Provides for specific internal controls for the prevention and combating crimes of "laundering" or concealment of assets, rights and values, or crimes with which they can relate to, the monitoring of transactions and proposed transactions with politically exposed persons, as well as the prevention and cohibition of terrorism financing.

THE DEPUTY SUPERINTENDENT OF THE SUPERINTENDENCY OF PRIVATE INSURANCE - SUSEP, according to the provisions set forth in subparagraphs "b" and "h" of Art. 36 of Decree - Law 73 of 21 November 1966, and section IX of Art. 10 of the SUSEP Internal Regulation approved by CNSP Resolution No. 229 of 27 December 2010, the provisions of articles 10, 11, 12 and 13 of Law No. 9.613 of 3 March 1998, Decree No. 5.640, of 26 December 2005, Decree No. 5.687 of 31 January 2006, as well as in the Complementary Law No. 109, of 29 May 2001, in Complementary Law No. 126 of 15 January 2007, the Decree - Law No. 261 of 28 February 1967, in Complementary Law No. 137 of 26 August 2010, and in Law No. 4.594, of 29 December 1964, and considering the provisions of SUSEP Process No. 15414.005081/2011-19,

Resolves to:

Art. 1st – Provide for the specific internal controls in order to prevent and combat the crimes of "laundering" or concealment of assets, rights and values, or crimes with which they might relate to, monitor the operations and the proposed transactions with politically exposed persons, prevent and cohibit terrorism financing.

CHAPTER I
SUBJECT PERSONS

Art. 2nd – The entities that shall be subject to the obligations provided for in this Circular are insurance and saving bonds companies; the local and admitted reinsurers; complementary pension public companies; cooperative companies referred to in paragraph 3rd of Art. 2nd of the Complementary Law No. 126, of 15 January 2007, the reinsurance brokers, the brokerage companies and the insurance brokers, saving bonds and complementary pension public companies.

§1st - The branches and subsidiaries abroad shall be subject to the same obligations mentioned in the head of this article, as well as branches of foreign companies operating in activities similar to those of the persons mentioned in the head of this article.

§2nd – A director responsible for complying with the provisions of Law No. 9.613/98, of this Circular and for additional complementary regulations must be appointed.

§ 3rd - The responsible director in charge shall have immediate and unrestricted access to the identification data of the persons listed in sections IV to VII of Art. 3rd.

§ 4th - In the case of admitted reinsurers, the official referred to in §2nd of this article is the responsible representative of the representative office.

Art. 3rd - For the purposes of this Circular, the following definitions apply:

I - companies: insurance and saving bonds companies, complementary pension public companies, cooperative companies, under the conditions established by paragraph 3rd of Art. 2nd of the Complementary Law No. 126/2007; their subsidiaries and similar overseas subsidiaries, including the branches of foreign companies operating in similar activities;

II - reinsurers: local reinsurers, their similar and overseas subsidiaries and representative offices of admitted reinsurers;

III - brokers: reinsurance brokers; brokerage companies and insurance brokers, saving bonds companies, complementary pension public companies, their subsidiaries and similar overseas companies; subsidiaries of foreign companies operating in similar activities;

IV - clients: insureds, reinsurers, retrocessionaires or policy holders, participants in pension plans, holders or underwriters of saving bonds and their respective representatives;

V - beneficiaries: persons appointed by the insured or the participant in the pension plan or recognized as such under the legislation in force or the ones appointed by a court decision;

VI - third parties: those who do not fit the previous items and are eventually compensated, benefited from or relate to the acquisition or liquidation of the insurance policies, saving bonds and private pension plans;

VII - other related parties: any other directly or indirectly involved party in the activities of the persons listed in the head of this article and the first paragraph of Art. 2nd, such as the counterparts in private transactions and transactions involving assets, financial intermediaries, employees, service providers, independent auditors, consultants, asset managers, administrators and custodians, and

VIII - money laundering: crimes provided for in article 1st of Law No. 9.613/98, or that might relate to them.

CHAPTER II
POLITICALLY EXPOSED PERSONS

Art. 4th – Politically Exposed Persons are regarded as public officials who occupy or have occupied within the last 5 (five) years, in Brazil or in countries, territories and foreign dependencies, public positions or relevant functions, as well as their representatives , relatives and others in their close relationship circle.

