For other versions of this document, see http://wikileaks.org/wiki/CRS-RL34219 ------------------------------------------------------------------------------ Order Code RL34219 Terrorism Risk Insurance Legislation in 2007: Issue Summary and Side-by-Side Updated January 15, 2008 Baird Webel Analyst in Economics Government and Finance Division Terrorism Risk Insurance Legislation in 2007: Issue Summary and Side-by-Side Summary Prior to the September 11, 2001 terrorist attacks, insurance covering terrorism losses was normally included in general insurance policies without additional cost to the policyholders. Following the attacks, both primary insurers and reinsurers pulled back from offering terrorism coverage. Because insurance is required for a variety of economic transactions, it was feared that a lack of insurance against terrorism loss would have a wider economic impact. Congress responded to the disruption in the insurance market by passing the Terrorism Risk Insurance Act of 2002 (TRIA, P.L. 107-297, 116 Stat. 2322). TRIA created a temporary program, expiring at the end of 2005, to calm the insurance markets through a government backstop for terrorism losses, and to give the industry time to gather the data and create the structures and capacity necessary for private insurance to cover terrorism risk. From 2002 to 2005, terrorism insurance became widely available and largely affordable, and the insurance industry greatly expanded its financial capacity. There was, however, little apparent success on a longer term private solution and fears persisted about wider economic consequences if insurance were not available. Congress responded to the expiration of TRIA with the passage of the Terrorism Risk Insurance Extension Act (TRIEA, P.L. 109-144, 119 Stat. 2660). TRIEA extended the TRIA program until the end of 2007 while increasing the private sector exposure to terrorism risk. The two years under the extended TRIA program were very similar to the three years under the first act. The market for terrorism insurance improved, but doubts remained as to capacity of the private sector to finance large-scale terrorism risk in the United States, as well as whether terrorism risk can be considered an insurable event at all. In response, the House passed H.R. 2761 in the 110th Congress, which would have extended the TRIA program 15 years and made substantial other changes. The Senate also passed H.R. 2761, after amending it with language from S. 2285, which would have extended TRIA seven years while making more limited changes to the underlying law. The House then passed H.R. 4299, which contained the language of the Senate-passed H.R. 2761 plus some of the provisions from the previous version of H.R. 2761. The differences between the House and Senate bills included the inclusion of group life insurance, restrictions on life insurers' use of travel in underwriting, lowering the deductible and trigger after a large terrorist attack, and the reduction of the program trigger to $50 million. The Senate, however, did not act on H.R. 4299, and the House ultimately agreed to the amended version of H.R. 2761 that was previously passed by the Senate. The President signed this bill into law on December 26, 2007. This report briefly outlines the issues involved with terrorism insurance and includes a side-by-side of the previous TRIA law, the two House TRIA-extension bills, and the Senate bill that was ultimately signed by the President. It will not be updated. For more complete information on the issue, please see CRS Report RL34025, Terrorism Risk Insurance: Issue Analysis and Legislation, by Baird Webel. Contents Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Legislative Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Terrorism Risk Insurance Revision and Extension Act of 2007 (TRIREA, H.R. 2761) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Administration Reaction to H.R. 2761 . . . . . . . . . . . . . . . . . . . . . . . . . 5 Terrorism Risk Insurance Program Reauthorization Act of 2007 (TRIPRA, S. 2285) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Administration Reaction to the Senate Action . . . . . . . . . . . . . . . . . . . . 7 Terrorism Risk Insurance Program Reauthorization Act of 2007 (H.R. 4299) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Final Passage and Enactment of TRIA-Extension Legislation . . . . . . . . . . . 8 List of Tables Table 1. Terrorism Risk Insurance Side-by Side: Previous Law, H.R. 2761 (as passed by the House), H.R. 4299 (as passed by the House), and P.L. 110-160. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Terrorism Risk Insurance Legislation in 2007: Issue Summary and Side-by-Side Introduction Prior to the September 11, 2001 terrorist attacks, insurance covering terrorism losses was normally included in general insurance policies without a specific premium being paid for this coverage. The attacks, and the more than $30 billion in insured losses that resulted from them, caused a rethinking of the possibilities of future terrorist attacks. In response to the new appreciation of the threat and the perceived inability to calculate the probability of loss and gather the loss data critical for pricing insurance, both primary insurers and reinsurers pulled back from offering terrorism coverage. Many argued that terrorism risk is essentially uninsurable by the private market due to the uncertainty and potentially massive losses involved. Because insurance is required for a variety of economic transactions, many feared that a lack of insurance against terrorism loss would have wider economic impact, particularly on large-scale developments in urban areas that would be tempting targets for terrorism. Congress responded to the disruption in the insurance market by passing the Terrorism Risk Insurance Act of 2002 (TRIA)1, which was signed by the President in November 2002. TRIA created the