To amend the Federal antitrust laws to provide expanded coverage and to eliminate exemptions from such laws that are contrary to the public interest with respect to railroads.

Summary: Railroad Antitrust Enforcement Act of 2008 - (Sec. 2) Amends the Clayton Act (the Act) to make federal antitrust laws applicable to all common carriers subject to the Surface Transportation Board (STB), regardless of whether the carrier filed a rail carrier rate or whether a complaint challenging a rate is filed.

(Sec. 3) Subjects to antitrust review agreements among rail carriers to pool or divide traffic, services, or earnings.

(Sec. 4) Authorizes the the Federal Trade Commission (FTC) to enforce certain provisions of the Act against STB-approved agreements or combinations, including those related to rates.

(Sec. 5) Removes the prohibition against a private party seeking injunctive relief against a rail carrier for a violation of the antitrust laws.

(Sec. 6) Provides that, in any civil action against a rail common carrier, the U.S. district court shall not be required to defer to the primary jurisdiction of the STB.

(Sec. 7) Amends the Federal Trade Commission Act to authorize FTC enforcement against rail carriers for unfair methods of competition.

(Sec. 8) Amends federal transportation law to terminate the exemptions from antitrust laws for rail carriers, including mergers and acquisitions and ratemaking agreements.

Requires the STB when reviewing a proposed rate agreement, to take into account its impact upon shippers, consumers, and affected communities, and to make findings regarding such impact, which shall be made part of the administrative record.

Revises STB authority to provide that a rail carrier, corporation, or a person participating in an approved transaction is not exempt from specified antitrust laws.

(Sec. 9) Makes the date of enactment of this Act its effective date. Makes an exception for parties engaging prior to such enactment in conduct or actions previously exempted by STB approval (such parties to have 180 days to discontinue such conduct or action or otherwise become subject to the antitrust laws).

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Railroad Antitrust Enforcement Act 
of 2008''.

SEC. 2. APPLICATION OF THE ANTITRUST LAWS TO RAIL COMMON CARRIERS.

    (a) Application of the Antitrust Laws.--The antitrust laws shall 
apply to a common carrier by railroad that is subject to the 
jurisdiction of the Surface Transportation Board under subtitle IV of 
title 49, United States Code, without regard to whether such common 
carrier filed a rate or whether a complaint challenging a rate is 
filed.
    (b) Definition.--The term ``antitrust laws'' has the meaning given 
it in subsection (a) of the 1st section of the Clayton Act (15 U.S.C. 
12(a)), but includes section 5 of the Federal Trade Commission Act to 
the extent such section 5 applies to unfair methods of competition.

SEC. 3. MERGERS AND ACQUISITIONS OF RAILROADS.

    The last undesignated paragraph of section 7 of the Clayton Act (15 
U.S.C. 18) is amended by inserting ``(excluding transactions described 
in section 11321 of title 49 of the United States Code)'' after 
``Surface Transportation Board''.

SEC. 4. ANTITRUST ENFORCEMENT AUTHORITY.

    Section 11(a) of the Clayton Act (15 U.S.C. 21(a)) is amended by 
inserting ``(excluding agreements described in section 10706 of such 
title and transactions described in section 11321 of such title)'' 
after ``Code''.

SEC. 5. INJUNCTIONS AGAINST RAILROAD COMMON CARRIERS.

    The proviso in section 16 of the Clayton Act (15 U.S.C. 26) is 
amended by inserting ``(excluding a common carrier by railroad)'' after 
``Board''.

SEC. 6. REMOVAL OF PRIMARY JURISDICTION AS LIMITATION.

    The Clayton Act (15 U.S.C. 12 et seq.) is amended by adding at the 
end thereof the following:
    ``Sec. 29.  In any civil action against a common carrier railroad 
under section 4, 4A, 4C, 15, or 16, the district court shall not be 
required to defer to the jurisdiction of the Surface Transportation 
Board.''.

SEC. 7. UNFAIR METHODS OF COMPETITION.

    Section 5(a)(2) of the Federal Trade Commission Act (15 U.S.C. 
45(a)(2)) is amended by adding at the end the following:
``For purposes of this paragraph with respect to unfair methods of 
competition, the term `common carrier' excludes a common carrier by 
railroad that is subject to jurisdiction of the Surface Transportation 
Board under subtitle IV of title 49 of the United States Code.''.