§1st - For the purposes of the head of this article, politically exposed persons in Brazil are regarded as:

I - elective office holders in the Executive and Legislative Branches of the government;

II - the office holders, in the Executive Branch of the Union:

a) as Minister of State or equivalent;

b) as special nature or equivalent;

a) as president, vice president and director, or equivalent, of municipalities, public foundations, public companies or mixed economy companies; and

d) as the Group of Management and Advisory – DAS, level 6, and equivalent;

III - the members of the National Council of Justice, the Supreme Court and the High Courts;

IV – the members of the National Council of the Public Ministry, the Republic General Attorney, the Republic Deputy General Attorney, the Labour General Attorney, the Military Justice General Attorney, the Republic General Sub-attorneys and the General Attorneys of State Justice and Federal District;

V - the members of the Federal Court of Accounts and the Public Ministry General Attorney within the Federal Court of Accounts;

VI – the state and Federal District governors, the presidents of the Justice Court, of the Legislative Assembly and District Board, and the presidents of the Court and the Council of State Accounts, of the Municipalities and the Federal District;

VII - the mayors and presidents of the municipal chambers of the State capitals.

§2nd - For the identification of Brazilian Politically Exposed Persons, the means shown below may be used, in the following order of preference:

I – resort to publicly available information;

II - resort to commercial electronic databases of politically exposed persons; and

III - request a written declaration of the client, beneficiary, third parties or other related parties, regarding their classification.

§3rd - For the definition of politically exposed foreign persons, for the purposes of this article, the companies, reinsurers and brokers may adopt the following measures:

I - request a written declaration of the client, beneficiary, or other related parties, regarding their classification;

II – resort to publicly available information;

III - resort to commercial electronic databases of politically exposed persons;

IV - consider the definition of the Glossary of terms used in the 40 Recommendations of the Financial Action Task Force on Money Laundering - FATF, whereby a "politically exposed person" is the one who has or had important public functions in a foreign country, for example, heads of state and government, high-level politicians, high-level government officials, high-level magistrates or military, executives of public companies or leaders of political parties.

§4th - For the purposes of the head of this article, relatives in direct line to the first degree, such as spouse, companion, partner, stepson and stepdaughter are considered as family.

§5th - The period of 5 (five) years referred to in the head of this article should be counted retroactively from the date of start of the business relationship or the date on which the assessment of the condition of politically exposed person is being performed.

CHAPTER III
INTERNAL CONTROLS

Art. 5th - The companies, reinsurers and brokers should develop and implement, in accordance with the law and regulations in force, internal control procedures, effective and consistent with the nature, complexity and risks of operations, that include the identification, assessment, control and monitoring the risks of being involved in situations related to money laundering, as well as to prevent and cohibit the financing of terrorism, with respect to marketed products, private negotiations, operations of purchase and sale of assets and other operational practices.

Art. 6th - The internal control procedures, referred to in Art. 5th of this Circular shall include at least the following items:

I - establishing a policy to prevent and combat money laundering and terrorism financing, including guidelines on risk assessment in underwriting operations, upon contracting third parties or other related parties, in product development, in private negotiations in operations with assets;

II - development of criteria and implementation of procedures to identify customers, beneficiaries, third parties and other related parties, and maintenance of records relating to products and procedures exposed to the risk of serving to money laundering and terrorism financing;

III – development of manuals and implementation of procedures for identification, monitoring, risk analysis and reporting of transactions that may constitute evidence to money laundering or terrorism financing, or that may relate to them;

IV - development and implementation of specific training program for the qualification of employees to comply with the provisions of Law No. 9.613/98, in this Circular and other regulations relating to money laundering and the prevention and combating the financing of terrorism; and

V - development and execution of the annual internal audit program to verify compliance with the procedures of this Circular, in all its aspects, considering that such verification may, at the discretion of the company, the reinsurer or broker, be conducted by its internal audit department or by independent auditors;

Sole Paragraph - Regarding the brokers, the provisions of items I, II, III, IV and V of this article shall mandatorily apply, only when their annual revenue in the previous year exceeds BRL 12,000,000.00 (twelve million reais).

CHAPTER IV
THE REGISTRATION

Art. 7th - For the purposes of item I of Art. 10 of Law No. 9.613/98, the companies, reinsurers and brokers should do and keep updated the identification of the persons referred to in item II of Art. 6th of this Circular, containing:

I - in the case of natural persons:

a) full name;

b) single identification number, with the following order of preference: registration number in the Registry of Taxpayer (CPF / MF); identification number, valid throughout the national territory, in this case accompanied by the nature of the document, issuing body and date of issuance, or Passport number, identifying the country of issuance;

c) full address (street, neighborhood, zip code, city, state);

d) phone number and long distance code, if any;

e) profession;

f) estimated equity or monthly income level; and

g) the framework provided for politically exposed person, as provided for in Art. 4th, if applicable.

