Circular No. 3461 — Consolidates rules on procedures for prevention and combat of crimes under Law No. 9,613 of March 3, 1998

CIRCULAR NO. 003461

Consolidates the rules on the procedures to be adopted in the prevention and combat of activities related to the crimes provided for in Law No. 9,613, of March 3, 1998.

The Collegiate Board of the Central Bank of Brazil, in a session held on July 23, 2009, based on the provisions of Arts. 10, item IX, and 11, item VII, of Law No. 4,595, of December 31, 1964, Arts. 10 and 11 of Law No. 9,613, of March 3, 1998, and considering the provisions of the International Convention for the Suppression of the Financing of Terrorism, adopted by the United Nations General Assembly on December 9, 1999, promulgated by Decree No. 5,640, of December 26, 2005,

DECIDED:

Art. 1. Financial institutions and other institutions authorized to operate by the Central Bank of Brazil must implement internal control policies and procedures aimed at preventing their use in the commission of the crimes set forth in Law No. 9,613, of March 3, 1998.

§ 1. The policies referred to in the caput must:

I - specify, in an internal document, the responsibilities of members at each hierarchical level of the institution;

II - include the collection and recording of timely information about clients, allowing for the identification of the risk of occurrence of the aforementioned crimes;

III - define the criteria and procedures for the selection, training, and monitoring of the economic-financial situation of the institution's employees;

IV - include the prior analysis of new products and services, from the perspective of preventing the aforementioned crimes;

V - be approved by the board of directors or, in its absence, by the management of the institution;

VI - receive wide internal dissemination.

§ 2. The procedures referred to in the caput must include measures previously and expressly established, which allow:

I - to confirm the registration information of clients and identify the beneficial beneficiaries of the operations;

II - to enable the characterization or not of clients as politically exposed persons.

§ 3. For the purposes of this circular, an occasional or permanent client is considered any natural or legal person with whom a relationship is maintained, respectively on an occasional or permanent basis, aimed at providing financial services or carrying out financial operations.

§ 4. The procedures referred to in the caput must be reinforced for the start of the relationship with:

I - financial institutions, representatives, or correspondents located abroad, especially in countries, territories, and dependencies that do not adopt registration and control procedures similar to those defined in this circular;

II - clients whose contact is made electronically, through correspondents in the country or by other indirect means.

Maintenance of Updated Registration Information

Art. 2. The institutions mentioned in Art. 1 must collect and keep updated the registration information of their permanent clients, including, at minimum:

I - the same registration information requested from depositors as provided in Art. 1 of Resolution No. 2,025, of November 24, 1993, with the wording given by Resolution No. 2,747, of June 28, 2000;

II - the values of monthly income and assets, in the case of natural persons, and of average monthly revenue for the twelve months prior, in the case of legal persons;

III - a declaration signed regarding the purposes and the nature of the business relationship with the institution.

§ 1. The information relating to a natural person client must cover the natural persons authorized to represent them.

§ 2. The registration information relating to a legal person client must cover the natural persons authorized to represent them, as well as the corporate participation chain, until reaching the natural person characterized as the beneficial owner.

§ 3. Excluded from the provision of § 2 are legal persons constituted as open companies or non-profit entities, for which the registration information must cover the natural persons authorized to represent them, as well as their controllers, administrators, and directors, if any.

§ 4. The registration information relating to an investment fund client must include its respective name, registration number in the National Registry of Legal Entities (CNPJ), as well as the information referred to in item I regarding the persons responsible for its administration.

§ 5. The institutions mentioned in Art. 1 must perform verification tests, with a maximum periodicity of one year, that ensure the adequacy of the registration data of their clients.

Art. 3. The institutions mentioned in Art. 1 must obtain the following registration information from their occasional clients, from the owner, and from the recipient of the resources involved in the financial operation or service:

I - when a natural person, the full name, identification document data (type, number, date of issue, and issuing authority), and registration number in the Individual Taxpayer Registry (CPF);

II - when a legal person, the corporate name and registration number in the CNPJ.

Sole Paragraph. The development of an internal procedure aimed at identifying occasional financial operations or services that do not present a risk of use for money laundering or terrorist financing is admitted, for which the requirement to obtain client registration information is waived, except for compliance with the provisions of Art. 12 of this circular.

