[Federal Register Volume 68, Number 230 (Monday, December 1, 2003)]
[Proposed Rules]
[Pages 67100-67106]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-29729]


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DEPARTMENT OF THE TREASURY

31 CFR Part 50

RIN 1505-AB07


Terrorism Risk Insurance Program; Initial Claims Procedures

AGENCY: Departmental Offices, Treasury.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Department of the Treasury (Treasury) is issuing this 
proposed rule as part of its implementation of Title I of the Terrorism 
Risk Insurance Act of 2002 (the Act). That Act established a temporary 
Terrorism Risk Insurance Program (Program) under which the Federal 
Government will share the risk of insured loss from certified acts of 
terrorism with commercial property and casualty insurers until the 
Program sunsets on December 31, 2005. This proposed rule contains 
procedures for filing claims for payment of the federal share of 
compensation for insured losses under the Program and incorporates 
statutory conditions for federal payment. In particular, the proposed 
rule addresses requirements for loss certification and associated 
recordkeeping requirements; provides guidance on what is payable as the 
federal share of insured losses; and sets forth requirements for 
investigating and auditing claims under the Program. The rule generally 
builds upon previous interim guidances and final rules issued by 
Treasury, particularly in areas involving definitions and disclosure 
requirements. This proposed rule is the fourth in a series of 
regulations Treasury has issued to implement the Act.

DATES: Written comments may be submitted on or before December 31, 
2003.

ADDRESSES: Submit comments by e-mail to [email protected] 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 Ave., NW., Washington, DC 
20220. All comments should be captioned with ``Proposed Rule on Claim 
Procedures''. Please include your name, affiliation, address, e-mail 
address and telephone number in your comment. Comments will be 
available for public inspection by appointment only at the Reading Room 
of the Treasury Library. To make appointments, call (202) 622-0990 (not 
a toll-free number).

FOR FURTHER INFORMATION CONTACT: David Brummond, Legal Counsel; Howard 
Leikin, Senior Insurance Advisor; C. Christopher Ledoux, Senior 
Attorney; Terrorism Risk Insurance Program (202) 622-6770 (not a toll-
free number).

SUPPLEMENTARY INFORMATION:

I. Background

    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). 
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 to 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. The Program provides a three-year federal reinsurance 
backstop for insured losses from an act of terrorism until the Program 
ends on December 31, 2005.
    Each entity that meets the Act's definition of insurer (well over 
2000 firms) must participate in the Program. The amount of federal 
payment for an insured loss resulting from an act of terrorism is to be 
determined, based upon the insurance company deductibles and excess 
loss sharing with the Federal Government, as specified by the Act and 
the implementing regulations. An insurer's deductible increases each 
year of the Program, thereby reducing the Federal Government's share of 
compensation for insured losses each year until the Program expires. An 
insurer's deductible is calculated based on the value of direct earned 
premiums collected over certain statutory periods. Once an insurer has 
met its individual deductible, the federal payments cover 90 percent of 
the insured losses above the deductible, subject to an industry-
aggregate limit of $100 billion.
    The Act gives Treasury authority to recoup federal payments made 
under the Program through policyholder surcharges, up to a maximum 
annual limit. 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 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.

II. Previous Rulemaking

    This proposed rule is the latest in a series of rules issued by 
Treasury under the Act. In implementing the Program, Treasury has 
sought to achieve several goals. First, an effort has been made to 
implement the Act in a transparent and effective manner that treats 
comparably those insurers required to participate in the Program and 
that provides necessary information to policyholders in a useful and 
efficient manner. Second, Treasury seeks to rely as much as possible on 
the State insurance regulatory structure. In that regard, Treasury is 
closely coordinating with the National Association of Insurance 
Commissioners (NAIC) in implementing all aspects of the Program. Third, 
to the extent possible within statutory constraints, Treasury seeks to 
allow insurers to participate in the Program in a manner consistent 
with their normal course of business. Finally, given the temporary and 
transitional nature of the Program, Treasury is guided by the Act's 
goal for insurers to develop their own capacity, resources and 
mechanisms for terrorism risk insurance coverage when the Program 
expires.
    To assist insurers, policyholders and other interested parties in 
complying with immediately applicable and time-sensitive requirements 
of the Act prior to the issuance of regulations, Treasury issued 
interim guidance in four separate notices on December 3 and 18, 2002 
and on January 22 and March 25, 2003. Treasury publicly released these 
interim guidance notices on its Program Web site http://www.Treasury.gov/trip and published each notice in the Federal Register 
[67 FR 76206 (December 11,

[[Page 67101]]

