PART 223—SURETY COMPANIES DOING BUSINESS WITH THE UNITED STATES Authority: 5 U.S.C. 301; 31 U.S.C. 9304-9308. § 223.1 Certificate of authority. (a) The regulations in this part govern the issuance, renewal, and revocation by the Secretary of the Treasury, acting through the U.S. Department of the Treasury, Bureau of the Fiscal Service (Treasury), of certificates of authority to bonding companies to do business with the United States as sureties on, or reinsurers of, Federal surety bonds (hereinafter “bonds” or “obligations”) under the authority of 31 U.S.C. 9304-9308 and this part, and the acceptance of such obligations. (b) A company applying for authority to write surety bonds in favor of the United States must be engaged in the business of writing surety or fidelity contracts at the time of its application to Treasury, whether or not also making contracts in other classes of insurance, but shall not be engaged in any type or class of business not authorized by its charter or the laws of the state in which the company is incorporated. It must be the intention of the company to engage actively in the execution of surety bonds or fidelity contracts in favor of the United States. (c) A company is not eligible for a certificate of authority if it only insures or reinsures risks of its parent, affiliated, or controlled unaffiliated business, or is deemed by Treasury to be primarily engaged in self-insurance. [89 FR 48831, June 10, 2024] § 223.2 Application for certificate of authority. (a) Application for issuance of certificate of authority. https://www.fiscal.treasury.gov/surety-bonds/. (1) Payment of the application fee in accordance with the provisions of § 223.22; (2) A written request for a certificate of authority, signed by an officer of the company. This request must indicate: (i) Whether the company has previously applied for a certificate of authority from Treasury and, if so, the date and disposition of the previous application; and (ii) Whether Treasury has ever previously issued the company a certificate of authority, the reason for termination of its certificate of authority, and the applicable dates; (3) A certified copy of its charter or articles of incorporation showing that it is duly authorized to conduct the business referenced under 31 U.S.C. 9304(a)(2) and a statement from an officer of the company certifying that: (i) The company is authorized to transact surety business; and (ii) If granted a certificate of authority, there are no restrictions upon the company preventing it from being able to execute and guarantee bonds and undertakings in judicial proceedings, and guarantee contracts to which the United States is a party; (4) A listing of the names of the company's current officers and directors as of the date of application, including a biographical affidavit of each officer and director per instructions online at https://www.fiscal.treasury.gov/surety-bonds/ (5) A memorandum setting forth: (i) A comprehensive statement of the company's method of operation, including, but not limited to, underwriting guidelines, claims adjustment procedures, reinsurance philosophy, control over collateral, and significant changes in operations or corporate structure that impact its financial statements; (ii) The classes of business in which it engages; (iii) Any special underwriting agreements, management agreements, or pooling agreements in force. Copies of such agreements must be included with the memorandum; and (iv) Present plans of the company as to the types of Federal bonds it intends to write, the anticipated annual premium volume of the Federal bonds, and the geographical areas in which it intends to write the Federal bonds; (6) A certified copy of a license from its state of incorporation and a completed Surety License Form (Form No. FS 2208); (7) A copy of the latest available report of its examination by its domiciliary State Insurance Department including a copy of company responses to any significant findings or recommendations; (8) The National Association of Insurance Commissioners (NAIC) annual statement form with all Schedules and Exhibits completed, including copies of the NAIC File Upload, showing the last two full calendar years of the company's financial condition, including proof that the company has paid-up capital of at least $250,000 in cash or its equivalent, in the case of a stock insurance company, or has net assets of not less than $500,000 over and above all liabilities, in the case of a mutual insurance company. The annual financial statement's Jurat Page (only) is to be signed (facsimile or electronic signatures are acceptable) by the company President, Secretary, and a Notary Public who shall also affix a notary seal; (9) The Insurance Regulatory Information System (IRIS) ratio results, and an explanation for any ratios outside the normal ranges as established by the NAIC for the last two full calendar years preceding the date of application; (10) A written statement signed by the Insurance Commissioner or other proper financial officer of any state attesting that the company maintains on deposit legal investments having a current market value of not less than $100,000 for the protection of claimants, including all of its policyholders in the U.S.; (11) A completed Treasury Schedule F (Form No. TFS 6314), as referenced in § 223.9(c) for the last two full calendar years preceding the date of application; (12) Copies of all reinsurance treaties currently in force along with a completed Summary of Reinsurance Treaties, per instructions provided online at https://www.fiscal.treasury.gov/surety-bonds/ (13) A completed Schedule of Excess Risks form (Form No. FS 285-A) as of the date of the application; (14) A Statement of Actuarial Opinion as of the close of the last two full calendar years preceding the date of application provided by a qualified actuary, as defined by the NAIC, on the adequacy of all loss reserves with the scope and format of the statement also conforming to the requirements of the NAIC; and (15) Such other evidence as Treasury may, in its discretion, request to establish that the company is solvent, willing, and able to meet the continuing obligation to carry out its contracts. Additionally, Treasury will publish supplemental guidance annually regarding evidence it may require, submission methods, and format of the data listed in paragraphs (a)(1) through (14) of this section. (b) Applications for renewal of certificate of authority. https://www.fiscal.treasury.gov/surety-bonds/. (1) Payment of the application fee in accordance with the provisions of § 223.22; (2) A completed Surety License Form (Form No. FS 2208) and a certified copy of the licenses from any states indicated on the Surety License Form that were not indicated on the company's most recent form; (3) A copy of the latest available report of its examination by its domiciliary State Insurance Department including a copy of company responses to any significant findings or recommendations; (4) A statement of its financial condition, as of the close of the preceding year, on the annual statement form of the NAIC with all Schedules and Exhibits completed, including copies of the NAIC File Upload, showing that it has paid-up capital of at least $250,000 in cash or its equivalent, in the case of a stock insurance company, or has net assets of not less than $500,000 over and above all liabilities, in the case of a mutual insurance company. The Annual Financial Statement's Jurat Page (only) is to be signed (facsimile or electronic signatures are acceptable) by the company President, Secretary, and a Notary Public who shall also affix a notary seal; (5) IRIS ratio results, and an explanation for any ratios outside the normal ranges as established by the NAIC, as of the close of the preceding year; (6) A completed Treasury Schedule F (Form No. TFS 6314), as referenced in § 223.9(c) as of the close of the preceding year; (7) A completed Schedule of Excess Risks form (Form No. FS 285-A) as of the close of the preceding quarter; (8) A Statement of Actuarial Opinion as of the close of the preceding year provided by a qualified actuary, as defined by the NAIC, on the adequacy of all loss reserves with the scope and format of the statement also conforming to the requirements of the NAIC; (9) A listing of the names of the company's current officers and directors as of the close of the preceding year, including a biographical affidavit of any new officer and director for whom a biographical affidavit was not previously provided, per instructions online at https://www.fiscal.treasury.gov/surety-bonds/ (10) A Report of Federal Business Written and/or Outstanding as of the close of the preceding year, per instructions provided online at https://www.fiscal.treasury.gov/surety-bonds/ (11) Such other evidence as Treasury may request to establish that the company is solvent, willing, and able to meet the continuing obligation to carry out its contracts. Additionally, Treasury will publish supplemental guidance annually regarding evidence it may require, submission methods, and format of the data listed in paragraphs (b)(1) through (10) of this section. [89 FR 48831, June 10, 2024] § 223.3 Issuance of certificates of authority. (a) In determining whether to issue or renew a certificate of authority, Treasury will evaluate the whole application package under § 223.2, the financial condition of the company as determined under § 223.9, the history of the company, and any further evidence or information that Treasury may, in its discretion, require the company to submit. (b) A certificate of authority will be effective for a term that expires on the last day of the next July. All statutory requirements and regulatory requirements under this part are continuing obligations, and any certificate issued is expressly subject to continuing compliance with such requirements. The certificate of authority will be renewed annually on the first day of August, provided that (c) If a company meets the requirements for a certificate of authority as an acceptable surety on Federal bonds in all respects except that it is limited to reinsurance business only, it may be issued a certificate of authority as a reinsuring company on Federal bonds. The fees for initial application and renewal of a certificate as a reinsuring company are the same as the fees for an initial application and renewal of a certificate of authority as an acceptable surety on Federal bonds. [89 FR 48832, June 10, 2024] § 223.4 [Reserved] § 223.5 Business. A company holding a certificate of authority, or its agent, may only execute (sign or otherwise validate) a surety bond in favor of the United States in a state where it is licensed to do surety business. It need not be licensed in the state or other area in which the principal resides or where the contract is to be performed. The term other area [89 FR 48832, June 10, 2024] § 223.6 [Reserved] § 223.7 Notification of changes. (a) Every company certified under this part or recognized as an admitted reinsurer pursuant to § 223.12(h) must notify Treasury of changes that have a significant impact on its financial statements or solvency during the term of such certification or