[Federal Register: September 16, 2008 (Volume 73, Number 180)]
[Rules and Regulations]
[Page 53359-53366]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr16se08-4]
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DEPARTMENT OF THE TREASURY
31 CFR Part 50
RIN 1505-AB93
Terrorism Risk Insurance Program; Terrorism Risk Insurance
Program Reauthorization Act Implementation
AGENCY: Departmental Offices, Treasury.
ACTION: Interim final rule with request for comments.
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SUMMARY: The Department of the Treasury (Treasury) is issuing this
interim final rule as part of its implementation of amendments made by
the Terrorism Risk Insurance Program Reauthorization Act of 2007
(Reauthorization Act) to Title I of the Terrorism Risk Insurance Act of
2002
[[Page 53360]]
(TRIA, or Act), as previously amended by the Terrorism Risk Insurance
Extension Act of 2005 (Extension Act). The Act established a temporary
Terrorism Risk Insurance Program (Program) that was scheduled to expire
on December 31, 2005, under which the Federal Government shared the
risk of insured losses from certified acts of terrorism with commercial
property and casualty insurers. The Extension Act extended the Program
through December 31, 2007, and made other changes. The Reauthorization
Act extends the Program through December 31, 2014, revises the
definition of an ``act of terrorism,'' and makes other changes. This
interim final rule contains regulations that Treasury is issuing to
implement certain aspects of the Reauthorization Act. In particular,
the rule addresses mandatory availability (``make available'') and
disclosure requirements.
DATES: This interim final rule is effective September 16, 2008. Written
comments on this interim final rule must be submitted on or before
October 16, 2008.
ADDRESSES: Submit comments electronically through the Federal
eRulemaking Portal: http://www.regulations.gov, or by mail (if hard
copy, preferably an original and two copies) to: Terrorism Risk
Insurance Program, Public Comment Record, Suite 2100, Department of the
Treasury, 1425 New York Avenue, NW., Washington, DC 20220. Because
paper mail in the Washington, DC area may be subject to delay, it is
recommended that comments be submitted electronically. All comments
should be captioned with ``TRIA Reauthorization Act Interim Final Rule
Comments.'' Please include your name, affiliation, address, e-mail
address, and telephone number in your comment. Comments will be
available for public inspection on the Federal eRulemaking Portal and
by appointment at the TRIP Office. To make appointments, call (202)
622-6770 (not a toll-free number).
FOR FURTHER INFORMATION CONTACT: Howard Leikin, Deputy Director,
Terrorism Risk Insurance Program (202) 622-6770 (not a toll-free
number).
SUPPLEMENTARY INFORMATION:
I. Background
A. Terrorism Risk Insurance Act of 2002
On November 26, 2002, the President signed into law the Terrorism
Risk Insurance Act of 2002 (Pub. L. 107-297, 116 Stat. 2322). The Act
was effective immediately. The Act's purposes are to address market
disruptions, ensure the continued widespread availability and
affordability of commercial property and casualty insurance for
terrorism risk, and allow for a transition period for the private
markets to stabilize and build capacity while preserving State
insurance regulation and consumer protections.
Title I of the Act establishes a temporary federal program of
shared public and private compensation for insured commercial property
and casualty losses resulting from an act of terrorism which, as
defined by the Act, is certified by the Secretary of the Treasury, in
concurrence with the Secretary of State and the Attorney General. The
Act authorizes Treasury to administer and implement the Terrorism Risk
Insurance Program (the Program), including the issuance of regulations
and procedures.
Each entity that meets the Act's definition of insurer must
participate in the Program. The amount of federal payment for an
insured loss resulting from an act of terrorism is determined by
insurance company deductibles and excess loss sharing with the Federal
Government as specified in the Act and Treasury's implementing
regulations. An insurer's deductible is calculated based on the value
of direct earned premiums collected over certain prescribed calendar
periods. Once an insurer has met its individual deductible, the federal
payments cover a percentage of the insured losses above the deductible,
all subject to an annual industry aggregate limit of $100 billion.
The Act gives Treasury authority to recoup federal payments made
under the Program through policyholder surcharges. The Act reduces the
Federal share of compensation for insured losses that have been covered
under any other federal program. The Act also contains provisions
designed to manage certain litigation arising from or relating to a
certified act of terrorism. Section 107 of the Act creates an exclusive
federal cause of action, provides for claims consolidation in federal
court, and contains a prohibition on federal payments for punitive
damages under the Program. The Act provides the United States with the
right of subrogation with respect to any payment or claim paid by the
United States under the Program.
The Program was originally set to expire on December 31, 2005. On
December 22, 2005, the President signed into law the Terrorism Risk
Insurance Extension Act of 2005 (Pub. L. 109-144, 119 Stat. 2660),
which extended the Program through December 31, 2007, and made other
significant changes to TRIA that included a revised definition of
property and casualty insurance and creation of a new Program trigger
that prohibits payment of Federal compensation by Treasury unless the
aggregate industry insured losses resulting from a certified act of
terrorism exceed a certain amount ($100 million in 2007).
