Over the last several months our office has filed a series of requests for exemption from the NYDFS’ December 2011 filing guidance that prohibited the use of the certified process with any UL product that had a secondary guarantee. The language of that guidance was much more broad than the Department’s concern, as it was explained to us, but the stakes were way too high (use of an unapproved form) to file certified with any secondary guarantee at all. Kudos goes to the Department for changing their position on these filings.
The NYDFS recently posted a revised notice with an AG38 Certification attached for use in all UL filings with secondary guarantees. While this still may leave room to wonder whether a particular filing really has a legitimate secondary guarantee, at least the only consequence is completing an extra certification. That said, I think the inefficiencies in the new system will arise in UL submissions that do not include a certification. The notice states that the filing of the UL product with a secondary guarantee will be incomplete without this new certification. So how will the administrative personnel who review certified filings know whether a certification is needed? Will they ask a lawyer or actuary to review each UL submission that does not have an AG38 Cert. looking for a feature that might be a secondary guarantee? Will they rely on a statement in the filing description one way or the other?
Only time will tell, but our recommendation so far is that a statement be included one way or the other with the filing and that companies err on the side of including the certification even if they think the DFS does not mean to include their product.
Update and clarification: (10/24/12) It was graciously brought to our attention that our original post was based on the general NYDFS website posting and therefore did not make note of the fact that filers in SERFF will be prompted to provide an explanation of why an AG38 Certification is not included during the process of bypassing the new UL requirement for the certification. This provides yet another reason to use SERFF. Thank you to the commentator who provided this additional information!