110 HR 1650 RH: Railroad Antitrust Enforcement Act of 2008 U.S. House of Representatives 2007-03-22 text/xml EN Pursuant to Title 17 Section 105 of the United States Code, this file is not subject to copyright protection and is in the public domain.

IB Union Calendar No. 556 110th CONGRESS 2d Session H. R. 1650 [Report No. 110–860, Part I] IN THE HOUSE OF REPRESENTATIVES March 22, 2007 Ms. Baldwin (for herself, Mr. Alexander, Mr. Pomeroy, Mr. Walz of Minnesota, and Mr. Baker) introduced the following bill; which was referred to the Committee on the Judiciary, and in addition to the Committees on Transportation and Infrastructure and Energy and Commerce, 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 concerned September 18, 2008 Reported from the Committee on the Judiciary with an amendment Strike out all after the enacting clause and insert the part printed in italic September 18, 2008 Committees on Transportation and Infrastructure and Energy and Commerce discharged; committed to the Committee of the Whole House on the State of the Union and ordered to be printed For text of introduced bill, see copy of bill as introduced on March 22, 2007 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 2008.

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.

3.

Mergers and acquisitions of railroads

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 11321 of title 49 of the United States Code) after Surface Transportation Board.

4.

Antitrust enforcement authority

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 of such title) after Code.

5.

Injunctions against railroad common carriers

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.

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:

29.In any civil action against a common 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.

.

7.

Unfair methods of competition

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 carrier excludes a common carrier by railroad that is subject to jurisdiction of the Surface Transportation Board under subtitle IV of title 49 of the United States Code..

8.

Termination of exemptions in title 49

(a)

In general

Section 10706 of title 49, United States Code, is amended— (1)in subsection (a)— (A)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, (B)in paragraph (4)— (i)by striking the 2d sentence, and (ii)in the 3d sentence by striking However, the 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, (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 a proposed agreement 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). (f)In reviewing any proposed agreement described in subsection (a), the Board shall take into account, among any other considerations, the impact of the proposed 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 Except as provided in sections 4, 4A, 4C, 15, and 16 of the Clayton Act, 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. .

9.

Effective date

(a)

In general

Except as provided in subsection (b), this Act and the amendments made by this Act shall take effect on the date of enactment of this Act. (b)

Limitation

A 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, may not be filed with respect to any conduct or activity that— (1)occurs before the expiration of the 180-day period beginning on the date of enactment of this Act; and (2)was exempted from the antitrust laws (as defined in subsection (a) of the 1st section of the Clayton Act (15 U.S.C. 12(a)), but including 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.

September 18, 2008 Reported from the Committee on the Judiciary with an amendment September 18, 2008 Committees on Transportation and Infrastructure and Energy and Commerce discharged; committed to the Committee of the Whole House on the State of the Union and ordered to be printed