CASE NOT YET SCHEDULED FOR ORAL ARGUMENT

Nos. 21-7093 & 21-7095

IN THE

United States Court of Appeals

for the District of Columbia Circuit

IN RE: RAIL FREIGHT FUEL SURCHARGE ANTITRUST

LITIGATION, MDL NO. 1869

DONNELLY COMMODITIES INCORPORATED ET AL.,

Plaintiffs-Appellees,

v.

BNSF RAILWAY COMPANY ET AL.,

Defendants-Appellants.

OXBOW CARBON MINERALS LLC ET AL.,

Plaintiffs-Appellees,

v.

UNION PACIFIC RAILROAD COMPANY ET AL.,

Defendants-Appellants.

On Appeals by Permission under 28 U.S.C. § 1292(b) from Orders of

the United States District Court for the District of Columbia Nos. 07-misc-489 

(MDL 1869), 11-cv-1049, Hon. Paul L. Friedman

BRIEF FOR THE UNITED STATES AND THE FEDERAL TRADE 

COMMISSION AS AMICI CURIAE IN SUPPORT OF 

PLAINTIFFS-APPELLEES AND AFFIRMANCE

JONATHAN S. KANTER

Assistant Attorney General

JOEL MARCUS

Deputy General Counsel

MARK S. HEGEDUS

Attorney

FEDERAL TRADE COMMISSION

600 Pennsylvania Ave., NW

Washington, D.C. 20580

DANIEL E. HAAR

ROBERT B. NICHOLSON

BRYAN J. LEITCH

Attorneys

U.S. DEPARTMENT OF JUSTICE

ANTITRUST DIVISION

950 Pennsylvania Ave., NW, Room 3224

Washington, DC 20530-0001

(202) 335-9366

 December 22, 2021 Bryan.Leitch@usdoj.gov

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CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES

Pursuant to D.C. Circuit Rule 28(a)(1), the undersigned counsel certifies as 

follows:

A. Parties and Amici

All parties, intervenors, and amici appearing before the district court and in 

this Court are listed in the Brief filed by defendants-appellants, except for the 

Association of American Railroads and the American Short Line and Regional 

Railroad Association, who appear before this Court as amici curiae supporting 

defendants-appellants. In this Court, the United States and the Federal Trade 

Commission appear as amici curiae supporting plaintiffs-appellees. 

B. Rulings Under Review

References to the rulings at issue appear in the Brief for defendants-appellants. 

C. Related Cases

A list of related cases appears in the Brief for defendants-appellants.

s/ Bryan J. Leitch

Bryan J. Leitch

Counsel for the United States

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TABLE OF CONTENTS

CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES ............i

TABLE OF AUTHORITIES.........................................................................iii

GLOSSARY OF ABBREVIATIONS........................................................... viii

STATEMENT OF INTEREST.......................................................................1

STATUTORY PROVISIONS ........................................................................1

INTRODUCTION AND SUMMARY OF ARGUMENT...................................1

STATEMENT OF THE CASE.......................................................................4

A.Legal Background..............................................................................4

B.Factual Background ...........................................................................6

ARGUMENT...............................................................................................8

I. SECTION 10706(a)(3)(B)(ii) PROTECTS ONLY DISCUSSIONS 

AND AGREEMENTS AMONG PARTICIPATING CARRIERS 

ABOUT THEIR SHARED INTERLINE TRAFFIC..................................8

A. Discussions And Agreements About Carriers’ Shared Interline 

Traffic “Concern[] An Interline Movement Of The Rail Carrier”............8

B. Discussions And Agreements Need Not List Specific Details To 

“Concern[] An Interline Movement Of The Rail Carrier” ....................14

C. The “Considered By Itself” Clause Retains Its Full Meaning When 

The Statute Is Properly Limited To Discussions And Agreements 

About Carriers’ Shared Interline Traffic ............................................17

II. SECTION 10706(a)(3)(B)(ii) CAN BE IMPLEMENTED THROUGH 

REDACTIONS AND LIMITING INSTRUCTIONS..............................22

CONCLUSION..........................................................................................26

CERTIFICATE OF COMPLIANCE

STATUTORY ADDENDUM

CERTIFICATE OF SERVICE

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TABLE OF AUTHORITIES

Page(s)

CASES:

Allen v. District of Columbia,

969 F.3d 397 (D.C. Cir. 2020) .....................................................................3

American Chiropractic Association v. Trigon Healthcare, Inc.,

367 F.3d 212 (4th Cir. 2004) .....................................................................21

American Short Line Railroad Association v. United States,

751 F.2d 107 (2d Cir. 1984)........................................................................5

Andrx Pharmaceuticals, Inc. v. Biovail Corporation International,

256 F.3d 799 (D.C. Cir. 2001) ...................................................................26

City of Winnfield v. Federal Energy Regulatory Commission,

744 F.2d 871 (D.C. Cir. 1984) ...................................................................14

Clapp v. Macfarland,

20 App. D.C. 224 (C.A.D.C. 1902).............................................................23

Coal Exporters Association of the United States, Inc. v. United States,

745 F.2d 76 (D.C. Cir. 1984).......................................................................5

Delaware & Hudson Railway Co. v. Consolidated Rail Corporation,

902 F.2d 174 (2d Cir. 1990)......................................................................18

Duncan v. Walker,

533 U.S. 167 (2001).................................................................................11

Farrell v. Blinken,

4 F.4th 124 (D.C. Cir. 2021)......................................................................13

Flintkote Co. v. Lysfjord,

246 F.2d 368 (9th Cir. 1957) .....................................................................21

Gaubert v. Federal Home Loan Bank Board,

863 F.2d 59 (D.C. Cir. 1988)................................................................22, 25

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Georgia v. Pennsylvania Railroad,

324 U.S. 439 (1945)...................................................................................4

Goldman Sachs Group, Inc. v. Arkansas Teacher Retirement System,

141 S. Ct. 1951 (2021)..............................................................................14

Interstate Commerce Commission v. Texas,

479 U.S. 450 (1987)...................................................................................3

In re Petroleum Products Antitrust Litigation,

906 F.2d 432 (9th Cir. 1990) .....................................................................22

In re Pittsburgh & Lake Erie Properties, Inc.,

290 F.3d 516 (3d Cir. 2002).................................................................. 9, 10

In re Rail Freight Fuel Surcharge Antitrust Litigation,

520 F. Supp. 3d 1 (D.D.C. 2021)................................ 2, 8, 9, 13, 15, 17, 18, 22

In re Rail Freight Fuel Surcharge Antitrust Litigation,

725 F.3d 244 (D.C. Cir. 2013) .....................................................................7

Lawlor v. National Screen Service Corporation,

349 U.S. 322 (1955).................................................................................24

Leegin Creative Leather Products, Inc. v. PSKS, Inc.,

551 U.S. 877 (2007).................................................................................18

Logan v. United States,

552 U.S. 23 (2007)...................................................................................22

Marx v. General Revenue Corporation,

568 U.S. 371 (2013).................................................................................25

Maui v. Hawaii Wildlife Fund,

140 S. Ct. 1462 (2020).........................................................................20, 26

Mellouli v. Lynch,

575 U.S. 798 ....................................................................................... 9, 10

National Postal Policy Council v. Postal Regulatory Commission,

17 F.4th 1184 (D.C. Cir. 2021)..................................................................12

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NCAA v. Alston,

141 S. Ct. 2141 (2021)................................................................3, 16, 19, 20

NCAA v. Board of Regents,

468 U.S. 85 (1984)..............................................................................17, 20

Northeastern Telephone Co. v. AT&T,

651 F.2d 76 (2d Cir. 1981)........................................................................21

Nken v. Holder,

556 U.S. 418 (2009)............................................................................22, 23

Norfolk Monument Co. v. Woodlawn Memorial Gardens,

394 U.S. 700 (1969)............................................................................21, 26

Ohio v. Wright,

992 F.2d 616 (6th Cir. 1993) .....................................................................11

Parker Drilling Management Services v. Newton,

139 S. Ct. 1881 (2019).......................................................................... 9, 11

Pierce County, Washington v. Guillen,

537 U.S. 129 (2003).................................................................................23

Policy Alternatives to Increase Competition,

2009 WL 996819 (S.T.B. 2009).................................................................17

Polygram Holding, Inc. v. FTC,

416 F.3d 29 (D.C. Cir. 2005).....................................................................16

Radovich v. National Football League,

352 U.S. 445 (1957).................................................................................24

Rail Fuel Surcharges,

2007 WL 201205 (S.T.B. 2007)...................................................................7

Ransom v. FIA Card Services,

562 U.S. 61 (2011)...................................................................................12

Scheidler v. National Organization for Women, Inc.,

547 U.S. 9 (2006).....................................................................................19

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Smith v. Pro Football, Inc.,

593 F.2d 1173 (D.C. Cir. 1978)..................................................................16

Society of Plastics Industry, Inc. v. Interstate Commerce Commission,

955 F.2d 722 (D.C. Cir. 1992) .....................................................................6

St. Regis Paper Co. v. United States,

368 U.S. 208 (1961)............................................................................23, 25

Truck Trailer Manufacturers Association, Inc. v. Environmental Protection Agency

17 F.4th 1198 (D.C. Cir. 2021)....................................................................9

Texaco Inc. v. Dagher,

547 U.S. 1 (2006).....................................................................................16

Thryv, Inc v. Click-To-Call Technologies, LP,

140 S. Ct. 1367 (2020)..............................................................................10

United States v. Bessemer & Lake Erie Railroad Company,

717 F.2d 593 (D.C. Cir. 1983) ............................................................... 4, 13

United States v. Hald,

8 F.4th 932 (10th Cir. 2021)......................................................................19

United States v. Joint-Traffic Association,

171 U.S. 505 (1898)...................................................................................4

United States v. Lemonakis,

485 F.2d 941 (D.C. Cir. 1973) ...................................................................23

United States v. National City Lines,

334 U.S. 573 (1948).................................................................................24

United States v. Pacific & Arctic Railway & Navigation Co.,

228 U.S. 87 (1913).....................................................................................5

Verizon Communications, Inc. v. Law Offices of Curtis V. Trinko, LLP,

540 U.S. 398 (2004)...................................................................................4

STATUTES:

12 U.S.C. § 1464........................................................................................23

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28 U.S.C. § 1292(b)......................................................................................8

49 U.S.C. § 10706..........................................................................1-14, 17-25 

49 U.S.C. § 13907(d) ..................................................................................12

49 U.S.C. § 20903.......................................................................................25

49 U.S.C. § 47507.......................................................................................25

Pub. L. 80-662..............................................................................................5

Pub. L. 94-210..............................................................................................5

Pub. L. 96-448..............................................................................................2

Pub. L. 104-88..........................................................................................2, 5

RULES:

Fed. R. Evid. 105...................................................................................24, 25

Fed. R. Civ. P. 23.1.....................................................................................23

OTHER AUTHORITIES:

126 Cong. Rec. 28,431 ..................................................................................5

14A Areeda & Hovenkamp, Antitrust Law (5th ed. April 2021)........................21

Black’s Law Dictionary (5th ed. 1979)..........................................................24

H.R. Conf. Rep. No. 1430, 1980 U.S.C.C.A.N. 4110................................... 2, 21

Railroad Deregulation Act of 1979: Hearing on H.R. 4570, 

96th Cong. 425 (1979)..............................................................................19

Webster’s Third New International Dictionary (1976) .......................................9

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GLOSSARY OF ABBREVIATIONS

The following abbreviations and acronyms are used in this brief: 

BNSF BNSF Railway Company

CSXT CSX Transportation, Inc.