II - in the case of legal persons:

a) the company name or trade name;

b) main activity;

c) the identification number on the National Registry of Legal Entities (CNPJ), or in the Registry of Foreign Companies / Bacen (Cademp) for offshore companies, except for those universal rights companies that are, by law, exempt from registration in the CNPJ and Cademp;

d) full address (street, neighborhood, zip code, city, state), phone number and long distance code (DDD);

e) names of the controlling parties to the level of natural persons, key administrators and attorneys and their framework as politically exposed persons, as provided for in article 4th, if applicable; and

f) information about the equity and financial situation.

Art. 8th - The fulfillment of the requirements detailed in Art. 7th, will occur according to the following criteria.

I - fully meeting the requirements of registration data of clients, beneficiaries and other parties directly related to the operation for:

a) insurance sold by ticket, DPVAT^[1] insurance, closed policy collective insurance, open policy collective insurance paid by credit card, extended warranty collective insurance, open policy collective insurance with a monthly premium lower than BRL 50.00 (fifty reais), the registration referred to in Article 7th shall be performed:

1.upon premium return due to cancellation, in the amount equal to or greater than BRL 10,000.00 (ten thousand reais), and

2. upon payment of indemnity.

b) insurance of branches 0775 (Bonds Insured - Public Sector) and 0776 (Bonds Insured - Private Sector) as well as those of the previous coding, the registration of article 7th must be performed:

1. upon contracting, related to the registration information of the principal or guaranteed; and

2. upon the indemnity payment related to the registration information of the insured.

c) in the other insurances not included in subparagraphs "a" and "b" of this subsection, the registry referred to in article 7th must be performed:

1. upon premium return due to cancellation, in the amount equal to or greater than BRL 10,000.00 (ten thousand reais); and

2. upon payment of indemnity or redemption.

d) complementary pension products and redeemable life:

1. upon redemption payment equal to or greater than BRL 10,000.00 (ten thousand reais), and

2. upon payment of the benefit.

e) popular modality of saving bonds, as defined in Art. 1st of Annex IV of SUSEP Circular No. 365, of 27 May 2008, and subsequent amendments, the registration referred to in article 7th must be made upon the redemption, involving one or more bonds, whose total value is equal to or greater than BRL 10,000.00 (ten thousand reais) and upon the payment of any draw amount.

f) saving bonds products not covered in subparagraph "e" of this item, the registry referred to in article 7th must be performed:

1. upon the payment of redemption equal to or greater than BRL 10,000.00 (ten thousand reais); and

2. upon the payment of drawing lotteries.

g) transactions with premium payment, contribution and / or monetary contribution outside the banking network, regardless of the product.

II - partial fulfillment of the requirements of registration data of clients, beneficiaries and other parties directly related to contracting and all other stages of the operation of cases not related in item I, restricting themselves to obtaining the registration data of natural persons and legal persons discriminated in subparagraphs "a", "b", "c" and "d" of items I and II of Art. 7th, respectively, disregarding the collection and storage of supporting documentation.

III - meeting the requirement of registration data and collection and storage of supporting documentation for the other parties indirectly related to the operation, not covered by the previous items, depending on the risk analysis of their operations to be involved in the crimes of money laundering and others provided for in this Circular.

§1st - The registry records and documentation referred to in this article may be stored in the form of printed or electronic document and should be kept for the periods established by the regulation.

§2nd - The collection and custody of the documentation of the registration mentioned in item I of this article is mandatory, being possibly limited to subparagraphs "a", "b" and "c" of item I of article 7th when referring to natural persons that reside in Brazil or in countries, which do not have strategic deficiencies in combating money laundering and terrorism financing.

§3rd - The collection and custody of the documentation of the registration mentioned in item I of this article is mandatory, being possibly limited to subparagraphs "a", "b" and "c" of item II of Art. 7th when referring to legal persons established in Brazil, provided they are not subsidiaries of companies based in countries that have strategic deficiencies in combating money laundering and terrorist financing.

§4th - For the politically exposed persons (PEP) defined in Chapter II, the identification requirements detailed in Art. 7th of this Circular must be fully complied including the collection and storage of documentation.

§5th - When the companies, reinsurers or brokers have as counterpart of the business an insurer, a saving bonds company, a private pension open entity or a local reinsurer, the registration provided for in Art. 7th must not be done.

§6th - In the case of coinsurance, only the leading insurer is obliged to keep documents and information related to this article.