2002); 67 FR 78864 (Dec. 18, 2002); 68 FR 4544 (Jan. 29, 2003); 68 FR 
15039 (Mar. 27, 2003)]. The interim guidances addressed several issues 
requiring clarification of immediately applicable provisions, including 
provisions dealing with statutory disclosure obligations of insurers; 
requirements to make available terrorism risk insurance; the meaning of 
direct earned premium for commercial property and casualty insurance; 
categories of insurers required to participate in the Program; and the 
scope of the term insured loss under the Act.
    In addition to interim guidance, Treasury has published two interim 
final rules and a proposed rule that have now been issued as final 
rules. Treasury published the first regulation implementing the Act on 
February 28, 2003 (68 FR 9804) as an interim final rule. That interim 
final rule was revised and published as a final regulation on July 11, 
2003 (68 FR 41250). Now Subpart A of part 50 in Title 31 of the Code of 
Federal Regulations, this rulemaking covers the purpose and scope of 
the Program, key definitions and certain general provisions. A 
technical revision to the final rule dealing with the definition of 
direct earned premium was subsequently published on August 13, 2003 (68 
FR 48280).
    On April 18, 2002 (68 FR 19302) Treasury published a second interim 
final rule. Among other things, this rule dealt with requirements 
governing disclosures that insurers must make to policyholders as a 
condition for federal payment under the Act and requirements that 
insurers make available terrorism coverage in their commercial property 
and casualty insurance policies. The interim final rule created new 
Subparts B and C of 31 CFR part 50. The interim final rule was revised 
and published as a final rule on October 17, 2003 (68 FR 59720).
    Finally, Treasury published a proposed rule on April 18, 2003 to 
address issues involving State residual market insurance entities and 
State workers compensation funds as required by section 103(d)(1) of 
the Act (68 FR 19309). The proposed rule clarified characteristics of a 
residual market mechanism that define it as an ``insurer'', established 
guidelines for computing ``direct earned premium'' and continued the 
waiver of the Act's requirements related to disclosure. The proposed 
rule was revised and published as a final rule on October 17, 2003 (68 
FR 59715). The final rule made minor revisions to the proposed rule and 
set forth disclosure requirements for residual market mechanisms.

III. The Proposed Rule

    This proposed rule would add Subparts F and G to Part 50, which 
comprises Treasury's regulations implementing the Act. It also proposes 
to amend the definition of ``insured loss'' in Sec.  50.5(e) of Subpart 
A.

A. Overview

    Section 103(a)(2) of the Act requires the Secretary of the Treasury 
to administer the Program and pay the Federal share of compensation for 
insured losses. The proposed rule would establish requirements for 
insurers to follow in obtaining payment of the Federal share of 
compensation for insured losses from a terrorist event. The proposed 
rule is designed to reflect best practices of reinsurers, where 
applicable, in the context of the Act's text, goals and purposes. In 
general, the proposed rule describes what is payable to insurers as the 
Federal share of compensation and then follows the sequence of the 
process for paying reinsurance claims. Essentially, the process 
involves gathering information about insured losses of insurers as 
defined by the Act; requiring proof, or certification, that an insurer 
has met the requirements of the Act as a condition to payment of the 
Federal share; and making payment to insurers for the Federal share of 
compensation for their insured losses. The proposed rule is modeled on 
customary business practices and procedures of the reinsurance industry 
while implementing the statutory requirements of the Act. Treasury 
seeks comment on all aspects of the proposed rule from interested 
persons and entities.
    In outlining proposed requirements for insurers to obtain payment 
for insured losses, Treasury seeks to establish operational procedures 
that emulate, as appropriate, the best practices of a reinsurer. In 
this proposed rule, Treasury's goal is to be able to respond quickly to 
insurer claims for payment while maintaining appropriate financial 
controls so that taxpayer funds are protected. To the extent possible, 
the information that will be required from insurers already exists as 
part of their current process for administering and managing insurance 
claims. In certain instances, however, the Act requires certifications 
of insurer actions that may be different from customary industry 
business practices. It is Treasury's objective to obtain the 
information and documentation needed to administer the Program, while 
avoiding undue burdens on insurers.
    The proposed rule seeks to clarify the amount of the Federal share 
of compensation payable by Treasury and establish certain basic 
operational requirements to implement payment. Accordingly, the 
previous definition of ``insured loss'' is amended to facilitate 
clarification of items compensable as part of the Federal share. In 
addition to this proposed rulemaking, more detailed operating 
procedures will be developed as required. Such procedures will be 
posted on the Treasury Web site http://www.Treasury.gov/trip. For the 
present time, Treasury is concentrating on regulations that are 
important to the initial and supplementary reporting and certification 
of insured losses and the filing of claims for payment of the Federal 
share of compensation. This is being done so that Treasury and insurers 
can proceed expeditiously should a certified act of terrorism occur. 
There are other issues, typically those arising at later stages of the 
claims payment process, that are not addressed in the proposed rule. 
For example, payment priorities when aggregate losses constituting the 
Federal share of compensation approach the statutory maximum of $100 
billion are not included as part of this rulemaking. These and other 
issues will be the subject of subsequent rulemaking.

