81Transition for existing Part 6 operators

81 Transition for existing Part 6 operators

(1) This rule applies to an infrastructure operator that, immediately before 1 July 2020, was a Part 6 operator in a regulatory period in respect of which its infrastructure charges had been determined or approved by the Regulator.

Note: Rule 81 deals with an infrastructure operator that was a Part 6 operator immediately before 1 July 2020 (when substantial amendments to the Rules came into effect). Because the amendments have changed the definition of Part 6 operator, it is possible the operator will no longer satisfy the definition. The operator will, however, continue to be treated as a Part 6 operator until the end of the transition period, which is at least the remainder of its current regulatory period. In particular, the operator will be subject to rule 8 and Part 6.

Note: During the transition period, the operator’s status will be reassessed. If the operator will continue to be a Part 6 operator after the end of the transition period, the operator is required to make an application in relation to the next regulatory period under rule 25. Otherwise, the operator will cease to be treated as a Part 6 operator.

Transitional application and transition period (2) If: (a) the infrastructure operator had made an application for a determination or approval of charges under Part 6 before 1 July 2020; but (b) the charges to which the application related had not been determined or approved before 1 July 2020; then the application is a transitional application for the infrastructure operator. (3) The transition period for the infrastructure operator begins on 1 July 2020 and ends at the end of: (a) if the operator had made a transitional application—the regulatory period in relation to which the application was made; and (b) otherwise—the latest regulatory period in relation to which charges had been determined or approved before 1 July 2020. Application of these Rules during the transition period (4) These Rules apply to the infrastructure operator during the transition period as if it continued to be a Part 6 operator under rule 23 as amended by the amending rules, except as provided in this rule. (5) Where infrastructure charges of the operator were determined or approved before 1 July 2020 in relation to a period after 1 July 2020 (i.e. they were determined or approved under Part 6 as it then stood), the determination or approval is taken to have been made under Part 6 as amended by the amending rules on 1 July 2020. (6) If the infrastructure operator had made a transitional application, then: (a) the charges to which the application relates are to be determined or approved in accordance with Part 6 as it stood before 1 July 2020; and (b) the determination or approval is taken to have been made under Part 6 as amended by the amending rules on 1 July 2020. (7) In applying Divisions 2, 3 and 4 of Part 6, as amended by the amending rules, to the infrastructure operator: (a) a reference to the ACCC is taken to be a reference to the Regulator; and (b) Regulator has the same meaning as it did immediately before 1 July 2020. (8) Rules 23A, 23B and 23D do not apply to the infrastructure operator until the operator has received the notification from the ACCC under subrule (12) of this rule. (9) In applying rule 23D to the infrastructure operator, the reference in subrule 23D(2) to the remainder of the regulatory period is taken to be a reference to the remainder of the transition period. (10) Rule 25 does not apply to the operator unless it has been notified in accordance with subparagraph (15)(d)(ii) of this rule that the next regulatory period for the operator will begin immediately after the end of the transition period for the operator. Assessment of transitioning Part 6 operator against amended criteria (11) As soon as practicable after 1 July 2020, the infrastructure operator must notify the ACCC of: (a) whether or not it is a Part 6 operator under rule 23 as amended by the amending rules; and (b) any matter that it is aware of that may result in the infrastructure operator ceasing to be a Part 6 operator, or becoming one, on a specified date. (12) The ACCC must: (a) form a view as to whether the infrastructure operator is a Part 6 operator under rule 23 as amended by the amending rules, or is likely to cease to be one or to become one before the end of the transition period; and (b) notify the operator of the ACCC’s view; and (c) if the ACCC is of the view that the operator is, or is likely to be, a Part 6 operator—advise the operator that the ACCC will decide whether the operator should be granted an exemption from the operation of Divisions 2, 3 and 4 of Part 6 after the end of the transition period. (13) If paragraph (12)(c) applies, the ACCC must decide whether such an exemption should be granted by applying rule 23C as modified by subrule (15) of this rule.