Sec. 125.4. Credit for reinsurance involving risks other than life, annuity and accident and health from unauthorized insurers

A ceding insurer may elect to take credit, as an asset or as a deduction from loss and unearned premium reserves, for reinsurance recoverable, involving risks other than life, annuity and accident and health, from an assuming insurer not authorized in this State, provided:

(a) U.S. domiciled insurers and U.S. branches of alien insurers.

In the case of an assuming insurer, domiciled in the United States, or an alien assuming insurer entered as a United States branch in another state, such assuming insurer presents and maintains satisfactory evidence that it meets the standards of solvency required of licensed insurers of like character and otherwise complies substantially with related requirements imposed on such licensed insurers.

(b) U.S. insurance exchanges.

In the case of an assuming underwriting member of an insurance exchange domiciled in any state or jurisdiction in the United States except this State, such assuming insurer (underwriting member) presents and maintains satisfactory evidence that it meets the standards of solvency as computed on a statutory insurance accounting basis required of authorized insurers of like character and otherwise complies substantially with related requirements imposed on such underwriting member and with such terms and conditions as prescribed by the superintendent.

(c)

(1) Alien assuming insurers.

(i) In the case of an alien assuming insurer, not otherwise entered as a United States branch in another state, such assuming insurer meets the standards of solvency required of licensed insurers of like character, such terms and conditions as prescribed by the superintendent, and otherwise complies substantially with related requirements, and such assuming insurer has deposited and continues to maintain in one or more New York State banks and/or members of the Federal Reserve System located in New York State, a trust fund or trust funds, constituting a trusteed surplus, in cash, readily marketable securities, or letters of credit, in an amount of not less than $20 million for the protection of the United States insurers, and United States beneficiaries under reinsurance policies (contracts) issued by such alien assuming insurers. Such trusteed amount shall be in addition to any other trust fund required by this department, including, but not limited to, a trusteed amount at least equal to the liabilities attributable to United States insurers and United States beneficiaries under reinsurance policies (contracts) issued by such alien assuming insurers. As used in this subdivision, surplus means the balance remaining after subtracting the liabilities, attributable to reinsurance policies (contracts) issued in the name of such alien assuming insurer from the total assets deposited in the trust fund or trust funds.

(ii)

(a) Notwithstanding subparagraph (i) of this paragraph, the superintendent may approve a reduction in the trust to less than $20 million if the assuming insurer has permanently discontinued underwriting new business secured by the trust for at least three full years and finds, based on an assessment of the risk, that the new required surplus level is adequate for the protection of U.S. ceding insurers, policyholders and claimants in light of reasonably foreseeable adverse loss development.

(b) The risk assessment may involve an actuarial review, including an independent analysis of reserves and cash flows, and shall consider all material risk factors, including when applicable the lines of business involved, the stability of the incurred loss estimates and the effect of the surplus requirements on the assuming insurer's liquidity or solvency.

(c) The minimum required trusteed surplus may not be reduced to an amount less than 30 percent of the assuming insurer's liabilities attributable to reinsurance ceded by U.S. ceding insurers. The trusteed amount shall be in addition to any other trust fund required by the superintendent, including a trusteed amount at least equal to the liabilities attributable to United States insurers and United States beneficiaries under reinsurance policies issued by such alien assuming insurers.

(d) As used in this paragraph, surplus means the balance remaining after subtracting the liabilities, attributable to reinsurance policies issued in the name of the alien assuming insurer from the total assets deposited in the trust fund or trust funds.

(2)

(i) With respect to such trusts established prior to January 1, 1993, the trusteed surplus and the other trust funds shall be in cash or marketable securities.

(ii) With respect to trusts established on or after January 1, 1993, at least $10 million of the trusteed surplus shall be in the types of investments set forth in paragraphs 1, 2, and 3 of Insurance Law section 1402(b). Any other marketable securities that make up the remainder of the trusteed surplus and the other trust funds shall be of the types set forth in paragraphs 1, 2, 3, 8, and 10 of section 1404(a) of the New York Insurance Law and foreign investments complying with paragraph (3) of this subdivision. Trust funds shall not be invested in any securities of any company affiliated with the alien assuming insurer. Letters of credit complying with paragraph (4) of this subdivision may be used to fund the remainder of the trusteed surplus and the other trust funds.

(3) Requirements for foreign investments in the trust funds.

(i) Subject to the overall limits in subparagraph (ii) of this paragraph, foreign investments in the trust funds may include:

(a) government obligations that are issued, assumed or guaranteed by the government of any country that is a member of the Organization for Economic Cooperation and Development, that are not in default as to principal or interest, that are valid and legally authorized, and whose government obligations are rated A or higher, or the equivalent, by a rating agency recognized by the Securities Valuation Office of the NAIC;

(b) obligations issued, assumed or guaranteed by a solvent non-U.S. institution chartered in a country that is a member of the Organization for Economic Cooperation and Development or obligations of U.S. corporations issued in a non-U.S. currency, provided that in either case the obligations are rated A or higher, or the equivalent, by a rating agency recognized by the Securities Valuation Office of the NAIC;

(c) an investment made pursuant to the provisions of clauses (a) and (b) of this subparagraph shall not exceed five percent of the assets of the trust;