B. Terrorism Risk Insurance Program Reauthorization Act of 2007
Under the Extension Act, the Program was set to expire on December
31, 2007. On December 26, 2007, the President signed into law the
Terrorism Risk Insurance Program Reauthorization Act of 2007 (Pub. L.
110-160, 121 Stat. 1839), which extends the Program through December
31, 2014 (i.e., adds additional Program Years to the Program). Other
provisions of the Reauthorization Act:
Revise the definition of ``act of terrorism'' to remove
the requirement that the act of terrorism be committed by an individual
acting on behalf of any foreign person or foreign interest in order to
be certified as an act of terrorism for purposes of the Act.
Define ``insurer deductible'' for all additional Program
Years as the value of an insurer's direct earned premiums for
commercial property and casualty insurance for the immediately
preceding calendar year multiplied by 20 percent.
Set the Federal share of compensation for insured losses
(subject to a $100,000,000 Program trigger) for all additional Program
Years at 85 percent of that portion of the amount of insured losses
that exceeds the applicable insurer deductible.
Require Treasury to submit a report to Congress and issue
final regulations for determining the pro rata share of insured losses
to be paid under the Program when aggregate insured losses exceed
$100,000,000,000.
Require the Secretary of the Treasury to notify Congress
not later than 15 days after the date of an act of terrorism as to
whether aggregate insured losses are estimated to exceed
$100,000,000,000.
Require for policies issued after the date of enactment,
that insurers provide clear and conspicuous disclosure to the
policyholder of the existence of the $100,000,000,000 cap at the time
of offer, purchase, and renewal of a policy (in addition to current
disclosure requirements).
Revise the recoupment provisions of the Act. For purposes
of recouping the Federal share of compensation under the Act, the
''insurance marketplace aggregate retention amount'' for all additional
Program Years is the lesser of $27,500,000,000
[[Page 53361]]
and the aggregate amount, for all insurers, of insured losses during
each Program Year. With regard to mandatory recoupment of the Federal
share of compensation through policyholder surcharges, collection is
required within a certain schedule specified in the Reauthorization
Act. The limitation that surcharges not exceed 3 percent of the premium
charged for property and casualty insurance coverage under the policy
is eliminated (but remains in the case of discretionary recoupment).
Require Treasury to issue recoupment regulations within
180 days of enactment, and publish an estimate of aggregate insured
losses within 90 days after an act of terrorism.
Require the President's Working Group on Financial Markets
to perform an ongoing analysis regarding the long-term availability and
affordability of terrorism risk insurance and submit reports in 2010
and 2013.
Require the Comptroller General to examine and report on
the availability and affordability of insurance coverage for nuclear,
biological, chemical, and radiological terrorist events; the future
outlook for such coverage; and the capacity of insurers and State
workers compensation funds to manage the risk associated with nuclear,
biological, chemical, and radiological terrorist events.
Require the Comptroller General to study and report on the
question of whether there are specific markets in the United States
where there are unique capacity constraints on the amount of terrorism
risk insurance available.
C. Previously Issued Interim Guidance
To assist insurers, policyholders, and other interested parties in
complying with immediately applicable requirements of the
Reauthorization Act, on December 31, 2007, Treasury posted draft
interim guidance on its Web site. A Notice containing that interim
guidance was published in the Federal Register on January 29, 2008 (73
FR 5264). The notice stated that the guidance could be relied upon by
insurers in complying with new statutory requirements prior to the
issuance of regulations, but was not the exclusive means of compliance.
The interim guidance is superseded by this interim final rule.
II. Analysis of the Interim Final Rule
This interim final rule incorporates certain changes to 31 CFR Part
50 required by the amendments to TRIA in the Reauthorization Act. The
rule generally incorporates the substance of the interim guidance
previously issued by Treasury. In addition, the rule includes various
conforming changes, such as a change to the definition of ``act of
terrorism,'' and extension of applicable insurer deductible amounts and
the Federal share of compensation for insured losses for additional
Program Years. Regulations for determining how the pro rata share of
insured losses is to be paid under the Program when aggregate insured
losses exceed the annual liability cap and regulations implementing the
recoupment provisions of the Act will be issued separately. Treasury
has consulted with the National Association of Insurance Commissioners
(NAIC) in developing this rule.
Although Treasury is issuing these requirements as an interim final
rule, we are soliciting comments on all aspects of the interim final
rule from all interested parties.
A. Definitions (Sec. 50.5)
The interim final rule incorporates revised definitions for the
terms ``act of terrorism,'' ``Program Years,'' ``insurer deductible,''
and ``Program Trigger event.''
