II 

Calendar No. 33 

111TH CONGRESS 

1ST SESSION S. 146 

[Report No. 111–9] 

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 SENATE OF THE UNITED STATES 

JANUARY 6, 2009 

Mr. KOHL (for himself, Mr. VITTER, Mr. LEAHY, Mr. FEINGOLD, Mr. SCHUMER, Ms. KLOBUCHAR, Mr. DORGAN, Mr. ROCKEFELLER, Mr. KAUFMAN, 

and Mr. WHITEHOUSE) introduced the following bill; which was read 

twice and referred to the Committee on the Judiciary 

MARCH 18, 2009 

Reported by Mr. LEAHY, without amendment 

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, 


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1 SECTION 1. SHORT TITLE. 

2 This Act may be cited as the ‘‘Railroad Antitrust En3 forcement Act of 2009’’. 

4 SEC. 2. INJUNCTIONS AGAINST RAILROAD COMMON CAR5 RIERS. 

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

7 U.S.C. 26) ending with ‘‘Code.’’ is amended to read as 

8 follows: ‘‘Provided, That nothing herein contained shall be 

9 construed to entitle any person, firm, corporation, or asso10 ciation, except the United States, to bring suit for injunc11 tive relief against any common carrier that is not a rail12 road subject to the jurisdiction of the Surface Transpor13 tation Board under subtitle IV of title 49, United States 

14 Code.’’. 

15 SEC. 3. MERGERS AND ACQUISITIONS OF RAILROADS. 

16 The sixth undesignated paragraph of section 7 of the 

17 Clayton Act (15 U.S.C. 18) is amended to read as follows: 

18 ‘‘Nothing contained in this section shall apply to 

19 transactions duly consummated pursuant to authority 

20 given by the Secretary of Transportation, Federal Power 

21 Commission, Surface Transportation Board (except for 

22 transactions described in section 11321 of that title), the 

23 Securities and Exchange Commission in the exercise of its 

24 jurisdiction under section 10 (of the Public Utility Hold25 ing Company Act of 1935), the United States Maritime 

26 Commission, or the Secretary of Agriculture under any 


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1 statutory provision vesting such power in the Commission, 

2 Board, or Secretary.’’. 

3 SEC. 4. LIMITATION OF PRIMARY JURISDICTION. 

4 The Clayton Act is amended by adding at the end 

5 thereof the following: 

6 ‘‘SEC. 29. In any civil action against a common car7 rier railroad under section 4, 4C, 15, or 16 of this Act, 

8 the district court shall not be required to defer to the pri9 mary jurisdiction of the Surface Transportation Board.’’. 

10 SEC. 5. FEDERAL TRADE COMMISSION ENFORCEMENT. 

11 (a) CLAYTON ACT.—Section 11(a) of the Clayton Act 

12 (15 U.S.C. 21(a)) is amended by striking ‘‘subject to juris13 diction’’ and all that follows through the first semicolon 

14 and inserting ‘‘subject to jurisdiction under subtitle IV of 

15 title 49, United States Code (except for agreements de16 scribed in section 10706 of that title and transactions de17 scribed in section 11321 of that title);’’. 

18 (b) FTC ACT.—Section 5(a)(2) of the Federal Trade 

19 Commission Act (15 U.S.C. 45(a)(2)) is amended by strik20 ing ‘‘common carriers subject’’ and inserting ‘‘common 

21 carriers, except for railroads, subject’’. 

22 SEC. 6. EXPANSION OF TREBLE DAMAGES TO RAIL COM23 MON CARRIERS. 

24 Section 4 of the Clayton Act (15 U.S.C. 15) is 

25 amended by— 


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1 (1) redesignating subsections (b) and (c) as 

2 subsections (c) and (d), respectively; and 

3 (2) inserting after subsection (a) the following: 

4 ‘‘(b) Subsection (a) shall apply to a common carrier 

5 by railroad subject to the jurisdiction of the Surface 

6 Transportation Board under subtitle IV of title 49, United 

7 States Code, without regard to whether such railroads 

8 have filed rates or whether a complaint challenging a rate 

9 has been filed.’’. 

10 SEC. 7. TERMINATION OF EXEMPTIONS IN TITLE 49. 

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

12 States Code, is amended— 

13 (1) in subsection (a)— 

14 (A) in paragraph (2)(A), by striking ‘‘, and 

15 the Sherman Act (15 U.S.C. 1 et seq.),’’ and all 

16 that follows through ‘‘or carrying out the agree17 ment’’ in the third sentence; 

18 (B) in paragraph (4)— 

19 (i) by striking the second sentence; 

20 and 

21 (ii) by striking ‘‘However, the’’ in the 

22 third sentence and inserting ‘‘The’’; and 

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

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

25 this subsection do not apply to parties and 


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1 other persons with respect to making or car2 rying out the agreement’’; and 

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

4 following: 

5 ‘‘(e) APPLICATION OF ANTITRUST LAWS.— 

6 ‘‘(1) IN GENERAL.—Nothing in this section ex7 empts a proposed agreement described in subsection 

8 (a) from the application of the Sherman Act (15 

9 U.S.C. 1 et seq.), the Clayton Act (15 U.S.C. 12, 14 

10 et seq.), the Federal Trade Commission Act (15 

11 U.S.C. 41 et seq.), section 73 or 74 of the Wilson 

12 Tariff Act (15 U.S.C. 8 and 9), or the Act of June 

13 19, 1936 (15 U.S.C. 13, 13a, 13b, 21a). 

