II 

114TH CONGRESS 

1ST SESSION S. 1634 

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 

JUNE 18, 2015 

Ms. KLOBUCHAR (for herself, Mr. VITTER, and Mr. LEAHY) introduced the 

following bill; which was read twice and referred to the Committee on the 

Judiciary 

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 2015’’. 


emcdonald on DSK67QTVN1PROD with BILLS
2 

•S 1634 IS

1 SEC. 2. INJUNCTIONS AGAINST RAILROAD COMMON CAR2 RIERS. 

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

4 amended— 

5 (1) by striking ‘‘That any person’’ and inserting 

6 the following: 

7 ‘‘(a) IN GENERAL.—Subject to subsection (c), any 

8 person’’; 

9 (2) by striking ‘‘proceedings,’’ and inserting 

10 ‘‘proceedings.’’; 

11 (3) by striking ‘‘and upon’’ and inserting the 

12 following: 

13 ‘‘(b) PRELIMINARY INJUNCTION.—A preliminary in14 junction may be issued upon’’; 

15 (4) by striking ‘‘, a preliminary injunction may 

16 issue: Provided, That nothing’’ and all that follows 

17 through ‘‘subtitle IV of title 49, United States 

18 Code.’’ and inserting the following: 

19 ‘‘(c) SAVINGS PROVISION.—Nothing in this section 

20 may be construed to entitle any person, firm, corporation, 

21 or association, except the United States, to bring suit for 

22 injunctive relief against any common carrier subject to the 

23 jurisdiction of the Surface Transportation Board under 

24 part B or C of subtitle IV of title 49.’’; and 

25 (5) by striking ‘‘In any action’’ and inserting 

26 the following: 


emcdonald on DSK67QTVN1PROD with BILLS
3 

•S 1634 IS

1 ‘‘(d) COSTS AND ATTORNEY’S FEES.—In any ac2 tion’’. 

3 SEC. 3. MERGERS AND ACQUISITIONS OF RAILROADS. 

4 Section 7 of the Clayton Act (15 U.S.C. 18) is 

5 amended— 

6 (1) in the first undesignated paragraph, by 

7 striking ‘‘That no person’’ and inserting the fol8 lowing: 

9 ‘‘(a) No person’’; 

10 (2) in the second undesignated paragraph, by 

11 striking ‘‘No person shall’’ and inserting the fol12 lowing: 

13 ‘‘(b) No person shall’’; 

14 (3) in the third undesignated paragraph, by 

15 striking ‘‘This section’’ and inserting the following: 

16 ‘‘(c) This section’’; 

17 (4) in the fourth undesignated paragraph, by 

18 striking ‘‘Nor shall anything herein contained be 

19 construed’’ and inserting the following: 

20 ‘‘(d) Nothing in this section may be construed’’; 

21 (5) in the fifth undesignated paragraph— 

22 (A) by striking ‘‘Nothing contained in this 

23 section shall be held’’ and inserting the fol24 lowing: 

25 ‘‘(e) Nothing in this section— 


emcdonald on DSK67QTVN1PROD with BILLS
4 

•S 1634 IS

1 ‘‘(1) shall be held’’; and 

2 (B) by striking ‘‘acquired: Provided, That 

3 nothing in this section shall be held or con4 strued’’ and inserting the following: ‘‘acquired; 

5 or 

6 ‘‘(2) shall be held or construed’’; and 

7 (6) by amending the sixth undesignated para8 graph to read as follows: 

9 ‘‘(f) Nothing in this section shall apply to trans10 actions duly consummated pursuant to authority given by 

11 the Secretary of Transportation, the Secretary of Agri12 culture, the Surface Transportation Board (except for 

13 transactions described in section 11321 of title 49, United 

14 States Code), the Federal Energy Regulatory Commission 

15 in the exercise of its jurisdiction under the Public Utility 

16 Holding Company Act of 2005 (subtitle F of title XII of 

17 Public Law 109–58), or the United States Maritime Com18 mission under any law vesting such power in such Sec19 retary, Board, or Commission.’’. 

20 SEC. 4. LIMITATION OF PRIMARY JURISDICTION. 

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

22 (1) by redesignating sections 26, 27, and 28 as 

23 sections 17, 18, and 19, respectively; and 

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


emcdonald on DSK67QTVN1PROD with BILLS
5 

•S 1634 IS

1 ‘‘SEC. 21. In any civil action against a common car2 rier railroad under section 4, 4C, 15, or 16, the district 

3 court shall not be required to defer to the primary jurisdic4 tion of the Surface Transportation Board.’’. 

5 SEC. 5. FEDERAL TRADE COMMISSION ENFORCEMENT. 

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

7 (15 U.S.C. 21(a)) is amended by inserting ‘‘(except for 

8 agreements described in section 10706 of that title and 

9 transactions described in section 11321 of that title)’’ 

10 after ‘‘United States Code’’. 

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

12 Commission Act (15 U.S.C. 45(a)(2)) is amended by strik13 ing ‘‘common carriers subject’’ and inserting ‘‘common 

14 carriers, except for railroads, subject’’. 

