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SUBCHAPTER L. RULES OF PRACTICE AND PROCEDURE FOR INDUSTRY-WIDE BENCHMARK RATE PROCEEDINGS

1. INTRODUCTION. The Texas Department of Insurance proposes new Subchapter L, §§1.1301­1.1306 concerning procedures for industry-wide benchmark rate proceedings for automobile and residential property insurance. The new sections are necessary to provide rules of practice and procedure to promulgate the benchmark rates for automobile and residential property under the Texas Insurance Code Article 5.101 §3(d)¸ as amended by the 77 th Legislature in House Bill 2102. The purpose of House Bill 2102 , in pertinent part , was to streamline the rate-setting process so that rates would better reflect market conditions at the time they are established. This was effected in the amendments to Article 5.101 §3(b) and (d) by changing the rate­setting process from a contested case procedure to a rulemaking. The procedures for the rulemaking proceedings to set the benchmark rates under Article 5.101 §3(d) are set forth in these proposed rules because neither of the two rulemaking procedures under which the department promulgates rules apply to the benchmark rate proceedings. The rulemaking procedure commonly used by state agencies, which is set forth in the Texas Government Code Chapter 2001 (Administrative Procedure Act), is declared inapplicable to the benchmark rate proceedings conducted under Article 5.101 §3(d) in Article 5.101 §5. The other rulemaking procedure, which is set forth in the Insurance Code Article 5.96, is declared inapplicable to the benchmark rate proceedings conducted under Article 5.101 §3(d) in Article 5.96 §(a­1).

Proposed §1.1301 sets forth the scope of the new subchapter, while proposed §1.1302 defines certain key words and terms. Proposed §1.1303 sets forth the procedure for the prehearing phase in which the commissioner solicits recommendations regarding changes to the benchmark rates and, at the department´s option, convenes an informal conference with interested participants who have submitted recommendations. Proposed §1.1304 describes the process under which the proposal for a change to the benchmark rate is published by the department for public comment. Proposed §1.1305 sets forth procedures for the hearing on the proposal for a change in the benchmark rate. Proposed §1.1306 describes the process for adoption of a rule establishing the benchmark rates. In conjunction with the proposed new sections, the department proposes the repeal of existing Subchapter L, Rules of Practice and Procedure for Industry-wide Rate Cases, §§1.1301 ­ 1.1317. Notice of the proposed repeal of these sections is published elsewhere in this issue of the Texas Register.

2. FISCAL NOTE. C. H. Mah, Senior Associate Commissioner, Property and Casualty Division, has determined that for each year of the first five years the proposed sections will be in effect, there will be no fiscal implications to state and local governments as a result of the enforcement or administration of the sections. There will be no measurable effect on local employment or the local economy as a result of the adoption of these sections.

3. PUBLIC BENEFIT/COST NOTE. Mr. Mah has also determined that for each year of the first five years the sections are in effect, the public benefit anticipated as a result of the proposed sections will be an orderly and efficient process for conducting hearings to adopt benchmark rates for automobile and residential property insurance under Article 5.101 as amended by the 77 th Legislature. For each of the first five years the proposed sections are in effect, the anticipated economic costs to comply with the proposed sections are largely the result of the amendments to Article 5.101 §3(d) which require the change in procedure for the benchmark rate cases from contested case to rulemaking. The department anticipates that the new procedure under the proposed sections will cost less because of the more informal nature of the new procedure. The proposed sections do not require the participants to file formal pleadings, pre-filed witness testimony, rebuttal testimony, briefs, exceptions, and replies, as contemplated under the contested case procedure. Under the proposed sections, participants may control the level of expense incurred since the less formal procedure also allows the participants to determine their level of involvement in the proceedings. For example, the proposed sections have afforded interested participants the ability to decide whether they will present expert testimony. The proposed sections will not have an adverse economic effect on small businesses or micro-businesses because no business, whether large, small or micro, is required to participate in the benchmark rate proceedings, or should they participate, to do so at any required level. Consequently, it is neither legal nor feasible to waive these requirements for small or micro-businesses.

4. REQUEST FOR PUBLIC COMMENT. To be considered, written comments on the proposal must be submitted no later than 5:00 p.m. on August 19, 2002 to Lynda H. Nesenholtz, General Counsel and Chief Clerk, Mail Code 113-2A, Texas Department of Insurance, P. O. Box 149104, Austin, Texas 78714-9104. An additional copy of the comment must be simultaneously submitted to C. H. Mah, Senior Associate Commissioner, Property and Casualty Division, Mail Code 105-5G, Texas Department of Insurance, P.O. Box 149104, Austin, Texas 78714-9104. Any request for a public hearing should be submitted separately to the Office of the Chief Clerk within the comment period.

