Resolution SBS No. 6641-2012: Amends the Compendium of Superintendence Norms for the Private Pension System

Los Laureles Nº 214 - Lima 27 - Peru Tel.: (511)6309000 Fax: (511) 6309239

Lima, August 28, 2012
Resolution S.B.S.
No. 6641-2012
The Superintendent of Banks, Insurance, and Private Pension Fund Administrators

CONSIDERING:
That, by Law No. 29903, the Law Reforming the Private Pension System was approved, which modifies the Consolidated Text of the Law on the Private Administration of Pension Funds, hereinafter SPP, approved by Supreme Decree No. 054-97-EF; That, through Supreme Decree No. 137-2012-EF, provisions for the application of Law No. 29903 were issued; That, according to Article 2 of Law No. 29903, the bidding for the service of Administration of Individual Capitalization Accounts is established for workers who join the SPP; That, the twenty-first final and transitory provision of the Consolidated Text of the SPP Law establishes an ad hoc procedure for the assignment of workers who join the SPP, for the purpose of being affiliated with the AFP that offers the lowest management commission, within the period from 45 days after the publication of Law No. 29903 until the start of the first bidding referred to in Article 7A of the Consolidated Text of the SPP Law; That, to this end, it is necessary to establish the regulatory framework that allows the full application of the exercise of assigning workers who join the SPP to the AFP with the lowest management commission, in accordance with the provisions of the legislation on the matter; Being in accordance with the opinion of the Deputy Superintendencies of Private Pension Fund Administrators and Insurance, and of Legal Advice; and, In exercise of the powers conferred by numeral 9 of article 349 of the General Law of the Financial System and the Insurance System and the Organic Law of the Superintendence of Banks and Securities, Law No. 26702 and its amendments, subsection d) of article 57 of the Consolidated Text of the Law on the Private Administration of Pension Funds, approved by Supreme Decree No. 054-97-EF, the second complementary and final provision of Law No. 29903, and based on the exceptional conditions established in numeral 3.2 of article 14 of Supreme Decree No. 001-2009-JUS;

RESOLVES:

First Article.- Incorporate subsection d) into Article 3 of Title V of the Compendium of Superintendence Norms for the SPP, under the following text:

“Article 3.- Affiliation Modalities. The following constitute affiliation modalities:
(...) d) Assignment: is the procedure by which workers who join the SPP are affiliated with the AFP that offers the lowest commission for the administration of the pension fund, as referred to in subsection a) of article 24 of the SPP Law, for a mandatory retention period determined and subject to exit mechanisms determined by law and corresponding regulations.”

Second Article.- Incorporate Subchapter II-A into Chapter I of Title V of the Compendium of Superintendence Norms for the SPP, under the following text:

“SUBCHAPTER II-A
ON THE ASSIGNMENT OF AFFILIATES LAW 29903

Article 17A.- Assignment of Affiliates. Workers who join the SPP between 09/24/2012 and 12/31/2012 will affiliate with the AFP that offers the lowest management commission under the procedure provided in this subchapter. The mandatory retention period of the affiliate in said AFP will be twelve (12) months counted from the moment of their incorporation into the SPP, subject to the transfer mechanisms determined by the SPP Law and corresponding regulations.

The group of workers included in this assignment process includes:
i. Those who begin work as employees, join a pension system, and choose the SPP;
ii. Those independent workers who voluntarily join the SPP; and,
iii. Those who, belonging to the National Pension System (SNP), opt to transfer to the SPP during the period cited in the first paragraph of this article.

Workers who have the status of re-affiliates, provided for in subsection c) of article 3 of this title, will not be included in subsection iii. cited above.

For all effects, and in accordance with what is established in article 5 of this Title V of the SPP Compendium, incorporation into the SPP is carried out through the signing of the affiliation contract by the worker, and their rights and obligations in the SPP begin from the date the Superintendence grants the corresponding Unique Identification Code (CUSPP).

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Article 17B.- Commission Submission Process. AFPs must strictly adhere to the following procedure:

1. On Thursday, 09/13/2012 at 10:00 a.m., the AFP representative will present themselves at the premises of the Superintendence of Banks, Insurance, and AFPs located at Av. Prescott No. 160, carrying in two (2) sealed envelopes the following:
   a. A first envelope containing a communication signed by the general manager designating the representative who will obligatorily present the commission referred to in subsection a) of article 24 of the SPP Law, for the administration of mandatory contributions, which will constitute the credential of the designated representative for their participation in this process; and, b. A second envelope with the official communication signed by the general manager, with the value of the commission referred to in subsection a. above. Said percentage value will be expressed with two decimals and will be charged to all affiliates of the AFP starting from the accrual month of October 2012.

2. In a first act, officials designated by the Superintendence for this purpose will be responsible for receiving and opening the first of the envelopes and verifying, in the presence of a public notary, the credentials of each of the AFP representatives.

3. In a second act, officials designated by the Superintendence for this purpose will proceed to receive and open the second envelopes in alphabetical order according to the administrator's name, and to read aloud the value of the commissions that will be charged by them to their affiliates. The omission to present the communication referred to in subsection b. of numeral 1 of this article by an AFP will result in it maintaining the commission established for the accrual month of August, without prejudice that said omission constitutes an administrative offense.