Politically Exposed Persons

Art. 4. The institutions referred to in Art. 1 must collect from their permanent clients information that allows them to characterize them or not as politically exposed persons and to identify the origin of the funds involved in the transactions of clients thus characterized.

§ 1. Politically exposed persons are considered public agents who have performed or have performed, in the last five years, in Brazil or in countries, territories, and foreign dependencies, relevant public offices, jobs, or functions, as well as their representatives, family members, and other persons from their close relationship.

§ 2. In the case of Brazilian clients, the following must be covered:

I - holders of elective mandates in the Executive and Legislative Powers of the Union;

II - occupants of positions in the Executive Power of the Union:

a) of minister of state or equivalent;

b) of special nature or equivalent;

c) of president, vice-president, and director, or equivalent, of autarchies, public foundations, public companies, or mixed-economy companies;

d) of the Senior Direction and Advisory Group (DAS), level 6, or equivalent;

III - members of the National Council of Justice, the Federal Supreme Court, and the superior courts;

IV - members of the National Council of the Public Ministry, the Attorney General of the Republic, the Deputy Attorney General of the Republic, the Attorney General of Labor, the Attorney General of Military Justice, the Deputy Attorneys General of the Republic, and the Attorneys General of Justice of the States and the Federal District;

V - members of the Court of Accounts of the Union and the Attorney General of the Public Ministry before the Court of Accounts of the Union;

VI - governors of states and the Federal District, presidents of courts of justice, of Assemblies and Legislative Chambers, presidents of courts and councils of accounts of States, Municipalities, and the Federal District;

VII - mayors and presidents of Municipal Chambers of state capitals.

§ 3. In the case of foreign clients, for the purposes of the caput, the institutions mentioned in Art. 1 must adopt at least one of the following measures:

I - request an express declaration from the client regarding their classification;

II - resort to publicly available information;

III - consult commercial databases on politically exposed persons;

IV - consider the definition contained in the glossary of terms used in the document "The Forty Recommendations" of the Financial Action Task Force (FATF), not applicable to individuals in intermediate or lower positions or categories, according to which a politically exposed person is one who exercises or has exercised important public functions in a foreign country, such as heads of state and government, high-level politicians, high-ranking public servants, magistrates, or high-level military officers, executives of public companies, or executives of political parties.

§ 4. The five-year period referred to in § 1 must be counted retroactively from the date of the start of the business relationship or the date on which the client came to be classified as a politically exposed person.

§ 5. For the purposes of § 1, family members are considered relatives in the straight line up to the first degree, the spouse, the partner, the stepchild, and the stepdaughter.

§ 6. In the case of a business relationship with a foreign client who is also a client of a foreign institution supervised by a governmental entity similar to the Central Bank of Brazil, it is admitted that the measures regarding politically exposed persons be adopted by the foreign institution, provided that access to the respective data and procedures adopted by the Central Bank of Brazil is ensured.

Start or Continuation of Business Relationship

Art. 5. The institutions referred to in Art. 1 must only start a business relationship of a permanent nature or continue an existing relationship of this nature with the client if the measures established in Arts. 2 and 4 are observed.

Records of Financial Services and Financial Operations

Art. 6. The institutions referred to in Art. 1 must keep records of all financial services provided and of all financial operations carried out with clients or in their name.

§ 1. In the case of resource movement by permanent clients, the records must contain consolidated information that allows verification:

I - of the compatibility between the movement of resources and the economic activity and financial capacity of the client;

II - of the origin of the resources moved;

III - of the beneficial beneficiaries of the movements.

§ 2. The recording system must allow identification:

I - of the operations that, carried out with the same person, financial conglomerate, or group, in the same calendar month, exceed, by institution or entity, in their entirety, the value of R$10,000.00 (ten thousand reais);

II - of the operations that, due to their habitual nature, value, or form, constitute an artifice aimed at circumventing the identification, control, and recording mechanisms.

Records of Deposits in Checks, Settlement of Checks Deposited in Another Financial Institution, and Use of Resource Transfer Instruments

Art. 7. The institutions referred to in Art. 1 must keep specific records of resource transfer operations.

§ 1. The recording system must allow identification:

I - of the operations relating to the acceptance in deposits of Available Electronic Transfers (TED), checks, administrative checks, payment order checks, and other compensable documents of the same nature, and to the settlement of checks deposited in another financial institution;

II - of the issuance of administrative checks, payment order checks, payment orders, Credit Documents (DOC), TED, and other resource transfer instruments, when of a value greater than R$1,000.00 (one thousand reais).

