I 
111TH CONGRESS 
1ST SESSION 
H. R. 233 
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 
JANUARY 7, 2009 
Ms. BALDWIN (for herself, Mr. POMEROY, Mr. ALEXANDER, and Mr. WALZ) 
introduced the following bill; which was referred to the Committee on the 
Judiciary, and in addition to the Committee on Transportation and Infra-
structure, for a period to be subsequently determined by the Speaker, in 
each case for consideration of such provisions as fall within the jurisdic-
tion of the committee concerned 
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. 
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled, 
SECTION 1. SHORT TITLE. 
This Act may be cited as the ‘‘Railroad Antitrust En-
forcement Act of 2009’’. 
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SEC. 2. APPLICATION OF THE ANTITRUST LAWS TO RAIL 
COMMON CARRIERS. 
(a) APPLICATION OF THE ANTITRUST LAWS.—The 
antitrust laws shall apply to a common carrier by railroad 
that is subject to the jurisdiction of the Surface Transpor-
tation Board under subtitle IV of title 49, United States 
Code, without regard to whether such common carrier 
filed a rate or whether a complaint challenging a rate is 
filed. 
(b) DEFINITION.—The term ‘‘antitrust laws’’ has the 
meaning given it in subsection (a) of the 1st section of 
the Clayton Act (15 U.S.C. 12(a)), but includes section 
5 of the Federal Trade Commission Act to the extent such 
section 5 applies to unfair methods of competition. 
SEC. 3. MERGERS AND ACQUISITIONS OF RAILROADS. 
The last undesignated paragraph of section 7 of the 
Clayton Act (15 U.S.C. 18) is amended by inserting ‘‘(ex-
cluding transactions described in section 11321 of title 49 
of the United States Code)’’ after ‘‘Surface Transpor-
tation Board’’. 
SEC. 4. ANTITRUST ENFORCEMENT AUTHORITY. 
Section 11(a) of the Clayton Act (15 U.S.C. 21(a)) 
is amended by inserting ‘‘(excluding agreements described 
in section 10706 of such title and transactions described 
in section 11321 of such title)’’ after ‘‘Code’’. 
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SEC. 5. INJUNCTIONS AGAINST RAILROAD COMMON CAR-
RIERS. 
The proviso in section 16 of the Clayton Act (15 
U.S.C. 26) is amended by inserting ‘‘(excluding a common 
carrier by railroad)’’ after ‘‘Board’’. 
SEC. 6. REMOVAL OF PRIMARY JURISDICTION AS LIMITA-
TION. 
The Clayton Act (15 U.S.C. 12 et seq.) is amended 
by adding at the end thereof the following: 
‘‘SEC. 29. In any civil action against a common car-
rier railroad under section 4, 4A, 4C, 15, or 16, the dis-
trict court shall not be required to defer to the jurisdiction 
of the Surface Transportation Board.’’. 
SEC. 7. UNFAIR METHODS OF COMPETITION. 
Section 5(a)(2) of the Federal Trade Commission Act 
(15 U.S.C. 45(a)(2)) is amended by adding at the end the 
following: 
‘‘For purposes of this paragraph with respect to unfair 
methods of competition, the term ‘common carrier’ ex-
cludes a common carrier by railroad that is subject to ju-
risdiction of the Surface Transportation Board under sub-
title IV of title 49 of the United States Code.’’. 
SEC. 8. TERMINATION OF EXEMPTIONS IN TITLE 49. 
(a) IN GENERAL.—Section 10706 of title 49, United 
States Code, is amended— 
(1) in subsection (a)— 
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(A) in the 3d sentence of paragraph (2)(A) 
by striking ‘‘, and the Sherman Act (15 U.S.C. 