B. Description of Proposed Rule

    The major provisions of the proposed rule are as follows:
    1. The Federal Share of Compensation. The proposed rule generally 
outlines the Act's requirements and conditions for federal payment. A 
critical component of the calculation of the Federal share of 
compensation is the amount of insured losses of an insurer. The 
proposed rule thus clarifies elements of insured losses that are 
compensable by amending the current definition of ``insured loss'' in 
Sec.  50.5(e). Following customary business practices in the insurance 
industry, Treasury is proposing that loss adjustment expenses allocable 
to a specific underlying loss be payable as part of insured losses. 
Treasury has not included losses in excess of policy limits (known 
commonly as XPL) as insured losses. However, comments on why the 
Federal Government should consider including XPL losses are solicited 
by Treasury. Since the Act specifically excludes compensation for 
punitive or exemplary damages, these are also not included as insured 
loss items.
    The Federal share of compensation payable to an insurer under the 
Program is described by the proposed rule as 90 percent of that portion 
of the insurer's

[[Page 67102]]

insured losses that exceed its insurer deductible during a Program 
Year, subject to specified adjustments and the cap of $100 billion as 
provided in the Act. The proposed rule stipulates several adjustments 
in calculating the Federal share of compensation. First, the proposed 
rule reduces aggregate insured losses by amounts recovered by insurers 
for salvage and subrogation. Treasury expects that as normal good 
business practice, insurers will pursue salvage and subrogation 
recoveries. The proposed rule sets forth that the amount of insured 
losses upon which the Federal share of compensation is calculated be 
reduced by such recoveries. The benefits of insurer recoveries for 
salvage and subrogation thus inure to both the insurer and to the 
Program.
    The proposed rule also specifies two other adjustments that will be 
made to reduce the Federal share of compensation otherwise due for the 
insured losses. The Act requires that the Federal share of compensation 
for insured losses be reduced by any duplicate amount of compensation 
otherwise provided by the Federal Government for those insured losses. 
The Act recognizes that insurers may have other sources of recovery for 
their insured losses, particularly reinsurance agreements. Should the 
amount of an insurer's Federal share of compensation from the Program 
and the amount of recoveries from other sources exceed the aggregate 
amount of its insured losses in a Program Year, then any excess 
recovery must be returned to Treasury. Excluded from this requirement 
are recoveries from a reinsurer pursuant to an agreement whereby an 
insurer's obligation to repay its reinsurer takes priority over its 
obligation to repay Treasury.
    2. Information Gathering. The next stage of the claims process 
under the proposed rule involves the submission of information about 
insured losses so that Treasury can determine the extent of its 
obligation to pay individual insurers under the Act.
    a. Initial Notice. As the ``payer'' of Federal compensation for 
insured losses from acts of terrorism, Treasury is proposing an early 
notification requirement when an insurer obtains information indicating 
its insured losses will exceed 50% of its insurer deductible as defined 
by the Act. At that time Treasury expects the insurer to submit, on a 
form prescribed by Treasury, estimates of aggregate losses for the 
Program Year, its insurer deductible and the Federal share of aggregate 
losses, as well as to designate the person who will make required 
certifications and receive Federal payments. Such information will 
assist in anticipating funding and operational requirements. Because 
the insurer deductible applies collectively to all insurers in an 
affiliated group, the notice must include the designation of a single 
insurance entity to coordinate the submission of required reports and 
documentation (including the Initial Notice), make required 
certifications and receive Federal payments on behalf of the affiliated 
group.
    b. Loss Reporting. The proposed rule addresses the type of loss 
information that will be required to document insured losses when an 
insurer seeks reimbursement from Treasury for the Federal share of 
compensation. An Initial Certification of Loss, on a form prescribed by 
Treasury, is required when insured losses first exceed the insurer's 
deductible. If the insurer sustains ongoing, additional insured losses, 
periodic Supplementary Certifications of Loss, on a form prescribed by 
Treasury, must be submitted. These Certifications of Loss will be used 
by Treasury to assess payment eligibility for the Federal share of 
compensation and compliance with the Act's prerequisites for payment.
    (i) Loss Bordereau. The primary vehicle for gathering information 
about the insured losses of an insurer is a summary report of loss data 
commonly known in the reinsurance industry as a ``bordereau''. A 
bordereau is a management report of basic information about an 
insurer's underlying claims that, in the aggregate, constitute the 
insured losses of the insurer. The bordereau is used within the 
reinsurance industry to track insured losses and otherwise establish 
the reinsurer's obligation to pay under a reinsurance agreement. The 
proposed rule would require insurers to provide Treasury with a 
bordereau that identifies insured losses by Program Year, by industry 
catastrophe code and by line of business. If an industry catastrophe 
code is not issued, Treasury will issue a code for insurer use. It is 
Treasury's intent to coordinate this code with appropriate industry 
reporting organizations.
    In the future, Treasury will issue operating procedures and a 
prescribed format for the bordereau in its implementation of these 
regulations. For each underlying claim, Treasury contemplates the 
submission of information that is typical of a reinsurer's 
requirements. Such basic information will allow Treasury to 
expeditiously handle and provide payment for claims under the Program. 
Certain data will be sought for claim identification and coverage 
determination, such as claim number, insured name, state code for the 
location of the loss, date of loss, policy effective date and length of 
term. Other data will assist in the assessment of the insurer's claim, 
such as policy limits. And finally, certain data are simply basic to 
the insurer's claim, such as the loss and allocated loss adjustment 
expenses paid, amounts reserved for those expenses and amounts 
recovered through salvage and subrogation.
    (ii) Other Information. The forms to be prescribed by Treasury will 
also seek loss-related information that is required by specific 
provisions of the Act. As previously noted, section 103(g)(2) of the 
Act recognizes that insurers may have other reinsurance recoveries for 
their insured losses. However, the Act requires that the Federal share 
of compensation from Treasury and amounts recovered from other sources 
cannot exceed the aggregate amount of the insurer's insured losses in 
any Program Year. Thus, Treasury will require insurers to indicate on 
the bordereau whether an underlying claim could or does have other 
reinsurance recoverable. As part of the loss certification and 
bordereau information reported, an insurer would also report total 
reinsurance recoveries from other sources. This will provide the 
Treasury with an early notification that other reinsurance exists.
    Section 107(a)(5) of the Act provides that punitive damage amounts 
may not be included as insured losses. Thus, Treasury will require such 
amounts to be reported with an underlying claim on the bordereau for 
appropriate adjustment of the amount claimed from the Program.
    Finally, section 103(e)(1)(B) of the Act requires the reduction of 
the Federal share of compensation for insured losses under the Program 
by the amounts provided by the Federal Government through any other 
program for those same losses. Accordingly, insurers will be required 
to inquire of each of their claimants whether or not the claimant 
received any duplicate recovery from any other Federal source and to 
report that amount on the bordereau with the underlying claim.
    3. Compliance Certifications. The proposed rule also addresses 
various written certifications the Act requires as a condition for 
payment of the Federal share. Specific statements certifying actions by 
the insurer as required by the Act will be included as part of each 
Certification of Loss. Section 103(b)(2) of the Act states that no 
payment may be made to an insurer for a covered insured loss unless 
``the insurer

