SBS Resolution No. 5860-2009: Creates the Register of Companies Specialized in Microarchive Services (REMA) and Updates Provisions for Conservation and Substitution of Archives Using Microform Technology and Retention Periods for Books and Documents

Lima, June 12, 2009

S.B.S. Resolution No. 5860 -2009

The Superintendent of Banking, Insurance, and Private Pension Fund Administrators:

WHEREAS:

That, by Legislative Decree No. 681 and its modifying norms, provisions were issued regulating the use of advanced technologies in the archiving of documents and information, both regarding those prepared conventionally and those produced by computer procedures;

That, Article 15 of the aforementioned Legislative Decree establishes that companies supervised by the Superintendency of Banking, Insurance, and Private Pension Fund Administrators, which do not have their own microarchive systems, may resort to the services of specialized archive companies;

That, literal e) of the referred Article 15, modified by Article 5 of Law No. 27323, provides that companies offering specialized archive services, to provide services to companies supervised by the Superintendency of Banking, Insurance, and Private Pension Fund Administrators, must have the authorization of said institution, and must be registered in a special register that it will maintain;

That, for the adequate fulfillment of current legal provisions, it is necessary for the Superintendency of Banking, Insurance, and Private Pension Fund Administrators to establish the aforementioned special register;

That, it is convenient to update and consolidate the norms on archive substitution contained in SBS Circulars No. B-1922-92; F-265-92; S-536-92; EAF-125-92; CM-118-92; CR-009-92 and AGD-104-92 dated October 30, 1992, as well as in Chapter VI related to “Microforms” of Title III “Business Management” of the Compendium of Superintendency Regulatory Norms of the Private Pension Fund Administration System, approved by Resolution No. 055-99-EF/SAFP, adapting them to the modifications made to Legislative Decree No. 681;

That, likewise, in use of its regulatory powers, this Superintendency considers it convenient, for the purpose of carrying out comprehensive and uniform supervision of all companies under its control, to mandate compliance by all of them with the document conservation norms established in Article 183 of Law No. 26702;

Based on the opinion of the Assistant Superintendencies of Banking and Microfinance, Insurance, Private Pension Fund Administrators, Risks, and Legal Advisory, as well as the General Secretariat; and,

In use of the powers conferred in numerals 3, 9 and 18 of Article 349 of the General Law of the Financial and Insurance System and Organic Law of the Superintendency of Banking and Insurance, Law No. 26702 and its modifications, literals e) and q) of Article 57 of the Consolidated Text of the Law of the Private Pension Fund Administration System, approved by Supreme Decree No. 054-97-EF, and literal e) of Article 15 of Legislative Decree No. 681.

RESOLVES:

Article 1.- To create in the Superintendency of Banking, Insurance, and Private Pension Fund Administrators, hereinafter Superintendency, the Register of Companies Specialized in Microarchive Services (REMA), where specialized archive service companies that require authorization to provide their services to companies supervised by this Superintendency that do not have their own microarchive systems, must register, in accordance with the provisions contained in Legislative Decree No. 681 and its Regulations approved by Supreme Decree No. 009-92-JUS and their corresponding modifying norms.

Article 2.- Specialized archive companies that submit an application for inscription to REMA must attach the documents that prove compliance with the following requirements indicated in Article 15 of Legislative Decree No. 681:

a) Have infrastructure and technical equipment approved by INDECOPI in accordance with the provisions of Article 6 of Legislative Decree No. 681, attaching the corresponding certifications.

b) Have the permanent services of an authorized notary or, at least, two sworn public notaries who meet the requirements and are qualified to act in accordance with Legislative Decree No. 681 and its regulations.

c) Copy of the incorporation deed in the form of a public limited company and its modifications.

d) Have adequate premises with the security conditions indicated in Article 36 of Supreme Decree No. 009-92-JUS, presenting the verification certificates indicated in said article, as well as the document that proves ownership or rental of the aforementioned premises.

