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USA Statutes : oregon
Title : TITLE 50 TRADE REGULATIONS AND PRACTICES
Chapter : Chapter 645 Commodity Transactions
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As used in this chapter:
(1) “Board of trade” means any person or persons engaged in buying
or selling any commodity or receiving the same for sale on consignment,
whether such person or persons are characterized as a board of trade,
exchange or other form of marketplace.
(2) “Commodity” means, except as otherwise specified by the
director by rule, all goods, articles, products, foreign currency or
items of any kind. “Commodity” does not include real property or any
timber, agricultural or livestock product grown or raised on real
property and offered or sold by the owner or lessee of such real property.
(3) “Commodity contract”:
(a) Means any account, agreement or contract for the purchase or
sale of one or more commodities, however characterized, which is
primarily for speculation or investment purposes and not for use or
consumption by the offeree or purchaser or between persons engaged in
producing, processing, using commercially or handling as merchants the
commodity or any by-product thereof. Any contract for one or more
commodities offered or sold shall, in the absence of evidence to the
contrary, be presumed to be offered or sold for speculation or investment
purposes; and
(b) Does not include any contract or agreement which requires, and
under which the purchaser receives within 28 days of payment of any
portion of the purchase price, physical delivery of the total amount of
each commodity to be purchased under the contract or agreement.
(4) “Commodity merchant” means any person, other than a futures
association, required to register with the Commodity Futures Trading
Commission.
(5) “Commodity option”:
(a) Means any account, agreement or contract giving a party thereto
the right but not the obligation to purchase or sell one or more
commodities or one or more commodity contracts, whether characterized as
an option, privilege, indemnity, bid, offer, put, call, advance guaranty,
decline guaranty or otherwise; and
(b) Does not include an option traded on a national securities
exchange registered with the federal Securities and Exchange Commission.
(6) “Director” means the Director of the Department of Consumer and
Business Services or an agent or employee authorized to act on the
director’s behalf.
(7) “Financial institution” means an insured institution or trust
company as those terms are defined in ORS 706.008.
(8) “Fraud,” “deceit” and “defraud” are not limited to common-law
deceit.
(9) “Offer” includes every offer to sell, offer to purchase or
offer to enter into a commodity contract or commodity option.
(10) “Person” includes an individual, a joint venture, a
partnership, a cooperative, an association, a joint stock company, a
corporation, a trust, an unincorporated organization, a government or a
political subdivision of a government.
(11) “Sale” or “sell” includes every sale, contract of sale,
contract to sell or disposition for value. [1987 c.148 §3; 1993 c.744
§15; 1997 c.631 §506]Except as otherwise provided in ORS 645.015 or 645.020:
(1) No person shall sell or purchase or offer to sell or purchase
any commodity under any commodity contract or under any commodity option
or offer to enter into or enter into as seller or purchaser any commodity
contract or any commodity option.
(2) No person shall participate or materially aid another person to
commit an act or otherwise engage in a transaction prohibited by
subsection (1) of this section. [1987 c.148 §4; 1989 c.179 §2] (1)
The prohibitions in ORS 645.010 shall not apply to any transaction by:
(a) A person registered with the federal Commodity Futures Trading
Commission as a futures commission merchant or as a leverage transaction
merchant whose activities require registration;
(b) A person affiliated with, and whose obligations and liabilities
under the transaction are guaranteed by, a person referred to in
paragraph (a) of this subsection;
(c) A person who is a member of a contract market designated by the
federal Commodity Futures Trading Commission or any clearinghouse thereof;
(d) A financial institution;
(e) A person registered under the Oregon Securities Law, as cited
in ORS 59.005, as a broker-dealer; or
(f) A contract market designated by the federal Commodity Futures
Trading Commission or any clearinghouse thereof or a securities exchange
registered with the federal Securities and Exchange Commission.
(2) The exemption provided by this section shall not apply to any
transaction or activity which is prohibited by the federal Commodity
Exchange Act or rules adopted by the federal Commodity Futures Trading
Commission. [1987 c.148 §5] The prohibitions in
ORS 645.010 shall not apply to the following:
(1) An account, agreement or transaction within the exclusive
jurisdiction of the federal Commodity Futures Trading Commission;
(2) A commodity contract for silver, gold, platinum, palladium,
copper or other precious metal as defined by rule of the director whether
in coin, bullion or other form if within seven days from the payment of
any portion of the purchase price:
(a) The precious metals purchased are delivered to and held on the
purchaser’s behalf at a depository not affiliated with the seller which
is:
(A) A financial institution;
(B) A depository the warehouse receipts of which are recognized for
delivery purposes for any commodity on a contract market designated by
the federal Commodity Futures Trading Commission;
(C) A storage facility licensed or regulated by the United States
or any agency thereof; or
(D) A depository designated by rule of the director; and
(b) Unless otherwise provided by rule of the director, the
depository issues and the purchaser receives an instrument evidencing
that such quantity of precious metals has been delivered to the
depository on the purchaser’s behalf; and
(3) A commodity contract under which the offeree or the purchaser
is a person referred to in ORS 645.015, an insurance company or an
investment company as defined in the federal Investment Company Act of
1940, as amended. [1987 c.148 §6; 1989 c.179 §3; 1997 c.249 §195] (1) ORS
645.010, 645.035 and 645.040 apply to persons who sell or offer to sell
when:
(a) An offer to sell is made in this state; or
(b) An offer to buy is made and accepted in this state.
