(a)  This chapter sets forth requirements to be met for a licensed ceding insurer to receive credit for reinsurance in its financial statements. This chapter specifies the conditions which shall be met by an unlicensed reinsurer to be considered by the Commissioner for inclusion on a list of qualified reinsurers published and periodically reviewed by the Commissioner, as well as, the requirements for receiving reinsurance credit for joint underwriting or joint reinsurance pooling arrangements and for reinsurance with alien nonaffiliated reinsurers which write no primary coverages in the United States.

 The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise:

   Accredited state—A state which is accredited by NAIC for compliance with the NAIC Financial Regulation Standards or successor standards.

   Act—The Insurance Company Law of 1921 (40 P. S. § §  341—991).

   Alien insurer—An insurer incorporated or organized under the laws of a foreign nation or of a province or territory other than a state of the United States, the Commonwealth of Puerto Rico or the District of Columbia.

   Commissioner—The Insurance Commissioner of the Commonwealth.

   Department—The Insurance Department of the Commonwealth.

   Foreign insurer—An insurer, other than an alien insurer, not incorporated or organized under the laws of the Commonwealth. For purposes of this chapter, the term also includes a United States branch of an alien assuming insurer which branch is not entered through and licensed to transact insurance or reinsurance in this Commonwealth.

   NAIC—National Association of Insurance Commissioners.

   Qualified United States financial institution—

     (i)   An institution which meets the following qualifications. The institution:

       (A)   Is organized or, in the case of a United States office of a foreign banking organization, licensed, under the laws of the United States or a state thereof.

       (B)   Is regulated, supervised and examined by Federal or state authorities having regulatory authority over banks and trust companies.

       (C)   Has been determined by either the Commissioner or the Securities Valuation Office of the NAIC or a successor thereto to meet the standards of financial condition and standing considered necessary and appropriate to regulate the quality of financial institutions whose letters of credit will be acceptable to the Commissioner.

     (ii)   For purposes of specifying institutions that are eligible to act as a fiduciary of a trust, an institution that meets the following qualifications. The institution:

       (A)   Is organized, or in the case of a United States branch or agency office of a foreign banking organization, licensed, under the laws of the United States or a state thereof and has been granted authority to operate with fiduciary powers.

 A licensed domestic ceding insurer will be allowed credit for reinsurance as either an asset or a deduction from liability on account of reinsurance ceded only when the reinsurer meets the requirements of this section or as otherwise provided in § §  161.7 and 161.8 (relating to credit for joint underwriting or pooling arrangements; and credit for reinsurance ceded to alien nonaffiliated insurers which write no primary coverages in the United States).

   (1)  Credit will be allowed when the reinsurance is ceded to an assuming insurer which is licensed to transact insurance or reinsurance in this Commonwealth.

   (2)  Credit will be allowed when the reinsurance is ceded to an assuming foreign insurer which has met the conditions specified in this paragraph and has been deemed to be a qualified reinsurer by the Commissioner. To be considered for qualification, an assuming foreign insurer shall meet the following conditions. The insurer shall:

     (i)   File evidence of its submission to the Commonwealth’s jurisdiction with the Commissioner.

     (ii)   Submit to the Commonwealth’s authority to examine its books and records.

     (iii)   Be licensed to transact insurance or reinsurance in at least one state, or in the case of a United States branch of an alien assuming insurer be entered through and licensed to transact insurance or reinsurance in at least one state. After 1994, one of the states in which the insurer is licensed shall be an accredited state.

     (iv)   File with the application for qualification and annually thereafter a copy of its annual statement filed with the insurance department of its state of domicile and a copy of its most recent audited financial statement.

     (v)   Maintain a surplus as regards policyholders in an amount which is not less than $20 million.

     (vi)   Cede no more than 50% of its premiums to assuming insurers that are neither licensed nor qualified reinsurers in this Commonwealth.

   (3)  Credit will be allowed when the reinsurance is ceded to an assuming alien insurer which has met the conditions specified in this paragraph and has been deemed to be a qualified reinsurer by the Commissioner. To be considered for qualification, an assuming alien insurer shall meet the following conditions. The insurer shall:

     (i)   File with the Commissioner evidence of its submission to the Commonwealth’s jurisdiction.

