CVM Resolution No. 36 of May 26, 2021

SECURITY AND EXCHANGE COMMISSION OF BRAZIL
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CVM RESOLUTION NO. 36, OF MAY 26, 2021
Establishes norms and procedures for the organization and operation of commodity brokers and revokes CVM Instruction No. 402, of January 27, 2004.

THE PRESIDENT OF THE SECURITY AND EXCHANGE COMMISSION OF BRAZIL – CVM makes it known that the Board, in a meeting held on May 25, 2021, based on the provisions of arts. 8, I, 15, VI, and 16 of Law No. 6,385, of December 7, 1976, as well as arts. 5 and 14 of Decree No. 10,139, of November 28, 2019, APPROVED the following Resolution:

CHAPTER I – SCOPE AND PURPOSE
Art. 1 This Resolution establishes norms and procedures for the organization and operation of commodity brokers that trade or register transactions with securities on commodity and futures exchanges. Sole paragraph. For the purposes of this Resolution, a commodity broker is considered to be the company authorized to trade or register transactions with securities on commodity and futures exchanges.

CHAPTER II – ACTIVITY
Art. 2 The commodity broker, to operate, depends on prior registration with the CVM, in accordance with the provisions of art. 11 of this Resolution.
Sole paragraph. To obtain the registration referred to in this article, the broker must:
I – be constituted as a corporation or limited liability company; II – indicate to the CVM a statutory director or managing partner technically qualified, in accordance with the provisions of art. 8, who will be responsible for compliance with the provisions of this Resolution; and III – adopt, in its name, the expression “commodity broker”.

CHAPTER III – EQUITY INTEREST OR SHARES
Art. 3 For the purposes of this Resolution, a member of the commodity and futures exchange is considered to be the associate or shareholder, depending on the legal form of organization.
Sole paragraph. The quality of member may constitute a condition for authorization to operate, as provided in the bylaws of the commodity and futures exchange.

CHAPTER IV – OPERATIONAL NORMS
Art. 4 The commodity broker is responsible, in transactions carried out on commodity and futures exchanges, towards its clients, towards other intermediaries for whom it has operated or is operating, and towards the exchange itself:
I – for its good and effective settlement;
II – for the legitimacy of the securities delivered for any reason, as well as for their regular receipt and delivery, endorsement or transfer; III – for the implementation of records, in the name of the clients linked to it and in compliance with orders issued by them; IV – for the legitimacy of the power of attorney and other documents necessary for the transfer of securities; and V – for compliance with and adoption of high standards of integrity and ethics.

Art. 5 The commodity broker is obliged to maintain confidentiality of the operations and services provided, including the names of its clients, revealing them only with authorization given by them or in accordance with the legislation and regulations in force. § 1 The commodity broker must, in the event of default or infringement of legal or regulatory norms by a client, and regardless of the judicial or extrajudicial measures applicable, communicate the facts to the commodity and futures exchange, requesting, if appropriate, the adoption of the corresponding procedures for the execution of the defaulting client's guarantees and, including, disclosure to the market. § 2 If the guarantees that are to be executed in accordance with § 1 are owned by third parties or have been provided by third parties, for any reason, it is mandatory for the commodity and futures exchange to carry out the corresponding disclosure to the market. § 3 In the event of default by a client, the commodity broker must, in any case, identify for the commodity and futures exchange the operations that led to the default, proving their regularity, as well as the diligence carried out to collect from the client.

Art. 6 The commodity broker must meet equity and financial requirements, according to criteria established by the commodity and futures exchange.

Art. 7 It is prohibited for the commodity broker, in the specific exercise of its functions:
I – carry out operations that characterize, in any way, the granting of financing, loans or advances to its clients; II – acquire assets not intended for own use, except those received in settlement of debts of difficult or doubtful solution, in which case they must be sold within a period of one year, counted from receipt, extendable up to 2 (two) times, at the discretion of the CVM; III – obtain loans or financing from financial institutions, except those linked to the acquisition of assets for own use and to the execution of activities provided for in the respective corporate purpose, in accordance with the legislation in force; and IV – carry out operations involving a final client who does not have registration identification at the commodity and futures exchange, in accordance with the legislation in force.

