ny-DFS-23-26-00013-A: Risk-Based Capital

I.D. No. DFS-23-26-00013-A Filing No. 859 Filing Date: 2026-09-08 Effective Date: 2026-09-23 PURSUANT TO THE PROVISIONS OF THE State Administrative Pro- cedureAct, NOTICE is hereby given of the following action: Action taken: Amendment of Part 77 of Title 11 NYCRR. Statutory authority: Financial Services Law, sections 202, 302; Insurance Law, sections 301, 1322 and 1324 Subject: Risk-Based Capital. Purpose: To eliminate the 1/1/27 sunset date to make permanent the treat- ment of shares of an eligible exchange traded fund as bonds. Text or summary was published in the June 10, 2026 issue of the Register, I.D. No. DFS-23-26-00013-P. Final rule as compared with last published rule: No changes. Text of rule and any required statements and analyses may be obtained from: Michael Campanelli, New York State Department of Financial Ser- vices, One State Street, New York, NY 10004, (212) 480-5290, email: Michael.Campanelli@dfs.ny.gov Initial Review of Rule As a rule that requires a RFA, RAFA or JIS, this rule will be initially reviewed in the calendar year 2029, which is no later than the 3rd year af- ter the year in which this rule is being adopted. NYS Register/September 23, 2026 Assessment of Public Comment The Department of Financial Services (“DFS”) received comment let- ters on the proposed first amendment to 11 NYCRR 77 from a trade as- sociation representing life insurance companies (“insurer trade”), a trade association representing asset managers (“asset management trade”), and four asset management companies that operate exchange-traded funds (“ETFs”) (“ETF sponsorsA, B, C, and D”) . The comment letters from the insurer trade, asset manager trade, and ETF sponsors A, B, C, and D were uniformly supportive of the amendment’s elimination of the January 1, 2027 sunset. In addition, the comment letters requested that the Depart- ment consider expansion of certain of the Regulation’s eligibility require- ments set forth at 11 NYCRR § 77.2. Comment: Each of the commenters requested that DFS amend 11 NYCRR § 77.2(a)(3) to reduce the $1 billion dollar threshold of assets under management (“AUM”) to $100 million. Response: As stated in the alternatives section of the regulatory impact statement, DFS considered a reduced AUM level but concluded that a reduction of the AUM threshold would expose insurers to smaller funds, which are generally more volatile as their smaller size constrains their ability to diversify their portfolios.Although the asset management trade’s comment letter provided some data indicating that the degree of volatility was not “materially” excessive, the fact remains that ETFs with $100 mil- lion AUM are more volatile than ETFs with AUM of $1 billion or more. Therefore, DFS did not make any changes in response to this comment. Comment: The insurer trade, asset manager trade, and ETF sponsorsA, B, and D requested that DFS amend 11 NYCRR § 77.2(a)(2) to eliminate the requirement that ETFs track an index to be eligible for bond treatment