[§431:11-104.4]  Competitive

standard.  (a)  The commissioner may enter an order under section

431:11-104.5 with respect to an acquisition if there is substantial evidence

that the effect of the acquisition may be to substantially lessen competition

in any line of insurance in this State, or tend to create a monopoly therein,

or if the insurer fails to file adequate information in compliance with section

431:11-104.3.

     (b)  In determining whether a proposed

acquisition would violate the competitive standard of subsection (a), the

commissioner shall consider the following:

     (1)  Any acquisition covered under section

431:11-104.2 involving two or more insurers competing in the same market is

prima facie evidence of violation of the competitive standards:

         (A)  If the market is highly concentrated and

the involved insurers possess the following shares of the market:

                   Insurer A          Insurer B

                      4%              4% or more

                     10%              2% or more

                     15%              1% or more; or

         (B)  If the market is not highly concentrated

and the involved insurers possess the following shares of the market:

                   Insurer A          Insurer B

                      5%              5% or more

                     10%              4% or more

                     15%              3% or more

                     19%              1% or more

          A highly concentrated market is one in which

the share of the four largest insurers is seventy-five per cent or more of the

market.  Percentages not shown in the tables shall be interpolated

proportionately to the percentages that are shown.  If more than two insurers

are involved, exceeding the total of the two columns in the table is prima

facie evidence of violation of the competitive standard of subsection (a).  For

the purpose of this paragraph, the insurer with the largest share of the market

shall be deemed to be insurer A;

     (2)  There is a significant trend toward increased

concentration when the aggregate market share of any grouping of the largest

insurers in the market, from the two largest to the eight largest, has

increased by seven per cent or more of the market over a period of time

extending from any base year five to ten years prior to the acquisition up to

the time of the acquisition.  Any acquisition or merger covered under section

431:11-104.2 involving two or more insurers competing in the same market is

prima facie evidence of violation of the competitive standard in subsection (a)

if:

         (A)  There is a significant trend toward

increased concentration in the market;

         (B)  One of the insurers involved is one of the

insurers in a grouping of the large insurers showing the requisite increase in

the market share; and

         (C)  Another involved insurer's market is two

per cent or more;

     (3)  For the purposes of this subsection:

         (A)  The term "insurer" includes any

insurer or group of insurers under common management, ownership, or control;

         (B)  The term "market" means the

relevant product and geographical markets.  In determining the relevant product

and geographical markets, the commissioner shall give due consideration to,

among other things, the definitions or guidelines, if any, promulgated by the

National Association of Insurance Commissioners, and to information, if any,

submitted by parties to the acquisition.  In the absence of sufficient

information to the contrary, the relevant product market is assumed to be the

direct written insurance premiums for a line of business, the line being that

used in the annual statement required to be filed by insurers doing business in

this State, and the relevant geographical market is assumed to be this State;

and

         (C)  The burden of showing prima facie evidence

of violation of the competitive standard rests upon the commissioner; and

     (4)  Even though an acquisition is not prima facie

violative of the competitive standard under paragraph (1) or (2), the

commissioner may establish the requisite anticompetitive effect based upon

other substantial evidence.  Even though an acquisition is prima facie

violative of the competitive standard under paragraph (1) or (2), a party may

establish the absence of the requisite anticompetitive effect based upon other

substantial evidence.  Relevant factors in making a determination under this

paragraph include, but are not limited to, the following:  market shares,

volatility of ranking of market leaders, number of competitors, concentration,

trend of concentration in the industry, and ease of entry and exit into the

market.

     (c)  An order may not be entered under section

431:11-104.5(a) if:

     (1)  The acquisition will yield substantial economies

of scale or economies in resource utilization that cannot be feasibly achieved

in any other way, and the public benefits which would arise from such economies

exceed the public benefits which would arise from not lessening competition; or

     (2)  The acquisition will substantially increase the

availability of insurance, and the public benefits of that increase exceed the

public benefits which would arise from not lessening competition. [L

1992, c 176, pt of §3]