IB 

Union Calendar No. 399 

111TH CONGRESS 

2D SESSION H. R. 233 

[Report No. 111–669, Part I] 

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 

NOVEMBER 30, 2010 

Reported from the Committee on the Judiciary with an amendment 

[Strike out all after the enacting clause and insert the part printed in italic] 

NOVEMBER 30, 2010 

Additional sponsors: Ms. HERSETH SANDLIN, Mr. KIND, Mr. BERRY, Ms. 

JACKSON LEE of Texas, Mr. ROSS, Mr. ELLISON, Mr. FLEMING, Mr. 

SNYDER, Mr. PERLMUTTER, Mr. PETERSON, Mr. DOGGETT, Ms. GIFFORDS, Mr. KAGEN, Mr. MELANCON, Mr. JOHNSON of Georgia, Ms. 

BEAN, Mr. BOUSTANY, and Ms. MOORE of Wisconsin 


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NOVEMBER 30, 2010 

Committee on Transportation and Infrastructure discharged; committed to the 

Committee of the Whole House on the State of the Union and ordered 

to be printed 

[For text of introduced bill, see copy of bill as introduced on January 7, 2009] 

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. 


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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’’. 

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

7 CARRIERS. 

8 (a) MERGERS AND ACQUISITIONS.—The last undesig9 nated paragraph of section 7 of the Clayton Act (15 U.S.C. 

10 18) is amended by inserting ‘‘(excluding transactions in11 volving a rail carrier as defined in section 10102 of title 

12 49 of the United States Code)’’ after ‘‘Surface Transpor13 tation Board’’. 

14 (b) VESTING OF AUTHORITY IN ANTITRUST AGEN15 CIES.—Section 11(a) of the Clayton Act (15 U.S.C. 21(a)) 

16 is amended by inserting ‘‘(excluding a rail carrier as de17 fined in section 10102 of such title)’’ after ‘‘Code’’. 

18 (c) INJUNCTIONS.—The proviso in section 16 of the 

19 Clayton Act (15 U.S.C. 26) is amended by inserting ‘‘, ex20 cept against a rail carrier (as defined in section 10102 of 

21 such title)’’ after ‘‘Code’’. 

22 (d) FEDERAL TRADE COMMISSION AUTHORITY.—Sec23 tion 5(a)(2) of the Federal Trade Commission Act (15 

24 U.S.C. 45(a)(2)) is amended by adding at the end the fol25 lowing: 


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

2 methods of competition, the term ‘common carriers’ excludes 

3 a rail carrier as defined in section 10102 of title 49 of the 

4 United States Code.’’. 

5 SEC. 3. TERMINATION OF ANTITRUST EXEMPTIONS IN 

6 TITLE 49. 

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

8 States Code, is amended— 

9 (1) in subsection (a)— 

10 (A) beginning in the 3d sentence of para11 graph (2)(A) by striking ‘‘, and the Sherman Act 

12 (15 U.S.C. 1, et seq.),’’ and all that follows 

13 through ‘‘However, the’’ and inserting ‘‘. The’’, 

14 (B) in paragraph (3)(B)— 

15 (i) by striking ‘‘(i)’’, and 

16 (ii) by striking clause (ii), 

17 (C) in paragraph (4)— 

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

19 (ii) in the 3d sentence by striking 

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

21 (D) in paragraph (5)(A) by striking ‘‘, and 

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

23 this subsection do not apply to parties and other 

24 persons with respect to making or carrying out 

25 the agreement’’, 


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1 (2) in subsection (d) by striking the last sen2 tence, and 

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

4 following: 

5 ‘‘(e) Nothing in this section exempts an agreement ap6 proved, or submitted for approval, under subsection (a) 

7 from the application of the antitrust laws (as defined in 

8 subsection (a) of the 1st section of the Clayton Act, but in9 cluding section 5 of the Federal Trade Commission Act to 

10 the extent such section 5 applies to unfair methods of com11 petition). 

