I 

111TH CONGRESS 

1ST SESSION H. R. 233 

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. 

IN THE HOUSE OF REPRESENTATIVES 

JANUARY 7, 2009 

Ms. BALDWIN (for herself, Mr. POMEROY, Mr. ALEXANDER, and Mr. WALZ) 

introduced the following bill; which was referred to the Committee on the 

Judiciary, and in addition to the Committee on Transportation and Infrastructure, for a period to be subsequently determined by the Speaker, in 

each case for consideration of such provisions as fall within the jurisdiction of the committee concerned 

A BILL 

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. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Railroad Antitrust En5 forcement Act of 2009’’. 


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1 SEC. 2. APPLICATION OF THE ANTITRUST LAWS TO RAIL 

2 COMMON CARRIERS. 

3 (a) APPLICATION OF THE ANTITRUST LAWS.—The 

4 antitrust laws shall apply to a common carrier by railroad 

5 that is subject to the jurisdiction of the Surface Transpor6 tation Board under subtitle IV of title 49, United States 

7 Code, without regard to whether such common carrier 

8 filed a rate or whether a complaint challenging a rate is 

9 filed. 

10 (b) DEFINITION.—The term ‘‘antitrust laws’’ has the 

11 meaning given it in subsection (a) of the 1st section of 

12 the Clayton Act (15 U.S.C. 12(a)), but includes section 

13 5 of the Federal Trade Commission Act to the extent such 

14 section 5 applies to unfair methods of competition. 

15 SEC. 3. MERGERS AND ACQUISITIONS OF RAILROADS. 

16 The last undesignated paragraph of section 7 of the 

17 Clayton Act (15 U.S.C. 18) is amended by inserting ‘‘(ex18 cluding transactions described in section 11321 of title 49 

19 of the United States Code)’’ after ‘‘Surface Transpor20 tation Board’’. 

21 SEC. 4. ANTITRUST ENFORCEMENT AUTHORITY. 

22 Section 11(a) of the Clayton Act (15 U.S.C. 21(a)) 

23 is amended by inserting ‘‘(excluding agreements described 

24 in section 10706 of such title and transactions described 

25 in section 11321 of such title)’’ after ‘‘Code’’. 


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1 SEC. 5. INJUNCTIONS AGAINST RAILROAD COMMON CAR2 RIERS. 

3 The proviso in section 16 of the Clayton Act (15 

4 U.S.C. 26) is amended by inserting ‘‘(excluding a common 

5 carrier by railroad)’’ after ‘‘Board’’. 

6 SEC. 6. REMOVAL OF PRIMARY JURISDICTION AS LIMITA7 TION. 

8 The Clayton Act (15 U.S.C. 12 et seq.) is amended 

9 by adding at the end thereof the following: 

10 ‘‘SEC. 29. In any civil action against a common car11 rier railroad under section 4, 4A, 4C, 15, or 16, the dis12 trict court shall not be required to defer to the jurisdiction 

13 of the Surface Transportation Board.’’. 

14 SEC. 7. UNFAIR METHODS OF COMPETITION. 

15 Section 5(a)(2) of the Federal Trade Commission Act 

16 (15 U.S.C. 45(a)(2)) is amended by adding at the end the 

17 following: 

18 ‘‘For purposes of this paragraph with respect to unfair 

19 methods of competition, the term ‘common carrier’ ex20 cludes a common carrier by railroad that is subject to ju21 risdiction of the Surface Transportation Board under sub22 title IV of title 49 of the United States Code.’’. 

23 SEC. 8. TERMINATION OF EXEMPTIONS IN TITLE 49. 

24 (a) IN GENERAL.—Section 10706 of title 49, United 

25 States Code, is amended— 

26 (1) in subsection (a)— 


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1 (A) in the 3d sentence of paragraph (2)(A) 

2 by striking ‘‘, and the Sherman Act (15 U.S.C. 