Terrorism Risk Insurance Program,2 which was enacted as a temporary program, expiring at the end of 2005, to calm the insurance markets through a government backstop for terrorism losses and give the private industry time to gather the data and create the structures and capacity necessary for private insurance to cover terrorism risk. Terrorism insurance became widely available under TRIA, and the insurance industry greatly expanded its financial capacity in the three years from 2002 to 2005. Less progress, however, was made on creating terrorism models that are sufficiently robust for insurers to return to offering widespread terrorism coverage without a government backstop, and practically no progress was made on a private pooling mechanism to cover terrorism risk. Again fearing economic disruption from the absence of terrorism insurance, Congress passed, and the President signed, the 1 P.L. 107-297, 116 Stat. 2322. See CRS Report RS21444, The Terrorism Risk Insurance Act of 2002: A Summary of Provisions, by Baird Webel. 2 The original statute specifies the name as the "Terrorism Insurance Program" while the Department of Treasury entitles it the "Terrorism Risk Insurance Program" (TRIP) and this name has become more generally accepted. CRS-2 Terrorism Risk Insurance Extension Act of 2005 (TRIEA)3 in December 2005. TRIEA extended the program for two years while increasing the private sector exposure under the program. The two years' experience under TRIEA proved to be similar to the three under TRIA. During this time, terrorism risk insurance was available, pricing was moderate, and takeup rates slowly increased. Some additional progress was made on a larger scale private solution and some private groups outlined proposals for such a solution.4 There was, however, little concrete movement towards adopting such proposals. The industry focus seemed to be on promoting the possibility of another extension of the TRIA program. Some see this experience as proof of the argument that the private market will never be able to offer insurance to cover terrorism risk and continue to see the possibility of wider economic consequences if terrorism insurance again is unavailable. Others, notably the U.S. Treasury Department, respond that TRIA itself is retarding the growth of this private market by offering essentially free reinsurance against terrorism risk. Thus, it should be allowed to expire, or at least be reduced from its current form. Legislative Action In the first session of the 110th Congress, three different bills addressing the impending expiration of the TRIA program saw committee or floor action, two in the House and one in the Senate. As was the case in the TRIA extension debate in 2005, the House bills were more significant revisions and expansions of the TRIA program, whereas the Senate bill had a narrower focus -- extending the program while making more limited changes. Also as in 2005, the Administration generally supported the Senate's approach. Terrorism Risk Insurance Revision and Extension Act of 2007 (TRIREA, H.R. 2761) Representative Michael Capuano, along with 23 cosponsors, introduced H.R. 2761 on June 18, 2007. Referred to the Financial Services Committee, the bill was the subject of a hearing in that committee's Subcommittee on Capital Markets, Insurance, and Government Sponsored Enterprises on June 21, 2007. H.R. 2761 as introduced would have extended and revised the current structure of the Terrorism Risk Insurance Program, adding significant new elements to this 3 P.L. 109-144, 119 Stat. 2660. See CRS Report RL33177, Terrorism Risk Insurance Legislation in 2005: Issue Summary and Side-by-Side, by Baird Webel. 4 See, for example, the testimony of Edmund F. Kelly before a joint hearing of the House Financial Services Subcommittees on Capital Markets, Insurance, and Government Sponsored Enterprises and Oversight and Investigations on September 7, 2006, available at [http://financialservices.house.gov/media/pdf/092706efk.pdf], visited on Jan. 14, 2008. CRS-3 structure. Within the existing TRIA structure, the bill would have extended the program 10 years, to the end of 2017, while reducing the program trigger to $50 million and generally leaving the individual insurer deductibles and aggregate retention unchanged at 20% of direct earned premium and $27.5 billion, respectively. It also would have expanded the scope of TRIA by including domestic terrorism as a covered event, adding group life insurance as a covered line, and mandating that insurers make available coverage for nuclear, biological, chemical, and radiological (NCBR) terrorist events. Under the bill as introduced, group life insurance would have had a separate pool, with its own deductibles and recoupment amounts based on the amount of insurance at risk, rather than direct earned premiums. NCBR coverage would have had a lower (7.5%) deductible compared to non-NCBR terrorist events (20%). In addition, H.R. 2761 as introduced included so-called reset provisions, that would have lowered the program trigger and deductible thresholds for areas that have suffered past terrorist attacks or that suffer terrorist attacks in the future if the damage from the attacks exceeds $1 billion. Finally, the bill would have expanded the mandatory availability provisions to include restrictions on life insurers' ability to consider lawful international travel as a factor in underwriting decisions. H.R. 2761 was marked up by the House Financial Services Committee's Subcommittee on Insurance, Capital Markets and Government Sponsored Enterprises on July 24, 2007, and by the full committee on August 1, 2007.5 Substantial amendments were adopted at both markups. The subcommittee markup began with a complete substitute amendment by Chairman Kanjorski being adopted by voice vote. This substitute changed the NBCR provisions, delaying the make available provisions until 2009 and lowering the