II 

112TH CONGRESS 

1ST SESSION S. 49 

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 25 (legislative day, JANUARY 5), 2011 

Mr. KOHL (for himself, Mr. VITTER, Mr. LEAHY, Mr. HATCH, Ms. 

KLOBUCHAR, Mr. FRANKEN, and Mr. TESTER) 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 2011’’. 


pwalker on DSKD5P82C1PROD with BILLS
2 

•S 49 IS

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

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

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

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

6 construed to entitle any person, firm, corporation, or asso7 ciation, except the United States, to bring suit for injunc8 tive relief against any common carrier that is not a rail9 road subject to the jurisdiction of the Surface Transpor10 tation Board under subtitle IV of title 49, United States 

11 Code.’’. 

12 SEC. 3. MERGERS AND ACQUISITIONS OF RAILROADS. 

13 The sixth undesignated paragraph of section 7 of the 

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

15 ‘‘Nothing contained in this section shall apply to 

16 transactions duly consummated pursuant to authority 

17 given by the Secretary of Transportation, Federal Power 

18 Commission, Surface Transportation Board (except for 

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

20 Securities and Exchange Commission in the exercise of its 

21 jurisdiction under section 10 (of the Public Utility Hold22 ing Company Act of 1935), the United States Maritime 

23 Commission, or the Secretary of Agriculture under any 

24 statutory provision vesting such power in the Commission, 

25 Board, or Secretary.’’. 


pwalker on DSKD5P82C1PROD with BILLS
3 

•S 49 IS

1 SEC. 4. LIMITATION OF PRIMARY JURISDICTION. 

2 The Clayton Act is amended by adding at the end 

3 thereof the following: 

4 ‘‘SEC. 29. In any civil action against a common car5 rier railroad under section 4, 4C, 15, or 16 of this Act, 

6 the district court shall not be required to defer to the pri7 mary jurisdiction of the Surface Transportation Board.’’. 

8 SEC. 5. FEDERAL TRADE COMMISSION ENFORCEMENT. 

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

10 (15 U.S.C. 21(a)) is amended by striking ‘‘subject to juris11 diction’’ and all that follows through the first semicolon 

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

13 title 49, United States Code (except for agreements de14 scribed in section 10706 of that title and transactions de15 scribed in section 11321 of that title);’’. 

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

17 Commission Act (15 U.S.C. 45(a)(2)) is amended by strik18 ing ‘‘common carriers subject’’ and inserting ‘‘common 

19 carriers, except for railroads, subject’’. 

20 SEC. 6. EXPANSION OF TREBLE DAMAGES TO RAIL COM21 MON CARRIERS. 

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

23 amended by— 

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

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

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


pwalker on DSKD5P82C1PROD with BILLS
4 

•S 49 IS

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

2 by 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 railroads 

5 have filed rates or whether a complaint challenging a rate 

6 has been filed.’’. 

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

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

9 States Code, is amended— 

10 (1) in subsection (a)— 

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

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

13 that follows through ‘‘or carrying out the agree14 ment’’ in the third sentence; 

15 (B) in paragraph (4)— 

16 (i) by striking the second sentence; 

17 and 

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

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

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

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

22 this subsection do not apply to parties and 

23 other persons with respect to making or car24 rying out the agreement’’; and 


pwalker on DSKD5P82C1PROD with BILLS
5 

•S 49 IS

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

2 following: 

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

4 ‘‘(1) IN GENERAL.—Nothing in this section ex5 empts a proposed agreement described in subsection 

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

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

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

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

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

11 19, 1936 (15 U.S.C. 13, 13a, 13b, 21a). 

12 ‘‘(2) ANTITRUST ANALYSIS TO CONSIDER IM13 PACT.—In reviewing any such proposed agreement 

14 for the purpose of any provision of law described in 

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

16 among any other considerations, the impact of the 

17 proposed agreement on shippers, on consumers, and 

18 on affected communities.’’. 

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

20 United States Code, is amended— 

21 (1) in subsection (a)— 

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

23 first sentence and inserting ‘‘Except as pro24 vided in sections 4 (15 U.S.C. 15), 4C (15 

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


pwalker on DSKD5P82C1PROD with BILLS
6 

•S 49 IS

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

2 (15 U.S.C. 21(a)), the authority’’; and 

3 (B) by striking ‘‘is exempt from the anti4 trust laws and from all other law,’’ in the third 

5 sentence and inserting ‘‘is exempt from all 

6 other law (except the antitrust laws referred to 

7 in subsection (c)),’’; and 

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

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

10 ‘‘(1) IN GENERAL.—Nothing in this section ex11 empts a transaction described in subsection (a) from 

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

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

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

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

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

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

18 shall not apply to any transaction relating to the 

19 pooling of railroad cars approved by the Surface 

20 Transportation Board or its predecessor agency pur21 suant to section 11322 of title 49, United States 

22 Code. 

23 ‘‘(2) ANTITRUST ANALYSIS TO CONSIDER IM24 PACT.—In reviewing any such transaction for the 

25 purpose of any provision of law described in paraVerDate Mar 15 2010 02:45 Jan 28, 2011 Jkt 099200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S49.IS S49

pwalker on DSKD5P82C1PROD with BILLS
7 

•S 49 IS

1 graph (1), the Board shall take into account, among 

2 any other considerations, the impact of the trans3 action on shippers and on affected communities.’’. 

4 (c) CONFORMING AMENDMENTS.— 

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

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

7 ‘‘Rate agreements’’. 

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

9 chapter analysis at the beginning of chapter 107 of 

10 such title is amended to read as follows: 

‘‘10706. Rate agreements.’’. 

11 SEC. 8. EFFECTIVE DATE. 

12 (a) IN GENERAL.—Subject to the provisions of sub13 section (b), this Act shall take effect on the date of enact14 ment of this Act. 

15 (b) CONDITIONS.— 

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

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

18 15, 25, 26) or complaint under section 5 of the Fed19 eral Trade Commission Act (15 U.S.C. 45) may not 

20 be filed with respect to any conduct or activity that 

21 occurred prior to the date of enactment of this Act 

22 that was previously exempted from the antitrust 

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

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


pwalker on DSKD5P82C1PROD with BILLS
8 

•S 49 IS

1 Commission or the Surface Transportation Board 

2 issued pursuant to law. 

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

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

5 than 180 days after the date of enactment of this 

6 Act with respect to any previously exempted conduct 

7 or activity or previously exempted agreement that is 

8 continued subsequent to the date of enactment of 

9 this Act. 

Æ 


pwalker on DSKD5P82C1PROD with BILLS