DOJ Department of Justice

FTC Federal Trade Commission

Norfolk Southern Norfolk Southern Railway Company

STB Surface Transportation Board

Union Pacific Union Pacific Railroad Company

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STATEMENT OF INTEREST

The United States and the Federal Trade Commission enforce the federal 

antitrust laws and have a strong interest in ensuring that the statute at issue in these

appeals, 49 U.S.C. § 10706(a)(3)(B)(ii), is interpreted correctly and consistent with 

the antitrust laws’ goal of protecting competition. We respectfully submit this brief 

pursuant to Federal Rule of Appellate Procedure 29(a) and D.C. Circuit Rule 29.

STATUTORY PROVISIONS

Relevant statutes and rules are reproduced in the addendum to this brief.

INTRODUCTION AND SUMMARY OF ARGUMENT

Rail carriers compete head-to-head in many respects. But because no single 

railroad serves all points in the United States, carriers work together in handling 

“interline” movements. Interline movements are shipments carried along two or 

more railroads’ tracks under a common arrangement. “Single-line” or “noninterline” shipments are moved by one carrier on its own tracks. Outside of shared

interline traffic, carriers operate like rival service providers in any other industry, 

and they cannot agree on the rates or terms of those competing services.

The statute here, 49 U.S.C. § 10706(a)(3)(B)(ii), provides carriers a limited 

evidentiary protection in antitrust suits. Recognizing that carriers must 

communicate about their interline traffic, Congress provided that “evidence of a 

discussion or agreement” among carriers “shall not be admissible” if the discussion 

or agreement “concerned an interline movement of the rail carrier,” and “would not, 

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considered by itself, violate the [antitrust] laws.” 49 U.S.C. § 10706(a)(3)(B)(ii). 

This provision was enacted in the Staggers Rail Act of 1980, 1 as part of Congress’s

decades-long effort to foster free-market competition and restore antitrust 

enforcement in the rail industry. While it offers carriers certain narrow protections, 

the statute must “be construed to insure that remedies for anti-competitive activities 

remain under existing laws”—especially for unregulated rail traffic, which has 

always been subject to “existing Federal antitrust laws.” H.R. Conf. Rep. No. 1430, 

at 101, 114 (1980), 1980 U.S.C.C.A.N. 4110, 4133, 4146 (Conference Report).

The district court interpreted this provision correctly. It held that, while

Section 10706(a)(3)(B)(ii) protects evidence of discussions and agreements among 

carriers about their shared interline traffic, the statute does not exclude evidence that 

carriers discussed or agreed on competing traffic. In re Rail Freight Fuel Surcharge 

Antitrust Litig., 520 F. Supp. 3d 1, 28-34 (D.D.C. 2021). The court also correctly

held that the statute does not dictate any particular remedy or otherwise divest courts 

of their discretion to redact documents or to admit evidence subject to a limiting 

instruction. Id. at 25-27, 33-34.

 

1 Pub. L. 96-448, § 219(c)(3), 94 Stat. 1927 (Oct. 14, 1980) (originally 

codified as 49 U.S.C. §10706(a)(3)(C)(ii)). The provision was reenacted in full with 

only minor changes, not relevant here, in the ICC Termination Act of 1995, Pub. 

L. 104-88, § 102(a), 109 Stat. 803-04, 812 (Dec. 29, 1995) (changing “carrier” to 

“rail carrier” in certain places, and “clause (I) or (II)” to “subclause (I) or (II)”). This 

brief cites to the current version of the statute.

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This Court should affirm. In the antitrust laws, “Congress tasked courts with 

enforcing a policy of competition.” NCAA v. Alston, 141 S. Ct. 2141, 2147 (2021). 

And in the Staggers Act, “Congress unambiguously expressed its interest in allowing 

free competition, to the maximum extent possible, to govern the financial health of 

the railroad industry.” ICC v. Texas, 479 U.S. 450, 460 (1987).

Yet the carriers’ expansive reading of Section 10706(a)(3)(B)(ii)strikes at the

heart of competition in the rail industry by foreclosing any realistic hope of antitrust 

enforcement in the vast majority of cases involving railroad collusion. This Court 

does “not lightly conclude that Congress enacted such a self-defeating statute.” 

Allen v. District of Columbia, 969 F.3d 397, 404 (D.C. Cir. 2020) (quotations 

omitted). And it should not do so here. Section 10706(a)(3)(B)(ii) offers a limited 

evidentiary protection so that carriers may continue to perform lawful interline 

movements. But it does not protect carriers from evidence that they discussed or 

agreed on the terms of competing traffic. Nor does it saddle plaintiffs with the nearimpossible task of proving antitrust claims with only direct evidence unearthed in a 

fully admissible form with no redactions or limiting instructions. 

At bottom, the carriers want Section 10706(a)(3)(B)(ii) to exclude evidence 

that railroads coordinated the rates and terms of competing traffic but without

expressly agreeing on such matters in any particular communication. That approach 

should be rejected. While Congress undoubtedly understood the value of interline 

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traffic, it also understood the fundamental importance of the antitrust laws, 

particularly in the rail industry where it simultaneously sought to foster competition 

and limit antitrust immunity. Adopting the carriers’ proposed rule, however, would 

create an atextual blind spot in Section 10706(a)(3)(B)(ii) that shields railroads from 

evidence that they committed “the supreme evil of antitrust: collusion,” Verizon 

Comms., Inc. v. Law Offices of Curtis V. Trinko, LLP, 540 U.S. 398, 408 (2004). 

That is not the statute Congress enacted, and the text, structure, context, and history 

of Section 10706(a)(3)(B)(ii) leave no doubt on that point. 

STATEMENT OF THE CASE

A. Legal Background

Railroads have a long history with the antitrust laws. Some of the earliest, 

and most important, Sherman Act decisions struck down railroad cartels. See, e.g., 

United States v. Joint-Traffic Ass’n, 171 U.S. 505 (1898). The Supreme Court made 

clear that, even as to interline traffic, the Sherman Act prohibited anticompetitive 

agreements “among carriers to fix rates” because the “collaboration contemplated” 

in setting interline rates “is of a restrictive nature.” Georgia v. Penn. R.R., 324 U.S. 

439, 456-58 (1945) (involving coercive, discriminatory rate-fixing). Yet “[d]espite

the potential for antitrust liability, railroads continued to act jointly in setting rates.” 

United States v. Bessemer & Lake Erie R. Co., 717 F.2d 593, 595 (D.C. Cir. 1983); 

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see United States v. Pac. & A R & Nav Co., 228 U.S. 87, 101-05 (1913) (upholding 

indictment of railroads and other carriers for fixing rates and excluding rivals).

For a time, Congress gave carriers antitrust immunity when setting prices in 

regulated “rate bureaus.” Reed-Bulwinkle Act of 1948, Pub. L. 80-662, 62 Stat. 473. 

But this experiment only made matters worse for railroads and shippers alike. See, 

e.g., Am. Short Line R.R. Ass’n v. United States, 751 F.2d 107, 109-114 (2d Cir. 

1984). Realizing that this immunity-and-regulation regime was unsustainable, 

Congress spent the next several decades reforming the rail industry to foster 

competition and limit antitrust immunity. See, e.g., Railroad Revitalization and 

Regulatory Reform Act of 1976, Pub. L. 94-210, 90 Stat. 31; ICC Termination Act 

of 1995, Pub. L. 104-88, 109 Stat. 803.

The Staggers Act was a centerpiece of Congress’s efforts “to revitalize the 

railroad industry” through “greater reliance on market forces.” Coal Exporters Ass’n 

of U.S., Inc. v. United States, 745 F.2d 76, 80-81 (D.C. Cir. 1984). As Representative 

Staggers explained, the Act sent “a message” that “the American railroad industry”

is like “any other business, which is best ‘regulated’ by the marketplace.” 126 Cong. 

Rec. 28,431 (1980). To that end, the Staggers Act authorized carriers to provide 

services through unregulated private contracts, and it withdrew nearly all antitrust 

immunity. See 49 U.S.C. §§10706, 10709. Congress made clear that, in the absence 

of regulatory oversight, carriers’ pricing decisions must be driven by market forces 

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and subject to antitrust scrutiny. See Soc’y of Plastics Indus., Inc. v. ICC, 955 F.2d 

722, 729-30 (D.C. Cir. 1992) (emphasizing the Staggers Act’s policy of carriers’ 

setting ratesthrough “competition and the demand for services”).

Congress also gave carriers a limited evidentiary protection in antitrust cases: 

49 U.S.C. § 10706(a)(3)(B)(ii). This provision states that, “[i]n any proceeding” in 

which rail carriers are alleged to have violated the antitrust laws, conspiracy “may 

not be inferred from evidence that two or more rail carriers acted together with 

respect to an interline rate or related matter and that a party to such action took 

similar action with respect to a rate or related matter on another route or traffic.” Id. 

It then provides that “evidence of a discussion or agreement” among “rail carriers, 

or of any rate or other action resulting from such discussion or agreement, shall not 

be admissible if the discussion or agreement” “concerned an interline movement of 

the rail carrier,” and “would not, considered by itself, violate the [antitrust] laws.” 

Id. The provision concludes by noting that, “[i]n any proceeding before a jury, the 

court shall determine whether the requirements” for inadmissibility “are satisfied 

before allowing the introduction of any such evidence.” Id.

