CHAPTER 26.1-03.1RISK-BASED CAPITAL REPORTS26.1-03.1-01. Definitions. As used in this chapter:1."Adjusted risk-based capital report" means a risk-based capital report that has been<br>adjusted by the commissioner in accordance with subsection 3 of section<br>26.1-03.1-02.2."Corrective order" means an order issued by the commissioner specifying corrective<br>actions that the commissioner has determined are required.3."Domestic insurer" means any insurance company domiciled in this state, except a<br>county mutual insurance company.4."Foreign insurer" means any insurance company that is licensed to do business in<br>this state under chapter 26.1-11 but is not domiciled in this state.5."Life or health insurer" means any licensed life or health insurance company or a<br>licensed property and casualty insurer writing only accident and health insurance.6."Negative trend" means, with respect to a life or health insurer, negative trend over a<br>period of time, as determined in accordance with the trend test calculation included<br>in the risk-based capital instructions.7."Risk-based capital instructions" means the risk-based report, including risk-based<br>capital instructions adopted by the national association of insurance commissioners,<br>as such risk-based capital instructions may be amended by the national association<br>of insurance commissioners from time to time in accordance with the procedures<br>adopted by the national association of insurance commissioners.8."Risk-based capital level" means an insurer's company action level risk-based<br>capital, regulatory action level risk-based capital, authorized control level risk-based<br>capital, or mandatory control level risk-based capital and:a."Authorized control level risk-based capital" means the number determined<br>under the risk-based capital formula in accordance with the risk-based capital<br>instructions.b."Company action level risk-based capital" means, with respect to any insurer,<br>the product of two and its authorized control level risk-based capital.c."Mandatory control level risk-based capital" means the product of seventy<br>hundredths and the authorized control level risk-based capital.d."Regulatory action level risk-based capital" means the product of one and<br>one-half and its authorized control level risk-based capital.9."Risk-based capital plan" means a comprehensive financial plan containing the<br>elements specified in subsection 2 of section 26.1-03.1-03.If the commissionerrejects the risk-based capital plan, and it is revised by the insurer, with or without the<br>commissioner's recommendation, the plan must be called the "revised risk-based<br>capital plan".10."Risk-based capital report" means the report required in section 26.1-03.1-02.11."Total adjusted capital" means the sum of:Page No. 1a.An insurer's statutory capital and surplus as determined in accordance with<br>statutory accounting applicable to the annual statements required to be filed<br>under section 26.1-03-07; andb.Such other items, if any, as the risk-based capital instructions may provide.26.1-03.1-02. Risk-based capital reports.1.On or prior to each March first, every domestic insurer shall prepare and submit to<br>the commissioner a report of its risk-based capital levels as of the end of the<br>calendar year just ended, in a form and containing any information required by the<br>risk-based capital instructions.In addition, every domestic insurer shall file itsrisk-based capital report:a.With the national association of insurance commissioners in accordance with<br>the risk-based capital instructions; andb.With the insurance commissioner in any state in which the insurer is authorized<br>to do business, if the insurance commissioner has notified the insurer of its<br>request in writing, in which case the insurer shall file its risk-based capital report<br>not later than the later of:(1)Fifteen days from the receipt of notice to file its risk-based capital report<br>with that state; or(2)The filing date.2.A life and health insurer's risk-based capital must be determined in accordance with<br>the formula set forth in the risk-based capital instructions. The formula must take<br>into account, and may adjust for the covariance between:a.The risk with respect to the insurer's assets;b.The risk of adverse insurance experience with respect to the insurer's liabilities<br>and obligations;c.The interest rate risk with respect to the insurer's business; andd.All other business risks and any other relevant risks as are set forth in the<br>risk-based capital instructions;determined in each case by applying the factors in the manner set forth in the<br>risk-based capital instructions.3.A property and casualty insurer's risk-based capital must be determined in<br>accordance with the formula set forth in the risk-based capital instructions.Theformula must take into account, and may adjust for the covariance between:a.Asset risk;b.Credit risk;c.Underwriting risk; andd.All other business risks and any other relevant risks as are set forth in the<br>risk-based instructions;determined in each case by applying the factors in the manner set forth in the<br>risk-based capital instructions.Page No. 24.An excess of capital over the amount produced by the risk-based capital<br>requirements contained in this chapter and the formulas, schedules, and instructions<br>referenced in this chapter is desirable in the business of insurance. Accordingly,<br>insurers should seek to maintain capital above the risk-based capital levels required<br>by this chapter. Additional capital is used and is useful in the insurance business<br>and helps to secure an insurer against various risks inherent in, or affecting, the<br>business of insurance and not accounted for or only partially measured by the<br>risk-based capital requirements contained in this chapter.5.If a domestic insurer files a risk-based capital report that in the judgment of the<br>commissioner is inaccurate, then the commissioner shall adjust the risk-based<br>capital report to correct the inaccuracy and notify the insurer of the adjustment. The<br>notice must contain a statement of the reason for the adjustment. A risk-based<br>capital report so adjusted is referred to as an adjusted risk-based capital report.26.1-03.1-03. Company action level event.1."Company action level event" means any of the following events:a.The filing of a risk-based capital report by an insurer which indicates that:(1)The insurer's total adjusted capital is greater than or equal to its<br>regulatory action level risk-based capital but less than its company action<br>level risk-based capital; or(2)If a life or health insurer, the insurer has total adjusted capital that is<br>greater than or equal to its company action level risk-based capital but<br>less than the product of its authorized control level risk-based capital and<br>two and one-half and has a negative trend;b.The notification by the commissioner to the insurer of an adjusted risk-based<br>capital report that indicates an event in subdivision a, provided the insurer does<br>not challenge the adjusted risk-based capital report under section 26.1-03.1-07;<br>orc.If, under section 26.1-03.1-07, an insurer challenges an adjusted risk-based<br>capital report that indicates the event in subdivision a, the notification by the<br>commissioner to the insurer that the commissioner, after a hearing, has<br>rejected the insurer's challenge.2.In the event of a company action level event, the insurer shall prepare and submit to<br>the commissioner a risk-based capital plan that must:a.Identify the conditions that contribute to the company action level event;b.Contain proposals of corrective actions that the insurer intends to take and<br>would be expected to result in the elimination of the company action level<br>event;c.Provide projections of the insurer's financial results in the current year and at<br>least the four succeeding years, both in the absence of proposed corrective<br>actions and giving effect to the proposed corrective actions, including<br>projections of statutory operating income, net income, capital, or surplus. The<br>projections for both new and renewal business may include separate<br>projections for each major line of business and separately identify each<br>significant income, expense, and benefit component;d.Identify the key assumptions impacting the insurer's projections and the<br>sensitivity of the projections to the assumptions; andPage No. 3e.Identify the quality of, and problems associated with, the insurer's business,<br>including its assets, anticipated business growth and associated surplus strain,<br>extraordinary exposure to risk, mix of business, and use of reinsurance, if any,<br>in each case.3.The risk-based capital plan must be submitted:a.Within forty-five days of the company action level event; orb.If the insurer challenges an adjusted risk-based capital report under section<br>26.1-03.1-07, within forty-five days after notification to the insurer that, after a<br>hearing, the commissioner has rejected the insurer's challenge.4.Within sixty days after the submission by an insurer of a risk-based capital plan to<br>the commissioner, the commissioner shall notify the insurer whether the risk-based<br>capital plan may be implemented or is, in the judgment of the commissioner,<br>unsatisfactory.If the commissioner determines the risk-based capital plan isunsatisfactory, the notification to the insurer must set forth the reasons for the<br>determination, and may set forth proposed revisions that will render the risk-based<br>capital plan satisfactory, in the judgment of the commissioner.Upon notificationfrom the commissioner, the insurer shall prepare a revised risk-based capital plan,<br>which may incorporate by reference any revisions proposed by the commissioner,<br>and shall submit the revised risk-based capital plan to the commissioner:a.Within forty-five days after the notification from the commissioner; orb.If the insurer challenges the notification from the commissioner under section<br>26.1-03.1-07, within forty-five days after a notification to the insurer that, after a<br>hearing, the commissioner has rejected the insurer's challenge.5.In the event of a notification by the commissioner to an insurer that the insurer's<br>risk-based capital plan or revised risk-based capital plan is unsatisfactory, subject to<br>the insurer's right to a hearing under section 26.1-03.1-07, the commissioner may<br>specify in the notification that the notification constitutes a regulatory action level<br>event.6.Every domestic insurer that files a risk-based capital plan or revised risk-based<br>capital plan with the commissioner shall file a copy of the risk-based capital plan or<br>revised risk-based capital plan with the insurance commissioner in any state in<br>which the insurer is authorized to do business if:a.The state has a risk-based capital provision substantially similar to subsection 1<br>of section 26.1-03.1-08; andb.The insurance commissioner of that state has notified the insurer of its request<br>for the filing in writing, in which case the insurer shall file a copy of the<br>risk-based capital plan or revised risk-based capital plan in that state no later<br>than the later of:(1)Fifteen days after the receipt of notice to file a copy of its risk-based<br>capital plan or revised risk-based capital plan with the state; or(2)The date on which the risk-based capital plan or revised risk-based<br>capital plan is filed under subsections 3 and 4.26.1-03.1-04. Regulatory action level event.1."Regulatory action level event" means, with respect to any insurer, any of the<br>following events:Page No. 4a.The filing of a risk-based capital report by the insurer that indicates that the<br>insurer's total adjusted capital is greater than or equal to its authorized control<br>level risk-based capital but less than its regulatory action level risk-based<br>capital;b.The notification by the commissioner to an insurer of an adjusted risk-based<br>capital report that indicates the event in subdivision a, provided