CVM Instruction No. 541 of December 20, 2013, as amended by CVM Instructions No. 569/15 and 588/17 and CVM Resolutions No. 6/20 and 8/20

CVM INSTRUCTION NO. 541, OF DECEMBER 20, 2013, WITH THE AMENDMENTS INTRODUCED BY CVM INSTRUCTIONS NO. 569/15 AND 588/17 AND CVM RESOLUTIONS NO. 6/20 AND 8/20.

Provides for the provision of centralized securities depository services.

THE PRESIDENT OF THE SECURITIES AND EXCHANGE COMMISSION - CVM makes public that the Collegiate Body, in a meeting held on December 4, 2013, considering the provisions of art. 1, item VI; art. 8, item I; and art. 24 of Law No. 6,385, of December 7, 1976, arts. 41 and 293 of Law No. 6,404, of December 15, 1976, art. 63-A of Law No. 10,931, of August 2, 2004, arts. 22 to 27 of Law No. 12,810, of May 15, 2013, and Decree No. 7,897, of February 1, 2013, APPROVED the following Instruction:

CHAPTER I – DEFINITIONS AND SCOPE
Section I – The Centralized Depository Service

Art. 1 The centralized securities depository service must be provided by legal entities authorized by the CVM in accordance with this Instruction.

§ 1 The centralized securities depository service provided in the caput comprises the following activities:

I – the custody of securities by the central depository;

II – the control of ownership of securities in a structure of deposit accounts maintained in the name of investors;

III – the imposition of restrictions on the practice of disposal acts of securities, by the final investor or by any third party, outside the central depository environment; and

IV – the handling of movement instructions and events affecting the deposited securities, with the corresponding records in the deposit accounts.

§ 2 The securities deposited in centralized deposit accounts are represented and moved only in the form of bookkeeping records made in said accounts.

§ 3 This Instruction:

I – does not apply to positions held in derivatives markets, except for the provisions of § 4 of art. 35; and

II – applies to financial letters and other instruments that, in the event of public distribution, are subject to the competence of the CVM.

§ 4 For the purposes of this Instruction, investors are considered to be natural or legal persons, investment funds, investment clubs, or non-resident investors, in whose name operations with securities are carried out and who, as clients of custodians, maintain an indirect relationship with the central depository.

Art. 2 The central depository must exercise its activities with probity, good faith, diligence, and loyalty regarding the interests of investors.

Sole paragraph. In exercising its activities, the central depository must adopt all appropriate mechanisms to ensure the existence and integrity of the securities deposited in the centralized deposit accounts.

Art. 3 Centralized depository is a condition:

I – for the public distribution of securities; and

II – for the trading of securities in organized securities markets.

Sole paragraph. The provisions of item I of the caput do not apply to the public distribution of quotas of open investment funds and closed investment funds, not traded in a secondary market.

Sole paragraph. The provisions of item I of the caput do not apply to the public distribution of:

I – quotas of open investment funds;

• Sole paragraph with wording given by CVM Instruction No. 569, of October 14, 2015.

II – quotas of closed investment funds not admitted to trading in a secondary market;

and

II – quotas of closed investment funds not admitted to trading in a secondary market;

• Item II with wording given by CVM Instruction No. 588, of July 13, 2017.

III – structured operation certificates - COE not admitted to trading in a centralized and multilateral system maintained by a market organizer entity.

III – structured operation certificates - COE not admitted to trading in a centralized and multilateral system maintained by a market organizer entity;

and

• Item III with wording given by CVM Instruction No. 588, of July 13, 2017.

III – structured operation certificates - COE not admitted to trading in a centralized and multilateral system maintained by a market organizer entity;

• Item III with wording given by CVM Resolution No. 6, of September 14, 2020.

IV – securities issued by small business companies distributed with exemption from public offering registration through an electronic participatory investment platform, in accordance with specific regulation.

• Item IV included by CVM Instruction No. 588, of July 13, 2017.

IV – securities issued by small business companies distributed with exemption from public offering registration through an electronic participatory investment platform, in accordance with specific regulation;

and

• Item IV with wording given by CVM Resolution No. 6, of September 14, 2020.

IV – securities issued by small business companies distributed with exemption from public offering registration through an electronic participatory investment platform, in accordance with specific regulation;

• Item IV with wording given by CVM Resolution No. 8, of October 14, 2020.

V – audiovisual investment certificates - CAV;

.

• Item V included by CVM Resolution No. 6, of September 14, 2020.

V – audiovisual investment certificates - CAV;

and

• Item V with wording given by CVM Resolution No. 8, of October 14, 2020.

VI – Financial Letters - LF not admitted to trading in a centralized and multilateral system maintained by a market organizer entity.

• Item VI included by CVM Resolution No. 8, of October 14, 2020.

Section II – Structure of Central Depository Participants

Art. 4 The following are considered participants of the central depository:

I – as custodians, legal entities authorized by the CVM to provide securities custody services, for investors or for issuers, in accordance with current regulation;

II – as bookkeepers, legal entities authorized by the CVM to provide securities bookkeeping services, in accordance with current regulation; and

III – trading systems, clearing and settlement systems for operations, and other central depositories with which the central depository maintains a contractual link.