deductible to 3.5% with a 0.5% increase per year. It also included a requirement for biennial reporting on the TRIA program by the Treasury and changed the composition of the independent commission created by the bill to make recommendations on the program. Several amendments to reduce the 10-year extension of the program were rejected, as was one to require full recoupment of federal funds expended beyond the $27.5 billion aggregate retention amount in current law. Amendments adopted by the subcommittee included one by Representative Gary Ackerman to include the Secretary of Homeland Security in the certification of a terrorist attack under TRIA, and one by Representative Richard Baker to apply the lower trigger amount in the retrospective reset provisions to the entire country rather than just to the affected area. The full committee markup began with an amendment by Chairman Barney Frank making a number of technical changes and three primary substantive changes. First, Chairman Frank's amendment changed the reset provisions, removing the retrospective reset altogether and applying the prospective reset provisions to the entire country. Thus, if there were a future terrorist attack resulting in more than $1 billion in damages, the trigger would be reduced to $5 million and the insurer deductible would be reduced to 5% for those insurers suffering terrorism losses. Second, it included temporary preemptions from state rate and form approval laws for NBCR coverage mandated under the bill. Third, it would have established a 5 The full committee markup began on July 26, but H.R. 2761 was the last of a number of bills to be marked up. CRS-4 "terrorism buy down fund" in the U.S. Treasury, essentially allowing insurers to put aside reserves that would grow tax-free to cover losses from future terrorist attacks that are not reimbursed by TRIA. The U.S. Treasury could have also borrowed from this fund to cover the federal share of a future terrorist attack. The committee adopted a number of additional amendments, including: (1) an exemption for small insurers from the requirement to make NCBR coverage available; (2) the return of farmowners multiple peril as a TRIA-covered line; (3) a specific allowance for insurers to partner in meeting the requirement to make NCBR coverage available; (4) indexing various dollar amounts in the bill to an unspecified measure of inflation; (5) provision for a report by the Secretary of the Treasury in the event that the Secretary decides not to recoup expended federal funds beyond $27.5 billion; (6) extension of the program for 15 years, to the end of 2022; and (7) an increase in the post-reset deductible by 0.5% per year. The amended bill was forwarded to the full House by a vote of 49-20. The Congressional Budget Office (CBO) issued a cost estimate for H.R. 2761 on September 6, 2007. CBO found that the bill as reported would increase direct spending by $3.7 billion from 2008 to 2012 and $10.4 billion from 2008 to 2017. This spending would be offset by additional revenues of about $100 million from 2008 to 2012 and $2.0 billion from 2008 to 2017. Since the cost estimate found that an increase in the budget deficit, or decrease in surplus, would result from the bill, it appeared to fail to meet the requirements of the "pay-as-you-go" (PAYGO) rule adopted by the House at the beginning of the 110th Congress.6 In response to the PAYGO issues, the special rule (H.Res. 660) under which TRIREA was considered on the House floor included a self-executing amendment that inserted language into the underlying bill requiring passage by Congress of a joint resolution before any funds could be expended. H.Res. 660 provided for expedited consideration of this future resolution, including a waiver of all points of order against it and its consideration. This requirement for future congressional action introduced uncertainty to the TRIA program that did not exist before. It was unclear exactly how the insurance market might have reacted to this uncertainty, should this language have become law. H.R. 2761 was brought up on the House floor under H.Res. 660 on September 19, 2007. The rule made in order two floor amendments and a motion to recommit with instructions. The manager's amendment (H.Amdt. 801) by Chairman Barney Frank changed the bill to include the NBCR deductible in the reset provisions, modified the certification process for an NCBR attack, indexed the dollar amounts in the bill specifically to the Consumer Price Index for All Urban Consumers (CPI- U), and made a variety of technical and conforming changes. It passed on the House floor 426-1. The other amendment (H.Amdt. 802) was offered by Representative Steve Pearce. It would have changed the increase in the deductible under the post- attack reset provisions from 0.5% per year to 1% per year. This amendment failed by a vote of 194-230. The motion to recommit with instructions was offered by Representative David Drier and failed by a vote of 196-228. The House then passed 6 See CRS Report RL33850, The House's "Pay-As-You-Go" (PAYGO) Rule in the 110th Congress: A Brief Overview, by Robert Keith, for more information on PAYGO. CRS-5 the bill as amended by a vote of 312-110. H.R. 2761 was received in the Senate on September 20, 2007, read twice, and referred to the Committee on Banking, Housing, and Urban Affairs. To summarize, H.R. 2761 as passed by the House included provisions that would have made the following changes to the current Terrorism Risk Insurance Program: ! extended the TRIA program for 15 years, until the end of 2022; ! made spending by the program contingent on passage of a future joint resolution; ! added coverage for domestic terrorist acts in the program; ! added the Secretary of Homeland Security to the certification process; ! added group life insurance to the program with a separate set of retentions and deductibles; ! returned farmowners multiple