Resolution CMN No. 2901 — Defines Criteria for Applying Penalties for Information Provision to the Central Bank of Brazil and Non-Compliance with Foreign Exchange and International Real Transfers

RESOLUTION No. 002901

Defines criteria for the application of penalties for the provision of information to the Central Bank of Brazil and for non-observance of procedures related to foreign exchange operations and international transfers in reais.

THE CENTRAL BANK OF BRAZIL, in accordance with Article 9 of Law No. 4,595 of December 31, 1964, makes public that the NATIONAL MONETARY COUNCIL, in a session held on October 31, 2001, having regard to the provisions of Articles 10, item VIII, 11, item III, 37 and 44 of the aforementioned Law, Articles 65 to 67 of Law No. 9,069 of June 29, 1995, and Law No. 4,829 of November 5, 1965,

RESOLVES:

Article 1. Financial institutions and other institutions authorized to operate by the Central Bank of Brazil, as well as entities accredited to operate in foreign exchange, are subject to penalties of warning and fine for the following irregularities:

I - failure to provide or incorrect provision of information required by the Central Bank of Brazil, within the deadlines and conditions established by the legal and regulatory norms in force;

II - non-observance of deadlines and procedures related to foreign exchange operations and international transfers in Reais.

Article 2. The penalty of warning shall be applied upon verification of the first occurrence of any of the irregularities provided for in items I and II of Article 1.

Paragraph 1. The subsequent occurrence of any of the irregularities provided for in items I and II of Article 1 subjects the offender to the penalty of fine, as established in this Resolution.

Paragraph 2. After one (1) year has elapsed from the application of the warning penalty, the offender shall be considered a first-time offender, for the purposes of this Resolution.

Article 3. The fine referred to in Article 1, in the amount of R$150.00 (one hundred and fifty Reais), shall be applied:

I - per event individually identified, in the case of information with daily periodicity, as well as in non-observance of procedures associated with compulsory deposits, mandatory reserves, mandatory deposits, and resource allocation;

II - per business day of delay, in the case of information required with non-daily periodicity, from the end of the deadline for its delivery until the date of effective regularization of the situation;

III - per occurrence verified, in the case of non-observance of procedures associated with foreign exchange operations and international transfers in reais, including the registration of incorrect or incomplete information, the absence, in the operation file, of a document required by specific regulation, the non-settlement of foreign exchange operations, or the non-linking of foreign exchange contracts to documents or computerized records related to exports and imports.

Article 4. The fine provided for in the preceding article may be cumulative, observing the following maximum limits:

I - 50% (fifty percent) of the value provided for in Article 67 of Law No. 9,069 of 1995 or 3% (three percent) of the institution's Reference Equity (PR), whichever is lower, in the cases referred to in item II of Article 3;

II - 100% (one hundred percent) of the value provided for in Article 67 of Law No. 9,069 of 1995 or 6% (six percent) of the institution's PR, whichever is lower, in the case of a set of irregularities regarding information of a periodic nature with the same regulatory basis, for the same base date.

Sole Paragraph. For the purposes of this article, the institution's PR shall be considered as calculated based on the balance sheet of the month preceding the month of regularization of the pending matter.

Article 5. Information provided with inaccuracies, as soon as verified, must be immediately rectified.

Sole Paragraph. In the event of rectification resulting from a determination by the Central Bank of Brazil, the value of the fine specified for the case shall suffer the following increases:

I - 20% (twenty percent) for information of non-daily periodicity, applicable from the date of receipt of the determination;

II - R$300.00 (three hundred Reais) for information of daily periodicity.

Article 6. Fines are due from the fifth business day immediately following the receipt of the notification, without prejudice to the right of defense, in accordance with Article 9 of this Resolution.

Paragraph 1. Values paid after the deadline fixed in the caput shall be increased by interest on late payment and a late payment fine, in accordance with Article 36 of Provisional Measure No. 2,176-79 of August 23, 2001.

Paragraph 2. Values related to refunds made by the Central Bank of Brazil, due to the acceptance of defenses, appeals, or requests for review, shall be updated based on the average adjusted rate of daily financing calculated in the Special Settlement and Custody System (Selic) for federal public debt securities.