     (ii)   Submit to the Commonwealth’s authority to examine its books and records.

     (iii)   File with the application for qualification and annually thereafter substantially the same information as that required to be reported on the NAIC annual statement blank by licensed insurers.

     (iv)   Be listed on the Non-Admitted Insurers Listing published by the Non-Admitted Insurers Information Office of the NAIC, or a successor list.

     (v)   File with the application for qualification and annually thereafter details on the soundness of its ceded reinsurance program, including the identity, domicile and premium volume for each retrocessionaire when the amount of reinsurance premium ceded is greater than or equal to $50,000. If the insurer demonstrates to the Commissioner’s satisfaction its inability to provide the requested detail with respect to individual retrocessionaires because of its method of operation, the Commissioner will consider the acceptability of alternative information pertaining to the soundness of the insurer’s ceded reinsurance program.

     (vi)   Agree to the requirements of this subparagraph in the reinsurance agreements. This subparagraph is not intended to conflict with or override the obligation of the parties to a reinsurance agreement to arbitrate their disputes, if an obligation is created in the agreement.

       (A)   In the event of the failure of the assuming insurer to perform its obligations under the terms of the reinsurance agreement, the assuming insurer shall at the request of the ceding insurer:

         (I)   Submit to the jurisdiction of a court of competent jurisdiction in a state of the United States.

         (II)   Comply with the requirements necessary to give the court jurisdiction.

         (III)   Abide by the final decision of the court or of an appellate court in the event of an appeal.

       (B)   The assuming insurer shall designate a person as its true and lawful agent upon whom may be served a lawful process in an action, suit or proceeding instituted by or on behalf of the ceding company.

     (vii)   Maintain a trust fund in a qualified United States financial institution, for the payment of valid claims of its United States policyholders and ceding insurers, their assigns and successors in interest.

       (A)   In the case of a single assuming insurer, the trust shall consist of a trusteed account in an amount not less than the assuming insurer’s liabilities attributable to business directly written or assumed in the United States. In addition, the assuming insurer shall maintain a trusteed surplus of at least $20 million.

       (B)   In the case of a group of insurers which includes unincorporated individual insurers, the trust shall consist of a trusteed account not less than the group’s aggregate liabilities attributable to business directly written or assumed in the United States. In addition, the group shall maintain a trusteed surplus of which $100 million shall be held jointly for the benefit of United States ceding insurers of any member of the group. The group shall make available to the Commissioner an annual certification of the solvency of each insurer by the group’s domiciliary regulator and its independent public accountants.

   (4)  Credit will be allowed when the reinsurance is ceded to a group of incorporated alien insurers under common administration if the group has met the conditions specified in this subsection and has been deemed to be a qualified reinsurer by the Commissioner. To be considered for qualification, the group shall meet the following conditions. The group shall:

     (i)   Have continuously transacted an insurance business outside the United States for at least 3 years immediately prior to applying for qualification.

     (ii)   File with the Commissioner evidence of its submission to the Commonwealth’s jurisdiction.

     (iii)   File with the application for qualification and annually thereafter substantially the same information as that required to be reported on the NAIC annual statement blank by licensed insurers.

     (iv)   Submit to the Commonwealth’s authority to examine its books and records and bear the expense of the examination.

     (v)   File with the application for qualification and annually thereafter details on the soundness of its ceded reinsurance program, including the identity, domicile and premium volume for each retrocessionaire when the amount of reinsurance premium ceded is greater than or equal to $50,000. If the insurer demonstrates to the Commissioner’s satisfaction its inability to provide the requested detail with respect to individual retrocessionaires because of its method of operation, the Commissioner will consider the acceptability of alternative information pertaining to the soundness of the insurer’s ceded reinsurance program.

     (vi)   Maintain an aggregate policyholder’s surplus of at least $10 billion, calculated and reported in substantially the same manner as prescribed by the annual statement instructions and Accounting Practices and Procedures Manual of the NAIC.

