BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                     SB 696


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          Date of Hearing:  July 14, 2014 


                           ASSEMBLY COMMITTEE ON JUDICIARY


                                  Mark Stone, Chair


          SB  
          696 (Roth) - As Amended July 2, 2015


                              As Proposed to be Amended


          SENATE VOTE:  38-1


          SUBJECT:  INSURANCE: PRINCIPAL-BASED VALUATION


          KEY ISSUE:  SHOULD INFORMATION DISCLOSED TO THE INSURANCE  
          COMMISSIONER IN AN INSURANCE COMPANY'S PRINCIPLE-BASED VALUATION  
          REPORT BE SHIELDED FROM DISCOVERY OR ADMISSIBILITY IN A PRIVATE  
          CIVIL ACTION AND FROM DISCLOSURE UNDER THE PUBLIC RECORDS ACT? 


                                      SYNOPSIS


          This bill, as proposed to be amended, seeks to permit life  
          insurers and the Insurance Commissioner (the Commissioner) to  
          use a new methodology, known as principle-based reserving (PBR),  
          for determining the amount of reserves required for some types  
          of life insurance policies.  This method is based on a model law  
          developed by the National Association of Insurance Commissioners  
          (NAIC).  Currently the calculation method for life insurance  
          reserves is located in the Standard Valuation Law, a standard  








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          that was originally designed for whole life insurance policies.   
          However, there are other forms of life insurance policies that  
          involve various forms of complexities and risks that differ from  
          those contained in whole life policies.  For example, term life  
          policies expire after a certain term of years instead of an  
          entire lifetime and have been found to be an appealing  
          alternative to consumers who do not want the terms offered by a  
          whole life policy.  According to the sponsors, PBR allows for a  
          more accurate and precise determination of the required reserves  
          based on the characteristics of the individual life insurance  
          policy.


          In order for PBR to take effect, at least 42 states  
          (representing at least 75% of total U. S. premiums) must adopt  
          it.  Currently, 29 states have adopted PBR, but New York has  
          rejected the PBR methodology in favor of a modified version of  
          the current statutory formula.  This means that, size-wise,  
          California's adoption of the method is required in order for the  
          method to become effective in other states, and that is what  
          this bill does.  Specifically, the bill authorizes the  
          Commissioner to assess life insurers for the cost of  
          implementing PBR and requires insurers to submit detailed  
          modeling, data, and analysis to justify their proposed reserves  
          specific to a particular insurance product to the Commissioner  
          for review and approval.  The information in the report to the  
          Commissioner must include factors such as future economic  
          conditions, mortality, policyholder behavior and other financial  
          variables.  This bill adds provisions to hold a qualified  
          actuary liable for negligent and tortious acts with regards to  
          PBR and allows the Commissioner to provide for disciplinary  
          actions against an insurance company or a qualified actuary in  
          regulations that the bill allows the Commissioner to develop as  
          emergency regulations.  This bill also excludes a PBR report  
          from public disclosure or discovery in any private civil action  
          if obtained from the Commissioner, unless the information is  
          used in an action against an actuary, in a public hearing, or is  
          released by the insurer to the media.  The amendments clarify  
          that the bill's provisions would not affect the ability of the  








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          public to obtain the information that is contained in the report  
          to the Commissioner from the insurer through the normal  
          discovery process, which is consistent with how similar reports  
          are available today.  This bill is co-sponsored by the  
          California Department of Insurance (CDI) and the Association of  
          California Life and Health Insurance Companies.  This bill has  
          no known opposition. 


          SUMMARY:  Authorizes life insurers and the Insurance  
          Commissioner to use a new methodology, known as principle-based  
          reserving to calculate the reserves required for life insurance  
          policies and increases confidentiality of newly required  
          reports.  Specifically, this bill:  


          1)Provides that PBR only applies to policies issued on or after  
            PBR's effective date.  Provides that PBR only applies to  
            non-forfeiture benefits on policies issued on or after PBR's  
            effective date.


          2)Requires all life insurers to annually submit an actuarial  
            analysis of the company's reserves based on the Valuation  
            Manual (VM) adopted by the NAIC.


