The ACCC has released a final determination confirming that T-Ports Pty Ltd (T-Ports) is an ‘exempt service provider’ of port terminal services provided via its port terminal facility at Lucky Bay, South Australia.
The ACCC indicated its intention to exempt the facility through the release of a ‘final position’ document in August 2019.
The final position set out the reasons why the ACCC considered the exemption appropriate. These included the ACCC’s view that T-Ports will face a high level of competitive constraint and will have strong incentives to provide exporters fair and transparent access to its services.
The exemption means that T-Ports will not be required to comply with Parts 3 to 6 of the Port Terminal Access (Bulk Wheat) Code of Conduct in the course of providing services at Lucky Bay.
The ACCC’s final determination and final position documents are available at: T-Ports Lucky Bay wheat port exemption assessment.
Background
The Port Terminal Access (Bulk Wheat) Code of Conduct, which commenced on 30 September 2014, regulates the conduct of port terminal service providers to ensure that exporters of bulk wheat have fair and transparent access to port terminal services.
Where it considers it appropriate the ACCC is able to reduce the level of regulation applying to service providers by ‘exempting’ them from having to comply with Parts 3 to 6 of the code in the course of providing services via a specified facility (or facilities).
Exempt service providers are therefore not required to comply with the majority of the code’s obligations. These include obligations on service providers to not discriminate in the course of providing services, resolve access disputes in accordance with defined dispute resolution processes, and provide access to services in accordance with an ACCC-approved capacity allocation system.
The code provides that exempt service providers are however still required to deal with exporters in good faith and comply with specific reporting obligations (for example, publish and provide to the ACCC a ‘port loading statement’ that provides information about upcoming shipments from the relevant facility, publish its standard terms of access and policies and procedures for managing demand for services).