4. Finally, the winning company of the assignment process will be declared, in accordance with what is established in Article 17C, and the corresponding minutes will be elevated, which must be signed by the SBS officials who participated in the act, as well as by the intervening public notary and the representatives designated by each AFP to present the envelopes. The absence of signature of any of the AFP representatives does not invalidate the act. In case an Administrator fails to comply with any of the obligations contained in this article, the process will not be invalidated.

Article 17C.- Selection of Winning Company. The company that presents the lowest commission value will be chosen as the winning AFP of the assignment process. In case of a tie between two (2) or more administrators, the winning company will be determined at that moment through a lottery among the corresponding AFPs, in the presence of the public notary.

The commission values presented obligatorily by each AFP, in accordance with what is established in Article 17B, will be charged to all their affiliates for the administration of the pension fund starting from the accrual of the month of October 2012.

In case of the assigned AFP, it must maintain the commission value unchanged during the commitment period of permanence, for the case of affiliates included in subsections i.,

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ii., and iii, of article 17A, except for a subsequent reduction, in which case said lower commission will apply for the remainder of the period.

Article 17D.- Publication of Commissions. Administrators that, on the occasion of the commission presentation referred to in article 17B, have modified their corresponding price structure, must publish in a newspaper of national circulation and in the Official Journal “El Peruano” -for a period of two (2) days- said new values of the commissions applicable to all their affiliates starting from October of this year, within three (3) days following the selection of the winning AFP. Similarly, administrators and the Superintendence will place the obtained results on their institutional electronic portals.

Complementarily, AFPs will be responsible for communicating the new commission structure to employers who have workers affiliated with the SPP, as well as for establishing mechanisms and processes that facilitate timely knowledge and verification of the new commission structure for employers and the general public.

Complementarily, said commission information will include the operational facilities that the AFPnet application must have starting from the recognition, validation, and payment of mandatory contributions corresponding to October 2012 onwards.

AFPs will not be subject, if applicable, to the deadline requirements established in the last paragraph of article 102 of the Regulations of the SPP Law, regarding information to the public and to the Superintendence on the entry into force of a new commission structure.

Article 17E.- Complementary Procedures for the Assignment of CUSPPs. The winning AFP will remit, with the files corresponding to the process of obtaining the CUSPP, the list of new workers who join the SPP and its AFP under the assignment process, in order to have the corresponding CUSPP.

The maximum deadline that administrators not chosen as winners will have to report the list of affiliates whose affiliation contracts were signed prior to the entry into force of the affiliate assignment process will be three (3) natural days following September 24, 2012. Once this period has elapsed, it will not be possible to report affiliation contracts that do not correspond to the assigned AFP.

Article 17F.- Transfer of Assigned Affiliates. The Superintendence, through a norm of general character, will establish the conditions for the exercise of transfers of those affiliates who have been assigned to the AFP with the lowest management commission, based on what is established in the Twenty-First Final and Transitory Provision of the Consolidated Text of the SPP Law, incorporated by Law No. 29903.

Article 17G.- On Commissions and the End of the Assignment Period. Once the assignment period referred to in article 17A has ended, the commission scheme established in article 24 of the Law, modified by effect of Law No. 29903, will be fully applicable. To this effect, the decreasing trajectory over time of the commission on the flow will take as a base that which the AFP registers, for the administration of the mandatory contributions referred to in subsection a) of article 24 of the Law, as valid in the month of August 2012 and under the conditions established by the

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Superintendence. The next process of price determination will be carried out on the occasion of the bidding process referred to in article 7A of Law No. 29903.”

Third Article.- Incorporate as the last paragraph of article 9 of Title V of the Compendium of Superintendence Norms for the SPP, the following text:

“AFPs, regarding the incorporation of independent workers, must attach to the affiliation contracts a copy of the Information Bulletin referred to in Law 28991 and/or a booklet with the main characteristics of the SPP. Said document must contain the name and signature of the affiliate as a sign of knowledge and agreement of their incorporation into the SPP. The absence of said documentation in the Affiliate Folder is classified as a minor offense and punishable, in accordance with what is established in Resolution SBS No. 816-2005.”

Fourth Article.- Repeal what is established in subsection b) of article 34 of Title III of the Compendium of Superintendence Norms for the SPP.

Fifth Article.- Any other complementary provision referring to the process provided for in this subchapter will be established and/or instructed by the Superintendence, based on the principle of greater protection for affiliates.

Non-compliance with the assignment procedure as well as with the provisions contained in Subchapter II-A of Chapter I of Title V of the Compendium of Superintendence Norms for the SPP, is classified as a grave offense and punishable in accordance with what is established by Resolution SBS No. 816-2005.

Sixth Article.- This resolution will enter into force from the day following its publication in the Official Journal El Peruano.

Register, communicate, and publish

DANIEL SCHYDLOWSKY ROSENBERG
Superintendent of Banks, Insurance, and Private Pension Fund Administrators