Application Martin No: gr9902 Jones Contents

Clause 38 Assignment

Origin submits that the ability of the service provider to assign its rights under the agreement should be more limited.⁴²⁴ In particular, that the service provider should only be able to assign:

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  all of its rights and not parts of its rights;
  
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  its rights with the users’ consent; and
  
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  its rights to persons who hold a Licence and are solvent and reputable.
  
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  Origin also submits that the service provider should not be able to withhold its consent to an assignment where the proposed assignee is reputable and solvent and has the technical and financial expertise to perform the assigned obligations. Additionally, consent should not be unreasonably withheld or delayed.⁴²⁵
  

Commission’s considerations

Under clause 38.2 the service provider can not withhold consent to an assignment by the user unreasonably. The Commission considers that this provides sufficient protection for users and therefore the amendment sought is not necessary.

As discussed in the Draft Decision, any assignment by Epic would require Ministerial consent. Therefore the Commission does not consider that further limitation on the service providers ability to assign its rights is necessary.

Proposed amendment A3.27 of the Draft Decision required Epic to amend clause 38(2)(c) to allow for users to prepare and submit any deed required by the service provide for the user to assign its rights. This amendment has been made.

Clause 39 Confidentiality

Clause 39.1(vi) provides for the service provider to disclose confidential information to an assignee of an agreement. In the Draft Decision the Commission indicated that the applicant should further revise clause 39.1(d)(vi) to make it clear that only information relevant to the release of a marketable FT parcel may be disclosed to the acquirer.

In the access arrangement of 29 June 2001 clause 39.1(d)(vi) is limited to information necessary for the purposes of the release. The Commission considers that this is sufficient to overcome the Commission’s concerns and accepts this alteration as meeting the requirements of proposed amendment A3.28.

Clause 40 Access to Information

Origin submits that clause 40.1 should be amended to provide that nothing in that clause relieves the service provider of its obligations under Clause 34.3 to provide information in relation to a force majeure event.⁴²⁶ In addition, clause 40.1 should apply to users as well as the service provider.

Commission’s considerations

Although the Commission considers that the interpretation of section 40.1 suggested by Origin would be unlikely, it does consider that this clause should be clarified to avoid ambiguity. It also considers that it is reasonable for reciprocal provisions to apply to users as well as the service provider.

Accordingly, the Commission requires two amendments to clause 40 to this effect.

Amendment FDA3.

For the access arrangement to be approved, the Commission requires that Epic:

• 
  Amend clause 40.1 as follows:
  

Subject to this agreement, a Party will have no right to be provided with any information that relates in any way to …

• 
  Amend clause 40 by replacing the words ‘User’ and ‘Service Provider’ with the words ‘a Party’.
  

Clause 41 Notices

Origin submits that notices which require a user to take immediate action should be provided by telephone or electronic pager in addition to being placed on the EBB.⁴²⁷ Further, irregular notices which do not require immediate action should be given in writing.⁴²⁸

In its submission in relation to Epics revised access arrangement, Origin noted that its submissions in relation to clause 41 have been satisfactorily addressed.⁴²⁹ Accordingly, no amendment to clause 41 is necessary.

Clause 43 Definitions and Interpretations

Proposed amendment A3.29 of the Draft Decision required clause 43.6 to specify that if there is a conflict between the access arrangement and the schedules, the access arrangement should be given precedence. This amendment has been made.

Conclusion on Terms and Conditions

If all the amendments specified are made then the Commission regards the terms and conditions of the access arrangement to be reasonable and to comply with the Code.

Capacity management policy

13. 
    Code requirements
    

Section 3.7 of the Code requires that an access arrangement include a statement that the covered pipeline is either a contract carriage pipeline or a market carriage pipeline.

Epic’s proposal

Clause 3 of the original proposed access arrangement stated that the MAPS is a contract carriage pipeline.

Submissions by interested parties

Epic submitted that a contract capacity management policy is appropriate for the MAPS because of:

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  the geographic location of the market;
  
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  the nature and density of the demand, which is located mostly near Adelaide, at the end of a long pipeline; and
  
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  the pipeline and market is very different to Victoria, where a market carriage system operates.⁴³⁰
  
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  Commission’s considerations
  

As the access arrangement includes a statement that the MAPS is a contract carriage pipeline, it satisfies the requirements of section 3.7 of the Code.

