Office of Insurance Information

(a)

Duties of Secretary

Section 321(a) of title 31, United States Code, is amended— (1)in paragraph (7), by striking and at the end; (2)in paragraph (8)(C), by striking the period at the end and inserting ; and; and (3)by adding at the end the following new paragraph:

(9)serve as the principal advisor to the President and the Congress on domestic and international policy issues in connection with all lines of insurance except health insurance.

(b)

Establishment of Office

Subchapter I of chapter 3 of title 31, United States Code, is amended— (1)by transferring and inserting section 312 after section 313; (2)by redesignating sections 313 and 312 (as so transferred) as sections 312 and 314, respectively; and (3)by inserting after section 312 (as so redesignated) the following new section:

313.

Office of Insurance Information

(a)

Establishment

There is established within the Department of the Treasury the Office of Insurance Information. (b)

Leadership

The Office shall be headed by a Director, who shall be appointed by the Secretary of the Treasury. The position of such Director shall be a career reserved position in the Senior Executive Service. (c)

Functions

(1)

Authority pursuant to direction of Secretary

The Office shall have the authority, pursuant to the direction of the Secretary, as follows: (A)To receive and collect (directly from the States and from other sources), and to analyze and disseminate, data and information, and to issue reports, regarding all lines of insurance except health insurance, except that— (i)the submission of any non-publicly available data and information to the Office shall be voluntary and such submission shall not constitute a waiver of, or otherwise affect, any privilege or confidentiality protection to which the data or information is otherwise subject; (ii)to the extent that any such data and information has already been received or collected by, or can efficiently be received or collected by, the States (including the insurance commissioners of the States), the National Association of Insurance Commissioners, or any other appropriate source, the Office may enter into an information-sharing agreement with such source to provide for the receipt of such data by the Office; (iii)any requirement under Federal or State law to the extent otherwise applicable, or any requirement pursuant to a written agreement in effect between the original source of any non-publicly available data or information and the source of such data or information to the Office, regarding the privacy or confidentiality of any data or information in the possession of the source to the Office, and any privilege arising under Federal or State law (including the rules of any Federal or State court) with respect to such data or information, shall continue to apply to such data or information after the data or information has been provided pursuant to this subparagraph to the Office; (iv)the Office shall treat as confidential and privileged any data or information obtained from any source that is entitled to confidential treatment under applicable State or Federal law or regulations, or under any agreement to which the source is a party and shall take all reasonable steps to oppose any effort to secure disclosure of the data or information by the Office; (v)the Office may not in any case disclose to any party any personally identifiable information received or collected by the Office pursuant to this subparagraph; and (vi)any non-publicly available data and information received or collected by the Office pursuant to this subparagraph shall be considered trade secrets and commercial or financial information that is privileged and confidential pursuant to section 552(b)(4) of title 5, United States Code, and may not be disclosed to the Advisory Group established under subsection (l). (B)To coordinate Federal efforts and establish Federal policy on international insurance matters, including working with the International Association of Insurance Supervisors. (C)To determine, in accordance with subsection (e), whether State insurance measures are inconsistent with such policy, as included in covered agreements (as such term is defined in subsection (m)). (D)To serve as a liaison between the Federal Government and the individual and several States regarding insurance matters of national importance and international importance. (E)To serve as a primary advisor, regarding the export promotion of United States insurance products and services, to the Treasury representative to the Trade Promotion Coordinating Committee. (2)

Advisory functions

To advise the Secretary on major domestic and international insurance policy issues, including matters that affect consumers and insurers, such as, and including, financial guarantee insurance, catastrophe insurance, and reinsurance requirements. (d)

Scope

The authority of the Office and the Director with respect to insurance shall extend to all lines of insurance except health insurance, as determined by the Secretary based on section 2791 of the Public Health Service Act (42 U.S.C. 300gg–91). (e)

Preemption of State insurance measures

(1)

Standard

Subject to paragraph (3), a State insurance measure shall be preempted if, and only to the extent that, the measure— (A)treats a non-United States insurer more or less favorably than a United States insurer domiciled in such State; and (B)is determined, in accordance with this subsection, to be inconsistent with Federal policy on international insurance matters as— (i)established by the Office; and (ii)included in a covered agreement. (2)

Determination

(A)

Authority of Director

Pursuant to the subsection (c)(1)(C), the Director may determine whether inconsistencies referred to in paragraph (1)(B) of this subsection exist. (B)