§ 2. The records referred to in item I of § 1 carried out by the depositing institution must contain, at minimum, the data relating to the value and number of the deposited check, the clearing code of the drawn institution, the numbers of the agency and deposit accounts of the drawn institution, and the registration number in the CPF or CNPJ of the respective holder.

§ 3. The records referred to in item I of § 1 carried out by the drawn institution must contain, at minimum, the data relating to the value and number of the check, the clearing code of the depositing institution, the numbers of the agency and deposit accounts of the depositing institution, and the registration number in the CPF or CNPJ of the respective holder, the depositing institution being responsible for providing the drawn institution with the data relating to its clearing code and the numbers of the agency and deposit accounts of the depositing institution.

§ 4. In the case of a check used in a simultaneous withdrawal and deposit operation in the same drawn institution, with a view to transferring resources from the issuer's deposit account to a third party's deposit account, the records referred to in item I of § 1 must contain, at minimum, the data relating to the value and number of the drawn check, as well as the numbers of the drawn and depositing agencies and the respective deposit accounts.

§ 5. The records referred to in item II of § 1 must contain, at minimum, the following information:

I - the type and number of the issued document, the date of the operation, the name, and the registration number of the acquirer or sender in the CPF or CNPJ;

II - when paid by check, the clearing code of the institution, the number of the agency and deposit accounts of the drawn institution relating to the check used for the respective payment, including in the case of a check drawn against the same issuing institution of the instruments referred to in this article;

III - in the case of a DOC, the identification code of the recipient institution in the fund transfer settlement system and the numbers of the agency, the deposit account of the depositing institution, and the registration number in the CPF or CNPJ of the respective holder;

IV - in the case of a payment order:

a) intended for credit to an account: the numbers of the recipient agency and the deposit account of the depositing institution;

b) intended for cash payment: the numbers of the recipient agency and the registration of the beneficiary in the CPF or CNPJ.

§ 6. In the case of resource transfer operations involving a natural person resident abroad exempt from CPF registration, as defined by the Brazilian Federal Revenue Secretariat (RFB), the identification provided for in § 5, items I and IV, letter "b", may be carried out by the number of their respective passport, complemented by the nationality of the said person and, where applicable, the international organization of which they are a representative to exercise specific functions in the Country.

§ 7. The identification provided for in § 5, items I and IV, letter "b", does not apply to resource transfer operations involving a legal person with domicile or headquarters abroad exempt from CNPJ registration, as defined by the RFB.

Records of Prepaid Cards

Art. 8. The institutions referred to in Art. 1 must keep specific records of the issuance or reload of values in one or more prepaid cards.

§ 1. The recording system must allow identification of:

I - the issuance or reload of values in one or more prepaid cards, in an accumulated amount equal to or greater than R$100,000.00 (one hundred thousand reais) or the equivalent in foreign currency, in the calendar month;

II - the issuance or reload of values in a prepaid card that presents signs of concealment or dissimulation of the nature, origin, location, disposition, movement, or ownership of assets, rights, and values.

§ 2. For the purposes of the caput, a prepaid card is defined as a card capable of receiving loading or reloading of values in national or foreign currency originating from cash payment, foreign exchange operation, or debit transfer from deposit accounts.

§ 3. The records of the occurrences referred to in items I and II of § 1 must contain the following information:

I - the name or corporate name and the respective registration number in the CPF or CNPJ of the natural or legal person responsible for the issuance or reload of values in a prepaid card, in the case of issuance or reload carried out by a resident or domiciled person in the Country;

II - the name, passport number, and respective issuing country, in the case of issuance or reload of values in a prepaid card carried out by a natural person not resident in the Country or domiciled abroad;

III - the name and the respective registration number in the CPF of the natural person to whom the prepaid card is destined;

IV - the identification of the institutions, agencies, and deposit or savings accounts debited, the names of the account holders, and their respective registration numbers in the CPF, in the case of issuance or reload of values in a prepaid card originating from debit transfers from deposit or savings accounts held by natural persons;

V - the identification of the institutions, agencies, and deposit or savings accounts debited, the names of the account holders, and their respective registration numbers in the CNPJ, as well as the names of the natural persons authorized to move them and their respective registration numbers in the CPF, in the case of issuance or reload of values in a prepaid card originating from debit transfers from deposit or savings accounts held by legal persons;

VI - the date and value of each issuance or reload of values in a prepaid card;

VII - the purpose of the issuance of the prepaid card;

VIII - the name and the respective registration number in the CPF of the natural persons who represent the legal persons responsible for the issuance or reload of values in a prepaid card.