(d) investments in common shares or preferred shares of a solvent institution organized under the laws of a country that is a member of the Organization for Economic Cooperation and Development, if:

(1) all its obligations are rated A or higher, or the equivalent, by a rating agency recognized by the Securities Valuation Office of the NAIC; and

(2) the equity interests of the institution are registered on a securities exchange regulated by the government of a country that is a member of the Organization for Economic Cooperation and Development;

(e) an investment in or loan upon any one institution's outstanding equity interests made pursuant to clause (d) of this subparagraph shall not exceed one percent of the assets of the trust. The cost of such an investment in equity interests, when added to the aggregate cost of other such investments in equity interests then held, shall not exceed 10 percent of the assets in the trust;

(f) obligations issued, assumed or guaranteed by a multinational development bank; such as the International Bank for Reconstruction and Development, European Bank for Reconstruction and Development, Inter-American Development Bank, Asian Development Bank, African Development Bank, International Finance Corporation; provided the obligations are rated A or higher, or the equivalent, by a rating agency recognized by the Securities Valuation Office of the NAIC.

(ii) No more than 20 percent of the total of the investments in the trust may be foreign investments authorized under subparagraph (i) of this paragraph, and no more than 10 percent of the total of the investments in the trust may be securities denominated in foreign currencies. For purposes of applying the preceding sentence, a depository receipt denominated in U.S. dollars and representing rights conferred by a foreign security shall be classified as a foreign investment denominated in a foreign currency.

(4) In order for a letter of credit to qualify as an asset of the trust fund:

(i) the letter of credit shall comply with Part 79 of this Title (Regulation 133);

(ii) the letter of credit shall be payable to the trustee; and

(iii) the trustee shall have the right and the obligation pursuant to the deed of trust or some other binding agreement (as duly approved by the superintendent), to immediately draw down the full amount of the letter of credit and hold the proceeds in trust for the beneficiaries of the trust if the letter of credit will otherwise expire without being renewed or replaced.

(5) The trust agreement required by this subdivision shall provide that the trustee shall be liable for its negligence, willful misconduct or lack of good faith. The failure of the trustee to draw against the letter of credit in circumstances where such draw would be required shall be deemed to be negligence and/or willful misconduct.

(d)

(1) Alien group of insurers. In the case of an alien group of insurers, provided that such group:

(i) has continuously transacted an insurance business outside the United States for at least three years immediately prior to making application with the department for the issuance of a certificate of recognition as an accredited reinsurer pursuant to section 125.7 of this Part;

(ii) otherwise complies substantially with related requirements imposed upon authorized insurers;

(iii) has agreed in writing, prior to receiving such certificate of recognition as an accredited reinsurer or within 90 days of the effective date of this amendment where a certificate of recognition has previously been issued, to submit to examination by the superintendent as often as the superintendent deems it expedient with the cost of such examination to be borne by such group; and

(iv)

(a) has deposited and continues to maintain, with one or more New York State banks and/or members of the Federal Reserve System located in New York State, a trust fund or trust funds, constituting a surplus, in cash, readily marketable securities, or letters of credit, in an amount of not less than $100 million for the protection of United States ceding insurers and United States beneficiaries under reinsurance policies (contracts) issued in the name of such group. The minimum surplus amount shall be maintained on a joint and several basis. The use of such minimum surplus amount shall be limited to the payment or reimbursement of any losses and allocated loss expenses paid by a ceding insurer but not recovered from any member of such group and for unearned premiums due a ceding insurer if not otherwise recovered from any member of such group in accordance with the terms of the reinsurance policies (contracts) issued in the name of such group. The prior approval of the superintendent shall be required for any payment or reimbursement that reduces such surplus below the minimum required amount of $100 million. Such surplus amount shall be in addition to any other trust fund or trust funds required by this department. As used in this subdivision, surplus means the balance remaining after subtracting the liabilities, attributable to reinsurance policies (contracts) issued in the name of such group, from the total assets deposited in the trust fund or trust funds.

(b) At least $50 million of the trusteed surplus shall be in the types of investments set forth in paragraphs 1, 2, and 3 of section 1402(b) of the New York Insurance Law. Any other marketable securities that make up the trust funds and the surplus shall be of the types set forth in paragraphs 1, 2, 3, 8, and 10 of Insurance Law section 1404(a) and foreign investments complying with paragraph (c)(3) of this section. Letters of credit complying with clause (c) of this subparagraph may be used to fund the remainder of the trust funds and the surplus.

(c) In order for a letter of credit to qualify as an asset of the trusts:

(1) the letter of credit shall comply with Part 79 of this Title (Regulation 133);

(2) the letter of credit shall be payable to the trustee; and

(3) the trustee shall have the right and the obligation pursuant to the deed of trust or some other binding agreement (as duly approved by the superintendent), to immediately draw down the full amount of the letter of credit and hold the proceeds in trust for the beneficiaries of the trust if the letter of credit will otherwise expire without being renewed or replaced.

(d)

(1) The trust agreement required by this subdivision shall provide that the trustee shall be liable for its negligence, willful misconduct or lack of good faith. The failure of the trustee to draw against the letter of credit in circumstances where such draw would be required shall be deemed to be negligence and/or willful misconduct.

(2) Credit permitted under this subdivision shall apply only to reinsurance policies (contracts) issued in the name of the group.