§ 1 The central depository may create differentiated categories of participants intended for other types of agents that use its systems, whose access regime must be defined by the rules provided in art. 39.

§ 2 The central depository must have mechanisms for direct relationship with issuers, for cases of centralized depository of securities when:

I – there are no authorized bookkeepers in accordance with current regulation;

II – there are no custodians providing services for issuers; or

III – direct bookkeeping by issuers is permitted.

§ 3 The relationship between two or more central depositories may consist:

I – through a participation link, in the form of item III of the caput; or

II – by the creation of interoperability mechanisms.

§ 4 In the cases referred to in § 3, the central depositories involved must define rules and procedures intended to ensure:

I – that the transfer of securities between depositories is carried out in a timely manner, considering the interest of investors; and

II – the effectiveness of the reconciliation processes provided in this Instruction and the traceability of the movements carried out.

§ 5 The CVM must previously approve:

I – the rules and procedures referred to in § 4; and

II – the schedule, presented by the central depositories involved, for the establishment of links between them.

Art. 5 The central depository must immediately inform the CVM of the suspension, exclusion, or termination of activities of participants.

CHAPTER II – AUTHORIZATION FOR THE PROVISION OF CENTRALIZED DEPOSITORY SERVICES
Section I – Requirements for Registration

Art. 6 Legal entities, constituted in the form of a corporation or association, that demonstrate having adequate and sufficient financial, technical, and operational conditions, as well as internal controls and segregation of activities, to fulfill the obligations established in this Instruction, may apply for authorization to provide centralized securities depository services.

Art. 7 The entity acting as a central depository may, if previously authorized by the CVM, exercise other activities, provided they are compatible with centralized securities depository services.

Art. 8 The interested party seeking the authorization referred to in art. 6 must:

I – present an economic and financial feasibility study, accompanied by a proposal for minimum equity consistent with the activities developed and proof of the existence of the necessary resources and sources of such resources;

II – have secure and adequate computerized processes and systems for the exercise of its activities, in order to allow the recording, processing, and control of deposit accounts and positions held therein; and

III – present a document proving compliance with the recommendations and principles formulated by the Committee on Payment and Settlement Systems (CPSS) and the International Organization of Securities Commissions (IOSCO).

§ 1 The minimum equity proposed, processes, and systems provided in the caput must be compatible with the size, characteristics, and volume of operations under the responsibility of the applicant, as well as with the nature and type of securities deposited.

§ 2 The applicant must meet the following requirements:

I – establish and maintain adequate technological capacity and sufficient and technically capable human resources to carry out the processes and operate the systems involved in the provision of centralized depository services, including the adoption of training programs;

II – establish and maintain controls and monitoring mechanisms that ensure the security and integrity of its equipment, facilities, and systems, with the creation of access controls, measures to protect the confidentiality of information, and the adoption of other appropriate measures;

III – permanently ensure the quality of its computerized processes and systems, measuring and keeping records of errors, incidents, and interruptions in its operations;

IV – establish and keep updated operational manuals, the general description of the systems to be adopted in the provision of services, the routine flowchart, program documentation, quality controls, physical and logical security regulations, and the list of eligible securities;

V – establish and maintain a structure for duplication and storage of information contained in computerized systems;

VI – have a contingency plan to ensure business continuity and the provision of services;

VII – establish and maintain a structure for the custody of securities with restricted access and verification and security mechanisms that guarantee their integrity; and

VIII – establish and maintain a structure that allows communication and exchange of information with trading, registration, clearing, and settlement systems for operations, and with other central depositories with which it maintains a link.

§ 3 The Superintendence of Market and Intermediary Relations - SMI will define the form and minimum content of the document referred to in item III of the caput, as well as the periodicity for its update after obtaining authorization.

Section II – Authorization Request

Art. 9 The request for authorization to act as a central depository must be formulated by presenting a petition accompanied by the documents described in Annex 9.

Sole paragraph. The CVM may request the applicant for complementary elements and information, as well as conduct investigations it deems necessary.

Art. 10 Authorization is automatically granted if the request is not denied by the CVM within 90 (ninety) days from its presentation, upon protocol.

§ 1 The period referred to in the caput may be interrupted only once, in the event that the CVM requests the applicant for additional documents and information related to the authorization request, resuming a new period of 90 (ninety) days, from the fulfillment of the requirements, for the final manifestation of the CVM.

§ 2 To meet the requirements referred to in § 1, a period not exceeding 60 (sixty) days must be granted.

Section III - Denial of Authorization Request

Art. 11 The request for authorization to provide centralized depository services must be denied if:

I – it is not accompanied by the necessary documents for its appreciation, or if the documents and complementary information requested by the CVM are not provided, within the period fixed in § 2 of art. 10;

II – false information is identified in the presented documents;

III – inaccurate information is identified in the presented documents, which, due to its extent or content, proves relevant for the appreciation of the authorization request;

IV – the applicant does not have the human, technical, and material means or adequate financial resources to provide the services or to comply with the provisions of this Instruction; or

V – the applicant fails to meet any other requirement or condition established in this Instruction.

Sole paragraph. The denial decision referred to in this article is subject to appeal, in the form and timeframes established in current regulation.

