CHAPTER 108 —STATE-BASED INSURANCE REFORM
SUBCHAPTER I—NONADMITTED INSURANCE
SUBCHAPTER II—REINSURANCE
SUBCHAPTER III—RULE OF CONSTRUCTION
SUBCHAPTER I—NONADMITTED INSURANCE
§8201. Reporting, payment, and allocation of premium taxes
(a) Home State's exclusive authority
No State other than the home State of an insured may require any premium tax payment for nonadmitted insurance.
(b) Allocation of nonadmitted premium taxes
(1) In general
The States may enter into a compact or otherwise establish procedures to allocate among the States the premium taxes paid to an insured's home State described in subsection (a).
(2) Effective date
Except as expressly otherwise provided in such compact or other procedures, any such compact or other procedures—
(A) if adopted on or before the expiration of the 330-day period that begins on July 21, 2010, shall apply to any premium taxes that, on or after July 21, 2010, are required to be paid to any State that is subject to such compact or procedures; and
(B) if adopted after the expiration of such 330-day period, shall apply to any premium taxes that, on or after January 1 of the first calendar year that begins after the expiration of such 330-day period, are required to be paid to any State that is subject to such compact or procedures.
(3) Report
Upon the expiration of the 330-day period referred to in paragraph (2), the NAIC may submit a report to the Committee on Financial Services and the Committee on the Judiciary of the House of Representatives and the Committee on Banking, Housing, and Urban Affairs of the Senate identifying and describing any compact or other procedures for allocation among the States of premium taxes that have been adopted during such period by any States.
(4) Nationwide system
The Congress intends that each State adopt nationwide uniform requirements, forms, and procedures, such as an interstate compact, that provide for the reporting, payment, collection, and allocation of premium taxes for nonadmitted insurance consistent with this section.
(c) Allocation based on tax allocation report
To facilitate the payment of premium taxes among the States, an insured's home State may require surplus lines brokers and insureds who have independently procured insurance to annually file tax allocation reports with the insured's home State detailing the portion of the nonadmitted insurance policy premium or premiums attributable to properties, risks, or exposures located in each State. The filing of a nonadmitted insurance tax allocation report and the payment of tax may be made by a person authorized by the insured to act as its agent.
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Statutory Notes and Related Subsidiaries
Effective Date
Short Title
§8202. Regulation of nonadmitted insurance by insured's home State
(a) Home State authority
Except as otherwise provided in this section, the placement of nonadmitted insurance shall be subject to the statutory and regulatory requirements solely of the insured's home State.
(b) Broker licensing
No State other than an insured's home State may require a surplus lines broker to be licensed in order to sell, solicit, or negotiate nonadmitted insurance with respect to such insured.
(c) Enforcement provision
With respect to
(d) Workers' compensation exception
This section may not be construed to preempt any State law, rule, or regulation that restricts the placement of workers' compensation insurance or excess insurance for self-funded workers' compensation plans with a nonadmitted insurer.
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§8203. Participation in national producer database
After the expiration of the 2-year period beginning on July 21, 2010, a State may not collect any fees relating to licensing of an individual or entity as a surplus lines broker in the State unless the State has in effect at such time laws or regulations that provide for participation by the State in the national insurance producer database of the NAIC, or any other equivalent uniform national database, for the licensure of surplus lines brokers and the renewal of such licenses.
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§8204. Uniform standards for surplus lines eligibility
A State may not—
(1) impose eligibility requirements on, or otherwise establish eligibility criteria for, nonadmitted insurers domiciled in a United States jurisdiction, except in conformance with such requirements and criteria in sections 5A(2) and 5C(2)(a) of the Non-Admitted Insurance Model Act, unless the State has adopted nationwide uniform requirements, forms, and procedures developed in accordance with
(2) prohibit a surplus lines broker from placing nonadmitted insurance with, or procuring nonadmitted insurance from, a nonadmitted insurer domiciled outside the United States that is listed on the Quarterly Listing of Alien Insurers maintained by the International Insurers Department of the NAIC.
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§8205. Streamlined application for commercial purchasers
A surplus lines broker seeking to procure or place nonadmitted insurance in a State for an exempt commercial purchaser shall not be required to satisfy any State requirement to make a due diligence search to determine whether the full amount or type of insurance sought by such exempt commercial purchaser can be obtained from admitted insurers if—
(1) the broker procuring or placing the surplus lines insurance has disclosed to the exempt commercial purchaser that such insurance may or may not be available from the admitted market that may provide greater protection with more regulatory oversight; and
(2) the exempt commercial purchaser has subsequently requested in writing the broker to procure or place such insurance from a nonadmitted insurer.
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§8206. Definitions
For purposes of this subchapter, the following definitions shall apply:
(1) Admitted insurer
The term "admitted insurer" means, with respect to a State, an insurer licensed to engage in the business of insurance in such State.
(2) Affiliate
The term "affiliate" means, with respect to an insured, any entity that controls, is controlled by, or is under common control with the insured.
(3) Affiliated group
The term "affiliated group" means any group of entities that are all affiliated.