the insurer does<br>not challenge the adjusted risk-based capital report under section 26.1-03.1-07;c.If, under section 26.1-03.1-07, the insurer challenges an adjusted risk-based<br>capital report that indicates the event in subdivision a, the notification by the<br>commissioner to the insurer that the commissioner, after a hearing, has<br>rejected the insurer's challenge;d.The failure of the insurer to file a risk-based capital report by the filing date,<br>unless the insurer has provided an explanation for the failure that is satisfactory<br>to the commissioner and has cured the failure within ten days after the filing<br>date;e.The failure of the insurer to submit a risk-based capital plan to the<br>commissioner within the time period set forth in subsection 3 of section<br>26.1-03.1-03;f.Notification by the commissioner to the insurer that:(1)The risk-based capital plan or revised risk-based capital plan submitted<br>by the insurer, in the judgment of the commissioner, is unsatisfactory;<br>and(2)The notification constitutes a regulatory action level event with respect to<br>the insurer, provided the insurer has not challenged the determination<br>under section 26.1-03.1-07;g.If, under section 26.1-03.1-07, the insurer challenges a determination by the<br>commissioner under subdivision f, the notification by the commissioner to the<br>insurer that, after a hearing, the commissioner has rejected the challenge;h.Notification by the commissioner to the insurer that the insurer has failed to<br>adhere to its risk-based capital plan or revised risk-based capital plan, but only<br>if the failure has a substantial adverse effect on the ability of the insurer to<br>eliminate the company action level event in accordance with its risk-based<br>capital plan or revised risk-based capital plan and the commissioner has so<br>stated in the notification, provided the insurer has not challenged the<br>determination under section 26.1-03.1-07; ori.If, under section 26.1-03.1-07, the insurer challenges a determination by the<br>commissioner under subdivision h, the notification by the commissioner to the<br>insurer that, after a hearing, the commissioner has rejected the challenge.2.In the event of a regulatory action level event the commissioner shall:a.Require the insurer to prepare and submit a risk-based capital plan or, if<br>applicable, a revised risk-based capital plan;b.Perform such examination or analysis of the assets, liabilities, and operations of<br>the insurer, including a review of its risk-based capital plan or revised<br>risk-based capital plan, as the commissioner deems necessary; andPage No. 5c.Subsequent to the examination or analysis, issue an order specifying the<br>corrective actions as the commissioner determines are required in a corrective<br>order.3.In determining corrective actions, the commissioner may take into account any<br>factors deemed relevant with respect to the insurer based upon the commissioner's<br>examination or analysis of the assets, liabilities, and operations of the insurer,<br>including the results of any sensitivity tests undertaken pursuant to the risk-based<br>capital instructions. The risk-based capital plan or revised risk-based capital plan<br>must be submitted:a.Within forty-five days after the occurrence of the regulatory action level event;b.If the insurer challenges an adjusted risk-based capital report under section<br>26.1-03.1-07 and the challenge is not judged to be frivolous by the<br>commissioner, within forty-five days after the notification to the insurer that,<br>after a hearing, the commissioner has rejected the insurer's challenge; orc.If the insurer challenges a revised risk-based capital plan under section<br>26.1-03.1-07 and the challenge is not judged to be frivolous by the<br>commissioner, within forty-five days after the notification to the insurer that,<br>after a hearing, the commissioner has rejected the insurer's challenge.4.The commissioner may retain actuaries and investment experts and other<br>consultants as the commissioner judges to be necessary to review the insurer's<br>risk-based capital plan or revised risk-based capital plan, examine or analyze the<br>assets, liabilities, and operations of the insurer and formulate the corrective order<br>with respect to the insurer. The fees, costs, and expenses relating to consultants<br>must be borne by the affected insurer or such other party as directed by the<br>commissioner.26.1-03.1-05. Authorized control level event.1."Authorized control level event" means any of the following events:a.The filing of a risk-based capital report by the insurer that indicates that the<br>insurer's total adjusted capital is greater than or equal to its mandatory control<br>level risk-based capital but less than its authorized control level risk-based<br>capital;b.The notification by the commissioner to the insurer of an adjusted risk-based<br>capital report that indicates the event in subdivision a, provided the insurer does<br>not challenge the adjusted risk-based capital report under section 26.1-03.1-07;c.If, under section 26.1-03.1-07, the insurer challenges an adjusted risk-based<br>capital report that indicates the event in subdivision a, notification by the<br>commissioner to the insurer that, after a hearing, the commissioner has<br>rejected the insurer's challenge;d.The failure of the insurer to respond, in a manner satisfactory to the<br>commissioner, to a corrective order provided the insurer has not challenged the<br>corrective order under section 26.1-03.1-07; ore.If the insurer has challenged a corrective order under section 26.1-03.1-07 and,<br>after a hearing, the commissioner has rejected the challenge or modified the<br>corrective order, the failure of the insurer to respond, in a manner satisfactory<br>to the commissioner, to the corrective order subsequent to rejection or<br>modification by the commissioner.Page No. 62.In the event of an authorized control level event with respect to an insurer, the<br>commissioner shall:a.Take such actions as are required under section 26.1-03.1-04 regarding an<br>insurer with respect to which a regulatory action level event has occurred; orb.Take necessary action to cause the insurer to be placed under regulatory<br>control under chapter 26.1-06.1 if the commissioner deems it to be in the best<br>interests of the policyholders, creditors of the insurer, and the public. If the<br>commissioner takes such actions, the authorized control level event must be<br>deemed sufficient grounds for the commissioner to take action under chapter<br>26.1-06.1, and the commissioner has the rights, powers, and duties with<br>respect to the insurer in chapter 26.1-06.1. If the commissioner takes action<br>under this subdivision pursuant to an adjusted risk-based capital report, the<br>insurer is entitled to any protection afforded to insurers under chapter 26.1-06.1<br>pertaining to summary proceedings.26.1-03.1-06. Mandatory control level event.1."Mandatory control level event" means any of the following events:a.The filing of a risk-based capital report that indicates that the insurer's total<br>adjusted capital is less than its mandatory control level risk-based capital;b.Notification by the commissioner to the insurer of an adjusted risk-based capital<br>report that indicates the event in subdivision a, provided the insurer does not<br>challenge the adjusted risk-based capital report under section 26.1-03.1-07; orc.If, under section 26.1-03.1-07, the insurer challenges an adjusted risk-based<br>capital report that indicates the event in subdivision a, notification by the<br>commissioner to the insurer that, after a hearing, the commissioner has<br>rejected the insurer's challenge.2.In the event of a mandatory control level event:a.With respect to a life insurer, the commissioner shall take actions as are<br>necessary to place the insurer under regulatory control under chapter<br>26.1-06.1. In that event, the mandatory control level event must be deemed<br>sufficient grounds for the commissioner to take action under chapter 26.1-06.1,<br>and the commissioner has the rights, powers, and duties in chapter 26.1-06.1<br>with respect to the insurer. If the commissioner takes action pursuant to an<br>adjusted risk-based capital report, the insurer is entitled to the protection of<br>chapter 26.1-06.1 pertaining to summary proceedings. Notwithstanding any of<br>the foregoing, the commissioner may forego action for up to ninety days after<br>the mandatory control level event if the commissioner finds there is a<br>reasonable expectation that the mandatory control level event may be<br>eliminated within the ninety-day period.b.With respect to a property and casualty insurer, the commissioner may take<br>such actions as are necessary to place the insurer under regulatory control<br>under chapter 26.1-06.1, or, in the case of an insurer that is not writing<br>business and that is running off its existing business, may allow the insurer to<br>continue its runoff under the supervision of the commissioner. In either event,<br>the mandatory control level event must be deemed sufficient grounds for the<br>commissioner to take action under chapter 26.1-06.1 and the commissioner<br>has the rights, powers, and duties in chapter 26.1-06.1 with respect to the<br>insurer. If the commissioner takes action pursuant to an adjusted risk-based<br>capital report, the insurer is entitled to the protection of chapter 26.1-06.1<br>pertaining to summary proceedings. Notwithstanding any of the foregoing, thePage No. 7commissioner may forego action for up to ninety days after the mandatory<br>control level event if the commissioner finds there is a reasonable expectation<br>that the mandatory control level events may be eliminated within the ninety-day<br>period.26.1-03.1-07. Hearings. Upon:1.Notification to an insurer by the commissioner of an adjusted risk-based capital<br>report;2.Notification to an insurer by the commissioner that:a.The insurer's risk-based capital plan or revised risk-based capital plan is<br>unsatisfactory; andb.Such notification constitutes a regulatory action level event with respect to the<br>insurer;3.Notification to any insurer by the commissioner that the insurer has failed to adhere<br>to its risk-based capital plan or revised risk-based capital plan and that the failure<br>has a substantial adverse effect on the ability of the insurer to eliminate the company<br>action level event with respect to the insurer in accordance with its risk-based capital<br>plan or revised risk-based capital plan; or4.Notification to an insurer by the commissioner of a corrective order with respect to<br>the insurer;the insurer is entitled to a confidential departmental hearing, on a record, at which the insurer<br>may challenge any determination or action by the commissioner. The insurer shall notify the<br>commissioner of its request for a hearing within five days after the notification by the<br>commissioner under subsection 1, 2, 3, or 4. Upon receipt of the insurer's request for a hearing,<br>the commissioner must set a date for the hearing, which date must be no less than ten nor more<br>than thirty days after the date of the insurer's request.26.1-03.1-08. Confidentiality - Prohibition on announcements - Prohibition on usein ratemaking.1.All risk-based capital reports, to the extent the information therein is not required to<br>be set forth in a publicly available annual statement schedule, and risk-based capital<br>plans, including the results or report of any examination or analysis of an insurer<br>performed under this chapter and any corrective order issued by the commissioner<br>pursuant to examination or analysis, with respect to any domestic insurer or foreign<br>insurer that are filed with the commissioner constitute information that might be<br>damaging to the insurer if made available to its competitors, and therefore must be<br>kept confidential by the commissioner. This information may not be made public or<br>be subject to subpoena, other than by the commissioner and then only for the<br>purpose