(e) With respect to reinsurance contracts entered into or renewed before September 15, 2001, in the case of cessions to nonaffiliated assuming insurers who have not complied with the requirements of subdivision (a), (c) or (d) of this section, but are authorized in their domiciliary jurisdiction to assume the kind or kinds of insurance ceded thereto:

(1) The ceding insurer shall establish an unauthorized reinsurance reserve which shall be a percentage of all reinsurance recoverable, including unearned premiums, from such assuming insurers described in this subdivision, after reducing such recoverable for any acceptable funds withheld under a reinsurance agreement with such an insurer as security for the payment of obligations thereunder, pursuant to the provisions of section 1301(a)(9) of the Insurance Law, which percentage shall be equal to the greater of:

(i) the largest percentage of all uncollectible unauthorized reinsurance recoverables during any one of the last five full calendar years, as measured by dividing the amount of reinsurance recoverables due and payable to the ceding insurer for that calendar year from the unauthorized assuming insurers, over 90 days past due and not in dispute, by the amount of reinsurance recoverables due and payable to the ceding insurer plus amounts actually collected by the ceding insurer for that same calendar year from unauthorized assuming insurers;

(ii) the largest percentage of unearned premiums in any one unauthorized insurer to the total unearned premiums on cessions to all unauthorized insurers; or

(iii) 15 percent.

(2) It is further provided that the allowance of any credit applicable under this subdivision shall be subject, but not limited, to the following conditions:

(i) that the assuming insurer meets the standards of solvency, on a substantial compliance basis, as required by the superintendent;

(ii) that the assuming insurer maintains the greater of a policyholder's surplus of $3 million or the surplus required to be maintained by a domestic insurer organized to do the same or similar kinds of insurance;

(iii) that the assuming insurer maintains an acceptable level of premium writings in relation to its surplus to policyholders;

(iv) that the ceding insurer has limited the maximum amount of liability for loss, with respect to any one risk ceded to any one assuming insurer, to 10 percent of the assuming insurer's policyholder's surplus and has limited the aggregate premium cession to any one assuming insurer to 20 percent of the assuming insurer's policyholder's surplus;

(v) that credit claimed for reinsurance recoverable under this subdivision is to be supported by proper and appropriate records maintained by the ceding insurer both as to the solvency of the assuming insurer and the record on which the review was based, and a record of the amount of reinsurance ceded subject to examination at any reasonable time by any person appointed to do so by the superintendent; and

(vi) that a report be filed quarterly, with the ceding insurer's annual or quarterly statement, and certified to by the ceding insurer, within 90 days of the statement date, on prescribed Form #1, incorporated in Appendix 16 of this Title;

(vii) any ceding insurer that has taken credit under this subdivision is required to disclose the amounts thereof in the "other items" section of the notes to the financial statements section of the annual statement; and

(viii) that the credit allowed by this subdivision shall be an amount not to exceed, in the aggregate, 10 percent of the ceding insurer's policyholders' surplus.

(3) Notwithstanding the provisions and conditions of this subdivision, the ceding insurer shall be required to give immediate notice to the superintendent and provide for the necessary increased reserves with respect to any reinsurance recoverables applicable, in the event:

(i) that any assuming insurer fails to meet its obligations under any contractual agreements or treaties between the parties; or

(ii) that there is any indication or evidence that any assuming insurer, with whom the ceding insurer has a contract, fails to substantially comply with the solvency requirements under the Insurance Law and regulations thereunder.

(f) With respect to reinsurance contracts entered into or renewed on or after September 15, 2001, and prior to January 1, 2011, in the case of cessions to nonaffiliated assuming insurers that have not complied with the requirements of subdivision (a), (c) or (d) of this section, but are authorized in their domiciliary jurisdiction to assume the kind or kinds of insurance ceded thereto:

(1) The ceding insurer shall establish an unauthorized reinsurance reserve which shall be a percentage of all reinsurance recoverable, including unearned premiums, from such assuming insurers described in this subdivision, after reducing such recoverable for any acceptable funds withheld under a reinsurance agreement with such an insurer as security for the payment of obligations thereunder, pursuant to the provisions of section 1301(a)(9) of the Insurance Law, which percentage shall be equal to the greater of:

(i) the largest percentage of all uncollectible unauthorized reinsurance recoverables during any one of the last five full calendar years, as measured by dividing the amount of reinsurance recoverables due and payable to the ceding insurer for that calendar year from the unauthorized assuming insurers, over 90 days past due and not in dispute, by the amount of reinsurance recoverables due and payable to the ceding insurer plus amounts actually collected by the ceding insurer for that same calendar year from unauthorized assuming insurers;

(ii) the largest percentage of unearned premiums in any one unauthorized insurer to the total unearned premiums on cessions to all unauthorized insurers; or

(iii) 15 percent.

(2) The credit allowed by this subdivision and subdivision (e) of this section shall be an amount not to exceed, in the aggregate, 10 percent of the ceding insurer's policyholders surplus.