B. Factual Background

Between 2003 and 2007, BNSF, Union Pacific, Norfolk Southern, and CSXT

required shippers to pay fuel surcharges. In 2007, the Surface Transportation Board 

found that fuel surcharges calculated as a percentage of a base rate were an 

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“unreasonable” practice as to regulated rail traffic, but the Board lacked jurisdiction 

to address that practice’s legality as to unregulated traffic. Rail Fuel Surcharges, 

2007 WL 201205, at *1, *10 (2007). Shippersthen filed this suit, alleging that the 

carriers violated the Sherman Act by conspiring to fix those sorts of fuel surcharges

for unregulated traffic. In re Rail Freight Fuel Surcharge Antitrust Litig., 725 F.3d 

244, 247-49 (D.C. Cir. 2013).

A central issue in the case is the admissibility of evidence under 49 U.S.C. 

§ 10706(a)(3)(B)(ii). The carriers argued that the statute excludes all documents

“relating to” or “bearing” on interline traffic unless they constitute “direct evidence”

of conspiracy. Defendants’ Motion & Memorandum, at 11-16, No. 07-mc-489 

(Mar. 13, 2020), ECF No. 945. The shippers insisted, however, that the statute

applies only to cases involving regulated traffic and that, even if it applied to this 

case involving unregulated traffic, the statute covered only discussions or 

agreements about individual interline movements, not multiple ones. Plaintiffs’ 

Memorandum in Opposition, at 25-34, No. 07-mc-489 (May 7, 2020), ECF No. 958.

At the district court’s invitation, and after consultation with the Federal Trade 

Commission, Surface Transportation Board, and Department of Transportation, the 

United States filed a statement of interest in support of neither party. The 

government contended that Section 10706(a)(3)(B)(ii), by its terms, applies “[i]n 

any proceeding” where carriers are alleged to have violated the antitrust laws, which 

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necessarily includes cases involving unregulated traffic. Statement of Interest for 

the United States, at 5-6, No. 07-mc-489 (July 28, 2020), ECF No. 969. It also 

explained that the statute excludes only evidence of lawful discussions and 

agreements among carriers about their shared interline traffic. Id. at 6-16.

The district court agreed with the carriers on some issues, and the shippers on 

others. It held that the statute applies to cases involving unregulated traffic. 520 F. 

Supp. 3d at 21-24. It also held that, “to be protected by the statute, an interline 

movement must be an identifiable movement or movements with identifiable 

circumstances.” Id. at 29. But the court concluded that the carriers could exclude 

or limit objectionable evidence through redactions and limiting instructions. Id. at 

25-27, 33-34. Thisinterlocutory appeal under 28 U.S.C. § 1292(b) followed.

ARGUMENT

I. SECTION 10706(a)(3)(B)(ii) PROTECTS ONLY DISCUSSIONS 

AND AGREEMENTS AMONG PARTICIPATING CARRIERS 

ABOUTTHEIR SHARED INTERLINE TRAFFIC

A. Discussions And Agreements About Carriers’ Shared Interline 

Traffic “Concern[] An Interline Movement Of The Rail Carrier”

Section 10706(a)(3)(B)(ii) excludes evidence of discussions and agreements 

that, among other things, “concerned an interline movement of the rail carrier.” The 

district court correctly read this language to cover discussions and agreements

concerning “identifiable interline movements,” but not those “involving single-line” 

or “competing traffic.” 520 F. Supp. 3d at 29-34.

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Statutes must be read as a whole, in light of their context, structure, and 

history. Parker Drilling Mgt. Servs. v. Newton, 139 S. Ct. 1881, 1888-92 (2019). 

Particularly as to “common words” with “more than one meaning,” statutory 

language “may be broad in the abstract, but unambiguously narrower in context.” 

Truck Trailer Manufacturers Ass’n, Inc. v. EPA, 17 F.4th 1198, 1205 (D.C. Cir. 

2021) (quotations omitted). For that reason, “historical background” and “statutory 

context” are critical when construing terms and phrases that might otherwise be 

“‘broad’ and ‘indeterminate.’” Mellouli v. Lynch, 575 U.S. 798, 808-13 & nn.9-11

(2015) (reading “relating to” narrowly based on structure, context, and history).

In Section 10706(a)(3)(B)(ii), “concerned” means “about,” such that a 

discussion or agreement “concern[s]” its subject. See Webster’s Third New Int’l 

Dictionary 470 (1976) (defining “concern” in part as “be about”). The word 

“concern[ed]” is “a connecting term, the scope and meaning of which is defined in 

part by the terms it modifies.” In re Pittsburgh & Lake Erie Props., Inc., 290 F.3d 

516, 519 (3d Cir. 2002). Here, the connected terms are “discussion or agreement” 

and “an interline movement of the rail carrier,” the latter of which refers to the shared 

interline traffic of participating carriers, Rail Freight, 520 F. Supp. 3d at 29-30.

A “discussion or agreement,” then, “concern[s] an interline movement of the 

rail carrier” only where the subject being discussed or agreed upon is the 

participating carriers’ shared interline traffic. While a conversation may “concern[]” 

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several issues in the abstract, this provision does not reach every discussion or 

agreement with “some general relation to” interline traffic, cf. Mellouli, 575 U.S. at 

811-12. Nor does it cover communications discussing or agreeing on single-line 

traffic or rail freight generally, as those are not “an interline movement of the rail 

carrier,” 49 U.S.C. § 10706(a)(3)(B)(ii). See Pittsburgh, 290 F.3d at 519-20 

(holding that a statute governing bankruptcy cases “concerning a railroad” did not 

cover petitions filed by “former railroads seeking bankruptcy adjustment of assets 

and liabilities obtained while they were railroads”).

The carriers read “concerned” differently (Br. 53), arguing that a discussion 

or agreement “concern[s] an interline movement” if it has a “relation to” interline 

traffic or “a practical bearing on interline movements.” But Congress knew how to 

say “related to,” e.g., 49 U.S.C. §10706(a)(3)(A), and so this provision’s use of 

“concerned” shows that Congress intended a different meaning, see Thryv, Inc v. 

Click-To-Call Techs., LP, 140 S. Ct. 1367, 1376 (2020)(“[A] departure in language 

suggests a departure in meaning.”). Plus, the carriers themselves show why 

“practical bearing” fails. They admit (Br. 54) “it would be unnatural to say that 

World War II ‘concerned’ a beach in Normandy.” Yet World War II undoubtedly 

had “a practical bearing on” the beach in Normandy where the D-Day landings 

occurred. By the carriers’ own admission, then, their reading is “unnatural.” 

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Statutory context also forecloses the carriers’ theories. They suggest (Br. 34-

35, 50-54) that a discussion about all rates, even single-line rates, “concern[s] an 

interline movement,” because some conversations concern “more than one thing,” 

and “concerned” does not mean “concerned solely.” But single-line traffic is not 

merely “something else” or just another “topic” (cf. id. 52-59). Railfreight involves 

two mutually exclusive types of “movements”—interline and non-interline—and 

Congress knew that, while carriers collaborate on shared interline traffic, they 

compete for all other traffic. By limiting Section 10706(a)(3)(B)(ii) to discussions 

and agreements that “concerned an interline movement,” Congress necessarily 

excluded from the statute’s protections discussions and agreements about noninterline movements. Otherwise, “interline” “adds nothing to the statute,” Parker, 

139 S. Ct. at 1888, even though that “term occupies so pivotal a place in the statutory 

scheme,” Duncan v. Walker, 533 U.S. 167, 174 (2001). 

The carriers effectively concede as much. They recognize (Br. 40-41) that 

“movement” “refers to rail traffic generally,” and that the “limiting function of 

‘interline’ is to draw a distinction between interline and single-line traffic.” Yet the 

carriers elide that distinction by reading “concerned an interline movement” also to 

mean “concerned” single-line traffic. Statutory text “should not be read to mean the 

exact opposite of what the statute clearly says.” Ohio v. Wright, 992 F.2d 616, 619 

(6th Cir. 1993) (en banc). A conversation may, of course, “concern[] an interline 

USCA Case #21-7093 Document #1927748 Filed: 12/22/2021 Page 20 of 45
12

movement” while also touching on other topics (e.g., news, personal interests, 

weather). But, for the word “interline” to perform its limiting function, a discussion 

or agreement cannot “concern[] an interline movement” if it involves non-interline 

traffic or rail freight generally—else, Congress “could have omitted the term 

[‘interline’] altogether,” Ransom v. FIA Card Servs., 562 U.S. 61, 70 (2011).

Equally flawed is the carriers’ reliance (Br. 58-60) on a statute immunizing 

“discussions or agreements” between motor carriers and agents transporting 

household goods “related solely to” motor-carrier rates, charges, allowances, and 

ownership. 49 U.S.C. §13907(d) (emphasis added). That provision has no bearing 

on Section 10706(a)(3)(B)(ii). The district court did not read “concerned” to mean 

“solely concerned,” and the motor-carrier provision uses a more expansive

root phrase (“related to”) that Congress eschewed in Section 10706(a)(3)(B)(ii), see

pp.10-12, supra. Nat’l Postal Pol’yCouncil v. Postal Reg. Comm’n, 17 F.4th 1184, 

1191 (D.C. Cir. 2021) (rejecting similar argument where “two provisions use 

different words and are not otherwise parallel”).

The carriers’ view also founders on the “of the rail carrier” phrase. As the 

district court correctly recognized, “of the rail carrier” limits the term “interline 

movement,” and confirms that Section 10706(a)(3)(B)(ii) does not exclude 

discussions or agreements about “[all] interline movement[s]” generally, but only a 

particular type of “interline movement”—those handled by the participating carriers. 

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13

520 F. Supp. 3d at 29-30. The carriers concede this point (e.g., Br. 66), but do not 

explain how discussions or agreements about single-line traffic concern shared

traffic at all, let alone shared interline traffic. Nor could they. When carriers discuss 

single-line traffic, they inevitably discuss shipments in which one of them does not 

participate, which means their discussion cannot “concern[] an interline movement 

of the rail carrier.” See Farrell v. Blinken, 4 F.4th 124, 136 (D.C. Cir. 2021) (“[W]e 

interpret statutes as a whole, not in convenient slices.”).

Adopting the carriers’ position would, moreover, undermine Congress’s 

procompetitive objectives by insulating railroads from antitrust liability in waysthat 

approach immunized rate bureaus before the Staggers Act. As this Court held in 

Bessemer, rate-bureau immunity did “not sweep within it” anticompetitive activity 

that “happen[ed] to coincide at points with the legitimate actions of a rate bureau.” 

717 F.2d at 595-602 (affirming carriers’ convictions). Yet the carriers reframe 

Section 10706(a)(3)(B)(ii) to shield them from evidence that they discussed rates for 

unregulated competing traffic if the conversation had some relation to or practical 

bearing on interline traffic (Br. 53-55). This is little more than a de facto immunity 

for anticompetitive actions that “happen to coincide” with interline traffic—behavior 

Congress has never protected, see Bessemer, 717 F.2d at 600-02; Rail Freight, 520 

F. Supp. 3d at 33 (recognizing that “it would make little sense for Congress to have 

limited rate bureaus’ abilities to discuss, agree to, or vote on such competing traffic” 

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14

if Section 10706(a)(3)(B)(ii) protected “these very same kinds of discussions and 

agreements when engaged in by unregulated private contractors”).

