Antitrust Measures Excised from Senate Surface Transportation Bill

This posting was written by Jeffrey May, Editor of CCH Trade Regulation Reporter.

Federal legislative proposals that would have repealed the antitrust exemption enjoyed by freight railroads and would have permitted the U.S. Department of Justice to sue Organization of Petroleum Exporting Countries (OPEC) members for price fixing were excised from the Senate Surface Transportation Bill prior to its passage on March 14.

In February, Senator Herb Kohl (D-Wis.) introduced two antitrust amendments to the “Moving Ahead for Progress in the 21st Century America Fast Forward Financing Innovation Act of 2011” or “MAP-21” (S. 1813)—the two-year surface transportation bill. However, a compromise to move the legislation forward excluded the proposals.

One amendment was identical to the proposed “Railroad Antitrust Enforcement Act of 2011” (S. 49). It would have brought railroad mergers and acquisitions under the purview of the Clayton Act and would have eliminate the exemption that prevents FTC scrutiny of railroad common carriers and the antitrust exemption for railroad collective ratemaking.

A second failed amendment tracked the language of S. 394—the proposed “No Oil Producing & Exporting Cartels (NOPEC) Act.” That proposal would have permitted the Justice Department to bring actions against foreign states—such as OPEC members—for collusive practices in setting the price or limiting the production of oil.

Further information on the bill appears here in the March 5, 2012 posting on Trade Regulation Talk.