admission. Paragraphs (a)(1) through (4) of this section are not intended to be an exhaustive list of all such changes that Treasury may require to be reported and may evaluate as part of its ongoing analysis of the company. Additionally, Treasury will publish supplemental guidance on additional information that may be required. Every company certified under this part or recognized as an admitted reinsurer pursuant to § 223.12(h) must notify Treasury of the following: (1) Capital changes. (2) Changes in stock ownership. (3) Mergers, transfer, assumption, and group/pool restructuring. (4) Charters and bylaws amendments. (b) Noncompliance with this section may result in Treasury denying a company's application for its certificate of authority, its recognition as an admitted reinsurer, renewal of its certificate of authority, or renewal of its recognition as an admitted reinsurer; or in Treasury revoking a company's certificate of authority or recognition as an admitted reinsurer. [89 FR 48832, June 10, 2024] § 223.8 Quarterly financial reporting requirements. Every company certified under this part is required to file the following each quarter with Treasury, c/o Surety Bonds Program, to the location, and in the manner, specified online at https://www.fiscal.treasury.gov/surety-bonds/ (a) A statement of its financial condition, as of the close of the preceding quarter, on the quarterly statement form of the NAIC with all Schedules and Exhibits completed, including copies of the NAIC File Upload, showing that it has paid-up capital of at least $250,000 in cash or its equivalent, in the case of a stock insurance company, or has net assets of not less than $500,000 over and above all liabilities, in the case of a mutual insurance company. The Quarterly Financial Statement's Jurat Page (only) is to be signed (facsimile or electronic signatures are acceptable) by the company President, Secretary, and a Notary Public who shall also affix a notary seal; (b) A completed Schedule of Excess Risks form (Form No. FS 285-A) as of the close of the preceding quarter; (c) A Report of Federal Business Written and/or Outstanding as of the close of the preceding quarter, per instructions provided online at https://www.fiscal.treasury.gov/surety-bonds/ (d) A copy of the latest available report of its examination by its domiciliary State Insurance Department including a copy of company responses to any significant findings or recommendations; (e) A listing of the names of the company's current officers and directors as of the close of the preceding quarter, including a biographical affidavit of each new officer and director per instructions online at https://www.fiscal.treasury.gov/surety-bonds/ (f) Such other evidence as Treasury may request to establish that the company is solvent, willing, and able to meet the continuing obligation to carry out its contracts. Additionally, Treasury will publish supplemental guidance annually regarding evidence it may require, submission methods, and format of the data listed in paragraphs (a) through (e) of this section along with the due dates for quarterly reporting. [89 FR 48833, June 10, 2024] § 223.9 Determination of financial condition and other required information. In determining the financial condition of every company applying for a certificate of authority or renewal of a certificate of authority under this part, Treasury will generally compute the company's assets and liabilities in accordance with paragraphs (a) through (f) of this section, provided that Treasury may exercise discretion in valuing the assets and liabilities of such companies. While paragraphs (a) through (f) specify how Treasury will value certain classes of assets and liabilities and the analysis that Treasury will perform, they are not intended to be an exhaustive list of all assets and liabilities that Treasury may require to be reported and may evaluate as part of this analysis. Additionally, Treasury will annually publish supplemental guidance on the financial analysis performed by Treasury, including applicable ratios and acceptable ranges for ratios. (a) Assets General criteria for admissibility. (2) Securities. (i) All other securities. (ii) Securities of controlled companies. (A) Other insurance companies. (B) Non-insurance companies. (3) Real estate and mortgages. (b) Minimum bail reserve requirements. (c) Reinsurance. (i) Companies holding a current certificate of authority from Treasury; (ii) U.S. domiciled non-Treasury certified or recognized parents, subsidiaries, and/or affiliates if Treasury determines that the parent, subsidiary, and/or affiliate is financially solvent; (iii) Admitted reinsurers as defined under § 223.12(h); (iv) Complementary reinsurers as defined under § 223.12(i); (v) Alien reinsurers as defined under § 223.12(j), up to the extent credit is allowed for reinsurance ceded to the alien reinsurer by the ceding company's state of domicile (subject to paragraph (c)(3) of this section); and (vi) An instrumentality or agency of the United States that is permitted by Federal law or regulation to execute reinsurance contracts. (2) Treasury may give credit for reinsurance not covered in paragraph (c)(1) of this section, to the extent of funds withheld or letters of credit or trust agreements from such reinsurers, provided the company advises Treasury and provides sufficient documentation of the amount of funds held, letters of credit posted or funds secured in trust for each company. Treasury may also give credit for trust account assets associated with multi-beneficiary trust agreements established and maintained in the