Normative Instruction BCB No. 376 of April 28, 2023

Resolution No. 222

NORMATIVE INSTRUCTION BCB NO. 376, OF APRIL 28, 2023

Establishes guidelines on the participation of registrar entities and central securities depositories of financial assets in the process of drafting the convention that sets forth the self-regulation rules for exercising the activities of registration and centralized deposit of real estate receivables, as provided for in Article 12 of BCB Resolution No. 308, of March 28, 2023.

The Head of the Department of Competition and Financial Market Structure (Decem), using the powers conferred upon him by Article 97-A, item I, letter “d”, items 2 and 3 of the Internal Regulations of the Central Bank of Brazil, annexed to Ordinance No. 84.287, of February 27, 2015, based on Articles 12, §§ 2, 3, and 4, and 23, both of BCB Resolution No. 308, of March 28, 2023,

RESOLVES:

Article 1. This Normative Instruction disseminates the guidelines for the participation of registrar entities and central securities depositories of financial assets in the process of drafting the convention that sets forth the self-regulation rules for exercising the activities of registration and centralized deposit of real estate receivables, as provided for in §§ 2, 3, and 4 of Article 12 of BCB Resolution No. 308, of 2023.

Article 2. Entities authorized to exercise the activity of registration or centralized deposit of financial assets, or those in the process of obtaining authorization to exercise these activities, may participate in the process of drafting the convention, as determined by items I and II of § 2 of Article 12 of Resolution No. 308, of 2023.

§ 1. Interested entities wishing to participate in the process of drafting the real estate receivables convention must send a letter of intent to the Department of Competition and Financial Market Structure (Decem), entitled “expression of interest to exercise the activity of registration or deposit of real estate receivables,” to be submitted via the Central Bank’s Digital Protocol (Digital Protocol).

§ 2. When submitting the letter of intent, the entity must observe the following requirements:

I - the deadline of June 1, 2023, for its submission, in compliance with item II of § 2 of Article 12 of BCB Resolution No. 308, of 2023;

II - the signing of the document by a legal representative, designated in accordance with the entity’s statutes or social contract, or by a person to whom legal powers have been granted for this purpose;

III - the selection, in the Digital Protocol, of the subject: “Documents related to self-regulation conventions between Financial Market System (SMF) (Decem)”; and

IV - the explicit statement, in the text of the correspondence, of agreement with the publication of its name on the list of entities eligible to participate in the process of drafting the convention.

§ 3. An expression of interest received prior to the effective date of this Normative Instruction shall be deemed valid, provided that the entity completes its documentation in accordance with §§ 1 and 2, items II, III, and IV.

Article 3. After the expiration of the deadline for expressing interest, the Central Bank of Brazil shall publish information regarding the institutions eligible to participate in the process of drafting the convention through the issuance of a Notice.

Article 4. The draft convention prepared by the participating entities must be submitted to the Central Bank of Brazil for approval, via submission through the Digital Protocol to the Department of Competition and Financial Market Structure (Decem), within 150 (one hundred and fifty) days, calculated from the date of entry into force of BCB Resolution No. 308, of 2023, as determined by Article 14 of that Resolution.

§ 1. When submitting the draft Convention, the subject must be selected: “SPB/IMF – Authorization and Supervision of the Financial Market System (SMF)”, sub-subject or destination: “Documents related to self-regulation conventions between SMF (Decem)”.

§ 2. The correspondence sent via digital protocol, requesting approval of the convention from the Central Bank of Brazil, must:

I - be signed by the representatives designated in the statutes or social contract of each participating entity in the process of drafting the Convention, with legal powers for this purpose;

II - contain a declaration by the participating entities that they have complied with the provisions of § 4 of Article 12 of BCB Resolution No. 308, of 2023; and

III - contain, as an attachment, the draft convention, the minutes or equivalent document of the meeting in which the decision was made regarding its preparation and submission for approval by the Central Bank of Brazil, as well as other supporting documents proving the powers of the respective representatives who signed it, referred to in item I.

§ 3. The draft convention must also be sent in Word format to the corporate mailbox of the Division of Guidelines and Studies for SMF and SPB (Didef), at the address didef.decem@bcb.gov.br, on the same date as its submission via the Digital Protocol.

Article 5. Changes made to the text of the convention in force must be submitted to the Central Bank of Brazil for approval or knowledge, depending on the nature of the corresponding modifications, by sending the new version subject to deliberation by the conventioning entities, with a request for approval or communication addressed to the Department of Competition and Financial Market Structure (Decem) via the Digital Protocol, in accordance with §§ 1 to § 4 of Article 14 of BCB Resolution No. 308, of 2023.

§ 1. When submitting the draft or new version of the convention, the conventioning entities must observe the requirements and procedures set forth in § 1, items I and III of § 2, and § 3 of Article 4, also recording the modifications made to the text through change tracking and revision marks in Word format.

§ 2. Without prejudice to the procedure set forth in the main text, the Central Bank of Brazil may, in accordance with § 4 of Article 14 of BCB Resolution No. 308, of 2023, determine adjustments to the convention at any time, including in the operational technical manuals that comprise it, observing the provisions of Article 6.

Article 6. The statements and requirements of the Central Bank of Brazil regarding the convention and the manuals comprising it shall be carried out through an official letter from this Autarchy to be sent to the interested entities.

Article 7. This Normative Instruction enters into force on May 2, 2023.

Carlos Eduardo de Andrade Brandt Silva
Head of the Department of Competition and Financial Market Structure substitute

NOTA

This Note supports a proposal for a Normative Instruction under the competence of the Department of Competition and Financial Market Structure (Decem), in accordance with the powers conferred upon it by Article 97-A, item I, letter “d”, items 2 and 3 of the Internal Regulations (RI) of the Central Bank of Brazil (BCB), annexed to Ordinance No. 84.287, of February 27, 2015.

2. The proposal for the normative act aims to issue guidelines regarding the procedures for the participation of registrar entities and central securities depositories of financial assets in the process of drafting the Convention that formalizes the self-regulation rules on the activity of registration or deposit of real estate receivables, in compliance with the provisions of Article 23 of BCB Resolution No. 308, of March 28, 2023.

3. In compliance with Article 5 of Law No. 13.874, of September 20, 2019, Decree No. 10.411, of June 30, 2020, determines that proposals for normative acts of general interest for economic agents formulated by bodies and entities of the direct federal administration, autonomous entities, and foundations, as well as by collegiate bodies through the body or entity responsible for providing administrative support, must be preceded by a Regulatory Impact Analysis (AIR).

4. However, Article 4 of Decree No. 10.411, of 2020, provides for exemptions from AIR, provided there is a reasoned decision by the competent entity. Among the listed exemptions, item II of said article exempts from AIR normative acts intended to regulate rights or obligations defined in a hierarchically superior norm that does not allow, technically or legally, different regulatory alternatives.

5. Thus, the proposed Normative Instruction is exempt from the preparation of an AIR since it is intended solely to guide registrar entities and central securities depositories in the process of drafting the convention for real estate receivables, in compliance with the provisions of Article 23 of BCB Resolution No. 308, of 2023, with no different regulatory alternatives available for this act.

6. Regarding the deadline for the entry into force of the proposed normative instruction, we suggest applying the exception in Article 4, sole paragraph, of Decree No. 10.139, of November 28, 2019, so that the norm enters into force on May 2, 2023, in order to avoid a regulatory gap on the subject, since BCB Resolution No. 308, of 2023, will enter into force on that date.

Carlos Eduardo de Andrade Brandt Silva
Head of the Department of Competition and Financial Market Structure substitute