Section IV - Cancellation of Authorization

Art. 12 The granted authorization may be canceled:

I – at the request of the central depository;

II – by decision of the CVM, after an administrative process in which the right to defense and broad defense are ensured, in the following cases:

a) when it is found that the authorization to provide centralized securities depository services was obtained through false declarations or other illegal means; or

b) when it is evident that the central depository does not meet the requirements and conditions established in this Instruction;

III – when bankruptcy, judicial or extrajudicial liquidation, or dissolution of the centralized securities depository service provider is decreed;

IV – when a merger, incorporation, or spin-off occurs in which prior authorization for the continuation of central depository services is not obtained in accordance with this Instruction; and

V – when the central depository does not start its activities within the period established in its authorization request or suspends its activities without justification for a period considered relevant by the CVM.

§ 1 In the case provided for in item I of the caput, the central depository must present to the CVM:

I – a petition containing its justifications;

II – a transition plan regarding the custody and control of securities deposited in another central depository or, as applicable, a transfer plan to the records of the issuer or bookkeeper or, in the case of documentary assets, to custodians; and

III – a report from the relevant independent audit company regarding the interruption of services.

§ 2 In the cases of cancellation of authorization referred to in items II to V of the caput, the central depository must present to the CVM, within the period established by it, a transition plan, with a view to transferring to another central depository the data and documents related to the services provided until the moment of cancellation.

§ 3 The plans presented in the form of §§ 1 and 2 must, in any case, be approved, prior to their implementation, by the CVM, which must also establish adequate monitoring mechanisms.

Art. 13 The process referred to in item II of the caput of art. 12 must follow the following procedure:

I – the SMI, after analyzing the evidence it deems necessary, must notify the centralized depository service provider to present a response within 15 (fifteen) days, extendable by at most 10 (ten) days, indicating in the notification:

a) that it is a process that may result in the cancellation of authorization, in accordance with this Section;

b) the authorization that may be canceled by virtue of the process; and

c) in detail, the failures or omissions of the centralized depository service provider, among those described in item II of the caput of art. 12;

II – the centralized depository service provider, within the response period, may:

a) contest the SMI's allegations or justify the unnecessary adoption of measures determined by it; or

b) request a period, not exceeding 60 (sixty) days, to comply with the formulated requirements or remedy the deficiencies pointed out by the SMI; and

III – the SMI, within 10 (ten) days, must decide the case:

a) accepting the central depository's allegations;

b) granting the requested period to comply with the formulated requirements or remedy the deficiencies; or

c) canceling the authorization to provide centralized depository services.

§1 From the decision referred to in item III, letter “c”, an appeal to the Collegiate Body may be filed, within 15 (fifteen) days, with suspensive effect.

§2 The Collegiate Body will decide the appeal in at most 5 (five) ordinary sessions after its distribution to the Rapporteur.

§3 The sanctioning process against administrators, controlling partners, or other responsible parties for the central depository, based on the same facts that give rise to the process referred to in item II of the caput of art. 12, cannot be initiated before the final decision of the latter.

§4 The process referred to in item II of the caput of art. 12 must necessarily be preceded by at least one notification, with a period of at least 30 (thirty) days for compliance, in which the SMI indicates the measures it deems necessary by the centralized depository service provider.

CHAPTER III – PROCEDURES RELATED TO ACTS DEPENDENT ON PRIOR APPROVAL

Art. 14. Without excluding other matters provided in this Instruction, the following are subject to prior approval by the CVM to produce effect:

I – the central depository's operational regulations, referred to in art. 44; and

II – the participants' access rules, referred to in art. 39.

§1 In the matters referred to in this article, the period for approval by the CVM is 20 (twenty) business days from the date of presentation of the respective request, or from the provision of clarifications or complementary information requested by the CVM.

§2 After fulfilling requirements, which may be formulated only once, with a maximum period of 10 (ten) business days for compliance, the CVM will have a period of 10 (ten) business days to manifest, from the presentation of the respective request or from the provision of clarifications or complementary information requested.

§3 If the CVM does not manifest regarding the request or the fulfillment of requirements within the periods referred to in §§ 1 and 2 of this article, the presented documents will be considered approved.

§4 The provisions of this article do not apply to alterations resulting from determinations of other public bodies, regarding matters not covered by the CVM's legal competence.

CHAPTER IV – REGIME APPLICABLE TO INFORMATION
Section I – Information Holding Regime

Art. 15. The central depository must maintain a centralized information system that allows the identification of the investor and the updating of the registration information provided by the custodian providing services to the investor.

Sole paragraph. It is the responsibility of the custodian providing services to investors to ensure the veracity and updating of the investors' information contained in the system referred to in the caput, in accordance with the minimum rules and procedures established by the central depository.

Art. 16. The central depository and other participants, who, due to their activities, have access to such information, must, in accordance with current legislation, maintain confidentiality regarding the securities belonging to each investor.

Section II – Provision of Information

Art. 17. The central depository must provide issuers, custodians of issuers, and bookkeepers, as applicable, with the list of securities in centralized depository and their respective holders, in order to ensure compliance with duties towards investors.

Art. 18. The central depository must make available or send, as applicable, to investors information that allows the identification and verification of events occurring with the securities, containing, at minimum, the consolidated position of securities, their movement, and the events affecting the investor's position.