Trading policy

14. 
    Code requirements
    

If a pipeline is a contract carriage pipeline, sections 3.9 to 3.11 of the Code require the access arrangement to include a trading policy that explains the rights of a user to trade its right to obtain a service to another person. The trading policy must, among other things, allow a user to transfer capacity:

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  without the service provider’s consent, if the obligations and terms under the contract between the user and the service provider remain unaltered by the transfer; and
  
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  with the service provider’s consent, in any other case.
  

Consent may be withheld only on reasonable commercial or technical grounds and the trading policy may specify conditions under which consent will be granted and any conditions attached to that consent.

Epic’s proposal

Clause 26 of Epic’s proposed access arrangement states that users can trade rights in three circumstances. These are:

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  a user may undertake a ‘bare transfer’ and need not supply the service provider with any information in relation to a bare transfer;
  
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  an FT user may release part of a PCQ on the basis that the service provider will deal with, invoice and accept payment from the acquirer as if the acquirer were the user in respect of that marketable FT parcel; and
  
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  an IT user may release the right to access maximum capacity of an excluded point for the purpose of FT or IT service, on the basis that the service provider will deal with, invoice and accept payment from the acquirer as if the acquirer were the user in respect of that marketable IT parcel.
  

An ‘excluded point’ is a new delivery or receipt point for IT services to a user, defined in clause 10.5.

With respect to the latter two transfers:

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  a user may change the delivery point if there is adequate available capacity at the new point or existing point to undertake the reallocation;
  
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  if the acquirer does not have an applicable contract with the service provider, the user may release a marketable parcel, provided the acquirer satisfies the service provider that it can meet its obligations under the contract, and executes an applicable contract in respect of that; and
  
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  nothing will prevent or restrict the service provider from imposing other conditions on the terms on which a release may be cancelled or terminated, if those conditions are reasonable on commercial and/or technical grounds.
  

The service provider will post on the EBB a register of marketable parcels notified to it by the user and by other users.

Submissions by interested parties

In relation to clause 26, Origin submitted that clause 26.6(a)(vi) requires a user to notify the service provider why it wishes to transfer capacity from one Delivery point to another. This information is unnecessary and will be commercially confidential to the user (since it will relate to the user’s trading strategies). Accordingly, Origin submits that clause 26.6(a)(vi) should be deleted.⁴³¹

Origin agreed with proposed amendment A3.3 of the Draft determination but wished that the following matters be clarified:

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  that the user (“surrendering user”) who has lost a customer to another user or Prospective user (“acquiring user”) has an absolute right to surrender the capacity represented by that customer to Epic;
  
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  that upon the surrender of that capacity, the surrendering user will have no further obligation to pay any charges in respect of that capacity; and
  
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  the acquiring user has an absolute right (without any obligation to queue) to acquire the surrendered capacity from Epic.
  

Origin also expressed concern that aggregation efficiencies will and should impact on the quantity of any surrendered capacity, thus making the quantity to be surrendered unclear and subject to dispute.⁴³²

Epic’s response to submissions

Epic indicated that it considered Origin’s concerns to be of an insignificant nature.⁴³³

Commission’s considerations

The Commission agrees with Origin’s submission that clause 26.6(a)(vi) is unnecessary. Epic does not need to know a user’s reason for trading a Marketable Parcel of MDQ, as this would give Epic an undesirable amount of commercially sensitive information that is beyond what is necessary for the purpose of the trading policy. Accordingly, the Commission requires Epic to comply with amendment FDA3.32.

Amendment FDA3.

For the access arrangement to be approved, the Commission requires Epic to remove clause 26.6(a)(vi).

In proposed amendment A3.3 of its Draft Decision, the Commission required Epic to insert the following provision into clause 26:

Capacity that is released by a user:

(a) otherwise than under the trading policy clause 26.2,

(b) for reason that a consumer or aggregator has changed suppliers

May be contracted by another user, or a prospective user:

(i) who is (directly or indirectly) supplying that consumer (or aggregator); and

(ii) without following the queuing process set out in clause 10.

In its submission of 11 October 2000 Epic indicated that it would make the amendment required.⁴³⁴ Epic has amended clause 26.7 of the access arrangement. The Commission considers that Epic’s amendment addresses the concerns raised in the Draft Decision. Accordingly, the Commission is satisfied with clause 26.7 as amended.

