II 

Calendar No. 551 

110TH CONGRESS 

1ST SESSION S. 772 

[Report No. 110–252] 

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 

MARCH 6, 2007 

Mr. KOHL (for himself, Mr. COLEMAN, Mr. FEINGOLD, Mr. VITTER, Mr. 

ROCKEFELLER, Mr. HARKIN, Mr. DORGAN, Mr. LEAHY, Mr. BIDEN, and 

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

referred to the Committee on the Judiciary 

DECEMBER 19, 2007 

Reported by Mr. LEAHY, with amendments 

[Omit the part struck through and insert the part printed in italic] 

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 2007’’. 

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 agreements described in section 10706 of title 49, United 

23 States Code, and transactions described in section 11321 

24 of that title), the Securities and Exchange Commission in 

25 the exercise of its jurisdiction under section 10 (of the 

26 Public Utility Holding Company Act of 1935), the United 


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1 States Maritime Commission, or the Secretary of Agri2 culture under any statutory provision vesting such power 

3 in the Commission, Board, or Secretary.’’. 

4 SEC. 4. LIMITATION OF PRIMARY JURISDICTION. 

5 The Clayton Act is amended by adding at the end 

6 thereof the following: 

7 ‘‘SEC. 29. In any civil action against a common car8 rier railroad under section 4, 4C, 15, or 16 of this Act, 

9 the district court shall not be required to defer to the pri10 mary jurisdiction of the Surface Transportation Board.’’. 

11 SEC. 5. FEDERAL TRADE COMMISSION ENFORCEMENT. 

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

13 (15 U.S.C. 21(a)) is amended by striking ‘‘subject to juris14 diction’’ and all that follows through the first semicolon 

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

16 title 49, United States Code (except for agreements de17 scribed in section 10706 of that title and transactions de18 scribed in section 11321 of that title);’’. 

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

20 Commission Act (15 U.S.C. 44(a)(1) 15 U.S.C. 45(a)(2)) 

21 is amended by striking ‘‘common carriers subject’’ and in22 serting ‘‘common carriers, except for railroads, subject’’. 


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1 SEC. 6. EXPANSION OF TREBLE DAMAGES TO RAIL COM2 MON CARRIERS. 

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

4 amended by— 

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

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

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

8 ‘‘(b) Subsection (a) shall apply to common carriers 

9 by rail a common carrier by railroad subject to the juris10 diction of the Surface Transportation Board under sub11 title IV of title 49, United States Code, without regard 

12 to whether such railroads have filed rates or whether a 

13 complaint challenging a rate has been filed.’’. 

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

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

16 States Code, is amended— 

17 (1) in subsection (a)— 

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

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

20 that follows through ‘‘or carrying out the agree21 ment’’ in the third sentence; 

22 (B) in paragraph (4)— 

23 (i) by striking the second sentence; 

24 and 

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

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


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

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

3 this subsection do not apply to parties and 

4 other persons with respect to making or car5 rying out the agreement’’; and 

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

7 following: 

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

9 ‘‘(1) IN GENERAL.—Nothing in this section ex10 empts a proposed agreement described in subsection 

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

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

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

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

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

16 19, 1936 (15 U.S.C. 13, 13a, 13b, 21a). 

17 ‘‘(2) ANTITRUST ANALYSIS TO CONSIDER IM18 PACT.—In reviewing any such proposed agreement 

19 for the purpose of any provision of law described in 

20 paragraph (1), the Board and any other reviewing 

21 agency shall take into account, among any other 

22 considerations, the impact of the proposed agree23 ment on shippers, on consumers, and on affected 

24 communities.’’. 


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

2 United States Code, is amended— 

3 (1) in subsection (a)— 

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

5 first sentence and inserting ‘‘Except as pro6 vided in sections 4 (15 U.S.C. 15), 4C (15 

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

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

9 (15 U.S.C. 21(a)), the authority’’; and 

10 (B) by striking ‘‘is exempt from the anti11 trust laws and from all other law,’’ in the third 

12 sentence and inserting ‘‘is exempt from all 

13 other law (except the antitrust laws referred to 

14 in subsection (c)),’’; and 

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

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

17 ‘‘(1) IN GENERAL.—Nothing in this section ex18 empts a transaction described in subsection (a) from 

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

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

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

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

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

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

25 shall not apply to any transaction relating to the 


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1 pooling of railroad cars approved by the Surface 

2 Transportation Board or its predecessor agency pur3 suant to section 11322 of title 49, United States Code. 

4 ‘‘(2) ANTITRUST ANALYSIS TO CONSIDER IM5 PACT.—In reviewing any such transaction for the 

6 purpose of any provision of law described in para7 graph (1), the Board and any other reviewing agen8 cy shall take into account, among any other consid9 erations, the impact of the transaction on shippers 

10 and on affected communities.’’. 

11 (c) CONFORMING AMENDMENTS.— 

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

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

14 ‘‘Rate agreements’’. 

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

16 chapter analysis at the beginning of chapter 107 of 

17 such title is amended to read as follows: 

‘‘10706. Rate agreements.’’. 

18 SEC. 8. EFFECTIVE DATE. 

19 (a) IN GENERAL.—Subject to the provisions of sub20 section (b), this Act shall take effect on the date of enact21 ment of this Act. 

22 (b) CONDITIONS.— 

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

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

25 15, 25, 26) or complaint under section 5 of the FedVerDate Aug 31 2005 04:03 Dec 20, 2007 Jkt 069200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S772.RS S772

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1 eral Trade Commission Act (15 U.S.C. 45) may not 

2 be filed with respect to any conduct or activity that 

3 occurred prior to the date of enactment of this Act 

4 that was previously exempted from the antitrust 

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

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

7 Commission or the Surface Transportation Board 

8 issued pursuant to law. 

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

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

11 than 180 days after the date of enactment of this 

12 Act with respect to any previously exempted conduct 

13 or activity or previously exempted agreement that is 

14 continued subsequent to the date of enactment of 

15 this Act. 


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bajohnson on PROD1PC69 with BILLS
Calendar No. 551 

110TH CONGRESS 

1ST SESSION S. 772 

[Report No. 110

–252] 

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 

DECEMBER 19, 2007 

Reported with amendments 


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