§ 1 The information provided in the caput must be made available or sent, as applicable:

I – by the 10th (tenth) business day of the month following the end of the month in which movement occurred; and

II – when requested by the custodian, so that the investor may appear or be represented before the issuer of the securities of their ownership or before any third parties, within a period of up to 5 (five) business days from the request, provided they refer to the current year.

§ 2 By the end of February of each year, the information provided in the caput relating to the previous year must be made available or sent to the investor, who may expressly waive receipt.

§ 3 The information provided in the caput may be made available or sent by one of the following forms, according to the CVM's decision, in the form of § 5:

I – consultation of an electronic system with restricted access on the worldwide computer network;

II – sending to the investor's electronic address contained in the system maintained by the central depository, with recognized security standards; or

III – sending to the investor's postal address contained in the system maintained by the central depository.

§ 4º For the provision of statements in the form of items II and III of § 3º, the postal or electronic address of the custodian itself may only be used for statements of its own account, accounts of its directors and employees, and accounts of funds, investment clubs, non-resident investors, or other entities under its discretionary management.

§ 5º The decision referred to in § 3º must be taken by the CVM when authorizing the provision of central deposit services.

§ 6º In cases where the central depository also acts as an entity registering derivative transactions, the consolidated positions resulting from transactions carried out in organized exchange and over-the-counter markets must also be reported to investors, in the manner to be approved by the CVM.

§ 7º The provisions of this article do not apply to the transactions referred to in § 3º of art. 32.

CHAPTER V – RULES, PROCEDURES AND INTERNAL CONTROLS

Section I – General Rules

Art. 19. The central depository must adopt and implement:

I – adequate and effective rules for compliance with the provisions of this Instruction; and

II – procedures and internal controls with the objective of verifying the implementation, application, and effectiveness of the rules mentioned in item I.

§ 1º The rules, procedures, and internal controls referred to in this article must:

I – be in writing; and

II – be verifiable.

§ 2º Non-compliance with the provisions of items I and II of the caput is considered not only the absence or insufficiency of the rules, procedures, and controls referred to therein, but also their non-implementation or inadequate implementation for the purposes provided for in this Instruction.

§ 3º Evidence of inadequate implementation of the rules, procedures, and internal controls includes:

I – the repeated occurrence of failures; and

II – the absence of recording of the application of the methodology, in a consistent and verifiable manner.

Section II – Risk Management

Art. 20. The central depository must maintain risk control systems appropriate for monitoring the risks inherent in its activities.

Sole Paragraph. The risk control systems must define adequate procedures to ensure:

I – the regular functioning and security of the account system maintained by the central depository; and

II – the identification, management, and mitigation of significant risks to the functioning of the central depository, including those arising from the provision of other services or the exercise of additional activities beyond central deposit of securities, as well as those arising from linkage to trading systems, clearing and settlement systems for transactions, and other central depositories.

Section III – Responsible Director

Art. 21. The central depository must designate:

I – a statutory director responsible for compliance with the standards established by this Instruction; and

II – a statutory director responsible for supervising the procedures and internal controls provided for in item II of the caput of art. 19.

§ 1º The appointment or replacement of the statutory directors referred to in items I and II must be reported to the CVM within 7 (seven) business days.

§ 2º The functions referred to in items I and II of the caput cannot be held cumulatively by the same statutory director and cannot be performed jointly with functions that may, in any way, be considered conflicting with them.

§ 3º The directors referred to in items I and II of the caput must act with probity, good faith, and professional ethics, employing, in the exercise of their functions, the care and diligence expected of a professional in their position.

Art. 22. The director referred to in item II of art. 21 must, by the last business day of April:

I – send to the board of directors of the legal entity providing central depository services a report relating to the previous year, containing:

a) the conclusions of the internal audit reports;

b) its recommendations regarding any deficiencies, with the establishment of remediation schedules, where applicable; and

c) its statement regarding the deficiencies found in previous verifications and the measures planned, according to a specific schedule, or effectively adopted to remedy them; and

II – send to the board of directors of the legal entity providing central depository services and to the CVM the report on the description, design, and operational effectiveness of controls (type 2), relating to the previous year, issued by an independent auditor registered with the CVM, prepared in accordance with NBC TO 3402 approved by the Federal Council of Accounting.

Sole Paragraph. The report referred to in item I must be available to the CVM at the headquarters of the central depository.

Section IV – Segregation of Activities

Art. 23. Activities related to the provision of central deposit services must be independent of any others potentially exercised by the same institution.

§ 1º For the purposes of the caput, the central depository must ensure:

I – the physical segregation of the facilities used for the provision of central deposit services from the facilities intended for the provision of other services, or, in the case of shared use of facilities, clear and precise definition of practices that ensure the confidentiality of information held as a result of central deposit of securities activities;

II – the maintenance of confidentiality of information by all administrators, collaborators, and employees of the central depository, with the transfer of confidential information to unauthorized persons or to third parties not subject to the duty of confidentiality towards the central depository being prohibited; and

III – restricted access to electronic and physical files and the adoption of controls that restrict and allow identifying the persons who have access to confidential information.