of enforcement actions taken by the commissioner under this chapter or<br>any other provision of the insurance laws of this state.2.It is the judgment of the legislative assembly that the comparison of an insurer's total<br>adjusted capital to any of its risk-based capital levels is a regulatory tool that may<br>indicate the need for possible corrective action with respect to the insurer, and is not<br>intended as a means to rank insurers generally. Therefore, except as otherwise<br>required under this chapter, the making, publishing, disseminating, circulating, or<br>placing before the public, or causing, directly or indirectly, to be made, published,<br>disseminated, circulated, or placed before the public, in a newspaper, magazine, or<br>other publication, or in the form of a notice, circular, pamphlet, letter, or poster, or<br>over any radio or television station, or in any other way, an advertisement,<br>announcement, or statement containing an assertion, representation, or statementPage No. 8with regard to the risk-based capital levels of any insurer, or of any component<br>derived in the calculation, by any insurer, insurance producer, or other person<br>engaged in any manner in the insurance business would be misleading and is<br>prohibited.However, if any materially false statement with respect to thecomparison regarding an insurer's total adjusted capital to its risk-based capital<br>levels, or any of them, or an inappropriate comparison of any other amount to the<br>insurer's risk-based capital levels is published in any written publication and the<br>insurer is able to demonstrate to the commissioner with substantial proof the falsity<br>of the statement, or the inappropriateness, as the case may be, then the insurer may<br>publish an announcement in a written publication if the sole purpose of the<br>announcement is to rebut the materially false statement.3.It is the further judgment of the legislative assembly that the risk-based capital<br>instructions, risk-based capital reports, adjusted risk-based capital reports,<br>risk-based capital plans, and revised risk-based capital plans are intended solely for<br>use by the commissioner in monitoring the solvency of insurers and the need for<br>possible corrective action with respect to insurers and may not be used by the<br>commissioner for ratemaking nor considered or introduced as evidence in any rate<br>proceeding nor used by the commissioner to calculate or derive any elements of an<br>appropriate premium level or rate of return for any line of insurance that an insurer or<br>any affiliate is authorized to write.26.1-03.1-09. Supplemental provisions - Rules - Exemption.1.This chapter is supplemental to any other laws of this state, and does not preclude<br>or limit any other powers or duties of the commissioner under these laws, including<br>chapters 26.1-06.1 and 26.1-06.2.2.The commissioner may adopt rules necessary for the implementation of this<br>chapter.3.The commissioner may exempt from the application of this chapter any domestic<br>property and casualty insurer that:a.Writes direct business only in this state;b.Writes direct annual premiums less than an amount determined by the<br>commissioner; andc.Assumes no reinsurance in excess of five percent of direct premium written.26.1-03.1-10. Foreign insurers.1.Upon the written request of the commissioner, any foreign insurer shall submit to the<br>commissioner a risk-based capital report as of the end of the calendar year just<br>ended, the later of:a.The date a risk-based capital report would be required to be filed by a domestic<br>insurer under this chapter; orb.Fifteen days after the request is received by the foreign insurer.At the written request of the commissioner, any foreign insurer shall promptly submit<br>to the commissioner a copy of any risk-based capital plan that is filed with the<br>insurance commissioner of another state.2.In the event of a company action level event, regulatory action level event, or<br>authorized control level event, with respect to any foreign insurer as determined<br>under the risk-based capital statute applicable in the state of domicile of the insurer,Page No. 9or, if no risk-based capital provision is in force in that state, under the provisions of<br>this chapter, if the insurance commissioner of the state of domicile of the foreign<br>insurer fails to require the foreign insurer to file a risk-based capital plan in the<br>manner specified under that state's risk-based capital statute, or, if no risk-based<br>capital provision is in force in the state, the commissioner may require the foreign<br>insurer to file a risk-based capital plan with the commissioner under section<br>26.1-03.1-03. In such event, the failure of the foreign insurer to file a risk-based<br>capital plan with the commissioner is grounds to order the insurer to cease and<br>desist from writing new insurance business in this state.3.In the event of a mandatory control level event with respect to any foreign insurer, if<br>no domiciliary receiver has been appointed with respect to the foreign insurer under<br>the rehabilitation and liquidation statute applicable in the state of domicile of the<br>foreign insurer, the commissioner may make application to the district court<br>permitted under section 26.1-06.1-04 with respect to the liquidation of property of<br>foreign insurers found in this state, and the occurrence of the mandatory control<br>level event is adequate grounds for the application.26.1-03.1-11. Immunity. There is no liability on the part of, and no cause of action mayarise against, the commissioner or the insurance department or its employees or agents for any<br>action taken by them in the performance of their powers and duties under this chapter.26.1-03.1-12. Notices. All notices by the commissioner to an insurer that may result inregulatory action hereunder are effective upon dispatch if transmitted by registered mail, or in the<br>case of any other transmission is effective upon the insurer's receipt of the notice.26.1-03.1-13. Phasein provision.1.For risk-based capital reports required to be filed by life insurers with respect to<br>1993, the following requirements apply in lieu of the provisions of sections<br>26.1-03.1-03, 26.1-03.1-04, 26.1-03.1-05, and 26.1-03.1-06:a.In the event of a company action level event with respect to a domestic insurer,<br>the commissioner may take no regulatory action hereunder.b.In the event of a regulatory action level event under subdivision a, b, or c of<br>subsection 1 of section 26.1-03.1-04, the commissioner shall take the actions<br>required under section 26.1-03.1-03.c.In the event of a regulatory action level event under subdivision d, e, f, g, h, or i<br>of subsection 1 of section 26.1-03.1-04 or an authorized control level event, the<br>commissioner shall take the actions required under section 26.1-03.1-04 with<br>respect to the insurer.d.In the event of a mandatory control level event with respect to an insurer, the<br>commissioner shall take the actions required under section 26.1-03.1-05 with<br>respect to the insurer.2.For risk-based capital reports required to be filed by property and casualty insurers<br>with respect to 1994, the following requirements apply in lieu of the provisions of<br>sections 26.1-03.1-03, 26.1-03.1-04, 26.1-03.1-05, and 26.1-03.1-06:a.In the event of a company action level event with respect to a domestic insurer,<br>the commissioner shall take no regulatory action hereunder.b.In the event of a regulatory action level event under subdivision a, b, or c of<br>subsection 1 of section 26.1-03.1-04, the commissioner shall take the actions<br>required under section 26.1-03.1-03.Page No. 10c.In the event of a regulatory action level event under subdivision d, e, f, g, h, or i<br>of subsection 1 of section 26.1-03.1-04 or an authorized control level event, the<br>commissioner shall take the action required under section 26.1-03.1-05 with<br>respect to the insurer.Page No. 11Document Outlinechapter 26.1-03.1 risk-based capital reports
CHAPTER 26.1-03.1RISK-BASED CAPITAL REPORTS26.1-03.1-01. Definitions. As used in this chapter:1."Adjusted risk-based capital report" means a risk-based capital report that has been<br>adjusted by the commissioner in accordance with subsection 3 of section<br>26.1-03.1-02.2."Corrective order" means an order issued by the commissioner specifying corrective<br>actions that the commissioner has determined are required.3."Domestic insurer" means any insurance company domiciled in this state, except a<br>county mutual insurance company.4."Foreign insurer" means any insurance company that is licensed to do business in<br>this state under chapter 26.1-11 but is not domiciled in this state.5."Life or health insurer" means any licensed life or health insurance company or a<br>licensed property and casualty insurer writing only accident and health insurance.6."Negative trend" means, with respect to a life or health insurer, negative trend over a<br>period of time, as determined in accordance with the trend test calculation included<br>in the risk-based capital instructions.7."Risk-based capital instructions" means the risk-based report, including risk-based<br>capital instructions adopted by the national association of insurance commissioners,<br>as such risk-based capital instructions may be amended by the national association<br>of insurance commissioners from time to time in accordance with the procedures<br>adopted by the national association of insurance commissioners.8."Risk-based capital level" means an insurer's company action level risk-based<br>capital, regulatory action level risk-based capital, authorized control level risk-based<br>capital, or mandatory control level risk-based capital and:a."Authorized control level risk-based capital" means the number determined<br>under the risk-based capital formula in accordance with the risk-based capital<br>instructions.b."Company action level risk-based capital" means, with respect to any insurer,<br>the product of two and its authorized control level risk-based capital.c."Mandatory control level risk-based capital" means the product of seventy<br>hundredths and the authorized control level risk-based capital.d."Regulatory action level risk-based capital" means the product of one and<br>one-half and its authorized control level risk-based capital.9."Risk-based capital plan" means a comprehensive financial plan containing the<br>elements specified in subsection 2 of section 26.1-03.1-03.If the commissionerrejects the risk-based capital plan, and it is revised by the insurer, with or without the<br>commissioner's recommendation, the plan must be called the "revised risk-based<br>capital plan".10."Risk-based capital report" means the report required in section 26.1-03.1-02.11."Total adjusted capital" means the sum of:Page No. 1a.An insurer's statutory capital and surplus as determined in accordance with<br>statutory accounting applicable to the annual statements required to be filed<br>under section 26.1-03-07; andb.Such other items, if any, as the risk-based capital instructions may provide.26.1-03.1-02. Risk-based capital reports.1.On or prior to each March first, every domestic insurer shall prepare and submit to<br>the commissioner a report of its risk-based capital levels as of the end of the<br>calendar year just ended, in a form and containing any information required by the<br>risk-based capital instructions.In addition, every domestic insurer shall file itsrisk-based capital report:a.With the national association of insurance commissioners in accordance with<br>the risk-based capital instructions; andb.With the insurance commissioner in any state in which the insurer is authorized<br>to do business, if the insurance commissioner has notified the insurer of its<br>request in writing, in which case the insurer shall file its risk-based capital report<br>not later than the later of:(1)Fifteen days from the receipt of notice to file its risk-based capital report<br>with that state; or(2)The filing date.2.A life and health insurer's