[[Page 67103]]

provides 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.'' 
This requirement has been addressed in the previously issued Treasury 
regulations at Sec. Sec.  50.10 through 50.19 and will be a formal 
requirement in submitting a claim for the Federal share of compensation 
for an insured loss. Treasury anticipates that an executive officer of 
the insurer will provide this written certification for all underlying 
claims submitted on the bordereau, both with the Initial Certification 
of Loss and with any Supplementary Certifications of Loss.
    Section 103(c) of the Act also requires that through December 31, 
2004, an entity meeting the definition of an insurer under this Program 
``(A) shall make available, in all of its commercial property and 
casualty insurance policies, coverage for insured losses; and (B) shall 
make available property and casualty insurance 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''. This requirement has also been 
addressed in the previously issued Treasury regulations at Sec. Sec.  
50.20 through 50.24. The Initial and each Supplementary Certification 
of Loss will include a certification that this availability requirement 
has been met. Although this is not a statutory condition for payment, 
Treasury believes it is necessary to effectively administer and 
implement the Program.
    Finally, the Act requires that insurers absorb a specified level of 
insured losses, or an insurer deductible, before receiving 
reimbursement for the Federal share of compensation for insured losses. 
To facilitate the administration of this provision, the Initial 
Certification of Loss requires an insurer to certify the amount of its 
direct earned premium, along with the calculation of its insurer 
deductible. The proposed rule provides that, at the option of the 
insurer, this statement and supporting documentation can be submitted 
along with the Initial Notice of Insured Loss instead of being provided 
in conjunction with the Initial Certification of Loss. This is allowed 
so that the amount of the insurer's deductible can be on file with the 
Program to expedite the processing of the insurer's Initial 
Certification of Loss. Treasury will prescribe a schedule or attachment 
to the Initial Notice of Insured Loss and the Initial Certification of 
Loss forms for the calculation and certification by an insurer of its 
direct earned premium and resulting insurer deductible based on its 
reporting to the NAIC, or as otherwise appropriately reported.
    4. Paying the Federal Share. The final stage in the claim process 
addressed by Treasury in the proposed rule is to make payment as 
provided by the Act. Once again, the proposed rule generally follows 
payment practices and procedures used in the reinsurance industry.
    a. Payment Process. Treasury is proposing that it will, upon 
receiving the required documentation, promptly provide payment. If 
Treasury makes payments before the total amount of insured losses are 
known, such payments will be subject later to adjustment based on any 
overpayment or underpayment. If the total amount of insured losses to 
be paid by the insurer or the amount of Federal compensation payable by 
Treasury has not been finally determined when the Initial Certification 
of Loss has been filed, the normal procedure to be followed is that the 
insurer will file Supplementary Certifications of Loss on a monthly 
basis. If monthly reporting is inappropriate in a particular case, then 
Treasury may determine a more suitable schedule to be worked out with 
the insurer. In either situation, on the basis of each Supplementary 
Certification of Loss thereafter, Treasury or the insurer, as the case 
may be, shall pay the balance due. It is proposed that any overpayment 
to an insurer will either be offset from future payments or due to 
Treasury within 45 days of the reporting of the overpayment.
    Because the Act requires insurance entities within an affiliated 
group to be treated as a single entity in determining the insurer 
deductible, Treasury is proposing that all payments will be made to a 
single insurance entity within an affiliated group. This entity will be 
identified by the affiliated group and designated on the Initial Notice 
of Loss. The proposed rule also requires that insurers within the 
affiliated group assign their rights to payment from Treasury to the 
single insurance entity. Failure to make such assignment may be grounds 
for Treasury withholding an affiliate insurer's share of Federal 
compensation under the Program.
    b. Audits and Records. If a certified act of terrorism occurs, it 
will be the objective of the Treasury to reimburse insurers according 
to the Act as soon as possible following receipt of the Initial 
Certification of Loss and supporting documentation. The proposed rule 
requires insurers to retain all records and files pertaining to the 
handling and settlement of claims, including electronic documents and 
data, for subsequent financial and claims audits. This is because 
Treasury and/or its appointed designee(s) will need to have access to 
pertinent books, files, agreements and records which support the 
Certifications of Loss previously submitted. Insurer records should be 
retained for a minimum of three years following the conclusion of the 
policy year for premium information and for a minimum of five years 
following the final adjustment of each individual claim.
    c. Fraud and Civil Penalties. One of the conditions for Federal 
payment under section 103(b) of the Act is that the insurer ``processes 
the claim for the insured loss in accordance with appropriate business 
practices, and any reasonable procedures that the Secretary may 
prescribe.'' The proposed rule provides that Treasury may deny 
eligibility for payment of the Federal share of insured losses should 
an insurer intentionally conceal or misrepresent any material fact or 
circumstance, engage in fraudulent conduct, or make false statements 
relating to participation under the Act. Fines, civil penalties and 
imprisonment under applicable Federal laws may also apply.