          3)Provides that future changes to the VM shall become effective  
            on January 1 of the year following its adoption by NAIC and  
            the issuance of an order adopting the changes by the  
            Commissioner.  


          4)Permits the Commissioner to conduct an independent actuarial  
            analysis of a life insurance company's reserves if the company  
            fails to submit one or if the Commissioner finds the submitted  
            analysis to be unacceptable.  Permits the Commissioner to  
            conduct the actuarial examination, at the insurer's expense,  
            of a life insurer's reserves, reserve assumptions, and reserve  








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            methodology.  


          5)Permits the Commissioner to adopt regulations establishing the  
            PBR valuation method, including a process to discipline  
            actuaries and insurers for misconduct related to the insurer's  
            actuarial opinion supporting the insurer's reserving under  
            PBR, as emergency regulations for a period of 180 days.  


          6)Provides that documents and information provided to the  
            Commissioner as part of the actuarial analysis of reserves,  
            assets supporting reserves and the opinion of the actuary of  
            whether the reserves are sufficient to support the companies'  
            policies and contracts are confidential and not subject to  
            disclosure under the California Public Records Act, subpoena,  
            or discovery from the Commissioner, unless the information is  
            to be used in a private civil action against the actuary, the  
            company cites the information in a public hearing, in  
            marketing materials, or to the media.  


          7)Provides the Commissioner with access to the confidential  
            materials in the actuarial memorandum and supporting documents  
            as necessary to perform his or her official duties.  Permits  
            the Commissioner to share documents and information related to  
            the actuarial analysis with other regulators, the American  
            Academy of Actuaries, and the NAIC if the recipient agrees to  
            maintain confidentiality. 


          8)Provides that if the VM does not address a specific product or  
            does so in a manner in conflict with California law, the  
            insurer must comply with the minimum reserve requirements  
            established by the Insurance Code or by regulations and  
            bulletins issued by the Commissioner.


          9)Permits the Commissioner to require a life insurer to change  








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            any reserve assumption or methodology that, in the  
            Commissioner's opinion, is necessary to comply with California  
            law or the VM.  Requires a life insurer to subsequently adjust  
            reserves as required by the Commissioner.


          10)Permits a life insurer using PBR to consider the particular  
            experience of its insureds, if that experience is  
            substantiated by credible statistical evidence, when  
            determining the level of reserves it is required to maintain.


          11)Requires a life insurer to share mortality, morbidity, policy  
            holder behavior, or expense experience data with the  
            Commissioner as specified in the VM.


          12)Permits the Commissioner to hire one subject matter expert,  
            exempt from the civil service, to lead the implementation of  
            PBR and permits the Commissioner to set the salary for that  
            position without approval of the Department of Human  
            Resources.


          13)Permits the Commissioner to assess life insurers for the cost  
            of implementing PBR, based on the dollar value of life  
            insurance premiums collect by each insurer.  


          14)Requires that actuaries engaged by the Commissioner maintain  
            confidentiality, be free of any conflicts of interest, and  
            disclose potential conflicts of interest.  


          15)Provides that an actuary providing an opinion under PBR is  
            liable for his or her negligence or any other tortious act.


          16)Provides that PBR takes effect on January 1 of the year  








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            following the first July 1 after PBR is adopted by at least 42  
            of the 55 jurisdictions within the National Association of  
            Insurance Commissioners (NAIC) representing 75% of the  
            premiums for life, health, and accident insurance policies  
            collected in all states and U.S. territories, provided that in  
            order for PBR to become effective in California, the  
            Commissioner must first provide a letter to the Insurance  
            Committees of the Legislature certifying that adequate funding  
            has been appropriated by the Legislature and that all other  
            resources are available and sufficient to implement PBR.  The  
            certification letter must be posted to the CDI Internet Web  
            site immediately after being submitted to the Legislature.  


          17)Makes numerous technical and clarifying changes to the  
            Insurance Code.


