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Union Calendar No. 556 

110TH CONGRESS 

2D SESSION H. R. 1650 

[Report No. 110–860, Part I] 

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 HOUSE OF REPRESENTATIVES 

MARCH 22, 2007 

Ms. BALDWIN (for herself, Mr. ALEXANDER, Mr. POMEROY, Mr. WALZ of 

Minnesota, and Mr. BAKER) introduced the following bill; which was referred to the Committee on the Judiciary, and in addition to the Committees on Transportation and Infrastructure and Energy and Commerce, 

for a period to be subsequently determined by the Speaker, in each case 

for consideration of such provisions as fall within the jurisdiction of the 

committee concerned 

SEPTEMBER 18, 2008 

Reported from the Committee on the Judiciary with an amendment 

[Strike out all after the enacting clause and insert the part printed in italic] 

SEPTEMBER 18, 2008 

Committees on Transportation and Infrastructure and Energy and Commerce 

discharged; committed to the Committee of the Whole House on the State 

of the Union and ordered to be printed 

[For text of introduced bill, see copy of bill as introduced on March 22, 2007] 

A BILL 

To amend the Federal antitrust laws to provide expanded 

coverage and to eliminate exemptions from such laws 

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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 2008’’. 

6 SEC. 2. APPLICATION OF THE ANTITRUST LAWS TO RAIL 

7 COMMON CARRIERS. 

8 (a) APPLICATION OF THE ANTITRUST LAWS.—The 

9 antitrust laws shall apply to a common carrier by railroad 

10 that is subject to the jurisdiction of the Surface Transpor11 tation Board under subtitle IV of title 49, United States 

12 Code, without regard to whether such common carrier filed 

13 a rate or whether a complaint challenging a rate is filed. 

14 (b) DEFINITION.—The term ‘‘antitrust laws’’ has the 

15 meaning given it in subsection (a) of the 1st section of the 

16 Clayton Act (15 U.S.C. 12(a)), but includes section 5 of 

17 the Federal Trade Commission Act to the extent such section 

18 5 applies to unfair methods of competition. 

19 SEC. 3. MERGERS AND ACQUISITIONS OF RAILROADS. 

20 The last undesignated paragraph of section 7 of the 

21 Clayton Act (15 U.S.C. 18) is amended by inserting ‘‘(ex22 cluding transactions described in section 11321 of title 49 

23 of the United States Code)’’ after ‘‘Surface Transportation 

24 Board’’. 

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1 SEC. 4. ANTITRUST ENFORCEMENT AUTHORITY. 

2 Section 11(a) of the Clayton Act (15 U.S.C. 21(a)) is 

3 amended by inserting ‘‘(excluding agreements described in 

4 section 10706 of such title and transactions described in 

5 section 11321 of such title)’’ after ‘‘Code’’. 

6 SEC. 5. INJUNCTIONS AGAINST RAILROAD COMMON CAR7 RIERS. 

8 The proviso in section 16 of the Clayton Act (15 U.S.C. 

9 26) is amended by inserting ‘‘(excluding a common carrier 

10 by railroad)’’ after ‘‘Board’’. 

11 SEC. 6. REMOVAL OF PRIMARY JURISDICTION AS LIMITA12 TION. 

13 The Clayton Act (15 U.S.C. 12 et seq.) is amended by 

14 adding at the end thereof the following: 

15 ‘‘SEC. 29. In any civil action against a common car16 rier railroad under section 4, 4A, 4C, 15, or 16, the district 

17 court shall not be required to defer to the jurisdiction of 

18 the Surface Transportation Board.’’. 

19 SEC. 7. UNFAIR METHODS OF COMPETITION. 

20 Section 5(a)(2) of the Federal Trade Commission Act 

21 (15 U.S.C. 45(a)(2)) is amended by adding at the end the 

22 following: 

23 ‘‘For purposes of this paragraph with respect to unfair 

24 methods of competition, the term ‘common carrier’ excludes 

25 a common carrier by railroad that is subject to jurisdiction 

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1 of the Surface Transportation Board under subtitle IV of 

2 title 49 of the United States Code.’’. 

3 SEC. 8. TERMINATION OF EXEMPTIONS IN TITLE 49. 

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

5 States Code, is amended— 

6 (1) in subsection (a)— 

7 (A) in the 3d sentence of paragraph (2)(A) 

8 by striking ‘‘, and the Sherman Act (15 U.S.C. 

