On 22 September 2011, Viterra submitted an Access Undertaking (the 2011 Undertaking) to the ACCC for assessment under section 44ZZA of the Competition and Consumer Act 2010 (Cth) (CCA).
On 28 September 2011 the ACCC accepted, pursuant to Division 6 of Part IIIA of the CCA, the 2011 Undertaking provided to the ACCC by Viterra on 22 September 2011. The 2011 Undertaking relates to the provision of access to port terminal services to accredited wheat exporters for purposes realting to the export of bulk wheat. The ACCC published the reasons for its decision in the Decision to Accept the 2011 Undertaking available below.
On 23 December 2010, Viterra lodged a proposed access undertaking for its port terminal services with the ACCC for assessment under section 44ZZA of the Trade Practices Act 1974 (known as the Competition and Consumer Act 2010 (CCA) from 1 January 2011). A link to the proposed undertaking and supporting documentation from Viterra is below.
The ACCC released a Draft Decision on 11 August 2011 and seeks comment on the preliminary views contained in the Draft Decision. Submissions by interested are due by 31 August 2011.
The Draft Decision also references a revised draft of Viterra's proposed 2011 undertaking. Links to Viterra's revised draft and supporting submissions appear below.
The ACCC commenced public consultation on its Draft Decision regarding Viterra's proposed 2011 undertaking on 11 August 2011. Submissions were due by 31 August 2011 and are available at the link below.
Section 44ZZBC of the Competition and Consumer Act 2010 (Cth) requires the ACCC to make a decision on an access undertaking application within 180 days starting the day the application is received. In calculating this time period, days may be disregarded under certain circumstances, for example during periods of public consultation or by agreement between the applicant and the ACCC.
On 20 June 2011, Viterra requested that the period 20 June 2011 to 8 July 2011 be disregarded in calculating the 180 day period in order to enable the ACCC sufficient time in which to consider additional information provided by Viterra. On 5 July 2011, the ACCC agreed to Viterra's request. Correspondence outlining that agreement appears below.
Capacity allocation method - 2011 / 2012 Bookings on the Viterra Shipping Stem
As part of the assessment of the proposed 2011 undertaking, the ACCC is examining whether the first in, first served allocation method operated by Viterra is appropriate. As part of that assessment, the ACCC is considering the transitional arrangements relating to bookings made pursuant to the 2009 undertaking for execution after the expiry of the 2009 undertaking.
In order to obtain views from industry participants, the ACCC has issued 12 notices pursuant to s.44ZZBCA(1) of the Competition and Consumer Act 2010. The notices have been issued to exporters who currently appear on the Viterra shipping stem: AWB Limited, Bunge Agribusiness Australia Pty Ltd, Cargill Australia Limited, CBH Grain Pty Ltd, Concordia Agritrading (Australia) Pty Ltd, Elders Toepfer Grain, Emerald Group Australia Pty Ltd, Gavilon Grain Australia Pty Ltd, Louis Dreyfus Commodities Australia Pty Ltd, Pentag Nidera Pty Limited, Plum Grove Pty Ltd, and Touton Australia Pty Limited. Submissions in response to these requests for information were due by 5:00pm 7 April 2011.
Interested stakeholders who did not receive a s.44ZZBCA(1) notice were also invited to make submissions in relation to this issue. Written replies to transport@accc.gov.au were requested before 5:00pm on Friday 8 April 2011. Note that unless information provided is marked confidential, it will be made available to any organisation or person on request. Any information that is confidential should be clearly identified.
An additional request for information was issued to Viterra Operations on 15 April 2011. Information requested relates to capacity management issues, Export Select/Export Standard, the operation of the anti-hoarding provision, treatment of wheat from third parties and differential pricing, and information handling and sharing. The notice, issued on 15 April 2011 operated as a 'clock stopper'. The 180 day statutory timeframe resumed on 4 May 2011.
The ACCC commenced public consultation on Viterra’s proposed 2011 Port Terminal Services Access Undertaking on 20 January 2011. The deadline for submissions was 4 March 2011.
Further information on the consultation process and how to make a submission is available in the Issues Paper below.
Submissions on proposed 2011 Undertaking issues paper
The ACCC received the following submissions from stakeholders on the issues paper it released regarding Viterra's proposed 2011 Port Terminal Services Access Undertaking (the Proposed 2011 Undertaking):
On 29 September 2009 the ACCC accepted, pursuant to Division 6 of Part IIIA of the Trade Practices Act 1974 (known as the Competition and Consumer Act 2010 (CCA) from 1 January 2011), the Access Undertaking (the Undertaking) provided to the ACCC by Viterra (then AusBulk) on 24 September 2009 relating to the provision to accredited wheat exporters of access to port terminal services for the purposes relating to the export of bulk wheat. This followed a lengthy process of consultation on an earlier version of Viterra's Undertaking.
For additional information relating to the Port Terminal Services Access Undertaking and the process leading to its submission and acceptance, please refer to the Key Documents of the Undertaking Process below.
As part of the Undertaking, Viterra is required to publish its Port Loading Protocols and a current shipping stem on its website.
Please note that the ACCC is not responsible for the quality, validity or accuracy of information published to Viterra's website. Links to other websites are provided for convenience and do not constitute endorsement of material at those sites or any associated information, product or service.
Breach of Undertaking
ACCC letter concerning breach by Viterra of its Port Terminal Services Access Undertaking (Wheat Access Undertaking).
On April 16 2009, Viterra (then ABB Grain) lodged an Undertaking for assessment under section 44ZZA of the TPA (known as the Competition and Consumer Act 2010 (CCA) from 1 January 2011).
The ACCC released an Issues Paper on 29 April 2009 and invited comment on the Undertaking. The Issues Paper, subsequent submissions, and requests for information document the consultation process between the ACCC and farm groups, the bulk handlers, accredited wheat exporters, and other interested parties.
Following consultation with stakeholders, the ACCC published an initial draft decision stating that ABB's original April proposal was not likely to be acceptable, and likely require changes.
The ACCC sought submissions on this draft decision, and subsequently released a further draft decision on 23 September 2009 giving guidance as to the type of undertaking that would likely be accepted by the ACCC.
This Undertaking was accepted by the ACCC on 29 September, and Wheat Exports Australia subsequently announced the bulk wheat export accreditation renewed for AusBulk (now Viterra) on 30 September 2009.