CHAPTER V – ADMINISTRATION
Art. 8 Only natural persons, residents in Brazil, who present the following documents may be administrators of a commodity broker:
I – application from the broker containing the indication of the managing partner or statutory director referred to in item III of the sole paragraph of art. 2 of this Resolution; II – brief curriculum vitae, containing personal information (full name, nationality, residential, electronic and correspondence address, contact telephone numbers, CPF and identity numbers), academic background and professional data that evidence their experience in the securities, commodities and futures market; III – declarations stating under penalty of law:
a) that they are not disqualified from holding a position in financial institutions and other entities whose operation depends on authorization from the CVM or the Central Bank of Brazil, Superintendence of Private Insurance and National Superintendence of Complementary Pension; b) that they have not been criminally convicted, by a final and unappealable decision, except in the case of rehabilitation; c) that they are not included in the Register of Issuers of Bounced Checks of the Central Bank of Brazil; d) that they have not, in the last 5 (five) years, been an administrator of an entity subject to the control and supervision of the CVM, the Central Bank of Brazil, the Superintendence of Private Insurance or the National Superintendence of Complementary Pension, which has had, during this period, its authorization revoked or has been subjected to a regime of bankruptcy, judicial reorganization, intervention, extrajudicial liquidation or submitted to a regime of temporary special administration; e) if they have been convicted, in the last 5 (five) years, for violation of the legislation of the CVM, Central Bank of Brazil, National Superintendence of Complementary Pension and Superintendence of Private Insurance, specifying the respective nature; and f) that they commit to notify the CVM in the event of alteration of their registration data. Sole paragraph. The CVM may, at its discretion, require additional documents and information deemed necessary for the authorization to exercise the position of administrator of a commodity broker and proof of its integrity and technical capacity.

CHAPTER VI – FINANCIAL STATEMENTS
Art. 9 The commodity broker must prepare monthly balance sheets and, on the last day of the months of June and December of each year, financial statements that must be audited by an independent auditor registered with the CVM.

Art. 10 The commodity broker is subject to the norms on the preparation and disclosure of financial statements applicable to securities brokerage companies.
§ 1 The following documents related to the activity of the commodity broker must be available to the CVM and sent to the commodity and futures exchange:
I – monthly balance sheets, within 15 (fifteen) days after the end of each month; and II – financial statements, as well as opinions and reports from the independent auditors referred to in art. 9 of this Resolution, within 90 (ninety) days from the end of each period. § 2 The commodity broker must disclose the balance sheets, financial statements and respective audit opinions within the same deadlines referred to in § 1 on its website on the World Wide Web, if any, and on the page of the commodity and futures exchange to which it is linked.

CHAPTER VII – REGISTRATION OF THE COMMODITY BROKER
Section I – Registration Application
Art. 11 The registration of a commodity broker must be issued by the Superintendence of Market and Intermediary Relations – SMI within 30 (thirty) days, counted from the date of receipt of the registration application for its operation at the CVM. § 1 The application must be accompanied by the information contained in Annex A to this Resolution. § 2 If the period provided for in this article expires, in the absence of a contrary manifestation from the SMI, and provided that all formalities provided for in this Resolution have been complied with, the registration application is presumed approved. § 3 The 30 (thirty) day period may be interrupted, only once, if the SMI requests additional information from the interested party, and a new period of 30 (thirty) days will start from the date of compliance with the requirements. § 4 Compliance with the requirements must occur within a period not exceeding 60 (sixty) days, counted from the receipt of the respective correspondence, under penalty of rejection of the application.

Section II – Rejection of the Application
Art. 12 The rejection of the commodity broker registration application must be communicated in writing to the interested party.