To conform to the Reauthorization Act, the definition of ``act of
terrorism'' in Sec. 50.5(b)(1)(iv) is revised to remove the
requirement that the act be committed by an individual ``acting on
behalf of any foreign person or foreign interest'' in order to be
certified as an act of terrorism for purposes of TRIA.
As noted in the Interim Guidance, Treasury recognizes that the
existing language in property and casualty insurance policies
describing a ``certified'' act of terrorism covered by TRIA and other
terrorist events has varied. In addition, insurers have designed their
insurance contracts and notifications to policyholders concerning
potential changes to the certification criteria for acts of terrorism
differently. Insurers must determine how their existing policy language
and particular circumstances are affected by the revised definition of
an act of terrorism. The decision whether to certify an act of
terrorism will be governed by the criteria in TRIA, as amended by the
Reauthorization Act. Treasury will consider losses resulting from an
act of terrorism (as now defined in TRIA) that are covered by an
insurer under a policy for property and casualty insurance to be
insured losses covered by the Program, provided the insurer makes
payment to the policyholder in accordance with the terms and conditions
of the policy, appropriate business practices, and other applicable
requirements and conditions, e.g., disclosure.
The revisions to the definitions of ``Program Years,'' ``insurer
deductible,'' and ``Program Trigger event'' merely conform these
definitions to the changes in the Reauthorization Act.
B. Interim Guidance Safe Harbors (Sec. 50.7)
Section 50.7 of the interim final rule adds the Interim Guidance
issued by Treasury on January 22, 2008, and published at 73 FR 5264
(January 29, 2008) to the list of Interim Guidance documents Treasury
has issued.
C. Disclosure (Sec. 50.12)
The Reauthorization Act made no change to the requirement in
section 103(b) of TRIA that insurers provide clear and conspicuous
disclosure to the policyholder of the premium charged for insured
losses covered by the Program and the Federal share of compensation for
insured losses under the Program. These disclosures must be made on a
separate line item in the policy, at the time of offer, purchase, and
renewal of the policy. However, because an ``insured loss'' is defined,
in part, as a loss resulting from an act of terrorism, the revision of
the definition of an act of terrorism to eliminate the ``foreign person
or interest'' element (i.e., to add what is often referred to as
``domestic terrorism'') may affect the premium charged for insured
losses and an insurer's compliance with the disclosure requirements.
Under Section 50.13(a) of the current regulations, disclosures must
be made no later than the time the insurer first formally offers to
provide insurance coverage or renew a policy for a current
policyholder. Section 50.12(b)(2) of the interim final rule states that
if an insurer makes an initial offer of coverage, or offers to renew an
existing policy on or after December 26, 2007, the disclosure provided
to the policyholder must reflect the premium charged for insured losses
covered by the Program consistent with the definition of an act of
terrorism as amended by the Reauthorization Act. As a general matter,
and as further explained below, the requirement to make available
coverage for insured losses must be met according to the provisions of
the Act in effect at the time the offer is made. The disclosure must be
consistent with the offer that is made.
The Interim Guidance addressed the possibility that an insurer
processed a policy application or renewal in 2007 for coverage becoming
effective in 2008, but did not make available terrorism coverage or did
not provide a proper disclosure due, in part, to the expected
expiration of TRIA on December 31,
[[Page 53362]]
2007. Treasury also recognized that an insurer might have to modify
operations and might be subject to rate and policy form filing and/or
prior approval processes to reflect changes to TRIA in the
Reauthorization Act.
Section 50.12(e)(3) of the interim final rule provides that if an
insurer made available coverage for insured losses in a new policy or
policy renewal in 2007 or in the first three months of 2008 for
coverage becoming effective in 2008, but did not provide a disclosure
at the time of offer, purchase or renewal of the policy, then the
insurer must be able to demonstrate to Treasury's satisfaction that it
has provided a disclosure as soon as possible following January 1,
2008. For example, if an insurer made available coverage in an offer of
renewal in January 2008 as required by the Reauthorization Act, but did
not provide a disclosure either at the time of the offer of renewal or
the purchase, then it must provide a disclosure as soon as possible
after January 1, 2008.
Treasury considers March 31, 2008, to be the latest reasonable date
for compliant disclosures to policyholders, barring unforeseen or
unusual circumstances. If the March 31, 2008, date was not met by an
insurer, Treasury will expect the insurer to demonstrate, when
submitting a claim for the Federal share of compensation under the
Program, why it could not comply by that date.
D. Cap Disclosure (Sec. Sec. 50.15 and 50.11)
Section 103(e)(2) of TRIA provides that if aggregate insured losses
exceed $100,000,000,000 during any Program Year, Treasury shall not
make any payment for any portion of the amount of such losses that
exceeds $100,000,000,000, and no insurer that has met its insurer
deductible shall be liable for the payment of any portion of the amount
of such losses that exceeds $100,000,000,000. Section 103(b)(3) of
TRIA, as amended by the Reauthorization Act, requires an insurer to
provide a clear and conspicuous disclosure to the policyholder of the
existence of the $100,000,000,000 cap under section 103(e)(2). The
requirement applies to ``any policy that is issued after the date of
enactment'' of the Reauthorization Act, or December 26, 2007. The
disclosure must be made at the time of offer, purchase, and renewal of
the policy.