SEC. 8. TERMINATION OF EXEMPTIONS IN TITLE 49.

    (a) In General.--Section 10706 of title 49, United States Code, is 
amended--
            (1) in subsection (a)--
                    (A) in the 3d sentence of paragraph (2)(A) by 
                striking ``, and the Sherman Act (15 U.S.C. 1 et 
                seq.),'' and all that follows through ``or carrying out 
                the agreement'',
                    (B) in paragraph (4)--
                            (i) by striking the 2d sentence, and
                            (ii) in the 3d sentence by striking 
                        ``However, the'' and inserting ``The'', and
                    (C) in paragraph (5)(A) by striking ``, and the 
                antitrust laws set forth in paragraph (2) of this 
                subsection do not apply to parties and other persons 
                with respect to making or carrying out the agreement'',
            (2) in subsection (d) by striking the last sentence, and
            (3) by striking subsection (e) and inserting the following:
    ``(e) Nothing in this section exempts a proposed agreement 
described in subsection (a) from the application of the antitrust laws 
(as defined in subsection (a) of the 1st section of the Clayton Act, 
but including section 5 of the Federal Trade Commission Act to the 
extent such section 5 applies to unfair methods of competition).
    ``(f) In reviewing any proposed agreement described in subsection 
(a), the Board shall take into account, among any other considerations, 
the impact of the proposed agreement on shippers, consumers, and 
affected communities. The Board shall make findings regarding such 
impact, which shall be--
            ``(1) made part of the administrative record;
            ``(2) submitted to any other reviewing agency for 
        consideration in making its determination; and
            ``(3) available in any judicial review of the Board's 
        decision regarding such agreement.''.
    (b) Combinations.--Section 11321 of title 49, United States Code, 
is amended--
            (1) in subsection (a)--
                    (A) by striking ``The authority'' and inserting 
                ``Except as provided in sections 4, 4A, 4C, 15, and 16 
                of the Clayton Act, the authority''; and
                    (B) in the 3d sentence by striking ``is exempt from 
                the antitrust laws and from all other law,'' and 
                inserting ``is exempt from all other law (except the 
                laws referred to in subsection (c)),'', and
            (2) by adding at the end the following:
    ``(c) Nothing in this subchapter exempts a transaction described in 
subsection (a) from the application of the antitrust laws (as defined 
in subsection (a) of the 1st section of the Clayton Act, but including 
section 5 of the Federal Trade Commission Act to the extent such 
section 5 applies to unfair methods of competition). The preceding 
sentence shall not apply to any transaction relating to the pooling of 
railroad cars approved by the Surface Transportation Board or its 
predecessor agency pursuant to section 11322.
    ``(d) In reviewing any transaction described in subsection (a), the 
Board shall take into account, among any other considerations, the 
impact of the transaction on shippers and affected communities.''.
    (c) Conforming Amendments.--
            (1) Heading.--The heading for section 10706 of title 49, 
        United States Code, is amended to read as follows: ``Rate 
        agreements''.
            (2) Analysis of sections.--The analysis of sections of 
        chapter 107 of such title is amended by striking the item 
        relating to section 10706 and insert the following:

``10706. Rate agreements.''.

SEC. 9. EFFECTIVE DATE.

    (a) In General.--Except as provided in subsection (b), this Act and 
the amendments made by this Act shall take effect on the date of 
enactment of this Act.
    (b) Limitation.--A civil action under section 4, 4A, 4C, 15, or 16 
of the Clayton Act, or a complaint under section 5 of the Federal Trade 
Commission Act (15 U.S.C. 45) to the extent such section 5 applies to 
unfair methods of competition, may not be filed with respect to any 
conduct or activity that--
            (1) occurs before the expiration of the 180-day period 
        beginning on the date of enactment of this Act; and
            (2) was exempted from the antitrust laws (as defined in 
        subsection (a) of the 1st section of the Clayton Act (15 U.S.C. 
        12(a)), but including section 5 of the Federal Trade Commission 
        Act (15 U.S.C. 45) to the extent such section 5 applies to 
        unfair methods of competition) by an order of the Interstate 
        Commerce Commission or the Surface Transportation Board issued 
        before the date of the enactment of this Act and pursuant to 
        law.