B. Discussions And Agreements Need Not List Specific Details To 

“Concern[] An Interline Movement Of The Rail Carrier”

The carriers next assert (Br. 37-51) that Section 10706(a)(3)(B)(ii) covers 

“general” discussions and agreements about interline traffic because “interline 

movement” does not mean “identifiable interline movements” with “identifiable 

circumstances, such as a specific shipper, specific shipments, and specific 

destinations.” This argument misses the mark. 

Specificity is not required, but identifiability is. The carriers admittedly have 

the burden to show that a discussion or agreement “concerned” shared interline 

traffic (Br. 25-26), which means the “risk of non-persuasion” falls on them, see City 

of Winnfield v. FERC, 744 F.2d 871, 877 (D.C. Cir. 1984). Yet the carriers cannot 

sustain that burden unless a court can identify the traffic being discussed or agreed 

upon astheirshared interline traffic. And a court cannot do that based on ambiguous

communications about unidentified traffic. Accord, e.g., Goldman Sachs Grp., Inc. 

v. Arkansas Tchr. Ret. Sys., 141 S. Ct. 1951, 1963 (2021) (noting that the party with 

the burden loses if “evidence is in equipoise” (citation omitted)).

But to the extent the district court’s opinion is read to require “specific routes 

and shippers” in all instances, this Court should clarify that more general discussions 

or agreements may suffice if limited to identifiable shared interline traffic. This does 

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not mean “the statute’s principal concern” is “general discussions about the 

management of shared interline traffic” (cf. Carriers’ Br. 44). Nor does it mean the 

Surface Transportation Board “expressly encouraged” any “general practices” for 

unregulated rates in generally endorsing operational alliances over major mergers

(cf. id. 49-50). But it does suggest that even a more general discussion about shared 

interline traffic might “concern[] an interline movement” if it is about “identifiable” 

interline traffic “with identifiable circumstances,” Rail Freight, 520 F. Supp. 3d at 

29-31. The more specific the discussion is, the easier the analysis becomes, and it 

was thus logical for the district court to describe examples of qualifying discussions 

and agreements in specific terms. But the statute does not require shipment-byshipment or route-by-route discussions and agreementsin every instance.

By the same token, a discussion or agreement may concern shared interline 

traffic even if it addresses issues with “wider implications” (Carriers’ Br. 56-57), or 

matters “relevant to both interline and single-line moves” (Rail Associations’ Amici 

Br. 20-21). Seasonal variations that impact the price of two carriers’ interline traffic, 

for example, may also impact their competing traffic. But so long as the carriers’ 

discussions or agreements about those variations concern traffic that can be 

identified as their shared interline traffic, they may “concern[] an interline movement 

of the rail carrier,” regardless of their specificity.

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Indeed, when handling interline traffic, carriers act as joint venturers who 

generally may set the price of their joint service consistent with Section 1 of the 

Sherman Act, as long as they do not discuss rates outside the venture. See Texaco 

Inc. v. Dagher, 547 U.S. 1, 5-8 (2006) (upholding venture’s “pricing policy” on 

venture products). This caveat is critical. Joint ventures are not “exempt from the 

usual operation of the antitrust laws.” Alston, 141 S. Ct. at 2160; Smith v. Pro 

Football, Inc., 593 F.2d 1173, 1176-79, 1183-89 (D.C. Cir. 1978) (invalidating NFL 

draft rule despite “joint-venture status”). That is particularly so when joint ventures

limit participants’ ability to compete in markets where they remain rivals. See 

Alston, 141 S. Ct. at 2155-60 (invalidating certain NCAA rules limiting competition 

for student-athletes); Polygram Holding, Inc. v. FTC, 416 F.3d 29, 37 (D.C. Cir. 

2005) (holding joint venture violated antitrust laws by agreeing not to discount nonventure products). Because carriers resemble joint venturers only as to their shared 

interline traffic, they must not be allowed to use discussions or agreements about 

unidentified traffic as a bootstrap for fixing non-interline rates. 

This Court, therefore, should not take at face value the carriers’ suggestions

(Br. 39-50) that whenever their executives iron out “pricing and accounting issues” 

in “general terms” the discussion or agreement necessarily “concern[s] an interline 

movement.” While the carriers’ amici labor to show (Br. 18-21) the importance of 

interline communications, they do not deny that their own accounting rules and 

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payment methods allow carriers to conduct interline business without fixing singleline rates or involving nonparticipating rivals, see Rail Freight, 520 F. Supp. at 14 

n.13; Policy Alternatives to Increase Competition, 2009 WL 996819, at *4 n.5 

(S.T.B. 2009). Accordingly, even if Section 10706(a)(3)(B)(ii) does not demand 

exacting specificity in all instances, ambiguous discussions among the carriers’ “top 

executives” about “higher-level cooperation” on unidentified traffic do not 

“concern[] an interline movement of the rail carrier” (cf. Carriers’ Br. 6-7).

C. The “Considered By Itself” Clause Retains Its Full Meaning When 

The Statute Is Properly Limited To Discussions And Agreements

About Carriers’ Shared Interline Traffic

Contrary to the carriers’ assertions, a proper reading of the “concerned” clause 

does not render any part of Section 10706(a)(3)(B)(ii) superfluous. The statute

requires that, to be excluded, a “discussion or agreement” must also be one that 

“would not, considered by itself, violate the [antitrust] laws.” The carriers maintain

(Br. 38, 61-63) that this clause is “nullified” if “concerned an interline movement of 

the rail carrier” covers only discussions and agreements “about specifically identified 

interline movements,” because such discussions and agreements are supposedly 

“never unlawful” by themselves.

This objection lacks merit. Because “joint ventures have no immunity from 

the antitrust laws,” NCAA v. Bd. of Regents, 468 U.S. 85, 113 (1984), carriers’ 

discussions and agreements about shared interline traffic could indeed be unlawful 

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by themselves, see, e.g., Delaware & Hudson Ry. Co. v. Consol. Rail Corp., 902 

F.2d 174, 177-81 (2d Cir. 1990) (holding railroad would violate antitrust laws by 

refusing to handle interline traffic with smaller carrier unless it captured nearly all 

of their joint rates). The “laws” mentioned in Section 10706(a)(3)(B)(ii) include 

more than just the Sherman Act. They also include “the Clayton Act (15 U.S.C. 12, 

et seq.), the Federal Trade Commission Act (15 U.S.C. 41, et seq.), sections 73 and 

74 of the Wilson Tariff Act (15 U.S.C. 8 and 9), and the [Robinson-Patman] Act of 

June 19, 1936 (15 U.S.C. 13, 13a, 13b, 21a)”—as well as “any similar State law.” 

49 U.S.C. §§ 10706(a)(2)(A), 10706(a)(3)(B)(ii). 

Discussions and agreements concerning interline traffic could, therefore, 

violate “the [antitrust] laws” many ways. For example, carriers might freeze out 

price-cutting competitors by agreeing to exclude them from three- or four-part 

interline movements. They might also use interline discussions to implement

predatory-pricing schemes and other monopolistic practices, such as by requiring a 

smaller carrier to accept unreasonable rate divisions under threat of losing interline 

business. Additionally, when Section 10706(a)(3)(B)(ii) was enacted, it was perse 

illegal under the Sherman Act for parties to agree on prices if they were in, as the 

carriers’ described their arrangements, “a vertical supply relationship,” Rail Freight, 

520 F. Supp. at 13, and today such restraints are subject to rule-of-reason scrutiny,

Leegin Creative Leather Prod., Inc. v. PSKS, Inc., 551 U.S. 877 (2007). The 

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“considered by itself” clause is thus anything but surplusage under a correct reading

of “concerned an interline movement” (supra Part I.A-I.B). See Scheidler v. Nat’l 

Org. for Women, Inc., 547 U.S. 9, 22-23 (2006) (holding different clauses of same 

statutory sentence are not superfluous where each does some “additional work”). 2

The carriers see surplusage where none exists because they reimagine the 

statute as an inflexible “stepwise” framework, in which the “considered by itself” 

clause is a mere “safety valve” requiring shippers to prove that each discussion or 

agreement conclusively “is unlawful.” Carriers’ Br. 18, 31-35, 61-63. But 

Section 10706(a)(3)(B)(ii) provides grounds for inadmissibility; it does not 

necessarily prescribe a mandatory sequence. See United States v. Hald, 8 F.4th 932, 

941-43 (10th Cir. 2021) (holding statutory prerequisites do “not mandate a particular 

ordering”). Besides, had Congress wanted plaintiffs to prove illegality pretrial on a 

discussion-by-discussion or agreement-by-agreement basis, it would not have 

 

2 Contrary to the carriers’ suggestions (Br. 14, 36, 62), the Department of 

Justice and Federal Trade Commission have not deemed interline discussions and 

agreements per se lawful. A Department official once testified that “the antitrust 

laws do not proscribe” such discussions and agreements “in the ordinary situation,”

and a Commission staff member (speaking for himself) noted that interline traffic 

itself did not create “antitrust problems.” Railroad Deregulation Act of 1979: 

Hearing on H.R. 4570, 96th Cong. 425 (1979) (statement of Donald L. Flexner, 

DOJ); see id. 501, 513 (statement of David I. Wilson, FTC). But the latter comment 

was not an “FTC statement to Congress” (cf. Carriers’ Br. 36), and neither remark 

suggests interline discussions and agreements are “never unlawful” (cf. id. 62). 

Nothing in the ensuing decades alters this conclusion. See Alston, 141 S. Ct. at 2155-

60 (noting joint ventures are not “categorically exempt” from the antitrust laws).

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conditioned the inadmissibility of such evidence on a showing that the “discussion 

or agreement would not, considered by itself, violate the [antitrust] laws,” 49 U.S.C. 

§ 10706(a)(3)(B)(ii) (emphasis added). See Maui v. Hawaii Wildlife Fund, 140 S. 

Ct. 1462, 1473-74 (2020) (noting Congress generally does not choose an “indirect 

route to convey an important and easily expressed message” (quotations omitted)).