New section 50.15 in the interim final rule addresses these
requirements. Section 50.11 also includes a minor change to clarify
that the term ``cap disclosure'' in the regulations refers to this
disclosure required by section 103(b)(3) of the Act.
For policies issued after December 26, 2007, this cap disclosure
must initially be provided to the policyholder at the first occurrence
thereafter of an offer, purchase or renewal. The interim final rule
provides that, for policies issued after December 26, 2007, if an
insurer does not provide a cap disclosure by the time of the first
offer, purchase or renewal of the policy after December 26, 2007, then
the insurer must be able to demonstrate to Treasury's satisfaction that
it has provided the disclosure as soon as possible following December
26, 2007. As stated in the Interim Guidance, Treasury considers March
31, 2008, to be the latest reasonable date for providing the cap
disclosure (including reprocessing of policies, if necessary, where a
compliant disclosure was not possible), barring unforeseen or unusual
circumstances. If the March 31, 2008, date was not met by an insurer,
Treasury will expect the insurer to demonstrate, when submitting a
claim for the Federal share of compensation under the Program, why it
could not comply by that date.
E. Use of Model Forms (Sec. 50.17)
Under current section 50.17(e) of the TRIA regulations, insurers
are permitted to use NAIC Model Disclosure Forms No. 1 and 2 to satisfy
the disclosure requirements of section 103(b)(2) of the Act, provided
that the insurer uses the most current forms that are available at the
time of disclosure. On December 19, 2007, the NAIC modified the forms
and Treasury has deemed the newly modified forms to satisfy the
disclosure requirements, including the cap disclosure requirement under
section 103(b)(3). The new forms are found on the Treasury Web site at
http://www.treasury.gov/trip. However, insurers are not required to use
the NAIC forms, and may use other means to comply with the disclosure
requirements.
Section 50.17(e) of the interim final rule adds a provision
specifically addressing the cap disclosure. In addition, a minor
refinement of current section 50.17(a)(2) has been made in order to
more accurately reflect section 105(c) of the Act.
F. Make Available (Sec. Sec. 50.20 and 50.21)
The Reauthorization Act made no change to the TRIA requirements in
section 103(c) that insurers make available, in all property and
casualty insurance policies, coverage for insured losses that does not
differ materially from the terms, amounts, and other coverage
limitations applicable to losses arising from events other than acts of
terrorism. However, because the ``make available'' requirements apply
to insured losses, and an ``insured loss'' is defined, in part, as a
loss resulting from an act of terrorism, the revision of the definition
of an act of terrorism in the Reauthorization Act to add domestic
terrorism may have an impact on an insurer's compliance with the ``make
available'' requirements.
The Reauthorization Act was effective immediately upon enactment,
December 26, 2007. The TRIA regulations in 31 CFR 50.21(a) generally
provide that the ``make available'' requirements apply at the time of
the initial offer of coverage or offer of renewal of an existing
policy. Thus, any initial offers of coverage or offers of renewal of
existing policies, made on or after the date of enactment, must be
consistent with the revised definition of act of terrorism. In
addition, if an insurer makes an offer of coverage on or after December
26, 2007 on a policy that is in mid term, then the insurer must make
available coverage for insured losses consistent with the revised
definition of an act of terrorism. These general rules are included in
revised section 50.21(b) of the interim final rule.
Section 50.21 addresses in detail insurer implementation of the
``make available'' requirements under various circumstances as a result
of enactment of the Reauthorization Act. Although there are no
substantive changes to existing provisions, the entire section is set
forth in the interim final rule for the convenience of the reader. In
all cases where new offers are required, the insurer must be able to
demonstrate to Treasury's satisfaction that it has provided an offer of
coverage for insured losses as soon as possible following January 1,
2008. The Interim Guidance stated that Treasury considers March 31,
2008, to be the latest reasonable date for compliant offers of coverage
(including reprocessing of policies, if necessary, where a compliant
post-December 26, 2007 offer was not possible), barring unforeseen or
unusual circumstances. If the March 31, 2008, date was not met by an
insurer, Treasury will expect the insurer to demonstrate, when
submitting a claim for the Federal share of compensation under the
Program, why it could not comply by that date.
Section 50.21(c)(2) addresses policies where the coverage for
insured losses expired as of December 31, 2007, but other coverage
under the policy continued in force in 2008. An insurer must make
coverage for insured losses available for the remaining portion of the
policy term and, under section 50.21(e)(4), an insurer must be able to
demonstrate to Treasury's satisfaction
[[Page 53363]]
that it has offered such coverage as soon as possible following January
1, 2008. However, if a policyholder had declined an offer made by an
insurer for coverage for insured losses expiring as of December 31,
2007, then the insurer is not required to make a new offer of coverage
before the policy is due to be renewed.