IV. Procedural Requirements

    Executive Order 12866, ``Regulatory Planning and Review''. This 
rule is a significant regulatory action for purposes of Executive Order 
12866, ``Regulatory Planning and Review,'' and has been reviewed by the 
Office of Management and Budget.
    Regulatory Flexibility Act. Pursuant to the Regulatory Flexibility 
Act, 5 U.S.C. 601 et. seq., it is hereby certified that this proposed 
rule will not have a significant economic impact on a substantial 
number of small entities. Treasury is required to pay the Federal share 
of compensation to insurers for insured losses in accordance with the 
Act. A condition of Federal payment is that the insurer must submit to 
Treasury, in accordance with procedures established by Treasury, a 
claim for payment and certain certifications. The proposed rule seeks 
to emulate loss reporting practices in the reinsurance industry, which 
insurers already follow in order to get payment for reinsurance, thus 
minimizing the impact on all insurers. The Act itself requires all 
insurers receiving direct earned premium for any type of property and 
casualty insurance, as defined in the Act, to participate in the 
Program. This includes all insurers regardless of size or 
sophistication. The Act also defines property and casualty insurance to 
mean commercial lines

[[Page 67104]]

insurance without any reference to the size or scope of the insurer or 
the insured. Accordingly, any economic impact associated with the 
proposed rule flows from the Act and not the proposed rule. A 
regulatory flexibility analysis is thus not required.
    Paperwork Reduction Act. The collection of information 
(recordkeeping requirement) contained in this proposed rule has been 
submitted to the Office of Management and Budget (OMB) for review under 
the requirements of the Paperwork Reduction Act, 44 U.S.C. 3507(d). The 
forms to be prescribed by Treasury will be the subject of a separate 
submission to OMB on which the public will be provided an opportunity 
to comment. An agency may not conduct or sponsor, and a person is not 
required to respond to, a collection of information unless it displays 
a valid control number assigned by OMB.
    Organizations and individuals desiring to submit comments 
concerning the collection of information in the proposed rule should 
direct them to the Desk Officer for the Department of the Treasury, 
Office of Information and Regulatory Affairs, Office of Management and 
Budget, Washington, DC 20503 (preferably by Fax to 202-395-6974, or by 
e-mail to [email protected]). A copy of the comments should also be 
sent to Treasury at the addresses previously specified. Comments on the 
collection of information should be received by December 31, 2003.
    Treasury specifically invites comments on: (a) Whether the proposed 
collection of information is necessary for the proper performance of 
the mission of Treasury, and whether the information will have 
practical utility; (b) the accuracy of the estimate of the burden of 
the collections of information (see below); (c) ways to enhance the 
quality, utility, and clarity of the information collection; (d) ways 
to minimize the burden of the information collection, including through 
the use of automated collection techniques or other forms of 
information technology; and (e) estimates of capital or start-up costs 
and costs of operation, maintenance, and purchase of services to 
maintain the information.
    The collection of information in the proposed rule is the 
recordkeeping requirement in Sec.  50.61. The information will be used 
by Treasury (or its designees) to audit or examine claims for Federal 
payments submitted by insurers. The recordkeeping requirement is 
mandatory for any insurer that seeks payment of a Federal share of 
compensation.
    If an act of terrorism is certified under the Act, the number of 
respondents, if any, will be determined by the size and nature of the 
certified act of terrorism. Because of the extreme uncertainty 
regarding any such event, a ``best estimate'' has been developed based 
on the considered judgment of Treasury. This estimate has 100 insurers 
sustaining insured losses; each of these insurers would be required to 
retain records concerning 100 claims. Treasury believes that the 
records that insurers would be required to retain under Sec.  50.61 
largely duplicate the records that insurers would normally retain in 
the course of processing and administering claims, and that the burden 
associated with the proposed rule therefore is minimal. Accordingly, 
Treasury estimates that the proposed rule will impose 5 minutes of 
burden with respect to each claim; the estimated annual burden per 
recordkeeper is therefore 8.33 hours (100 claims x 5 minutes) and the 
estimated total annual burden is 833 hours (8.33 hours x 100 insurers).