(3) It is further provided that the allowance of any credit applicable under this subdivision shall be subject, but not limited, to the following conditions:

(i) that the assuming insurer meets the standards of solvency, on a substantial compliance basis, as required by the superintendent;

(ii) that the assuming insurer maintains the greater of a policyholder's surplus of $20 million or the surplus required to be maintained by a domestic insurer organized to do the same or similar kinds of insurance (in the case of an alien assuming insurer, the policyholder's surplus is equivalent to the adjusted shareholders funds and must be maintained in a like amount);

(iii) that the assuming insurer maintains an acceptable level of premium writings in relation to its surplus to policyholders that does not exceed a ratio of 3:1;

(iv) that the ceding insurer has limited the maximum amount of liability for loss, with respect to any one risk ceded to any one assuming insurer, to 10 percent of the assuming insurer's policyholder's surplus and has limited the aggregate premium cession to any one assuming insurer to 20 percent of the assuming insurer's policyholder's surplus;

(v) that the unauthorized alien assuming insurer provides to, and maintains, any acceptable funds withheld under a reinsurance agreement with such insurer as security for the payment of obligations thereunder, pursuant to the provisions of section 1301(a)(9) of the Insurance Law in an amount at least equal to 110 percent of the unearned premium and known case outstanding reserves for loss and allocated loss adjustment expense ceded to the unauthorized alien assuming insurer by the ceding insurer;

(vi) that credit claimed for reinsurance recoverable under this subdivision is to be supported by proper and appropriate records maintained by the ceding insurer both as to the solvency of the assuming insurer and the record on which the review was based, and a record of the amount of reinsurance ceded subject to examination at any reasonable time by any person appointed to do so by the superintendent;

(vii) that a report be filed quarterly, with the ceding insurer's annual or quarterly statement, and certified to by the ceding insurer, on prescribed Form #1, incorporated in Appendix 16 of this Title;

(viii) that the unauthorized alien assuming insurer is included in the Standard & Poor's classic database and satisfies at least four of the eight Standard & Poor's tests, as set forth below. The tests are as follows with their ratio numbers:

Standard & Poor's Performance Tests for International Insurers and Reinsurers (formerly known as “ISI Performance Tests from the CLASSIC Data Base”)

Test 1: The Solvency Ratio: Ratio 2.1 Net Premium /Adjusted Shareholders' Funds Standard & Poor's Standard: Less than 200% to less than 330%, depending on the size of the company's net written premium, as per the following table:

Net premium written (US$ million)

 

(Standard & Poor's STANDARD)

Up to 5

 

<200%

Above 5 but not above 7

 

<220%

Above 7 but not above 15

 

<250%

Above 15 but not above 30

 

<280%

Above 30 but not above 70

 

<300%

Above 70

 

<330%

Test 2: Premium Growth: Ratio 2.3 Change in Net Premium Standard & Poor's Standard: Between -10% and +30%

Test 3: Retention Ratio or Reinsurance Utilization Ratio: Ratio 3.1 Net/Gross Premium Standard & Poor's Standard: Greater than 50%

Test 4: The Liquidity Ratio: Ratio 4.3 Technical Reserves/Adjusted Liquid Assets Standard & Poor's Standard: Less than 100%

Test 5: Two-year Underwriting Profit/Investment Income: Ratio 5.3.2 Two Year Underwriting Profit/Investment Income Standard & Poor's Standard: Greater than -25%

Test 6: Return on Equity (ROE): Ratio 5.4 Pre-tax Profit/Average Adjusted Shareholders' Funds Standard & Poor's Standard: Greater than 5%

Test 7: Ratio 6.1 Technical Reserves and Adjusted Shareholders' Funds/Net Premium Written Standard & Poor's Standard: Greater than 150%

Test 8: Ratio 6.3 Technical Reserves/Adjusted Shareholders' Funds Standard & Poor's Standard: Less than 350%

(ix) that the reinsurance agreements between the unauthorized alien assuming insurer and the ceding insurer contain:

(a) an agreement by the unauthorized alien assuming insurer that, in the event of the failure of the unauthorized alien assuming insurer to perform its obligations under the terms of the reinsurance agreement, the unauthorized alien assuming insurer, at the request of the ceding insurer, shall submit to the jurisdiction of any court of competent jurisdiction in a state in the United States, comply with all requirements necessary to give that court jurisdiction and abide by the final decision of that court or of an appellate court in the event of an appeal. The provision does not override an agreement between the ceding insurer and the unauthorized alien assuming reinsurer to arbitrate;

(b) an agreement by the unauthorized alien assuming insurer to designate a person as its true and lawful agent upon whom may be served any lawful process in an action, suit or proceeding instituted by or on behalf of the ceding insurer; and

(c) an insolvency clause as provided for in section 1308(a)(2)(A)(i) of the Insurance Law.

(4) Notwithstanding the provisions and conditions of this subdivision, the ceding insurer shall give immediate notice to the superintendent and provide for the necessary increased reserves with respect to any reinsurance recoverables applicable, in the event:

(i) that obligations of an unauthorized assuming insurer for which credit for reinsurance was taken under this section are more than 90 days past due and not in dispute; or

(ii) that there is any indication or evidence that any assuming insurer, with whom the ceding insurer has a contract, fails to substantially comply with the solvency requirements under the Insurance Law and regulations thereunder.

(5) Subparagraphs (3)(ii), (iii), (v), (viii) and (ix) of this subdivision do not apply when reinsurance cessions are made by domestic ceding insurers to unauthorized alien assuming insurers of risks located in jurisdictions where the reinsurance is required by applicable law or regulation of that jurisdiction.