          EXISTING LAW: 


          1)Authorizes the Commissioner to regulate the insurers of life  
            and disability insurance.  (Insurance Code Section 10110 et  
            seq.  Unless stated otherwise, all further references are to  
            that code.)  
           2)Provides that the Standard Valuation Law requires life and  
            disability insurers to calculate the minimum standard for the  
            valuation of policies and contracts using specified mortality  
            tables approved by the Commissioner, sets forth the applicable  
            interest rates, and establishes the reserve requirements for  
            various types of life and disability policies and contracts.   
            (Section 10489.1 et seq.)


          3)Requires every life and disability insurer doing business in  
            this state to annually submit the opinion of a qualified  
            actuary as to whether the reserves and related actuarial items  
            held in support of the policies and contracts specified by the  
            Commissioner are computed appropriately, are based on  








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            assumptions that satisfy contractual provisions, are  
            consistent with prior reported amounts, and comply with  
            applicable state law.  (Section 10489.15.)


          4)Authorizes the Commissioner to issue a bulletin to provide  
            tables of select mortality factors and rules for their use,  
            rules concerning a minimum standard for the valuation of plans  
            with non-level premiums of benefits, and rules concerning a  
            minimum standard for the valuation of plans with secondary  
            guarantees.  That bulletin has the same force and effect, and  
            may be enforced by the Commissioner to the same extent and  
            degree, as regulations issued by the Commissioner.  (Section  
            10489.94(a).)


          5)Authorizes the procedure for the adoption, amendment, or  
            repeal of regulations by state agencies and for the review of  
            those regulatory actions by the Office of Administrative Law.   
            (Government Code Section 11340 et seq.)


          6)Provides that the people have a right of access to information  
            concerning the conduct of the people's business and the right  
            of access to public records, which must be open to public  
            scrutiny.  Any limits on the people's right of access must be  
            adopted with findings demonstrating the interest protected by  
            the limitation and the need for protecting that interest.   
            (Cal. Const., art. I, Section 3.) 


          7)Requires, generally, that records maintained by public  
            agencies are to be accessible to the public.  (Government Code  
            Section 6250 et seq.)


          8)Authorizes an exemption from public disclosure for  
            applications filed with the state agency responsible for  
            regulation or supervision of insurance companies.  (Government  








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            Code Section 6254(d)(1).)


          FISCAL EFFECT:  As currently in print this bill is keyed fiscal.


          COMMENTS:  National Association of Insurance Commissioners and  
          its Model Laws.  The NAIC is the regulatory support organization  
          created by and composed of the chief insurance regulators from  
          the 50 states, the District of Columbia and five U.S.  
          territories (in California, the chief insurance regulator is the  
          Commissioner).  The NAIC establishes standards and best  
          practices, conducts peer reviews, and coordinates regulatory  
          oversight by insurance commissioners in the U.S.  NAIC is a key  
          part of the national system of state-based insurance regulation.  
           


          NAIC's primary mission is to promote uniform practices amongst  
          states in regulating multi-state insurers.  To support this  
          effort, NAIC maintains an insurance regulator accreditation  
          program and develops uniform standards known as Model Laws.  The  
          Model Laws are intended to provide inter-jurisdictional  
          uniformity and cooperation among regulators in a manner that  
          builds in quality control and allows one jurisdiction to  
          comfortably rely on another NAIC-accredited jurisdiction  
          because, by statute, the regulatory processes and standards  
          applied are substantially similar.  Additionally, NAIC performs  
          an on-site accreditation review of each insurance regulator at  
          least every 5 years.  An insurance regulator's accreditation  
          status is dependent on its adoption of statutes and regulations  
          that align with NAIC Model Laws.  


          Existing Method of Calculating Reserves for Life Insurance  
          Policies in California.  Existing law requires life and  
          disability insurers to set aside reserves for their existing  
          insurance policies and contracts.  In calculating the minimum  
          standard for the valuation of policies and contracts, the  








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          insurer must use specified mortality tables that have been  
          approved by the Commissioner.  (Section 10489.94(a).)   The  
          Standard Valuation Law sets forth the applicable interest rates,  
          and establishes the reserve requirements for various types of  
          life and disability policies and contracts.  (Section 10489.1 et  
          seq.)  Insurers calculate the required reserves for their  
          existing policies and then submit to the Commissioner an annual  
          report with the opinion of a qualified actuary as to whether the  
          reserves held to support the policies and contracts are:  
          calculated accurately, based on assumptions that meet  
          contractual provisions, consistent with prior reported amounts,  
          and comply with state law.  (Section 10489.15.)  This bill seeks  
          to authorize a new method of calculating reserves for life  
          insurers and the Commissioner.


