TITLE V – INSURANCE
”SEC. 313. FEDERAL INSURANCE OFFICE.
”(a) ESTABLISHMENT.–There is established within the Department of the Treasury the Federal Insurance Office.
”(b) LEADERSHIP.–The Office shall be headed by a Director, who shall be appointed by the Secretary of the Treasury. The position of Director shall be a career reserved position in the Senior Executive Service.
The Office, pursuant to the direction of the Secretary, shall have the authority –
”(A) to monitor all aspects of the insurance industry, including identifying issues or gaps in the regulation of insurers that could contribute to a systemic crisis in the insurance industry or the United States financial system;
”(B) to monitor the extent to which traditionally underserved communities and consumers, minorities (as such term is defined in section 1204(c) of the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 (12 U.S.C. 1811 note)), and low- and moderate-income persons have access to affordable insurance products regarding all lines of insurance, except health insurance;
”(C) to recommend to the Financial Stability Oversight Council that it designate an insurer, including the affiliates of such insurer, as an entity subject to regulation as a nonbank financial company supervised by the Board of Governors pursuant to title I of the Dodd-Frank Wall Street Reform and Consumer Protection Act;
”(D) to assist the Secretary in administering the Terrorism Insurance Program established in the Department of the Treasury under the Terrorism Risk Insurance Act of 2002 (15 U.S.C. 6701 note);
”(E) to coordinate Federal efforts and develop Federal policy on prudential aspects of international insurance matters, including representing the United States, as appropriate, in the International Association of Insurance Supervisors (or a successor entity) and assisting the Secretary in negotiating covered agreements (as such term is defined in subsection (r));
”(F) to determine, in accordance with subsection (f), whether State insurance measures are preempted by covered agreements;
”(G) to consult with the States (including State insurance regulators) regarding insurance matters of national importance and prudential insurance matters of international importance; and
”(H) to perform such other related duties and authorities as may be assigned to the Office by the Secretary.
”(2) ADVISORY FUNCTIONS.–The Office shall advise the Secretary on major domestic and prudential international insurance policy issues.
”(3) ADVISORY CAPACITY ON COUNCIL.–The Director shall serve in an advisory capacity on the Financial Stability Oversight Council established under the Financial Stability Act of 2010.
”(d) SCOPE.–The authority of the Office shall extend to all lines of insurance except–
”(1) health insurance, as determined by the Secretary in coordination with the Secretary of Health and Human Services based on section 2791 of the Public Health Service Act (42 U.S.C. 300gg-91);
”(2) long-term care insurance, except long-term care insurance that is included with life or annuity insurance components, as determined by the Secretary in coordination with the Secretary of Health and Human Services, and in the case of long-term care insurance that is included with such components, the Secretary shall coordinate with the Secretary of Health and Human Services in performing the functions of the Office; and
”(e) GATHERING OF INFORMATION.–
”(1) IN GENERAL.–In carrying out the functions required under subsection (c), the Office may–
”(A) receive and collect data and information on and from the insurance industry and insurers;
”(B) enter into information-sharing agreements;
”(C) analyze and disseminate data and information; and
”(D) issue reports regarding all lines of insurance except health insurance.
”(2) COLLECTION OF INFORMATION FROM INSURERS AND AFFILIATES.–
”(A) IN GENERAL.–Except as provided in paragraph (3), the Office may require an insurer, or any affiliate of an insurer, to submit such data or information as the Office may reasonably require in carrying out the functions described under subsection (c).
”(B) RULE OF CONSTRUCTION.–Notwithstanding any other provision of this section, for purposes of subparagraph (A), the term ‘insurer’ means any entity that writes insurance or reinsures risks and issues contracts or policies in 1 or more States.
”(3) EXCEPTION FOR SMALL INSURERS.–Paragraph (2) shall not apply with respect to any insurer or affiliate thereof that meets a minimum size threshold that the Office may establish, whether by order or rule.
”(4) ADVANCE COORDINATION.–Before collecting any data or information under paragraph (2) from an insurer, or affiliate of an insurer, the Office shall coordinate with each relevant Federal agency and State insurance regulator (or other relevant Federal or State regulatory agency, if any, in the case of an affiliate of an insurer) and any publicly available sources to determine if the information to be collected is available from, and may be obtained in a timely manner by, such Federal agency or State insurance regulator, individually or collectively, other regulatory agency, or publicly available sources. If the Director determines that such data or information is available, and may be obtained in a timely manner, from such an agency, regulator, regulatory agency, or source, the Director shall obtain the data or information from such agency, regulator, regulatory agency, or source. If the Director determines that such data or information is not so available, the Director may collect such data or information from an insurer (or affiliate) only if the Director complies with the requirements of subchapter I of chapter 35 of title 44, United States Code (relating to Federal information policy; commonly known as the Paperwork Reduction Act), in collecting such data or information. Notwithstanding any other provision of law, each such relevant Federal agency and State insurance regulator or other Federal or State regulatory agency is authorized to provide to the Office such data or information.
”(A) RETENTION OF PRIVILEGE.–The submission of any nonpublicly available data and information to the Office under this subsection shall not constitute a waiver of, or otherwise affect, any privilege arising under Federal or State law (including the rules of any Federal or State court) to which the data or information is otherwise subject.