(6) As used in this subdivision, adjusted shareholders' funds shall be as reported by Standard & Poor's or other recognized national rating agency as the superintendent may, from time to time, approve for purposes of compliance with this section.

(7) Any ceding insurer that has taken credit under this subdivision and subdivision (e) of this section is required to disclose the amounts thereof in the “other items” section of the notes to the financial statements section of the annual statement.

(8) Any insurer that elects to take such credit under this subdivision in its annual statement filed on or after September 15, 2001 shall notify the superintendent in writing of its initial intention to take such credit at least 30 days prior thereto. Upon application of an insurer with good cause shown, an insurer may be allowed to provide such notice less than 30 days prior to taking credit under this subdivision. Such shorter notice period will be approved by the superintendent based upon the justification stated in the insurer's application.

(g) Parental funding.

In the case of cessions to nonaffiliated assuming insurers that have not complied with the requirements of subdivision (a), (c) or (d) of this section, but that are authorized in their domiciliary jurisdiction to assume the kind or kinds of insurance ceded thereto:

(1) The noninsurer parent corporation of the ceding insurer provides the ceding insurer with funds, in lieu of the funds to be withheld by the ceding insurer under a reinsurance treaty with such unauthorized insurer as security for the payment of obligations thereunder, if such funds are held subject to withdrawal by, and under the control of, the ceding insurer. This transaction, including the type, amount and form of such funds, shall require the prior approval of the superintendent and shall be subject to the laws of the State of New York unless waived by the superintendent for good cause shown.

(2) Reinsurance recoverable credit taken under the provisions of subdivision (e) of this section shall not be eligible for additional credit under the provisions of this subdivision.

(3) A ceding insurer which elects to take credit under this subdivision for cessions to a nonaffiliated assuming insurer may not thereafter take credit for any recoverables due from such assuming insurer under the provisions of subdivision (e) of this section.

(h) Alternative credit for cessions to certified assuming insurers.

(1) With respect to reinsurance contracts entered into or renewed on or after January 1, 2011, an insurer may reduce the amount withheld as required under section 125.6(b) of this Part for full credit, as an asset or deduction from reserves, for reinsurance recoverable, including incurred-but-not-reported loss reserves and unearned premium, from any unauthorized assuming insurer or any alien group of insurers, provided that the insurer satisfies the requirements set forth in paragraph (7) of this subdivision and is certified by the superintendent. The reduced amount withheld will be determined in accordance with paragraphs (2) through (8) of this subdivision. Any reinsurer qualifying for reduced collateral under the provisions of this subdivision as in effect on July 1, 2012 will be deemed to continue to remain in full compliance with this subdivision, provided that it satisfies the certification procedures of paragraph (7) of this subdivision by July 1, 2013.

(2) If the superintendent assigns a rating to an assuming insurer, the minimum reduced amounts that may be withheld for full credit are as follows:

Rating by Superintendent	Minimum Amount Withheld for Full Credit
Secure-1	0 percent
Secure-2	10 percent
Secure-3	20 percent
Secure-4	50 percent
Secure-5	75 percent
Vulnerable-6	100 percent

(3) Affiliated reinsurance transactions shall be eligible for reduced security requirements in the same manner as non-affiliated reinsurance transactions.

(4) A certified reinsurer may defer posting security for catastrophe recoverables for a period of up to one year from the date of the first instance of a liability reserve entry by the ceding company as a result of a catastrophic occurrence that is likely to result in significant insured losses as recognized by the superintendent, provided that the certified reinsurer continues to pay claims in a timely manner. Deferral of reinsurance recoverables related specifically to a catastrophic occurrence are permitted only for the following lines of business, as reported on the NAIC annual financial statement:

(i) Line 1: Fire;

(ii) Line 2: Allied Lines;

(iii) Line 3: Farmowners Multiple Peril;

(iv) Line 4: Homeowners Multiple Peril;

(v) Line 5: Commercial Multiple Peril;

(vi) Line 9: Inland Marine;

(vii) Line 12: Earthquake;

(viii) Line 21: Auto Physical Damage.

(5) A ceding insurer may take credit for reinsurance under this subdivision only with respect to a reinsurance contract entered into or renewed on or after the effective date that the assuming insurer is certified pursuant to this subdivision. Any reinsurance contract entered into before the effective date of such certification that is subsequently amended after the effective date of the certification, or a new reinsurance contract, covering any risk for which collateral was provided previously, will only be subject to this subdivision with respect to losses incurred and reserves reported from and after the effective date of the amendment or new contract.

(6) Nothing in this subdivision shall prohibit the parties to a reinsurance agreement from agreeing to provisions establishing security requirements that exceed the minimum security requirements established for certified reinsurers under this subdivision.

(7) Certification procedure.

(i) Upon receipt of an application for certification, the superintendent will post notice on the Department of Financial Services website that will include instructions on how members of the public may respond to or comment upon the application. The notice will remain posted for at least 30 days before the superintendent will take action upon the application.

(ii) The superintendent will notify the assuming insurer whether the assuming insurer’s application to be a certified reinsurer has been approved. If the superintendent certifies the assuming insurer, the superintendent will include in the notification the rating assigned to the certified reinsurer in accordance with paragraph (2) of this subdivision. The superintendent will publish and make available to the public a list of all certified reinsurers and their ratings.

