S 49
112th CONGRESS
1st Session
S. 49
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 SENATE OF THE UNITED STATES
January 25 (legislative day, January 5), 2011
Mr. KOHL (for himself, Mr. VITTER, Mr. LEAHY, Mr. HATCH, Ms. KLOBUCHAR,
Mr. FRANKEN, and Mr. TESTER) 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.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the `Railroad Antitrust Enforcement Act of
2011'.
SEC. 2. INJUNCTIONS AGAINST RAILROAD COMMON CARRIERS.
The proviso in section 16 of the Clayton Act (15 U.S.C. 26) ending with
`Code.' is amended to read as follows: `Provided, That nothing
herein contained shall be construed to entitle any person, firm, corporation,
or association, except the United States, to bring suit for injunctive
relief against any common carrier that is not a railroad subject to
the jurisdiction of the Surface Transportation Board under subtitle
IV of title 49, United States Code.'.
SEC. 3. MERGERS AND ACQUISITIONS OF RAILROADS.
The sixth undesignated paragraph of section 7 of the Clayton Act (15
U.S.C. 18) is amended to read as follows:
`Nothing contained in this section shall apply to transactions duly
consummated pursuant to authority given by the Secretary of Transportation,
Federal Power Commission, Surface Transportation Board (except for transactions
described in section 11321 of that title), the Securities and Exchange
Commission in the exercise of its jurisdiction under section 10 (of
the Public Utility Holding Company Act of 1935), the United States Maritime
Commission, or the Secretary of Agriculture under any statutory provision
vesting such power in the Commission, Board, or Secretary.'.
SEC. 4. LIMITATION OF PRIMARY JURISDICTION.
The Clayton Act is amended by adding at the end thereof the following:
`Sec. 29. In any civil action against a common carrier railroad under
section 4, 4C, 15, or 16 of this Act, the district court shall not be
required to defer to the primary jurisdiction of the Surface Transportation
Board.'.
SEC. 5. FEDERAL TRADE COMMISSION ENFORCEMENT.
(a) Clayton Act- Section 11(a) of the Clayton Act (15 U.S.C. 21(a))
is amended by striking `subject to jurisdiction' and all that follows
through the first semicolon and inserting `subject to jurisdiction under
subtitle IV of title 49, United States Code (except for agreements described
in section 10706 of that title and transactions described in section
11321 of that title);'.
(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'.
SEC. 6. EXPANSION OF TREBLE DAMAGES TO RAIL COMMON CARRIERS.
Section 4 of the Clayton Act (15 U.S.C. 15) is amended by--
(1) redesignating subsections (b) and (c) as subsections (c) and (d),
respectively; and
(2) inserting after subsection (a) the following:
`(b) Subsection (a) shall apply to a common carrier by railroad subject
to the jurisdiction of the Surface Transportation Board under subtitle
IV of title 49, United States Code, without regard to whether such railroads
have filed rates or whether a complaint challenging a rate has been
filed.'.
SEC. 7. TERMINATION OF EXEMPTIONS IN TITLE 49.
(a) In General- Section 10706 of title 49, United States Code, is amended--
(A) in 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' in the third sentence;
(i) by striking the second sentence; and
(ii) by striking `However, the' in the third sentence 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 carrying out the agreement';
and
(2) by striking subsection (e) and inserting the following:
`(e) Application of Antitrust Laws-
`(1) IN GENERAL- Nothing in this section exempts 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, 14 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, 13a, 13b, 21a).
`(2) ANTITRUST ANALYSIS TO CONSIDER IMPACT- 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 any other
considerations, the impact of the proposed agreement on shippers,
on consumers, and on affected communities.'.
(b) Combinations- Section 11321 of title 49, United States Code, is
amended--
(A) by striking `The authority' in the first sentence and inserting
`Except as provided in sections 4 (15 U.S.C. 15), 4C (15 U.S.C.
15c), section 15 (15 U.S.C. 25), and section 16 (15 U.S.C. 26) of
the Clayton Act (15 U.S.C. 21(a)), the authority'; and
(B) by striking `is exempt from the antitrust laws and from all
other law,' in the third sentence and inserting `is exempt from
all other law (except the antitrust laws referred to in subsection
(c)),'; and
(2) by adding at the end the following:
`(c) Application of Antitrust Laws-
`(1) IN GENERAL- Nothing in this section exempts 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, 14 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. 8-9), or the Act of June 19, 1936 (15
U.S.C. 13, 13a, 13b, 21a). 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 of title 49, United States Code.
`(2) ANTITRUST ANALYSIS TO CONSIDER IMPACT- In reviewing any such
transaction for the purpose of any provision of law described in paragraph
(1), the Board shall take into account, among any other considerations,
the impact of the transaction on shippers and on affected communities.'.
(c) Conforming Amendments-
(1) The heading for section 10706 of title 49, United States Code,
is amended to read as follows: `Rate agreements'.
(2) The item relating to such section in the chapter analysis at the
beginning of chapter 107 of such title is amended to read as follows:
`10706. Rate agreements.'.
SEC. 8. EFFECTIVE DATE.
(a) In General- Subject to the provisions of subsection (b), this Act
shall take effect on the date of enactment of this Act.
(1) PREVIOUS CONDUCT- A civil action under section 4, 15, or 16 of
the Clayton Act (15 U.S.C. 15, 25, 26) or 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 prior to the
date of enactment of this Act that was previously exempted from the
antitrust laws as defined in section 1 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 earlier than 180 days after the date of enactment
of this Act with respect to any previously exempted conduct or activity
or previously exempted agreement that is continued subsequent to the
date of enactment of this Act.
END
