John D. Boyd | May 19, 2009 4:20PM EDT
A bill to strip railroads of a limited antitrust immunity could move to the Senate floor for a vote soon after Congress returns from its upcoming Memorial Day recess.
Sen. Herb Kohl, D-Wis., who sponsored the measure that cleared the Senate Judiciary Committee earlier this year, told The Journal of Commerce he will put the bill before the full Senate “shortly after the holiday.”
Some observers thought this measure could be folded into behind-the-scenes negotiations by staff of the Senate Commerce Committee to craft a new rail competition law that would try to resolve many shipper-railroad disputes and give regulators at the Surface Transportation Board new marching orders.
Kohl would not comment on those talks, but said he plans to bring the Railroad Antitrust Enforcement Act to the Senate floor soon after the recess, which runs May 25-29.
The railroad industry is pushing hard to defeat the antitrust measure, even though it has participated in the backstage talks on the separate competition bill.
Kohl’s bill would treat railroads much like other corporations by giving the Justice Department and Federal Trade Commission a role reviewing proposed mergers for anticompetitive issues, instead of leaving them as now solely under the STB’s jurisdiction.
It would also tell district courts that they do not have to give the STB primary jurisdiction over disputes, meaning that more customer or community complaints could go to court instead of first being ruled on by the agency. While the U.S. Court of Appeals can review STB decisions, it rarely overturns them, so having courts rule earlier in the process would weaken the STB’s dominance of rail-shipper service or rate disputes.
The Kohl bill would attack bottleneck issues, in which shippers say the railroads can prevent customers from getting competitive bids from other carriers for part of the trip, locking them into one carrier and its rates in many cases. It would also allow shippers to challenge the “paper barriers” or lock-in clauses that limit their carrier choices when a Class I railroad has sold some of its track to a short line.
Kohl has been trying to get such a measure passed since 2006, but it could have a better chance of making it into final law this year. A similar bill is also being considered by the House Judiciary Committee.
Contact John D. Boyd at jboyd@joc.com.