     (vii)   Maintain a trust fund in a qualified United States financial institution for the payment of valid claims of its United States policyholders and ceding insurers, their assigns and successors in interest. The trust shall be in an amount not less than the group’s several liabilities attributable to business ceded by United States ceding insurers to any member of the group pursuant to reinsurance contracts issued in the name of the group. The group shall maintain a joint trusteed surplus of which $100 million shall be held jointly for the benefit of United States ceding insurers of any member of the group as additional security for the liabilities. Each member of the group shall make available to the Commissioner an annual certification of the member’s solvency by the member’s domiciliary regulator and its independent public accountant.

     (viii)   Agree to the requirements of this subparagraph in the reinsurance agreements. This subparagraph is not intended to conflict with or override the obligation of the parties to a reinsurance agreement to arbitrate their disputes, if an obligation is created in the agreement.

       (A)   In the event of the failure of the assuming insurer to perform its obligations under the terms of the reinsurance agreement, at the request of the ceding insurer the assuming insurer shall:

         (I)   Submit to the jurisdiction of a court of competent jurisdiction in a state of the United States.

         (II)   Comply with requirements necessary to give the court jurisdiction.

         (III)   Abide by the final decision of the court or of an appellate court in the event of an appeal.

       (B)   The assuming insurer shall designate a person as its true and lawful agent upon whom may be served a lawful process in an action, suit or proceeding instituted by or on behalf of the ceding company.

 (a)  A trust required under §  161.3(3) or (4) (relating to credit for reinsurance) shall be established and maintained in a form approved by the Commissioner. The trust instrument shall provide that contested claims shall be valid and enforceable out of funds in trust to the extent remaining unsatisfied 30 days after entry of the final order of a court of competent jurisdiction in the United States. The trust shall vest legal title to its assets in the trustees of the trust for the benefit of the grantor’s United States policyholders and ceding insurers, their assigns and successors in interest. The trust and the assuming insurer shall be subject to examination as determined by the Commissioner. The trust described in this section shall remain in effect for as long as the assuming insurer or a member or former member of a group of insurers shall have outstanding obligations due under reinsurance agreements subject to the trust.

 (b)  By February 28 of each year, the trustees of a trust established to comply with §  161.3(3) or (4) shall report to the Commissioner in writing setting forth the balance of the trust and listing the trust’s investments at the preceding year’s end and shall certify the date of termination of the trust, if so planned, or certify that the trust will not expire prior to the next following December 31. The assuming insurer shall annually submit a financial exhibit which quantifies the liabilities attributable to business directly written or assumed in the United States.

 (a)  Applications for designation as a qualified reinsurer shall be submitted by the assuming insurer and shall be accompanied by a properly executed Form QR-1 as provided in Appendix A (relating to Form QR-1 Certificate of Assuming Insurer).

 (b)  If the Department is satisfied that an assuming insurer has met the conditions for qualification and determines to designate the assuming insurer as a qualified reinsurer, the Department will issue written notice of the designation to the assuming insurer and include the insurer on a list of qualified reinsurers published and periodically reviewed by the Commissioner.

 (a)  If the Department determines that a qualified reinsurer has failed to continue to meet one or more of the conditions for qualification, the Commissioner may upon written notice and hearing revoke its qualification and remove it from the published list of qualified reinsurers.

 (b)  If an assuming insurer’s qualification has been revoked by the Commissioner after notice, a ceding insurer shall be allowed to continue to take credit for reinsurance ceded to the assuming insurer until the end of the contract year or 1 year from the date of the revocation, whichever time is less, but in no event less than 6 months.

 (c)  If a modification, amendment or revision to an existing reinsurance agreement, which increases the risk reinsured, takes place after an assuming insurer’s qualification has been revoked, credit will not be allowed a ceding insurer for additional risks ceded after the date and directly resulting from the modification, amendment or revision.

 (a)  Domestic ceding insurers which are participating in a joint underwriting or joint reinsurance pooling arrangement, in which the insurers participating in the arrangement are not qualified reinsurers, may request specific approval by the Commissioner to take reserve credit for reinsurance ceded under those arrangements.