To be sure, “considered by itself” does not mean “considered with everything 

else” (Carriers’ Br. 64). But the statute requires courts to consider “the [antitrust] 

laws,” which generally look to anticompetitive effects, see NCAA, 468 U.S. at 104 

(“[T]he criterion to be used in judging the validity of a restraint on trade is its impact 

on competition.”). While this need not entail a full rule-of-reason inquiry for each 

discussion or agreement, see Alston, 141 S. Ct. at 2155-57, it could involve analyzing 

a discussion or agreement in light of the carriers’ market power, potential harm to 

competition, and any proffered justifications. In this way, the discussion or 

agreement is still “considered by itself” vis-à-vis other discussions and agreements 

in the record; it is just not considered in a vacuum, isolated from the competitive 

effects that could determine its legality under “the [antitrust] laws.” 

A contrary approach would exclude nearly all interline discussions or 

agreements that are not “‘direct evidence’ of an antitrust conspiracy,” Defendants’ 

Motion, at 16, ECF No. 945, see p.7, supra. Often called the “smoking gun,” direct 

evidence usually means a written agreement, a recorded confession, or the testimony 

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21

of a cooperating witness. Am. Chiropractic Ass’n v. Trigon Healthcare, Inc., 367 

F.3d 212, 226 (4th Cir. 2004). But such “evidence is extremely rare in antitrust 

cases,” id., and “frequently impossible for a plaintiff to obtain.” Ne. Tel. Co. v. 

AT&T, 651 F.2d 76, 85 (2d Cir. 1981). Antitrust violations are thus nearly always 

proven with circumstantial evidence. See Norfolk Monument Co. v. Woodlawn 

Mem’l Gardens, 394 U.S. 700, 704 (1969). After all, “were the law otherwise, such 

conspiracies would flourish; profit, rather than punishment, would be the reward.” 

Flintkote Co. v. Lysfjord, 246 F.2d 368, 374-75 (9th Cir. 1957) (quotations omitted).

Under the carriers’ approach, however, direct evidence would likely be the 

only thing Section 10706(a)(3)(B)(ii) allows—evidence that is “unlawful in itself,” 

as in “an agreement on rates or practices for competitive traffic,” Carriers’ Br. 35, 

64. But “insistence upon direct proof would remove too many conspiracies from the 

embrace of the antitrust laws.” 14A Areeda & Hovenkamp, Antitrust Law ¶1410c 

(5th ed. April 2021). Plaintiffs would be out of luck no matter how compelling their

circumstantial evidence, and even if each discussion or agreement, by itself, just as 

likely as not violated the antitrust laws, see pp.19-20, supra. This is hardly a recipe 

for “reducing error” (cf. Carriers’ Br. 36-37), much less for ensuring “that remedies 

for anti-competitive activities remain under existing laws,” Conference Report 114.

Nothing in Section 10706(a)(3)(B)(ii) suggests Congress intended to impose 

such extraordinary limits on antitrust plaintiffs in a statutory scheme designed to 

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22

foster price competition and curtail antitrust immunity. See Logan v. United States, 

552 U.S. 23, 35 (2007) (“We are disinclined to say that what Congress imposed with 

one hand . . . it withdrew with the other.”). As the carriers emphasize (Br. 58-59), 

this provision affords them no immunity. Just so. That is why their interpretation 

fails. Allowing only “extremely rare” and “frequently impossible” evidence (see 

pp.20-21, supra) would twist this limited evidentiary protection into a de facto 

immunity for sophisticated rate-fixing cartels and “seriously undercut the 

effectiveness of the antitrust laws,” In re Petroleum Prod. Antitrust Litig., 906 F.2d 

432, 439 (9th Cir. 1990) (describing consequences of requiring “direct evidence”). 

II. SECTION 10706(a)(3)(B)(ii) CAN BE IMPLEMENTED THROUGH

REDACTIONS AND LIMITING INSTRUCTIONS

The district court correctly held that Section 10706(a)(3)(B)(ii) does not 

mandate “the blunt remedy of excluding entire documents.” 520 F. Supp. 3d at 26. 

Congress legislates against a background of default adjudicatory principles that are

presumptively incorporated absent clear contrary language. Nken v. Holder, 556 

U.S. 418, 432-33 (2009)(“[W]e are loath to conclude that Congress would, ‘without 

clearly expressing such a purpose, deprive the Court of Appeals of its customary 

power to stay orders under review.’”). This is particularly so with the Federal Rules, 

which courts will harmonize with later-enacted statutes where possible. Gaubert v. 

Fed. Home Loan Bank Bd., 863 F.2d 59, 66-68 (D.C. Cir. 1988) (holding corporateUSCA Case #21-7093 Document #1927748 Filed: 12/22/2021 Page 31 of 45
23

receivership statute, 12 U.S.C. § 1464, did not displace preexisting shareholderdemand requirement of Federal Rule of Civil Procedure 23.1).

Congress enacted Section 10706(a)(3)(B)(ii) against the backdrop of trial 

courts’ “inherent authority” to manage the admission of evidence. See, e.g., Clapp 

v. Macfarland, 20 App. D.C. 224, 229 (C.A.D.C. 1902) (allowingcourt to “order the 

taking of testimony, in any manner which it thinks expedient”). This authority 

includes the “discretionary power to delete objectionable portions” of evidence, in 

addition to other techniques adopted in the Federal Rules, such as “limiting 

instructions.” United States v. Lemonakis, 485 F.2d 941, 949-50 (D.C. Cir. 1973)

(playing audio recording with “limiting instructions” and “deletions” of hearsay). 

As with other “long-established and familiar principles” of judicial authority, courts 

retain these powers, too, unless “a statutory purpose to the contrary is evident.” See 

Nken, 556 U.S. at 433 (quotations omitted).

Statutory clarity is especially crucial here. When Congress enacted 

Section 10706(a)(3)(B)(ii), it was well-settled that courts interpreting a statute must

“avoid a construction that would suppress otherwise competent evidence.” St. Regis 

Paper Co. v. United States, 368 U.S. 208, 218 (1961) (allowing disclosure of 

confidential census reports); see Pierce Cty., Wash. v. Guillen, 537 U.S. 129, 144-

45 (2003) (similar, highway-safety reports). Equally well-settled was the 

admonition that statutes and other legal rules should not be applied to “in effect

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24

confer” even a “partial immunity from [antitrust] liability.” Lawlor v. Nat’l Screen 

Serv. Corp., 349 U.S. 322, 329 (1955)(claim preclusion); United States v. Nat’l City 

Lines, 334 U.S. 573, 575-97 (1948) (forum non conveniens); see Radovich v. NFL, 

352 U.S. 445, 454 (1957) (holding courts “should not add requirements to burden 

the private [antitrust] litigant beyond what is specifically set forth by Congress”).

Read in light of these principles, Section 10706(a)(3)(B)(ii) does not divest 

courts of the ability to redact documents, or displace their authority to issue limiting 

instructions under Federal Rule of Evidence 105. The statute does not mention 

documents or instructions at all. It addresses evidence. And a single passage of one 

document could constitute “evidence of a discussion or agreement” that “concerned 

an interline movement of the rail carrier.” See Black’s Law Dictionary 498 (5th ed. 

1979) (defining “evidence” as information “offered to prove the existence or 

nonexistence of a fact”). But that does not render the entire document inadmissible 

if it otherwise discusses single-line traffic. The excludable passage can be redacted 

and the rest admitted. This comports with Section 10706(a)(3)(B)(ii) because the 

“evidence” that “shall not be admissible”—i.e., the passage that “concerned an

interline movement of the rail carrier”—will not, in fact, be admitted.

Similar logic counsels in favor of allowing limiting instructions where 

appropriate. Despite acknowledging (Br. 71-72) that Rule 105 permits such 

instructions, and that the statute “says nothing about” the issue, the carriers assert 

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25

that Section 10706(a)(3)(B)(ii) prohibits limiting instructions. But statutory silence

rarely displaces a preexisting Federal Rule, see Gaubert, 863 F.2d at 66-68, and here, 

Rule 105 and Section 10706(a)(3)(B)(ii) can be harmonized because a document 

inadmissible as “evidence of a discussion or agreement” could still be admitted as 

evidence of, say, a carrier’s state of mind. Take for example an internal agenda 

prepared by one interline carrier before meeting with another. Even assuming such 

documents could qualify for exclusion, a court could instruct the jury to consider the 

agenda only to determine if the carrier that created it intended to conspire, not to 

determine if any discussions or agreements occurred. The agenda would thus not be 

“evidence of a discussion or agreement” among carriers; it would be evidence of one 

carrier’s motives or intent, which Section 10706(a)(3)(B)(ii) does not bar.

The carriers nonetheless assert (Br. 69-77) that, because the statute says “shall 

not be admissible,” evidence must be excluded in full for all purposes. But when 

Congress wants to exclude evidence in full, it does so expressly, see St. Regis, 368 

U.S. at 218 & nn.8-9, often by specifying that “[n]o part” of a particular document 

“may be admitted into evidence or used for any other purpose,” 49 U.S.C. § 47507 

(noise-exposure maps) (emphases added); see id. §20903 (similar, railroad-accident 

reports). The absence of such language in Section 10706(a)(3)(B)(ii) undermines

the carriers’ efforts to engraft similar limitations onto the statute. See Marx v. Gen. 

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26

Revenue Corp., 568 U.S. 371, 377-84 (2013) (“[E]xplicit language in other statutes 

cautions against inferring a limitation.”).

A contrary approach would, moreover, foist on antitrust plaintiffs unworkable 

evidentiary burdensthat Congress did not expressly require. Private suits are critical 

to antitrust enforcement, but litigating them can be exceptionally difficult since 

“proof is largely in the hands of the alleged conspirators.” Norfolk, 394 U.S. at 704; 

see Andrx Pharms., Inc. v. Biovail Corp. Int’l, 256 F.3d 799, 805 (D.C. Cir. 2001) 

(recognizing private antitrust litigation “increases the likelihood that violators will 

be discovered”). Relegating antitrust plaintiffs to using only documents that emerge 

from discovery fully admissible would severely weaken antitrust enforcement and 

draw carriers a roadmap for evading the antitrust laws. Congress would not have

buried in the Staggers Act a sub-provision that so gravely undermined the

procompetitive objectives of the Act as a whole. See Maui, 140 S. Ct. at 1473-74 

(rejecting interpretation that would create an “obvious loophole” and “facilitate 

evasion of the law” (quotations omitted)).

CONCLUSION

The district court’s judgment should be affirmed.

