II

106TH CONGRESS

2D SESSION S. 2604

To amend title 49, United States Code, to provide that rail agreements

and transactions subject to approval by the Surface Transportation

Board are no longer exempt from the application of the antitrust laws,

and for other purposes.

IN THE SENATE OF THE UNITED STATES

MAY 23, 2000

Mr. DORGAN (for himself and Mr. ROCKEFELLER) introduced the following

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

A BILL

To amend title 49, United States Code, to provide that

rail agreements and transactions subject to approval by

the Surface Transportation Board are no longer exempt

from the application of the antitrust laws, and for other

purposes.

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 ‘‘Rail Competition En5 forcement Act’’.
2

•S 2604 IS

1 SEC. 2. TERMINATION OF EXEMPTION.

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

3 States Code, is amended—

4 (1) by striking ‘‘Board, and the Sherman Act

5 (15 U.S.C. 1, et seq.), the Clayton Act (15 U.S.C.

6 12, et seq.), the Federal Trade Commission Act (15

7 U.S.C. 41, et seq.), sections 73 and 74 of the Wilson

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

9 19, 1926 (15 U.S.C. 13, 13a, 13b, 21a) do not

10 apply to parties and other persons with respect to

11 making or carrying out the agreement. However,’’ in

12 subsection (a)(2)(A) and inserting ‘‘Board, how13 ever’’;

14 (2) by striking the second sentence of sub15 section (a)(4);

16 (3) by striking ‘‘However, the’’ in subsection

17 (a)(4) and inserting ‘‘The’’;

18 (4) by striking ‘‘Board, and the antitrust laws

19 set forth in paragraph (2) of this subsection do not

20 apply to parties and other persons with respect to

21 making or carrying out the agreement.’’ in sub22 section (a)(5) and inserting ‘‘Board.’’; and

23 (5) by striking subsection (e) and inserting the

24 following:

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

•S 2604 IS

1 ‘‘(1) IN GENERAL.—Nothing in this section ex2 empts a proposed agreement described in subsection

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

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

5 seq.), the Federal Trade Commission Act (15 U.S.C.

6 41 et seq.), section 73 or 74 of the Wilson Tariff

7 Act (15 U.S.C. 8 and 9), or the Act of June 19,

8 1926 (15 U.S.C. 13, 13a, 13b, 21a).

9 ‘‘(2) ANTITRUST ANALYSIS TO CONSIDER IM10 PACT.—In reviewing any such proposed agreement

11 for the purpose of any provision of law described in

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

13 agency shall take into account, inter alia, the impact

14 of the proposed agreement on shippers and on af15 fected communities.’’.

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

17 United States Code, is amended—

18 (1) by striking ‘‘The authority’’ in subsection

19 (a) and inserting ‘‘Except as provided in section 11

20 of the Clayton Act (15 U.S.C. 21(a)), the author21 ity’’;

22 (2) by striking ‘‘is exempt from the antitrust

23 laws and from all other law,’’ and inserting ‘‘is ex24 empt from all other law (except the antitrust

25 laws),’’; and
4

•S 2604 IS

1 (3) by adding at the end thereof the following:

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

3 ‘‘(1) IN GENERAL.—Nothing in this section ex4 empts a transaction described in subsection (a) from

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

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

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

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

9 U.S.C. 8 and 9), or the Act of June 19, 1926 (15

10 U.S.C. 13, 13a, 13b, 21a).

11 ‘‘(2) ANTITRUST ANALYSIS TO CONSIDER IM12 PACT.—In reviewing any such transaction for the

13 purpose of any provision of law described in para14 graph (1), the Board and any other reviewing agen15 cy shall take into account, inter alia, the impact of

16 the transaction on shippers and on affected commu17 nities.’’.

18 (c) CLAYTON ACT.—

19 (1) APPLICATION OF ACT.—Section 7 of the

20 Clayton Act (15 U.S.C. 18) is amended by striking

21 ‘‘Surface Transportation Board,’’ in the last para22 graph of that section.

23 (2) FTC ENFORCEMENT.—Section 11(a) of the

24 Clayton Act (15 U.S.C. 21(a)) is amended by strik25 ing ‘‘title 49, United States Code;’’ and inserting
5

•S 2604 IS

1 ‘‘title 49, United States Code (except for agreements

2 described in section 10706 of that title and trans3 actions described in section 11321 of that title);’’.

4 (d) CONFORMING AMENDMENTS.—

5 (1) The heading for section 10706 is amended

6 to read as follows:

7 ‘‘§ 10706. Rate agreements’’.

8 (2) The chapter analysis for chapter 107 of title

9 49, United States Code, is amended by striking the

10 item relating to section 10706 and inserting the fol11 lowing:

‘‘10706. Rate agreements.’’.

12 SEC. 3. EFFECTIVE DATE.

13 The amendments made by section 2 apply to any

14 agreement or transaction submitted to the Surface Trans15 portation Board after December 31, 1999.

Æ