The ACCC has considered Viterra’s application and has approved the varied capacity allocation system set out in Viterra’s Port Loading Protocols for its six bulk grain export port terminals in South Australia.
The ACCC has released a Final Decision document that sets out the reasons why the ACCC decided to approve the varied system. This includes that, on balance, the ACCC considers the system will likely provide sufficient flexibility, and operate fairly, efficiently and consistently with the code’s non-discrimination requirements.
In approving the varied system, the ACCC notes it received limited response to its consultation process. However, those stakeholders which did respond, either supported or did not raise concerns with the changes that would be introduced under the varied system.
Viterra’s decision to initiate long-term capacity allocation processes in parallel with varying its capacity allocation system has created confusion and uncertainty for industry. The ACCC opted to proceed to a final decision in relation to this matter in the interests of providing the South Australian bulk grain export industry with certainty around capacity allocation processes in advance of the 2022-23 shipping year.
The ACCC’s decision means that Viterra is now able to allocate capacity using the varied system.
Background
The ACCC monitors and enforces compliance with the Port Terminal Access (Bulk Wheat) Code of Conduct which regulates the conduct of port terminal service providers to ensure that exporters of bulk wheat have fair and transparent access to port terminal services.
The code assigns the ACCC a number of specific roles, including in relation to approving the capacity allocation system used by a port terminal service provider and determining a PTSP to be an ‘exempt service provider’. Non-exempt PTSPs must not allocate capacity more than six months in advance unless the capacity allocation system has been approved by the ACCC. If a PTSP proposes a variation to an approved capacity allocation system, that system as varied must be approved by the ACCC.
The ACCC is required to consider a range of matters when considering whether to exempt a PTSP from having to comply with Parts 3 to 6 of the code in the course of providing services at a specified facility. Parts 3 to 6 of the code contain the obligations that seek to ensure PTSPs provide access to services fairly and transparently (including in matters relating to the approval of capacity allocation systems).
The ACCC previously approved Viterra’s capacity allocation system on 3 December 2015. The ACCC released final determinations granting exemptions in relation to Viterra's facilities at Port Adelaide Inner Harbour and Outer Harbor on 27 April 2021.