risk-based capital must be determined in accordance with<br>the formula set forth in the risk-based capital instructions. The formula must take<br>into account, and may adjust for the covariance between:a.The risk with respect to the insurer's assets;b.The risk of adverse insurance experience with respect to the insurer's liabilities<br>and obligations;c.The interest rate risk with respect to the insurer's business; andd.All other business risks and any other relevant risks as are set forth in the<br>risk-based capital instructions;determined in each case by applying the factors in the manner set forth in the<br>risk-based capital instructions.3.A property and casualty insurer's risk-based capital must be determined in<br>accordance with the formula set forth in the risk-based capital instructions.Theformula must take into account, and may adjust for the covariance between:a.Asset risk;b.Credit risk;c.Underwriting risk; andd.All other business risks and any other relevant risks as are set forth in the<br>risk-based instructions;determined in each case by applying the factors in the manner set forth in the<br>risk-based capital instructions.Page No. 24.An excess of capital over the amount produced by the risk-based capital<br>requirements contained in this chapter and the formulas, schedules, and instructions<br>referenced in this chapter is desirable in the business of insurance. Accordingly,<br>insurers should seek to maintain capital above the risk-based capital levels required<br>by this chapter. Additional capital is used and is useful in the insurance business<br>and helps to secure an insurer against various risks inherent in, or affecting, the<br>business of insurance and not accounted for or only partially measured by the<br>risk-based capital requirements contained in this chapter.5.If a domestic insurer files a risk-based capital report that in the judgment of the<br>commissioner is inaccurate, then the commissioner shall adjust the risk-based<br>capital report to correct the inaccuracy and notify the insurer of the adjustment. The<br>notice must contain a statement of the reason for the adjustment. A risk-based<br>capital report so adjusted is referred to as an adjusted risk-based capital report.26.1-03.1-03. Company action level event.1."Company action level event" means any of the following events:a.The filing of a risk-based capital report by an insurer which indicates that:(1)The insurer's total adjusted capital is greater than or equal to its<br>regulatory action level risk-based capital but less than its company action<br>level risk-based capital; or(2)If a life or health insurer, the insurer has total adjusted capital that is<br>greater than or equal to its company action level risk-based capital but<br>less than the product of its authorized control level risk-based capital and<br>two and one-half and has a negative trend;b.The notification by the commissioner to the insurer of an adjusted risk-based<br>capital report that indicates an event in subdivision a, provided the insurer does<br>not challenge the adjusted risk-based capital report under section 26.1-03.1-07;<br>orc.If, under section 26.1-03.1-07, an insurer challenges an adjusted risk-based<br>capital report that indicates the event in subdivision a, the notification by the<br>commissioner to the insurer that the commissioner, after a hearing, has<br>rejected the insurer's challenge.2.In the event of a company action level event, the insurer shall prepare and submit to<br>the commissioner a risk-based capital plan that must:a.Identify the conditions that contribute to the company action level event;b.Contain proposals of corrective actions that the insurer intends to take and<br>would be expected to result in the elimination of the company action level<br>event;c.Provide projections of the insurer's financial results in the current year and at<br>least the four succeeding years, both in the absence of proposed corrective<br>actions and giving effect to the proposed corrective actions, including<br>projections of statutory operating income, net income, capital, or surplus. The<br>projections for both new and renewal business may include separate<br>projections for each major line of business and separately identify each<br>significant income, expense, and benefit component;d.Identify the key assumptions impacting the insurer's projections and the<br>sensitivity of the projections to the assumptions; andPage No. 3e.Identify the quality of, and problems associated with, the insurer's business,<br>including its assets, anticipated business growth and associated surplus strain,<br>extraordinary exposure to risk, mix of business, and use of reinsurance, if any,<br>in each case.3.The risk-based capital plan must be submitted:a.Within forty-five days of the company action level event; orb.If the insurer challenges an adjusted risk-based capital report under section<br>26.1-03.1-07, within forty-five days after notification to the insurer that, after a<br>hearing, the commissioner has rejected the insurer's challenge.4.Within sixty days after the submission by an insurer of a risk-based capital plan to<br>the commissioner, the commissioner shall notify the insurer whether the risk-based<br>capital plan may be implemented or is, in the judgment of the commissioner,<br>unsatisfactory.If the commissioner determines the risk-based capital plan isunsatisfactory, the notification to the insurer must set forth the reasons for the<br>determination, and may set forth proposed revisions that will render the risk-based<br>capital plan satisfactory, in the judgment of the commissioner.Upon notificationfrom the commissioner, the insurer shall prepare a revised risk-based capital plan,<br>which may incorporate by reference any revisions proposed by the commissioner,<br>and shall submit the revised risk-based capital plan to the commissioner:a.Within forty-five days after the notification from the commissioner; orb.If the insurer challenges the notification from the commissioner under section<br>26.1-03.1-07, within forty-five days after a notification to the insurer that, after a<br>hearing, the commissioner has rejected the insurer's challenge.5.In the event of a notification by the commissioner to an insurer that the insurer's<br>risk-based capital plan or revised risk-based capital plan is unsatisfactory, subject to<br>the insurer's right to a hearing under section 26.1-03.1-07, the commissioner may<br>specify in the notification that the notification constitutes a regulatory action level<br>event.6.Every domestic insurer that files a risk-based capital plan or revised risk-based<br>capital plan with the commissioner shall file a copy of the risk-based capital plan or<br>revised risk-based capital plan with the insurance commissioner in any state in<br>which the insurer is authorized to do business if:a.The state has a risk-based capital provision substantially similar to subsection 1<br>of section 26.1-03.1-08; andb.The insurance commissioner of that state has notified the insurer of its request<br>for the filing in writing, in which case the insurer shall file a copy of the<br>risk-based capital plan or revised risk-based capital plan in that state no later<br>than the later of:(1)Fifteen days after the receipt of notice to file a copy of its risk-based<br>capital plan or revised risk-based capital plan with the state; or(2)The date on which the risk-based capital plan or revised risk-based<br>capital plan is filed under subsections 3 and 4.26.1-03.1-04. Regulatory action level event.1."Regulatory action level event" means, with respect to any insurer, any of the<br>following events:Page No. 4a.The filing of a risk-based capital report by the insurer that indicates that the<br>insurer's total adjusted capital is greater than or equal to its authorized control<br>level risk-based capital but less than its regulatory action level risk-based<br>capital;b.The notification by the commissioner to an insurer of an adjusted risk-based<br>capital report that indicates the event in subdivision a, provided the insurer does<br>not challenge the adjusted risk-based capital report under section 26.1-03.1-07;c.If, under section 26.1-03.1-07, the insurer challenges an adjusted risk-based<br>capital report that indicates the event in subdivision a, the notification by the<br>commissioner to the insurer that the commissioner, after a hearing, has<br>rejected the insurer's challenge;d.The failure of the insurer to file a risk-based capital report by the filing date,<br>unless the insurer has provided an explanation for the failure that is satisfactory<br>to the commissioner and has cured the failure within ten days after the filing<br>date;e.The failure of the insurer to submit a risk-based capital plan to the<br>commissioner within the time period set forth in subsection 3 of section<br>26.1-03.1-03;f.Notification by the commissioner to the insurer that:(1)The risk-based capital plan or revised risk-based capital plan submitted<br>by the insurer, in the judgment of the commissioner, is unsatisfactory;<br>and(2)The notification constitutes a regulatory action level event with respect to<br>the insurer, provided the insurer has not challenged the determination<br>under section 26.1-03.1-07;g.If, under section 26.1-03.1-07, the insurer challenges a determination by the<br>commissioner under subdivision f, the notification by the commissioner to the<br>insurer that, after a hearing, the commissioner has rejected the challenge;h.Notification by the commissioner to the insurer that the insurer has failed to<br>adhere to its risk-based capital plan or revised risk-based capital plan, but only<br>if the failure has a substantial adverse effect on the ability of the insurer to<br>eliminate the company action level event in accordance with its risk-based<br>capital plan or revised risk-based capital plan and the commissioner has so<br>stated in the notification, provided the insurer has not challenged the<br>determination under section 26.1-03.1-07; ori.If, under section 26.1-03.1-07, the insurer challenges a determination by the<br>commissioner under subdivision h, the notification by the commissioner to the<br>insurer that, after a hearing, the commissioner has rejected the challenge.2.In the event of a regulatory action level event the commissioner shall:a.Require the insurer to prepare and submit a risk-based capital plan or, if<br>applicable, a revised risk-based capital plan;b.Perform such examination or analysis of the assets, liabilities, and operations of<br>the insurer, including a review of its risk-based capital plan or revised<br>risk-based capital plan, as the commissioner deems necessary; andPage No. 5c.Subsequent to the examination or analysis, issue an order specifying the<br>corrective actions as the commissioner determines are required in a corrective<br>order.3.In determining corrective actions, the commissioner may take into account any<br>factors deemed relevant with respect to the insurer based upon the commissioner's<br>examination or analysis of the assets, liabilities, and operations of the insurer,<br>including the results of any sensitivity tests undertaken pursuant to the risk-based<br>capital instructions. The risk-based capital plan or revised risk-based capital plan<br>must be submitted:a.Within forty-five days after the occurrence of the regulatory action level event;b.If the insurer challenges an adjusted risk-based capital report under section<br>26.1-03.1-07 and the challenge is not judged to be frivolous by the<br>commissioner, within forty-five days after the notification to the insurer that,<br>after a hearing, the commissioner has rejected the insurer's challenge; orc.If the insurer challenges a revised risk-based capital plan under section<br>26.1-03.1-07 and the challenge is not judged to be frivolous by the<br>commissioner, within forty-five days after the notification to the insurer that,<br>after a hearing, the commissioner has rejected the insurer's challenge.4.The commissioner may retain actuaries and investment experts and other<br>consultants as