peril as a covered line; ! reduced the general trigger to $50 million; ! required insurers to cover nuclear, biological, chemical, and radiological (NCBR) terrorist attacks starting in 2009; ! lowered insurer deductible for NCBR attacks to 3.5% immediately and then raised that number by 0.5% per year in the future; ! increased the federal share of NCBR losses from 85% to as high as 100% for attacks causing over $100 billion in losses; ! temporarily preempted state laws on rate and form filing for NCBR coverages; ! provided the possibility of relief from NBCR requirement to smaller insurers; ! reset individual insurer deductibles to 5% and the program trigger to $5 million in the aftermath of a future terrorist attack (or series of attacks) that causes more than $1 billion in damage. Deductible reset would have been only for insurers who suffer losses. ! increased the post-reset insurer deductibles by 0.5% per year; ! established a "Terrorism Buy-Down Fund" that would have essentially allowed insurers to put aside reserves that would grow tax-free to cover future losses that are not reimbursed by TRIA. The fund would also have been available to the Secretary of the Treasury to cover the federal share of TRIA losses. ! restricted life insurers' use of foreign travel as an underwriting tool; and ! indexed the dollar amounts in the program to future inflation. Administration Reaction to H.R. 2761. The Office of Management and Budget (OMB) released a Statement of Administration Policy on September 17, 2007, indicating that "if H.R. 2761 as reported were presented to the President, his senior advisors would recommend that he veto the bill."7 The Administration 7 See [http://www.whitehouse.gov/omb/legislative/sap/110-1/hr2761sap-r.pdf], visited on (continued...) CRS-6 objected to the length of term of the extension, as well as the increase in the federal role and the expansion of the scope of coverage. Terrorism Risk Insurance Program Reauthorization Act of 2007 (TRIPRA, S. 2285) The Senate Banking, Housing, and Urban Affairs Committee marked up this legislation as an original bill on October 17, 2007. While Senator Charles Schumer discussed possible amendments in the markup session, no amendments were voted on in committee. The unamended bill was ordered reported to the full Senate on a vote of 20-1. Chairman Christopher Dodd introduced the bill, numbered S. 2285, on November 1, 2007, and the committee report (S.Rept. 110-215) was issued the same day. TRIPRA as introduced was a relatively straightforward reauthorization of the existing TRIA program. The two primary changes to current law were to ! extend the program for seven years, until 2014; and ! add coverage for domestic terrorist attacks to the program. In addition, S. 2285 would have modified slightly the annual liability cap, and required the Secretary of the Treasury to promulgate regulations on determining payments, should losses exceed $100 billion rather than leaving this determination to a future Congress. The bill called for reports from the Government Accountability Office (GAO) on the possibility of insurance coverage for NCBR events (within one year) and on the affordability and availability of terrorism insurance in specific markets (within 180 days). Finally, the President's Working Group on Financial Markets was tasked to continue its analysis of the longer term availability and affordability of terrorism risk insurance, and to report on this subject in 2010 and 2013. CBO issued a cost estimate for S. 2285 on October 29, 2007. It found that the bill would increase direct spending by $3.1 billion from 2008 to 2012 and by $6.6 billion from 2008 to 2017. This spending would be offset by increased government receipts of $100 million from 2008 to 2012 and $1.5 billion from 2008 to 2017. This score caused similar PAYGO issues as those faced in the House.8 In response to these PAYGO issues, language was added to TRIPRA before it was considered on the Senate floor. This new language increased the total amount of the recoupment surcharge to 133% of the previous mandatory recoupment amount. It also increased the rate of repayment -- requiring that repayment be completed by September 30, 2012, for any attack before 2011, and that repayment be completed by September 30, 2017, for any attack after 2011. For any attack during 2011, 35% of 7 (...continued) Jan. 14, 2008. 8 See CRS Report RL31943, Budget Enforcement Procedures: Senate's Pay-As-You-Go (PAYGO) Rule, by Bill Heniff, Jr., for more information on the Senate PAYGO rule. CRS-7 the repayment must be completed by September 30, 2012, and 65% of repayment must be completed by September 30, 2017. It also removed the 3% limit on mandatory recoupment amounts. CBO issued a cost estimate for the amended version of S. 2285 on November 15, 2007. This estimate found that, while the expected amount of direct spending would not be affected, the offsetting government receipts would be increased. In total, CBO found the amended version would reduce budget deficits or increase surpluses by less than $50 million over the 5- and 10-year windows. Thus, the amended version would not face a point of order under the PAYGO rules. On November 16, 2006, the Senate took up the House-passed version of H.R. 2761, and amended it by unanimous consent with S.Amdt. 3800, which contained the language from the committee-passed S. 2285, plus the new language as scored by CBO. This amended version of H.R. 2761 was then passed by unanimous consent and the House was informed of the Senate action. At this time, however, the Senate did not request a conference with the House to reconcile the differences between the two versions of H.R. 2761. Administration Reaction to the Senate Action. No official Statement of Administration Policy was released on S. 2285 or the amended version of H.R. 2761. Treasury Secretary Henry M. Paulson, however, indicated in a letter that the