§ 2º The obligations referred to in § 1º extend to the technological systems used in the provision of central deposit services.

§ 3º The systems referred to in § 2º may be shared in the case of provision of related services, provided that the practices referred to in item I of § 1º are observed.

Section V – Hiring of Third Parties

Art. 24. The central depository may hire third parties to perform instrumental or ancillary tasks to the activities regulated by this Instruction.

§ 1º The hiring of third parties, in the manner provided for in the caput, does not alter the responsibilities of the central depository, which remains responsible for compliance with the obligations assumed towards third parties and with the provisions of this Instruction.

§ 2º The central depository must adopt adequate rules, procedures, and internal controls to ensure security and mitigate conflicts of interest in the event of hiring third parties.

Section VI – Audit

Art. 25. The central depository must maintain an internal audit structure.

§ 1º The reports produced by internal audit must be kept up to date and be available to the CVM.

§ 2º The CVM may determine the carrying out of specific extraordinary audits, if there is indication that the processes and systems used are not meeting, or may not come to meet, their purposes.

CHAPTER VI – CONSTITUTION AND EXTINCTION OF CENTRAL DEPOSIT

Section I – Constitution of Central Deposit

Art. 26. The central deposit is constituted with the transfer of fiduciary ownership of the security, for the purpose of providing central deposit services, in the form of the central depository's regulations.

Sole Paragraph. The securities held in fiduciary ownership at the central depository do not form part of the general assets or special assets potentially held by the central depository and must remain registered in a deposit account in the name of the investor.

Art. 27. The transfer of fiduciary ownership of the security, in accordance with art. 26, is carried out:

I – by means of registration effected in the systems maintained by the central depository, directly by the issuer or the registrar, as the case may be, when the securities are book-entry; or

II – by the specific transfer mechanisms of each security, according to its nature and in accordance with the regulations of the central depository, when the securities are issued in non-book-entry form.

§ 1º In the cases of item I of the caput, registration in the systems maintained by the central depository depends on prior registration of the transfer in the books or systems of the issuer or the registrar, as the case may be.

§ 2º In the cases of item II of the caput, the security issued in non-book-entry form must be subject to custody by a custodian authorized in accordance with the applicable regulation, hired by the issuer or by other institutions responsible for the placement of the security, which must submit to the minimum rules and procedures established by the central depository, including with regard to the right of access of the latter to the securities.

§ 3º The service referred to in § 2º may be provided by the central depository itself, when authorized to provide custody services in accordance with the applicable regulation, or by a custodian hired by it.

§ 4º The provision of the services referred to in § 2º by the issuer of the securities or by the institution that, as holder of the securities, distributes them to the market is prohibited.

Art. 28. In the case of securities backed by other securities, financial assets, or contractual instruments, the central depository must establish, in its regulations, adequate rules, procedures, and internal controls, intended to ensure:

I – that the securities, financial assets, or contractual instruments that serve as collateral are custodied or held by a third party, according to their nature and in accordance with the applicable regulation, with the adoption of all necessary measures to ensure their existence and integrity, as well as effective control over their movements;

II – that the securities, financial assets, or contractual instruments that serve as collateral are not custodied or held, in the manner of item I, by the same institution that originated them;

III – that the rights incident on the securities, financial assets, or contractual instruments that serve as collateral are not assigned to third parties; and

IV – its access to the securities, financial assets, and contractual instruments that serve as collateral.

Art. 29. The constitution of the central deposit may be requested, according to the nature of the securities, by act:

I – of the custodian providing services to the investor;

II – of the issuer of the security, observed the provisions of § 4º of art. 27; and

III – of the holder of the security, when it is a participant of the central depository and has access to the corresponding systems, observed the provisions of § 4º of art. 27.

Sole Paragraph. The central depository must establish, in its regulations, the operational procedures to be adopted in each of the cases provided for in the caput and the obligations and responsibilities of the participants or issuers in each of them.

Art. 30. Once the transfer of the securities to the central deposit regime has been effected, the movement and exercise of rights relating to those securities may only occur in accordance with the regulations of the central depository.

Sole Paragraph. It is incumbent upon the central depository to establish rules, procedures, and controls intended to prevent the carrying out of movements or the exercise of rights over securities that are subject to central deposit in contravention of the provisions of the caput.

Section II – Extinction of Central Deposit

Art. 31. The central deposit and the fiduciary ownership of the central depository over the respective securities are extinguished with:

I – the withdrawal of the security from the central depository resulting from a request by the investor, presented through its custodian, or in the other cases provided for in the regulations of the central depository; or

II – the extinction of the obligations corresponding to the security.

§ 1º In the cases of item I of the caput, the central depository must return to the investor the quantity of securities deposited with the modifications resulting from the respective events incident on them, observed the norms applicable to each case.

§ 2º In the cases of item I of the caput, the transfer of the security to the investor is carried out:

I – by means of registration effected in the systems maintained by the central depository, with the corresponding registration effected at the issuer or registrar, as the case may be, when the securities are book-entry; and

II – by the specific transfer mechanisms of each security, according to its nature and in accordance with the regulations of the central depository, when the securities are issued in non-book-entry form.