12 ‘‘(f) In reviewing any agreement submitted for ap13 proval under subsection (a), the Board shall take into ac14 count, among any other considerations, the impact of such 

15 agreement on shippers, consumers, and affected commu16 nities. The Board shall make findings regarding such im17 pact, which shall be— 

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

19 ‘‘(2) submitted to any other reviewing agency for 

20 consideration in making its determination; and 

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

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

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

24 States Code, is amended— 

25 (1) in subsection (a)— 


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1 (A) by striking ‘‘The authority’’ and insert2 ing ‘‘Subject to subsection (c), the authority’’, 

3 and 

4 (B) in the 3d sentence by striking ‘‘is ex5 empt from the antitrust laws and from all other 

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

7 law (except the laws referred to in subsection 

8 (c)),’’, and 

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

10 ‘‘(c) Nothing in this subchapter exempts a transaction 

11 described in subsection (a) from the application of the anti12 trust laws (as defined in subsection (a) of the 1st section 

13 of the Clayton Act, but including section 5 of the Federal 

14 Trade Commission Act to the extent such section 5 applies 

15 to unfair methods of competition). The preceding sentence 

16 shall not apply to any transaction relating to the pooling 

17 of railroad cars approved by the Surface Transportation 

18 Board or its predecessor agency pursuant to section 11322. 

19 ‘‘(d) In reviewing any transaction described in sub20 section (a), the Board shall take into account, among any 

21 other considerations, the impact of the transaction on ship22 pers and affected communities.’’. 

23 (c) CONFORMING AMENDMENTS.— 


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

2 title 49, United States Code, is amended to read as 

3 follows: ‘‘Rate agreements’’. 

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

5 sections of chapter 107 of such title is amended by 

6 striking the item relating to section 10706 and insert 

7 the following: 

‘‘10706. Rate agreements.’’. 

8 SEC. 4. CLARIFICATIONS REGARDING APPLICABILITY OF 

9 REGULATORY DOCTRINES. 

10 (a) FILED RATE DOCTRINE.—The antitrust laws shall 

11 apply to a rail carrier (as defined in section 10102 of title 

12 49 of the United States Code), without regard to whether 

13 such rail carrier filed a rate or whether a complaint chal14 lenging a rate is filed. 

15 (b) DOCTRINE OF PRIMARY JURISDICTION.—In any 

16 civil action under the antitrust laws against a rail carrier 

17 (as defined in section 10102 of title 49 of the United States 

18 Code), the district court shall retain the discretion to defer 

19 to the jurisdiction of the Surface Transportation Board. 

20 (c) DEFINITION.—For purposes of subsections (a) and 

21 (b), the term ‘‘antitrust laws’’ has the meaning given it in 

22 subsection (a) of the 1st section of the Clayton Act (15 

23 U.S.C. 12(a)), but includes section 5 of the Federal Trade 

24 Commission Act to the extent such section 5 applies to un25 fair methods of competition. 


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1 SEC. 5. EFFECTIVE DATE. 

2 (a) IN GENERAL.—Except as provided in subsections 

3 (b) and (c), this Act and the amendments made by this Act 

4 shall take effect on the date of enactment of this Act. 

5 (b) LIMITATION.—No civil action under the antitrust 

6 laws may be filed with respect to any conduct or activity, 

7 including any agreement or provision thereof, that— 

8 (1) concluded or terminated before the expiration 

9 of the 180-day period beginning on the date of the en10 actment of this Act, and 

11 (2) was exempted by statute from the antitrust 

12 laws as the result of an order of the Interstate Com13 merce Commission or the Surface Transportation 

14 Board issued before the date of the enactment of this 

15 Act. 

16 (c) EXCLUSION.—No civil action under the antitrust 

17 laws may be filed for the purpose of dissolving or otherwise 

18 undoing any merger, acquisition, or transfer of control con19 summated before the date of the enactment of this Act that 

20 was exempted by statute from the antitrust laws as the re21 sult of an order described in subsection (b)(2). 

22 (d) DEFINITION.—For purposes of subsections (b) and 

23 (c), the term ‘‘antitrust laws’’ has the meaning given it in 

24 subsection (a) of the 1st section of the Clayton Act (15 

25 U.S.C. 12(a)), but includes section 5 of the Federal Trade 


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1 Commission Act (15 U.S.C. 45) to the extent such section 

2 5 applies to unfair methods of competition. 


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Union Calendar No. 399 

111TH CONGRESS 

2D SESSION H. R. 233 

[Report No. 111–669, Part I] 

A BILL 

To amend the Federal antitrust laws to provide exterest with respect to railroads. from such laws that are contrary to the public in- panded coverage and to eliminate exemptions 

NOVEMBER 30, 2010 

Committee on Transportation and Infrastructure disprinted House on the State of the Union and ordered to be charged; committed to the Committee of the Whole 


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