3 1 et seq.),’’ and all that follows through ‘‘or 

4 carrying out the agreement’’, 

5 (B) in paragraph (4)— 

6 (i) by striking the 2d sentence, and 

7 (ii) in the 3d sentence by striking 

8 ‘‘However, the’’ and inserting ‘‘The’’, and 

9 (C) in paragraph (5)(A) by striking ‘‘, and 

10 the antitrust laws set forth in paragraph (2) of 

11 this subsection do not apply to parties and 

12 other persons with respect to making or car13 rying out the agreement’’, 

14 (2) in subsection (d) by striking the last sen15 tence, and 

16 (3) by striking subsection (e) and inserting the 

17 following: 

18 ‘‘(e) Nothing in this section exempts a proposed 

19 agreement described in subsection (a) from the application 

20 of the antitrust laws (as defined in subsection (a) of the 

21 1st section of the Clayton Act, but including section 5 of 

22 the Federal Trade Commission Act to the extent such sec23 tion 5 applies to unfair methods of competition). 

24 ‘‘(f) In reviewing any proposed agreement described 

25 in subsection (a), the Board shall take into account, 


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1 among any other considerations, the impact of the pro2 posed agreement on shippers, consumers, and affected 

3 communities. The Board shall make findings regarding 

4 such impact, which shall be— 

5 ‘‘(1) made part of the administrative record; 

6 ‘‘(2) submitted to any other reviewing agency 

7 for consideration in making its determination; and 

8 ‘‘(3) available in any judicial review of the 

9 Board’s decision regarding such agreement.’’. 

10 (b) COMBINATIONS.—Section 11321 of title 49, 

11 United States Code, is amended— 

12 (1) in subsection (a)— 

13 (A) by striking ‘‘The authority’’ and in14 serting ‘‘Except as provided in sections 4, 4A, 

15 4C, 15, and 16 of the Clayton Act, the author16 ity’’; and 

17 (B) in the 3d sentence by striking ‘‘is ex18 empt from the antitrust laws and from all other 

19 law,’’ and inserting ‘‘is exempt from all other 

20 law (except the laws referred to in subsection 

21 (c)),’’, and 

22 (2) by adding at the end the following: 

23 ‘‘(c) Nothing in this subchapter exempts a trans24 action described in subsection (a) from the application of 

25 the antitrust laws (as defined in subsection (a) of the 1st 


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1 section of the Clayton Act, but including section 5 of the 

2 Federal Trade Commission Act to the extent such section 

3 5 applies to unfair methods of competition). The preceding 

4 sentence shall not apply to any transaction relating to the 

5 pooling of railroad cars approved by the Surface Transpor6 tation Board or its predecessor agency pursuant to section 

7 11322. 

8 ‘‘(d) In reviewing any transaction described in sub9 section (a), the Board shall take into account, among any 

10 other considerations, the impact of the transaction on 

11 shippers and affected communities.’’. 

12 (c) CONFORMING AMENDMENTS.— 

13 (1) HEADING.—The heading for section 10706 

14 of title 49, United States Code, is amended to read 

15 as follows: ‘‘Rate agreements’’. 

16 (2) ANALYSIS OF SECTIONS.—The analysis of 

17 sections of chapter 107 of such title is amended by 

18 striking the item relating to section 10706 and in19 sert the following: 

‘‘10706. Rate agreements.’’. 

20 SEC. 9. EFFECTIVE DATE. 

21 (a) IN GENERAL.—Except as provided in subsection 

22 (b), this Act and the amendments made by this Act shall 

23 take effect on the date of enactment of this Act. 

24 (b) LIMITATION.—A civil action under section 4, 4A, 

25 4C, 15, or 16 of the Clayton Act, or a complaint under 


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1 section 5 of the Federal Trade Commission Act (15 U.S.C. 

2 45) to the extent such section 5 applies to unfair methods 

3 of competition, may not be filed with respect to any con4 duct or activity that— 

5 (1) occurs before the expiration of the 180-day 

6 period beginning on the date of enactment of this 

7 Act; and 

8 (2) was exempted from the antitrust laws (as 

9 defined in subsection (a) of the 1st section of the 

10 Clayton Act (15 U.S.C. 12(a)), but including section 

11 5 of the Federal Trade Commission Act (15 U.S.C. 

12 45) to the extent such section 5 applies to unfair 

13 methods of competition) by an order of the Inter14 state Commerce Commission or the Surface Trans15 portation Board issued before the date of the enact16 ment of this Act and pursuant to law. 

Æ 


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