Section 50.21(e)(5) addresses situations where coverage became
effective in 2008. Section 50.21(e)(5)(i) requires that if an insurer
processed a new policy or policy renewal in 2007 or in the first three
months of 2008, for coverage becoming effective in 2008, but did not
make available coverage for insured losses, then the insurer must be
able to demonstrate to Treasury's satisfaction that it has provided an
offer of coverage for insured losses as soon as possible following
January 1, 2008. As noted in the Interim Guidance, if an insurer wishes
to receive Federal compensation under the Program for insured losses,
the insurer must make available coverage for insured losses for all
policies becoming effective in 2008, even if the policy was processed
in late 2007 or early 2008.
Under section 50.21(e)(5)(ii), if an insurer made an initial offer
or offer of renewal of coverage for insured losses on or after December
26, 2007, for a policy term becoming effective in 2008, but the scope
of the insured losses in the offer was inconsistent with the
Reauthorization Act's revised definition of an act of terrorism, then
an insurer must make a new offer of coverage as soon as possible
following January 1, 2008. If an insurer made an initial offer of
coverage or offer of renewal before December 26, 2007, for a policy
term becoming effective in 2008, and coverage for insured losses was in
compliance with the Act and the definition of an act of terrorism at
the time of the offer, then the insurer is not required to make a new
offer of coverage before the policy is due to be renewed. These rules
are consistent with the Interim Guidance Treasury first released on
December 31, 2007, which has been in effect since that time.
G. Federal Share of Compensation (Sec. Sec. 50.50 and 50.53)
These sections of the interim final rule include other minor and
conforming changes to reflect the extension of the Program and the
inclusion of the cap disclosure.
III. Procedural Requirements
The Reauthorization Act extended the Program to provide for loss
sharing payments by the Federal Government for insured losses resulting
from certified acts of terrorism. The Act's extension and other new
provisions became effective immediately upon the date of enactment.
Changes contained in the Reauthorization Act applied immediately to
those entities that come within the Act's definition of ``insurer.''
The Reauthorization Act revised the definition of an ``act of
terrorism'' to include domestic terrorism within the Program, which had
an immediate impact on insurers' compliance with existing disclosure
and ``make available'' requirements under TRIA. In addition, the
Reauthorization Act added a new disclosure that applied to any policies
issued beginning on the day after the date of enactment. These changes,
which affected both insurers' obligations under TRIA and the conditions
for payment by the Federal Government, resulted in the need to provide
immediate guidance to insurers, policyholders, and regulators. Given
the significance of these changes made by the Reauthorization Act,
there is an urgent need to issue immediately effective regulations that
incorporate the substance of interim guidance with regard to these
requirements.
Accordingly, pursuant to 5 U.S.C. 553(b)(B), Treasury has
determined that it would be contrary to the public interest to delay
the publication of this rule in final form pending an opportunity for
public comment. For the same reasons, pursuant to 5 U.S.C. 553(d)(3),
Treasury has determined that there is good cause for the interim final
rule to become effective immediately upon publication. While this
regulation is effective immediately upon publication, Treasury is
seeking public comment on the regulation and will consider all comments
in developing a final rule. This interim final rule is a significant
regulatory action and has been reviewed by the Office of Management and
Budget under the terms of Executive Order 12866.
Pursuant to the Regulatory Flexibility Act (5 U.S.C. chapter 6), it
is hereby certified that this interim final rule will not have a
significant economic impact on a substantial number of small entities.
The interim final rule implements changes prescribed or authorized by
the Reauthorization Act. TRIA requires all insurers, regardless of size
or sophistication, that receive direct earned premiums for any type of
commercial property and casualty insurance, to participate in the
Program. The Act also defines ``property and casualty insurance'' to
mean commercial lines without any reference to the size or scope of the
commercial entity. The rule allows all insurers, whether large or
small, to use existing systems and business practices to demonstrate
compliance. The disclosure and ``make available'' requirements are
required by the Act. In addition, the Act now defines an ``act of
terrorism'' to include domestic terrorism. Any economic impact
associated with the interim final rule flows from the Act and not the
interim final rule. However, the Act and the Program are intended to
provide benefits to the U.S. economy and all businesses, including
small businesses, by providing a federal reinsurance-type backstop to
commercial property and casualty insurers and spreading the risk of
insured losses resulting from an act of terrorism. Accordingly, a
regulatory flexibility analysis is not required.
List of Subjects in 31 CFR Part 50
Terrorism risk insurance.