List of Subjects in 31 CFR Part 50

    Terrorism risk insurance.

    For the reasons stated above, 31 CFR part 50 is proposed to be 
amended as follows:

PART 50--TERRORISM RISK INSURANCE PROGRAM

    1. The authority citation for part 50 continues to read as follows:

    Authority: 5 U.S.C. 301; 31 U.S.C. 321; Title I, Pub. L. 107-
297, 116 Stat. 2322 (15 U.S.C 6701 note).

    2. Revise Sec.  50.5(e) to read as follows:


Sec.  50.5  Definitions.

* * * * *
    (e) Insured loss. (1) The term insured loss means any loss 
resulting from an act of terrorism (including an act of war, in the 
case of workers' compensation) that is covered by primary or excess 
property and casualty insurance issued by an insurer if the loss:
    (i) Occurs within the United States;
    (ii) Occurs to an air carrier (as defined in 49 U.S.C. 40102), to a 
United States flag vessel (or a vessel based principally in the United 
States, on which United States income tax is paid and whose insurance 
coverage is subject to regulation in the United States), regardless of 
where the loss occurs; or
    (iii) Occurs at the premises of any United States mission.
    (2)(i) A loss that occurs to an air carrier (as defined in 49 
U.S.C. 40102), to a United States flag vessel, or a vessel based 
principally in the United States, on which United States income tax is 
paid and whose insurance coverage is subject to regulation in the 
United States, is not an insured loss under section 102(5)(B) of the 
Act unless it is incurred by the air carrier or vessel outside the 
United States.
    (ii) An insured loss to an air carrier or vessel outside the United 
States under section 102(5)(B) of the Act does not include losses 
covered by third party insurance contracts that are separate from the 
insurance coverage provided to the air carrier or vessel.
    (3) The term insured loss includes loss adjustment expenses 
incurred by an insurer in connection with insured losses that are 
allocated and identified by claim file in insurer records, including 
expenses incurred in the investigation, adjustment and defense of 
claims, but excluding staff adjuster salaries and any allocations of 
other internal insurer expenses.
    (4) The term insured loss does not include:
    (i) Punitive or exemplary damages awarded or paid in connection 
with the Federal cause of action specified in section 107(a)(1) of the 
Act. The term ``punitive or exemplary damages'' means damages that are 
not compensatory but are an award of money made to a claimant solely to 
punish or deter; or
    (ii) Extra contractual damages awarded, or obligations paid by an 
insurer, including but not limited to, punitive, exemplary, or special 
damages, or damages in excess of policy limits.
* * * * *
    3. New Subparts F and G of Part 50 are added to read as follows:
Subpart F--Claims Procedures
Sec.
50.50 Federal share of compensation.
50.51 Adjustments to the Federal share of compensation.
50.52 Initial Notice of Insured Loss.
50.53 Loss certifications.
50.54 Payment of Federal share of compensation.

Subpart F--Claims Procedures


Sec.  50.50  Federal share of compensation.

    (a) General. The Treasury will pay to insurers the Federal share of 
compensation for insured losses resulting from acts of terrorism as 
provided in section 103 of the Act. Treasury shall determine the amount 
of payment of the Federal share of compensation based upon a 
determination by Treasury, or upon Treasury's reservation of rights and 
a later determination, that:

[[Page 67105]]

    (1) The insurer is an entity meeting the requirements of Sec.  
50.5(f);
    (2) The insurer's insured losses as defined in Sec.  50.5(e) have 
exceeded its insurer deductible as defined in Sec.  50.5(g);
    (3) The insurer has made payment of an underlying insured loss to a 
person who had suffered the insured loss, or to a person acting on 
behalf of such person, and who had filed a claim that was not 
fraudulent, collusive, made in bad faith or otherwise dishonest;
    (4) The insurer had provided a clear and conspicuous disclosure as 
required by Sec. Sec.  50.10 through 50.19;
    (5) The insurer took all steps reasonably necessary to properly and 
carefully investigate the underlying insured loss and otherwise 
processed the underlying loss using appropriate insurance business 
practices;
    (6) The insured losses submitted for payment are within the scope 
of coverage issued by the insurer for commercial property and casualty 
insurance as defined in Sec.  50.5(l); and
    (7) The procedures specified in this subpart have been followed and 
all conditions to payment have been met.
    (b) Amount payable. The Federal share of compensation payable to an 
insurer under the Program shall be 90 percent of that portion of the 
insurer's aggregate insured losses that exceed its insurer deductible 
during a Program Year, subject to any adjustments in Sec.  50.51 and 
the cap of $100 billion as provided in section 103(e)(2) of the Act.