(iii) To be eligible for certification, an assuming insurer must:

(a) be domiciled and licensed to transact insurance or reinsurance in a qualified jurisdiction, as determined by the superintendent pursuant to paragraph (9) of this subdivision;

(b) maintain capital and surplus, or its equivalent, of no less than $250 million calculated in accordance with subparagraph (iv)(h) of this paragraph. In the case of an association including incorporated and individual unincorporated underwriters, the association shall have minimum capital and surplus equivalents (net of liabilities) of at least $250 million and a central fund containing a balance of at least $250 million;

(c) maintain financial strength ratings from two or more acceptable rating agencies. These ratings shall be based on interactive communication between the rating agency and the assuming insurer and shall not be based solely on publicly available information. These financial strength ratings will be one factor used by the superintendent in determining the rating assigned to the assuming insurer. An acceptable rating agency is:

(1) Standard & Poor’s;

(2) Moody’s Investors Service;

(3) Fitch Ratings;

(4) A.M. Best Company; or

(5) any other nationally recognized statistical rating organization acceptable to the superintendent;

(d) an assuming insurer applying to be a certified reinsurer shall agree to post 100 percent security upon the entry of an order of rehabilitation, liquidation or conservation against the ceding insurer for the benefit of the ceding insurer or its estate; and

(e) comply with any other conditions that the superintendent requires to ensure creditworthiness of the reinsurer.

(iv) The superintendent will rate each certified reinsurer on a legal entity basis with due consideration for the group rating, except that an association including incorporated and individual unincorporated underwriters that has been approved to do business as a single certified reinsurer may be evaluated on the basis of its group rating. In determining the rating, the superintendent will take into account relevant factors and review appropriate materials, including:

(a) the certified reinsurer’s financial strength rating from an acceptable rating agency. The maximum rating that a certified reinsurer may be assigned will correspond to its financial strength rating as outlined in the table in this clause. The lowest financial strength rating received from an approved rating agency will be used in establishing the maximum rating of a certified reinsurer. An insurer that has failed to obtain or maintain at least two financial strength ratings from acceptable rating agencies will lose its eligibility for certification;

Ratings	A.M. Best	S&P	Moody’s	Fitch
Secure-1	A++	AAA	Aaa	AAA
Secure-2	A+	AA+, AA, AA-	Aa1, Aa2, Aa3	AA+, AA, AA-
Secure-3	A	A+, A	A1, A2	A+, A
Secure-4	A-	A-	A3	A-
Secure-5	B++, B+	BBB+, BBB, BBB-	Baa1, Baa2, Baa3	BBB+, BBB, BBB-
Vulnerable-6	B, B-, C++, C+, C, C-, D, E, F	BB+, BB, BB-, B+, B, B-, CCC, CC, C, D, R, NR	Ba1, Ba2, Ba3, B1, B2, B3, Caa, Ca, C	BB+, BB, BB-, B+, B, B-, CCC+, CCC, CCC-, DD

(b) the business practices of the certified reinsurer in dealing with its ceding insurers, including its record of compliance with reinsurance contractual terms and obligations;

(c) for a certified reinsurer domiciled in the United States, the most recent applicable NAIC Annual Statement Blank, either schedule F (for a property/casualty reinsurer) or schedule S (for a life or health reinsurer);

(d) for a certified reinsurer not domiciled in the United States, of the most recent form CR-F (for a property/casualty reinsurer) or form CR-S (for a life or health reinsurer), as such forms shall be prescribed by the superintendent;

(e) the reputation of the certified reinsurer for prompt payment of claims under reinsurance agreements, based on an analysis of ceding insurers’ schedule F reporting of overdue reinsurance recoverables, including the proportion of obligations that are more than 90 days past due or are in dispute, with specific attention given to obligations payable to companies that are in administrative supervision or receivership;

(f) regulatory actions against the certified reinsurer;

(g) the report of the independent auditor on the financial statements of the certified reinsurer;

(h) for a certified reinsurer not domiciled in the United States, audited financial statements, (i.e., audited United States GAAP basis if available; audited IFRS basis statements including an audited footnote reconciling equity and net income to a United States GAAP basis; or with the permission of the superintendent, audited IFRS statements with reconciliation to United States GAAP certified by an officer of the company), regulatory financial statement filings, and actuarial opinion as filed with the non-United States jurisdiction supervisor. Upon the initial application for certification, the insurer shall provide the superintendent with audited financial statements filed with its non-United States jurisdiction supervisor for at least the previous three years;

(i) the liquidation priority of obligations to a ceding insurer in the certified reinsurer’s domiciliary jurisdiction in the context of an insolvency proceeding;

(j) a certified reinsurer’s participation in any solvent scheme of arrangement, or similar procedure, that involves United States ceding insurers. A certified reinsurer that proposes participation by the certified reinsurer in a solvent scheme of arrangement shall provide the superintendent with prior notice of such scheme as early as practicable; and

(k) any other information the superintendent deems relevant.