(2) ORS 645.010, 645.035 and 645.040 apply to persons who buy or
offer to buy when:
(a) An offer to buy is made in this state; or
(b) An offer to sell is made and accepted in this state. [1987
c.148 §19]
(1) For the purpose of ORS 645.025, an offer to sell or to buy is made in
this state, whether or not either party is then present in this state,
when the offer:
(a) Originates from this state; or
(b) Is directed by the offeror to this state and received at the
place to which it is directed or at any post office in this state in the
case of a mailed offer.
(2)(a) For the purpose of ORS 645.025, an offer to buy or sell is
accepted in this state when acceptance:
(A) Is communicated to the offeror in this state; and
(B) Has not previously been communicated to the offeror, orally or
in writing, outside this state.
(b) Acceptance is communicated to the offeror in this state,
whether or not either party is then present in this state when the
offeree directs it to the offeror in this state reasonably believing the
offeror to be in this state and it is received at the place to which it
is directed or at any post office in this state in the case of a mailed
acceptance. [1987 c.148 §20] (1)
No person shall engage in a trade or business or otherwise act as a
commodity merchant unless such person:
(a) Is registered or temporarily licensed with the federal
Commodity Futures Trading Commission for each activity constituting such
person as a commodity merchant; or
(b) Is exempt from such registration by virtue of the federal
Commodity Exchange Act or rules adopted by the federal Commodity Futures
Trading Commission.
(2) No board of trade shall trade, or provide a place for the
trading of, any commodity contract or commodity option required to be
traded on or subject to the rules of a contract market designated by the
federal Commodity Futures Trading Commission unless such board of trade
is so designated for such commodity contract or commodity option. [1987
c.148 §7](1) It is unlawful for any person, directly or
indirectly, in connection with a commodity contract or commodity option:
(a) To employ any device, scheme or artifice to defraud;
(b) To make any false report, enter any false record or make any
untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements made, in the light of the
circumstances under which they were made, not misleading;
(c) To engage in any transaction, act, practice or course of
business which operates or would operate as a fraud or deceit upon any
person; or
(d) To misappropriate or convert the funds, security or property of
any other person.
(2) The act, omission or failure of any person acting for any
individual, association, partnership, corporation or trust within the
scope of the person’s employment or office shall be deemed the act,
omission or failure of the individual, association, partnership,
corporation or trust, as well as of the person.
(3) This section shall not apply to transactions subject to the
exclusive jurisdiction of the Commodity Futures Trading Commission. [1987
c.148 §8]ADMINISTRATION The director:
(1) May make such public or private investigations within or
outside this state as the director deems necessary to determine whether a
person has violated or is about to violate any provision of this chapter
or any rule or order of the director, or to aid in the enforcement of
this chapter or in the adoption of rules thereunder;
(2) May require or permit a person to file a statement in writing,
under oath or otherwise as the director determines, as to all the facts
and circumstances concerning the matter to be investigated;
(3) May publish information concerning any violation of this
chapter or any rule or order of the director; and
(4) If the director has reason to believe that any person has been
engaged or is engaging in any violation of this chapter, may issue an
order, subject to ORS 645.215, directed to the person to cease and desist
from the violation or threatened violation. [1987 c.148 §11] (1) In accordance with ORS chapter 183, the director
may adopt such rules as are necessary to carry out the provisions of this
chapter.
(2) The director may:
(a) Adopt rules or issue orders prescribing the terms and
conditions of all transactions and contracts covered by the provisions of
this chapter which are not within the exclusive jurisdiction of the
federal Commodity Futures Trading Commission; and
(b) Exempt any person or transaction from any provision of this
chapter conditionally or unconditionally.
(3) No rule may be adopted unless the director finds that the
action is necessary or appropriate for the public interest or for the
protection of investors or speculators and consistent with the purposes
fairly intended by the provisions of this chapter. [1987 c.148 §10] (1) For the
purpose of an investigation or proceeding under this chapter, the
director may administer oaths and affirmations, subpoena witnesses,
compel their attendance, take evidence and require the production of
books, papers, correspondence, memoranda, agreements or other documents
or records which the director deems relevant or material to the inquiry.