9 1 et seq.),’’ and all that follows through ‘‘or car10 rying out the agreement’’, 

11 (B) in paragraph (4)— 

12 (i) by striking the 2d sentence, and 

13 (ii) in the 3d sentence by striking 

14 ‘‘However, the’’ and inserting ‘‘The’’, and 

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

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

17 this subsection do not apply to parties and other 

18 persons with respect to making or carrying out 

19 the agreement’’, 

20 (2) in subsection (d) by striking the last sen21 tence, and 

22 (3) by striking subsection (e) and inserting the 

23 following: 

24 ‘‘(e) Nothing in this section exempts a proposed agree25 ment described in subsection (a) from the application of the 

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1 antitrust laws (as defined in subsection (a) of the 1st section 

2 of the Clayton Act, but including section 5 of the Federal 

3 Trade Commission Act to the extent such section 5 applies 

4 to unfair methods of competition). 

5 ‘‘(f) In reviewing any proposed agreement described in 

6 subsection (a), the Board shall take into account, among 

7 any other considerations, the impact of the proposed agree8 ment on shippers, consumers, and affected communities. 

9 The Board shall make findings regarding such impact, 

10 which shall be— 

11 ‘‘(1) made part of the administrative record; 

12 ‘‘(2) submitted to any other reviewing agency for 

13 consideration in making its determination; and 

14 ‘‘(3) available in any judicial review of the 

15 Board’s decision regarding such agreement.’’. 

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

17 States Code, is amended— 

18 (1) in subsection (a)— 

19 (A) by striking ‘‘The authority’’ and insert20 ing ‘‘Except as provided in sections 4, 4A, 4C, 

21 15, and 16 of the Clayton Act, the authority’’; 

22 and 

23 (B) in the 3d sentence by striking ‘‘is ex24 empt from the antitrust laws and from all other 

25 law,’’ and inserting ‘‘is exempt from all other 

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1 law (except the laws referred to in subsection 

2 (c)),’’, and 

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

4 ‘‘(c) Nothing in this subchapter exempts a transaction 

5 described in subsection (a) from the application of the anti6 trust laws (as defined in subsection (a) of the 1st section 

7 of the Clayton Act, but including section 5 of the Federal 

8 Trade Commission Act to the extent such section 5 applies 

9 to unfair methods of competition). The preceding sentence 

10 shall not apply to any transaction relating to the pooling 

11 of railroad cars approved by the Surface Transportation 

12 Board or its predecessor agency pursuant to section 11322. 

13 ‘‘(d) In reviewing any transaction described in sub14 section (a), the Board shall take into account, among any 

15 other considerations, the impact of the transaction on ship16 pers and affected communities.’’. 

17 (c) CONFORMING AMENDMENTS.— 

18 (1) HEADING.—The heading for section 10706 of 

19 title 49, United States Code, is amended to read as 

20 follows: ‘‘Rate agreements’’. 

21 (2) ANALYSIS OF SECTIONS.—The analysis of 

22 sections of chapter 107 of such title is amended by 

23 striking the item relating to section 10706 and insert 

24 the following: 

‘‘10706. Rate agreements.’’. 

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1 SEC. 9. EFFECTIVE DATE. 

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

3 (b), this Act and the amendments made by this Act shall 

4 take effect on the date of enactment of this Act. 

5 (b) LIMITATION.—A civil action under section 4, 4A, 

6 4C, 15, or 16 of the Clayton Act, or a complaint under 

7 section 5 of the Federal Trade Commission Act (15 U.S.C. 

8 45) to the extent such section 5 applies to unfair methods 

9 of competition, may not be filed with respect to any conduct 

10 or activity that— 

11 (1) occurs before the expiration of the 180-day 

12 period beginning on the date of enactment of this Act; 

13 and 

14 (2) was exempted from the antitrust laws (as de15 fined in subsection (a) of the 1st section of the Clay16 ton Act (15 U.S.C. 12(a)), but including section 5 of 

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

18 the extent such section 5 applies to unfair methods of 

19 competition) by an order of the Interstate Commerce 

20 Commission or the Surface Transportation Board 

21 issued before the date of the enactment of this Act and 

22 pursuant to law. 

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Union Calendar No. 556 

110TH CONGRESS 

2D SESSION H. R. 1650 

[Report No. 110–860, Part I] 

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 

SEPTEMBER 18, 2008 

Reported from the Committee on the Judiciary with an 

amendment 

SEPTEMBER 18, 2008 

Committees on Transportation and Infrastructure and 

Union and ordered to be printed Committee of the Whole House on the State of the Energy and Commerce discharged; committed to the 

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