§ 3º In the case of item II of § 2º, the central depository's regulations must also establish the cases of transfer of the security to the custodian or directly to the investor, according to the situation and nature of the asset.

CHAPTER VII – DEPOSIT ACCOUNT STRUCTURE

Section I – General Rules

Art. 32. The securities must be maintained by the central depository in deposit accounts individualized by investor and movable by credit or debit.

§ 1º The deposit accounts must be opened, in the name of the investors, by the custodians hired by them.

§ 2º It is incumbent upon the custodians providing services to the investors to carry out all acts of identification of these with the central depository and of representation to carry out acts related to central deposit, observed the minimum rules and procedures established by the central depository.

§ 3º In the case of repo transactions backed by securities carried out between banks and their clients holding demand deposit accounts, the transfer of the securities to a special deposit account of the selling bank is authorized, observed the following conditions:

I – the central depository must be able to individualize and identify the clients who, as a result of the transactions referred to in this paragraph, become holders of the securities, which must be identified by the selling bank in the terms and conditions specified in the Operations Regulation;

II – the special deposit account must be intended exclusively for positions of clients holding demand deposit accounts, being segregated from other accounts intended for the selling bank's own positions, including in the event of insolvency, judicial or extrajudicial reorganization, liquidation, or bankruptcy of the institution;

III – the securities may only return to the selling bank's own position in the event of repurchase; and

IV – if the selling bank fails to fulfill the obligation assumed, the securities must be transferred to the deposit account indicated by the account holder, observed the procedures established in § 4º.

§ 4º The central depository must establish in its operations regulation, the deadlines for communication of the transactions carried out in accordance with § 3º and the procedures for the movement of the securities, including in the event of non-compliance with the transaction by the selling bank.

Art. 33. The central depository's deposit account structure must ensure adequate segregation between:

I – the securities that are in the process of withdrawal, transfer, clearing, and settlement and the other securities existing in the deposit accounts; and

II – the securities encumbered, charged, or deposited as collateral for the other securities maintained in a deposit account or in other transactions.

Section II – Movement of Securities and Constitution of Encumbrances and Liens

Art. 34. The movement of securities must result from commands or authorizations emanating from the investors, communicated to the central depository by means of an instruction issued by their respective custodians.

§ 1º Without prejudice to the provisions of the caput, the occurrence of events that affect the position held may promote alterations, and the regulations and manuals of the central depository must describe the cases in which the respective movements are carried out.

§ 2º The central depository must develop mechanisms for exchanging information with the clearing and settlement systems to which it provides services, in order to allow the sending of all information necessary for the correct settlement of transactions, for the carrying out of any applicable blocks, and for the receipt, in a timely manner, of movement instructions.

Art. 35. The registration of liens and encumbrances on deposited securities, as a result of judicial attachment, constitution of guarantees, or liquidation process in chambers or providers of clearing and settlement services, in accordance with art. 63-A of Law No. 10,931, of August 2, 2004, and art. 26 of Law No. 12,810, of May 15, 2013, must be effected in accordance with the applicable legislation, by means of registration in the corresponding deposit accounts.

§ 1º The central depository must constitute adequate systems and adopt all necessary procedures to ensure the regularity of the constitution of liens and encumbrances, including with the corresponding communications to the issuers or registrars, as the case may be.

§ 2º The system constituted for the purposes of § 1º must allow the identification of records of liens, encumbrances, or other types of guarantees constituted on the deposited securities and adopt procedures aimed at:

I – ensuring the uniqueness and continuity of records on the securities;

II – generating the information necessary for the exercise of the right of pursuit by secured creditors; and

III – controlling access to the information contained in the records of liens and encumbrances constituted within the entity, observed the provisions of the applicable legislation, allowing the issuance of a certificate in favor of any interested parties, in the manner to be approved by the CVM.

§ 3º In regulating the services referred to in the caput, the central depository must expressly provide for:

I – the manner of constitution, rectification, and cancellation of liens, encumbrances, or other types of guarantees, including on sets or universals of securities;

II – the responsibilities, rights, and obligations of those involved in the acts of registration of liens, encumbrances, or another type of guarantee;

III – the rights, obligations, and limits of responsibility of the central depository in carrying out the registrations;

IV – the treatment given to the earnings of the securities subject to liens, encumbrances, or another type of guarantee;

V – the situations and forms of movement of the securities subject to liens, encumbrances, or another type of guarantee;

VI – the treatment applicable to the situations of early maturity of the obligations subject to liens, encumbrances, or another type of guarantee; and

VII – the regime and form of availability of information on the registered transactions, including with regard to the provision of information and issuance of certificates.

§ 4º The provisions of this article also apply to the constitution of encumbrances and liens on positions held in derivative contracts of any nature, provided that the central depository is also authorized to provide registration services for such contracts, in accordance with § 4º of art. 2º of Law No. 6,385, of December 7, 1976, and is capable of ensuring their existence.

Art. 36. The central depository must not accept commands or authorizations that result in negative balances in the deposit accounts.

Art. 37. The transfer of securities is considered definitive and irrevocable at the moment, terms, and conditions established by the regulations of the central depository.

Section III – Reconciliation

Art. 38. The central depository must adopt procedures to ensure the daily reconciliation of the positions held in the deposit accounts held by investors with the position held in its fiduciary ownership.

