< Back to S. 638 (113th Congress, 2013–2015)

Text of the Railroad Antitrust Enforcement Act of 2013

This bill was introduced on March 21, 2013, in a previous session of Congress, but was not enacted. The text of the bill below is as of Mar 21, 2013 (Introduced).

II

113th CONGRESS

1st Session

S. 638

IN THE SENATE OF THE UNITED STATES

March 21, 2013

(for herself,Mr. Vitter,Mr. Franken,Mr. Leahy,Ms. Baldwin, andMr. Tester) introduced the following bill; which was read twice and referred to theCommittee 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.

1.

Short title

This Act may be cited as the Railroad Antitrust Enforcement Act of 2013 .

2.

Injunctions against railroad common carriers

The proviso in section 16 of the Clayton Act(15 U.S.C. 26)ending withCode.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 theSurface Transportation Boardundersubtitle IV of title 49, United States Code..

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 theSecretary of Transportation,Federal Power Commission,Surface Transportation Board(except for transactions described insection 11321 of that title), theSecurities and Exchange Commissionin the exercise of its jurisdiction undersection 10 (of the Public Utility Holding Company Act of 1935), theUnited States Maritime Commission, or theSecretary of Agricultureunder any statutory provision vesting such power in the Commission, Board, or Secretary.

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4.

Limitation of primary jurisdiction

TheClayton Actis amended by adding at the end thereof the following:

29.

In any civil action against a common carrier railroad undersection 4,4C,15, or16of this Act, the district court shall not be required to defer to the primary jurisdiction of theSurface Transportation Board.

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5.

Federal trade commission enforcement

(a)

Clayton Act

Section 11(a) of the Clayton Act( 15 U.S.C. 21(a) )is amended by strikingsubject to jurisdictionand all that follows through the first semicolon and insertingsubject to jurisdiction undersubtitle IV of title 49, United States Code(except for agreements described insection 10706 of that titleand transactions described insection 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 strikingcommon carriers subjectand insertingcommon carriers, except for railroads, subject.

6.

Expansion of treble damages to rail common carriers

Section 4 of the Clayton Act(15 U.S.C. 15)is amended by—

(1)

redesignatingsubsections (b) and (c)assubsections (c) and (d), respectively; and

(2)

inserting aftersubsection (a)the following:

(b)

Subsection (a)shall apply to a common carrier by railroad subject to the jurisdiction of theSurface Transportation Boardundersubtitle 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.

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7.

Termination of exemptions in title49

(a)

In general

Section 10706of title 49, United States Code, is amended—

(1)

insubsection (a)

(A)

inparagraph (2)(A), by striking, and the Sherman Act( 15 U.S.C. 1 et seq. ),and all that follows throughor carrying out the agreementin the third sentence;

(B)

inparagraph (4)

(i)

by striking the second sentence; and

(ii)

by strikingHowever, thein the third sentence and insertingThe; and

(C)

inparagraph (5)(A), by striking, and the antitrust laws set forth inparagraph (2)of this subsection do not apply to parties and other persons with respect to making or carrying out the agreement; and

(2)

by strikingsubsection (e)and inserting the following:

(e)

Application of antitrust laws

(1)

In general

Nothing in this section exempts a proposed agreement described insubsection (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 73or74 of the Wilson Tariff Act(15 U.S.C. 8and9), 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 inparagraph (1), theBoardshall take into account, among any other considerations, the impact of the proposed agreement on shippers, on consumers, and on affected communities.

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(b)

Combinations

Section 11321 of title 49, United States Code, is amended—

(1)

insubsection (a)

(A)

by strikingThe authorityin the first sentence and insertingExcept 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 strikingis exempt from the antitrust laws and from all other law,in the third sentence and insertingis exempt from all other law (except the antitrust laws referred to insubsection (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 insubsection (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 73or74 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 theSurface Transportation Boardor its predecessor agency pursuant to section 11322of 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 inparagraph (1), theBoardshall take into account, among any other considerations, the impact of the transaction on shippers and on affected communities.

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(c)

Conforming amendments

(1)

The heading for section 10706of 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 ofchapter 107 of such titleis amended to read as follows:

10706. Rate agreements.

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8.

Effective date

(a)

In general

Subject to the provisions ofsubsection (b), this Act shall take effect on the date of enactment of this Act.

(b)

Conditions

(1)

Previous conduct

A civil action undersection 4,15, or16 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 theInterstate Commerce Commissionor theSurface Transportation Boardissued pursuant to law.

(2)

Grace period

A civil action or complaint described inparagraph (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.