Circular No. 3682 — Approves the regulation governing payment services within payment arrangements of the Brazilian Payments System (SPB)

CIRCULAR NO. 3,682, OF NOVEMBER 4, 2013

Approves the regulation governing the provision of payment services within payment arrangements integrated into the Brazilian Payments System (SPB), establishes the criteria according to which payment arrangements will not be part of the SPB, and provides other measures.

The Collegiate Board of the Central Bank of Brazil, in an extraordinary session held on November 1, 2013, based on Articles 6, 9, and 15 of Law No. 12,865, of October 9, 2013, and considering the provisions of Resolution No. 4,282 of November 4, 2013,

RESOLVES:

Art. 1. The Annexed Regulation, which governs the provision of payment services within payment arrangements (arrangements) integrated into the Brazilian Payments System (SPB), is hereby approved.

Art. 2. The following arrangements do not integrate the SPB:
I - those of limited purpose, examples of which include those whose payment instruments are:
a) accepted only in the network of establishments that clearly present the same visual identity as the issuer, such as franchisees and other establishments that maintain a license to use the issuer's brand; b) intended for the payment of specific public services, such as public transportation and public telephony; II - in which the set of participants presents, in a consolidated manner, volumes lower than:
a) R$20,000,000.00 (twenty million reais) in total transaction value, accumulated over the last 12 (twelve) months; b) 1,000,000 (one million) transactions, accumulated over the last 12 (twelve) months; c) R$2,000,000.00 (two million reais) in resources deposited in a payment account on 30 (thirty) days, over the last 12 (twelve) months; and d) 100,000 (one hundred thousand) active end users on 30 (thirty) days, over the last 12 (twelve) months.

Art. 3. If the Central Bank of Brazil considers that a certain arrangement poses a risk to the normal functioning of retail payment transactions based on the parameter defined in Article 6, sole paragraph, item VI, of Resolution No. 4,282, of November 4, 2013, its sponsor will be officially notified of the decision.

Sole paragraph. The rules applicable to arrangements that integrate the SPB, including any eventual need for authorization to operate, shall apply to the arrangement and its sponsor after 180 (one hundred and eighty) days, counted from the date of receipt of the communication referred to in the caput.

Art. 4. In order to allow the continuous evaluation by the Central Bank of Brazil of risks to the normal functioning of retail payment transactions, sponsors of arrangements not integrated into the SPB, in accordance with Article 2, item II, of this Circular, are obliged to provide the following information:
I - registration data with identification of the director of the arrangement sponsor, or person responsible for attending to the demands of the Central Bank of Brazil related to issues concerning the arrangement, correspondence address, telephone, and electronic address; II - the purpose, the type of relationship, and the territorial scope of the arrangement, as provided in Articles 8, 9, and 10 of the Regulation annexed to this Circular, respectively; III - a summary description of the characteristics of the payment instrument issued within the arrangement; IV - statistics of:
a) total value of payment transactions; b) values deposited in payment accounts; c) quantity of transactions; d) quantity of active end users.

Sole paragraph. The information referred to in the items of the caput must be updated annually with the Central Bank of Brazil, with the deadline for submission being the last business day of the first quarter of the year and the base date being the last business day of the previous calendar year.

Art. 5. Payment institutions authorized to operate by the Central Bank of Brazil that, in accordance with item II of Article 2 of Circular No. 3,438, of March 2, 2009, are holders of a Settlement Account at the Central Bank of Brazil may participate directly, for settlement purposes, in the clearing and settlement systems of interbank orders for funds transfer, in which case each entity will act as:
I - issuing or receiving institution of the Available Electronic Transfer (TED) referred to in Circular No. 3,115, of April 18, 2002; II - receiving or destination institution, regarding payment slips referred to in Circular No. 3,598, of June 6, 2012; and III - sending or destination institution of a Credit Document (DOC), referred to in Circular No. 3,224, of February 12, 2004.