Records of Movements Exceeding R$100,000.00 in Cash

Art. 9. Commercial banks, Caixa Econômica Federal, multiple banks with commercial or real estate credit portfolios, real estate credit companies, savings and loan societies, and credit cooperatives must keep specific records of cash deposit operations, cash withdrawals, cash withdrawals by means of a prepaid card, or requests for provisioning for withdrawal.

§ 1. The recording system must allow identification of:

I - cash deposits, cash withdrawals, cash withdrawals by means of a prepaid card, or requests for provisioning for withdrawal, of a value equal to or greater than R$100,000.00 (one hundred thousand reais);

II - cash deposits, cash withdrawals, cash withdrawals by means of a prepaid card, or requests for provisioning for withdrawal, that present signs of concealment or dissimulation of the nature, origin, location, disposition, movement, or ownership of assets, rights, and values;

III - issuance of administrative checks, TED, or any other instrument of fund transfer against cash payment, of a value equal to or greater than R$100,000.00 (one hundred thousand reais).

§ 2. The records referred to in the caput must contain the information indicated below:

I - the name and the respective registration number in the CPF or CNPJ, as the case may be, of the owner or beneficiary of the resources and of the person who makes the deposit, cash withdrawal, or request for provisioning for withdrawal;

II - the type and number of the document, the number of the institution, agency, and checking deposit account or savings account to which the values are destined or from which the value will be withdrawn, as the case may be;

III - the name and the respective registration number in the CPF or CNPJ, as the case may be, of the holders of the accounts referred to in item II, if in the same institution;

IV - the name and the respective registration number in the CPF, in the case of cash withdrawal by means of a prepaid card whose holder is a resident or domiciled person in the Country;

V - the name and passport number and the respective issuing country, in the case of cash withdrawal by means of a prepaid card whose holder is a non-resident person in the Country or domiciled abroad;

VI - the date and value of the deposit, cash withdrawal, cash withdrawal by means of a prepaid card, or provisioning for withdrawal.

Special Attention

Art. 10. The institutions referred to in Art. 1 must pay special attention to:

I - operations or proposals whose characteristics, with respect to the parties involved, values, forms of realization, and instruments used, or that, due to the lack of economic or legal foundation, indicate a risk of occurrence of the crimes provided for in Law No. 9,613, of 1998, or related to them;

II - proposals for starting relationships and operations with politically exposed persons of Brazilian nationality and those originating from countries with which Brazil has a high number of financial and commercial transactions, common borders, or ethnic, linguistic, or political proximity;

III - signs of circumvention of the identification and recording procedures established in this circular;

IV - clients and operations in which it is not possible to identify the beneficial owner;

V - transactions with clients originating from countries that apply the FATF recommendations insufficiently, according to information published by the Central Bank of Brazil;

VI - situations where it is not possible to keep client registration information up to date.

§ 1º The expression "special attention" includes the following procedures:

I - reinforced monitoring, by adopting more rigorous procedures for the identification of suspicious situations;

II - analysis with a view to verifying the need for the communications referred to in Arts. 12 and 13;

III - evaluation by senior management regarding interest in initiating or maintaining the relationship with the client.

§ 2º Senior management is considered to be any holder of a position or function at a hierarchical level higher than that ordinarily responsible for authorizing the relationship with the client.

Maintenance of Information and Records

Art. 11. The information and records referred to in this circular must be maintained and preserved for the following minimum periods, counted from the first day of the year following the end of the relationship with the permanent client or the conclusion of the operations:

I - 10 (ten) years, for the information and records referred to in Art. 7º;

II - 5 (five) years, for the information and records referred to in Arts. 6º, 8º and 9º.

Sole Paragraph. The information referred to in Art. 2º must be maintained and preserved together with the name of the person responsible for updating the registration, the name of the manager responsible for checking and confirming the information provided, and the date of commencement of the relationship with the permanent client.