Administration would be willing to accept the bill as it passed the Senate committee.9 Terrorism Risk Insurance Program Reauthorization Act of 2007 (H.R. 4299) With no conference committee to reconcile the versions of H.R. 2761, the House Rules Committee passed two rules (H.Res. 849 and H.Res. 862) to govern further consideration of TRIA-extension legislation. H.Res 849 provided for the consideration of the Senate-passed version of H.R. 2761 with one amendment made in order. H.Res. 862 provided for the consideration of a new bill (H.R. 4299), which was introduced by Chairman Barney Frank on December 6, 2007. H.R. 4299 consisted of the language of H.R. 2761 as passed by the Senate, plus the text of the amendment to H.R. 2761 that was made in order by H.Res. 849. The new language would have made the following changes to the Senate-passed bill: ! added coverage of group life insurance with a separate deductible, retention pool, recoupment amount, and policy surcharge amount; ! decreased the individual insurer deductible in 2008 to 5% for insurers suffering losses in terrorist attacks that exceed $1 billion, and then increase this amount by 0.5% per year after 2008; ! reset, after a $1 billion event, the trigger to $5 million, and the insurer deductible for insurers suffering losses to 5% with a 0.5% increase per year thereafter; 9 Relevant text of this letter was provided to CRS by the Department of the Treasury. This was also reported in the press. See [http://www.politico.com/news/stories/1007/6394.html], visited on Jan. 14, 2008. CRS-8 ! restricted life insurers' use of foreign travel as an underwriting tool; and ! reduced the program trigger to $50 million. The House considered H.R. 4299 under the provisions of H.Res. 862 on December 12, 2007. The bill passed on a vote of 303-116 and was forwarded to the Senate. Administration Reaction to H.R. 4299. OMB released a Statement of Administration Policy on the new House language on December 7, 2007. This statement reiterated administration support for the Senate-passed bill, and indicated the House additions to this bill would result in a veto recommendation from the President's senior advisors.10 Final Passage and Enactment of TRIA-Extension Legislation H.R. 4299 was referred to the Senate Banking, Housing, and Urban Affairs Committee on December 13, 2007. No action, however, was taken by the committee or the full Senate on this bill. On December 18, 2007, the House took up H.R. 2761 as previously amended by the Senate and passed this bill on a vote of 360-53. H.R. 2761 was signed by the President on December 26, 2007, becoming P.L. 110-160. P.L. 110-160 makes the following changes to the previous law: ! The TRIA program is extended for seven years, until 2014. ! Domestic terrorist attacks are covered by the program. ! The annual liability cap language is modified, clarifying that insurers are not responsible for losses exceeding $100 billion. ! The Secretary of the Treasury is directed to provide a report within 120 days and to promulgate regulations within 240 days on determining the pro rata share of payments in the event that losses exceed $100 billion. ! The Government Accountability Office (GAO) is directed to issue reports on the possibility of insurance coverage for NCBR events (within one year) and on the affordability and availability of terrorism insurance in specific markets (within 180 days). ! The President's Working Group on Financial Markets is directed to continue its analysis of the longer term availability and affordability of terrorism risk insurance, and to report on this subject in 2010 and 2013.The total amount of the recoupment surcharge is increased to 133% of the previous mandatory recoupment amount. ! Any recoupment amount is now accelerated with the following criteria: (1) for any attack before 2011 repayment must be completed by September 30, 2012; (2) for any attack during 2011, 35% of the repayment must be completed by September 30, 2012, and 65% of repayment must be completed by September 30, 2017; 10 See [http://www.whitehouse.gov/omb/legislative/sap/110-1/hr2761sap-h.pdf], visited on Jan. 14, 2008. CRS-9 and (3) for any attack after 2011 repayment must be completed by September 30, 2017. ! There is no longer a 3% limit on mandatory recoupment amounts. CRS-10 Table 1. Terrorism Risk Insurance Side-by Side: Previous Law, H.R. 2761 (as passed by the House), H.R. 4299 (as passed by the House), and P.L. 110-160. P.L. 110-160 15 U.S.C. 6701 note H.R. 2761 H.R. 4299 (H.R. 2761 as amended by the Provision (P.L. 107-297 as amended by P.L. (as initially passed by the (as passed by the House) Senate and subsequently passed 109-144) House) by the House) Title Terrorism Insurance Program Terrorism Risk Insurance Terrorism Risk Insurance Terrorism Risk Insurance Revision and Extension Act of Program Reauthorization Act of Program Reauthorization Act of 2007 2007 2007 Expiration Date December 31, 2007 December 31, 2022 December 31, 2014 December 31, 2014 (Sec. 108(a)) (Sec. 2) (Sec. 3) (Sec. 3) "Act of For an act of terrorism to be Removes requirement that a Removes requirement that a Removes requirement that a Terrorism" covered under TRIA, it must be a covered act of terrorism be covered act of terrorism be covered act of terrorism be Definition violent act committed on behalf of committed on behalf of a foreign committed on behalf of a foreign committed on behalf of a foreign a foreign person or interest as part person or interest. Adds person or interest. (Sec. 2) person or interest. (Sec. 2) of an effort to coerce the U.S. "Nuclear, Biological, Chemical, civilian population or influence and Radiological (NBCR) U.S. government policy. It must Terrorism" as a separate category have resulted in damage within the of terrorism. Adds Secretary of United States or to a U.S. airliner or Homeland Security to the mission abroad. Terrorist act is to certification of an act of