(v) Upon direction by the superintendent, a certified reinsurer shall adjust, as the superintendent deems appropriate, the security that it is required to post based on the superintendent’s analysis, pursuant to subparagraph (iv)(e) of this paragraph, of the reinsurer’s reputation for prompt payment of claims. Subject to such additional adjustments as the superintendent may deem necessary in accordance with this subparagraph, a certified reinsurer shall, at a minimum, increase the security that it is required to post by one rating level under subparagraph (iv)(a) of this subdivision if:

(a) more than 15 percent of the certified reinsurer’s ceding insurance clients have overdue reinsurance recoverables on paid losses of 90 days or more that are not in dispute and exceed $100,000 for each cedent; or

(b) the aggregate amount of reinsurance recoverables on paid losses, which are not in dispute and are overdue by 90 days or more, exceeds $50 million.

(vi)

(a) The assuming insurer shall submit to the superintendent:

(1) a properly executed form CR-1 on a form prescribed by the superintendent as evidence of its submission to the jurisdiction of this State;

(2) an appointment of the superintendent as an agent for service of process in this State in accordance with Insurance Law section 1213; and

(3) an agreement to provide security for 100 percent of the assuming insurer’s liabilities attributable to reinsurance ceded by United States ceding insurers if it resists enforcement of a final U.S. judgment.

(b) The superintendent will not certify any assuming insurer that is domiciled in a jurisdiction that the superintendent has determined does not adequately and promptly enforce final U.S. judgments or arbitration awards.

(vii) The certified reinsurer shall agree to meet applicable information filing requirements both with respect to an initial application for certification and on an ongoing basis, and indicate in writing those portions of its filings that it believes are exempt from disclosure pursuant to Public Officers Law section 87(2)(d). The certified reinsurer shall agree to:

(a) notify the superintendent within ten days of any regulatory actions taken against it, any change in the provisions of its domiciliary license or any change in rating by an approved rating agency, including a statement describing the changes and the reasons therefore;

(b) submit annually on July 1st, form CR-F or CR-S, as applicable;

(c) submit annually on July 1st, the report of the independent auditor on the financial statements of the certified reinsurer, on the basis described in clause (d) of this subparagraph;

(d) submit annually on July 1st, audited financial statements (i.e., audited United States GAAP basis statements if available and audited International Financial Reporting Standards basis statements, including an audited footnote reconciling equity and net income to a United States GAAP basis, except that the superintendent may in his or her discretion accept audited International Financial Reporting Standards statements with reconciliation to United States GAAP certified by an officer of the insurer, provided that the capital and surplus of the insurer exceeds $275 million); regulatory financial statement filings; an actuarial opinion as filed with the certified reinsurer’s domestic regulator; and, upon the initial certification, audited financial statements for the prior three years filed with the certified reinsurer’s domestic regulator;

(e) submit at least annually by July 1st, an updated list of all disputed and overdue reinsurance claims regarding reinsurance assumed from United States domestic ceding insurers;

(f) submit a certification from its domestic regulator that the certified reinsurer is in good standing and maintains capital in excess of the jurisdiction’s highest regulatory action level; and

(g) submit such other information that the superintendent may reasonably require.

(viii) Change in rating or revocation of certification.

(a) In the case of a downgrade by a rating agency or other disqualifying circumstance, the superintendent will upon written notice assign a new rating to the certified reinsurer in accordance with the requirements of subparagraph (iv)(a) of this paragraph.

(b) If the superintendent upgrades the rating of a certified reinsurer, the certified reinsurer may meet the security requirements applicable to its new rating on a prospective basis, provided that the certified reinsurer posts security under the previously applicable security requirements as to all contracts in force on or before the effective date of the upgraded rating. If the superintendent downgrades the rating of a certified reinsurer, the certified reinsurer shall be subject to the security requirements applicable to its new rating for all business that it has assumed as a certified reinsurer.

(c) The superintendent may suspend, revoke, or otherwise modify a certified reinsurer’s certification at any time if the certified reinsurer fails to meet its obligations or security requirements under this section, or if other financial or operating results of the certified reinsurer, or documented significant delays in payment by the certified reinsurer, lead the superintendent to reconsider the certified reinsurer’s ability or willingness to meet its contractual obligations.

(d) Upon the superintendent’s suspension, revocation or other termination of the certification of a certified reinsurer, unless the assuming insurer posts security in accordance with section 125.6(b) of this Part, the ceding insurer may not continue to take credit for reinsurance ceded to the assuming insurer. If funds continue to be held in trust in accordance with Part 126 of this Title (Insurance Regulation 114), the superintendent may allow additional credit equal to the ceding insurer’s pro rata share of such funds, discounted to reflect the risk of uncollectibility and anticipated expenses of trust administration. Notwithstanding the change of a certified reinsurer’s rating or suspension, revocation or other termination of its certification, a domestic insurer that has ceded reinsurance to that certified reinsurer may take credit for reinsurance for a period of three months for all reinsurance ceded to that certified reinsurer, unless the superintendent finds the reinsurance to be at high risk of uncollectibility.

(8) Qualified jurisdictions.

(i) If, upon conducting an evaluation under this paragraph with respect to the reinsurance supervisory system of any alien assuming insurer, the superintendent determines that the jurisdiction qualifies to be recognized as a qualified jurisdiction, the superintendent will publish notice and evidence of such recognition in an appropriate manner. The superintendent may withdraw recognition of a jurisdiction that is no longer qualified and will provide notice by publication or otherwise.