Authority and Issuance
0
For the reasons set forth above, 31 CFR part 50 is amended as follows:
PART 50--TERRORISM RISK INSURANCE PROGRAM
0
1. The authority citation for part 50 is revised to read as follows:
Authority: 5 U.S.C. 301; 31 U.S.C. 321; Title I, Public Law 107-
297, 116 Stat. 2322, as amended by Public Law 109-144, 119 Stat.
2660 and Public Law 110-160, 121 Stat. 1839 (15 U.S.C. 6701 note).
0
2. Section 50.1 is amended by revising paragraph (a) to read as
follows:
Sec. 50.1 Authority, purpose and scope.
(a) Authority. This part is issued pursuant to authority in Title I
of the Terrorism Risk Insurance Act of 2002, Public Law 107-297, 116
Stat. 2322, as amended by the Terrorism Risk Insurance Extension Act of
2005, Public Law 109-144, 119 Stat. 2660, and the Terrorism Risk
Insurance Program Reauthorization Act of 2007, Public Law 110-160, 121
Stat. 1839.
* * * * *
0
3. Section 50.5 is amended by revising paragraphs (b)(1)(iv),
(g)(1)(vi), (l), and (m) to read as follows:
Sec. 50.5 Definitions.
* * * * *
(b) * * *
(1) * * *
(iv) To have been committed by an individual or individuals as part
of an effort to coerce the civilian population of the United States or
to influence the policy or affect the conduct of the United States
Government by coercion.
* * * * *
(g) * * *
(1) * * *
[[Page 53364]]
(vi) For Program Year 5 (January 1, 2007 through December 31,
2007), or any Program Year thereafter, the value of an insurer's direct
earned premiums over the calendar year immediately preceding that
Program Year, multiplied by 20 percent; and
* * * * *
(l) Program Trigger event means a certified act of terrorism that
occurs after March 31, 2006, for which the aggregate industry insured
losses resulting from such act exceed $50,000,000 with respect to such
insured losses occurring in 2006 or $100,000,000 with respect to such
insured losses occurring in 2007 and any Program Year thereafter.
(m) Program Years means the Transition Period (November 26, 2002
through December 31, 2002), Program Year 1 (January 1, 2003 through
December 31, 2003), Program Year 2 (January 1, 2004 though December 31,
2004), Program Year 3 (January 1, 2005 through December 31, 2005),
Program Year 4 (January 1, 2006 through December 31, 2006), Program
Year 5 (January 1, 2007 through December 31, 2007), and any Program
Year thereafter (calendar years 2008 through 2014).
* * * * *
0
4. Section 50.7 is amended by revising paragraphs (b)(3) and (b)(4) and
adding paragraph (b)(5) to read as follows:
Sec. 50.7 Special Rules for Interim Guidance Safe Harbors.
* * * * *
(b) * * *
(3) Interim Guidance III issued by Treasury on January 22, 2003,
and published at 68 FR 4544 (January 29, 2003);
(4) Interim Guidance IV issued by Treasury on December 29, 2005,
and published at 71 FR 648 (January 5, 2006); and
(5) Interim Guidance issued by Treasury on January 22, 2008, and
published at 73 FR 5264 (January 29, 2008).
0
5. Section 50.11 is revised to read as follows:
Sec. 50.11 Definition.
For purposes of this subpart, unless the context indicates
otherwise, the term ``disclosure'' or ``disclosures'' refers to the
disclosure described in section 103(b)(2) of the Act and Sec. 50.10.
The term ``cap disclosure'' refers to the disclosure required by
section 103(b)(3) of the Act and Sec. 50.15.
0
6. Section 50.12 is amended by redesignating paragraph (b) as paragraph
(b)(1) and adding paragraphs (b)(2) and (e)(3) to read as follows:
Sec. 50.12 Clear and conspicuous disclosure.
* * * * *
(b) * * *
(2) Premium to reflect definition of act of terrorism. If an
insurer makes an initial offer of coverage, or offers to renew an
existing policy on or after December 26, 2007, the disclosure provided
to the policyholder must reflect the premium charged for insured losses
covered by the Act, consistent with the definition of an act of
terrorism as amended by the Terrorism Risk Insurance Program
Reauthorization Act of 2007, Public Law 110-160, 121 Stat. 1839.
* * * * *
(e) * * *
(3) If an insurer made available coverage for insured losses in a
new policy or policy renewal in 2007 or in the first three months of
2008 for coverage becoming effective in 2008, but did not provide a
disclosure at the time of offer, purchase or renewal of the policy,
then the insurer must be able to demonstrate to Treasury's satisfaction
that it has provided a disclosure as soon as possible following January
1, 2008.
0
7. Section 50.15 is added to read as follows:
Sec. 50.15 Cap disclosure.
(a) General. Under section 103(e)(2) of the Act, if the aggregate
insured losses exceed $100,000,000,000 during any Program Year, the
Secretary shall not make any payment for any portion of the amount of
such losses that exceeds $100,000,000,000, and no insurer that has met
its insurer deductible shall be liable for the payment of any portion
of the amount of such losses that exceeds $100,000,000,000.