15 SEC. 6. EXPANSION OF TREBLE DAMAGES TO RAIL COM16 MON CARRIERS. 

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

18 amended by— 

19 (1) in subsection (a), by striking ‘‘Except as 

20 provided in subsection (b)’’ and inserting ‘‘Except as 

21 provided in subsection (c)’’; 

22 (2) by redesignating subsections (b) and (c) as 

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

24 (3) by inserting after subsection (a) the fol25 lowing: 


emcdonald on DSK67QTVN1PROD with BILLS
6 

•S 1634 IS

1 ‘‘(b) Subsection (a) shall apply to any common car2 rier railroad subject to the jurisdiction of the Surface 

3 Transportation Board under subtitle IV of title 49, United 

4 States Code, without regard to whether such railroad has 

5 filed rates or whether a complaint challenging a rate has 

6 been filed.’’. 

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

8 UNITED STATES CODE. 

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

10 States Code, is amended— 

11 (1) in subsection (a)— 

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

13 the Sherman Act’’ and all that follows through 

14 ‘‘carrying out the agreement’’; 

15 (B) in paragraph (4), by striking ‘‘The 

16 Sherman Act’’ and all that follows through 

17 ‘‘such agreement. However the Board’’ and in18 serting ‘‘The Board’’; and 

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

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

21 this subsection do not apply to parties and 

22 other persons with respect to making or car23 rying out the agreement’’; and 

24 (2) by amending subsection (e) to read as fol25 lows: 


emcdonald on DSK67QTVN1PROD with BILLS
7 

•S 1634 IS

1 ‘‘(e)(1) Nothing in this section may be construed to 

2 exempt a proposed agreement described in subsection (a) 

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

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

5 Trade Commission Act (15 U.S.C. 41 et seq.), section 73 

6 or 74 of the Wilson Tariff Act (15 U.S.C. 8 and 9), or 

7 the Act of June 19, 1936 (15 U.S.C. 13 et seq.). 

8 ‘‘(2) In reviewing any such proposed agreement for 

9 the purpose of any provision of law described in paragraph 

10 (1), the Board shall take into account, among other con11 siderations, the impact of the proposed agreement on ship12 pers, consumers, and affected communities.’’. 

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

14 United States Code, is amended— 

15 (1) in subsection (a)— 

16 (A) by striking ‘‘The authority’’ and in17 serting ‘‘Except as provided in sections 4, 4C, 

18 15, and 16 of the Clayton Act (15 U.S.C. 15, 

19 15c, 25, and 26), the authority’’; and 

20 (B) by striking ‘‘is exempt from the anti21 trust laws and from all other law,’’ and insert22 ing ‘‘is exempt from any other law (except the 

23 antitrust laws referred to in subsection (c)),’’; 

24 and 

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


emcdonald on DSK67QTVN1PROD with BILLS
8 

•S 1634 IS

1 ‘‘(c)(1) Nothing in this section may be construed to 

2 exempt a transaction described in subsection (a) from the 

3 application of the Sherman Act (15 U.S.C. 1 et seq.), the 

4 Clayton Act (15 U.S.C. 12 et seq.), the Federal Trade 

5 Commission Act (15 U.S.C. 41 et seq.), section 73 or 74 

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

7 of June 19, 1936 (15 U.S.C. 13 et seq.). 

8 ‘‘(2) Paragraph (1) shall not apply to any transaction 

9 relating to the pooling of railroad cars approved by the 

10 Surface Transportation Board or its predecessor agency 

11 pursuant to section 11322. 

12 ‘‘(3) In reviewing any such transaction for the pur13 pose of any provision of law described in paragraph (1), 

14 the Board shall take into account, among other consider15 ations, the impact of the transaction on shippers and on 

16 affected communities.’’. 

17 (c) CONFORMING AMENDMENTS.—Chapter 107 of 

18 title 49, United States Code, is amended— 

19 (1) in the table of sections, by striking the item 

20 relating to section 10706 and inserting the fol21 lowing: 

‘‘10706. Rate agreements.’’. 

22 (2) in section 10706, by amending the section 

23 heading to read as follows: ‘‘Rate agreements’’. 


emcdonald on DSK67QTVN1PROD with BILLS
9 

•S 1634 IS

1 SEC. 8. EFFECTIVE DATE. 

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

3 (b), this Act shall take effect on the date of the enactment 

4 of this Act. 

5 (b) CONDITIONS.— 

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

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

8 15, 25, and 26) or a complaint under section 5 of 

9 the Federal Trade Commission Act (15 U.S.C. 45) 

10 may not be filed with respect to any conduct or ac11 tivity that occurred before the date of the enactment 

12 of this Act that was previously exempted from the 

13 antitrust laws (as defined in the first section of the 

14 Clayton Act (15 U.S.C. 12)) by orders of the Inter15 state Commerce Commission or the Surface Trans16 portation Board issued pursuant to law. 

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

18 described in paragraph (1) may not be filed before 

19 the date that is 180 days after the date of the enact20 ment of this Act with respect to— 

21 (A) any previously exempted conduct or ac22 tivity; or 

23 (B) any previously exempted agreement 

24 that is continued subsequent to such date of en25 actment. 

Æ 


emcdonald on DSK67QTVN1PROD with BILLS