Sole paragraph. The payment institution must observe the compatibility of the issuance or receipt of interbank orders for funds transfer with the authorization to operate granted by the Central Bank of Brazil.

Art. 6. This Circular enters into force 180 days after the date of its publication.

Aldo Luiz Mendes
Monetary Policy Director

This text does not replace the published in the DOU of 11/6/2013, Section 1, p. 18-20, and in Sisbacen.

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REGULATION ANNEXED TO CIRCULAR NO. 3,682, OF NOVEMBER 4, 2013

Governs the provision of payment services within payment arrangements integrated into the Brazilian Payments System (SPB), as provided for in Law No. 12,865, of October 9, 2013, and Resolution No. 4,282, of November 4, 2013.

CHAPTER I
SCOPE OF APPLICATION

Art. 1. The provisions of this Regulation apply to payment arrangements that integrate the Brazilian Payments System (SPB), as well as their sponsors, governing the provision of a certain payment service to the public, in accordance with Law No. 12,865, of October 9, 2013, and Resolution No. 4,282, of November 4, 2013.

CHAPTER II
DEFINITIONS

Art. 2. For the purposes of this Regulation, the expressions and terms related are defined as follows:
I - closed payment arrangement: a payment arrangement in which the management of electronic money or, cumulatively, the management of the account, the issuance, and the accreditation of the payment instrument are carried out by only one payment institution, whose legal entity is the same as that of the sponsor of the arrangement; II - payment transaction authorization: the process of confirming the classification of a payment transaction to the requirements previously established in the arrangement's regulation, especially regarding risk management, for the purpose of approving the transaction; III - interoperability between arrangements: a mechanism that enables, through compatible rules, procedures, and technologies, the flow of resources between different payment arrangements; IV - interoperability between participants of the same arrangement: a mechanism that enables, through compatible rules, procedures, and technologies, that different participants of the same arrangement relate to each other in a non-discriminatory manner; V - network service provider: entity that makes network infrastructure available for the capture and routing of payment transactions; VI - active end user: the natural or legal person who has used, in the last 90 (ninety) days, a payment service governed by the arrangement.

CHAPTER III
SPONSORS OF PAYMENT ARRANGEMENTS

Art. 3. The sponsor of the arrangement must be constituted in the country as a legal entity with a corporate object compatible with the establishment of payment arrangements.

Sole paragraph. The sponsor of the arrangement must possess:
I - technical-operational, organizational, administrative, and financial capabilities to fulfill the obligations listed in Article 4; and II - effective and transparent governance mechanisms so as to include, among others, the interests of the participants and the end users.

Art. 4. The sponsor of the arrangement is obliged to establish procedures that cover the following subjects:
I - management of the risks to which participants incur due to the rules and procedures governing the provision of payment services referred to in the arrangement; II - minimum operational aspects to be met by participants, related, among others:
a) to the prevention of foreign exchange offenses, money laundering, and combating the financing of terrorism, including with respect to the maintenance of end user information of the payment service; b) to business continuity management, including disaster recovery plan; c) to information security; d) to information reconciliation between participants; e) to service availability; and f) to the capacity to provide services. III - provision of information and minimum instructions to be provided by participating institutions to end users of the offered services; IV - monitoring of fraud in each participating institution; V - settlement of transactions between the participating institutions of the arrangement; VI - interoperability between participants of the arrangement; and VII - interoperability with other payment arrangements, including the provision for transfer of resources to other payment arrangements.

§ 1. The sponsor of the arrangement must monitor and attest to the compliance by the arrangement participants of the requirements established in this article.

§ 2. It is optional for the sponsor of the arrangement to conduct tests, audit participants, or use other means deemed necessary to certify compliance with the established procedures.

§ 3. When the sponsor of the arrangement can perform the activities mentioned in this article by several equivalent means, the least burdensome mode for the participant must be used.

§ 4. Interoperability between payment arrangements must occur based on agreements that provide for the rights and obligations between the sponsors of the arrangements involved.