United States by overseas accredited or trusteed reinsurers listed online at https://www.fiscal.treasury.gov/surety-bonds/, (3) If, after its review of the financial documentation submitted by an alien reinsurer recognized pursuant to § 223.12(j) and of the financial documentation submitted by the ceding company, Treasury determines that either company may be unable to carry out its obligations, Treasury may require additional collateral for the ceding company to receive credit for reinsurance to the extent credit is given for reinsurance ceded to the alien reinsurer by the ceding company's state of domicile. (d) Risk based capital (RBC). (e) Financial ratios. (f) Financial results and trends. (g) Noncompliance. [89 FR 48833, June 10, 2024] § 223.10 Limitation of risk. (a) Except as provided in § 223.11, no company holding a certificate of authority shall underwrite any single risk on any bond or policy on behalf of any individual, firm, association, or corporation, whether or not the United States is interested as a party thereto, the amount of which is greater than 10 percent of the paid-up capital and surplus of such company, as determined by Treasury. Such figure ( i.e., single risk (b) In determining the underwriting limitation, the full penalty of any surety and fidelity obligation will be regarded as the liability, and no offset will be allowed on account of any estimate of risk that is less than such full penalty, except in the following cases: (1) Appeal bonds; in which case the liability will be regarded as the amount of the judgment appealed from, plus 10 percent of said amount to cover interest and costs; (2) Bonds of executors, administrators, trustees, guardians, and other fiduciaries, where the penalty of the bond or other obligation is fixed in excess of the estimated value of the estate; in which cases the estimated value of the estate, upon which the penalty of the bond was fixed, will be regarded as the liability; (3) Indemnifying agreements executed by sole heirs or beneficiaries of an estate releasing the surety from liability; (4) Contract bonds given in excess of the amount of the contract; in which cases the amount of the contract will be regarded as the liability; or (5) Bonds for banks or trust companies as principals, conditioned to repay moneys on deposit, whereby pursuant to any law or decree of a court, the amount to be deposited shall be less than the penalty of the bond; in which cases the maximum amount on deposit at any one time will be regarded as the liability. [89 FR 48834, June 10, 2024] § 223.11 Limitation of risk: Protective methods. In the case of risks otherwise in excess of a company's limitation of risk prescribed in § 223.10, compliance may be achieved by the following methods: (a) Coinsurance. (b) Reinsurance Bonds running to the United States. (ii) For bonds required to be furnished to the United States by the Miller Act (40 U.S.C. 3131, as amended), in addition to complying with the requirements of paragraph (b)(1)(i) of this section, the direct writing company must execute the following reinsurance agreement forms: Standard Form 273 (Reinsurance Agreement for a Bonds Statute Performance Bond), Standard Form 274 (Reinsurance Agreement for a Bonds Statute Payment Bond), and Standard Form 275 (Reinsurance Agreement in Favor of the United States). These forms are available on the General Services Administration website at www.gsa.gov. (2) Bonds not running to the United States. (i) One or more companies holding a certificate of authority from Treasury; (ii) One or more companies recognized as a reinsurer in accordance with § 223.12, except for any reinsurer who is required by a U.S. state to post 100 percent collateral; (iii) A pool, association, etc., to the extent that it is composed of such companies; or (iv) An instrumentality or agency of the United States that is permitted by Federal law or regulation to execute reinsurance contracts. (3) Limitation. (c) Other methods. (1) By the deposit with the company in pledge, or by conveyance to it in trust for its protection, of assets admitted by Treasury, the current market value of which is at least equal to the liability in excess of its underwriting limitation. Treasury may, on a case-by-case basis, consider a letter of credit provided by a financial institution to be adequate security under this paragraph (c) if Treasury can verify that the assets referenced in the letter of credit are pledged exclusively to secure the excess risk, and if the letter of credit meets other requirements Treasury might prescribe. Assets used to protect excess liability pursuant to this paragraph (c) cannot also be used to obtain credit for reinsurance pursuant to § 223.9(c).; or (2) If such obligation was incurred on behalf of or on account of a fiduciary holding property in a trust capacity, by a joint control agreement providing that the whole or a sufficient portion of the property so held may not be disposed of or pledged in any way without the consent of the insuring company. [89 FR 48834, June 10, 2024] § 223.12 Recognition as reinsurer. (a) Use of recognized reinsurers. (1) Receive credit for reinsurance ceded to a reinsurer recognized pursuant to this section, as described in § 223.9(c); and (2) Protect liability in excess of their underwriting limit on risks not running to the United States by reinsuring excess liability with a reinsurer recognized pursuant to this section. (b) Application. https://www.fiscal.treasury.gov/surety-bonds/. (c) Treasury recognition. https://www.fiscal.treasury.gov/surety-bonds/. (d) Notice to