the commissioner judges to be necessary to review the insurer's<br>risk-based capital plan or revised risk-based capital plan, examine or analyze the<br>assets, liabilities, and operations of the insurer and formulate the corrective order<br>with respect to the insurer. The fees, costs, and expenses relating to consultants<br>must be borne by the affected insurer or such other party as directed by the<br>commissioner.26.1-03.1-05. Authorized control level event.1."Authorized control level event" means any of the following events:a.The filing of a risk-based capital report by the insurer that indicates that the<br>insurer's total adjusted capital is greater than or equal to its mandatory control<br>level risk-based capital but less than its authorized control level risk-based<br>capital;b.The notification by the commissioner to the insurer of an adjusted risk-based<br>capital report that indicates the event in subdivision a, provided the insurer does<br>not challenge the adjusted risk-based capital report under section 26.1-03.1-07;c.If, under section 26.1-03.1-07, the insurer challenges an adjusted risk-based<br>capital report that indicates the event in subdivision a, notification by the<br>commissioner to the insurer that, after a hearing, the commissioner has<br>rejected the insurer's challenge;d.The failure of the insurer to respond, in a manner satisfactory to the<br>commissioner, to a corrective order provided the insurer has not challenged the<br>corrective order under section 26.1-03.1-07; ore.If the insurer has challenged a corrective order under section 26.1-03.1-07 and,<br>after a hearing, the commissioner has rejected the challenge or modified the<br>corrective order, the failure of the insurer to respond, in a manner satisfactory<br>to the commissioner, to the corrective order subsequent to rejection or<br>modification by the commissioner.Page No. 62.In the event of an authorized control level event with respect to an insurer, the<br>commissioner shall:a.Take such actions as are required under section 26.1-03.1-04 regarding an<br>insurer with respect to which a regulatory action level event has occurred; orb.Take necessary action to cause the insurer to be placed under regulatory<br>control under chapter 26.1-06.1 if the commissioner deems it to be in the best<br>interests of the policyholders, creditors of the insurer, and the public. If the<br>commissioner takes such actions, the authorized control level event must be<br>deemed sufficient grounds for the commissioner to take action under chapter<br>26.1-06.1, and the commissioner has the rights, powers, and duties with<br>respect to the insurer in chapter 26.1-06.1. If the commissioner takes action<br>under this subdivision pursuant to an adjusted risk-based capital report, the<br>insurer is entitled to any protection afforded to insurers under chapter 26.1-06.1<br>pertaining to summary proceedings.26.1-03.1-06. Mandatory control level event.1."Mandatory control level event" means any of the following events:a.The filing of a risk-based capital report that indicates that the insurer's total<br>adjusted capital is less than its mandatory control level risk-based capital;b.Notification by the commissioner to the insurer of an adjusted risk-based capital<br>report that indicates the event in subdivision a, provided the insurer does not<br>challenge the adjusted risk-based capital report under section 26.1-03.1-07; orc.If, under section 26.1-03.1-07, the insurer challenges an adjusted risk-based<br>capital report that indicates the event in subdivision a, notification by the<br>commissioner to the insurer that, after a hearing, the commissioner has<br>rejected the insurer's challenge.2.In the event of a mandatory control level event:a.With respect to a life insurer, the commissioner shall take actions as are<br>necessary to place the insurer under regulatory control under chapter<br>26.1-06.1. In that event, the mandatory control level event must be deemed<br>sufficient grounds for the commissioner to take action under chapter 26.1-06.1,<br>and the commissioner has the rights, powers, and duties in chapter 26.1-06.1<br>with respect to the insurer. If the commissioner takes action pursuant to an<br>adjusted risk-based capital report, the insurer is entitled to the protection of<br>chapter 26.1-06.1 pertaining to summary proceedings. Notwithstanding any of<br>the foregoing, the commissioner may forego action for up to ninety days after<br>the mandatory control level event if the commissioner finds there is a<br>reasonable expectation that the mandatory control level event may be<br>eliminated within the ninety-day period.b.With respect to a property and casualty insurer, the commissioner may take<br>such actions as are necessary to place the insurer under regulatory control<br>under chapter 26.1-06.1, or, in the case of an insurer that is not writing<br>business and that is running off its existing business, may allow the insurer to<br>continue its runoff under the supervision of the commissioner. In either event,<br>the mandatory control level event must be deemed sufficient grounds for the<br>commissioner to take action under chapter 26.1-06.1 and the commissioner<br>has the rights, powers, and duties in chapter 26.1-06.1 with respect to the<br>insurer. If the commissioner takes action pursuant to an adjusted risk-based<br>capital report, the insurer is entitled to the protection of chapter 26.1-06.1<br>pertaining to summary proceedings. Notwithstanding any of the foregoing, thePage No. 7commissioner may forego action for up to ninety days after the mandatory<br>control level event if the commissioner finds there is a reasonable expectation<br>that the mandatory control level events may be eliminated within the ninety-day<br>period.26.1-03.1-07. Hearings. Upon:1.Notification to an insurer by the commissioner of an adjusted risk-based capital<br>report;2.Notification to an insurer by the commissioner that:a.The insurer's risk-based capital plan or revised risk-based capital plan is<br>unsatisfactory; andb.Such notification constitutes a regulatory action level event with respect to the<br>insurer;3.Notification to any insurer by the commissioner that the insurer has failed to adhere<br>to its risk-based capital plan or revised risk-based capital plan and that the failure<br>has a substantial adverse effect on the ability of the insurer to eliminate the company<br>action level event with respect to the insurer in accordance with its risk-based capital<br>plan or revised risk-based capital plan; or4.Notification to an insurer by the commissioner of a corrective order with respect to<br>the insurer;the insurer is entitled to a confidential departmental hearing, on a record, at which the insurer<br>may challenge any determination or action by the commissioner. The insurer shall notify the<br>commissioner of its request for a hearing within five days after the notification by the<br>commissioner under subsection 1, 2, 3, or 4. Upon receipt of the insurer's request for a hearing,<br>the commissioner must set a date for the hearing, which date must be no less than ten nor more<br>than thirty days after the date of the insurer's request.26.1-03.1-08. Confidentiality - Prohibition on announcements - Prohibition on usein ratemaking.1.All risk-based capital reports, to the extent the information therein is not required to<br>be set forth in a publicly available annual statement schedule, and risk-based capital<br>plans, including the results or report of any examination or analysis of an insurer<br>performed under this chapter and any corrective order issued by the commissioner<br>pursuant to examination or analysis, with respect to any domestic insurer or foreign<br>insurer that are filed with the commissioner constitute information that might be<br>damaging to the insurer if made available to its competitors, and therefore must be<br>kept confidential by the commissioner. This information may not be made public or<br>be subject to subpoena, other than by the commissioner and then only for the<br>purpose of enforcement actions taken by the commissioner under this chapter or<br>any other provision of the insurance laws of this state.2.It is the judgment of the legislative assembly that the comparison of an insurer's total<br>adjusted capital to any of its risk-based capital levels is a regulatory tool that may<br>indicate the need for possible corrective action with respect to the insurer, and is not<br>intended as a means to rank insurers generally. Therefore, except as otherwise<br>required under this chapter, the making, publishing, disseminating, circulating, or<br>placing before the public, or causing, directly or indirectly, to be made, published,<br>disseminated, circulated, or placed before the public, in a newspaper, magazine, or<br>other publication, or in the form of a notice, circular, pamphlet, letter, or poster, or<br>over any radio or television station, or in any other way, an advertisement,<br>announcement, or statement containing an assertion, representation, or statementPage No. 8with regard to the risk-based capital levels of any insurer, or of any component<br>derived in the calculation, by any insurer, insurance producer, or other person<br>engaged in any manner in the insurance business would be misleading and is<br>prohibited.However, if any materially false statement with respect to thecomparison regarding an insurer's total adjusted capital to its risk-based capital<br>levels, or any of them, or an inappropriate comparison of any other amount to the<br>insurer's risk-based capital levels is published in any written publication and the<br>insurer is able to demonstrate to the commissioner with substantial proof the falsity<br>of the statement, or the inappropriateness, as the case may be, then the insurer may<br>publish an announcement in a written publication if the sole purpose of the<br>announcement is to rebut the materially false statement.3.It is the further judgment of the legislative assembly that the risk-based capital<br>instructions, risk-based capital reports, adjusted risk-based capital reports,<br>risk-based capital plans, and revised risk-based capital plans are intended solely for<br>use by the commissioner in monitoring the solvency of insurers and the need for<br>possible corrective action with respect to insurers and may not be used by the<br>commissioner for ratemaking nor considered or introduced as evidence in any rate<br>proceeding nor used by the commissioner to calculate or derive any elements of an<br>appropriate premium level or rate of return for any line of insurance that an insurer or<br>any affiliate is authorized to write.26.1-03.1-09. Supplemental provisions - Rules - Exemption.1.This chapter is supplemental to any other laws of this state, and does not preclude<br>or limit any other powers or duties of the commissioner under these laws, including<br>chapters 26.1-06.1 and 26.1-06.2.2.The commissioner may adopt rules necessary for the implementation of this<br>chapter.3.The commissioner may exempt from the application of this chapter any domestic<br>property and casualty insurer that:a.Writes direct business only in this state;b.Writes direct annual premiums less than an amount determined by the<br>commissioner; andc.Assumes no reinsurance in excess of five percent of direct premium written.26.1-03.1-10. Foreign insurers.1.Upon the written request of the commissioner, any foreign insurer shall submit to the<br>commissioner a risk-based capital report as of the end of the calendar year just<br>ended, the later of:a.The date a risk-based capital report would be required to be filed by a domestic<br>insurer under this chapter; orb.Fifteen days after the request is received by the foreign insurer.At the written request of the commissioner, any foreign insurer shall promptly submit<br>to the commissioner a copy of any risk-based capital plan that is filed with the<br>insurance commissioner of another state.2.In the event of a company action level event, regulatory action level event, or<br>authorized control level event, with