 (b)  The Commissioner may specify what information is required to be filed with respect to the participants in the arrangement to determine whether credit shall be allowed.

 (c)  In determining whether credit will be allowed under this section, the Commissioner will consider:

   (1)  The amount of risk ceded under the arrangement to reinsurers which are either qualified reinsurers under this chapter or which are licensed to transact insurance or reinsurance in this State.

   (2)  The financial condition and state of domicile of the participants.

   (3)  The length of time the agreement has been in force and the effect of the agreement on the participants.

   (4)  The type of risk being reinsured by the pool and the maximum per risk exposure of the pool.

   (5)  The management and control of the operations of the pool.

   (6)  Other information the Commissioner may prescribe.

 (a)  This section applies to reinsurance ceded by a domestic ceding insurer to an alien nonaffiliated assuming insurer which:

   (1)  Writes no primary coverages in the United States and thereby is not eligible for consideration for inclusion on the Non-Admitted Insurers Listing published by the Non-Admitted Insurers Information Office of the NAIC, or a successor list.

   (2)  Has not provided security in full for the ceded recoverables under section 318.1(b) of the act (40 P. S. §  442.1).

   (3)  Is authorized in its domiciliary jurisdiction to assume the kinds of insurance ceded thereto.

 (b)  When a domestic ceding insurer cedes reinsurance to an alien nonaffiliated assuming insurer which meets the criteria in subsection (a), referred to in this section as an ‘‘unauthorized alien assuming insurer,’’ credit will be allowed for the amount of unsecured ceded reinsurance recoverables by a deduction from liability, not to exceed in the aggregate 10% of the ceding insurer’s policyholders surplus, only when the following conditions are met:

   (1)  The ceding insurer establishes an unauthorized reinsurance reserve which is a percentage of the unsecured ceded reinsurance recoverable from the unauthorized alien assuming insurers for which credit for reinsurance is taken as permitted in this section. The percentage shall be equal to the greatest of one of the following:

     (i)   The largest percentage of uncollectible ceded unauthorized reinsurance experienced by the ceding insurer during any one of the last 5 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 alien assuming insurers, over 90 days past due and not in dispute, by the amount of reinsurance recoverables due and payable to the ceding insurer and actually collected by the ceding insurer for that same calendar year from unauthorized alien assuming insurers.

     (ii)   The largest percentage of unearned premiums ceded by the ceding insurer to any one unauthorized alien assuming insurer as measured at the end of the last previous calendar year by dividing the amount of the calendar year-end unearned premium reserve ceded to each unauthorized alien assuming insurer by the total amount of the unearned premium reserve ceded to unauthorized alien assuming insurers.

     (iii)   Fifteen percent.

   (2)  The unauthorized alien assuming insurer provides to and maintains authorized security with the ceding insurer for ceded reinsurance recoverables under section 319.1(b) of the act (40 P. S. §  442.1(b)) in an amount at least equal to 110% 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.

   (3)  The unauthorized alien assuming insurer maintains adjusted shareholder funds of at least $20 million.

   (4)  The unauthorized alien assuming insurer maintains an acceptable level of premium writing in relation to its adjusted shareholder funds that does not exceed a net written premium to adjusted shareholder funds ratio of 3:1.

   (5)  The unauthorized alien assuming insurer is included in the Insurance Solvency International (ISI) classic database and does not fail more than four of the nine ISI tests.

   (6)  The ceding insurer limits the maximum amount of liability for loss with respect to any one risk ceded to any one unauthorized alien assuming insurer to 10% of the unauthorized alien assuming insurer’s adjusted shareholder funds and limits the aggregate premium cession to the assuming insurer to 20% of the unauthorized alien assuming insurer’s adjusted shareholder funds.

   (7)  The reinsurance agreements between the unauthorized alien assuming insurer and the ceding insurer contain:

     (i)   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 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.

     (ii)   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.

     (iii)   An insolvency clause as provided for in section 319.1(d) of the act.