(4) Control
An entity has "control" over another entity if—
(A) the entity directly or indirectly or acting through 1 or more other persons owns, controls, or has the power to vote 25 percent or more of any class of voting securities of the other entity; or
(B) the entity controls in any manner the election of a majority of the directors or trustees of the other entity.
(5) Exempt commercial purchaser
The term "exempt commercial purchaser" means any person purchasing commercial insurance that, at the time of placement, meets the following requirements:
(A) The person employs or retains a qualified risk manager to negotiate insurance coverage.
(B) The person has paid aggregate nationwide commercial property and casualty insurance premiums in excess of $100,000 in the immediately preceding 12 months.
(C)(i) The person meets at least 1 of the following criteria:
(I) The person possesses a net worth in excess of $20,000,000, as such amount is adjusted pursuant to clause (ii).
(II) The person generates annual revenues in excess of $50,000,000, as such amount is adjusted pursuant to clause (ii).
(III) The person employs more than 500 full-time or full-time equivalent employees per individual insured or is a member of an affiliated group employing more than 1,000 employees in the aggregate.
(IV) The person is a not-for-profit organization or public entity generating annual budgeted expenditures of at least $30,000,000, as such amount is adjusted pursuant to clause (ii).
(V) The person is a municipality with a population in excess of 50,000 persons.
(ii) Effective on the fifth January 1 occurring after July 21, 2010, and each fifth January 1 occurring thereafter, the amounts in subclauses (I), (II), and (IV) of clause (i) shall be adjusted to reflect the percentage change for such 5-year period in the Consumer Price Index for All Urban Consumers published by the Bureau of Labor Statistics of the Department of Labor.
(6) Home State
(A) In general
Except as provided in subparagraph (B), the term "home State" means, with respect to an insured—
(i) the State in which an insured maintains its principal place of business or, in the case of an individual, the individual's principal residence; or
(ii) if 100 percent of the insured risk is located out of the State referred to in clause (i), the State to which the greatest percentage of the insured's taxable premium for that insurance contract is allocated.
(B) Affiliated groups
If more than 1 insured from an affiliated group are named insureds on a single nonadmitted insurance contract, the term "home State" means the home State, as determined pursuant to subparagraph (A), of the member of the affiliated group that has the largest percentage of premium attributed to it under such insurance contract.
(7) Independently procured insurance
The term "independently procured insurance" means insurance procured directly by an insured from a nonadmitted insurer.
(8) NAIC
The term "NAIC" means the National Association of Insurance Commissioners or any successor entity.
(9) Nonadmitted insurance
The term "nonadmitted insurance" means any property and casualty insurance permitted to be placed directly or through a surplus lines broker with a nonadmitted insurer eligible to accept such insurance.
(10) Non-Admitted Insurance Model Act
The term "Non-Admitted Insurance Model Act" means the provisions of the Non-Admitted Insurance Model Act, as adopted by the NAIC on August 3, 1994, and amended on September 30, 1996, December 6, 1997, October 2, 1999, and June 8, 2002.
(11) Nonadmitted insurer
The term "nonadmitted insurer"—
(A) means, with respect to a State, an insurer not licensed to engage in the business of insurance in such State; but
(B) does not include a risk retention group, as that term is defined in
(12) Premium tax
The term "premium tax" means, with respect to surplus lines or independently procured insurance coverage, any tax, fee, assessment, or other charge imposed by a government entity directly or indirectly based on any payment made as consideration for an insurance contract for such insurance, including premium deposits, assessments, registration fees, and any other compensation given in consideration for a contract of insurance.
(13) Qualified risk manager
The term "qualified risk manager" means, with respect to a policyholder of commercial insurance, a person who meets all of the following requirements:
(A) The person is an employee of, or third-party consultant retained by, the commercial policyholder.
(B) The person provides skilled services in loss prevention, loss reduction, or risk and insurance coverage analysis, and purchase of insurance.
(C) The person—
(i)(I) has a bachelor's degree or higher from an accredited college or university in risk management, business administration, finance, economics, or any other field determined by a State insurance commissioner or other State regulatory official or entity to demonstrate minimum competence in risk management; and
(II)(aa) has 3 years of experience in risk financing, claims administration, loss prevention, risk and insurance analysis, or purchasing commercial lines of insurance; or
(bb) has—
(AA) a designation as a Chartered Property and Casualty Underwriter (in this subparagraph referred to as "CPCU") issued by the American Institute for CPCU/Insurance Institute of America;
(BB) a designation as an Associate in Risk Management (ARM) issued by the American Institute for CPCU/Insurance Institute of America;
(CC) a designation as Certified Risk Manager (CRM) issued by the National Alliance for Insurance Education & Research;
(DD) a designation as a RIMS Fellow (RF) issued by the Global Risk Management Institute; or
(EE) any other designation, certification, or license determined by a State insurance commissioner or other State insurance regulatory official or entity to demonstrate minimum competency in risk management;
(ii)(I) has at least 7 years of experience in risk financing, claims administration, loss prevention, risk and insurance coverage analysis, or purchasing commercial lines of insurance; and
(II) has any 1 of the designations specified in subitems (AA) through (EE) of clause (i)(II)(bb);
(iii) has at least 10 years of experience in risk financing, claims administration, loss prevention, risk and insurance coverage analysis, or purchasing commercial lines of insurance; or
(iv) has a graduate degree from an accredited college or university in risk management, business administration, finance, economics, or any other field determined by a State insurance commissioner or other State regulatory official or entity to demonstrate minimum competence in risk management.
