25Port loading protocol to include capacity allocation system

25 Port loading protocol to include capacity allocation system

(1) A port loading protocol must include the port terminal service provider’s capacity allocation system for the port terminal facility. (2) A capacity allocation system must not allocate capacity in respect of a day that is more than 6 months after the day on which the capacity is allocated unless the capacity allocation system: (a) has been approved by the ACCC in accordance with subclause (3); or (b) is taken to be approved by the ACCC under subclause (5). (3) In deciding whether or not to approve a port terminal service provider’s capacity allocation system, the ACCC must have regard to: (a) whether the capacity allocation system will operate efficiently fairly and consistently with clause 10 (non‑discrimination); and (b) whether the capacity allocation system will operate efficiently and provide sufficient information to exporters about the capacity of port terminal facilities owned or operated by the port terminal service provider to help exporters plan export activities and acquire required port terminal services; and (c) whether the capacity allocation system will operate efficiently and provide flexibility and transferability of shipping slots, including the ability to move allocated capacity of port terminal facilities owned or operated by the port terminal service provider across times or ports where appropriate; and (d) whether the capacity allocation system will operate efficiently and contains mechanisms to ensure that the provider takes all reasonable steps to ensure that capacity of port terminal facilities owned or operated by the port terminal service provider is not unused during times of peak use; and (e) the potential effects that the capacity allocation system has on upstream and downstream markets; and (f) the business interests of the port terminal service provider; and (g) the public interest, including the public interest in having competition in markets; and (h) the interest of exporters wanting access to port terminal services; and (i) the economically efficient operation and use of, and investment in port terminal facilities; and (j) any other matters that the ACCC considers relevant. (4) If the ACCC approves a port terminal service provider’s capacity allocation system under subclause (3), the port terminal service provider must make available the ACCC’s decision on its website no later than 10 business days after the approval is given. (5) If, immediately before 30 September 2014: (a) a port terminal service provider was providing port terminal services by means of a particular port terminal facility; and (b) an undertaking given by the provider and accepted by the ACCC was in force in relation to those services at that facility; and (c) the undertaking included a capacity allocation system; that capacity allocation system is taken to have been approved by the ACCC on 30 September 2014. (6) The ACCC must, as soon as practicable after the commencement of this code, publish on its website guidelines relating to the process for approving a capacity allocation system under this section.