Communications to Coaf

Art. 12. The institutions referred to in Art. 1º must communicate to the Financial Activities Control Council (Coaf), in the manner determined by the Central Bank of Brazil:

I - the occurrences referred to in Art. 8º, § 1º, item I, within a period of up to 5 (five) business days after the end of the calendar month;

II - the occurrences referred to in Art. 9º, § 1º, items I and III, on the date of the operation.

Sole Paragraph. Proposals to carry out the operations referred to in the main text must also be communicated to Coaf.

Art. 13. The institutions referred to in Art. 1º must communicate to Coaf, in the manner determined by the Central Bank of Brazil:

I - operations carried out or services provided whose value is equal to or greater than R$10,000.00 (ten thousand reais) and which, considering the parties involved, the values, the methods of execution, the instruments used or the lack of economic or legal basis, may constitute evidence of the crimes provided for in Law No. 9,613, of 1998;

II - operations carried out or services provided that, by their habitual nature, value or form, constitute a device intended to circumvent the mechanisms of identification, control and registration;

III - operations carried out or services provided, regardless of the value, to persons who have knowingly perpetrated or attempted to perpetrate terrorist acts or participated in or facilitated their commission, as well as the existence of resources belonging to or controlled by them directly or indirectly;

IV - suspicious acts of terrorism financing.

§ 1º The provisions of item III also apply to entities owned or controlled, directly or indirectly, by the persons mentioned therein, as well as by persons and entities acting in their name or under their command.

§ 2º Communications of the occurrences referred to in items III and IV must be made by the next business day following the day on which they were verified.

§ 3º Proposals to carry out the operations and acts described in items I to IV must also be communicated to Coaf.

Art. 14. The communications referred to in Arts. 12 and 13 must be made without giving notice to the parties involved.

§ 1º Communications regarding a client identified as a politically exposed person must specifically include this information.

§ 2º The alteration or cancellation of communications made after the fifth business day following their inclusion must be accompanied by a justification of the occurrence.

Art. 15. The communications referred to in Arts. 12 and 13 relating to institutions that are part of a financial conglomerate and to institutions associated with cooperative credit systems may be made, respectively, by the leading institution of the economic conglomerate and by the central credit cooperative.

Art. 16. The institutions referred to in Art. 1º must keep, for a period of 5 (five) years, the documents relating to the analysis of operations or proposals that underpinned the decision to make or not make the communications referred to in Arts. 12 and 13.

Internal Control Procedures

Art. 17. The Central Bank of Brazil will apply, cumulatively or not, the sanctions provided for in Art. 12 of Law No. 9,613, of 1998, in the manner established in Decree No. 2,799, of October 8, 1998, to the institutions mentioned in Art. 1º, as well as to their administrators, who fail to comply with the obligations established in this circular.

Art. 18. The institutions referred to in Art. 1º must indicate to the Central Bank of Brazil a director responsible for implementing and complying with the measures established in this circular, as well as for the communications referred to in Arts. 12 and 13.

§ 1º For the purposes of the responsibility referred to in the main text, it is admitted that the indicated director performs other functions in the institution, except those related to the administration of third-party resources.

§ 2º In the case of financial conglomerates, it is admitted the indication of a director responsible for implementing and complying with the measures established in this circular, as well as for the communications regarding the respective institutions that are part of it.

Art. 19. The Central Bank of Brazil will publish:

I - the procedures to carry out the communications referred to in Arts. 12 and 13;

II - operations and situations that may constitute evidence of the occurrence of the crimes provided for in Law No. 9,613, of 1998;

III - exemplary situations of close relationship, for the purposes of the provisions of Art. 4º.

Art. 20. The updating of registration information relating to permanent clients whose relationships were initiated before the entry into force of this circular must be carried out in accordance with the verification tests referred to in § 5º of Art. 2º.

Art. 21. This circular enters into force on the date of its publication, taking effect 30 (thirty) days after the date of publication for relationships with permanent or occasional clients established from that date.

Art. 22. Circulars Nos. 2,852, of December 3, 1998, 3,339, of December 22, 2006, and 3,422, of November 27, 2008, and Arts. 1º and 2º of Circular No. 3,290, of September 5, 2005, are hereby repealed.

                                   Brasília, July 24, 2009.

     Alexandre Antonio Tombini        Alvir Alberto Hoffmann Director                         Director