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.

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Railroad Antitrust Enforcement Act 
of 2009''.

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

    (a) Mergers and Acquisitions.--The last undesignated paragraph of 
section 7 of the Clayton Act (15 U.S.C. 18) is amended by inserting 
``(excluding transactions involving a rail carrier as defined in 
section 10102 of title 49 of the United States Code)'' after ``Surface 
Transportation Board''.
    (b) Vesting of Authority in Antitrust Agencies.--Section 11(a) of 
the Clayton Act (15 U.S.C. 21(a)) is amended by inserting ``(excluding 
a rail carrier as defined in section 10102 of such title)'' after 
``Code''.
    (c) Injunctions.--The proviso in section 16 of the Clayton Act (15 
U.S.C. 26) is amended by inserting ``, except against a rail carrier 
(as defined in section 10102 of such title)'' after ``Code''.
    (d) Federal Trade Commission Authority.--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 carriers' excludes a rail carrier as 
defined in section 10102 of title 49 of the United States Code.''.

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

    (a) In General.--Section 10706 of title 49, United States Code, is 
amended--
            (1) in subsection (a)--
                    (A) beginning 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 ``However, 
                the'' and inserting ``. The'',
                    (B) in paragraph (3)(B)--
                            (i) by striking ``(i)'', and
                            (ii) by striking clause (ii),
                    (C) in paragraph (4)--
                            (i) by striking the 2d sentence, and
                            (ii) in the 3d sentence by striking 
                        ``However, the'' and inserting ``The'', and
                    (D) 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 carrying out the agreement'',
            (2) in subsection (d) by striking the last sentence, and
            (3) by striking subsection (e) and inserting the following:
    ``(e) Nothing in this section exempts an agreement approved, or 
submitted for approval, under 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 section 5 applies to unfair methods 
of competition).
    ``(f) In reviewing any agreement submitted for approval under 
subsection (a), the Board shall take into account, among any other 
considerations, the impact of such 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 inserting 
                ``Subject to subsection (c), the authority'', and
                    (B) in the 3d sentence by striking ``is exempt 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 transaction 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 
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 Transportation Board or its 
predecessor agency pursuant to section 11322.
    ``(d) In reviewing any transaction described in subsection (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 insert the following:

``10706. Rate agreements.''.

SEC. 4. CLARIFICATIONS REGARDING APPLICABILITY OF REGULATORY DOCTRINES.

    (a) Filed Rate Doctrine.--The antitrust laws shall apply to a rail 
carrier (as defined in section 10102 of title 49 of the United States 
Code), without regard to whether such rail carrier filed a rate or 
whether a complaint challenging a rate is filed.
    (b) Doctrine of Primary Jurisdiction.--In any civil action under 
the antitrust laws against a rail carrier (as defined in section 10102 
of title 49 of the United States Code), the district court shall retain 
the discretion to defer to the jurisdiction of the Surface 
Transportation Board.
    (c) Definition.--For purposes of subsections (a) and (b), 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. 5. EFFECTIVE DATE.

    (a) In General.--Except as provided in subsections (b) and (c), 
this Act and the amendments made by this Act shall take effect on the 
date of enactment of this Act.
    (b) Limitation.--No civil action under the antitrust laws may be 
filed with respect to any conduct or activity, including any agreement 
or provision thereof, that--
            (1) concluded or terminated before the expiration of the 
        180-day period beginning on the date of the enactment of this 
        Act, and
            (2) was exempted by statute from the antitrust laws as the 
        result of an order of the Interstate Commerce Commission or the 
        Surface Transportation Board issued before the date of the 
        enactment of this Act.
    (c) Exclusion.--No civil action under the antitrust laws may be 
filed for the purpose of dissolving or otherwise undoing any merger, 
acquisition, or transfer of control consummated before the date of the 
enactment of this Act that was exempted by statute from the antitrust 
laws as the result of an order described in subsection (b)(2).
    (d) Definition.--For purposes of subsections (b) and (c), 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 (15 U.S.C. 45) to the extent such 
section 5 applies to unfair methods of competition.

Summary: Railroad Antitrust Enforcement Act of 2009 - Amends the Clayton Act to remove an exemption from coverage under the federal antitrust laws with respect to mergers and acquisitions involving rail carriers. Removes from the Surface Transportation Board (STB) the authority to enforce federal antitrust laws with respect to rail carriers (thus vesting such authority in the federal antitrust agencies). Removes: (1) the prohibition against a private party seeking injunctive relief against a rail carrier for a violation of the antitrust laws; and (2) the rail carrier exemption from the Federal Trade Commission (FTC) prohibition against unfair methods of competition.

 Amends federal transportation law to terminate the exemptions from antitrust laws for rail carriers, including mergers and acquisitions and ratemaking agreements. Requires the STB, when reviewing a proposed rate agreement, to take into account its impact upon shippers, consumers, and affected communities, and to make findings regarding such impact, which shall be made part of the administrative record.

Makes federal antitrust laws applicable to rail carriers regardless of whether the carrier filed a rail carrier rate or whether a complaint challenging a rate is filed. Provides that, in any civil action against a rail carrier, the U.S. district court shall retain the discretion to defer to the jurisdiction of the STB.

Sets forth an effective date for this Act as the date of enactment, but provides a 180-day grace period for conduct that was exempted under the antitrust laws before such date of enactment.