C26C25C24C31F1PART 9ARules and Guidance
Pt. 9A applied (with modifications) (31.12.2020) by The Transparency of Securities Financing Transactions and of Reuse (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/542), regs. 1, 35 (as amended by S.I. 2020/1385, regs. 1(4), 56(7)) (with savings in S.I. 2019/680, reg. 11); 2020 c. 1, Sch. 5 para. 1(1)
Pt. 9A applied (31.12.2020) by The Solvency 2 and Insurance (Amendment, etc.) (EU Exit) Regulations 2019 (S.I. 2019/407), regs. 1(2), 4, Sch. 3 (as amended by S.I. 2020/1301, regs. 1, 3, Sch. para. 27(a) and S.I. 2020/1385, regs. 1(2), 54(2))
Pt. 9A applied (with modifications) (31.12.2020) by The Over the Counter Derivatives, Central Counterparties and Trade Repositories (Amendment, etc., and Transitional Provision) (EU Exit) Regulations 2019 (S.I. 2019/335), regs. 1(1), 74 (as amended by S.I. 2020/1385, regs. 1(4), 52(7)) (with savings in S.I. 2019/680, reg. 11); 2020 c. 1, Sch. 5 para. 1(1)
Pt. 9A applied (1.7.2021) by Regulation (EU) No. 600/2014, Art. 49A(12) (as inserted by Financial Services Act 2021 (c. 22), s. 49(5), Sch. 10 para. 9; S.I. 2021/739, reg. 3(o))
C14C13C28C27C26C25C24C32C31CHAPTER 2Rules: modification, waiver, contravention and procedural provisions
Pt. 9A Ch. 2 applied (with modifications) by S.I. 2011/99, Sch. 3 para. 2A(2)(3) (as inserted (13.8.2017 for specified purposes, 13.10.2017 for specified purposes, 13.1.2018 in so far as not already in force) by The Payment Services Regulations 2017 (S.I. 2017/752), reg. 1(2)(c)(iii)(3)(f)(i)(6), Sch. 8 para. 5(31)(a) (with reg. 3) and as amended (18.9.2023) by The Electronic Money, Payment Card Interchange Fee and Payment Services (Amendment) Regulations 2023 (S.I. 2023/790), regs. 1(2)(a), 2(3)(a)(iii)-(v))
Pt. 9A Ch. 2 applied (with modifications) (13.8.2017 for specified purposes, 13.1.2018 in so far as not already in force) by The Payment Services Regulations 2017 (S.I. 2017/752), reg. 1(2)(b)(ii)(6), Sch. 6 para. 3(2) (with reg. 3) (as amended (18.9.2023) by The Electronic Money, Payment Card Interchange Fee and Payment Services (Amendment) Regulations 2023 (S.I. 2023/790), regs. 1(2)(a), 4(5)(a)(iii))
Pt. 9A Ch. 2 applied (31.12.2020) by The Financial Services and Markets Act 2000 (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/632), regs. 1(3), 209(6) (with reg. 209(7)); 2020 c. 1, Sch. 5 para. 1(1)
Pt. 9A Ch. 2 applied (31.12.2020) by The Financial Services and Markets Act 2000 (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/632), regs. 1(3), 208(7) (with reg. 208(8)); 2020 c. 1, Sch. 5 para. 1(1)
Pt. 9A Ch. 2 applied in part (1.7.2021) by Regulation (EU) No. 600/2014, Art. 50D (as inserted by Financial Services Act 2021 (c. 22), s. 49(5), Sch. 10 para. 12 (with Sch. 10 para. 13); S.I. 2021/739, reg. 3(o))
Procedural provisions
C1C3C4C6C7C9C10C11C12C15C17C21C20C19C18C28C27C22C26C23C25C24C29C32C31C30C33C34C35C36138IConsultation by the FCA
1
Before making any rules, the FCA must—
a
consult the PRA, and
C5b
after doing so, publish a draft of the proposed rules in the way appearing to the FCA to be best calculated to bring them to the attention of the public.