”(B) CONTINUED APPLICATION OF PRIOR CONFIDENTIALITY AGREEMENTS.–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 nonpublicly 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, shall continue to apply to such data or information after the data or information has been provided pursuant to this subsection to the Office.
”(C) INFORMATION-SHARING AGREEMENT.–Any data or information obtained by the Office may be made available to State insurance regulators, individually or collectively, through an information-sharing agreement that–
”(i) shall comply with applicable Federal law; and
”(ii) shall not constitute a waiver of, or otherwise affect, any privilege under Federal or State law (including the rules of any Federal or State court) to which the data or information is otherwise subject.
”(D) AGENCY DISCLOSURE REQUIREMENTS.–Section 552 of title 5, United States Code, shall apply to any data or information submitted to the Office by an insurer or an affiliate of an insurer.
”(6) SUBPOENAS AND ENFORCEMENT.–The Director shall have the power to require by subpoena the production of the data or information requested under paragraph (2), but only upon a written finding by the Director that such data or information is required to carry out the functions described under subsection (c) and that the Office has coordinated with such regulator or agency as required under paragraph (4). Subpoenas shall bear the signature of the Director and shall be served by any person or class of persons designated by the Director for that purpose. In the case of contumacy or failure to obey a subpoena, the subpoena shall be enforceable by order of any appropriate district court of the United States. Any failure to obey the order of the court may be punished by the court as a contempt of court.
”(f) PREEMPTION OF STATE INSURANCE MEASURES.–
”(1) STANDARD.–A State insurance measure shall be preempted pursuant to this section or section 314 if, and only to the extent that the Director determines, in accordance with this subsection, that the measure–
”(A) results in less favorable treatment of a non-United States insurer domiciled in a foreign jurisdiction that is subject to a covered agreement than a United States insurer domiciled, licensed, or otherwise admitted in that State; and ”(B) is inconsistent with a covered agreement.
”(A) NOTICE OF POTENTIAL INCONSISTENCY.–Before making any determination under paragraph (1), the Director shall–
”(i) notify and consult with the appropriate State regarding any potential inconsistency or preemption;
”(ii) notify and consult with the United States Trade Representative regarding any potential inconsistency or preemption;
”(iii) 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 any applicable covered agreement;
”(iv) provide interested parties a reasonable opportunity to submit written comments to the Office; and
”(v) consider any comments received.
”(B) SCOPE OF REVIEW.–For purposes of this subsection, any determination of the Director regarding State insurance measures, and any preemption under paragraph (1) as a result of such determination, shall be limited to the subject matter contained within the covered agreement involved and shall achieve a level of protection for insurance or reinsurance consumers that is substantially equivalent to the level of protection achieved under State insurance or reinsurance regulation.
”(C) NOTICE OF DETERMINATION OF INCONSISTENCY.–Upon making any determination under paragraph (1), the Director shall–
”(i) notify the appropriate State of the determination and the extent of the inconsistency;
”(ii) establish a reasonable period of time, which shall not be less than 30 days, before the determination shall become effective; and
”(iii) notify the Committees on Financial Services and Ways and Means of the House of Representatives and the Committees on Banking, Housing, and Urban Affairs and Finance of the Senate.
”(3) NOTICE OF EFFECTIVENESS.–Upon the conclusion of the period referred to in paragraph (2)(C)(ii), if the basis for such determination still exists, the determination shall become effective and the Director shall–
”(A) cause to be published a notice in the Federal Register that the preemption has become effective, as well as the effective date; and
”(B) notify the appropriate State.
”(4) LIMITATION.–No State may enforce a State insurance measure to the extent that such measure has been preempted under this subsection.
”(g) APPLICABILITY OF ADMINISTRATIVE PROCEDURES ACT.–Determinations of inconsistency made pursuant to subsection (f)(2) 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), except that in any action for judicial review of a determination of inconsistency, the court shall determine the matter de novo.
”(h) REGULATIONS, POLICIES, AND PROCEDURES.–The Secretary may issue orders, regulations, policies, and procedures to implement this section.
”(i) CONSULTATION.–The Director shall consult with State insurance regulators, individually or collectively, to the extent the Director determines appropriate, in carrying out the functions of the Office.
”(j) SAVINGS PROVISIONS.–Nothing in this section shall–
”(A) any State insurance measure that governs any insurer’s rates, premiums, underwriting, or sales practices;
”(B) any State coverage requirements for insurance;
”(C) the application of the antitrust laws of any State to the business of insurance; or
”(D) any State insurance measure governing the capital or solvency of an insurer, except to the extent that such State insurance measure results in less favorable treatment of a non-United State insurer than a United States insurer;
”(2) be construed to alter, amend, or limit any provision of the Consumer Financial Protection Agency Act of 2010; or
”(3) affect the preemption of any State insurance measure otherwise inconsistent with and preempted by Federal law.
”(k) RETENTION OF EXISTING STATE REGULATORY AUTHORITY.–Nothing in this section or section 314 shall be construed to establish or provide the Office or the Department of the Treasury with general supervisory or regulatory authority over the business of insurance.