Article 3.- Inscription in REMA shall be formalized by a Resolution of the Superintendency. The validity of said Resolution is conditioned on the registered holder maintaining all conditions, certifications, and service contracts required by current legislation on the matter, which were presented in the inscription file. For the verification of this condition, the registered holder has the obligation to annually submit to this Superintendency, within 20 days prior to the date of completion of a new year of inscription in REMA, a sworn declaration regarding compliance with the conditions and aspects indicated in the preceding paragraph, attaching the respective ratifications and updates of the referred certifications and contracts, when they occur in the year subject to the corresponding sworn declaration. The omission of presentation of said sworn declaration and/or documents, as appropriate, will be sanctioned in accordance with the provisions of the Superintendency's Sanctions Regulation.

Likewise, the registered holder is also obliged to communicate to this Superintendency, within five (05) days of its occurrence, any sanction received and/or the cancellation and/or suspension of the aforementioned certifications and/or contracts by the competent bodies or counterparties, as appropriate. The omission of said communication will be sanctioned in accordance with the provisions of the Superintendency's Sanctions Regulation.

Article 4.- To modify the Single Text of Administrative Procedures - TUPA of the Superintendency of Banking, Insurance, and Private Pension Fund Administrators, approved by SBS Resolution No. 131-2002, replacing procedure No. 69 whose new denomination will be “Authorization for the conservation and substitution of archives of supervised entities using microform technology”, and adding procedure No. 113 denominated “Inscription in the Register of Companies Specialized in Microarchive Services (REMA)”, whose texts are annexed to this Resolution and published in accordance with the provisions of Supreme Decree No. 004-2008-PCM, regulation of Law No. 29091. (Institutional electronic portal: www.sbs.gob.pe).

Article 5.- To modify the Sanctions Regulation approved by Resolution No. 816-2005, eliminating numeral 29 of Serious Infractions of Annex 2 referred to “Specific Infractions of the Financial System and of Complementary and Related Service Companies” and incorporating numeral 26 into Serious Infractions and numerals 18 and 19 into Very Serious Infractions of Annex 1, referred to “Common Infractions”, in accordance with the following text:

26. Non-compliance with the provisions on document conservation and archive substitution established in the General Law and/or norms issued by the Superintendency.

Companies registered in the Register of Companies Specialized in Microarchive Services

18. Failure to communicate to the Superintendency, within five (05) days of its occurrence, any sanction received and/or the cancellation and/or suspension of the certifications and/or service contracts required by current legislation on the matter, which were presented in the inscription file.

19. Failure to submit the annual sworn declaration and/or documents that prove that all conditions, certifications, and service contracts required by current legislation on the matter, which were presented in the inscription file, remain in force.

Article 6.- Companies included in Articles 16 and 17 of Law No. 26702, Private Pension Fund Administrators (AFPs), Banco Agropecuario, Corporación Financiera de Desarrollo S.A. (COFIDE), Banco de la Nación, Fundación Fondo de Garantía para Préstamos a la Pequeña Industria (FOGAPI), Fondo Mivivienda S.A., Derramas and Cajas de Beneficios, as well as other companies under the supervision of this Superintendency and companies in liquidation, hereinafter supervised entities or supervised companies, must apply the following provisions for the conservation and substitution of archives using microform technology and retention periods for books and documents.

Article 7.- Supervised entities may conserve and substitute documents and information prepared conventionally and that produced by computer procedures, by archives conserved using microforms, using microrecording technical procedures and organizing them in microarchives that allow the issuance of microduplicates, in accordance with the provisions contained in Legislative Decree No. 681, its Regulations approved by Supreme Decree No. 009-92-JUS and its corresponding modifying norms, as well as the specific norms on the matter issued by this Superintendency.

In the case of AFPs, the terms “documents” and “information” include at least the documents and information contained in both the Affiliate's Individual Folder and the Contribution Payment Payroll.