Notice of potential inconsistency

Before making any determination regarding whether an inconsistency referred to in paragraph (1)(B) exists, the Director shall— (i)cause to be published in the Federal Register notice of the issue regarding the potential inconsistency or preemption, including a description of each State insurance measure at issue and the Federal policy on international insurance matters embodied in a covered agreement at issue; (ii)provide interested parties a period of not less than 30 days during which to submit written comments to the Office; and (iii)in making the determination, consider any comments received. (C)

Initial determination

Upon making any determination regarding whether an inconsistency referred to in paragraph (1)(B) exists, the Director shall— (i)cause to be published in the Federal Register notice of such determination; (ii)notify the appropriate State of such determination; and (iii)in the case of determination that such an inconsistency exists, establish a reasonable period of time before a final determination under subparagraph (D) is made. (D)

Final determination

In the case of an initial determination that an inconsistency referred to in paragraph (1)(B) exists, upon the conclusion of the period referred to in subparagraph (C)(iii) of this paragraph with respect to such determination, the Director shall make a final determination of whether such inconsistency still exists. If the Director determines that such inconsistency still exists, the Director shall cause to be published in the Federal Register notice of such final determination and notify the State and the Secretary of such final determination. (E)

Consideration of stay by Secretary; effective date of preemption

In the case of a final determination under subparagraph (D) that an inconsistency referred to in paragraph (1)(B) exists, the Secretary, after consultation with the Director, shall determine whether to stay preemption under paragraph (3). Immediately upon such determination, the Secretary shall cause to be published in the Federal Register notice of whether the State insurance measure is preempted pursuant to paragraph (1), to the extent of the inconsistency, or whether preemption is stayed pursuant to paragraph (3), and shall submit to the Congress a copy of such notice. Any such preemption shall be effective upon the expiration of the 90-day period beginning upon the publication of notice under this subparagraph unless the Congress by its action prevents such effectiveness. (3)

Stay

Notwithstanding any determination by the Director that an inconsistency referred to in paragraph (1)(B) exists, the Secretary shall stay preemption under this subsection, before publication of notice of preemption under paragraph (2)(E), if the Secretary determines that— (A)maintaining the State insurance measure is necessary for prudential reasons, including for— (i)the protection of policyholders and policy claimants; (ii)the maintenance of the safety, soundness, integrity or financial responsibility of any entity involved in the business of insurance or insurance operations; or (iii)ensuring the integrity and stability of the United States financial system; (B)preemption will result in any need to establish a supervisory or regulatory authority of the Office or the Secretary over any entity involved in the business of insurance or insurance operations in the United States; or (C)preemption will result in a gap or void in financial or market conduct regulation of any entity involved in the business of insurance or insurance operations in the United States. (4)

Administrative review

Any State having an insurance measure for which a final determination is made pursuant to paragraph (2)(D) that an inconsistency referred to in paragraph (1)(B) exists, and any other person aggrieved by such final determination, shall have the right to appeal such final determination of inconsistency to the Secretary, but only if the Secretary receives notice of such appeal before publication of notice of preemption under paragraph (2)(E). The Secretary shall issue a decision concerning any such appeal before considering whether to stay preemption under paragraph (3). (5)

Applicability of Administrative Procedures Act

Determinations of inconsistency pursuant to paragraph (2)(D) and of preemption pursuant to paragraph (2)(E) shall be subject to the applicable provisions of subchapter II of chapter 5 of title 5, United States Code (relating to administrative procedure), and chapter 7 of such title (relating to judicial review). (6)

Limitation

No State may enforce a State insurance measure to the extent that it has been preempted pursuant to this subsection. (7)

Policies and procedures

The Secretary may, by publication in the Federal Register, issue policies and procedures to implement this subsection and subsection (c)(1)(C). (f)

Savings provisions

Nothing in this section shall— (1)preempt any State insurance measure because of inconsistency with any agreement that is not a covered agreement (as such term in defined in subsection (m)); (2)preempt any State insurance measure that relates to an insurer’s rates, premiums, underwriting practices, or coverage requirements for insurance within that State, or to the application of the antitrust laws of any State to the business of insurance; or (3)affect the preemption of any State insurance measure otherwise inconsistent with and preempted by Federal law. (g)

Consultation

(1)

Director

The Director shall consult with the Advisory Group established under subsection (l) regarding— (A)any agreement described in subsection (e)(1)(B), before such agreement is entered into; and (B)any initial or final determination under subsection (e)(2) of whether an inconsistency referred to in subsection (e)(1)(B) exists. (2)

Secretary

The Secretary shall consult with the Advisory Group established under subsection (l) regarding whether or not to stay preemption under subsection (e)(3). (h)

Coordination regarding covered agreements

Before entering into any covered agreement, the United States or its representative shall coordinate with State insurance regulators as designated by the National Association of Insurance Commissioners to identify provisions in the covered agreement that provide for the recognition of prudential measures with respect to the business of insurance that are described in subsection (m)(1)(B). (i)