§ 5. In case of interoperability between an arrangement integrated into the SPB and another not integrated, it is up to the sponsor of the first to guarantee that the second complies, at minimum, with the obligations referred to in items I, II, letters "a", "c", and "d", III, and IV of the caput.

Art. 5. In the execution of the activities mentioned in Article 4, the sponsor of the payment arrangement must act in a neutral manner, so as not to use its position to obtain undue competitive advantage for a participant or to harm competition between the participants of the arrangement.

Art. 6. The sponsor of the arrangement must observe the requirements regarding the implementation of internal control systems referred to in Resolution No. 2,554, of September 24, 1998.

Art. 7. The information that proves the execution of the activities referred to in this chapter must be kept updated and available to the Central Bank of Brazil.

CHAPTER IV
PAYMENT ARRANGEMENTS

Section I
Types

Art. 8. Regarding its purpose, an arrangement can be classified as:
I - purchase, when the payment service governed by the arrangement is linked to the settlement of a certain obligation; or II - transfer, when the payment service governed by the arrangement is not necessarily linked to the settlement of a certain obligation.

Art. 9. Regarding the relationship of end users with the participating institution, an arrangement can be classified as:
I - prepaid payment account;
II - postpaid payment account;

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III - demand deposit account; or
IV - occasional relationship, when the payment service can be performed from or to a client who does not possess, in the sending institution or in the destination institution, respectively, an account that is movable through a payment instrument governed by the arrangement.

Art. 10. Regarding territorial scope, an arrangement can be classified as:
I - domestic, when the payment instrument governed by the arrangement can only be issued and used in national territory; or II - cross-border, when the payment instrument governed by the arrangement is issued in national territory to be used in other countries or is issued outside national territory to be used in the country.

Sole paragraph. Cross-border arrangements that govern rules and procedures related to the provision, in national territory, of at least one of the activities referred to in the letters of item III, Article 6, of Law No. 12,865, of October 9, 2013, are considered integrated into the SPB.

Section II
Participation

Art. 11. Payment institutions, financial institutions, and network service providers become participants by adhering to a payment arrangement.

Art. 12. Participation criteria must be public, objective, non-discriminatory, compatible with the activities performed by the participant and with a focus on the security and efficiency of the arrangement and the market it serves.

Art. 13. The minimum conditions for participation in arrangements are:
I - to possess authorization, granted by the Central Bank of Brazil, to act in a certain type of payment service, in the case of payment institutions and financial institutions; and II - to meet the participation requirements defined in the arrangement's regulation.

§ 1. The participation referred to in the caput must be formalized through a contract, which must, in the case of a payment institution and a financial institution, identify the types of participation for which authorization is being granted, and acting in a type not contemplated in the contract is prohibited.

§ 2. Participation contracts must be kept updated and available to the Central Bank of Brazil.

Art. 14. It is prohibited for the sponsor of the arrangement to link the practice of a certain activity to another, except in the following cases:

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I - manage payment account and issue payment instrument; II - manage payment account and convert physical or book money into electronic money; and III - others, to be defined on a case-by-case basis by the Central Bank of Brazil, considering the need to promote the efficiency and security of payment services provided within the arrangement.

Art. 15. The provisions of this Section do not apply to activities that, within closed arrangements, must be performed exclusively by its sponsor.

Section III
Authorization for the Sponsor of Payment Arrangements

Art. 16. The sponsor of the arrangement must instruct the authorization request with the following documents and information:
I - the description of the main characteristics of the business, containing, at minimum, indication of the payment services to be provided, target audience, area of operation, short-term goals, and long-term strategic objectives, location of the headquarters and any dependencies; II - the bylaws or articles of association of the arrangement sponsor and their amendments, in the case of existing arrangements, or the drafts of the constitutive corporate acts, in the case of new arrangements; III - the identification of the members of the control group of the sponsor and the holders of qualified participation, with their respective corporate participations, as defined in Article 6 of Resolution 4,122, of August 2, 2012, when applicable; IV - the description of the governance structure of the arrangement sponsor; V - the identification of the directors appointed to the statutory and contractual bodies; VI - the identification of the director responsible for attending to the demands of the Central Bank of Brazil related to issues concerning the arrangement; VII - the functional organizational chart of the arrangement sponsor, containing indication of the number of people assigned to each area or function and the total number of employees; VIII - the regulation containing the operating rules of each arrangement, as detailed in Article 17; and IX - the models of contracts for the different types of participation in the arrangement, when applicable.