Treasury. (e) Eligibility. (f) Guidance. (g) Noncompliance. (h) Admitted reinsurers Application for recognition by U.S. company. https://www.fiscal.treasury.gov/surety-bonds/. (i) Payment of the application fee in accordance with the provisions of § 223.22; (ii) A written request for recognition as an admitted reinsurer, signed by an officer of the company. This request must indicate: (A) The reason for applying for recognition; (B) Whether the company has ever previously applied for recognition as an admitted reinsurer, whether Treasury approved the application, and the applicable dates; and (C) If Treasury previously approved the company for recognition as an admitted reinsurer, the reason for termination of its recognition and the applicable date; (iii) A certified copy of its charter or articles of incorporation with all amendments as of the date of application showing the legal name of the company and that it is authorized to write reinsurance; (iv) A listing of the names of the company's current officers and directors as of the date of application, including a biographical affidavit of each officer and director per instructions online at https://www.fiscal.treasury.gov/surety-bonds/; (v) A certified copy of a license from any one state in which it has been authorized to do business showing its authority to write reinsurance and/or other lines of insurance; (vi) A copy of the latest available report of its examination by its domiciliary State Insurance Department including a copy of company responses to any significant findings or recommendations; (vii) Annual statements of its financial condition, as of the close of the last two full years preceding the date of application, on the annual statement form of the NAIC with all Schedules and Exhibits completed, including copies of the NAIC File Upload, showing that it has paid-up capital of at least $250,000 in cash or its equivalent, in the case of a stock insurance company, or has net assets of not less than $500,000 over and above all liabilities, in the case of a mutual insurance company. The Annual Financial Statement's Jurat Page (only) is to be signed (facsimile signatures are acceptable) by the company President, Secretary, and a Notary Public who shall also affix a notary seal; (viii) IRIS ratio results, and an explanation for any ratios outside the normal ranges as established by the NAIC for the last two years preceding the date of application; (ix) A memorandum setting forth the company's method of operation, including lines of business written, the company's underwriting and claims philosophy, and significant changes in the company's operations or corporate structure that impact its financial statements; (x) A completed Treasury Schedule F (Form No. TFS 6314), as referenced in § 223.9(c) for two years preceding the date of application; (xi) A Statement of Actuarial Opinion as of the close of the last two years preceding the date of application provided by a qualified actuary, as defined by the NAIC, on the adequacy of all loss reserves with the scope and format of the statement also conforming to the requirements of the NAIC; and (xii) Such other evidence as Treasury may request to establish that the company is solvent and able to meet the continuing obligation to carry out its contracts. Treasury will publish supplemental guidance annually regarding evidence it may require, submission methods, and format of the data listed in paragraphs (h)(1)(i) through (xi) of this section. (2) Application by a U.S. branch. (i) The submissions listed in paragraphs (h)(1)(i) through (xii) of this section, except that the financial statement of such branch shall show that it has net assets of not less than $250,000 over and above all liabilities; and (ii) Evidence satisfactory to Treasury to establish that it has on deposit in the United States not less than $250,000 available to its policyholders and creditors in the United States. (3) Application for renewal of recognition as an admitted reinsurer. https://www.fiscal.treasury.gov/surety-bonds/. (i) Payment of the application fee in accordance with the provisions of § 223.22; (ii) A copy of the latest available report of its examination by its domiciliary State Insurance Department including a copy of company responses to any significant findings or recommendations; (iii) Annual statements of its financial condition, as of the close of the preceding year, on the annual statement form of the NAIC with all Schedules and Exhibits completed, including copies of the NAIC File Upload, showing that it has paid-up capital of at least $250,000 in cash or its equivalent, in the case of a stock insurance company, or has net assets of not less than $500,000 over and above all liabilities, in the case of a mutual insurance company. The Annual Financial Statement's Jurat Page (only) is to be signed (facsimile signatures are acceptable) by the company President, Secretary, and a Notary Public who shall also affix a notary seal; (iv) IRIS ratio results, and an explanation for any ratios outside the normal ranges as established by the NAIC as of the close of the preceding year; (v) A completed Treasury Schedule F (Form No. TFS 6314), as referenced in § 223.9(c) as of the close of the preceding year; (vi) A Statement of Actuarial Opinion as of the close of the preceding year provided by a qualified actuary, as defined by the NAIC, on the adequacy of all loss reserves with the scope and format of the statement also conforming to the requirements of the NAIC; (vii) A listing of the names of the company's current officers and directors as of the close of the preceding year, including a