§7th - In case of payment according to the sole paragraph of Art. 14 of the Complementary Law No. 126/07, the local and admitted reinsurer and the retrocessionaire must carry out with the identification according to what is provided in this article.

§8th - The companies, reinsurers and brokers may enter into agreements or contracts with financial institutions, policyholders, founders, settlors or companies that make the administration of database, that has registrations with information, or information and documents that meet the requirements of articles 7th and 8th.

§9th - The agreements or contracts provided for in §8th of this article do not exclude the liability of the company, the reinsurer or broker to comply with the provisions of this Circular and the enforceability of promptly submission of registrations provided for in this article to SUSEP, whenever requested by the authority.

§10 - The officer in charge, appointed according to Art. 2nd of this Circular, may waive to comply with the items set forth in this article for residents in Brazil or in countries which do not have strategic deficiencies in combating money laundering and terrorism financing, by express justification, based on a risk study, which, both the justification and the study, will be available for immediate submission upon SUSEP’s request.

CHAPTER V
MONITORING OF OPERATIONS AND BUSINESS RELATIONS

Art. 9th - In case of application in the framework provided for politically exposed person, as provided for in article 4th, the origin of funds from operations with values equal to or greater than BRL 10,000.00 (ten thousand reais) must be identified.

Sole paragraph - The identification can be made through a statement of the politically exposed person.

Art. 10 – The monitoring must be done continuously and thoroughly in cases of business relations held with politically exposed person or business relationship that, by their characteristics, are at risk of being related to money laundering operations or terrorism financing.

Sole paragraph - The transactions or business relations in which there are doubts about the veracity and appropriateness of clients identification should also be considered at risk.

Art. 11 - It is mandatory to obtain authorization from higher authority for the establishment of the business classified in Art. 10 or for the continuation of existing relationships, when the person or operation may apply to that framework.

CHAPTER VI
REGISTRATION OF OPERATIONS AND THEIR RESPECTIVE LIMIT

Art. 12 - For purposes of item II of art. 10 of Law No. 9.613/98, the companies, reinsurers and brokers must keep organized and available to SUSEP, during the regulated period, the records, registrations, risk analysis mentioned in item III of article 6th and other documents related to all transactions with clients, beneficiaries, third parties and other related parties, including those relating to payments made with identification of the final beneficiary.

Sole paragraph - The companies, reinsurers, intermediaries and brokers are responsible for the accuracy and adequacy of records and documents mentioned in the head of this article, except for the malice and bad faith by people and inaccuracy of registration databases and / or other sources of information, which are not held by the company.

Arti. 13 - For purposes of this Circular, the operations are divided as follows:

I - Group 1:

a) contributions in the calendar month or payment of PGBL, VGBL or capitalization bond in an amount equal to or greater than BRL 1,000,000.00 (one million reais);

b) purchase of insurance policies by natural persons, except for the DPVAT with premium value equal to or greater than BRL 100,000.00 (one hundred thousand reais) in the calendar month;

c) redemption amount equal to or greater than BRL 1,000,000.00 (one million reais) in the calendar month;

d) payment or proposal of premium payment, contribution or capitalization bond outside the banking system, in an amount equal to or greater than BRL 50,000.00 (fifty thousand dollars) in a calendar month;

e) redemption of popular modality saving bonds, as defined in article 1st of Annex IV of SUSEP Circular No. 365/08 and subsequent amendments, whose sum is equal to or greater than BRL 10,000.00 (ten thousand reais) in the calendar month ;

f) drawing of saving bonds equal to or greater than BRL 100,000.00 (one hundred thousand reais);

g) redemption, in the case of individual life insurance, whose value is equal to or greater than BRL 50,000.00 (fifty thousand reais);

h) premium return, with or without policy cancellation, whose amount is equal to or greater than BRL 50,000.00 (fifty thousand reais); and

i) receipt, in one or more transactions, in its own name, as assignee of the beneficiary, or on behalf of the beneficiary, as trustee, of DPVAT insurance indemnity that add up in a month, an amount equal to or greater than BRL 100,000,00 (one hundred thousand reais);