Sole paragraph. The Central Bank of Brazil, during the authorization process, may call for technical interviews, conduct inspections, or request any additional documents and information deemed necessary to evidence the capacity of the arrangement sponsor to fulfill its corporate object, considering the technical-operational, organizational, administrative, and financial aspects.

Art. 17. The regulation referred to in item VIII of Article 16 must contain, clearly and objectively, the detailed description of all operating rules of the arrangement, including, when applicable, the following information:
I - the purpose of the arrangement, as provided in Article 8; II - the type of relationship of end users with the participating institution, as provided in Article 9; III - the territorial scope of the arrangement, as provided in Article 10; IV - the detailed description of the characteristics of the payment instrument issued within the arrangement; V - the rules for the use of the payment account; VI - the types of payment transactions made available; VII - the rules for the use of the brand; VIII - the provision for types of participants, specifying the criteria and requirements for participation, suspension, and exclusion of participants; IX - the detailed description of the payment transaction authorization process, including applicable criteria, assignment of responsibilities between participants, and definition of the moment when the transaction is considered authorized within the arrangement; X - the identification of the reasons for return of payment transactions; XI - the definition of the clearing and settlement system used in settlement between different participating institutions of the arrangement; XII - the definition of the maximum deadlines for sending the payment transaction to the clearing and settlement system and for making resources available for free movement by the recipient of the payment transaction; XIII - the identification of the risks to which participants incur due to the rules and procedures governing the provision of payment services referred to in the arrangement and the mechanisms used for their management; XIV - the structure of fees and other forms of remuneration, including those charged by the arrangement sponsor and the fees charged between participants; XV - the delimitation of responsibilities between the arrangement sponsor and its participants; XVI - the delimitation of responsibilities between the participants of the arrangement;

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XVII - the governance of decision-making processes within the arrangement; XVIII - the rules for dispute resolution; XIX - the penalties applicable in case of non-compliance with contractual business rules; XX - the criteria and conditions for outsourcing of activities; XXI - the minimum standards related to operational requirements to be adopted by the participating institutions of the arrangement, as referred to in Article 4, item II; XXII - the mechanisms of interoperability between participants of the arrangement; and XXIII - the mechanisms of interoperability with other arrangements, including the provision for transfer of resources between them.

§ 1. The regulation must be clear, objective, and publicly accessible, enabling participants and end users of the arrangement to have adequate information about their rights, duties, costs, and eventual risks incurred when participating in the arrangement.

§ 2. The arrangement must govern the entire process of provision of the payment service, including, among others, the making available of resources for free movement by the recipient of the payment transaction.

§ 3. The sponsor of the arrangement must timely disclose to all participants any changes related to the operation of the arrangement established by it.

Art. 18. Changes in the documents and information required in the authorization request, referred to in Articles 16 and 17, must be submitted to prior authorization by the Central Bank of Brazil, when they refer to aspects related to:
I - the purpose, type, and territorial scope of the arrangement, in accordance with Articles 8 to 10; II - the characteristics of the instrument offered within the arrangement; III - the participation conditions that have the potential to limit competition in the provision of payment services by different participants of the arrangement; IV - the governance of decision-making processes within the arrangement; V - the risk management mechanisms incurred by participants; and VI - the settlement of transactions and the making available of resources to the recipient.

Sole paragraph. Changes in the other documents and information must be communicated to the Central Bank of Brazil at least 30 (thirty) days before the production of their effects.