1 et seq.),’’ and all that follows through ‘‘or 
carrying out the agreement’’, 
(B) in paragraph (4)— 
(i) by striking the 2d sentence, and 
(ii) in the 3d sentence by striking 
‘‘However, the’’ and inserting ‘‘The’’, and 
(C) in paragraph (5)(A) by striking ‘‘, and 
the antitrust laws set forth in paragraph (2) of 
this subsection do not apply to parties and 
other persons with respect to making or car-
rying out the agreement’’, 
(2) in subsection (d) by striking the last sen-
tence, and 
(3) by striking subsection (e) and inserting the 
following: 
‘‘(e) Nothing in this section exempts a proposed 
agreement described in subsection (a) from the application 
of the antitrust laws (as defined in subsection (a) of the 
1st section of the Clayton Act, but including section 5 of 
the Federal Trade Commission Act to the extent such sec-
tion 5 applies to unfair methods of competition). 
‘‘(f) In reviewing any proposed agreement described 
in subsection (a), the Board shall take into account, 
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among any other considerations, the impact of the pro-
posed agreement on shippers, consumers, and affected 
communities. The Board shall make findings regarding 
such impact, which shall be— 
‘‘(1) made part of the administrative record; 
‘‘(2) submitted to any other reviewing agency 
for consideration in making its determination; and 
‘‘(3) available in any judicial review of the 
Board’s decision regarding such agreement.’’. 
(b) COMBINATIONS.—Section 11321 of title 49, 
United States Code, is amended— 
(1) in subsection (a)— 
(A) by striking ‘‘The authority’’ and in-
serting ‘‘Except as provided in sections 4, 4A, 
4C, 15, and 16 of the Clayton Act, the author-
ity’’; and 
(B) in the 3d sentence by striking ‘‘is ex-
empt from the antitrust laws and from all other 
law,’’ and inserting ‘‘is exempt from all other 
law (except the laws referred to in subsection 
(c)),’’, and 
(2) by adding at the end the following: 
‘‘(c) Nothing in this subchapter exempts a trans-
action described in subsection (a) from the application of 
the antitrust laws (as defined in subsection (a) of the 1st 
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section of the Clayton Act, but including section 5 of the 
Federal Trade Commission Act to the extent such section 
5 applies to unfair methods of competition). The preceding 
sentence shall not apply to any transaction relating to the 
pooling of railroad cars approved by the Surface Transpor-
tation Board or its predecessor agency pursuant to section 
11322. 
‘‘(d) In reviewing any transaction described in sub-
section (a), the Board shall take into account, among any 
other considerations, the impact of the transaction on 
shippers and affected communities.’’. 
(c) CONFORMING AMENDMENTS.— 
(1) HEADING.—The heading for section 10706 
of title 49, United States Code, is amended to read 
as follows: ‘‘Rate agreements’’. 
(2) ANALYSIS OF SECTIONS.—The analysis of 
sections of chapter 107 of such title is amended by 
striking the item relating to section 10706 and in-
sert the following: 
‘‘10706. Rate agreements.’’. 
SEC. 9. EFFECTIVE DATE. 
(a) IN GENERAL.—Except as provided in subsection 
(b), this Act and the amendments made by this Act shall 
take effect on the date of enactment of this Act. 
(b) LIMITATION.—A civil action under section 4, 4A, 
4C, 15, or 16 of the Clayton Act, or a complaint under 
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section 5 of the Federal Trade Commission Act (15 U.S.C. 
45) to the extent such section 5 applies to unfair methods 
of competition, may not be filed with respect to any con-
duct or activity that— 
(1) occurs before the expiration of the 180-day 
period beginning on the date of enactment of this 
Act; and 
(2) was exempted from the antitrust laws (as 
defined in subsection (a) of the 1st section of the 
Clayton Act (15 U.S.C. 12(a)), but including section 
5 of the Federal Trade Commission Act (15 U.S.C. 
45) to the extent such section 5 applies to unfair 
methods of competition) by an order of the Inter-
state Commerce Commission or the Surface Trans-
portation Board issued before the date of the enact-
ment of this Act and pursuant to law. 
Æ 
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