In proposed amendment A3.30 of its Draft Decision, the Commission required Epic to amend clause 26 as proposed in its lodgement of 2 March 2000 and letter dated 26 March 2000. Epic has made the proposed changes.

In relation to Origin’s submissions as to proposed amendment A3.3, the Commission considers that the current wording of the amendment is acceptable. The Commission considers that it is acceptable for Epic to maintain some discretion as to whether to agree to a capacity release in the circumstances described in A3.3. Accordingly, no further amendment of this clause is required.

Extensions and expansions policy

Clause 10 contains the service provider’s extensions/expansions policy. Clause 10 of the 29 June 2001 access arrangement has been substantially revised from Epic’s original access arrangement of 1 April 1999. As a result there were a number of proposed amendments and submissions that are no longer relevant which the Commission does not propose to address.

Code requirements

The Code requires an access arrangement to have an extensions/expansions policy (section 3.16). The policy is to set out the method to be applied to determine whether any extension to, or expansion of the capacity of the pipeline will be treated as part of the covered pipeline. A service provider is also required to specify the impact on reference tariffs of treating an extension or expansion as part of the covered pipeline.⁴³⁵ In addition, an extensions/expansions policy must outline the conditions on which the service provider will fund new facilities and provide a description of those new facilities.

The Code’s requirements relating to new facilities investment are contained in sections 8.15 – 8.19 of the Code. The Code (sections 8.15-8.16) allows for the capital base to be increased to recognise additional capital costs incurred in constructing new facilities for the purpose of providing services. Under section 8.16 of the Code, the amount of the increase is the actual capital cost provided that the investment is prudent in terms of efficiency, in accordance with accepted good industry practice and is designed to achieve the lowest sustainable cost of delivering services (section 8.16(a)) and one of the following is satisfied (section 8.16(b)):

1. 
   if the incremental revenue is not expected to exceed the cost of the investment; or
   
2. 
   the service provider and/or users must satisfy the relevant regulator that the new facility has system wide benefits (justifying higher tariffs for all users); or
   
3. 
   that the new facility is necessary to maintain the safety, integrity or contracted capacity of services.
   

Reference tariffs may be determined on the basis of forecast investment during the access arrangement period provided that such investment is reasonably expected to pass the requirements of section 8.16 of the Code which are noted above when the investment is forecast to occur (section 8.20 of the Code).

Epic’s proposal

Clause 10 of Epic’s 29 June 2001 access arrangement provides:

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  the service provider will construct new facilities where the service provider believes that the tests in section 6.22 of the Code have been satisfied;
  
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  the service provider may otherwise construct new facilities to meet the requirements of prospective users and may seek a capital contribution or surcharge from prospective users;
  
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  expansions and extensions to the covered pipeline are part of the covered pipeline unless Epic, by notice to the Commission, elects otherwise; and
  
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  new facilities which are part of the covered pipeline will not affect the reference tariff before the next revisions commencement date.
  

Epic has subsequently amended its proposed approach to expansions and extensions. Epic’s latest proposal is that:

New Facilities that are constructed will not be part of the Covered Pipeline, unless the Service Provider, by notice to the Regulator (given before those facilities come into service) elects otherwise.⁴³⁶

Issues raised in the Commission’s issues paper

In its Issues Paper of 25 May 2001, the Commission raised the possibility of rolled-in tariffs for the MAPS. Where incremental investment is rolled-in to the capital base, the reference tariff would be adjusted, such that all customers (new and existing) pay the same price. The Commission raised the issue of whether it would be desirable for forecast capital expenditure to be rolled-in to the capital base as it is scheduled to occur, generating a suite of reference tariffs for the access arrangement period that would apply as demand expands.

The Commission raised this issue because augmentation of the MAPS may be required prior to the commencement of the next access arrangement period if a second pipeline from Victoria to South Australia is not constructed. The Commission was concerned that Epic’s revised extensions/expansions policy may result in multiple tariffs for haulage on the MAPS because there is currently no provision for rolling-in incremental investment into the capital base in Epic’s access arrangement. In the absence of such a provision, users who are unable to acquire existing capacity may face a significantly higher tariff for haulage services (because of the higher cost of incremental capacity) than those customers with access to existing capacity.

Submissions by interested parties

Market participants made a number of submissions in relation to the extensions/expansions policy and the issue of rolled-in tariffs.