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Respectfully submitted. 

s/ Bryan J. Leitch

JONATHAN S. KANTER

Assistant Attorney General

JOEL MARCUS

Deputy General Counsel

MARK S. HEGEDUS

Attorney

FEDERAL TRADE COMMISSION

600 Pennsylvania Ave., NW

Washington, D.C. 20580

DANIEL E. HAAR

ROBERT B. NICHOLSON

BRYAN J. LEITCH

Attorneys

U.S. DEPARTMENT OF JUSTICE

ANTITRUST DIVISION

950 Pennsylvania Ave., N.W.

Room 3224

Washington, D.C. 20530-0001

Telephone: (202) 335-9366

Email: Bryan.Leitch@usdoj.gov

Counsel for Amici Curiae

December 22, 2021

USCA Case #21-7093 Document #1927748 Filed: 12/22/2021 Page 36 of 45
CERTIFICATE OF COMPLIANCE

1. This brief complies with the type-volume limit of Fed. R. App. 

P. 29(a)(5) and 32(a)(7)(B), and D.C. Circuit Rule 32(e)(3), because, excluding the 

parts exempted by Fed. R. App. P. 32(f) and D.C. Circuit Rule 32(e)(1), the brief 

contains 6,173 words.

2. This brief complies with the typeface requirements of Fed. R. App. 

P. 32(a)(5) and the type-style requirements of Fed. R. App. P. 32(a)(b) because the 

brief has been prepared in Microsoft Word 2010, using 14-point Times New Roman

font, a proportionally spaced typeface. 

s/ Bryan J. Leitch

Bryan J. Leitch

Counsel for the United States

USCA Case #21-7093 Document #1927748 Filed: 12/22/2021 Page 37 of 45
STATUTORY ADDENDUM

Table of Contents

49 U.S.C. § 10706 SA1

49 U.S.C. § 47507 SA4

49 U.S.C. § 20903 SA5

Federal Rule of Evidence 105 SA6

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§ 10706 TITLE 49-TRANSPORTATION Page 706 

(A) required under section 10741, 10742, or 11102

of this title; 

(B) inclusion of those lines would make the

through route unreasonably long when compared 

with a practicable alternative through route that 

could be established; or 

(C) the Board decides that the proposed through

route is needed to provide adequate, and more 

efficient or economic, transportation. 

The Board shall give reasonable preference, subject to this subsection, to the rail carrier originating the traffic when prescribing through routes. 

(b) The Board shall prescribe the division of

joint rates to be received by a rail carrier providing transportation subject to its jurisdiction 

under this part when it decides that a division of 

joint rates established by the participating carriers under section 10703 of this title, or under a 

decision of the Board under subsection (a) of this 

section, does or will violate section 10701 of this 

title. 

(c) If a division of a joint rate prescribed under

a decision of the Board is later found to violate 

section 10701 of this title, the Board may decide 

what division would have been reasonable and order adjustment to be made retroactive to the date 

the complaint was filed, the date the order for an 

investigation was made, or a later date that the 

Board decides is justified. The Board may make 

a decision under this subsection effective as part 

of its original decision. 

(Added Pub. L. 104-88, title I, § 102(a), Dec. 29, 1995, 

109 Stat. 811.) 

PRIOR PROVISIONS 

Prior sections 10705 and 10705a were omitted in the 

general amendment of this subtitle by Pub. L. 104-88, 

§ 102(a).

Section 10705, Pub. L. 95-473, Oct. 17, 1978, 92 Stat. 1375;

Pub. L. 96-296, § 22(b)-{g), July 1, 1980, 94 Stat. 813; Pub.

L. 96-448, title II, § 218, Oct. 14, 1980, 94 Stat. 1925; Pub. L.

97-449, § 5(g)( 4), Jan. 12, 1983, 96 Stat. 2443, related to authority for through routes, joint classifications, rates,

and divisions prescribed by Interstate Commerce Commission. See sections 10705 and 13701 of this title.

Section 10705a, added Pub. L. 96-448, title II, § 217(a)(l),

Oct. 14, 1980, 94 Stat. 1916; amended Pub. L. 103-272, §4(j)(20),

July 5, 1994, 108 Stat. 1369, related to joint rate surcharges and cancellations.

EFFECTIVE DATE 

Section effective Jan. 1, 1996, except as otherwise provided in Pub. L. 104-88, see section 2 of Pub. L. 104-88, set 

out as a note under section 1301 of this title. 

§ 10706. Rate agreements: exemption from antitrust laws

(a)(l) In this subsection-

(A) the term "affiliate" means a person controlling, controlled by, or under common control or ownership with another person and "ownership'' refers to equity holdings in a business 

entity of at least 5 percent; 

(B) the term "single-line rate" refers to a rate

or allowance proposed by a single rail carrier 

that is applicable only over its line and for which 

the transpartation (exclusive of terminal services by switching, drayage or other terminal 

carriers or agencies) can be provided by that 

carrier; and 

(C) the term "practicably participates in the

movement'' shall have such meaning as the Board 

shall by regulation prescribe. 

(2)(A) A rail carrier providing transportation 

subject to the jurisdiction of the Board under this 

part that is a party to an agreement of at least 2 

rail carriers that relates to rates (including charges 

between rail carriers and compensation paid or 

received for the use of facilities and equipment), 

classifications, divisions, or rules related to them, 

or procedures for joint consideration, initiation, 

publication, or establishment of them, shall apply 

to the Board for approval of that agreement under this subsection. The Board shall approve the 

agreement only when it finds that the making 

and carrying out of the agreement will further 

the transportation palicy of section 10101 of this 

title and may require compliance with conditions 

necessary to make the agreement further that 

policy as a condition of its approval. If the Board 

approves the agreement, it may be made and carried out under its terms and under the conditions 

required by the Board, and the Sherman Act (15 

U.S.C. 1, et seq.), the Clayton Act (15 U.S.C. 12, et 

seq.), the Federal Trade Commission Act (15 U.S.C. 

41, et seq.), sections 73 and 74 of the Wilson Tariff 

Act (15 U.S.C. 8 and 9), and the Act of June 19, 1936 

(15 U.S.C. 13, 13a, 13b, 21a) do not apply to parties 

and other persons with respect to making or carrying out the agreement. However, the Board may 

not approve or continue approval of an agreement 

when the conditions required by it are not met or 

if it does not receive a verified statement under 

subparagraph (B) of this paragraph. 

(B) The Board may approve an agreement under

subparagraph (A) of this paragraph only when 

the rail carriers applying for approval file a verified statement with the Board. Each statement 

must specify for each rail carrier that is a party 

to the agreement-

(i) the name of the carrier;

(ii) the mailing address and telephone number

of its headquarter's office; and 

(iii) the names of each of its affiliates and

the names, addresses, and affiliates of each of 

its officers and directors and of each person, 

together with an affiliate, owning or controlling any debt, equity, or security interest in it 

having a value of at least $1,000,000. 

(3)(A) An organization established or continued 

under an agreement approved under this subsection shall make a final disposition of a rule or 

rate docketed with it by the 120th day after the 

proposal is docketed. Such an organization may 

not-

(i) permit a rail carrier to discuss, to participate in agreements related to, or to vote on single-line rates proposed by another rail carrier, 

except that for purposes of general rate increases 

and broad changes in rates, classifications, rules, 

and practices only, if the Board finds at any 

time that the implementation of this clause is 

not feasible, it may delay or suspend such implementation in whole or in part; 

(ii) permit a rail carrier to discuss, to participate in agreements related to, or to vote on 

rates related to a particular interline movement 

unless that rail carrier practicably participates 

in the movement; or 

(iii) if there are interline movements over two

or more routes between the same end points, 

permit a carrier to discuss, to participate in 

agreements related to, or to vote on rates exSA1

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TITLE 49-TRANSPORTATION

cept with a carrier which forms part of a particular single route. If the Board finds at any

time that the implementation of this clause is

not feasible, it may delay or suspend such implementation in whole or in part.

(B)(i) In any proceeding in which a party alleges that a rail carrier voted or agreed on a rate

or allowance in violation of this subsection, that

party has the burden of showing that the vote or

agreement occurred. A showing of parallel behavior does not satisfy that burden by itself.

(ii) In any proceeding in which it is alleged

that a carrier was a party to an agreement, conspiracy, or combination in violation of a Federal

law cited in subsection (a)(2)(A) of this section or

of any similar State law, proof of an agreement,

conspiracy, or combination may not be inferred

from evidence that two or more rail carriers acted together with respect to an interline rate or

related matter and that a party to such action

took similar action with respect to a rate or related matter on another route or traffic. In any

proceeding in which such a violation is alleged,

evidence of a discussion or agreement between or

among such rail carrier and one or more other

rail carriers, or of any rate or other action resulting from such discussion or agreement, shall

not be admissible if the discussion or agreement-

(I) was in accordance with an agreement approved under paragraph (2) of this subsection; or

(II) concerned an interline movement of the

rail carrier, and the discussion or agreement

would not, considered by itself, violate the laws

referred to in the first sentence of this clause.

In any proceeding before a jury, the court shall

determine whether the requirements of subclause

(I) or (II) are satisfied before allowing the introduction of any such evidence.

(C) An organization described in subparagraph

(A) of this paragraph shall provide that transcripts

or sound recordings be made of all meetings, that

records of votes be made, and that such transcripts or recordings and voting records be submitted to the Board and made available to other

Federal agencies in connection with their statutory responsibilities over rate bureaus, except that

such material shall be kept confidential and shall

not be subject to disclosure under section 552 of

title 5, United States Code.

(4) Notwithstanding any other provision of this

subsection, one or more rail carriers may enter

into an agreement, without obtaining prior Board

approval, that provides solely for compilation, publication, and other distribution of rates in effect

or to become effective. The Sherman Act (15 U.S.C.

1 et seq.), the Clayton Act (15 U.S.C. 12 et seq.),

the Federal Trade Commission Act (15 U.S.C. 41 et

seq.), sections 73 and 74 of the Wilson Tariff Act

(15 U.S.C. 8 and 9), and the Act of June 19, 1936 (15

U.S.C. 13, 13a, 13b, 21a) shall not apply to parties

and other persons with respect to making or carrying out such agreement. However, the Board may,

upon application or on its own initiative, investigate whether the parties to such an agreement

have exceeded its scope, and upon a finding that

they have, the Board may issue such orders as are

necessary, including an order dissolving the agreement, to ensure that actions taken pursuant to

the agreement are limited as provided in this paragraph.

(5)(A) Whenever two or more shippers enter into

an agreement to discuss among themselves that

relates to the amount of compensation such shippers propose to be paid by rail carriers providing

transportation subject to the jurisdiction of the

Board under this part, for use by such rail carriers of rolling stock owned or leased by such

shippers, the shippers shall apply to the Board

for approval of that agreement under this paragraph. The Board shall approve the agreement

only when it finds that the making and carrying

out of the agreement will further the transportation policy set forth in section 10101 of this title

and may require compliance with conditions necessary to make the agreement further that policy

as a condition of approval. If the Board approves

the agreement, it may be made and carried out

under its terms and under the terms required by

the Board, 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. The Board shall

approve or disapprove an agreement under this

paragraph within one year after the date application for approval of such agreement is made.