(b) Other requirements. As a condition for federal payments under
section 103(b) of the Act, in the case of any policy that is issued
after December 26, 2007, an insurer must provide clear and conspicuous
disclosure to the policyholder of the existence of the $100,000,000,000
cap under section 103(e)(2). The cap disclosure must be made at the
time of offer, purchase, and renewal of the policy.
(c) Demonstration of compliance. For policies issued after December
26, 2007, if an insurer does not provide a cap disclosure by the time
of the first offer, purchase or renewal of the policy after December
26, 2007, then the insurer must be able to demonstrate to Treasury's
satisfaction that it has provided the disclosure as soon as possible
following December 26, 2007.
(d) Other applicable rules. The rules in Sec. 50.12(a), (c), (d),
(e)(1), and (f) (relating to clear and conspicuous disclosure) and in
Sec. 50.13 (relating to offer, purchase, and renewal) apply to the cap
disclosure.
0
8. Section 50.17 is amended by revising the second sentence of
paragraph (a)(2), by redesignating paragraph (e) as paragraph (f), and
by adding paragraph (e) to read as follows:
Sec. 50.17 Use of model forms.
(a) * * *
(2) * * * Such an insurer may also use the same NAIC Model
Disclosure Form No. 1 to comply with the notice requirement of section
105(c) of the Act.* * *
* * * * *
(e) Cap disclosure. An insurer may use NAIC Model Disclosure Form
No. 1 or NAIC Model Disclosure Form No. 2 dated December 19, 2007, or
as subsequently modified in accordance with paragraph (f) of this
section, to satisfy the cap disclosure requirement, or another
disclosure that meets the requirements of Sec. 50.15 may be developed.
0
9. Section 50.18 is amended by revising the section title to read as
follows:
Sec. 50.18 Notice required by reinstatement provision.
0
10. Section 50.20 is amended by revising paragraph (c) and adding
paragraphs (d) and (e) to read as follows:
Sec. 50.20 General mandatory availability requirements.
* * * * *
(c) Program Years 4 and 5--calendar years 2006 and 2007. Under
section 103(c) of the Act, an insurer must comply with paragraphs
(a)(1) and (a)(2) of this section during Program Years 4 and 5.
(d) Program Years thereafter. Under section 103(c) of the Act, an
insurer must comply with paragraphs (a)(1) and (a)(2) of this section
during Program Years 2008 through 2014.
(e) Beyond 2014. Notwithstanding paragraph (a)(2) of this section
and Sec. 50.23(a), property and casualty insurance coverage for
insured losses does not have to be made available beyond December 31,
2014, even if the policy period of insurance coverage for losses from
events other than acts of terrorism extends beyond that date.
0
11. Section 50.21 is revised to read as follows:
Sec. 50.21 Make available.
(a) General. The requirement to make available coverage as provided
in Sec. 50.20 applies to policies in existence on November 26, 2002,
and new policies issued and renewals of existing
[[Page 53365]]
policies during the period beginning on November 26, 2002 and ending on
December 31, 2002, and in any Program Year thereafter. Except as
provided in paragraph (c) of this section, the requirement applies at
the time an insurer makes the initial offer of coverage as well as at
the time an insurer makes an initial offer of renewal of an existing
policy.
(b) Offer consistent with amended definition of act of terrorism.
An insurer must make available coverage for insured losses in a policy
of property and casualty insurance consistent with the definition of an
act of terrorism as amended by the Terrorism Risk Insurance Program
Reauthorization Act of 2007 beginning with the first initial offer of
coverage or offer of renewal of the policy made on or after December
26, 2007. Notwithstanding this requirement, if an insurer makes an
offer of coverage on or after December 26, 2007 on a policy that is in
mid term, then the insurer must make available coverage for insured
losses consistent with the definition of an act of terrorism.
(c) Rules concerning extension of Program. (1) Special Program Year
4 requirement for certain new policies issued and renewals of existing
policies in Program Year 3. If coverage for insured losses under a
policy of property and casualty insurance (as defined by the Act, as
amended) expired as of December 31, 2005, but the remainder of coverage
under the policy continued in force in Program Year 4, then an insurer
must make available coverage as provided in Sec. 50.20 for insured
losses for the remaining portion of the policy term in the manner
specified in paragraphs (e)(1) and (e)(2) of this section. This
requirement does not apply if during Program Year 3 a policyholder
declined an offer of coverage for insured losses made at the time of
the initial offer of coverage or offer of renewal of the existing
policy.
(2) Special 2008 requirement for certain policies where coverage
expired. If coverage for insured losses under a policy of property and
casualty insurance expired as of December 31, 2007, but the remainder
of coverage under the policy continued in force in 2008, then an
insurer must make available coverage as provided in Sec. 50.20 for
insured losses for the remaining portion of the policy term in the
manner specified in paragraphs (e)(1) and (e)(4) of this section.