          According to the author:


               In order to make sure that life insurers will be able to  
               fulfill their contractual obligations, they are required to  
               set aside assets or "reserves" dedicated to payment of  
               anticipated claims.  It is not necessary to set aside funds  
               dollar-for-dollar, but enough to ensure payment of future  
               claims according to the probability of losses, anticipated  
               premium and investment income, reinsurance agreements  
               (where one insurer assumes risks from another insurer) and  
               other factors.  For life insurers, the formula used to  
               determine the value of those reserves is set forth in the  
               Standard Valuation Law (SVL) which reflects an approach  
               originally designed for whole life insurance policies and  
               utilizes market-wide standards and statutorily established  
               assumptions.


               But life insurance products have evolved far beyond whole  
               life products and involve varying degrees of complexity and  
               risk.  Actuarially, an insurance product that poses less  
               risk to the insurer should require lower reserve levels,  








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               but the existing formulaic approach does not always take  
               that into account.  For some products, existing law  
               requires life insurers to set aside higher reserves than  
               necessary for some products and too little for others.   
               Applying inappropriate reserving requirements may cause  
               higher premium for some types of products and discourage or  
               eliminate the development of new products. 


          New Method of Calculating Reserves.  This bill, co-sponsored by  
          the CDI and the Association of California Life and Health  
          Insurance Companies, authorizes life insurers and the  
          Commissioner to use a new methodology, known as principle-based  
          reserving (PBR), for determining the amount of reserves required  
          for some types of life insurance policies.  This method is based  
          on a model law developed by NAIC.  According to the NAIC, the  
          adoption of the SVL in 2009 introduced a new method for  
          calculating life insurance policy reserves.  The Valuation  
          Manual (the manual of valuation instructions adopted by NAIC)  
          was adopted by a supermajority of NAIC members in December 2012,  
          paving the way for states to begin adopting revisions to the SVL  
          in their legislative sessions.  The Valuation Manual begins the  
          process of revising reserving requirements to meet the need of  
          the various insurance products that are available in today's  
          marketplace, by establishing calculation methods for reserves  
          required to be held on different types of life insurance  
          policies.  This bill replaces the current "one size fits all"  
          approach to determining policy reserves for life insurance  
          policies with the PBR approach that, according to the sponsors,  
          more closely reflects the risks of highly complex life insurance  
          products.  For example, term life policies expire after a  
          certain term of years instead of the entire lifetime of the  
          insured, and have, according to the sponsors, been found to be  
          an appealing alternative to consumers who do not want the terms  
          offered by a whole life policy.  The reserves required for whole  
          life and term life, argue the sponsors, should be different  
          because the life term of the policy is calculated differently by  
          insurers due to several factors such as risk, life span, and  
          anticipated payouts.  However, under the existing valuation  








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          methods, they are calculated in the same manner.  According to  
          the NAIC, PBR calculations are expected to be more exacting, and  
          will reduce the chance of reserves being too high for some  
          products or too low for others. 


          Once at least 42 states (a supermajority) representing 75% of  
          total U.S. premiums adopt the revisions to the SVL, PBR will be  
          implemented over approximately three years and only for new  
          policies issued.  As of June 1, 2015, 29 states, representing  
          45% of premium, have adopted the revised model laws.   
          (  http://www.naic.org/cipr_topics/principle_based_reserving_pbr.ht 
          m  )  This bill would require that PBR take effect on January 1 of  
          the year following the first July 1 after PBR is adopted by at  
          least 42 of the 55 jurisdictions within the NAIC, representing  
          75% of the premiums for life, health, and accident insurance  
          policies collected in all 55 jurisdictions.  However, PBR will  
          not be effective in California until the Commissioner provides a  
          letter to the Insurance Committees of the Legislature certifying  
          that adequate funding has been appropriated by the Legislature  
          and that all other resources are available and sufficient to  
          implement PBR.  The certification letter must be posted to the  
          CDI Internet Web site immediately after being submitted to the  
          Legislature.  PBR will only apply to policies and non-forfeiture  
          benefits (a refund of all or part of the premiums paid by an  
          insured, if the insured decides to cancel his or her policy  
          after a specified date) issued on or after its effective date. 


