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[Congressional Bills 111th Congress]
[From the U.S. Government Publishing Office]
[S. 146 Reported in Senate (RS)]

                                                        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.

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

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Railroad Antitrust Enforcement Act 
of 2009''.

SEC. 2. INJUNCTIONS AGAINST RAILROAD COMMON CARRIERS.

    The proviso in section 16 of the Clayton Act (15 U.S.C. 26) ending 
with ``Code.'' is amended to read as follows: ``Provided, That nothing 
herein contained shall be construed to entitle any person, firm, 
corporation, or association, except the United States, to bring suit 
for injunctive relief against any common carrier that is not a railroad 
subject to the jurisdiction of the Surface Transportation Board under 
subtitle IV of title 49, United States Code.''.

SEC. 3. MERGERS AND ACQUISITIONS OF RAILROADS.

    The sixth undesignated paragraph of section 7 of the Clayton Act 
(15 U.S.C. 18) is amended to read as follows:
    ``Nothing contained in this section shall apply to transactions 
duly consummated pursuant to authority given by the Secretary of 
Transportation, Federal Power Commission, Surface Transportation Board 
(except for transactions described in section 11321 of that title), the 
Securities and Exchange Commission in the exercise of its jurisdiction 
under section 10 (of the Public Utility Holding Company Act of 1935), 
the United States Maritime Commission, or the Secretary of Agriculture 
under any statutory provision vesting such power in the Commission, 
Board, or Secretary.''.

SEC. 4. LIMITATION OF PRIMARY JURISDICTION.

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

SEC. 5. FEDERAL TRADE COMMISSION ENFORCEMENT.

    (a) Clayton Act.--Section 11(a) of the Clayton Act (15 U.S.C. 
21(a)) is amended by striking ``subject to jurisdiction'' and all that 
follows through the first semicolon and inserting ``subject to 
jurisdiction under subtitle IV of title 49, United States Code (except 
for agreements described in section 10706 of that title and 
transactions described in section 11321 of that title);''.
    (b) FTC Act.--Section 5(a)(2) of the Federal Trade Commission Act 
(15 U.S.C. 45(a)(2)) is amended by striking ``common carriers subject'' 
and inserting ``common carriers, except for railroads, subject''.

SEC. 6. EXPANSION OF TREBLE DAMAGES TO RAIL COMMON CARRIERS.

    Section 4 of the Clayton Act (15 U.S.C. 15) is amended by--
            (1) redesignating subsections (b) and (c) as subsections 
        (c) and (d), respectively; and
            (2) inserting after subsection (a) the following:
    ``(b) Subsection (a) shall apply to a common carrier by railroad 
subject to the jurisdiction of the Surface Transportation Board under 
subtitle IV of title 49, United States Code, without regard to whether 
such railroads have filed rates or whether a complaint challenging a 
rate has been filed.''.

SEC. 7. 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 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'' in 
                the third sentence;
                    (B) in paragraph (4)--
                            (i) by striking the second sentence; and
                            (ii) by striking ``However, the'' in the 
                        third sentence 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''; 
                and
            (2) by striking subsection (e) and inserting the following:
    ``(e) Application of Antitrust Laws.--
            ``(1) In general.--Nothing in this section exempts a 
        proposed agreement described in subsection (a) from the 
        application of the Sherman Act (15 U.S.C. 1 et seq.), the 
        Clayton Act (15 U.S.C. 12, 14 et seq.), the Federal Trade 
        Commission Act (15 U.S.C. 41 et seq.), section 73 or 74 of the 
        Wilson Tariff Act (15 U.S.C. 8 and 9), or the Act of June 19, 
        1936 (15 U.S.C. 13, 13a, 13b, 21a).
            ``(2) Antitrust analysis to consider impact.--In reviewing 
        any such proposed agreement for the purpose of any provision of 
        law described in paragraph (1), the Board shall take into 
        account, among any other considerations, the impact of the 
        proposed agreement on shippers, on consumers, and on affected 
        communities.''.
    (b) Combinations.--Section 11321 of title 49, United States Code, 
is amended--
            (1) in subsection (a)--
                    (A) by striking ``The authority'' in the first 
                sentence and inserting ``Except as provided in sections 
                4 (15 U.S.C. 15), 4C (15 U.S.C. 15c), section 15 (15 
                U.S.C. 25), and section 16 (15 U.S.C. 26) of the 
                Clayton Act (15 U.S.C. 21(a)), the authority''; and
                    (B) by striking ``is exempt from the antitrust laws 
                and from all other law,'' in the third sentence and 
                inserting ``is exempt from all other law (except the 
                antitrust laws referred to in subsection (c)),''; and
            (2) by adding at the end the following:
    ``(c) Application of Antitrust Laws.--
            ``(1) In general.--Nothing in this section exempts a 
        transaction described in subsection (a) from the application of 
        the Sherman Act (15 U.S.C. 1 et seq.), the Clayton Act (15 
        U.S.C. 12, 14 et seq.), the Federal Trade Commission Act (15 
        U.S.C. 41 et seq.), section 73 or 74 of the Wilson Tariff Act 
        (15 U.S.C. 8-9), or the Act of June 19, 1936 (15 U.S.C. 13, 
        13a, 13b, 21a). 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 of title 49, United States Code.
            ``(2) Antitrust analysis to consider impact.--In reviewing 
        any such transaction for the purpose of any provision of law 
        described in paragraph (1), the Board shall take into account, 
        among any other considerations, the impact of the transaction 
        on shippers and on affected communities.''.
    (c) Conforming Amendments.--
            (1) The heading for section 10706 of title 49, United 
        States Code, is amended to read as follows: ``Rate 
        agreements''.
            (2) The item relating to such section in the chapter 
        analysis at the beginning of chapter 107 of such title is 
        amended to read as follows:

``10706. Rate agreements.''.

SEC. 8. EFFECTIVE DATE.

    (a) In General.--Subject to the provisions of subsection (b), this 
Act shall take effect on the date of enactment of this Act.
    (b) Conditions.--
            (1) Previous conduct.--A civil action under section 4, 15, 
        or 16 of the Clayton Act (15 U.S.C. 15, 25, 26) or complaint 
        under section 5 of the Federal Trade Commission Act (15 U.S.C. 
        45) may not be filed with respect to any conduct or activity 
        that occurred prior to the date of enactment of this Act that 
        was previously exempted from the antitrust laws as defined in 
        section 1 of the Clayton Act (15 U.S.C. 12) by orders of the 
        Interstate Commerce Commission or the Surface Transportation 
        Board issued pursuant to law.
            (2) Grace period.--A civil action or complaint described in 
        paragraph (1) may not be filed earlier than 180 days after the 
        date of enactment of this Act with respect to any previously 
        exempted conduct or activity or previously exempted agreement 
        that is continued subsequent to the date of enactment of this 
        Act.
                                                        Calendar No. 33

111th CONGRESS

  1st Session

                                 S. 146

                           [Report No. 111-9]

_______________________________________________________________________

                                 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.

_______________________________________________________________________

                             March 18, 2009

                       Reported without amendment
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