Section III – Cancellation of Registration
Art. 13 The SMI may cancel the registration for operation of the commodity broker, if:
I – the commodity broker is not admitted as a member or participant of a commodity and futures exchange and starts its activities within 180 (one hundred and eighty) days counted from the date of registration; II – the commodity broker requests cancellation; III – the falsity of any of the information or documents presented to obtain the registration is found; IV – due to a supervening fact duly proven, it is evident that the registered commodity broker no longer meets any of the requirements or conditions, provided for in this Resolution, established for the granting of the registration; or V – the commodity broker, in the exercise of its activities, fails to comply with any of the obligations provided for in this Resolution. § 1 The registration for operation of the commodity broker must also be cancelled in the event of alienation of the equity interest or shares issued by the commodity and futures exchange, if the quality of member constitutes a condition for access to the commodity and futures exchange as a member or participant. § 2 In any case, the cancellation of the registration for operation of the commodity broker must be carried out without prejudice to the enforceability of all obligations of the broker.

CHAPTER VIII – GENERAL PROVISIONS
Art. 14 The following acts related to the commodity broker depend on prior approval by the CVM, which must manifest itself within a period of up to 30 (thirty) days from the date of the request:
I – transformation, merger, incorporation and spin-off; II – appointment of administrators; III – appointment of fiscal council members and members of other statutory bodies; IV – alienation of corporate control; and V – liquidation of the company by decision of the partners. § 1 Commodity brokers must, when making the request referred to in the caput of this article, simultaneously notify the commodity and futures exchange. § 2 The CVM must consult the commodity and futures exchange, which has a maximum period of 15 (fifteen) days for its manifestation. § 3 If the period provided for in the caput of this article expires, in the absence of a contrary manifestation from the CVM, the request to carry out the act in question is presumed approved.

Art. 15 The following acts related to the commodity broker must be communicated, within 5 (five) business days, counted from the date of their deliberation, to the CVM and to the commodity and futures exchange:
I – transfer of headquarters;
II – creation and closure of offices or branches; III – alteration of the share capital value; IV – alienation of the equity interest or shares issued by the commodity and futures exchange, if the quality of member constitutes a condition for access to the commodity and futures exchange as a member or participant; and V – any alteration of the bylaws or partnership agreement.

Art. 16 A serious infraction, for the purposes of the provisions of art. 11, § 3, of Law No. 6,385, of 1976, is considered to be the violation of the provisions of arts. 2, 4, 5, 6, 7, 9, 14 and 15 of this Resolution.

Art. 17 The provisions of arts. 2, 8, 9, 10, 11, 12, 13 and 14 of this Resolution do not apply to commodity brokers constituted as securities brokerage or distribution companies, investment banks and multiple banks with investment portfolios.

Art. 18 CVM Instruction No. 402, of January 27, 2004, is hereby revoked.

Art. 19 This Resolution enters into force on July 1, 2021.

Signed electronically by
MARCELO BARBOSA
President

ANNEX A TO CVM RESOLUTION NO. 36, OF MAY 26, 2021
Documents to be presented for the registration of commodity brokers

1. Presentation of the broker, containing, at a minimum, the following information:
   a) corporate name of the commodity broker; b) trade name; c) CNPJ registration number; d) full address of headquarters and branches; e) contact telephone numbers; and f) electronic contact address.
2. Certified copy of the constituent acts of the commodity broker, duly consolidated, as well as proof of registration and registration status of the company, issued by the Federal Revenue Secretariat;
3. Presentation of the controllers: if natural persons, personal information (full name, nationality, residential, electronic and correspondence address, contact telephone numbers, CPF and identity numbers), academic background and professional data; in the case of a corporate controller, provide the information requested in item 1;
4. Declaration by the statutory director or managing partner responsible that they commit to notify the CVM in the event of alteration of any information related to the registration of the commodity broker at the agency; and
5. Audited financial statements, by an auditor registered with the CVM, of the commodity broker, referring to the immediately preceding fiscal year, as well as the balance sheets drawn up until the date.