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Art. 19. The founder of an arrangement is exempt from the authorization request if the arrangement falls into at least one of the following situations:

I - established by a government entity;

II - its participants are exclusively banking financial institutions; or

III - presents an annual value of payment transactions lower than R$100,000,000.00 (one hundred million reais) and an annual quantity of transactions lower than 5,000,000 (five million).

§ 1º The founder of an arrangement that falls under items II and III of the main text must send and keep updated, before the Central Bank of Brazil, the information listed in items I to III of art. 4 of the Circular that approves this Regulation.

§ 2º The founder of an arrangement that meets the exemption criteria may be submitted to the authorization process when, at the discretion of the Central Bank of Brazil, a risk to the normal functioning of retail payment transactions is identified.

§ 3º In the situation described in § 2º, the founder of the arrangement will be notified by the Central Bank of Brazil regarding the decision and will have a period of 90 (ninety) days, counted from the date of receipt of the notice, to submit the authorization request.

§ 4º The founder of an arrangement exempt from the authorization request based on item III of the main text must monitor the evolution of the total value and quantity of payment transactions carried out, in order to foresee, in a timely manner, the exceeding of the established limits.

§ 5º The founder of an arrangement that exceeds the limits established in item III of the main text must submit an authorization request within 30 (thirty) days, counted from the exceeding of the limits.

§ 6º In situations where a certain arrangement has projected volumes for the next 12 (twelve) months higher than the limits stipulated in item III, it is optional for its founder to submit an authorization request.

Section IV

Of the Cancellation of Authorization

Art. 20. The closure of the set of activities carried out within the scope of the arrangement, when by the will of the authorized founder, must be preceded by a request for cancellation of the authorization subject to the approval of the Central Bank of Brazil.

§ 1º The cancellation request must contain an orderly exit plan, encompassing, at minimum, the following aspects:

I - the period foreseen for the closure of activities;

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II - the draft of the statement of purpose, to be subsequently published in a newspaper with circulation compatible with the scope of the payment service regulated by the arrangement; and

III - the mechanisms to be adopted to mitigate any risks to the normal functioning of retail payment transactions, when applicable, especially regarding:

a) the form and period for the settlement of pending transactions;

b) the form and period for withdrawing resources stored in payment accounts; and

c) the possibilities of alteration in the organization and governance structure of the arrangement, in order to allow participants to organize to replace the founder, provisionally or permanently.

§ 2º The approval of the authorization cancellation request by the Central Bank of Brazil does not exempt the founder from obligations arising from its contractual relationships.

Section V

Of Surveillance

Art. 21. The Central Bank of Brazil will exercise the activity of surveillance of the arrangements that are part of the SPB, with the founders having the duty to provide information and documents in the form and period established.

Sole paragraph. Among other information and documents referred to in the main text, the Central Bank of Brazil may request:

I - statistics related to the use of the payment service regulated by the arrangement;

II - list of participants and activities performed by them;

III - fraud records;

IV - dispute resolution records; and

V - audit reports.

Art. 22. The surveillance of the arrangements may be extended to third-party companies, at the discretion of the Central Bank of Brazil, if they carry out important stages related to the activities mentioned in art. 4.

Sole paragraph. For the purposes of the provision in the main text, outsourcing contracts must contain a clause establishing the obligation for the contracted company to provide the contracting company with information and documents about its activities, if requested by the Central Bank of Brazil, in the exercise of surveillance referred to in this Section.

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Art. 23. Surveillance will be exercised, among other forms, through:

I - monitoring of the arrangement;

II - monitoring of the activities performed by the founder of the arrangement;

III - determination of alteration in the procedures referred to in art. 4;

IV - determination of alteration in the rules related in art. 17; and

V - inspections.

CHAPTER V

OF TRANSITIONAL PROVISIONS

Art. 24. The founder of an arrangement subject to an authorization request whose payment service is already in operation at the time of the publication of this Circular must submit this request to the Central Bank of Brazil within 180 (one hundred and eighty) days after the entry into force of this Circular.