HR 233 IH

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.CommentsClose CommentsPermalink

January 7, 2009CommentsClose CommentsPermalink

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 Infrastructure, 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 concernedCommentsClose CommentsPermalink

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.CommentsClose CommentsPermalink

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, CommentsClose CommentsPermalink

SECTION 1. SHORT TITLE.

This Act may be cited as the ‘Railroad Antitrust Enforcement Act of 2009’. CommentsClose CommentsPermalink

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 Transportation 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.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 described in section 11321involving a rail carrier as defined in section 10102 of title 49 of the United States Code)’ after ‘Surface Transportation Board’. CommentsClose CommentsPermalink




SEC. 4. ANTITRUST ENFORCEMENT AUTHORITY.(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 agreements described in section 10706 of such title and transactions described in section 11321 rail carrier as defined in section 10102 of such title)’ after ‘Code’. CommentsClose CommentsPermalink





SEC. 5. INJUNCTIONS AGAINST RAILROAD COMMON CARRIERS.(c) Injunctions- 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 LIMITATION.

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, except against a commonrail carrier railroad under section 4, 4A, 4C, 15, or 16, the district court shall not be required to defer to the jurisdiction of the Surface Transportation Board.’.SEC. 7. UNFAIR METHODS OF COMPETITION.(as defined in section 10102 of such title)’ after ‘Code’. CommentsClose CommentsPermalink




(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: CommentsClose CommentsPermalink





‘For purposes of this paragraph with respect to unfair methods of competition, the term ‘common carriers’ excludes a common carrier by railroad that is subject to jurisdiction of the Surface Transportation Board under subtitle IVrail carrier as defined in section 10102 of title 49 of the United States Code.’. CommentsClose CommentsPermalink

SEC. 83. TERMINATION OF ANTITRUST EXEMPTIONS IN TITLE 49.

(a) In General-Section 10706 of title 49, United States Code, is amended-- CommentsClose CommentsPermalink





(1) in subsection (a)-- CommentsClose CommentsPermalink





(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 ‘or carrying out the agreement’,(BHowever, the’ and inserting ‘. The’, CommentsClose CommentsPermalink





(B) in paragraph (3)(B)-- CommentsClose CommentsPermalink





(i) by striking ‘(i)’, and CommentsClose CommentsPermalink





(ii) by striking clause (ii), CommentsClose CommentsPermalink





(C) in paragraph (4)-- CommentsClose CommentsPermalink





(i) by striking the 2d sentence, and CommentsClose CommentsPermalink





(ii) in the 3d sentence by striking ‘However, the’ and inserting ‘The’, and CommentsClose CommentsPermalink





(CD) 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’, CommentsClose CommentsPermalink





(2) in subsection (d) by striking the last sentence, and CommentsClose CommentsPermalink





(3) by striking subsection (e) and inserting the following: CommentsClose CommentsPermalink





‘(e) Nothing in this section exempts a proposedn agreement described inapproved, 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). CommentsClose CommentsPermalink





‘(f) In reviewing any proposed agreement described insubmitted for approval under subsection (a), the Board shall take into account, among any other considerations, the impact of the proposedsuch agreement on shippers, consumers, and affected communities. The Board shall make findings regarding such impact, which shall be-- CommentsClose CommentsPermalink





‘(1) made part of the administrative record; CommentsClose CommentsPermalink





‘(2) submitted to any other reviewing agency for consideration in making its determination; and CommentsClose CommentsPermalink





‘(3) available in any judicial review of the Board’s decision regarding such agreement.’. CommentsClose CommentsPermalink





(b) Combinations-Section 11321 of title 49, United States Code, is amended-- CommentsClose CommentsPermalink





(1) in subsection (a)-- CommentsClose CommentsPermalink





(A) by striking ‘The authority’ and inserting ‘Except as provided in sections 4, 4A, 4C, 15, and 16 of the Clayton Act, the authority’;Subject to subsection (c), the authority’, and CommentsClose CommentsPermalink





(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 CommentsClose CommentsPermalink





(2) by adding at the end the following: CommentsClose CommentsPermalink





‘(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. CommentsClose CommentsPermalink





‘(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.’. CommentsClose CommentsPermalink





(c) Conforming Amendments- CommentsClose CommentsPermalink





(1) HEADING- The heading forsection 10706 of title 49, United States Code, is amended to read as follows: ‘Rate agreements’. CommentsClose CommentsPermalink





(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: CommentsClose CommentsPermalink





‘10706. Rate agreements.’. CommentsClose CommentsPermalink

SEC. 94. CLARIFICATIONS REGARDING APPLICABILITY OF REGULATORY DOCTRINES.

SEC. 5. EFFECTIVE DATE.

(a) In General- Except as provided in subsection (bs (b) and (c), this Act and the amendments made by this Act shall take effect on the date of enactment of this Act. CommentsClose CommentsPermalink





(b) Limitation- ANo civil action under section 4, 4A, 4C, 15, or 16 of the Clayton Act, or a complaint under 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,the antitrust laws may not be filed with respect to any conduct or activity, including any agreement or provision thereof, that-- CommentsClose CommentsPermalink





(1) occursconcluded or terminated before the expiration of the 180-day period beginning on the date of the enactment of this Act;, and CommentsClose CommentsPermalink





(2) was exempted from the antitrust laws (as definedby 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. CommentsClose CommentsPermalink





(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). CommentsClose CommentsPermalink





(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 including section 5 of thees 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 Interstate Commerce Commission or the Surface Transportation Board issued before the date of the enactment of this Act and pursuant to law.. CommentsClose CommentsPermalink