II - Group 2:

a) reluctance to provide information or providing incorrect information related to the identification or operation;

b) contract by a nonresident foreigner for services rendered by the persons mentioned in Art. 2nd of this Circular, without any justifiable reason;

c) proposals or transactions incompatible with the socioeconomic profile, financial capacity or occupation of the client, beneficiary, third parties and other related parties;

d) proposals or operations diverging from normal market conditions;

e) payment to the beneficiary without any apparent relationship with the insured, without any justifiable reason;

f) change of the owner of the business or property immediately prior to the accident, without any justifiable reason;

g) payment of premium, outside the banking network, by check or other instrument, by natural or legal person, other than the insured, without any justifiable reason;

h) transactions, including among those listed in Group 1 of this article, whose peculiar characteristics, especially with regard to the parties involved, values, material representation, instruments used, or the lack of economic or legal basis, even if they bring benefit to company, the reinsurer or broker, may represent evidence of money laundering, terrorism financing, or any other unlawful manner;

i) unnecessary use by the reinsurer, of a complex network of brokers for placement of risk;

j) unnecessary use by the reinsurer, of brokers in the transaction;

k) claim notices that seem legitimate, but with abnormal frequency;

l) relevant variations of the insured amount without apparent cause; and

m) operations of the Group 1 of this article, of values below the limits stipulated, which in their customariness and form configure as device for swindling those limits.

§1st - When the origin or destination of the funds for the settlement of transactions is from the same natural person, the operation will not fit in subparagraphs "a", "c" and "g" of item I.

§2nd - The responsible director, appointed according to Art. 2nd of this Circular, may waive the communications referred to in item I of this article, by express justification, based on a study of risk, which both the justification and the study will be available for immediate submission upon SUSEP’s request.

§3rd - The waiver of notice provided for in §2nd, should materialize in an individual report, by the natural or legal person entity involved, discriminated by business made with their respective individual values and its monthly amount.

CHAPTER VII
COMMUNICATION OF OPERATIONS

Art. 14 - For purposes of item II of Art.11 of Law No. 9.613/98, the proposals or the occurrence of operations listed in Group 1 must be reported to SUSEP, within twenty-four hours from the operation or knowledge of the condition that meets the criteria of the communication, regardless of any analysis or classified, after being analyzed in Group 2 of Art.13 of this Circular.

§1st- The communications referred to in this article must:

a) mention the participation or involvement of politically exposed person, if applicable;

b) mention the intermediate broker of operation; and

c) be made through the website of the Council for Financial Control Activities COAF (http://www.fazenda.gov.br/coaf/) without informing to the involved parties.

§ 2nd - The communications in good faith, according to § 2nd of Art. 11 of Law No. 9.613/98, will not result in civil, criminal or administrative liability to people mentioned in Art. 2nd of this Circular, their administrators, directors and employees.

Art. 15 - The companies and reinsurers should inform SUSEP, in the form of a negative report if, during any month of the calendar year the operations mentioned by Art. 14 of this Circular are not verified.

§1st - The report referred to in this article must be made through the SUSEP site (http://www.susep.gov.br/).

§ 2nd - The negative communication should be made until the 20th day of the following month in which the situations mentioned by Art. 14 of this Circular have not taken place.

CHAPTER VIII
ADMINISTRATIVE LIABILITY

Art. 16 - The violation to the provisions of this Circular will be punished in accordance with Art. 12 of Law No. 9.613/98 and regulation in force.

CHAPTER IX
FINAL PROVISIONS

Art. 17 – The action plans in progress referring to the deficiency tables issued by the audit of SUSEP should be adapted to this Circular.

Art. 18 – The adaptation period of 90 (ninety) days is therefore established, being the procedures laid out in SUSEP Circular No. 380/08 in force during this period.

Art. 19 - This Circular shall come into force upon its publication, and SUSEP Circular No. 380 of 29 December 2008 and the Circular Letter SUSEP/DEFIS/GAB No. 27/2009 is hereby revoked.

Carlos Roberto Amorelli de Freitas
Deputy Superintendent

(Official Gazette “DOU” of 04.07.2012 - pages 41 and 42 - Section 1)

(*) The information provided in this publication is general and may not apply to a specific situation or person. Every effort has been made to ensure that matters of concern to readers are covered. Although the information provided is accurate, be advised that this is a developing area. The information contained herein is not intended to be relied upon or to be a substitute for legal advice in relation to particular circumstances. Specific legal advice should always be sought from experienced local advisers. Accordingly, Editora Roncarati accepts no liability for any loss that may arise from reliance upon this publication or the information it contains.

[1] DPVAT - Seguro de Danos Pessoais Causados por Veículos Automotores de Vias Terrestres – corresponds to a mandatory insurance for vehicle drivers that is automatically contracted when the driver pays the anual tax IPVA (Imposto sobre a Propriedade de Veículos Automotores) that corresponds to the tax for driving and traffic.

Tags Legismap:

Circular Susep Normas (Susep/CNSP) Normas Traduzidas