biographical affidavit of each new officer and director per instructions online at https://www.fiscal.treasury.gov/surety-bonds/; (viii) Such other evidence as Treasury may request to establish that the company is solvent and able to meet the continuing obligation to carry out its contracts. Treasury will publish supplemental guidance annually regarding evidence it may require, submission methods, and format of the data listed in paragraphs (h)(3)(i) through (vii) of this section. (i) Complementary reinsurers. (1) Meet and maintain all capital and surplus, solvency, and market conduct requirements under the applicable Covered Agreement; (2) Be recognized by at least one U.S. state as a Reciprocal Jurisdiction Reinsurer, as defined by the state's credit for reinsurance law or regulation based on the NAIC's Credit for Reinsurance Model Law and Regulation, and submit proof of such recognition; and (3) Submit to Treasury: (i) For initial applications for recognition, all information provided by the company or by the supervisory authority of the company's domiciliary jurisdiction to any U.S. state regulator in the two most recently completed calendar years. (ii) For applications for renewal of recognition, all semi-annual and annual filing information provided by the company or by the supervisory authority of the company's domiciliary jurisdiction to any U.S. state regulator in the most recently completed calendar year. (iii) Payment of the application fee in accordance with the provisions of § 223.22. (j) Alien reinsurers. (1) Be recognized by at least one U.S. state as an “Accredited Reinsurer,” “Certified Reinsurer,” or a “Reciprocal Jurisdiction Reinsurer,” as defined by the state's credit for reinsurance law or regulation based on the NAIC's Credit for Reinsurance Model Law and Regulation, and submit proof of such recognition; (2) Meet and maintain all capital and surplus, market conduct, and other requirements for eligibility as an “Accredited Reinsurer,” “Certified Reinsurer,” or “Reciprocal Jurisdiction Reinsurer” in accordance with the law and regulation of all U.S. states granting it such recognition; and (3) Submit to Treasury: (i) For initial applications for recognition, all information provided to any U.S. state regulator in the two most recently completed calendar years. (ii) For applications for renewal of such recognition, all annual filing information provided to any U.S. state regulator in the most recently completed calendar year. (iii) Payment of the application fee in accordance with the provisions of § 223.22. [89 FR 48835, June 10, 2024] §§ 223.13-223.14 [Reserved] § 223.15 Paid-up capital and surplus for Treasury rating purposes; how determined. Treasury determines the amount of paid-up capital and surplus of any company holding or seeking a certificate of authority or recognized (or seeking recognition) as an admitted reinsurer pursuant to § 223.12(h) on an insurance accounting basis under the regulations in this part, from the company's financial statements and other information, or by such examination of the company at its own expense as Treasury may deem appropriate. [89 FR 48837, June 10, 2024] § 223.16 List of certificate holding companies. A list of certificate holding companies is published annually as of August 1 in Department Circular No. 570, Companies Holding Certificates of Authority as Acceptable Sureties on Federal Bonds and as Acceptable Reinsuring Companies, with information as to underwriting limitations, areas in which listed sureties are licensed to transact surety business, and other details. If Treasury shall take any exceptions to the financial statements submitted by a company or other information pertinent to the company's financial solvency, before issuing Department Circular 570, Treasury shall give a company due notice of such exceptions. Copies of the Circular are available at https://www.fiscal.treasury.gov/surety-bonds/list-certified-companies.html, [79 FR 62001, Oct. 16, 2014, as amended at 89 FR 48837, June 10, 2024] § 223.17 Acceptance and non-acceptance of bonds. (a) Acceptance of bonds. (b) Non-acceptance of bonds. (i) State the intention of the agency to decline bonds underwritten by the company; (ii) State the reasons for or cause of the proposed declination of such bonds; (iii) Provide the company with an opportunity to rebut the stated reasons or cause; and (iv) Provide the company with an opportunity to cure the stated reasons or cause. (2) The agency may decline to accept bonds underwritten by the company if, after consideration of any submission by the company or failure of the company to respond to the agency's notice, the agency issues a written determination that the bonds should not be accepted, consistent with agency authorities. (3) The agency shall articulate its procedures and for cause standards for declining to accept bonds in an agency regulation prior to declining any bonds in specific cases. The agency regulation should be subject to notice and comment rulemaking. “For cause” includes, but is not limited to, circumstances when a surety has not paid or satisfied an administratively final bond obligation due the agency. The agency regulation should define when a bond obligation becomes administratively final under the agency's procedures. Existing agency rules or regulations that substantially comply with, or that are consistent with, the requirement to articulate procedures and standards in advance meet the requirements of this paragraph. (4) Agencies that decline bonds under this section are encouraged to use best efforts to ensure that persons conducting business