(14) Reinsurance
The term "reinsurance" means the assumption by an insurer of all or part of a risk undertaken originally by another insurer.
(15) Surplus lines broker
The term "surplus lines broker" means an individual, firm, or corporation which is licensed in a State to sell, solicit, or negotiate insurance on properties, risks, or exposures located or to be performed in a State with nonadmitted insurers.
(16) State
The term "State" includes any State of the United States, the District of Columbia, the Commonwealth of Puerto Rico, Guam, the Northern Mariana Islands, the Virgin Islands, and American Samoa.
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Statutory Notes and Related Subsidiaries
Definitions
For definitions of terms used in this section, see
SUBCHAPTER II—REINSURANCE
§8221. Regulation of credit for reinsurance and reinsurance agreements
(a) Credit for reinsurance
If the State of domicile of a ceding insurer is an NAIC-accredited State, or has financial solvency requirements substantially similar to the requirements necessary for NAIC accreditation, and recognizes credit for reinsurance for the insurer's ceded risk, then no other State may deny such credit for reinsurance.
(b) Additional preemption of extraterritorial application of State law
In addition to the application of subsection (a), all laws, regulations, provisions, or other actions of a State that is not the domiciliary State of the ceding insurer, except those with respect to taxes and assessments on insurance companies or insurance income, are preempted to the extent that they—
(1) restrict or eliminate the rights of the ceding insurer or the assuming insurer to resolve disputes pursuant to contractual arbitration to the extent such contractual provision is not inconsistent with the provisions of title 9;
(2) require that a certain State's law shall govern the reinsurance contract, disputes arising from the reinsurance contract, or requirements of the reinsurance contract;
(3) attempt to enforce a reinsurance contract on terms different than those set forth in the reinsurance contract, to the extent that the terms are not inconsistent with this subchapter; or
(4) otherwise apply the laws of the State to reinsurance agreements of ceding insurers not domiciled in that State.
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§8222. Regulation of reinsurer solvency
(a) Domiciliary State regulation
If the State of domicile of a reinsurer is an NAIC-accredited State or has financial solvency requirements substantially similar to the requirements necessary for NAIC accreditation, such State shall be solely responsible for regulating the financial solvency of the reinsurer.
(b) Nondomiciliary States
(1) Limitation on financial information requirements
If the State of domicile of a reinsurer is an NAIC-accredited State or has financial solvency requirements substantially similar to the requirements necessary for NAIC accreditation, no other State may require the reinsurer to provide any additional financial information other than the information the reinsurer is required to file with its domiciliary State.
(2) Receipt of information
No provision of this section shall be construed as preventing or prohibiting a State that is not the State of domicile of a reinsurer from receiving a copy of any financial statement filed with its domiciliary State.
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§8223. Definitions
For purposes of this subchapter, the following definitions shall apply:
(1) Ceding insurer
The term "ceding insurer" means an insurer that purchases reinsurance.
(2) Domiciliary State
The terms "State of domicile" and "domiciliary State" mean, with respect to an insurer or reinsurer, the State in which the insurer or reinsurer is incorporated or entered through, and licensed.
(3) NAIC
The term "NAIC" means the National Association of Insurance Commissioners or any successor entity.
(4) Reinsurance
The term "reinsurance" means the assumption by an insurer of all or part of a risk undertaken originally by another insurer.
(5) Reinsurer
(A) In general
The term "reinsurer" means an insurer to the extent that the insurer—
(i) is principally engaged in the business of reinsurance;
(ii) does not conduct significant amounts of direct insurance as a percentage of its net premiums; and
(iii) is not engaged in an ongoing basis in the business of soliciting direct insurance.
(B) Determination
A determination of whether an insurer is a reinsurer shall be made under the laws of the State of domicile in accordance with this paragraph.
(6) State
The term "State" includes any State of the United States, the District of Columbia, the Commonwealth of Puerto Rico, Guam, the Northern Mariana Islands, the Virgin Islands, and American Samoa.
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SUBCHAPTER III—RULE OF CONSTRUCTION
§8231. Rule of construction
Nothing in this chapter or the amendments made by this subtitle 1 shall be construed to modify, impair, or supersede the application of the antitrust laws. Any implied or actual conflict between this chapter and any amendments to this chapter and the antitrust laws shall be resolved in favor of the operation of the antitrust laws.
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Editorial Notes
References in Text
This subtitle, referred to in text, is subtitle B (§§511–542) of title V of
1 See References in Text note below.
§8232. Severability
If any section or subsection of this chapter, or any application of such provision to any person or circumstance, is held to be unconstitutional, the remainder of this chapter, and the application of the provision to any other person or circumstance, shall not be affected.
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