Article 7. The documentation that gave rise to the information provided, when there is no specific legal or regulatory deadline for its retention, must be kept available to the Central Bank of Brazil for a minimum period of three years.

Paragraph 1. In the event of provision of information outside the established deadlines or rectification of information provided with error, a new deadline shall be counted from the date of the last alteration made.

Paragraph 2. For the purposes of this Resolution, information shall be considered incorrect if the documentation serving as its basis is not kept under the custody of the reporting institution or if it is impossible to prove the reported values within the established period.

Article 8. Fines resulting from information related to credit operations and investment funds are attributed to the creditor and administrator institutions, respectively, prohibiting the transfer, in any form, of the financial burden to the credit borrower or to the assets of the aforementioned funds.

Sole Paragraph. For information of daily periodicity related to investment funds, a single penalty shall be applied to the administrator institution per base date when, due to the characteristics of the infractions committed by the various administered funds, it is presumed that the irregularity resulted from a single generating fact.

Article 9. Institutions and entities penalized shall be notified of the penalty through the Central Bank Settlement System (SLB), or by another means that confirms receipt, with a period of five business days guaranteed for the presentation of a defense.

Article 10. The defense mentioned in the previous article must be signed by a director or managing partner of the institution or entity, with the Central Bank of Brazil responsible for its analysis and judgment, in the manner to be established by it.

Article 11. Failure to pay the fine in the manner and within the deadline provided for in this Resolution shall result in the debtor's registration in the Active Debt of the Central Bank of Brazil, as well as in the Information Register of Uncleared Credits of the Federal Public Sector - Cadin.

Article 12. The penalties referred to in this Resolution shall be applied without prejudice to other penalties provided for in the legislation in force.

Article 13. Failure to comply, within the determined deadline, with a request for clarification regarding information provided or procedures related to item III of Article 3 shall be considered as incorrect provision of information or non-observance of procedures, resulting in the application of a fine in accordance with the sole paragraph of Article 5.

Article 14. Institutions and entities referred to in this Resolution, which are not holders of the Bank Reserves account, that carry out operations subject to the provision of information to the Central Bank of Brazil must indicate the financial institution holding the account, to which the relevant charges for applied fines and any refunds shall be forwarded.

Sole Paragraph. In the absence of the indication referred to in the caput of this article, the penalized institution or entity must make the payment of the fine, within the deadline provided for in Article 6, in the administrative component of the Central Bank of Brazil to which it is subject.

Article 15. The settlement of a foreign exchange operation for undue values or without support in valid documentation is subject, at the discretion of the Central Bank of Brazil, to the repatriation of the value in foreign currency transferred unduly abroad, independent of the application of the penalties provided for in the legislation in force.

Article 16. The Central Bank of Brazil is authorized to:

I - decide on the non-application of penalties, as well as on requests for review of applied penalties, taking into account, among other reasons, the nature and relevance of the offense committed and the objectives to which the information is destined;

II - exempt the institution from paying the fine provided for in Article 3 of this Resolution and/or the obligation to rectify the information, in situations involving differences lower, in modulus, than 2.5% (two and five-tenths percent) of the values originally reported; and

III - issue norms and adopt the necessary measures for the execution of the provisions of this Resolution.

Article 17. The provisions of this Resolution do not apply to situations for which there is a provision in specific regulation.

Article 18. This Resolution enters into force on the date of its publication.

Article 19. Resolutions No. 2,194 of August 31, 1995, No. 2,215 of November 29, 1995, No. 2,328 of October 30, 1996, Circulars No. 1,783 of July 19, 1990, No. 2,257 of December 18, 1992, No. 2,354 of August 4, 1993, No. 2,408 of March 2, 1994, No. 2,615 of September 14, 1995, and No. 2,752 of April 23, 1997, and Circular Letters No. 569 of March 11, 1981, and No. 2,609 of December 28, 1995, are hereby repealed.

Brasília, October 31, 2001

Arminio Fraga Neto
President