with the agency are aware that bonds underwritten by the particular certified company will not be accepted. (5) The agency's authority to decline bonds under this section does not apply: (i) When the underlying obligation or other for cause reason that forms the basis for the agency's written determination to decline bonds under paragraph (b)(2) of this section, or the agency written determination to decline bonds, has been stayed or enjoined by a court of competent jurisdiction, or (ii) To otherwise acceptable payment and performance contract bonds, when the agency has already accepted a project bid bond on a contract before making the written determination under paragraph (b)(2) of this section. (6) Notwithstanding any provision of this section, an agency bond-approving official may decline a bond from a Treasury-certified surety without advance notice if the bond is not executed in proper form, or is not in the correct penal sum amount, or is otherwise technically deficient on its face. [79 FR 62001, Oct. 16, 2014, as amended at 89 FR 48837, June 10, 2024] § 223.18 Revocation. (a) Treasury may initiate a revocation proceeding against a Treasury-certified company in one of two ways: (1) Treasury, of its own accord, under § 223.19, may initiate revocation proceedings against the company when it has reason to believe that the company is not complying with 31 U.S.C. 9304-9308 and/or the regulations under this part; or (2) Treasury, under § 223.20, may initiate revocation proceedings against the company upon receipt of a complaint from an agency that the company has not paid or satisfied one or more administratively final bond obligations due the agency. (b) A revocation of a company's certificate of authority under § 223.19 or § 223.20 precludes the company from underwriting or reinsuring additional bonds for any agency, and therefore revokes the company's opportunity to have its bonds presented to any agency bond-approving official for acceptance. [79 FR 62001, Oct. 16, 2014, as amended at 89 FR 48837, June 10, 2024] § 223.19 Treasury-initiated revocation proceedings. Whenever Treasury has reason to believe that a company is not complying with the requirements of 31 U.S.C. 9304-9308 and/or the regulations under this part, including but not limited to a failure to satisfy corporate and financial standards, Treasury shall: (a) Notify the company of the facts or conduct which indicate such non-compliance, and provide the company an opportunity to respond, and (b) Revoke a company's certificate of authority after providing notice to the company if: (1) The company does not respond satisfactorily to Treasury's notification of non-compliance, or (2) The company responded, was provided an opportunity to demonstrate or achieve compliance, and failed to do so. [79 FR 62001, Oct. 16, 2014, as amended at 89 FR 48837, June 10, 2024] § 223.20 Revocation proceedings initiated by Treasury upon receipt of an agency complaint. (a) Agency complaint. (1) The bond obligations that are the subject of the complaint are administratively final under the agency's regulations or other authorities; (2) The company has not paid or satisfied those bond obligations; and (3) The company's obligation to pay or satisfy the bond obligations has not been stayed or enjoined by a court of competent jurisdiction. (b) Documentation of complaint. (1) The agency has determined, consistent with agency authorities, the principal is in default on the obligation covered by the bond. Alternatively, if the default has been litigated, documentation indicating a court of competent jurisdiction has determined the principal is in default; (2) The agency made a written demand with the company on the bond requesting payment or satisfaction on its own behalf, consistent with agency authorities, or on behalf of laborers, materialmen, or suppliers (on payment bonds), based on the default status of the principal; (3) The agency afforded the company the opportunity to request administrative review within the agency contesting the agency's demand on the bond; (4) The agency made a final administrative determination that the bond obligation was due after the completion of such administrative review, or after the time period for the company to request administrative review within the agency has expired; (5) The agency provided the company the opportunity to enter into a written agreement to pay or satisfy the bond; and (6) The company has not made full payment or fully satisfied the demand, and the claim on the bond is past due. (c) Notice to company. (d) Reviewing official and deciding official. (e) Final decision. (2) If the Deciding Official's final decision is that the company's certificate of authority shall be revoked, the Deciding Official will notify the company and the agency of the revocation decision and the basis for such decision. Except as provided in paragraph (g) of this section, the notice will afford the company an opportunity to cure its noncompliance by paying or satisfying the bonds (including payment of any interest, penalties, and fees) forming the basis of the final decision within 20 business days. If the company cures its noncompliance within 20 business days, the complaint against the company will be deemed moot and the company will retain its certificate of authority to write Federal bonds. If the company does not cure its noncompliance within 20 business days, the company's certificate of authority shall be revoked by Treasury without further notice. (f) Standard of review. (g) Consideration of willful conduct. (1) An agency has filed a prior complaint with Treasury