Reports to Congress

(1)

Biennial reports

The Director, in consultation with the insurance commissioners or supervisors of the States, shall submit a report during each Congress to the Committee on Financial Services of the House of Representatives and the Committee on Banking, Housing, and Urban Affairs of the Senate on the financial state of the insurance industry, meaningful trends in the industry, any actions taken by the Office pursuant to subsection (e) (regarding preemption of inconsistent State insurance measures), and any other information as deemed relevant by the Director or as requested by such Committees. (2)

Reports on State insurance measures not preempted

The Director shall submit a report to each of the Committees referred to in paragraph (1) of this subsection regarding any State insurance measure that would have been preempted but for any stay of preemption under subsection (e)(3). (3)

Other reports

The Director shall submit such other informal reports as the Director considers necessary or as are requested by the Congress. (j)

Use of existing resources

The Office may employ personnel, facilities, and other Department of the Treasury resources available to the Secretary on the date of enactment of the Insurance Information Act of 2009 in carrying out this section, except as otherwise prohibited by law. (k)

Retention of existing regulatory authority

Nothing in this section may be construed to establish a general supervisory or regulatory authority of the Office or the Department of the Treasury over the business of insurance. (l)

Advisory group

(1)

Establishment

There is hereby established the Advisory Group to the Office of Insurance Information (in this subsection referred to as the Advisory Group). (2)

Membership

The Advisory Group shall consist of no more than 13 members who shall be appointed by the Secretary, and shall include— (A)State insurance commissioners or supervisors, as nominated by the National Association of Insurance Commissioners; (B)a representative each of— (i)State legislators, as nominated by the National Conference of State Legislatures; (ii)the Department of Commerce; (iii)the Federal Trade Commission; (iv)the Office of the United States Trade Representative; (v)the life insurance industry; (vi)the property and casualty insurance industry; (vii)the reinsurance industry; and (viii)the insurance producer industry; and (C)such other representatives of the insurance industry, consumer groups, and other organizations as the Secretary determines are appropriate. (3)

Duties

The sole functions of the Advisory Group shall be to make recommendations to the Secretary and the Director regarding the function of the Office under subsection (c)(1)(B) and to consult with the Director and the Secretary pursuant to subsection (g). (m)

Definitions

For purposes of this section, the following definitions shall apply: (1)

Covered agreement

The term covered agreement means a written bilateral or multilateral recognition agreement that— (A)is entered into— (i)between the United States and one or more foreign governments, authorities, or regulatory entities; and (ii)after the date of the enactment of the Insurance Information Act of 2009; and (B)provides for recognition of prudential measures with respect to the business of insurance that— (i)adequately protect insurance consumers in the United States; and (ii)are substantially equivalent to the regulation by the States of the comparable subject matter. (2)

Non-United States insurer

The term non-United States insurer means an insurer, or reinsurer, that is organized under the laws of a jurisdiction other than a State, but does not include any United States branch of such an insurer. (3)

Office

The term Office means the Office of Insurance Information established by this section. (4)

Secretary

The term Secretary means the Secretary of the Treasury. (5)

State

The term State means any of the 50 States, the District of Columbia, the Commonwealth of Puerto Rico, the United States Virgin Islands, Guam, American Samoa, the Trust Territory of the Pacific Islands, the Commonwealth of the Northern Mariana Islands, and any other territory of the United States. (6)

State insurance measure

The term State insurance measure means any State law, regulation, administrative ruling, bulletin, guideline, or practice relating to or affecting the provision of insurance or reinsurance. (7)

United States insurer

The term United States insurer means— (A)an insurer, or reinsurer, that is organized under the laws of a State; or (B)a United States branch of a non-United States insurer. (n)

Savings provision

Nothing in this section shall be construed to affect the development and coordination of United States international trade policy or the administration of the United States trade agreements program. (o)

Authorization of appropriations

There are authorized to be appropriated for the Office such sums as may be necessary for each fiscal year.

(c)

Independence in congressional testimony and recommendations

Section 111 of Public Law 93–495 (12 U.S.C. 250) is amended by inserting ‘‘the Director of the Office of Insurance Information of the Department of the Treasury,’’ after Office of Thrift Supervision, . (d)

Clerical amendment

The table of sections for subchapter I of chapter 3 of title 31, United States Code, is amended by striking the item relating to section 312 and inserting the following new items:

Sec. 312. Terrorism and Financial Intelligence.

Sec. 313. Office of Insurance Information.

Sec. 314. Continuing in office.