§ 1º The reconciliation process must ensure that the total of securities of the same species and class deposited in the deposit accounts is equal to the sum of the securities contained in the records of the issuer, the custodian providing services to the issuer, or the registrar, as the case may be, considering the events incident on such securities.

§ 2º The central depository must provide the information necessary for the custodians, registrars, or issuers to proceed with the reconciliation of the securities maintained in the deposit accounts with those maintained in their records.

§ 3º The central depository must maintain a record of the activities carried out in its systems, in order to allow the traceability of the movements carried out.

CHAPTER VIII – REGULATIONS

Section I – Access Rules

Art. 39. The rules regarding access by participants must:

I – differentiate the categories of participants, establishing their form of relationship with the central depository;

II – in the case of the participants referred to in items I and II of the caput of art. 4º, establish objective requirements related to the structure, risk monitoring, human and material resources required, organizational and operational capacity of the participant, and probity and professional capacity of the persons who act on its behalf; and

III – in the case of the participants referred to in item III of the caput of art. 4º, establish objective requirements and the mechanisms considered adequate for purposes of risk control and administration and protection of the integrity of its systems.

§ 1º The rules referred to in the caput of this article must establish the regime and procedures applicable to the relations of the issuers referred to in § 2º of art. 4º with the central depository.

§ 2º The rules referred to in the caput of this article and the procedures adopted based on them must observe the principles of equal access and respect for competition, in central deposit activities and in other activities related to or dependent on them, and must be published on the central depository's page on the worldwide web.

§ 3º The counter-prestations established by the central depository must be reasonable and proportional to the services provided, not constituting a mechanism for undue restriction on access to the services provided by it.

§ 4º The requirements referred to in item II of the main paragraph may include financial requirements, considering the risks of the activities carried out by the participant, and rules for the segregation of activities.

§ 5º Without prejudice to the provisions of this article, the relationships of the central depository with trading systems, clearing and settlement systems, and with other central depositories must be subject to specific contracts, to regulate technical and operational aspects of the relationship.

§ 6º The provisions of this article also apply to the interoperability mechanisms provided for in § 3º of art. 4º.

§ 7º The centralized deposit service of securities and the transfers of securities held in deposit must be offered to participants independently of other services possibly provided by the central depository or entities associated with it.

Art. 40. The central depository is responsible for the continuous monitoring and supervision of the performance of its participants, and must:

I – monitor compliance with the rules and procedures contained in this Instruction and its regulations;

II – judge and impose penalties resulting from the violation of norms that the central depository is responsible for monitoring; and

III – in the case of participants referred to in items I and II of the main paragraph of art. 4º, ensure the regularity of internal procedures, through periodic inspections of the systems and books and records, including accounting, linked to the centralized deposit activity.

Art. 41. The central depository may constitute an association, a controlled company, or a company subject to common control, of specific purpose, which exercises the monitoring and supervision functions referred to in art. 40, or, alternatively, hire an independent third party to exercise such functions.

Sole paragraph. The exercise of monitoring and supervision functions by an association, by a controlled or commonly controlled company, or by hired third parties does not exempt the central depository from its responsibilities.

Art. 42. The central depository, the association, the controlled or commonly controlled company, or of specific purpose, which acts in accordance with art. 41 may require from participants all information necessary for the exercise of its supervisory competence.

Sole paragraph. The central depository, the association or the controlled or commonly controlled company or the third party hired must observe the restrictions arising from the confidentiality to be preserved involving information related to the deposited securities and their holders.

Art. 43. The supervision activities of the central depository must be supported by the regulation referred to in art. 39 and by contractual and adherence mechanisms.

Section II - Operational Regulations

Art. 44. Without prejudice to the specific rules provided for in this Instruction, it is up to the central depository to define rules for the organization and functioning of its activities, covering, in addition to other topics referred to in this Instruction, at least:

I – rules and procedures for the movement of securities in its deposit account system, including for the purpose of settlement of operations;

II – criteria for the eligibility of securities for centralized deposit;

III – regime for the custody, control, and administration of securities;

IV – procedures for the treatment of events affecting securities;

V – procedures adopted for the reconciliation provided for in this Instruction and the respective periodicities;

VI – procedures for the constitution, control, and communication, when applicable, of any liens, encumbrances, or other type of guarantee affecting securities;

VII – rights and obligations of the central depository and other participants involved in the provision of centralized deposit services, including the definition, if applicable, of minimum clauses that must be included in the respective service provision contracts;

VIII – procedures and penalties applicable in cases of non-compliance with duties and obligations provided for in the regulation, as well as the respective events that constitute grounds for the application of such procedures and penalties;

IX – procedures and controls for the administration of operational risk;

X – contingency and recovery plans, with a detailed description of the procedures to be adopted in the event of operational failures, capable of ensuring the continuity of service provision;

XI – rules and procedures for the segregation of activities and aimed at inhibiting the performance of its administrators and employees in cases of conflicts of interest and possession of privileged information; and

XII – regime for the disclosure of changes related to the functioning of centralized deposit services.

Sole paragraph. The rules referred to in the main paragraph and other operational details related to the provision of services must be published on the central depository's page on the worldwide computer network.

