CBH Group and iron ore miners objecting to WA freight rail costs, are set to gain a workable alternative to just accepting Brookfield Rail's terms.
Certification of the WA freight rail access regime as an "effective access regime" under the Competition and Consumer Act (CCA) expires next Thursday.
As previously reported in Farm Weekly, this will open up potential for the Australian Competition and Consumer Commission (ACCC) to becoming involved in WA freight rail access disputes.
The ACCC could become the preferred arbiter in disputes both under the controversial Railway (Access) Code 2000, as an alternative to the Economic Regulation Authority (ERA), and as umpire called in on private negotiations outside the code.
No access agreement has been successfully concluded under the railway code - the backbone of the State's freight rail access regime - in the almost 15 years it has existed.
CBH's attempt to negotiate a 10-year deal for its grain trains with rail network operator Brookfield under the State regime has dragged on since October 2013.
But the certified State regime has prevented a national freight rail access regime applying in WA west of Kalgoorlie and the ACCC becoming involved.
After Thursday the 2006 Competition and Infrastructure Reform Agreement (CIRA), signed by all State governments and requiring significant interstate routes to be regulated by the ACCC, will apply to the standard gauge line from Kalgoorlie to Kwinana.
East of Kalgoorlie CIRA is administered on major lines by the ACCC though an access undertaking with the Australian Rail Track Corporation Ltd (ARTC) that is due to be updated in 2018.
With other lines, Brookfield customers like CBH and mining companies, or a third party like WAFarmers, will be able to apply to the National Competition Council (NCC) to have them declared, subject to a cost-benefit analysis.
The ACCC could then administer declared lines via an undertaking similar to that with ARTC.
Rail users could choose to negotiate with Brookfield under the State rail code with the ERA as administrator or under the access undertaking administered by the ACCC on declared lines.
WAFarmers has previously stated it is prepared to apply to the NCC to have the entire WA freight rail network declared.
Certification for five years of the WA access regime was signed by David Bradbury MLA, parliamentary secretary to then Federal Treasurer Wayne Swan, on February 11, 2011, a day short of 10 months after Premier Colin Barnett applied.
Any application for re-certification, or an application for an extension to allow an application for re-certification, would have to go through a public consultation process, the NCC has said previously.
Either way, it would have to be signed off by Treasurer Scott Morrison, Assistant Treasurer Kelly O'Dwyer or Assistant Minister to the Treasurer Alex Hawke by Thursday.
NCC executive director and general manager of the ACCC economic group, Richard Home, confirmed on Monday no application for re-certification or extension of certification of the WA rail access regime had been received.
Inquiries to Transport Minister Dean Nalder's office about whether a formal decision was taken to not apply for re-certification, were not responded to by the time Farm Weekly went to press.
In October Mr Nalder's office backtracked several days after initially indicating that "when" the WA access regime certification expired both State and national access regimes would apply.
His office then said it would be "informed" by the ERA's report on its latest review of the operation of the rail code.
That report was given to Treasurer Mike Nahan on December 8 and the ERA announced it would put a copy up on its website by last Friday.
No report appeared on the website.
On Monday the ERA said the report had been approved to be put up on the website and would be published later in the week.
In its draft report in September, the ERA recommended the CIRA should govern access to the standard gauge Kalgoorlie-Kwinana line.
Brookfield pointed out having two access regimes applying to different parts of the network could require two access agreements for the one freight train if it was to use a narrow-gauge line for part of its journey and the standard-gauge line.
CBH has not yet triggered the independent arbitrator process, the next move available to it under the State rail access regime, in its long-running dispute with Brookfield over a 10 year grain trains deal.
A formal 90-day negotiating period ended in June without CBH and Brookfield reaching long-term agreement.
CBH and Brookfield have since been negotiating with the State Government and ERA over expertise available on the panel from which the ERA can select arbitrators.
When negotiations broke down there were five arbitrators on the panel.
A month later the ERA successfully applied to expand the number to 14.
But CBH and Brookfield wanted additional people with specific rail experience and are waiting on the State Government to amend regulations to allow them to be appointed.
A CBH spokeswoman confirmed on Monday the independent arbitrator process had not been triggered.
She said she expected some "movement" on that soon.
CBH Group has confirmed it made a submission on the latest Brookfield undertakings on freight rail operator Pacific National (PN).
A spokesperson said the co-operative could not discuss its submission to the Australian Competition and Consumer Commission (ACCC) on the proposed Brookfield takeover of logistics and stevedoring company Asciano, which owns PN.
But it is understood CBH has objected to Brookfield's refusal to divest PN's bulk freight rolling stock and locomotives used to haul grain for its grain trading competitors in NSW and Victoria.
Retaining the PN bulk rolling stock and controlling the WA freight rail network could give Brookfield ability to freight WA grain to the east for CBH's competitors.
In its 2015 annual report PN lists Graincorp, Manildra Group, Cargill, Emerald Grain and Glencore amongst its eastern states agricultural bulk haulage customers.
In the latest undertakings published on the ACCC website, Brookfield subsidiary Nitro Holdings specifically rules out divesting PN's wagons and locos used to transport "minerals, concentrates or grain".
It is prepared to divest PN's container, steel and car carrying business to ease the way for ACCC approval of the $8.9 billion bid for Asciano.
As previously reported in Farm Weekly, the ACCC has flagged competition concerns in WA with the potential vertical integration of PN and Brookfield Rail because of the Asciano takeover.
Last week Brookfield rival for Asciano, an international consortium headed by Qube Holdings, made a binding counter cash-and-stock offer which, on latest values, puts it slightly ahead of Brookfield's offer.
The ACCC has said it will rule on February 18 on whether the Brookfield bid can proceed.
It will also rule on the Qube consortium counter bid.