terrorism be certified by the Secretary of the or NBCR terrorism. (Sec. 102 Treasury in concurrence with the (1)) Attorney General and Secretary of State. (Sec. 102(1)(A)) CRS-11 P.L. 110-160 15 U.S.C. 6701 note H.R. 2761 H.R. 4299 (H.R. 2761 as amended by the Provision (P.L. 107-297 as amended by P.L. (as initially passed by the (as passed by the House) Senate and subsequently passed 109-144) House) by the House) Aggregate Terrorist act must cause more than Lowers Program Trigger to Lowers Program Trigger to No Similar Provision Industry Loss $5 million in losses to be certified. $50,000,000 for the life of the $50,000,000 for the life of the Requirement and Program Trigger prevents program. Trigger will reset to program. Program Trigger coverage under the program unless $5,000,000 after a terrorist attack Trigger will reset to $5,000,000 aggregate industry losses exceed resulting in $1,000,000,000 in after a terrorist attack resulting $50,000,000 in 2006 or damage. in $1,000,000,000 in damage. $100,000,000 in 2007. (Sec. 103 (e)(1)(C)) (Secs. 9 and 7(2)) (Secs.102(1)(B)(ii) and 103(e)(1)(B)) Insurer Deductible 7% of earned premium for 2003, Adds deductible for group life Lowers deducible to 5% in 2008 No Similar Provision 10% of earned premium for 2004, equal to 0.0351% of the value of in the event of a terrorist attack, 15% of earned premium for 2005, an insurer's amount at risk. (Sec. or series of terrorist attacks, 17.5% of earned premium for 2006, 102 (11)(G)(ii)). totaling $1,000,000,000 or more 20% of earned premium for 2007. for those insurers suffering (Sec. 102(7)) damage in the attack. Raises this large event deductible 0.5% per year in future years. Adds deductible for group life equal to 0.0351% of the value of an insurer's amount at risk. (Secs. 7(1) and 6(b)(4)(A)(ii)) CRS-12 P.L. 110-160 15 U.S.C. 6701 note H.R. 2761 H.R. 4299 (H.R. 2761 as amended by the Provision (P.L. 107-297 as amended by P.L. (as initially passed by the (as passed by the House) Senate and subsequently passed 109-144) House) by the House) NBCR Deductible No Provision In the event of an NBCR terrorist No Similar Provision No Similar Provision attack, the property/casualty deductible is 3.5% the first year and then is raised 0.5% per year thereafter. The group life NBCR deductible is 0.00614% the first year and then raised 0.00088% per year thereafter. (Sec. 102(11)(I)) Reset Provisions No Provision In the event of a terrorist attack In the event of a terrorist attack No Similar Provision or series of attacks that cause or series of attacks that cause more than $1,000,000,000 in more than $1,000,000,000 in damage, for future program damage, for future program years: (1) the Program Trigger years: (1) the Program Trigger would be reduced to $5,000,000; would be reduced to $5,000,000; (2) the deductible for any insurer (2) the deductible for any insurer suffering damage would be suffering damage would be lowered to 5% and then be raised lowered to 5% and then be 0.5% per year thereafter. raised 0.5% per year thereafter. (Secs. 103 (e)(1)(C) and (Sec. 7) 102(11)(J)) CRS-13 P.L. 110-160 15 U.S.C. 6701 note H.R. 2761 H.R. 4299 (H.R. 2761 as amended by the Provision (P.L. 107-297 as amended by P.L. (as initially passed by the (as passed by the House) Senate and subsequently passed 109-144) House) by the House) NBCR Reset No Provision Starting with the fifth additional No Similar Provision No Similar Provision Provisions program year (2012), in the event of an NBCR terrorist attack or series of attacks that cause more than $1,000,000,000, the deductible for any insurer suffering losses would be lowered to 5% and then be raised 0.5% per year thereafter. (Sec. 102(11)(K)) CRS-14 P.L. 110-160 15 U.S.C. 6701 note H.R. 2761 H.R. 4299 (H.R. 2761 as amended by the Provision (P.L. 107-297 as amended by P.L. (as initially passed by the (as passed by the House) Senate and subsequently passed 109-144) House) by the House) Covered lines of Commercial property casualty Adds farm owners multiple peril Adds group life insurance. No Similar Provision Insurance insurance including excess back to covered lines. Adds (Sec. 6) insurance, workers' compensation, group life insurance. (Secs. and surety but excluding crop 102(5), 102(8), and 102(17)) insurance, private mortgage insurance, title insurance, financial guaranty insurance, medical malpractice insurance, health or life insurance, flood insurance, reinsurance, commercial auto, burglary and theft, professional liability (except for directors and officers liability), and farm owners multiple peril. (Sec. 102(12)) Mandatory Every insurer must make terrorism Adds coverage for NBCR No Similar Provision No Similar Provision Availability coverage available that does not terrorism to that which must be differ materially from coverage made available starting in 2009. applicable to losses other than (Sec. 103(c)) Allows for an terrorism. (Sec 103(c)) exemption to small insurers from the requirement to provide NBCR coverage. (Sec. 103 (a)(4)) CRS-15 P.L. 110-160 15 U.S.C. 6701 note H.R. 2761 H.R. 4299 (H.R. 2761 as amended by the Provision (P.L. 107-297 as amended by P.L. (as initially passed by the (as passed by the House) Senate and subsequently passed 109-144) House) by the House) Life Insurance and No Provision Limits life insurers from Limits life insurers from No Similar Provision Travel considering lawful travel in considering lawful travel in underwriting life insurance underwriting life insurance except in certain circumstances. except in certain circumstances. (Sec. 103 (c)(4)) (Sec. 8) Insured Shared Federal share of losses is 90% for Adds sliding scale for federal No Similar Provision No Similar Provision Loss insured losses that exceed the share of NBCR terrorism losses, Compensation applicable insurer deductible from from 85% for losses less than 2002-2006. $10,000,000,000 to 100% for For 2007, federal share of losses is