The Commissioner may approve an ongoing plan for the payment of dividends or other distributions by a captive insurer if, at the time of each payment or distribution, the retention of capital by the captive insurer is in excess of the amounts required by the Commissioner. The Commissioner shall adopt by regulation:
1. A specific amount that a captive insurer must have in excess capital for the approval of an ongoing plan for the payment of dividends or other distributions; or
2. A formula pursuant to which the specific amount of required excess capital may be calculated.