   (8)  The unauthorized alien assuming insurer substantially meets other reasonable standards of solvency as may be established from time to time by the Commissioner.

   (9)  The credit claimed for reinsurance recoverable under this section is supported by proper and appropriate records maintained by the ceding insurer as to:

     (i)   The solvency of the unauthorized alien assuming insurer, including ISI reports and test results.

     (ii)   Documentation necessary to demonstrate for purposes of financial examinations conducted by the Department that the conditions of this section have been met for reserve credit taken under this section.

   (10)  The ceding insurer files with the Department annually within 30 days of the filing by the ceding insurer of its annual statutory financial statement a ceded reinsurance report, as prescribed by the Commissioner, with respect to the credit for reinsurance taken under this section. The report shall include a certification by the chief financial officer of the ceding insurer that the credit for reinsurance meets the requirements of this section.

   (11)  The ceding insurer promptly provides for the necessary increase in its ceded reserves with respect to applicable reinsurance recoverables—that is, it eliminates the previous credit taken by the ceding insurer under this section for that unauthorized alien assuming insurer—and shall give immediate notice to the Department if:

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

     (ii)   There is material indication or evidence that an unauthorized alien assuming insurer for which credit for reinsurance was taken under this section is failing to meet the standards in this section.

 (c)  For purposes of subsection (b)(11)(i), a claim in dispute is one in which one of the following applies:

   (1)  The ceding insurer or unauthorized alien assuming insurer has instituted arbitration or litigation proceedings in good faith over the issue of the recoverability of the loss or allocated loss adjustment expense.

   (2)  The ceding insurer has received a formal written communication from the unauthorized alien assuming insurer, within a time period specified in the reinsurance agreement, denying the validity of coverage for the loss or allocated loss adjustment expense.

 (d)  As used in this section, adjusted shareholder funds shall be as reported by ISI or other recognized National rating agency as the Commissioner may, from time to time, approve for purposes of compliance with this section.

 (e)  Subsection (b)(2)—(5) and (7) 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.

 (a)  Credit will be allowed when the reinsurance is ceded to an assuming insurer not meeting the requirements of this section or §  161.3 (relating to credit for reinsurance) with respect to the insurance of risks located in jurisdictions if the reinsurance is required by applicable law or regulation of that jurisdiction. As used in this section, ‘‘jurisdiction’’ means a state, district or territory of the United States and a lawful national government.

 (b)  An insurer which has been designated as a qualified reinsurer prior to August 28, 1993, will have until August 28, 1995, to achieve compliance with this chapter or have its qualification revoked.

 (c)  Credit for reinsurance will be allowed a foreign licensed ceding insurer as permitted by the laws or regulations of that insurer’s state of domicile if the laws or regulations are substantially similar to the NAIC model law relating to credit for reinsurance. In the absence of substantially similar laws or regulations, credit for reinsurance will be allowed under the requirements of this chapter.

APPENDIX A

 FORM QR-1
CERTIFICATE OF ASSUMING INSURER

 I,

   for the adjudication of any issues arising out of the reinsurance agreement(s), agrees to comply with all requirements necessary to give such court jurisdiction, and will abide by the final decision of such court or any appellate court in the event of an appeal. Nothing in this paragraph constitutes or should be understood to constitute a waiver of Assuming Insurer’s rights to commence an action in any court of competent jurisdiction in the United States, to remove an action to a United States District Court, or to seek a transfer of a case to another court as permitted by the laws of the United States or of any state in the United States. This paragraph is not intended to conflict with or override the obligation of the parties to the reinsurance agreement(s) to arbitrate their disputes if such an obligation is created in the agreement(s).
2. Designates

   agent upon whom may be served any lawful process in any action, suit or proceeding arising out of the reinsurance agreement(s) instituted by or on behalf of the ceding insurer.
3. Submits to the authority of the Insurance Commissioner of the Commonwealth of Pennsylvania to examine its books and records and agrees to bear the expense of any such examination.

   This appendix cited in 31 Pa. Code §  161.5 (relating to determination of reinsurer qualification).