14 ‘‘(2) ANTITRUST ANALYSIS TO CONSIDER IM15 PACT.—In reviewing any such proposed agreement 

16 for the purpose of any provision of law described in 

17 paragraph (1), the Board shall take into account, 

18 among any other considerations, the impact of the 

19 proposed agreement on shippers, on consumers, and 

20 on affected communities.’’. 

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

22 United States Code, is amended— 

23 (1) in subsection (a)— 

24 (A) by striking ‘‘The authority’’ in the 

25 first sentence and inserting ‘‘Except as proVerDate Nov 24 2008 23:06 Mar 18, 2009 Jkt 079200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S146.RS S146

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1 vided in sections 4 (15 U.S.C. 15), 4C (15 

2 U.S.C. 15c), section 15 (15 U.S.C. 25), and 

3 section 16 (15 U.S.C. 26) of the Clayton Act 

4 (15 U.S.C. 21(a)), the authority’’; and 

5 (B) by striking ‘‘is exempt from the anti6 trust laws and from all other law,’’ in the third 

7 sentence and inserting ‘‘is exempt from all 

8 other law (except the antitrust laws referred to 

9 in subsection (c)),’’; and 

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

11 ‘‘(c) APPLICATION OF ANTITRUST LAWS.— 

12 ‘‘(1) IN GENERAL.—Nothing in this section ex13 empts a transaction described in subsection (a) from 

14 the application of the Sherman Act (15 U.S.C. 1 et 

15 seq.), the Clayton Act (15 U.S.C. 12, 14 et seq.), 

16 the Federal Trade Commission Act (15 U.S.C. 41 et 

17 seq.), section 73 or 74 of the Wilson Tariff Act (15 

18 U.S.C. 8–9), or the Act of June 19, 1936 (15 

19 U.S.C. 13, 13a, 13b, 21a). The preceding sentence 

20 shall not apply to any transaction relating to the 

21 pooling of railroad cars approved by the Surface 

22 Transportation Board or its predecessor agency pur23 suant to section 11322 of title 49, United States 

24 Code. 


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1 ‘‘(2) ANTITRUST ANALYSIS TO CONSIDER IM2 PACT.—In reviewing any such transaction for the 

3 purpose of any provision of law described in para4 graph (1), the Board shall take into account, among 

5 any other considerations, the impact of the trans6 action on shippers and on affected communities.’’. 

7 (c) CONFORMING AMENDMENTS.— 

8 (1) The heading for section 10706 of title 49, 

9 United States Code, is amended to read as follows: 

10 ‘‘Rate agreements’’. 

11 (2) The item relating to such section in the 

12 chapter analysis at the beginning of chapter 107 of 

13 such title is amended to read as follows: 

‘‘10706. Rate agreements.’’. 

14 SEC. 8. EFFECTIVE DATE. 

15 (a) IN GENERAL.—Subject to the provisions of sub16 section (b), this Act shall take effect on the date of enact17 ment of this Act. 

18 (b) CONDITIONS.— 

19 (1) PREVIOUS CONDUCT.—A civil action under 

20 section 4, 15, or 16 of the Clayton Act (15 U.S.C. 

21 15, 25, 26) or complaint under section 5 of the Fed22 eral Trade Commission Act (15 U.S.C. 45) may not 

23 be filed with respect to any conduct or activity that 

24 occurred prior to the date of enactment of this Act 

25 that was previously exempted from the antitrust 


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1 laws as defined in section 1 of the Clayton Act (15 

2 U.S.C. 12) by orders of the Interstate Commerce 

3 Commission or the Surface Transportation Board 

4 issued pursuant to law. 

5 (2) GRACE PERIOD.—A civil action or complaint 

6 described in paragraph (1) may not be filed earlier 

7 than 180 days after the date of enactment of this 

8 Act with respect to any previously exempted conduct 

9 or activity or previously exempted agreement that is 

10 continued subsequent to the date of enactment of 

11 this Act. 


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Calendar No. 33 

111TH CONGRESS 

1ST SESSION S. 146 

[Report No. 111–9] 

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 

MARCH 18, 2009 

Reported without amendment 


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