IB Union Calendar No. 399 111th CONGRESS 2d Session H. R. 233 [Report No. 111–669, Part I] IN THE HOUSE OF REPRESENTATIVES January 7, 2009 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 concerned November 30, 2010 Reported from the Committee on the Judiciary with an amendment Strike out all after the enacting clause and insert the part printed in italic November 30, 2010 Additional sponsors: Ms. Herseth Sandlin, Mr. Kind, Mr. Berry, Ms. Jackson Lee of Texas, Mr. Ross, Mr. Ellison, Mr. Fleming, Mr. Snyder, Mr. Perlmutter, Mr. Peterson, Mr. Doggett, Ms. Giffords, Mr. Kagen, Mr. Melancon, Mr. Johnson of Georgia, Ms. Bean, Mr. Boustany, and Ms. Moore of Wisconsin November 30, 2010 Committee on Transportation and Infrastructure 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 January 7, 2009 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 2009.

2.

Application of the antitrust laws to rail carriers

(a)

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 involving a rail carrier as defined in section 10102 of title 49 of the United States Code) after Surface Transportation Board. (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 a rail carrier as defined in section 10102 of such title) after Code. (c)

Injunctions

The proviso in section 16 of the Clayton Act (15 U.S.C. 26) is amended by inserting , except against a rail carrier (as defined in section 10102 of such title) after Code. (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: For purposes of this paragraph with respect to unfair methods of competition, the term common carriers excludes a rail carrier as defined in section 10102 of title 49 of the United States Code..

3.

Termination of antitrust exemptions in title 49

(a)

In general

Section 10706 of title 49, United States Code, is amended— (1)in subsection (a)— (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 However, the and inserting . The, (B)in paragraph (3)(B)— (i)by striking (i), and (ii)by striking clause (ii), (C)in paragraph (4)— (i)by striking the 2d sentence, and (ii)in the 3d sentence by striking However, the and inserting The, and (D)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 an agreement approved, 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). (f)In reviewing any agreement submitted for approval under subsection (a), the Board shall take into account, among any other considerations, the impact of such 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 Subject to subsection (c), 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. .

4.

Clarifications regarding applicability of regulatory doctrines

(a)

Filed rate doctrine

The antitrust laws shall apply to a rail carrier (as defined in section 10102 of title 49 of the United States Code), without regard to whether such rail carrier filed a rate or whether a complaint challenging a rate is filed. (b)

Doctrine of primary jurisdiction

In any civil action under the antitrust laws against a rail carrier (as defined in section 10102 of title 49 of the United States Code), the district court shall retain the discretion to defer to the jurisdiction of the Surface Transportation Board. (c)

Definition

For purposes of subsections (a) and (b), 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.

5.

Effective date

(a)

In general

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

Limitation

No civil action under the antitrust laws may be filed with respect to any conduct or activity, including any agreement or provision thereof, that— (1)concluded or terminated before the expiration of the 180-day period beginning on the date of the enactment of this Act, and (2)was exempted by 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. (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). (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 includes 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.

November 30, 2010 Committee on Transportation and Infrastructure discharged; committed to the Committee of the Whole House on the State of the Union and ordered to be printed