losses greater than 85%. $100,000,000,000. (Sec. 103(e)) (Sec. 103(e)(1)(B)) Aggregate $10,000,000,000 for 2002-3, Adds aggregate retention amount Adds aggregate retention No Similar Provision Retention Amount $12,500,000,000 for 2004, for group life insurance equal to amount for group life insurance Maximum $15,000,000,000 for 2005, $5,000,000,000. (Sec.103 equal to $5,000,000,000. $25,000,000,000 for 2006, (e)(7)(ii)) (Sec. 6(d)) $27,500,000,000 for 2007. (Sec. 103 (e)(6)) CRS-16 P.L. 110-160 15 U.S.C. 6701 note H.R. 2761 H.R. 4299 (H.R. 2761 as amended by the Provision (P.L. 107-297 as amended by P.L. (as initially passed by the (as passed by the House) Senate and subsequently passed 109-144) House) by the House) Annual Liability Should losses to terrorism exceed Payment for federal government Removes the possibility that a Removes the possibility that a Cap $100,000,000, the federal share would be capped at future Congress could require future Congress could require government will not make any $100,000,000,000. Assuming insurers to cover some share of insurers to cover some share of payments on the portion of losses that an insurer has met its losses above $100,000,000,000 losses above $100,000,000,000 if that exceed $100,000,000,000. deductible, insurers are not if the insurer has met its the insurer has met its individual Assuming that an insurer has met responsible for paying losses that individual deductible. Requires deductible. Requires insurers to its deductible, insurers are not exceed $100,000,000,000 unless insurers to clearly disclose this clearly disclose this to policy responsible for paying losses that Congress acts otherwise with to policy holders. (Sec. 4(a) and holders. (Sec. 4(a) and Sec. 4(d)) exceed $100,000,000,000 unless respect to these losses. Requires Sec. 4(d)) Congress acts otherwise with insurers to clearly disclose this to respect to these losses. (Sec. 103 policy holders. (Sec. 103(e)(2)) (e)(2) Payment After notice by the Secretary of the Secretary of the Treasury will Requires Secretary of the Requires Secretary of the Procedures if Treasury, Congress determines the determine the pro rata share of Treasury to publish regulations Treasury to publish regulations Losses Exceed procedures for payments if losses insured losses to be paid by each regarding payments if losses regarding payments if losses $100,000,000,000 exceed $100,000,000,000. (Sec. insurer. Federal courts will have exceed $100,000,000,000 within exceed $100,000,000,000 within 103 (e)(3) jurisdiction over claims in the 240 days of passage. (Sec. 4(c)) 240 days of passage. (Sec. 4(c)) event that losses exceed $100,000,000,000. (Sec. 103(e)(2), 103(e)(3)(C), and 103(e)(4)(F)) CRS-17 P.L. 110-160 15 U.S.C. 6701 note H.R. 2761 H.R. 4299 (H.R. 2761 as amended by the Provision (P.L. 107-297 as amended by P.L. (as initially passed by the (as passed by the House) Senate and subsequently passed 109-144) House) by the House) Mandatory If insurer losses are under the Adds an optional report should Increases total recoupment Increases total recoupment Recoupment of aggregate retention amount, a the Secretary of the Treasury amount to be collected by the amount to be collected by the Federal Share mandatory recoupment of the choose not to require premium surcharges to 133% of premium surcharges to 133% of federal share of the loss will be reimbursement above the the previously defined the previously defined mandatory imposed. If insurer losses are over aggregate retention amount. mandatory recoupment amount. recoupment amount. (Sec. 4 the aggregate retention amount, (Sec. 103(e)(8)(D)) (Sec. 4 (e)(1)(A)) (e)(1)(A)) such recoupment is at the discretion of the Secretary of the Treasury. (Sec. 103(e)(7)) Recoupment Surcharge is limited to 3% of Adds limit on group life Removes 3% limit for Removes 3% limit for mandatory Surcharge property-casualty insurance insurance recoupment surcharge mandatory surcharge. surcharge. (Sec. 4(e)(2)(A)) premium and may be adjusted by of 0.053% of amount at risk. Adds limit on group life the Secretary to take into account (Sec. 103(9)(C)) insurance recoupment the economic impact of the discretionary surcharge of surcharge on urban commercial 0.053% of amount at risk. centers, the differential risk factors (Secs. 4(e)(2)(A) and 6(g)(2)) related to rural areas and smaller commercial centers, and the various exposures to terrorism risk across lines of insurance. (Sec. 103(8)) CRS-18 P.L. 110-160 15 U.S.C. 6701 note H.R. 2761 H.R. 4299 (H.R. 2761 as amended by the Provision (P.L. 107-297 as amended by P.L. (as initially passed by the (as passed by the House) Senate and subsequently passed 109-144) House) by the House) Timing of No Provision No provision Requires expedited collection of Requires expedited collection of Mandatory recoupment amounts: recoupment amounts: Recoupment (1) for a terrorist attack before (1) for a terrorist attack before 2011, all required recoupment 2011, all required recoupment amounts must be collected by amounts must be collected by September 30, 2012; September 30, 2012; (2) for a terrorist attack in 2011, (2) for a terrorist attack in 2011, 35% of required recoupment 35% of required recoupment amounts must be collected by amounts must be collected by September 30, 2012, and the September 30, 2012, and the balance must be collected by balance must be collected by September 30, 2017; September 30, 2017; (3) for a terrorist attack after (3) for a terrorist attack after 2011, all required recoupment 2011, all required recoupment amounts must be collected by amounts must be collected by September 30, 2017. September 30, 2017. (Sec. 4(e)(1)(B)) (Sec. 4(e)(1)(B)) Joint Resolution No Provision Requires passage of a future Joint No Similar Provision No Similar Provision Requirement for Resolution before any funds Future Payments would be expended under the act. Provides for expedited consideration of this