respect to any foreign insurer as determined<br>under the risk-based capital statute applicable in the state of domicile of the insurer,Page No. 9or, if no risk-based capital provision is in force in that state, under the provisions of<br>this chapter, if the insurance commissioner of the state of domicile of the foreign<br>insurer fails to require the foreign insurer to file a risk-based capital plan in the<br>manner specified under that state's risk-based capital statute, or, if no risk-based<br>capital provision is in force in the state, the commissioner may require the foreign<br>insurer to file a risk-based capital plan with the commissioner under section<br>26.1-03.1-03. In such event, the failure of the foreign insurer to file a risk-based<br>capital plan with the commissioner is grounds to order the insurer to cease and<br>desist from writing new insurance business in this state.3.In the event of a mandatory control level event with respect to any foreign insurer, if<br>no domiciliary receiver has been appointed with respect to the foreign insurer under<br>the rehabilitation and liquidation statute applicable in the state of domicile of the<br>foreign insurer, the commissioner may make application to the district court<br>permitted under section 26.1-06.1-04 with respect to the liquidation of property of<br>foreign insurers found in this state, and the occurrence of the mandatory control<br>level event is adequate grounds for the application.26.1-03.1-11. Immunity. There is no liability on the part of, and no cause of action mayarise against, the commissioner or the insurance department or its employees or agents for any<br>action taken by them in the performance of their powers and duties under this chapter.26.1-03.1-12. Notices. All notices by the commissioner to an insurer that may result inregulatory action hereunder are effective upon dispatch if transmitted by registered mail, or in the<br>case of any other transmission is effective upon the insurer's receipt of the notice.26.1-03.1-13. Phasein provision.1.For risk-based capital reports required to be filed by life insurers with respect to<br>1993, the following requirements apply in lieu of the provisions of sections<br>26.1-03.1-03, 26.1-03.1-04, 26.1-03.1-05, and 26.1-03.1-06:a.In the event of a company action level event with respect to a domestic insurer,<br>the commissioner may take no regulatory action hereunder.b.In the event of a regulatory action level event under subdivision a, b, or c of<br>subsection 1 of section 26.1-03.1-04, the commissioner shall take the actions<br>required under section 26.1-03.1-03.c.In the event of a regulatory action level event under subdivision d, e, f, g, h, or i<br>of subsection 1 of section 26.1-03.1-04 or an authorized control level event, the<br>commissioner shall take the actions required under section 26.1-03.1-04 with<br>respect to the insurer.d.In the event of a mandatory control level event with respect to an insurer, the<br>commissioner shall take the actions required under section 26.1-03.1-05 with<br>respect to the insurer.2.For risk-based capital reports required to be filed by property and casualty insurers<br>with respect to 1994, the following requirements apply in lieu of the provisions of<br>sections 26.1-03.1-03, 26.1-03.1-04, 26.1-03.1-05, and 26.1-03.1-06:a.In the event of a company action level event with respect to a domestic insurer,<br>the commissioner shall take no regulatory action hereunder.b.In the event of a regulatory action level event under subdivision a, b, or c of<br>subsection 1 of section 26.1-03.1-04, the commissioner shall take the actions<br>required under section 26.1-03.1-03.Page No. 10c.In the event of a regulatory action level event under subdivision d, e, f, g, h, or i<br>of subsection 1 of section 26.1-03.1-04 or an authorized control level event, the<br>commissioner shall take the action required under section 26.1-03.1-05 with<br>respect to the insurer.Page No. 11Document Outlinechapter 26.1-03.1 risk-based capital reports
CHAPTER 26.1-03.1RISK-BASED CAPITAL REPORTS26.1-03.1-01. Definitions. As used in this chapter:1."Adjusted risk-based capital report" means a risk-based capital report that has been<br>adjusted by the commissioner in accordance with subsection 3 of section<br>26.1-03.1-02.2."Corrective order" means an order issued by the commissioner specifying corrective<br>actions that the commissioner has determined are required.3."Domestic insurer" means any insurance company domiciled in this state, except a<br>county mutual insurance company.4."Foreign insurer" means any insurance company that is licensed to do business in<br>this state under chapter 26.1-11 but is not domiciled in this state.5."Life or health insurer" means any licensed life or health insurance company or a<br>licensed property and casualty insurer writing only accident and health insurance.6."Negative trend" means, with respect to a life or health insurer, negative trend over a<br>period of time, as determined in accordance with the trend test calculation included<br>in the risk-based capital instructions.7."Risk-based capital instructions" means the risk-based report, including risk-based<br>capital instructions adopted by the national association of insurance commissioners,<br>as such risk-based capital instructions may be amended by the national association<br>of insurance commissioners from time to time in accordance with the procedures<br>adopted by the national association of insurance commissioners.8."Risk-based capital level" means an insurer's company action level risk-based<br>capital, regulatory action level risk-based capital, authorized control level risk-based<br>capital, or mandatory control level risk-based capital and:a."Authorized control level risk-based capital" means the number determined<br>under the risk-based capital formula in accordance with the risk-based capital<br>instructions.b."Company action level risk-based capital" means, with respect to any insurer,<br>the product of two and its authorized control level risk-based capital.c."Mandatory control level risk-based capital" means the product of seventy<br>hundredths and the authorized control level risk-based capital.d."Regulatory action level risk-based capital" means the product of one and<br>one-half and its authorized control level risk-based capital.9."Risk-based capital plan" means a comprehensive financial plan containing the<br>elements specified in subsection 2 of section 26.1-03.1-03.If the commissionerrejects the risk-based capital plan, and it is revised by the insurer, with or without the<br>commissioner's recommendation, the plan must be called the "revised risk-based<br>capital plan".10."Risk-based capital report" means the report required in section 26.1-03.1-02.11."Total adjusted capital" means the sum of:Page No. 1a.An insurer's statutory capital and surplus as determined in accordance with<br>statutory accounting applicable to the annual statements required to be filed<br>under section 26.1-03-07; andb.Such other items, if any, as the risk-based capital instructions may provide.26.1-03.1-02. Risk-based capital reports.1.On or prior to each March first, every domestic insurer shall prepare and submit to<br>the commissioner a report of its risk-based capital levels as of the end of the<br>calendar year just ended, in a form and containing any information required by the<br>risk-based capital instructions.In addition, every domestic insurer shall file itsrisk-based capital report:a.With the national association of insurance commissioners in accordance with<br>the risk-based capital instructions; andb.With the insurance commissioner in any state in which the insurer is authorized<br>to do business, if the insurance commissioner has notified the insurer of its<br>request in writing, in which case the insurer shall file its risk-based capital report<br>not later than the later of:(1)Fifteen days from the receipt of notice to file its risk-based capital report<br>with that state; or(2)The filing date.2.A life and health insurer's risk-based capital must be determined in accordance with<br>the formula set forth in the risk-based capital instructions. The formula must take<br>into account, and may adjust for the covariance between:a.The risk with respect to the insurer's assets;b.The risk of adverse insurance experience with respect to the insurer's liabilities<br>and obligations;c.The interest rate risk with respect to the insurer's business; andd.All other business risks and any other relevant risks as are set forth in the<br>risk-based capital instructions;determined in each case by applying the factors in the manner set forth in the<br>risk-based capital instructions.3.A property and casualty insurer's risk-based capital must be determined in<br>accordance with the formula set forth in the risk-based capital instructions.Theformula must take into account, and may adjust for the covariance between:a.Asset risk;b.Credit risk;c.Underwriting risk; andd.All other business risks and any other relevant risks as are set forth in the<br>risk-based instructions;determined in each case by applying the factors in the manner set forth in the<br>risk-based capital instructions.Page No. 24.An excess of capital over the amount produced by the risk-based capital<br>requirements contained in this chapter and the formulas, schedules, and instructions<br>referenced in this chapter is desirable in the business of insurance. Accordingly,<br>insurers should seek to maintain capital above the risk-based capital levels required<br>by this chapter. Additional capital is used and is useful in the insurance business<br>and helps to secure an insurer against various risks inherent in, or affecting, the<br>business of insurance and not accounted for or only partially measured by the<br>risk-based capital requirements contained in this chapter.5.If a domestic insurer files a risk-based capital report that in the judgment of the<br>commissioner is inaccurate, then the commissioner shall adjust the risk-based<br>capital report to correct the inaccuracy and notify the insurer of the adjustment. The<br>notice must contain a statement of the reason for the adjustment. A risk-based<br>capital report so adjusted is referred to as an adjusted risk-based capital report.26.1-03.1-03. Company action level event.1."Company action level event" means any of the following events:a.The filing of a risk-based capital report by an insurer which indicates that:(1)The insurer's total adjusted capital is greater than or equal to its<br>regulatory action level risk-based capital but less than its company action<br>level risk-based capital; or(2)If a life or health insurer, the insurer has total adjusted capital that is<br>greater than or equal to its company action level risk-based capital but<br>less than the product of its authorized control level risk-based capital and<br>two and one-half and has a negative trend;b.The notification by the commissioner to the insurer of an adjusted risk-based<br>capital report that indicates an event in subdivision a, provided the insurer does<br>not challenge the adjusted risk-based capital report under section 26.1-03.1-07;<br>orc.If, under section 26.1-03.1-07, an insurer challenges an adjusted risk-based<br>capital report that indicates the event in subdivision a, the notification by the<br>commissioner to the insurer that the commissioner, after a hearing, has<br>rejected the insurer's challenge.2.In the event of a company action level event, the insurer shall prepare and submit to<br>the commissioner a risk-based capital plan that must:a.Identify the conditions that contribute to the company action level event;b.Contain proposals of corrective actions that the insurer intends to take and<br>would be expected to result in the elimination of the company action level<br>event;c.Provide projections of the insurer's financial results in the current year and at<br>least the four succeeding years, both in the absence of proposed corrective<br>actions and giving effect to the proposed corrective actions, including<br>projections