5. STATUTORY AUTHORITY. The new sections are proposed under the Texas Insurance Code Articles 5.101 §§3(b), 3(d) and 5, and §§37.001, 40.061, and 36.001. Article 5.101 §3(b) and (d) authorizes the Commissioner of Insurance to promulgate industry-wide benchmark rates through rulemaking proceedings, rather than through contested case proceedings. Article 5.101 §5 states that Chapter 2001 of the Texas Government Code does not apply to benchmark rate hearings conducted under Article 5.101 §3(d). Section 40.061 provides that all hearings for benchmark rates for all lines subject to Article 5.101 are conducted as provided by Article 5.101 §3(d) rather than as provided by §§40.051 - 40.060. Section 37.001 requires the Commissioner to adopt rules governing proceedings necessary to approve or promulgate rates under the Insurance Code or any other insurance law of this state. Section 36.001 provides that the Commissioner may adopt rules to execute the duties and functions of the Texas Department of Insurance as authorized by statute.

6. CROSS REFERENCE TO STATUTE. Texas Insurance Code Article 5.101 §3(d) and §40.061are affected by the proposal of §§1.1301 - 1.1306.

7. Text

§1.1301. Scope. This subchapter applies to all industry-wide automobile and residential property benchmark rate cases held under the Texas Insurance Code Article 5.101 §3(b) and (d).

§1.1302. Definitions. The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise.

(1) Commissioner ­ The Texas Commissioner of Insurance.

(2) Department ­ The Texas Department of Insurance.

(3) Chief Clerk ­ The Office of the Chief Clerk of the department.

(4) Benchmark rates ­ Industry-wide benchmark rates for automobile or residential property insurance adopted by the commissioner pursuant to Texas Insurance Code Article 5.101 §3(d).

(5) Benchmark rate proceedings ­ Proceedings for the promulgation of industry-wide benchmark rates for automobile or residential property insurance held under Texas Insurance Code Article 5.101 §3(d).

(6) Interested participant ­ Any insurer, trade association, the Public Insurance Counsel, or any other person or entity who participates in an industry-wide automobile or residential property benchmark rate proceeding.

(7) Supporting actuarial analyses ­ Analyses of relevant data relating to all or a portion of existing benchmark rates for which changes are recommended. These include all exhibits and workpapers supporting the analyses.

(8) Recommendations ­ Suggestions for changes in all or part of existing benchmark rates submitted by any interested participant pursuant to the procedures in §1.1303 of this subchapter (relating to Recommendations for Benchmark Rate Changes).

§1.1303. Recommendations for Benchmark Rate Changes.

(a) Prior to publishing a petition to amend existing benchmark rates, the department shall publish a notice of request for recommendations in the Texas Register and on the department´s internet site. The notice shall include a date by which interested participants must file their recommendations with the chief clerk in order to be considered by the department in developing a petition to amend the existing benchmark rates. The notice shall also indicate the availability of any relevant statistical data collected by the department and how such data may be obtained.

(b) Any interested participant submitting recommendations must also submit supporting actuarial analyses, as specified in the notice.

(c) The department may convene an informal conference or consultation to obtain clarification or advice from interested participants who have timely filed recommendations.

(d) The department shall consider all timely filed recommendations but the department´s petition to be filed under § 1.1304 of this subchapter (relating to Petition for Changes in the Benchmark Rates) is not limited by or required to reflect any of the recommendations.

§1.1304. Petition for Changes to the Benchmark Rates.

(a) Following review of the recommendations, the department shall publish its petition for a rule to amend the existing benchmark rates and a notice of hearing concerning the petition in the Texas Register and on the department´s internet site. If the department proposes no change in the benchmark rates, it shall publish a notice indicating that it proposes no change and a notice of hearing concerning the proposal in the Texas Register and on the department´s internet site.

(b) Comments on the petition may be submitted to the chief clerk.

(c) The chief clerk shall maintain a record of all documents filed in the benchmark rate proceeding. All documents submitted shall be open to public inspection.

§1.1305. Procedures for Hearing on the Department´s Petition.

(a) Any interested participant that has submitted recommendations or supporting actuarial analyses may ask relevant questions of any other person speaking at the hearing.

(b) The commissioner and the department´s staff may also ask relevant questions of any interested participant that has submitted recommendations as well as any other person speaking at the hearing.

(c) The commissioner may limit the amount of time each interested participant or other person may speak or ask relevant questions at the hearing, and may accept written comments in addition to the oral presentation of any interested participant or other person.

§1.1306. Adoption of Benchmark Rates.

(a) Subsequent to the hearing, the commissioner shall adopt a rule promulgating the benchmark rates.

(b) The commissioner shall file a notice of the adoption of the rule promulgating the benchmark rates for publication in the adopted rule section of the Texas Register.

(c) The rule promulgating the benchmark rates will set out the effective date of the benchmark rates adopted therein.

(d) Prior to the effective date of the benchmark rates, the department shall cause a notice of the rule to be mailed to all insurers writing the affected line of insurance in this state and to all persons who submitted recommendations or comments concerning the benchmark rates to the department.

8. CERTIFICATION. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency´s authority to adopt.



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