.

(3) This notice shall state:

(a) The reasons for the action;

(b) The effective date of the action; and

(c) The right to request a hearing under ORS Chapter 183.

Stat. Auth.: ORS 97.933 & 97.935

Stats. Implemented: ORS 97.936 & 97.948

Hist.: DO 1-2002, f. & cert. ef. 1-10-02; Renumbered from 440-300-0320; FCS 3-2004, f. & cert. ef. 9-30-04; FCS 2-2006, f. & cert. ef. 2-22-06; FCS 5-2007, f. 10-11-07, cert. ef. 1-1-08; FCS 14-2010, f. 12-30-10, cert. ef. 1-1-11

441-930-0330

Records to be Retained

(1) Each certified provider and master trustee shall maintain records to document the balances and transactions included in its annual report filed pursuant to OAR 441-930- 0068 and 441-930-0250 and shall retain these records for examination by the director. Each certified provider and master trustee shall make, keep and preserve the following books, accounts and other records for a period of three years after funds from all trust have been distributed, at need or upon cancellation of the contract. The records required to be maintained include, but are not limited to:

(a) Work papers documenting preparation of the annual report;

(b) General ledger or subsidiary ledger account records relating to prearrangement plans;

(c) Receipts register;

(d) Sales registers that show the delivered merchandise and/or services provided in the appropriate trust agreement file, including the name and date of birth of the beneficiary and a description of the merchandise;

(e) Work papers documenting distribution of interest income to individual trusts in a common trust account;

(f) Prearrangement or preconstruction contract files, trust agreement files, and other supporting documentation related to prearrangement transactions. Every contract sold or to be administered by the certified provider must be accounted for and retained, even if they were voided or not issued;

(g) Bank statements; and

(h) Statements from other financial institutions.

(2) Books, accounts, and other records required to be maintained under section (1) of this rule may be maintained:

(a) In a photographic, electronic, and other similar form; or

(b) At a location in Oregon, unless specifically authorized by the director.

Stat. Auth.: ORS 97.926. 97.933 & 97.935

Stats. Implemented: ORS 97.947

Hist.: DO 1-2002, f. & cert. ef. 1-10-02; Renumbered from 440-300-0330; FCS 3-2004, f. & cert. ef. 9-30-04; FCS 2-2006, f. & cert. ef. 2-22-06; FCS 14-2010, f. 12-30-10, cert. ef. 1-1-11

441-930-0350

Funeral and Cemetery Consumer Protection Trust Fund

(1) The director shall order restitution from the Funeral and Cemetery Consumer Protection Trust Fund when the following conditions are met:

(a) A claim for restitution is submitted to the director on forms supplied by the director accompanied by:

(b) A copy of the prearrangement or preconstruction contract;

(c) Copies of canceled checks or payment receipts demonstrating payment;

(d) Correspondence with the provider concerning attempts to obtain repayment; and

(e) Any other information the claimant believes may be helpful to document the claim.

(2) The director will review the claim form and accompanying documentation to determine if a loss was incurred by the claimant on a prearrangement or preconstruction sales contract.

(3) Sufficient funds must be available in the Funeral and Cemetery Consumer Protection Trust Fund to pay the claim.

(4) The director shall provide written notice of its intent to order restitution or not to order restitution to the maker of the claim and to the person or entity that is the subject of the claim.

Stat. Auth.: ORS 97.926 & 97.945

Stats. Implemented: ORS 97.945

Hist.: DO 1-2002, f. & cert. ef. 1-10-02; Renumbered from 440-300-0350; FCS 3-2004, f. & cert. ef. 9-30-04; FCS 2-2006, f. & cert. ef. 2-22-06; FCS 14-2010, f. 12-30-10, cert. ef. 1-1-11

441-930-0360

Surety Bond Requirements for Endowment Care Cemeteries

(1) If a surety bond is revoked, or otherwise terminated, the endowment care cemetery must immediately file a replacement bond.

Failure to send the notice at least 30 days in advance will not preclude the endowment care cemetery from being subject to the provisions of ORS 97.923 to 97.949 and 692.180.

(2) An endowment care cemetery may cancel the surety bond or letter of credit upon 30 days advance notice to the director of completion of the covered construction of all crypts and niches or burial vaults or markers that were part of the development.

Stat. Auth.: ORS 97.926

Stats. Implemented: ORS 97.929

Hist.: DO 1-2002, f. & cert. ef. 1-10-02; Renumbered from 440-300-0360; FCS 3-2004, f. & cert. ef. 9-30-04; FCS 2-2006, f. & cert. ef. 2-22-06; FCS 14-2010, f. 12-30-10, cert. ef. 1-1-11

Notes
1.) This online version of the OREGON BULLETIN is provided for convenience of reference and enhanced access. The official, record copy of this publication is contained in the original Administrative Orders and Rulemaking Notices filed with the Secretary of State, Archives Division. Discrepancies, if any, are satisfied in favor of the original versions. Use the OAR Revision Cumulative Index found in the Oregon Bulletin to access a numerical list of rulemaking actions after November 15, 2010.

2.) Copyright 2011 Oregon Secretary of State: Terms and Conditions of Use

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