of statutory operating income, net income, capital, or surplus. The<br>projections for both new and renewal business may include separate<br>projections for each major line of business and separately identify each<br>significant income, expense, and benefit component;d.Identify the key assumptions impacting the insurer's projections and the<br>sensitivity of the projections to the assumptions; andPage No. 3e.Identify the quality of, and problems associated with, the insurer's business,<br>including its assets, anticipated business growth and associated surplus strain,<br>extraordinary exposure to risk, mix of business, and use of reinsurance, if any,<br>in each case.3.The risk-based capital plan must be submitted:a.Within forty-five days of the company action level event; orb.If the insurer challenges an adjusted risk-based capital report under section<br>26.1-03.1-07, within forty-five days after notification to the insurer that, after a<br>hearing, the commissioner has rejected the insurer's challenge.4.Within sixty days after the submission by an insurer of a risk-based capital plan to<br>the commissioner, the commissioner shall notify the insurer whether the risk-based<br>capital plan may be implemented or is, in the judgment of the commissioner,<br>unsatisfactory.If the commissioner determines the risk-based capital plan isunsatisfactory, the notification to the insurer must set forth the reasons for the<br>determination, and may set forth proposed revisions that will render the risk-based<br>capital plan satisfactory, in the judgment of the commissioner.Upon notificationfrom the commissioner, the insurer shall prepare a revised risk-based capital plan,<br>which may incorporate by reference any revisions proposed by the commissioner,<br>and shall submit the revised risk-based capital plan to the commissioner:a.Within forty-five days after the notification from the commissioner; orb.If the insurer challenges the notification from the commissioner under section<br>26.1-03.1-07, within forty-five days after a notification to the insurer that, after a<br>hearing, the commissioner has rejected the insurer's challenge.5.In the event of a notification by the commissioner to an insurer that the insurer's<br>risk-based capital plan or revised risk-based capital plan is unsatisfactory, subject to<br>the insurer's right to a hearing under section 26.1-03.1-07, the commissioner may<br>specify in the notification that the notification constitutes a regulatory action level<br>event.6.Every domestic insurer that files a risk-based capital plan or revised risk-based<br>capital plan with the commissioner shall file a copy of the risk-based capital plan or<br>revised risk-based capital plan with the insurance commissioner in any state in<br>which the insurer is authorized to do business if:a.The state has a risk-based capital provision substantially similar to subsection 1<br>of section 26.1-03.1-08; andb.The insurance commissioner of that state has notified the insurer of its request<br>for the filing in writing, in which case the insurer shall file a copy of the<br>risk-based capital plan or revised risk-based capital plan in that state no later<br>than the later of:(1)Fifteen days after the receipt of notice to file a copy of its risk-based<br>capital plan or revised risk-based capital plan with the state; or(2)The date on which the risk-based capital plan or revised risk-based<br>capital plan is filed under subsections 3 and 4.26.1-03.1-04. Regulatory action level event.1."Regulatory action level event" means, with respect to any insurer, any of the<br>following events:Page No. 4a.The filing of a risk-based capital report by the insurer that indicates that the<br>insurer's total adjusted capital is greater than or equal to its authorized control<br>level risk-based capital but less than its regulatory action level risk-based<br>capital;b.The notification by the commissioner to an insurer of an adjusted risk-based<br>capital report that indicates the event in subdivision a, provided the insurer does<br>not challenge the adjusted risk-based capital report under section 26.1-03.1-07;c.If, under section 26.1-03.1-07, the insurer challenges an adjusted risk-based<br>capital report that indicates the event in subdivision a, the notification by the<br>commissioner to the insurer that the commissioner, after a hearing, has<br>rejected the insurer's challenge;d.The failure of the insurer to file a risk-based capital report by the filing date,<br>unless the insurer has provided an explanation for the failure that is satisfactory<br>to the commissioner and has cured the failure within ten days after the filing<br>date;e.The failure of the insurer to submit a risk-based capital plan to the<br>commissioner within the time period set forth in subsection 3 of section<br>26.1-03.1-03;f.Notification by the commissioner to the insurer that:(1)The risk-based capital plan or revised risk-based capital plan submitted<br>by the insurer, in the judgment of the commissioner, is unsatisfactory;<br>and(2)The notification constitutes a regulatory action level event with respect to<br>the insurer, provided the insurer has not challenged the determination<br>under section 26.1-03.1-07;g.If, under section 26.1-03.1-07, the insurer challenges a determination by the<br>commissioner under subdivision f, the notification by the commissioner to the<br>insurer that, after a hearing, the commissioner has rejected the challenge;h.Notification by the commissioner to the insurer that the insurer has failed to<br>adhere to its risk-based capital plan or revised risk-based capital plan, but only<br>if the failure has a substantial adverse effect on the ability of the insurer to<br>eliminate the company action level event in accordance with its risk-based<br>capital plan or revised risk-based capital plan and the commissioner has so<br>stated in the notification, provided the insurer has not challenged the<br>determination under section 26.1-03.1-07; ori.If, under section 26.1-03.1-07, the insurer challenges a determination by the<br>commissioner under subdivision h, the notification by the commissioner to the<br>insurer that, after a hearing, the commissioner has rejected the challenge.2.In the event of a regulatory action level event the commissioner shall:a.Require the insurer to prepare and submit a risk-based capital plan or, if<br>applicable, a revised risk-based capital plan;b.Perform such examination or analysis of the assets, liabilities, and operations of<br>the insurer, including a review of its risk-based capital plan or revised<br>risk-based capital plan, as the commissioner deems necessary; andPage No. 5c.Subsequent to the examination or analysis, issue an order specifying the<br>corrective actions as the commissioner determines are required in a corrective<br>order.3.In determining corrective actions, the commissioner may take into account any<br>factors deemed relevant with respect to the insurer based upon the commissioner's<br>examination or analysis of the assets, liabilities, and operations of the insurer,<br>including the results of any sensitivity tests undertaken pursuant to the risk-based<br>capital instructions. The risk-based capital plan or revised risk-based capital plan<br>must be submitted:a.Within forty-five days after the occurrence of the regulatory action level event;b.If the insurer challenges an adjusted risk-based capital report under section<br>26.1-03.1-07 and the challenge is not judged to be frivolous by the<br>commissioner, within forty-five days after the notification to the insurer that,<br>after a hearing, the commissioner has rejected the insurer's challenge; orc.If the insurer challenges a revised risk-based capital plan under section<br>26.1-03.1-07 and the challenge is not judged to be frivolous by the<br>commissioner, within forty-five days after the notification to the insurer that,<br>after a hearing, the commissioner has rejected the insurer's challenge.4.The commissioner may retain actuaries and investment experts and other<br>consultants as the commissioner judges to be necessary to review the insurer's<br>risk-based capital plan or revised risk-based capital plan, examine or analyze the<br>assets, liabilities, and operations of the insurer and formulate the corrective order<br>with respect to the insurer. The fees, costs, and expenses relating to consultants<br>must be borne by the affected insurer or such other party as directed by the<br>commissioner.26.1-03.1-05. Authorized control level event.1."Authorized control level event" means any of the following events:a.The filing of a risk-based capital report by the insurer that indicates that the<br>insurer's total adjusted capital is greater than or equal to its mandatory control<br>level risk-based capital but less than its authorized control level risk-based<br>capital;b.The notification by the commissioner to the insurer of an adjusted risk-based<br>capital report that indicates the event in subdivision a, provided the insurer does<br>not challenge the adjusted risk-based capital report under section 26.1-03.1-07;c.If, under section 26.1-03.1-07, the insurer challenges an adjusted risk-based<br>capital report that indicates the event in subdivision a, notification by the<br>commissioner to the insurer that, after a hearing, the commissioner has<br>rejected the insurer's challenge;d.The failure of the insurer to respond, in a manner satisfactory to the<br>commissioner, to a corrective order provided the insurer has not challenged the<br>corrective order under section 26.1-03.1-07; ore.If the insurer has challenged a corrective order under section 26.1-03.1-07 and,<br>after a hearing, the commissioner has rejected the challenge or modified the<br>corrective order, the failure of the insurer to respond, in a manner satisfactory<br>to the commissioner, to the corrective order subsequent to rejection or<br>modification by the commissioner.Page No. 62.In the event of an authorized control level event with respect to an insurer, the<br>commissioner shall:a.Take such actions as are required under section 26.1-03.1-04 regarding an<br>insurer with respect to which a regulatory action level event has occurred; orb.Take necessary action to cause the insurer to be placed under regulatory<br>control under chapter 26.1-06.1 if the commissioner deems it to be in the best<br>interests of the policyholders, creditors of the insurer, and the public. If the<br>commissioner takes such actions, the authorized control level event must be<br>deemed sufficient grounds for the commissioner to take action under chapter<br>26.1-06.1, and the commissioner has the rights, powers, and duties with<br>respect to the insurer in chapter 26.1-06.1. If the commissioner takes action<br>under this subdivision pursuant to an adjusted risk-based capital report, the<br>insurer is entitled to any protection afforded to insurers under chapter 26.1-06.1<br>pertaining to summary proceedings.26.1-03.1-06. Mandatory control level event.1."Mandatory control level event" means any of the following events:a.The filing of a risk-based capital report that indicates that the insurer's total<br>adjusted capital is less than its mandatory control level risk-based capital;b.Notification by the commissioner to the insurer of an adjusted risk-based capital<br>report that indicates the event in subdivision a, provided the insurer does not<br>challenge the adjusted risk-based capital report under section 26.1-03.1-07; orc.If, under section 26.1-03.1-07, the insurer challenges an adjusted risk-based<br>capital report that indicates the event in subdivision a, notification by the<br>commissioner to the insurer that, after a hearing, the commissioner has<br>rejected the insurer's challenge.2.In the event of a mandatory control level event:a.With respect to a life insurer, the commissioner shall take actions as are<br>necessary to place the insurer under regulatory control under chapter<br>26.1-06.1. In that event, the mandatory control level event must be deemed<br>sufficient grounds for the commissioner to take action