requesting that the company's certificate be revoked for a substantially similar bond obligation; (2) The company asserted substantially similar defenses to such bond obligation; (3) Such defenses were considered by the agency under pertinent authorities and dismissed; (4) Treasury made a final decision that revocation of the company's certificate was justified; and (5) Other pertinent factors. (h) Informal hearing. (2) As soon as possible after a written request for an informal hearing is received, the Reviewing Official shall convene an informal hearing, at such time and place as he or she deems appropriate, for the purpose of determining whether the company's certificate of authority should be revoked. (3) The company shall be advised, in writing, of the time and place of the informal hearing and shall be directed to bring all documents, records and other information as it may find necessary and relevant to support its position. (4) The company may be represented by counsel and shall have a fair opportunity to present any relevant material and to examine the administrative record. (5) The complaining agency may be requested by the Reviewing Official to send a representative to the hearing to present any relevant material, and the agency representative may examine the administrative record. (6) The Reviewing Official is authorized to require the submission of additional documentation from the complaining agency and the company to ensure appropriate consideration of relevant factual or legal issues. (7) Formal rules of evidence will not apply at the informal hearing. (8) The formal adjudication standards under the Administrative Procedure Act, 5 U.S.C. 554, 556, and 557, do not apply to the informal hearing or adjudication process. (9) Treasury may promulgate additional procedural guidance governing the conduct of informal hearings. (10) Upon completion of the informal hearing, the Reviewing Official shall prepare a written Recommendation Memorandum addressed to the Deciding Official setting forth findings and a recommended disposition. The Deciding Official will make the final decision whether the company's certificate of authority to write and reinsure Federal bonds should be revoked based on the administrative record. The administrative record consists of the Federal agency complaint referenced in paragraphs (a) and (b) of this section, the company response referenced in paragraph (c), any other documentation submitted to, considered by, or entered into the administrative record by the Reviewing Official, the hearing transcript, and the Reviewing Official's Recommendation Memorandum. (11) The provisions of paragraphs (e), (f), and (g) of this section shall apply to the adjudication of the agency complaint when an informal hearing is conducted. [79 FR 62002, Oct. 16, 2014, as amended at 89 FR 48838, June 10, 2024] § 223.21 Reinstatement. If, after one year from the date that Treasury notifies the company of its decision to decline to renew or revoke the certificate of authority of a company under this part, the company can demonstrate that the basis for the non-renewal or revocation has been cured, as determined by Treasury in its discretion, and that it can comply with, and does meet, all continuing requirements for certification under 31 U.S.C. 9304-9308 and this part, the company may submit an application to Treasury for reinstatement or reissuance of a certificate of authority, which will be granted without prejudice if all such requirements are met. Treasury may waive the one year waiting period for good cause shown, as determined by Treasury in its sole discretion. [89 FR 48838, June 10, 2024] § 223.22 Fees for service of the Treasury Department. (a) Fees shall be imposed and collected, for the services listed in paragraphs (a)(1) through (6) of this section that are performed by Treasury, regardless of whether the action requested is granted or denied. An online payment portal is provided at https://www.fiscal.treasury.gov/surety-bonds/. (1) Examination of a company's application for a certificate of authority as an acceptable surety on Federal bonds or for a certificate of authority as an acceptable reinsuring company on such bonds (see § 223.2(a)); (2) Examination of a company's application for recognition as an admitted reinsurer of surety companies doing business with the United States (see § 223.12(h)); (3) Examination of a company's application for recognition as a complementary reinsurer of surety companies doing business with the United States (see § 223.12(i)); (4) Examination of a company's application for recognition as an alien reinsurer of surety companies doing business with the United States (see § 223.12(j)); (5) Determination of a company's continuing qualifications for annual renewal of its certificate of authority (see § 223.2(b)); or (6) Determination of a company's continuing qualifications for annual renewal of its recognition as an admitted reinsurer, complementary reinsurer, or alien reinsurer (see § 223.12). (b) In a given year a uniform fee will be collected from every company requesting a particular category of service, e.g., determination of a company's continuing qualifications for annual renewal of its certificate of authority. However, Treasury reserves the right to redetermine the amounts of fees annually. Fees are determined in accordance with Office of Management and Budget Circular A-25, as amended. (c) Specific fee information may be obtained from the Surety Bonds Program, or online at https://www.fiscal.treasury.gov/files/surety-bonds/user-fees.pdf. Federal Register [89 FR 48838, June 10, 2024]