          Does the California Department of Insurance Have the Necessary  
          Professional Workforce to Implement PBR Effectively and, Given  
          New York's Reasons for not Participating, Does PBR Make Sense  
          for California Consumers?  When this bill was heard by the  
          Assembly Insurance Committee, that Committee was concerned about  
          whether the California Department of Insurance will have  
          sufficient resources and staff to implement PBR.  The  
          Committee's concerns were based on reports regarding the ability  
          of states to effectively implement PBR.  One such report was  
          published in December 2013 by the Federal Insurance Office of  








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          the U.S. Department of the Treasury entitled, How to Modernize  
          and Improve the System of Insurance Regulation in the United  
          States, in the report the Federal Office of Insurance cautions:


               The U.S. life insurance sector's reserving requirements  
               should properly reflect current mortality rates, the life  
               insurer's business model, and its particular risk profile,  
               but substantial concerns arise with the prospect of a  
               wholesale adoption of PBR.  In addition to consistency  
               issues, state regulators will also face the challenge of  
               maintaining a sufficiently high level of expertise for  
               understanding the "black box" of the models on which  
               reserve levels would be established.  Specifically, the  
               need for many more sufficiently trained and expert  
               actuaries and examiners than are currently available to  
               regulators raises necessary questions with respect to  
               states' ability to verify insurers' implementation of PBR  
               in a uniform manner that is consistent with the [Valuation]  
               Manual.  To obtain necessary expertise, states likely would  
                                                        have to contract with consulting actuaries and other  
               professionals, many of whom may have clients in the life  
               insurance industry and, thus, state regulators will need to  
               sort through and manage potential conflicts of interest.


          This report also provides that while New York, California,  
          Florida and North Dakota moved forward in establishing a working  
          group through the NAIC to recognize challenges of implementing  
          PBR, the New York Department of Financial Services identified  
          flaws and raised serious questions about the efficiency of the  
          working group process.  New York eventually opted not to  
          implement PBR because, according to a November 2012 letter from  
          the New York State Superintendent of the Department of Financial  
          Services, Benjamin Lawsky, "There are numerous factors that  
          should give regulators pause [with an untested PBR model]: (1)  
          Principles-based reserving in the banking sector proved  
          disastrous; (2) Under PBR, reserves will decrease, and the risk  
          of insurer insolvency will increase; (3) It is not clear that a  








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          PBR regime will benefit consumers; (4) Regulators are  
          ill-equipped at present to implement and oversee PBR; and (5)  
          Even if the rules-based approach has its shortcomings, it does  
          not necessarily follow that PBR is the answer."  Thus, as  
          California looks to implement the PBR, it is critical that the  
          Commissioner does so in a way that benefits consumers and does  
          not risk insurer insolvency.


          The PBR Report and Supporting Documents Submitted to the  
          Commissioner Are Exempt From the Public Records Act.  Documents  
          that are provided to the Commissioner qualify as public records  
          to which the public has access unless there are legislative  
          findings or exceptions that impose limitations on the public's  
          right of access to those records.  Any limitation to public  
          access is always of great concern because the public has a right  
          to information that becomes part of a public agency's records. 


          The bill seeks to exclude all information in a PBR report  
          annually filed with the Commissioner from disclosure and from  
          discovery or admissibility into evidence in any private civil  
          action if the information is obtained from the Commissioner in  
          any manner.  This bill requires that documents and information  
          provided to the Commissioner as part of the actuarial analysis  
          of an insured's reserves using PBR be confidential and not  
          subject to disclosure under the California Public Records Act,  
          subpoena, or discovery and are not admissible in any private  
          civil action unless the documents and information are cited to  
          in an action against an actuary, in a public hearing, or are  
          released by the insurer to the media.  The basis of the  
          exemption is that the report and supporting documentation,  
          according to the insurers, contain confidential data, trade  
          secrets, and proprietary information that the insurers have  
          developed through extensive research and development.


