II
Calendar No. 19
112th CONGRESS
1st Session
S. 49
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, Mr. Tester, and Mr. Schumer) introduced the following bill; which was read twice and referred to the Committee on the Judiciary
March 28, 2011
Reported by Mr. Leahy, without amendment
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.
Short title
This Act may be cited as
the Railroad Antitrust Enforcement Act
of 2011
.
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.
.
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.
.
Limitation of primary jurisdiction
The Clayton Act is amended by adding at the end thereof the following:
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.
.
Federal trade commission enforcement
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);
.
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
.
Expansion of treble damages to rail common carriers
Section 4 of the Clayton Act (15 U.S.C. 15) is amended by—
redesignating subsections (b) and (c) as subsections (c) and (d), respectively; and
inserting after subsection (a) the following:
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.
.
Termination of exemptions in title 49
In general
Section 10706 of title 49, United States Code, is amended—
in subsection (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;
in paragraph (4)—
by striking the second sentence; and
by
striking However, the
in the third sentence and inserting
The
; and
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
by striking subsection (e) and inserting the following:
Application of antitrust laws
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).
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.
.
Combinations
Section 11321 of title 49, United States Code, is amended—
in subsection (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
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
by adding at the end the following:
Application of antitrust laws
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.
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.
.
Conforming amendments
The heading for
section 10706 of title 49, United States Code, is amended to read as follows:
Rate
agreements
.
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.
.
Effective date
In general
Subject to the provisions of subsection (b), this Act shall take effect on the date of enactment of this Act.
Conditions
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.
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.
March 28, 2011
Reported without amendment