Each witness who appears before the director under a subpoena shall
receive the fees and mileage provided for witnesses in ORS 44.415 (2).
(2) If a person fails to comply with a subpoena so issued or a
party or witness refuses to testify on any matters, the judge of the
circuit court of any county, on the application of the director, shall
compel obedience by proceedings for contempt as in the case of
disobedience of the requirements of a subpoena issued from such court or
a refusal to testify therein. [1987 c.148 §12; 1989 c.980 §15a] (1) Except as provided in ORS
183.745, upon the entry of an order under this chapter, the director
shall promptly give to all interested persons notice of the order and
notice that a hearing will be held on the order if a written demand for a
hearing is filed with the director within 20 days after the date of
service of the order.
(2) If timely demand for a hearing is filed, the director shall
hold a hearing on the order as provided by ORS chapter 183. In the
absence of a timely demand for a hearing, no person shall be entitled to
judicial review of the order.
(3) After the hearing, the director shall enter a final order
vacating, modifying or affirming the order. [1987 c.148 §13; 1991 c.734
§57a] (1) A person
aggrieved by an order of the director which has been the subject of a
timely application for hearing before the director shall be entitled to
judicial review of the order under ORS chapter 183.
(2) No judgment of a reviewing court under ORS chapter 183 shall
bar the director from thereafter vacating or modifying an order involved
in the proceeding for review, or entering any new order, for a proper
cause which was not decided by the reviewing court. [1987 c.148 §14; 2003
c.576 §527](1) Whenever it appears to the
director that a person has engaged in an act or practice constituting a
violation of any provision of this chapter or any rule or order of the
director, the director may bring an action in the name and on behalf of
the State of Oregon in any circuit court of this state to enjoin the acts
or practices and to enforce compliance with this chapter or such rule or
order. Upon a proper showing, a permanent or temporary injunction,
restraining order or writ of mandamus shall be granted. If the court
finds that the defendant has violated any provision of this chapter or
any such rule or order, the court may appoint a receiver, who may be the
director, for the defendant or the defendant’s assets. The court may not
require the director to post a bond. The court may award reasonable
attorney fees to the director if the director prevails in an action under
this section. The court may award reasonable attorney fees to a defendant
who prevails in an action under this section if the court determines that
the director had no objectively reasonable basis for asserting the claim
or no reasonable basis for appealing an adverse decision of the trial
court.
(2) The director may include in any action authorized by subsection
(1) of this section:
(a) A claim for restitution on behalf of persons injured by the act
or practice constituting the subject matter of the action; and
(b) A claim for disgorgement of illegal gains or profits derived.
(3) Any recovery under subsection (2) of this section shall be
turned over to the General Fund of the State Treasury unless the court
requires other disposition. [1987 c.148 §15; 1995 c.696 §32] It is not
necessary to negate any of the exemptions or classifications provided in
this chapter in a complaint, action, information, indictment or other
writ or proceeding laid or brought under this chapter; and the burden of
proof of an exemption or classification shall be upon the party claiming
the benefit of such exemption or classification. [1987 c.148 §16]MISCELLANEOUS No provision
of this chapter imposing civil or criminal liability shall apply to an
act done or omitted in good faith in conformity with a rule or order of
the director, notwithstanding that the rule or order may later be amended
or rescinded or be determined by judicial or other authority to be
invalid for any reason. [1987 c.148 §17] The courts of this state shall have
jurisdiction over any person, including a nonresident of this state, who
engages in any act or practice constituting a violation of any provision
of this chapter or any rule or order of the director. [1987 c.148 §18] This chapter may be
construed and implemented to effectuate its general purpose to protect
investors and speculators, to prevent and prosecute illegal and
fraudulent schemes involving commodity contracts and to maximize
coordination with federal and other states’ law and the administration
and enforcement thereof. [1987 c.148 §2] This chapter shall be known as the Oregon
Commodity Code. [1987 c.148 §1] Nothing in this
chapter shall impair, derogate or otherwise affect the authority or
powers of the director under the Oregon Securities Law or the application
of any provision thereof to any person or transaction. [1987 c.148 §9]PENALTIES (1) In addition to all other penalties and
enforcement provisions provided by law, the director or a court may
assess a penalty of not more than $5,000 for every violation, which shall
be paid to the General Fund of the State Treasury, against any person who
violates, or who participates or materially aids another person in a
violation, or who procures, aids or abets the violation of this chapter
or any rule or order of the director.
(2) Every violation is a separate offense and, in the case of a
continuing violation, each day’s continuance is a separate violation, but
the maximum penalty for any continuing violation shall not exceed $20,000.
(3) Civil penalties under this section shall be imposed as provided
in ORS 183.745. [1987 c.148 §22; 1989 c.179 §4; 1991 c.734 §58] Violation of any provision of this
chapter or any rule adopted by the director under this chapter is a Class
B felony. [1987 c.148 §21]
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