(B) If the Board approves an agreement described

in subparagraph (A) of this paragraph and the shippers entering into such agreement and the rail

carriers proposing to use rolling stock owned or

leased by such shippers, under payment by such

carriers or under a published allowance, are unable

to agree upon the amount of compensation to be

paid for the use of such rolling stock, any party

directly involved in the negotiations may require

that the matter be settled by submitting the issues in dispute to the Board. The Board shall render

a binding decision, based upon a standard of reasonableness and after taking into consideration any

past precedents on the subject matter of the negotiations, no later than 90 days after the date of the

submission of the dispute to the Board.

(C) Nothing in this paragraph shall be construed

to change the law in effect prior to October 1, 1980,

with respect to the obligation of rail carriers to

utilize rolling stock owned or leased by shippers.

(b) The Board may require an organization established or continued under an agreement approved under this section to maintain records and

submit reports. The Board may inspect a record

maintained under this section.

(c) The Board may review an agreement approved under subsection (a) of this section and

shall change the conditions of approval or terminate it when necessary to comply with the public

interest and subsection (a). The Board shall postpone the effective date of a change of an agreement under this subsection for whatever period it

determines to be reasonably necessary to avoid

unreasonable hardship.

(d) The Board may begin a proceeding under

this section on its own initiative or on application. Action of the Board under this section-

(1) approving an agreement;

(2) denying, ending, or changing approval;

(3) prescribing the conditions on which approval is granted; or

(4) changing those conditions,

has effect only as related to application of the

antitrust laws referred to in subsection (a) of this

section.

Page 707 S10706

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TITLE 49-TRANSPORTATION

(e)(1) The Federal Trade Commission, in consultation with the Antitrust Division of the Department of Justice, shall prepare periodically an assessment of, and shall report to the Board on-

(A) possible anticompetitive features of-

(i) agreements approved or submitted for approval under subsection (a) of this section; and

(ii) an organization operating under those

agreements; and

(B) possible ways to alleviate or end an anticompetitive feature, effect, or aspect in a manner that will further the goals of this part and

of the transportation policy of section 10101 of

this title.

(2) Reports received by the Board under this

subsection shall be published and made available

to the public under section 552(a) of title 5.

(Added Pub. L. 104-88, title I, § 102(a), Dec. 29, 1995,

109 Stat. 812; amended Pub. L. 104-287, § 5(24), Oct.

11, 1996, 110 Stat. 3390.)

REFERENCES IN TEXT

The Sherman Act, referred to in subsec. (a)(2)(A), (4),

is act July 2, 1890, ch. 647, 26 Stat. 209, as amended,

which is classified to sections 1 to 7 of Title 15, Commerce and Trade. For complete classification of this Act

to the Code, see Short Title note set out under section 1

of Title 15 and Tables.

The Clayton Act, referred to in subsec. (a)(2)(A), (4), is

act Oct. 15, 1914, ch. 323, 38 Stat. 730, as amended, which

is classified generally to sections 12, 13, 14 to 19, 21, and

22 to 27 of Title 15 and sections 52 and 53 of Title 29,

Labor. For further details and complete classification of

this Act to the Code, see References in Text note set out

under section 12 of Title 15 and Tables.

The Federal Trade Commission Act, referred to in subsec. (a)(2)(A), (4), is act Sept. 26, 1914, ch. 311, 38 Stat.

717, as amended, which is classified generally to subchapter I (§41 et seq.) of chapter 2 of Title 15. For complete classification of this Act to the Code, see section 58

of Title 15 and Tables.

Sections 73 and 74 of the Wilson Tariff Act, referred to

in subsec. (a)(2)(A), (4), are sections 73 and 74 of act Aug.

27, 1894, ch. 349, 28 Stat. 570, which enacted sections 8

and 9, respectively, of Title 15.

Act of June 19, 1936, referred to in subsec. (a)(2)(A), (4),

is act June 19, 1936, ch. 592, 49 Stat. 1526, popularly known

as the Robinson-Patman Anti-discrimination Act and also

as the Robinson-Patman Price Discrimination Act, which

enacted sections 13a, 13b, and 21a of Title 15 and amended section 13 of Title 15. For complete classification of

this Act to the Code, see Short Title note set out under

section 13 of Title 15 and Tables.

PRIoR PRovISIONS

A prior section 10706, Pub. L. 95-473, Oct. 17, 1978, 92

Stat. 1377; Pub. L. 96-258, § 1(7), June 3, 1980, 94 Stat. 426;

Pub. L. 96-296, § 14(a), (c), (d), July 1, 1980, 94 Stat. 803,

808; Pub. L. 96-448, title II, § 219(a)-(e), 224(b), Oct. 14,

1980, 94 Stat. 1926-1929; Pub. L. 97-261, §10(a)-(d), Sept.

20, 1982, 96 Stat. 1109, 1110; Pub. L. 98-216, § 2(12), Feb. 14,

1984, 98 Stat. 5; Pub. L. 99-521, § 7(c), Oct. 22, 1986, 100

Stat. 2995, related to exemption from antitrust laws of

rate agreements, prior to the general amendment of this

subtitle by Pub. L. 104-88, § 102(a). See sections 10706 and

13703 of this title.

AMENDMENTS

1996-Subsec. (a)(5)(C). Pub. L. 104-287 substituted "October 1, 1980," for "the effective date of the Staggers

Rail Act of 1980".

EFFECTIVE DATE

Section effective Jan. 1, 1996, except as otherwise provided in Pub. L. 104-88, see section 2 of Pub. L. 104-88, set

out as a note under section 1301 of this title.

§ 10707. Determination of market dominance in

rail rate proceedings

(a) In this section, "market dominance" means

an absence of effective competition from other

rail carriers or modes of transportation for the

transportation to which a rate applies.

(b) When a rate for transportation by a rail carrier providing transportation subject to the jurisdiction of the Board under this part is challenged

as being unreasonably high, the Board shall determine whether the rail carrier proposing the

rate has market dominance over the transportation to which the rate applies. The Board may

make that determination on its own initiative or

on complaint. A finding by the Board that the

rail carrier does not have market dominance is

determinative in a proceeding under this part related to that rate or transportation unless changed

or set aside by the Board or set aside by a court

of competent jurisdiction.

(c) When the Board finds in any proceeding that

a rail carrier proposing or defending a rate for

transportation has market dominance over the

transportation to which the rate applies, it may

then determine that rate to be unreasonable if it

exceeds a reasonable maximum for that transportation. However, a finding of market dominance

does not establish a presumption that the proposed rate exceeds a reasonable maximum.

(d)(1)(A) In making a determination under this

section, the Board shall find that the rail carrier

establishing the challenged rate does not have market dominance over the transportation to which

the rate applies if such rail carrier proves that

the rate charged results in a revenue-variable cost

percentage for such transportation that is less

than 180 percent.

(B) For purposes of this section, variable costs

for a rail carrier shall be determined only by using such carrier's unadjusted costs, calculated using the Uniform Rail Costing System cost finding methodology (or an alternative methodology

adopted by the Board in lieu thereof) and indexed

quarterly to account for current wage and price

levels in the region in which the carrier operates,

with adjustments specified by the Board. A rail

carrier may meet its burden of proof under this

subsection by establishing its variable costs in

accordance with this paragraph, but a shipper may

rebut that showing by evidence of such type, and

in accordance with such burden of proof, as the

Board shall prescribe.

(2) A finding by the Board that a rate charged

by a rail carrier results in a revenue-variable cost

percentage for the transportation to which the

rate applies that is equal to or greater than 180

percent does not establish a presumption that-

(A) such rail carrier has or does not have market dominance over such transportation; or

(B) the proposed rate exceeds or does not exceed a reasonable maximum.

(Added Pub. L. 104-88, title I, § 102(a), Dec. 29, 1995,

109 Stat. 815.)

PRIOR PRovISIONS

Provisions similar to those in this section were contained in section 10709 of this title prior to the general

amendment of this subtitle by Pub. L. 104-88, § 102(a).

Prior sections 10707 and 10707a were omitted in the

general amendment of this subtitle by Pub. L. 104-88,

§ 102(a).

Page 708 § 10707

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TITLE 49-TRANSPORTATION

Subsec. (f). Pub. L. 112-95, §505, added subsec. (f).

2003-Subsec. (b)(4). Pub. L. 108-176, § 189, added par. (4).

Subsec. (c)(2)(C)-(E). Pub. L. 108-176, §306, realigned

margins of subpars. (C) and (D) and added subpar. (E).

2000-Subsec. (c)(6). Pub. L. 106-181 added par. (6).

1994-Subsec. (c)(1)(A). Pub. L. 103-429, §6(71)(A), inserted "and" after semicolon at end.

Subsec. (c)(1)(B). Pub. L. 103-429, §6(71)(B), substituted

a period for semicolon at end.

Subsec. (c)(1)(C), (D). Pub. L. 103-429, §6(71)(C), redesignated par. (1)(C) as (2)(C) and (1)(D) as (2)(D).

Subsec. (c)(2). Pub. L. 103-305, §119(2), added par. (2).

Former par. (2) redesignated (3).

Subsec. (c)(2)(A)(iii). Pub. L. 103-429, §6(71)(D), struck

out "and" after semicolon at end.

Subsec. (c)(2)(B)(iii). Pub. L. 103-429, §6(71)(E), substituted a semicolon for period at end.

Subsec. (c)(2)(C), (D). Pub. L. 103-429, §6(71)(F), substituted "to an airport operator and unit of local government referred to in paragraph (1)(A) or (1)(B) of this subsection" for "an airport operator or unit of local government referred to in clause (A) or (B) of this paragraph'.

Pub. L. 103-429, §6(71)(C), redesignated par. (1)(C) as

(2)(C) and (1)(D) as (2)(D).

Subsec. (c)(3). Pub. L. 103-305, § 119(1), redesignated par.

(2) as (3). Former par. (3) redesignated (4).

Subsec. (c)(4). Pub. L. 103-305, § 119(3), struck out "paragraph (1) of" before "this subsection" in introductory

provisions.

Pub. L. 103-305, § 119(1), redesignated par. (3) as (4).

Former par. (4) redesignated (5).

Subsec. (c)(5). Pub. L. 103-305, § 119(1), redesignated par.

(4) as (5).

EFFEcTIVE DATE OF 2003 AMENDMENT

Amendment by Pub. L. 108-176 applicable only to fiscal

years beginning after Sept. 30, 2003, except as otherwise

specifically provided, see section 3 of Pub. L. 108-176, set

out as a note under section 106 of this title.