Sec.  50.51  Adjustments to the Federal share of compensation.

    (a) Aggregate amount of insured losses. The aggregate amount of 
insured losses of an insurer in a Program Year used to calculate the 
Federal share of compensation shall be reduced by any amounts recovered 
by the insurer as salvage or subrogation for its insured losses in the 
Program Year.
    (b) Amount of Federal share of compensation. The Federal share of 
compensation shall be adjusted as follows:
    (1) No excess recoveries. For any Program Year, the sum of the 
Federal share of compensation paid by Treasury to an insurer and the 
insurer's recoveries for insured losses from other sources shall not be 
greater than the insurer's aggregate amount of insured losses for acts 
of terrorism in that Program Year. Amounts recovered for insured losses 
in excess of an insurer's aggregate amount of insured losses in a 
Program Year shall be repaid to Treasury within 45 days after the end 
of the month when such amounts are received by the insurer. For 
purposes of this paragraph, amounts recovered from a reinsurer pursuant 
to an agreement whereby the reinsurer's right to any excess recovery 
has priority over the rights of Treasury shall not be considered a 
recovery subject to repayment to Treasury.
    (2) Reduction of amount payable. The Federal share of compensation 
due an insurer for insured losses shall be reduced by any amounts 
received by the insurer or an insured or a third party suffering the 
underlying loss from any other Federal programs as compensation for 
those insured losses, including, but not limited to, insurance, 
assistance, grants or disaster relief from the Federal Government. Each 
insurer shall inquire of each of its claimants whether or not duplicate 
payments for insured losses have been paid from other Federal sources. 
Such amounts shall be reported with each underlying claim on the 
bordereau specified in Sec.  50.53(b)(1) and the total amount 
subtracted from the aggregate amount claimed as the Federal share of 
compensation for insured losses.


Sec.  50.52  Initial Notice of Insured Loss.

    Each insurer shall submit to Treasury an Initial Notice of Insured 
Loss, on a form prescribed by Treasury, whenever the insurer's 
aggregate insured losses (including reserves for ``incurred but not 
reported'' losses) within a Program Year exceed an amount equal to 50 
percent of the insurer's deductible as specified in Sec.  50.5(g). 
Insurers are advised the form for the Initial Notice of Insured Loss 
will include an initial estimate of aggregate losses for the Program 
Year, the amount of the insurer deductible and an estimate of the 
Federal share of compensation for the insurer's aggregate insured 
losses. In the case of an affiliated group of insurers, the form for 
the Initial Notice of Insured Loss will include the name and address of 
a single insurance entity within the affiliated group that will serve 
as the single point of contact for the purpose of providing loss and 
compliance certifications as required in Sec.  50.53 and for receiving 
payments of the Federal share of compensation in accordance with Sec.  
50.54(b). An insurer, at its option, may elect to include with its 
Initial Notice of Insured Loss the certification of direct earned 
premium required by Sec.  50.53(b)(3).


Sec.  50.53  Loss certifications.

    (a) General. When an insurer has paid aggregate insured losses that 
exceed its insurer deductible, the insurer may make claim upon Treasury 
for the payment of the Federal share of compensation for its insured 
losses. The insurer shall file an Initial Certification of Loss, on a 
form prescribed by Treasury, and thereafter such Supplementary 
Certifications of Loss, on a form prescribed by Treasury, as may be 
necessary to receive payment for the Federal share of compensation for 
its insured losses.
    (b) Initial Certification of Loss. An insurer shall use its best 
efforts to file the Initial Certification of Loss with Treasury within 
45 days following the last calendar day of the month when an insurer's 
aggregate insured losses exceed its insurer deductible. Insurers are 
advised the Initial Certification of Loss will include the following:
    (1) A bordereau, on a form prescribed by Treasury, that includes 
basic information about each underlying insured loss. The bordereau 
will include, but may not be limited to:
    (i) A listing of each underlying insured loss by catastrophe code 
and line of business;
    (ii) The total amount of reinsurance recovered from other sources;
    (iii) A calculation of the aggregate insured losses sustained by 
the insurer above its insurer deductible for the Program Year; and
    (iv) The amount the insurer claims as the Federal share of 
compensation for its aggregate insured losses.
    (2) A certification that the insurer is in compliance with the 
provisions of section 103(b) of the Act and this part, including 
certifications that:
    (i) The insurer has paid all underlying claims comprising the 
insured losses listed in the bordereau provided pursuant to Sec.  
50.53(b)(1);
    (ii) The underlying claims for insured losses were filed by persons 
who suffered an insured loss, or by persons acting on behalf of such 
persons;
    (iii) The underlying claims for insured losses were processed in 
accordance with appropriate business practices and the procedures 
specified in this subpart;
    (iv) The insurer has complied with the disclosure requirements of 
Sec. Sec.  50.10 through 50.19 for each underlying insured loss that is 
included in the amount of the insurer's aggregate insured losses; and
    (v) The insurer has complied with the mandatory availability 
requirements of Sec. Sec.  50.20 through 50.24.
    (3) A certification of the amount of the insurer's ``direct earned 
premium'' as defined in Sec.  50.5(d), together with the calculation of 
its ``insurer deductible'' as defined in Sec.  50.5(g) (provided this 
certification was not submitted previously with Initial Notice of 
Insured Loss specified in Sec.  50.52).
    (c) Supplementary Certification of Loss. If the total amount of the 
Federal