Resolution. (Sec. 103(h)) CRS-19 P.L. 110-160 15 U.S.C. 6701 note H.R. 2761 H.R. 4299 (H.R. 2761 as amended by the Provision (P.L. 107-297 as amended by P.L. (as initially passed by the (as passed by the House) Senate and subsequently passed 109-144) House) by the House) Preservation and Preserves all existing regulatory Preempts state laws requiring No Similar Provision No Similar Provision Preemption of authority and jurisdiction of the prior approval of rates and forms Existing State states except that: for insurance required by the act Law exclusions for terrorism existing at until December 31, 2008. the time of the act's enactment are Preempts state laws requiring annulled, but can be reinstated by prior approval of forms for the insurer with the agreement of NBCR insurance required by the the insured; act until December 31, 2009. the definition for "Act of Preempts state laws requiring Terrorism" in the act shall preempt prior approval of rates for NBCR any state definitions for purposes of insurance required by the act the act, state rate and form filing until December 31, 2010. (Sec. requirements until the end of 2003 3(a)(4)) are partially preempted; and insurers are required to provide books and records relevant to the program at the request of the Secretary of the Treasury notwithstanding any state laws to the contrary. (Sec. 105 and 106(a)) Inflation No Provision Indexes dollar amounts in the bill No Similar Provision No Similar Provision Adjustment for inflation using the CPI-U as an adjustor. (Sec. 103(h)) CRS-20 P.L. 110-160 15 U.S.C. 6701 note H.R. 2761 H.R. 4299 (H.R. 2761 as amended by the Provision (P.L. 107-297 as amended by P.L. (as initially passed by the (as passed by the House) Senate and subsequently passed 109-144) House) by the House) Terrorism Buy- No Provision Creates a "Terrorism Buy-Down No Similar Provision No Similar Provision Down Fund Fund" that would allow insurers to buy additional terrorism coverage from the government. This coverage would be limited to the amount of an insurer's deductible and co-share. Payout amounts would be limited to the amount that the insurer paid for the coverage plus interest. Amounts in this buy-down fund would be available to be borrowed by the Secretary of the Treasury to cover the federal share of terrorism losses should they not be needed by the insurer who purchased the coverage. (Sec. 106A) CRS-21 P.L. 110-160 15 U.S.C. 6701 note H.R. 2761 H.R. 4299 (H.R. 2761 as amended by the Provision (P.L. 107-297 as amended by P.L. (as initially passed by the (as passed by the House) Senate and subsequently passed 109-144) House) by the House) Studies and Calls for a study of the need to Calls for ongoing analysis by the Calls for GAO studies and Calls for GAO studies and Reports include group life insurance under Secretary of the Treasury of reports on insurance for nuclear, reports on insurance for nuclear, TRIA (Sec. 103 (h)), a study and terrorism risk insurance market biological, chemical, and biological, chemical, and report of the potential impact of conditions and biennial reports radiological events and on the radiological events and on the terrorism on life insurance and and testimony. (Sec. 5(a)) availability and affordability of availability and affordability of other lines of insurance (Sec 103 terrorism risk insurance in terrorism risk insurance in (g)), and a study assessing the specific markets. Calls for specific markets. Calls for effectiveness of the program, the ongoing analysis by the ongoing analysis by the likelihood of the private industry President's Working Group on President's Working Group on insuring against terrorism after the Financial Markets, with reports Financial Markets, with reports to program expiration, and the to be delivered in 2010 and be delivered in 2010 and 2013. availability and affordability of 2013. (Sec. 5) (Sec. 5) such insurance. (Sec. 108(d)) Calls for an analysis and report, not later than September 30, 2006, from the President's Working Group on Financial Markets, in consultation with various stakeholders, on the longer term availability and affordability of terrorism risk insurance including particularly group life coverage CRS-22 P.L. 110-160 15 U.S.C. 6701 note H.R. 2761 H.R. 4299 (H.R. 2761 as amended by the Provision (P.L. 107-297 as amended by P.L. (as initially passed by the (as passed by the House) Senate and subsequently passed 109-144) House) by the House) Commission on No Provision Establishes a 21-member No Similar Provision No Similar Provision Terrorism Risk commission with a wide range of Insurance stakeholders, including insurers, policyholders, and the insurance commissioners. The commission is to make recommendations regarding possible actions to encourage private insurance coverage of terrorism risk. The commission is to make two reports specifically evaluating the need for the TRIA program and suggesting possible replacements. One report to be submitted before 60 months after enactment and the other submitted before 96 months after enactment. (Sec. 109) Notes: Items in italics under the15 U.S.C. 6701 note column are those added by P.L. 109-144. H.R. 2761 as passed by the House would strike most of 15 U.S.C. 6701 note and replace it with a similar structure, including identical language in many sections. The section numbers for this bill cited in this side-by-side are, therefore, those that would appear in the code if the bill were enacted, except for the provisions entitled "Expiration Date" and "Preservation and Preemption of Existing State Law." In contrast, the Senate-passed H.R. 2761, which became P.L. 110-160, and H.R. 4299 simply amend 15 U.S.C. 6701 note. The section numbers cited in this side-by-side are thus those of the two bills themselves. ------------------------------------------------------------------------------ For other versions of this document, see http://wikileaks.org/wiki/CRS-RL34219