EFFECTIVE DATE OF 2000 AMENDMENT

Amendment by Pub. L. 106-181 applicable only to fiscal

years beginning after Sept. 30, 1999, see section 3 of Pub.

L. 106-181, set out as a note under section 106 of this

title.

§ 47505. Airport noise compatibility planning

grants

(a) GENERAL AUTHORITY.-The Secretary of

Transportation may make a grant to a sponsor of

an airport to develop, for planning purposes, information necessary to prepare and submit-

(1) a noise exposure map and related information under section 47503 of this title, including

the cost of obtaining the information; or

(2) a noise compatibility program under section 47504 of this title.

(b) AVAILABILITY OF AMOUNTS AND GOVERNMENT'S

SHARE OF COSTS.-A grant under subsection (a)

of this section may be made from amounts available under section 48103 of this title. The United

States Government's share of the grant is the percent for which a project for airport development

at an airport would be eligible under section 47109(a)

and (b) of this title.

(Pub. L. 103-272, § 1(e), July 5, 1994, 108 Stat. 1286.)

HISTORIcAL AND REVISION NOTES

Rectson Source (US Code) Source (Statutes at Large)

47505 ........ 49 App.:2103(b). Feb. 18, 1980, Pub. L. 96-193,

§103(b), 94 Stat. 51; restated

Sept. 3, 1982, Pub. L. 97-248, § 524(b)(3), 96 Stat. 696.

In subsection (a), before clause (1), the words "incur

obligations to" are omitted as surplus.

§ 47506. Limitations on recovering damages for

noise

(a) GENERAL LIMITATIONS.-A person acquiring

an interest in property after February 18, 1980, in

an area surrounding an airport for which a noise

exposure map has been submitted under section

47503 of this title and having actual or constructive knowledge of the existence of the map may

recover damages for noise attributable to the airport only if, in addition to any other elements for

recovery of damages, the person shows that-

(1) after acquiring the interest, there was a

significant-

(A) change in the type or frequency of aircraft operations at the airport;

(B) change in the airport layout;

(C) change in flight patterns; or

(D) increase in nighttime operations; and

(2) the damages resulted from the change or

increase.

(b) CONSTRUcTIVE KNOwLEDGE.-Constructive

knowledge of the existence of a map under subsection (a) of this section shall be imputed, at a

minimum, to a person if-

(1) before the person acquired the interest,

notice of the existence of the map was published at least 3 times in a newspaper of general circulation in the county in which the property is located; or

(2) the person is given a copy of the map when

acquiring the interest.

(Pub. L. 103-272, § 1(e), July 5, 1994, 108 Stat. 1286.)

HISTORICAL AND REVISION NOTES

Revised Source (US Code) Source (Statutes at Large)

47506 ........ 49 App.:2107. Feb. 18, 1980, Pub. L. 96-193,

§ 107, 94 Stat. 53.

In subsection (a)(2), the words "for which recovery is

sought have" are omitted as surplus.

§ 47507. Nonadmissibility of noise exposure map

and related information as evidence

No part of a noise exposure map or related information described in section 47503 of this title

that is submitted to, or prepared by, the Secretary of Transportation and no part of a list of

land uses the Secretary identifies as normally

compatible with various exposures of individuals

to noise may be admitted into evidence or used

for any other purpose in a civil action asking for

relief for noise resulting from the operation of an

airport.

(Pub. L. 103-272, § 1(e), July 5, 1994, 108 Stat. 1287.)

HISTORIcAL AND REVISION NOTES

Sevtion Source (US. Code) Source (Statutes at Large)

47507 ........ 49 App.:2106. Feb. 18, 1980, Pub. L. 96-193,

§ 106, 94 Stat. 53.

The words "land uses which are" are omitted as surplus. The words "civil action" are substituted for "suit or

action" for consistency in the revised title and with other

titles of the United States Code. The words "damages or

other" are omitted as surplus.

Page 692 § 47505

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TITLE 49-TRANSPORTATION

HISTORICAL AND REVISION NOTES

Revised Source (US. Code) Source (Statutes at Large) Section

20902(a) ..... 45:40 (1st sentence, May 6, 1910, ch. 208, § 3, 36 Stat.

2d sentence words 351; June 22, 1988, Pub. L.

between let and 100-342, § 15(3), 102 Stat. 634.

2d commas).

49 App.:26(f) (words Feb. 4, 1887, chi. 104, 24 Stat.

after last semi- 379, §25(f) (words after last

colon). semicolon); added Feb. 28, 1920, chi. 91, §441, 41 Stat. 498;

restated Aug. 26, 1937, ch. 818,

50 Stat. 836; Sept. 18, 1940,

chi. 722, § 14(b), 54 Stat. 919.

49 App.:1655(e)(1)(K). Oct. 15, 1966, Pub. L. 89-670,

§6(e)(1)(K), 80 Stat. 939.

20902(b) ..... 45:40 (2d sentence

less words between 1st and 2d

commas).

20902(c) ..... 45:40 (3d, last sentences).

In this section, the words "accident" and "incident"

are used, and the words "collision" and "derailment" are

omitted, for consistency in this part.

Subsection (a)(2) is substituted for the text of 49 App.:26(f)

(words after last semicolon) for clarity.

In subsection (b), the words "In carrying out an investigation" are substituted for "shall have authority to investigate such collisions, derailments, or other accidents

aforesaid, and all the attending facts, conditions, and

circumstances, and for that purpose" to eliminate unnecessary words. The words "books, papers, orders, memoranda" are omitted as being included in "papers". The

words "in coordination with" are substituted for "in connection with" for clarity. The words "The railroad carrier on whose railroad line the accident or incident occurred" are added for clarity.

In subsection (c), the words "When in the public interest" are substituted for "when he deems it to the public interest" to eliminate unnecessary words.

§ 20903. Reports not evidence in civil actions for

damages

No part of an accident or incident report filed

by a railroad carrier under section 20901 of this

title or made by the Secretary of Transportation

under section 20902 of this title may be used in a

civil action for damages resulting from a matter

mentioned in the report.

(Pub. L. 103-272, § 1(e), July 5, 1994, 108 Stat. 887.)

HISTORICAL AND REVISION NOTES

Revised Source (US. Code) Source (Statutes at Large) Section e Saue tLre

20903 ........ 45:41. May 6, 1910, ch. 208, §4, 36 Stat.

351.

The words "civil action" are substituted for "suit or

action" for consistency in the revised title and with other

titles of the United States Code.

CHAPTER 211-HOURS OF SERVICE

Sec.

21101.

21102.

21103.

21104.

21105.

21106.

21107.

21108.

21109.

Definitions.

Nonapplication, exemption, and alternate hours

of service regime.

Limitations on duty hours of train employees.

Limitations on duty hours of signal employees.

Limitations on duty hours of dispatching service employees.

Limitations on employee sleeping quarters.

Maximum duty hours and subjects of collective

bargaining.

Pilot projects.

Regulatory authority.

AMENDMENTS

2008-Pub. L. 110-432, div. A, title I, § 108(d)(2), (e)(2)(A),

Oct. 16, 2008, 122 Stat. 4864, 4865, substituted item 21102

for former item 21102 "Nonapplication and exemption"

and added item 21109.

1994-Pub. L. 103-440, title II, §203(b), Nov. 2, 1994, 108

Stat. 4620, added item 21108.

§ 21101. Definitions

In this chapter-

(1) "designated terminal" means the home or

away-from-home terminal for the assignment of

a particular crew.

(2) "dispatching service employee" means an

operator, train dispatcher, or other train employee who by the use of an electrical or mechanical device dispatches, reports, transmits,

receives, or delivers orders related to or affecting train movements.

(3) "employee" means a dispatching service

employee, a signal employee, or a train employee.

(4) "signal employee" means an individual who

is engaged in installing, repairing, or maintaining signal systems.

(5) "train employee" means an individual engaged in or connected with the movement of a

train, including a hostler.

(Pub. L. 103-272, § 1(e), July 5, 1994, 108 Stat. 888;

Pub. L. 110-432, div. A, title I, §108(a), Oct. 16,

2008, 122 Stat. 4860.)

HISTORICAL AND REVISION NOTES

Revised Source (US. Code) Source (Statutes at Large) Section

21101(1) ..... 45:61(b)(4) (1st sen- Mar. 4, 1907, ch. 2939, 34 Stat.

tence). 1415, §1(b)(4) (1st sentence);

added Nov. 2, 1978, Pub. L.

95-574, §6, 92 Stat. 2461.

21101(2)-{4) (no source).

21101(5) 45:61(b)(2). Mar. 4, 1907, ch. 2939, § 1(b)(2),

34 Stat. 1415; restated Dec.

26, 1969, Pub. L. 91-169, § 1, 83 Stat. 463; July 8, 1976, Pub.

L. 94-34, §4(c), 90 Stat. 818.

Clause (2) is added to avoid the necessity of repeating

the substance of the definition every time a "dispatching service employee" is referred to in this chapter. The

language in clause (2) is derived from 45:63.

Clause (3) is added to provide a definition of "employee"

when the source provisions apply to all types of employees covered by this chapter.

Clause (4) is added to avoid the necessity of repeating

the substance of the definition every time a "signal employee" is referred to in this chapter. The language in

clause (4) is derived from 45:63a.

In clause (5), the words "train employee" are substituted for "employee" to distinguish the term from the

terms "dispatching service employee" and "signal employee". The word "actually" is omitted as surplus.

AMENDMENTS

2008-Par. (4). Pub. L. 110-432 struck out "employed by

a railroad carrier" after "individual".

EFFECTIVE DATE OF 2008 AMENDMENT

Pub. L. 110-432, div. A, title I, § 108(g), Oct. 16, 2008, 122

Stat. 4866, provided that: "The amendments made by subsections (a), (b), and (c) [amending this section and sections 21103 and 21104 of this title] shall take effect 9

months after the date of enactment of this Act [Oct. 16,

2008]."

RECORD KEEPING AND REPORTING

Pub. L. 110-432, div. A, title I, § 108(f), Oct. 16, 2008, 122

Stat. 4866, provided that:

"(1) REGULATIONS.-Not later than 180 days after the

date of enactment of this Act [Oct. 16, 2008], the Secretary [of Transportation] shall prescribe a regulation

revising the requirements for recordkeeping and reportPage 874 § 20903

SA5

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SA6

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CERTIFICATE OF SERVICE

I certify that on December 22, 2021, I caused the foregoing to be filed through 

this Court’s CM/ECF system, which will serve a notice of electronic filing on all 

registered users. 

s/ Bryan J. Leitch

Bryan J. Leitch

Counsel for the United States

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