Article 8.- Supervised entities that, either with their own infrastructure or by resorting to the services of specialized archive companies, choose to conserve and substitute archives using microform technology and give legal validity to them in accordance with current norms on the matter, must first obtain authorization from this Superintendency, in accordance with the provisions of the following articles.

Article 9.- Supervised entities that choose to organize, conserve, and substitute archives using microform technology with their own infrastructure must submit an application attaching documentation that proves compliance with the following requirements:

a) Having signed a contract with an authorized notary or with a sworn public notary, qualified to act in accordance with current norms regulating the use of advanced technologies in the archiving of documents and information, which ensures the permanent provision of such services, as indicated in literal d) of Article 31 of Supreme Decree No. 009-92-JUS.

b) Having adequate technical infrastructure and equipment owned by them or obtained through a contract that grants their right of use or with a service contract in the terms indicated in literals a) and b) of Article 31 of Supreme Decree No. 009-92-JUS, attaching a copy of the corresponding valid Technical Suitability Certificate referred to in Article 6 of Legislative Decree No. 681 and Article 13 of said Supreme Decree No. 009-92-JUS, granted by INDECOPI.

c) Information regarding:

1. Nature and type of documents to be substituted;
2. Duly authorized technical elements and devices to be used in the microrecording process;
3. Accredit before the Superintendency, at least two officials designated as responsible for the microarchive with representation powers of the supervised entity, as indicated in Article 27 of Supreme Decree No. 009-92-JUS;
4. Copies of the contracts indicated in this article, as appropriate.

Variations regarding the information indicated in literal c) of this article must be reported to this Superintendency within ten (10) business days of their occurrence, for the control actions that are necessary due to the nature of the variation.

Changes of authorized notary or sworn public notary, as well as of the infrastructure and technical equipment referred to in literals a) and b) of this article, require prior substantiation before this Superintendency of compliance with the pertinent requirements by the respective substitutes, otherwise, the authorization granted will be rendered ineffective. The approval of the requested changes, after verification of compliance with the respective requirements, will be made by Official Letter from the Superintendency, which will indicate the continuation of the originally granted authorization.

Article 10.- Supervised companies that do not have their own microarchive system, in accordance with the provisions of Article 15 of Legislative Decree No. 681, may resort to the services of specialized archive companies, which must comply with the requirements indicated in said Legislative Decree and its Regulations.

For this purpose, prior to contracting said services, supervised companies must submit an authorization request to this Superintendency, which contains:

a) Indication of the specialized archive company that will provide the service, which must be registered in the Register of Companies Specialized in Microarchive Services – REMA under the charge of this Superintendency.

b) Copy of the respective contract.

The change of specialized archive service provider company requires prior substantiation before this Superintendency of compliance with the pertinent requirements by the new provider, otherwise, the authorization granted will be rendered ineffective. The approval of the requested change, after verification of compliance with the respective requirements, will be made by Official Letter from the Superintendency, which will indicate the continuation of the originally granted authorization.

Article 11.- Microrecording processes shall be carried out under the direction and responsibility of a custodian of public faith, who may be a Public Notary or a public or private sworn public notary, for which they must meet the requirements indicated in Articles 3 and 4 of Legislative Decree No. 681 and its Regulations.

The technical and formal procedures used in the microrecording process are those indicated in Articles 5, 6, and 7 of Legislative Decree No. 681 and its Regulations.