under chapter 26.1-06.1,<br>and the commissioner has the rights, powers, and duties in chapter 26.1-06.1<br>with respect to the insurer. If the commissioner takes action pursuant to an<br>adjusted risk-based capital report, the insurer is entitled to the protection of<br>chapter 26.1-06.1 pertaining to summary proceedings. Notwithstanding any of<br>the foregoing, the commissioner may forego action for up to ninety days after<br>the mandatory control level event if the commissioner finds there is a<br>reasonable expectation that the mandatory control level event may be<br>eliminated within the ninety-day period.b.With respect to a property and casualty insurer, the commissioner may take<br>such actions as are necessary to place the insurer under regulatory control<br>under chapter 26.1-06.1, or, in the case of an insurer that is not writing<br>business and that is running off its existing business, may allow the insurer to<br>continue its runoff under the supervision of the commissioner. In either event,<br>the mandatory control level event must be deemed sufficient grounds for the<br>commissioner to take action under chapter 26.1-06.1 and the commissioner<br>has the rights, powers, and duties in chapter 26.1-06.1 with respect to the<br>insurer. If the commissioner takes action pursuant to an adjusted risk-based<br>capital report, the insurer is entitled to the protection of chapter 26.1-06.1<br>pertaining to summary proceedings. Notwithstanding any of the foregoing, thePage No. 7commissioner may forego action for up to ninety days after the mandatory<br>control level event if the commissioner finds there is a reasonable expectation<br>that the mandatory control level events may be eliminated within the ninety-day<br>period.26.1-03.1-07. Hearings. Upon:1.Notification to an insurer by the commissioner of an adjusted risk-based capital<br>report;2.Notification to an insurer by the commissioner that:a.The insurer's risk-based capital plan or revised risk-based capital plan is<br>unsatisfactory; andb.Such notification constitutes a regulatory action level event with respect to the<br>insurer;3.Notification to any insurer by the commissioner that the insurer has failed to adhere<br>to its risk-based capital plan or revised risk-based capital plan and that the failure<br>has a substantial adverse effect on the ability of the insurer to eliminate the company<br>action level event with respect to the insurer in accordance with its risk-based capital<br>plan or revised risk-based capital plan; or4.Notification to an insurer by the commissioner of a corrective order with respect to<br>the insurer;the insurer is entitled to a confidential departmental hearing, on a record, at which the insurer<br>may challenge any determination or action by the commissioner. The insurer shall notify the<br>commissioner of its request for a hearing within five days after the notification by the<br>commissioner under subsection 1, 2, 3, or 4. Upon receipt of the insurer's request for a hearing,<br>the commissioner must set a date for the hearing, which date must be no less than ten nor more<br>than thirty days after the date of the insurer's request.26.1-03.1-08. Confidentiality - Prohibition on announcements - Prohibition on usein ratemaking.1.All risk-based capital reports, to the extent the information therein is not required to<br>be set forth in a publicly available annual statement schedule, and risk-based capital<br>plans, including the results or report of any examination or analysis of an insurer<br>performed under this chapter and any corrective order issued by the commissioner<br>pursuant to examination or analysis, with respect to any domestic insurer or foreign<br>insurer that are filed with the commissioner constitute information that might be<br>damaging to the insurer if made available to its competitors, and therefore must be<br>kept confidential by the commissioner. This information may not be made public or<br>be subject to subpoena, other than by the commissioner and then only for the<br>purpose of enforcement actions taken by the commissioner under this chapter or<br>any other provision of the insurance laws of this state.2.It is the judgment of the legislative assembly that the comparison of an insurer's total<br>adjusted capital to any of its risk-based capital levels is a regulatory tool that may<br>indicate the need for possible corrective action with respect to the insurer, and is not<br>intended as a means to rank insurers generally. Therefore, except as otherwise<br>required under this chapter, the making, publishing, disseminating, circulating, or<br>placing before the public, or causing, directly or indirectly, to be made, published,<br>disseminated, circulated, or placed before the public, in a newspaper, magazine, or<br>other publication, or in the form of a notice, circular, pamphlet, letter, or poster, or<br>over any radio or television station, or in any other way, an advertisement,<br>announcement, or statement containing an assertion, representation, or statementPage No. 8with regard to the risk-based capital levels of any insurer, or of any component<br>derived in the calculation, by any insurer, insurance producer, or other person<br>engaged in any manner in the insurance business would be misleading and is<br>prohibited.However, if any materially false statement with respect to thecomparison regarding an insurer's total adjusted capital to its risk-based capital<br>levels, or any of them, or an inappropriate comparison of any other amount to the<br>insurer's risk-based capital levels is published in any written publication and the<br>insurer is able to demonstrate to the commissioner with substantial proof the falsity<br>of the statement, or the inappropriateness, as the case may be, then the insurer may<br>publish an announcement in a written publication if the sole purpose of the<br>announcement is to rebut the materially false statement.3.It is the further judgment of the legislative assembly that the risk-based capital<br>instructions, risk-based capital reports, adjusted risk-based capital reports,<br>risk-based capital plans, and revised risk-based capital plans are intended solely for<br>use by the commissioner in monitoring the solvency of insurers and the need for<br>possible corrective action with respect to insurers and may not be used by the<br>commissioner for ratemaking nor considered or introduced as evidence in any rate<br>proceeding nor used by the commissioner to calculate or derive any elements of an<br>appropriate premium level or rate of return for any line of insurance that an insurer or<br>any affiliate is authorized to write.26.1-03.1-09. Supplemental provisions - Rules - Exemption.1.This chapter is supplemental to any other laws of this state, and does not preclude<br>or limit any other powers or duties of the commissioner under these laws, including<br>chapters 26.1-06.1 and 26.1-06.2.2.The commissioner may adopt rules necessary for the implementation of this<br>chapter.3.The commissioner may exempt from the application of this chapter any domestic<br>property and casualty insurer that:a.Writes direct business only in this state;b.Writes direct annual premiums less than an amount determined by the<br>commissioner; andc.Assumes no reinsurance in excess of five percent of direct premium written.26.1-03.1-10. Foreign insurers.1.Upon the written request of the commissioner, any foreign insurer shall submit to the<br>commissioner a risk-based capital report as of the end of the calendar year just<br>ended, the later of:a.The date a risk-based capital report would be required to be filed by a domestic<br>insurer under this chapter; orb.Fifteen days after the request is received by the foreign insurer.At the written request of the commissioner, any foreign insurer shall promptly submit<br>to the commissioner a copy of any risk-based capital plan that is filed with the<br>insurance commissioner of another state.2.In the event of a company action level event, regulatory action level event, or<br>authorized control level event, with respect to any foreign insurer as determined<br>under the risk-based capital statute applicable in the state of domicile of the insurer,Page No. 9or, if no risk-based capital provision is in force in that state, under the provisions of<br>this chapter, if the insurance commissioner of the state of domicile of the foreign<br>insurer fails to require the foreign insurer to file a risk-based capital plan in the<br>manner specified under that state's risk-based capital statute, or, if no risk-based<br>capital provision is in force in the state, the commissioner may require the foreign<br>insurer to file a risk-based capital plan with the commissioner under section<br>26.1-03.1-03. In such event, the failure of the foreign insurer to file a risk-based<br>capital plan with the commissioner is grounds to order the insurer to cease and<br>desist from writing new insurance business in this state.3.In the event of a mandatory control level event with respect to any foreign insurer, if<br>no domiciliary receiver has been appointed with respect to the foreign insurer under<br>the rehabilitation and liquidation statute applicable in the state of domicile of the<br>foreign insurer, the commissioner may make application to the district court<br>permitted under section 26.1-06.1-04 with respect to the liquidation of property of<br>foreign insurers found in this state, and the occurrence of the mandatory control<br>level event is adequate grounds for the application.26.1-03.1-11. Immunity. There is no liability on the part of, and no cause of action mayarise against, the commissioner or the insurance department or its employees or agents for any<br>action taken by them in the performance of their powers and duties under this chapter.26.1-03.1-12. Notices. All notices by the commissioner to an insurer that may result inregulatory action hereunder are effective upon dispatch if transmitted by registered mail, or in the<br>case of any other transmission is effective upon the insurer's receipt of the notice.26.1-03.1-13. Phasein provision.1.For risk-based capital reports required to be filed by life insurers with respect to<br>1993, the following requirements apply in lieu of the provisions of sections<br>26.1-03.1-03, 26.1-03.1-04, 26.1-03.1-05, and 26.1-03.1-06:a.In the event of a company action level event with respect to a domestic insurer,<br>the commissioner may take no regulatory action hereunder.b.In the event of a regulatory action level event under subdivision a, b, or c of<br>subsection 1 of section 26.1-03.1-04, the commissioner shall take the actions<br>required under section 26.1-03.1-03.c.In the event of a regulatory action level event under subdivision d, e, f, g, h, or i<br>of subsection 1 of section 26.1-03.1-04 or an authorized control level event, the<br>commissioner shall take the actions required under section 26.1-03.1-04 with<br>respect to the insurer.d.In the event of a mandatory control level event with respect to an insurer, the<br>commissioner shall take the actions required under section 26.1-03.1-05 with<br>respect to the insurer.2.For risk-based capital reports required to be filed by property and casualty insurers<br>with respect to 1994, the following requirements apply in lieu of the provisions of<br>sections 26.1-03.1-03, 26.1-03.1-04, 26.1-03.1-05, and 26.1-03.1-06:a.In the event of a company action level event with respect to a domestic insurer,<br>the commissioner shall take no regulatory action hereunder.b.In the event of a regulatory action level event under subdivision a, b, or c of<br>subsection 1 of section 26.1-03.1-04, the commissioner shall take the actions<br>required under section 26.1-03.1-03.Page No. 10c.In the event of a regulatory action level event under subdivision d, e, f, g, h, or i<br>of subsection 1 of section 26.1-03.1-04 or an authorized control level event, the<br>commissioner shall take the action required under section 26.1-03.1-05 with<br>respect to the insurer.Page No. 11Document Outlinechapter 26.1-03.1 risk-based capital reports
