§431:3-404  Regulatory action level event. (a)  "Regulatory action level event" means, with respect to anyinsurer, any of the following events:

(1)  The filing of a risk-based capital report by theinsurer which indicates that the insurer's total adjusted capital is greaterthan or equal to its authorized control level risk-based capital but less thanits regulatory action level risk-based capital;

(2)  The notification by the commissioner to aninsurer of an adjusted risk-based capital report that indicates the occurrenceof the event in paragraph (1), if the insurer does not challenge the adjustedrisk-based capital report under section 431:3-407;

(3)  If, pursuant to section 431:3-407, the insurerchallenges an adjusted risk-based capital report that indicates the occurrenceof the event in paragraph (1), the notification by the commissioner to theinsurer that the commissioner has, after a hearing, rejected the insurer'schallenge;

(4)  The failure of the insurer to file a risk-basedcapital report by the filing date, unless the insurer has provided anexplanation for the failure which is satisfactory to the commissioner and hascured the failure within ten days after the filing date;

(5)  The failure of the insurer to submit a risk-basedcapital plan to the commissioner within the time set forth in section431:3-403(c);

(6)  Notification by the commissioner to the insurerthat:

(A)  The risk-based capital plan or revisedrisk-based capital plan submitted by the insurer is, in the judgment of thecommissioner, unsatisfactory; and

(B)  The notification constitutes a regulatoryaction level event with respect to the insurer, if the insurer has notchallenged the determination under section 431:3-407;

(7)  If, pursuant to section 431:3-407, the insurerchallenges a determination by the commissioner under paragraph (6), thenotification by the commissioner to the insurer that the commissioner, after ahearing, has rejected the challenge;

(8)  Notification by the commissioner to the insurerthat the insurer has failed to adhere to its risk-based capital plan or revisedrisk-based capital plan, but only if the failure has a substantial adverseeffect on the ability of the insurer to eliminate the company action levelevent in accordance with its risk-based capital plan or revised risk-basedcapital plan and the commissioner has so stated in the notification, and if theinsurer has not challenged the determination under section 431:3-407; or

(9)  If, pursuant to section 431:3-407, the insurerchallenges a determination by the commissioner under paragraph (8), thenotification by the commissioner to the insurer that the commissioner, after ahearing, has rejected the challenge.

(b)  In the event of a regulatory action levelevent the commissioner shall:

(1)  Require the insurer to prepare and submit arisk-based capital plan or, if applicable, a revised risk-based capital plan;

(2)  Perform any examination or analysis that thecommissioner deems necessary of the assets, liabilities, and operations of theinsurer including a review of its risk-based capital plan or revised risk-basedcapital plan; and

(3)  Subsequent to the examination or analysis, issuea corrective order specifying the corrective actions the commissionerdetermines are required.

(c)  In determining corrective actions, thecommissioner may take into account any relevant factors with respect to theinsurer based upon the commissioner's examination or analysis of the assets,liabilities, and operations of the insurer, including but not limited to the resultsof any sensitivity tests undertaken pursuant to the risk-based capitalinstructions.  The risk-based capital plan or revised risk-based capital planshall be submitted:

(1)  Within forty-five days after the occurrence ofthe regulatory action level event;

(2)  If the insurer challenges an adjusted risk-basedcapital report pursuant to section 431:3-407 and the challenge is not frivolousin the judgment of the commissioner, within forty-five days after thenotification to the insurer that the commissioner, after a hearing, hasrejected the insurer's challenge; or

(3)  If the insurer challenges a revised risk-basedcapital plan pursuant to section 431:3-407 and the challenge is not frivolousin the judgment of the commissioner, within forty-five days after notificationto the insurer that the commissioner, after a hearing, has rejected theinsurer's challenge.

(d)  The commissioner may retain actuaries andinvestment experts and other consultants that may be necessary, in the judgmentof the commissioner, to review the insurer's risk-based capital plan or revisedrisk-based capital plan, examine or analyze the assets, liabilities, andoperations of the insurer, and formulate the corrective order with respect tothe insurer.  The fees, costs, and expenses relating to consultants shall beborne by the affected insurer or any other party as directed by thecommissioner. [L 1994, c 190, pt of §1; am L 1995, c 61, §2 as superseded by c232, §4; am L 1997, c 75, §§6, 7; am L 1999, c 128, §2]