Article 12.- The contracts signed by supervised entities in the cases indicated in numerals a) and b) of Article 9 and b) of Article 10, must contain, among other provisions, the following:

a) The acknowledgment by the supervised entity, the specialized service company, the notary, or the sworn public notaries, as the case may be, of assuming responsibility before the Superintendency and the respective users for damages that arise as a consequence of their participation in the microrecording processes, as indicated in Article 26 of Supreme Decree No. 009-92-JUS.

b) The obligation, on the part of all parties involved in the contract and, where applicable, their dependents, to maintain confidentiality of all information to which they have access by reason of its execution.

c) The obligation, on the part of the specialized service company, the notary, or the sworn public notaries, as the case may be, to provide the Internal Audit Unit of the supervised company, the Superintendency, as well as the collaborating Audit Firms for the supervision function, all the information they request for the adequate fulfillment of their respective internal control, supervision, and audit functions, as appropriate.

d) Include those clauses related to the maintenance of information security characteristics related to information technology risk, as indicated in Circular No. G-105-2002, its modifications and substitutions, as well as in Chapter V “Information Systems” of Title III “Business Management” of the Compendium of Superintendency Regulatory Norms of the Private Pension Fund Administration System, approved by Resolution No. 053-98-EF/SAFP.

e) Submission to the norms of the Superintendency, and, in particular, to the norms contained in this regulation.

f) The suspensive condition that the contracts will only become effective once the Superintendency has issued the corresponding authorizations in accordance with Legislative Decree No. 681, its Regulations, and this norm.

g) Schedule of activities necessary to carry out and complete the document microarchive process.

Article 13.- The Superintendency of Banking, Insurance, and Private Pension Fund Administrators, in exercise of the supervision powers consigned in Law No. 26702, as well as in accordance with the provisions of Article 34 of Supreme Decree No. 009-92-JUS, may carry out the supervision actions it deems necessary to verify adequate compliance with current microform norms applicable to companies under its control. For this purpose, supervised companies must conserve and keep available to this Superintendency all documentation related to the microform generation process.

Article 14.- The elimination of original documents from the private archives of supervised entities, after they have been microrecorded to incorporate the respective microforms into the corresponding microarchives, must comply with the provisions of Articles 16, 17, and 18 of Legislative Decree No. 681.

Article 15.- Supervised companies are obliged to conserve their books and documents for a period of no less than ten (10) years. Likewise, if within that period a judicial action is brought against them, the aforementioned conservation obligation subsists as long as the process lasts, with respect to all documents related to the disputed matter.

The documents referred to in the preceding paragraph include, at least, the Minute Books of General Shareholders' Meetings and Board of Directors or equivalent bodies, Main Accounting Books, Books of Specialized Committees, the detail of the supervised entities' own operations with an indication of the identity and general legal information of the person or persons participating in the operation, and other important vouchers and documentation related to the activity of the supervised company. In the case of supervised companies registered in the Private Pension System Register, special attention must be paid to documents related to the active life of affiliates (among others, the affiliation contract) as well as passive affiliates, and all documentation related to beneficiaries or heirs, where applicable, that are necessary for pension procedures. The conservation and characteristics of the records required by norms on money laundering and/or terrorism financing shall be carried out additionally, in accordance with the special norms on the matter.

For the fulfillment of the conservation obligation referred to in this article, microforms may be used in accordance with current norms on the matter and this Resolution.

Article 16.- This Resolution enters into force on the day following its publication in the Official Gazette “El Peruano”, from which date SBS Circulars No. B-1922-92; F-265-92; S-536-92; EAF-125-92; CM-118-92; CR-009-92 and AGD-104-92 dated October 30, 1992, Circular Letter No. B-041-93; F-025-93; S-014-93; EAF-006-93; CM-014-93, AGD-003-93 and CR-004-93 of June 09, 1993, and Chapter VI related to “Microforms” of Title III “Business Management” of the Compendium of Superintendency Regulatory Norms of the Private Pension Fund Administration System, approved by Resolution No. 055-99-EF/SAFP, shall be rendered ineffective.

Register, communicate, and publish.

FELIPE TAM FOX
Superintendent of Banking, Insurance, and
Private Pension Fund Administrators

Superintendency of Banking and Insurance
Los Laureles Nº 214 - Lima 27 - Peru Tel: (511)2218990 Fax: (511) 4417760 8