1. Any document, material, or other information in the possession or control of the North Dakota insurance department which is obtained by or disclosed to the commissioner or any other person in the course of an examination or investigation made pursuant to section 26.1 -10-06 and all information reported pursuant to subdivisions l and m of subsection 2 of section 26.1-10-03 and sections 26.1-10-04 and 26.1 -10-05 is confidential and privileged, not subject to section 44 -04-18, not subject to subpoena, and not subject to discovery or admissible in evidence in any private civil action. However, the commissioner may use the document, material, or other information in the furtherance of any regulatory or legal action brought as a part of the commissioner's official duties. The commissioner may not otherwise make the document, material, or other information public without the prior written consent of the insurer to which it pertains unless the commissioner, after giving the insurer and its affiliates that would be affected thereby, notice and opportunity to be heard, determines that the interests of policyholders, shareholders, or the public will be served by the publication thereof, in which event the commissioner may publish all or any part thereof in any manner the commissioner deems appropriate. a. For purposes of the information reported and provided under subsections 13 and 14 of section 26.1 -10-04, the commissioner shall maintain the confidentiality of the group capital calculation and group capital ratio produced within the calculation and any group capital information received from an insurance holding company supervised by the federal reserve board or any United States groupwide supervisor. b. For purposes of the information reported and provided under subsection 15 of section 26.1-10-04, the commissioner shall maintain the confidentiality of the liquidity stress test results and supporting disclosures and any liquidity stress test information received from an insurance holding company supervised by the federal reserve board and non-United States groupwide supervisors. 2. Neither the commissioner nor any person that received any document, material, or other information while acting under the authority of the commissioner or with whom such document, material, or other information is shared under this chapter is permitted or required to testify in any private civil action concerning any confidential document, material, or information subject to subsection 1. 3. To assist in the performance of the commissioner's duties: a. If the recipient agrees in writing to maintain the confidentiality and privileged status of the document, material, or other information, and has verified in writing the legal authority to maintain confidentiality, the commissioner may share any document, material, or other information, including the confidential and privileged document, material, or information subject to subsection 1, including proprietary and trade secret documents and materials, with any other state, federal, and international regulatory agency, the national association of insurance commissioners, any third -party consultant designated by the commissioner, and any state, federal, or international law enforcement authority, including members of any supervisory college described in section 26.1-10-06.1; b. Notwithstanding subdivision a, the commissioner may share a confidential and privileged document, material, or information reported under subsection 12 of section 26.1-10-04 only with a commissioner of a state having statutes or regulations substantially similar to subsection 1 and who has agreed in writing not to disclose the information; c. The commissioner may receive any document, material, or information, including any otherwise confidential and privileged document, material, or information, including propriety and trade secret information, from the national association of insurance commissioners and its affiliates and subsidiaries and from any regulatory and law enforcement official of other foreign or domestic jurisdiction, and shall maintain as confidential or privileged any document, material, or information received with notice or the understanding the document, material, or information is confidential or privileged under the laws of the jurisdiction that is the source of the document, material, or information; and d. The commissioner shall enter a written agreement with the national association of insurance commissioners and any third -party consultant designated by the commissioner governing sharing and use of information provided under this chapter consistent with this subsection and which must: (1) Specify procedures and protocols regarding the confidentiality and security of information shared with the national association of insurance commissioners or any third -party consultant designated by the commissioner under this chapter, including procedures and protocols for sharing by the national association of insurance commissioners with any other state, federal, or international regulator. The written agreement must provide the recipient agrees to maintain the confidentiality and privileged status of the documents, materials, or other information and has verified in writing the legal authority to maintain such confidentiality; (2) Specify ownership of information shared with the national association of insurance commissioners or a third -party consultant under this chapter remains with the commissioner, and the national association of insurance commissioner's or a third -party consultant's, as designated by the commissioner, use of the information is subject to the direction of the commissioner; (3) Excluding documents, materials, or information reported under subsections 13 and 14 of section 26.1 -10-04, prohibit the national association of insurance commissioners or a third -party consultant designated by the commissioner from storing the information shared under this chapter in a permanent database after the underlying analysis is complete; (4) Require prompt notice to be given to an insurer if the insurer's confidential information in the possession of the national association of insurance commissioners or a third -party consultant designated by the commissioner under this chapter is subject to a request or subpoena to the national association of insurance commissioners or a third -party consultant designated by the commissioner for disclosure or production; (5) Require the national association of insurance commissioners or third -party consultants designated by the commissioner to consent to intervention by an insurer in any judicial or administrative action in which the national association of insurance commissioners or a third -party consultant designated by the commissioner may be required to disclose confidential information about the insurer shared with the national association of insurance commissioners or a third -party consultant designated by the commissioner under this chapter; and (6) Documents, materials, or information reported under subsection 13 and 14 of section 26.1 -10-04, in the case of an agreement involving a third -party consultant, provide for notification of the identity of the consultant to the applicable insurer. 4. The sharing of information by the commissioner under this chapter does not constitute a delegation of regulatory authority or rulemaking, and the commissioner is solely responsible for the administration, execution, and enforcement of this chapter. 5. Waiver of any applicable privilege or claim of confidentiality in any document, material, or information may not occur as a result of disclosure to the commissioner under this section or as a result of sharing as authorized in subsection 3. 6. Any document, material, or other information in the possession or control of the national association of insurance commissioners or a third-party consultant designated by the commissioner under this chapter is confidential and privileged, not subject to section 44-04-18, not subject to subpoena, and not subject to discovery or admissible in evidence in any private civil action. 7. The group capital calculation and resulting group capital ratio required under subsections 13 and 14 of section 26.1 -10-04 and the liquidity stress test along with its results and supporting disclosures required under subsection 15 of section 26.1-10-04, are regulatory tools for assessing group risks and capital adequacy and group liquidity risks, respectively, and are not intended as a means to rank insurers or insurance holding company systems generally. 8. Except as otherwise required under this chapter, the making, publishing, disseminating, circulating or placing before the public, or causing directly or indirectly to be made, published, disseminated, circulated or placed before the public in a newspaper, magazine or other publication, or in the form of a notice, circular, pamphlet, letter or poster, or over any radio or television station or any electronic means of communication available to the public, or in any other way as an advertisement, announcement or statement containing a representation or statement that would be misleading is prohibited when made regarding: a. A group capital calculation; b. A group capital ratio; c. Liquidity stress test results; d. Supporting disclosures for the liquidity stress test of any insurer or any insurer group; or e. Any component derived in the calculation by any insurer, broker, or other person engaged in any manner in the insurance business. 9. Notwithstanding subsection 8, if any written publication contains a materially false statement and the insurer demonstrates to the commissioner with substantial proof the falsity or inappropriateness of the statement, the insurer may publish announcements in a written publication, provided the sole purpose of the announcement is to rebut the materially false statement. For this subsection to apply, the existence of any materially false statement in a written publication must relate to at least one of the following subject areas: a. A group capital calculation; b. A resulting group capital ratio; c. An inappropriate comparison of any amount to an insurer's or insurance group's group capital calculation or resulting group capital ratio; d. A liquidity stress test result; e. Supporting disclosures for the liquidity stress test; or f. An inappropriate comparison of any amount to an insurer's or insurance group's liquidity stress test result or supporting disclosures.
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