However, if a policyholder declined an offer made by an insurer for
such coverage expiring as of December 31, 2007, then the insurer is not
required to make a new offer of coverage for insured losses before any
offer of renewal.
(d) Changes negotiated subsequent to initial offer. If an insurer
satisfies the requirement to ``make available'' coverage as described
in Sec. 50.20 by first making an offer with coverage for insured
losses that does not differ materially from the terms, amounts, and
other coverage limitations applicable to losses arising from events
other than acts of terrorism, which the policyholder declines, the
insurer may negotiate with the policyholder an option of partial
coverage for insured losses at a lower amount of coverage if permitted
by any applicable State law. An insurer is not required by the Act to
offer partial coverage if the policyholder declines full coverage. See
Sec. 50.24.
(e) Demonstrations of compliance. (1) No contract. If an insurer
makes an offer of insurance but no contract of insurance is concluded,
the insurer may demonstrate that it has satisfied the requirement to
make available coverage as described in Sec. 50.20 through use of
appropriate systems and normal business practices that demonstrate a
practice of compliance.
(2) Policy periods beginning in Program Year 3. If an insurer must
make available coverage for insured losses as required by paragraph
(c)(1) of this section for a policy whose coverage period began in
Program Year 3 but extends into Program Year 4, then the insurer must
be able to demonstrate to Treasury's satisfaction that it has offered
such coverage by January 1, 2006, or as soon as possible following that
date.
(3) Coverage becoming effective in Program Year 4. If an insurer
processed a new policy or policy renewal in Program Year 3 for coverage
becoming effective in Program Year 4, but did not make available
coverage for insured losses as required by Sec. 50.20 by January 1,
2006, then the insurer must be able to demonstrate to Treasury's
satisfaction that it has provided an offer of coverage for insured
losses as soon as possible following that date.
(4) Coverage expired as of December 31, 2007. If an insurer must
make available coverage for insured losses under the circumstances
described in paragraph (c)(2) of this section, the insurer must be able
to demonstrate to Treasury's satisfaction that it has offered such
coverage as soon as possible following January 1, 2008.
(5) Coverage becoming effective in 2008. (i) No coverage. If an
insurer processed a new policy or policy renewal in 2007 or in the
first three months of 2008 for coverage becoming effective in 2008, but
did not make available coverage for insured losses as required by Sec.
50.20(a), then the insurer must be able to demonstrate to Treasury's
satisfaction that it has provided an offer of coverage for insured
losses as soon as possible following January 1, 2008.
(ii) Not consistent with amended definition of act of terrorism. If
an insurer made an initial offer of coverage or offer of renewal on or
after December 26, 2007 for a policy term becoming effective in 2008,
and made available coverage for insured losses, but the scope of the
coverage for insured losses in the offer was not consistent with the
definition of an act of terrorism as amended by the Terrorism Risk
Insurance Program Reauthorization Act of 2007, then the insurer must be
able to demonstrate to Treasury's satisfaction that it has provided a
new offer of coverage as soon as possible following January 1, 2008. If
an insurer made an initial offer of coverage or offer of renewal before
December 26, 2007, for a policy term becoming effective in 2008, and
the insurer made available coverage for insured losses in compliance
with the Act and the definition of an act of terrorism in effect at the
time of the offer, then the insurer is not required to make a new offer
of coverage before the policy is due to be renewed by its terms,
regardless of whether the offer was accepted or rejected.
0
12. Section 50.50 is amended by revising paragraphs (a)(1)(ii), (b)(2),
and (d)(5) to read as follows:
Sec. 50.50 Federal share of compensation.
(a) * * *
(1) * * *
(ii) 85 percent of that portion of the insurer's aggregate insured
losses that exceed its insurer deductible during Program Year 5 and any
Program Year thereafter.
(b) * * *
(2) For a certified act of terrorism occurring in 2007 and any
Program Year thereafter: $100 million.
* * * * *
(d) * * *
(5) The insurer had provided a clear and conspicuous disclosure as
required by Sec. Sec. 50.10 through 50.19 and a cap disclosure as
required by Sec. 50.15;
* * * * *
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13. Section 50.53 is amended by revising paragraph (b)(2)(iv) to read
as follows:
Sec. 50.53 Loss certifications.
* * * * *
(b) * * *
(2) * * *
(iv) The insurer has complied with the disclosure requirements of
Sec. Sec. 50.10
[[Page 53366]]
through 50.19, and the cap disclosure requirement of Sec. 50.15, for
each underlying insured loss that is included in the amount of the
insurer's aggregate insured losses; and
* * * * *
David G. Nason,
Assistant Secretary (Financial Institutions).
[FR Doc. E8-21578 Filed 9-15-08; 8:45 am]
BILLING CODE 4810-25-P