(ii) In order to determine whether the domiciliary jurisdiction of an alien assuming insurer is eligible to be recognized as a qualified jurisdiction, the superintendent will evaluate the reinsurance supervisory system of the non-U.S. jurisdiction, both initially and on an ongoing basis, and consider the rights, benefits and the extent of reciprocal recognition afforded by the non-U.S. jurisdiction to reinsurers licensed and domiciled in the U.S. The superintendent will create and publish a list of jurisdictions whose domiciliary reinsurers may be approved by the superintendent as eligible for certification. No jurisdiction will be deemed to be qualified unless it agrees to share information in accordance with Insurance Law section 110 and cooperate with the superintendent with respect to all certified reinsurers domiciled within that jurisdiction. Additional factors to be considered in determining whether to recognize a qualified jurisdiction, in the discretion of the superintendent, include the following:

(a) the framework under which the assuming insurer is regulated;

(b) the structure and authority of the domiciliary regulator with regard to solvency regulation requirements and financial surveillance;

(c) the substance of financial and operating standards for assuming insurers in the domiciliary jurisdiction;

(d) the form and substance of financial reports required to be filed or made publicly available by reinsurers in the domiciliary jurisdiction and the accounting principles used;

(e) the domiciliary regulator’s willingness to cooperate with U.S. regulators in general and the superintendent in particular;

(f) the history of performance by assuming insurers in the domiciliary jurisdiction;

(g) any documented evidence of substantial problems with the enforcement of final U.S. judgments in the domiciliary jurisdiction. A jurisdiction will not be considered to be a qualified jurisdiction if the superintendent has determined that it does not adequately and promptly enforce final U.S. judgments or arbitration awards;

(h) any relevant international standards or guidance with respect to mutual recognition of reinsurance supervision adopted by the International Association of Insurance Supervisors or successor organization; and

(i) any other matters deemed relevant by the superintendent.

(iii) The superintendent will consider the list published through the relevant NAIC committee in determining qualified jurisdictions. However, the superintendent may approve a jurisdiction as qualified that does not appear on the list of qualified jurisdictions. In such a case, the superintendent will provide notice to the relevant NAIC committee.

(iv) A U.S. jurisdiction that is NAIC-accredited will be deemed a qualified jurisdiction.

(9) Recognition of certification issued by an NAIC-accredited jurisdiction.

(i) If an applicant for certification has been certified as a reinsurer in an NAIC-accredited jurisdiction, the superintendent may accept that jurisdiction’s certification and rating, if the assuming insurer submits a properly executed form CR-1 and any other additional information the superintendent requires. In such a case, the assuming insurer will be considered a certified reinsurer in this State.

(ii) Any change in the certified reinsurer’s status or rating in the other jurisdiction shall apply automatically in this State as of the date it takes effect in the other jurisdiction. The certified reinsurer shall notify the superintendent of any change in its status or rating within 10 days after receiving notice of the change.

(iii) The superintendent may withdraw recognition of the other jurisdiction’s rating at any time and assign a new rating in accordance with paragraph (8)(vii)(a) of this subdivision.

(iv) The superintendent may withdraw recognition of the other jurisdiction’s certification at any time upon written notice to the certified reinsurer. Unless the superintendent suspends, revokes or otherwise terminates the certified reinsurer’s certification, the certified reinsurer’s certification shall remain in good standing in this State for a period of three months, which shall be extended if additional time is necessary to consider the assuming insurer’s application for certification in this State.

(10) Reinsurance contract terms. A ceding insurer may not enter into a reinsurance contract with a certified assuming insurer unless the reinsurance contract shall include:

(i) an insolvency clause as provided in Insurance Law section 1308(a)(2)(A);

(ii) a funding clause requiring the certified reinsurer to provide and maintain security in an amount sufficient to avoid the imposition of any financial statement penalty on the ceding insurer under this section for reinsurance ceded to the certified reinsurer;

(iii) a provision stating that any dispute, suit, action or proceeding under the contract, or any dispute, suit, action or proceeding related to or arising out of, directly, indirectly, or incidentally, the contract, or out of the transactions and actions arising from performance of the contract, will be subject to the jurisdiction, and resolved in the courts, of the United States or any state thereof, and that the assuming insurer submits to the personal jurisdiction of such court, will comply with the requirements necessary to give that court jurisdiction, will abide by the final decision of that court or of an appellate court in the event of an appeal, and will consent to any effort to enforce the final decision of the court in the home jurisdiction of the alien assuming insurer, including the granting of full faith and credit or comity in the home jurisdiction of the assuming insurer or any other jurisdiction where the assuming insurer is subject to jurisdiction. Such provision shall not override an agreement between the ceding insurer and the unauthorized alien assuming insurer to submit any and all disputes to arbitration, in accordance with the laws of the U.S. or any state thereof; and

(iv) a provision stating that any dispute, suit, action or proceeding under the contract, or any dispute, suit, action or proceeding related to or arising out of, directly, indirectly, or incidentally, the contract, or out of the transactions and actions arising from performance of the contract, will be governed by and construed in accordance with either the laws of the State of New York or the laws of the state in which the ceding insurer is domiciled or the laws of any state chosen by the ceding insurer. Such provision shall not override an agreement between the ceding insurer and the unauthorized alien assuming insurer to submit any and all disputes to arbitration, in accordance with the laws of the U.S. or any state thereof.