          Existing law holds that the confidential memorandum and  
          supporting information is subject to subpoena with the  








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          Commissioner's consent, or after notice to the Commissioner and  
          all other interested parties and a hearing, the superior court  
          can release the information if it determines that the need for  
          the subpoena outweighs the interest of the insurer or actuary in  
          protecting the confidential information, and the public interest  
          and ongoing investigation of the Commissioner will not be  
          unnecessarily jeopardized by compliance with the subpoena.   
          (Section 10489.15(B).)  The provisions of this bill, by  
          contrast, do not include an exception to disclose the contents  
          of the PBR report that is filed with the Commissioner, either by  
          consent of the Commissioner or by a subpoena and a court order.   
          However, the proposed amendments clarify that the public may  
          still obtain the information that is contained in reports to the  
          Commissioner from the insurer through the normal discovery  
          process.    


          This bill also permits the Commissioner to share documents and  
          information related to the actuarial analysis with other  
          regulators, the American Academy of Actuaries, and the NAIC if  
          the recipient agrees to maintain confidentiality.  The  
          additional disclosure to third parties helps to ensure the  
          critical cooperation and full disclosure of insurers and  
          affiliates who otherwise may be forced to seek disclosure of  
          this information under other laws. 


          Civil Liability for Actuaries.  Under existing law, an actuary  
          is liable to persons for damages caused by his or her negligence  
          or other tortious conduct with respect to any act, error,  
          omission, decision, or conduct with respect to the actuary's  
          opinion.  This bill provides that a qualified actuary (an  
          individual who is qualified to sign the applicable statement of  
          actuarial opinion in accordance with the American Academy of  
          Actuaries qualification standards and who meets the requirements  
          specified in the VM is liable for his or her negligence or other  
          tortious conduct regarding PBR.  Existing law gives the  
          Commissioner the authority to suspend or revoke a license, but  
          due to the apparent severity of that penalty, that option  








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          apparently is rarely invoked.  This bill allows the Commissioner  
          to define "disciplinary action" in the emergency regulations  
          (for the initial 180 days of the regulations) for implementing  
          the PBR law against a company or the qualified actuary.   
          Creating a new form of discipline for a negligent actuary should  
          help serve as a deterrent for actuarial misconduct in  
          calculating PBR reporting information and providing false or  
          misleading information in reports regarding a company's  
          available reserves.
            
          ARGUMENTS IN SUPPORT:  In support of this bill, the Association  
          of California Life and Health Insurance Companies writes:


               PBR is a modern method of calculating these mandatory  
               reserves required to pay claims of policyholders for  
               certain insurance products sold to individuals.  It  
               accomplishes this goal by prescribing a dynamic approach to  
               calculating a company's reserve requirements that expressly  
               factors in an individual company's inherent risk associated  
               with a particular product.  Compared with today's  
               industrywide, static, formulaic approach, in which reserve  
               requirements are locked in and inflexible regardless of  
               future experience, economic conditions, or other risk,  
               reserves that are calculated utilizing PBR are judged as  
               the company's risk changes.  This calibration of reserves  
               to risk ensures greater transparency on the company's  
               balance sheet and more frequent regulatory review, thereby  
               strengthening consumer protections.


               Importantly, reserves will not experience swings from high  
               to low which have been experienced in the past.  Even more  
               importantly, consumers will experience the pricing benefits  
               of proper reserving.


          Prior Legislation:  AB 2384 (Nakano, Chap. 601, Stats. 2004)  
          requires that all life and annuity contract forms be filed with  








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          the CDI prior to being issued.  


          REGISTERED SUPPORT / OPPOSITION:




          Support


          Association of California Life and Health Insurance Companies  
          (co-sponsor)


          California Department of Insurance (co-sponsor)


          Affordable Life Insurance Alliance


          USAA


          Pacific Life Insurance Company




          Opposition


          None on file




          Analysis Prepared by:Khadijah Hargett / JUD. / (916)  
          319-2334








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