[[Page 67106]]

share of compensation due an insurer for insured losses under the Act 
has not been determined at the time an Initial Certification of Loss 
has been filed, the insurer shall file monthly, or on a schedule 
otherwise determined by Treasury, Supplementary Certifications of Loss 
updating the amount of the Federal share of compensation owed for the 
insurer's insured losses. Supplementary Certifications of Loss will 
include the following:
    (1) A bordereau described in Sec.  50.53(b)(1); and
    (2) A certification as described in Sec.  50.53(b)(2).
    (d) Supplementary information. In addition to the information 
required in paragraphs (b) and (c) of this section, Treasury may 
require such additional supporting documentation as required to 
ascertain the Federal share of compensation for the insured losses of 
any insurer.
    (e) Bordereau defined. For purposes of this section, a 
``bordereau'' is a report of basic information about an insurer's 
underlying claims that, in the aggregate, constitute the insured losses 
of the insurer.


Sec.  50.54  Payment of Federal share of compensation.

    (a) Timing. Treasury will promptly pay to an insurer the Federal 
share of compensation due the insurer for its insured losses. Payment 
shall be made in such installments and on such conditions as determined 
by the Treasury to be appropriate. Any overpayments by Treasury of the 
Federal share of compensation will be offset from future payments to 
the insurer or returned to Treasury within 45 days.
    (b) Payee. Payment of the Federal share of compensation for insured 
losses will be made to the insurer filing the Initial Notice of Loss 
required by Sec.  50.52. In the case of an affiliated group of 
insurers, payment of the Federal share of compensation for the insured 
losses of the affiliated group will be made to the single insurance 
entity designated in the Initial Notice of Loss to receive payment on 
behalf of the affiliated group. It shall be the responsibility of the 
single insurance entity to distribute payments of the Federal share of 
compensation as appropriate to affiliated insurers in the group.
    (c) Assignment of payments. To facilitate a single point of contact 
for payment of the Federal share of compensation to an affiliated 
group, an insurer within an affiliated group shall assign its rights to 
be paid amounts due or to become due from Treasury to the single 
insurance entity designated to receive payment on behalf of the 
affiliated group. The failure to make such an assignment may be grounds 
for Treasury to withhold, in whole or in part, payment of the Federal 
share of compensation due an insurer.
Subpart G--Audit and Investigative Procedures
50.60 Audit authority.
50.61 Recordkeeping.
50.62 Eligibility for Federal share of compensation.

Subpart G--Audit and Investigative Procedures


Sec.  50.60  Audit authority.

    The Secretary of the Treasury, or an authorized representative, 
shall have access to all books, documents, papers and records of an 
insurer that are pertinent to amounts paid to the insurer as the 
Federal share of compensation for insured losses for the purpose of 
investigation, confirmation, audit and examination.


Sec.  50.61  Recordkeeping.

    Each insurer that seeks payment of a Federal share of compensation 
under subpart F of this part shall retain such records as are necessary 
to fully disclose all material matters pertinent to insured losses and 
the Federal share of compensation sought under the Program, including, 
but not limited to, records regarding premiums and insured losses for 
all commercial property and casualty insurance issued by the insurer 
and information relating to any adjustment in the amount of the Federal 
share of compensation payable. Insurers shall maintain detailed records 
for not less than 5 years from the termination dates of all reinsurance 
agreements involving commercial property and casualty insurance subject 
to the Act. Records relating to premiums shall be retained and 
available for review for not less than 3 years following the conclusion 
of the policy year. Records relating to underlying claims shall be 
retained for not less than 5 years following the final adjustment of 
the claim.


Sec.  50.62  Eligibility for Federal share of compensation.

    (a) An insurer may be ineligible to receive payment for the Federal 
share of compensation for insured losses under the Act upon a 
determination by Treasury that the insurer:
    (1) Intentionally concealed or misrepresented any material fact or 
circumstance;
    (2) Engaged in fraudulent conduct; or
    (3) Made false statements relating to participation under the Act 
or this Part.
    (b) An insurer's ineligibility for payment of the Federal share of 
compensation shall be effective as of the date any act described in 
paragraph (a) of this section was committed.
    (c) Fines, civil penalties and imprisonment under applicable 
Federal laws may apply in addition to ineligibility for payment of the 
Federal share of compensation.

    Dated: November 12, 2003.
Wayne A. Abernathy,
Assistant Secretary of the Treasury.
[FR Doc. 03-29729 Filed 11-28-03; 8:45 am]
BILLING CODE 4830-01-P