2
The draft must be accompanied by—
C8a
a cost benefit analysis,
b
an explanation of the purpose of the proposed rules,
F20ba
an explanation of the ways in which having regard to specified matters under section 138EA(2) has affected the proposed rules,
c
any statement prepared under section 138K(2),
C2C16d
an explanation of the FCA's reasons for believing that making the proposed rules is compatible with its duties under section 1B(1) F22, (4A) and (5)(a), and
C5e
notice that representations about the proposals may be made to the FCA within a specified time.
C53
Before making the proposed rules, the FCA must have regard to any representations made to it in accordance with subsection (2)(e).
4
If the FCA makes the proposed rules, it must publish an account, in general terms, of—
a
the representations made to it in accordance with subsection (2)(e), and
b
its response to them.
F214A
The FCA must include, in the account mentioned in subsection (4), a list of the respondents who made the representations, where those respondents have consented to the publication of their names.
4B
The duty in subsection (4A) is not to be read as authorising or requiring such processing of personal data as would contravene the data protection legislation (but the duty is to be taken into account in determining whether particular processing of data would contravene that legislation).
4C
For the purposes of this section, the exemption relating to functions conferred on the FCA mentioned in paragraph 11 of Schedule 2 to the Data Protection Act 2018 (exemption from application of listed GDPR provisions) does not apply.
4D
Where representations are made to the FCA by a Committee of the House of Commons or the House of Lords or a Joint Committee of both Houses in accordance with subsection (2)(e), the FCA’s account mentioned in subsection (4) must also describe how the FCA has considered the representations made by that Committee in making the proposed rules.
5
If the rules differ from the draft published under subsection (1)(b) in a way which is, in the opinion of the FCA, significant the FCA must publish—
a
details of the difference (in addition to complying with subsection (4)) together with a cost benefit analysis, and
b
any statement prepared under section 138K(4).
6
The requirements to carry out a cost benefit analysis under this section do not apply in relation to rules made under—
a
section 136(2);
F2aa
section 137FB;
F6ab
section 137FBA;
F12ac
section 137FC;
F8ad
section 137SA;
F10ae
section 137SB;
b
subsection (1) of section 213 as a result of subsection (4) of that section;
c
section 234;
F13ca
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F14cb
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F4cc
section 333T;
d
paragraph 23 of Schedule 1ZA;
F17e
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
7
“Cost benefit analysis” means—
a
an analysis of the costs together with an analysis of the benefits that will arise—
i
if the proposed rules are made, or
ii
if subsection (5) applies, from the rules that have been made, and
b
subject to subsection (8), an estimate of those costs and of those benefits.
8
If, in the opinion of the FCA—
a
the costs or benefits referred to in subsection (7) cannot reasonably be estimated, or
b
it is not reasonably practicable to produce an estimate,
the cost benefit analysis need not estimate them, but must include a statement of the FCA's opinion and an explanation of it.
F198A
The requirement to provide the explanation referred to in subsection (2)(ba) does not apply in relation to any rules if—
a
the FCA considers that the delay involved in complying with that requirement would be prejudicial to the interests of consumers (as defined in section 425A) or other persons whose interests would be protected by the rules, or
b
the rules change existing rules and the changes consist of, or include, changes which, in the FCA’s opinion, are not material.
8B
Where an explanation is not provided by virtue of subsection (8A)(b), the draft of the rules must be accompanied by a statement of the FCA’s opinion.
9
The FCA may charge a reasonable fee for providing a person with a copy of a draft published under subsection (1)(b).
F189A
This section does not apply to rules made by the FCA under section 271E.
10
Subsection (1)(a) does not apply to F3—
a
b
rules made by the FCA in relation to recognised investment exchanges under Part 18.
11
This section is subject to section 138L.
Pt. 9A substituted for ss. 138-164 (24.1.2013 for specified purposes, 1.4.2013 in so far as not already in force) by Financial Services Act 2012 (c. 21), ss. 24(1), 122(3) (with Sch. 20); S.I. 2013/113, art. 2(1)(c), Sch. Pt. 3; S.I. 2013/423, art. 3, Sch.