Art. 45. The central depository must establish the adherence mechanisms of participants to the rules and procedures applicable to each type of participant, considering their linkage, including, to the chains of obligations and responsibilities.

CHAPTER IX – OFFENSES AND PENALTIES

Art. 46. A serious offense, for the purposes of the provisions of § 3º of art. 11 of Law No. 6.385, of December 7, 1976, is the exercise of activities regulated by this Instruction by an unauthorized person or authorized based on false declarations or documents, as well as the violation of the norms contained in arts. 1º, 2º, 15 to 21, 23, 27 to 32, 34, 35, 38 to 40, 42 and 48 of this Instruction.

CHAPTER X – FINAL PROVISIONS

Art. 47. The central depository that is already authorized or whose registration request has already been filed with the CVM must adapt to the provisions of this Instruction within 1 (one) year and 6 (six) months after the entry into force of the norm.

§ 1º The adaptation process to the provisions of this Instruction must be subject to a detailed schedule to be presented to the CVM within 90 (ninety) days after the entry into force of the norm.

§ 2º Non-compliance with the deadlines referred to in the main paragraph or in § 1º implies the cancellation of the authorization in accordance with arts. 12 and 13 of this Instruction.

Art. 48. The central depository must maintain, for a minimum period of 5 (five) years, or for a longer period by express determination of the CVM, in the event of an administrative process, all documents and information required by this Instruction, as well as all correspondence, internal and external, all reports and opinions related to the exercise of its activities.

Sole paragraph. The documents and information referred to in the main paragraph may be stored in physical or electronic media, allowing the replacement of documents by their digitized images.

Art. 49. This Instruction enters into force on July 1, 2014.

Art. 50. The following are repealed:

I – CVM Instruction No. 89, of November 8, 1988;

II – CVM Instruction No. 115, of April 11, 1990;

III – CVM Instruction No. 212, of May 6, 1994

IV – CVM Instruction No. 261, of April 25, 1997;

V – CVM Instruction No. 310, of July 9, 1999;

VI – CVM Deliberation No. 6, of July 26, 1979;

VII – CVM Deliberation No. 405, of October 10, 2001; and

VIII – CVM Deliberation No. 472, of July 27, 2004.

Original signed by
LEONARDO P. GOMES PEREIRA
President

ANNEX 9
Application for Authorization for the Service of Centralized Deposit of Securities

Art. 1º The application for authorization for the provision of centralized deposit services must be accompanied by the following documents and information:

I – corporate name, registration in the National Registry of Legal Entities – CNPJ, complete address of the headquarters, telephone numbers, fax, email address and website of the institution, and signature card of the legal representatives;

II – constituent acts and subsequent modifications, duly updated and complying with legal formalities, and proof of net worth, as proposed, and sources of resources;

III – a set of documents intended to demonstrate that the applicant has organizational and operational capacity to provide centralized deposit services of securities, considering the technical-operational, organizational, administrative, and financial aspects, with a detailed description of the operational risk management mechanisms, consisting of:

a) presentation of a draft regulation intended to govern the provision of centralized deposit services of securities, establishing the general principles and rules to which its administrators and persons with whom it maintains any type of legal relationship are subordinate;

b) description of the main characteristics of the processes and technological systems that must be used in the provision of services, comprising equipment and communication means that support the systems, with a summary specification of the operational routines intrinsic and extrinsic to the systems, as well as the relevant internal procedures and controls;

c) description of the main characteristics of the operational systems used in the provision of services, including those performed by third parties, comprising, among others, depending on the nature of the system, the centralized deposit of securities, its movement, the processing of custody events, the provision of information to participants and their clients, investors;

d) procedures and basic mechanisms related to technical access to the systems by participants;

e) summary description of security standards regarding installations, equipment, and data;

f) description of human resources allocated to the activity, with specification of the functions and positions necessary for its performance;

g) policy of segregation of activities;

h) contingency plan, file recovery systems, and database;

i) technological and operational contingency environment (contingency site) in a physical space not subject to the same risk as the main environment (main site) that allows the resumption of business quickly and safely, without compromising the integrity of information and business of its participant and the end beneficiary; and

j) copies of the contracts for the cession or development of systems celebrated between the applicant and the company owning the system or responsible for its development, in the event that the systems used for the provision of centralized deposit services were not developed by the applicant;

IV – organizational chart of the applicant, highlighting the area responsible for the execution of the centralized deposit services to be provided;

V – name and qualification of the legal representatives of the applicant;

VI – copy of the minutes of the board of directors or executive board meeting that appointed the directors responsible for compliance with the norms established in this Instruction and for the supervision of the procedures and internal controls of the centralized deposit services of securities;

VII - list of companies in which the central depository holds share participation, including indirectly controlled or affiliated companies;

VIII – legal instrument intended to govern the relationship between the depository and the participant, as provided for in this Instruction;

IX – designation of the independent audit company registered with the CVM that performs the operational audit of the centralized deposit services of securities, as well as a declaration of its independence from the audited entity; and

X – report on the description, design, and operational effectiveness of the controls (type 1), issued by an independent auditor registered with the CVM, prepared in accordance with NBC TO 3402 approved by the Federal Council of Accounting.