II 114th CONGRESS 1st Session S. 1634 IN THE SENATE OF THE UNITED STATES June 18, 2015 Ms. Klobuchar (for herself, Mr. Vitter , and Mr. Leahy ) introduced the following bill; which was read twice and referred to the Committee on the Judiciary 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. Short title This Act may be cited as the Railroad Antitrust Enforcement Act of 2015 . 2. Injunctions against railroad common carriers Section 16 of the Clayton Act ( 15 U.S.C. 26 ) is amended— (1) by striking That any person and inserting the following: (a) In general Subject to subsection (c), any person ; (2) by striking proceedings, and inserting proceedings. ; (3) by striking and upon and inserting the following: (b) Preliminary injunction A preliminary injunction may be issued upon ; (4) by striking , a preliminary injunction may issue: Provided , That nothing and all that follows through subtitle IV of title 49, United States Code. and inserting the following: (c) Savings provision Nothing in this section may be construed to entitle any person, firm, corporation, or association, except the United States, to bring suit for injunctive relief against any common carrier subject to the jurisdiction of the Surface Transportation Board under part B or C of subtitle IV of title 49. ; and (5) by striking In any action and inserting the following: (d) Costs and attorney’s fees In any action . 3. Mergers and acquisitions of railroads Section 7 of the Clayton Act ( 15 U.S.C. 18 ) is amended— (1) in the first undesignated paragraph, by striking That no person and inserting the following: (a) No person ; (2) in the second undesignated paragraph, by striking No person shall and inserting the following: (b) No person shall ; (3) in the third undesignated paragraph, by striking This section and inserting the following: (c) This section ; (4) in the fourth undesignated paragraph, by striking Nor shall anything herein contained be construed and inserting the following: (d) Nothing in this section may be construed ; (5) in the fifth undesignated paragraph— (A) by striking Nothing contained in this section shall be held and inserting the following: (e) Nothing in this section— (1) shall be held ; and (B) by striking acquired: Provided, That nothing in this section shall be held or construed and inserting the following: “acquired; or (2) shall be held or construed ; and (6) by amending the sixth undesignated paragraph to read as follows: (f) Nothing in this section shall apply to transactions duly consummated pursuant to authority given by the Secretary of Transportation, the Secretary of Agriculture, the Surface Transportation Board (except for transactions described in section 11321 of title 49, United States Code), the Federal Energy Regulatory Commission in the exercise of its jurisdiction under the Public Utility Holding Company Act of 2005 (subtitle F of title XII of Public Law 109–58 ), or the United States Maritime Commission under any law vesting such power in such Secretary, Board, or Commission. . 4. Limitation of primary jurisdiction The Clayton Act ( 15 U.S.C. 12 et seq. ) is amended— (1) by redesignating sections 26, 27, and 28 as sections 17, 18, and 19, respectively; and (2) by adding at the end the following: 21. In any civil action against a common carrier railroad under section 4, 4C, 15, or 16, the district court shall not be required to defer to the primary jurisdiction of the Surface Transportation Board. . 5. Federal trade commission enforcement (a) Clayton Act Section 11(a) of the Clayton Act ( 15 U.S.C. 21(a) ) is amended by inserting (except for agreements described in section 10706 of that title and transactions described in section 11321 of that title) after United States Code . (b) FTC Act Section 5(a)(2) of the Federal Trade Commission Act ( 15 U.S.C. 45(a)(2) ) is amended by striking common carriers subject and inserting common carriers, except for railroads, subject . 6. Expansion of treble damages to rail common carriers Section 4 of the Clayton Act ( 15 U.S.C. 15 ) is amended by— (1) in subsection (a), by striking Except as provided in subsection (b) and inserting Except as provided in subsection (c) ; (2) by redesignating subsections (b) and (c) as subsections (c) and (d), respectively; and (3) by inserting after subsection (a) the following: (b) Subsection (a) shall apply to any common carrier railroad subject to the jurisdiction of the Surface Transportation Board under subtitle IV of title 49, United States Code, without regard to whether such railroad has filed rates or whether a complaint challenging a rate has been filed. . 7. Termination of exemptions in title 49 , United States Code (a) In general Section 10706 of title 49, United States Code, is amended— (1) in subsection (a)— (A) in paragraph (2)(A), by striking , and the Sherman Act and all that follows through carrying out the agreement ; (B) in paragraph (4), by striking The Sherman Act and all that follows through such agreement. However the Board and inserting The Board ; 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 carrying out the agreement ; and (2) by amending subsection (e) to read as follows: (e) (1) Nothing in this section may be construed to exempt a proposed agreement described in subsection (a) from the application of the Sherman Act ( 15 U.S.C. 1 et seq. ), the Clayton Act ( 15 U.S.C. 12 et seq. ), the Federal Trade Commission Act ( 15 U.S.C. 41 et seq. ), section 73 or 74 of the Wilson Tariff Act (15 U.S.C. 8 and 9), or the Act of June 19, 1936 ( 15 U.S.C. 13 et seq. ). (2) In reviewing any such proposed agreement for the purpose of any provision of law described in paragraph (1), the Board shall take into account, among other considerations, the impact of the proposed agreement on shippers, consumers, and affected communities. . (b) Combinations Section 11321 of title 49, United States Code, is amended— (1) in subsection (a)— (A) by striking The authority and inserting Except as provided in sections 4, 4C, 15, and 16 of the Clayton Act ( 15 U.S.C. 15 , 15c, 25, and 26), the authority ; and (B) by striking is exempt from the antitrust laws and from all other law, and inserting is exempt from any other law (except the antitrust laws referred to in subsection (c)), ; and (2) by adding at the end the following: (c) (1) Nothing in this section may be construed to exempt a transaction described in subsection (a) from the application of the Sherman Act ( 15 U.S.C. 1 et seq. ), the Clayton Act ( 15 U.S.C. 12 et seq. ), the Federal Trade Commission Act ( 15 U.S.C. 41 et seq. ), section 73 or 74 of the Wilson Tariff Act (15 U.S.C. 8 and 9), or the Act of June 19, 1936 ( 15 U.S.C. 13 et seq. ). (2) Paragraph (1) 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. (3) In reviewing any such transaction for the purpose of any provision of law described in paragraph (1), the Board shall take into account, among other considerations, the impact of the transaction on shippers and on affected communities. . (c) Conforming amendments Chapter 107 of title 49, United States Code, is amended— (1) in the table of sections, by striking the item relating to section 10706 and inserting the following: 10706. Rate agreements. . (2) in section 10706, by amending the section heading to read as follows: Rate agreements . 8. Effective date (a) In general Except as provided in subsection (b), this Act shall take effect on the date of the enactment of this Act. (b) Conditions (1) Previous conduct A civil action under section 4, 15, or 16 of the Clayton Act ( 15 U.S.C. 15 , 25, and 26) or a complaint under section 5 of the Federal Trade Commission Act ( 15 U.S.C. 45 ) may not be filed with respect to any conduct or activity that occurred before the date of the enactment of this Act that was previously exempted from the antitrust laws (as defined in the first section of the Clayton Act ( 15 U.S.C. 12 )) by orders of the Interstate Commerce Commission or the Surface Transportation Board issued pursuant to law. (2) Grace period A civil action or complaint described in paragraph (1) may not be filed before the date that is 180 days after the date of the enactment of this Act with respect to— (A) any previously exempted conduct or activity; or (B) any previously exempted agreement that is continued subsequent to such date of enactment.