The ACCC has today released final determinations exempting the services provided by grain handler Viterra at its Port Adelaide Inner Harbour and Outer Harbor facilities from parts of the Port Terminal Access (Bulk Wheat) Code. The ACCC also determined not to exempt Viterra's services at its Wallaroo and Port Giles facilities.
The decision means Viterra will no longer be subject to requirements not to discriminate against exporters seeking access to its facilities, and will not be subject to access-related dispute resolution processes at Inner Harbour and Outer Harbor. The company will also not require ACCC approval of its capacity allocation systems, and will no longer be required to publish certain information about expected capacity or bulk grain stocks held at these port terminals. However, Viterra will still have to follow these requirements at its Port Giles and Wallaroo facilities.
"While Viterra is the dominant port service provider for South Australia's bulk grain export market, we believe their Inner Harbour and Outer Harbor facilities now experience sufficient competition to justify a reduction in regulation," ACCC Deputy Chair Mick Keogh said.
"We are satisfied that Viterra's Port Adelaide terminals face adequate competitive constraint from three main sources: nearby third-party terminals, Port Adelaide's containerised export, and domestic grains markets."
"We're able to reduce regulation at Viterra's Port Adelaide operations as we believe the level of competition gives users options in getting their grain to market. The benefits of less regulation and more competition should flow through to growers," Mr Keogh said
"We don't believe, however, that Viterra's Port Giles and Wallaroo facilities currently face enough competition to support a decision to exempt it from the parts of the code which regulate access to the facility by other parties. But we will continue to closely monitor developments in the South Australian market to see if additional competitors emerge."
At Port Adelaide, Viterra is still required to deal with grain exporters in good faith, publish a port loading statement and loading procedures, and make standard terms and reference prices available. It also remains subject to the competition law provisions in Part IV of the Competition and Consumer Act 2010.
"The ACCC can revoke its decision to exempt the Port Adelaide terminals at any time, should the reasons for granting it no longer apply," Mr Keogh said.
Viterra made applications to be exempt from Parts 3 to 6 of the Code at all six of its South Australian port terminals in July 2019. The ACCC's assessment has required detailed consideration of Viterra's operations and the broader South Australian grain industry. Given the ongoing changes and market developments, the ACCC has consulted with many stakeholders and considered a range of data, including current peak season shipping data.
The ACCC anticipates it will release final determinations for Viterra's Port Lincoln and Thevenard facilities in July 2021, after it considers peak period shipping data.
The ACCC's final determinations are available at Viterra wheat port exemption assessment.
Background
The Port Terminal Access (Bulk Wheat) Code of Conduct commenced on 30 September 2014 and regulates port terminal service providers to ensure that exporters of bulk wheat have fair and transparent access to port terminal facilities.
Where appropriate, the ACCC may determine a service provider to be an 'exempt service provider' at a specified port terminal. Exempt service providers are 'exempted' from having to comply with Parts 3 to 6 of the Code in the course of providing services from the specified terminal.
Among other things, this means Viterra would not be:
- subjected to prohibitions that prevent discrimination in favour of their associated entity exporter
- required to have their capacity allocations processes approved by the ACCC
- required to publish certain information, including stocks held at port.
In making its determination, the ACCC is required to have regard to the matters listed at subclause 5(3) of the Code which include: the interests of exporters and the service provider; whether the service provider is an exporter (or associated with an exporter); the presence of other exempt service providers in the area; and competition in upstream and downstream markets.
More information about the code and exemptions is available at Wheat export projects.
