Statutory Administrative Powers

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TITLE 49—TRANSPORTATION

ing personnel needs), legislative recommendations, prepared testimony for congressional
hearings, and comments on legislation at the
same time they are sent to the Secretary of
Transportation. An officer of an agency may not
impose conditions on or impair communications
by the Board with Congress, or a committee or
Member of Congress, about the information.
(Added Pub. L. 104–88, title II, § 201(a), Dec. 29,
1995, 109 Stat. 934.)
§ 704. Annual report
The Board shall annually transmit to the Congress a report on its activities.
(Added Pub. L. 104–88, title II, § 201(a), Dec. 29,
1995, 109 Stat. 934.)
§ 705. Authorization of appropriations
There are authorized to be appropriated for
the activities of the Board—
(1) $8,421,000 for fiscal year 1996;
(2) $12,000,000 for fiscal year 1997; and
(3) $12,000,000 for fiscal year 1998.
(Added Pub. L. 104–88, title II, § 201(a), Dec. 29,
1995, 109 Stat. 934.)
§ 706. Reporting official action
(a) REPORTS ON PROCEEDINGS.—The Board shall
make a written report of each proceeding conducted on complaint or on its own initiative and
furnish a copy to each party to that proceeding.
The report shall include the findings, conclusions, and the order of the Board and, if damages
are awarded, the findings of fact supporting the
award. The Board may have its reports published for public use. A published report of the
Board is competent evidence of its contents.
(b) SPECIAL RULES FOR MATTERS RELATED TO
RAIL CARRIERS.—(1) When action of the Board in
a matter related to a rail carrier is taken by the
Board, an individual member of the Board, or
another individual or group of individuals designated to take official action for the Board, the
written statement of that action (including a report, order, decision and order, vote, notice, letter, policy statement, or regulation) shall indicate—
(A) the official designation of the individual
or group taking the action;
(B) the name of each individual taking, or
participating in taking, the action; and
(C) the vote or position of each participating
individual.
(2) If an individual member of a group taking
an official action referred to in paragraph (1)
does not participate in it, the written statement
of the action shall indicate that the member did
not participate. An individual participating in
taking an official action is entitled to express
the views of that individual as part of the written statement of the action. In addition to any
publication of the written statement, it shall be
made available to the public under section 552(a)
of title 5.
(Added Pub. L. 104–88, title II, § 201(a), Dec. 29,
1995, 109 Stat. 934.)

§ 721

SUBCHAPTER II—ADMINISTRATIVE
§ 721. Powers
(a) IN GENERAL.—The Board shall carry out
this chapter and subtitle IV. Enumeration of a
power of the Board in this chapter or subtitle IV
does not exclude another power the Board may
have in carrying out this chapter or subtitle IV.
The Board may prescribe regulations in carrying
out this chapter and subtitle IV.
(b) INQUIRIES, REPORTS, AND ORDERS.—The
Board may—
(1) inquire into and report on the management of the business of carriers providing
transportation and services subject to subtitle
IV;
(2) inquire into and report on the management of the business of a person controlling,
controlled by, or under common control with
those carriers to the extent that the business
of that person is related to the management of
the business of that carrier;
(3) obtain from those carriers and persons information the Board decides is necessary to
carry out subtitle IV; and
(4) when necessary to prevent irreparable
harm, issue an appropriate order without regard to subchapter II of chapter 5 of title 5.
(c) SUBPOENA WITNESSES.—(1) The Board may
subpoena witnesses and records related to a proceeding of the Board from any place in the
United States, to the designated place of the
proceeding. If a witness disobeys a subpoena, the
Board, or a party to a proceeding before the
Board, may petition a court of the United States
to enforce that subpoena.
(2) The district courts of the United States
have jurisdiction to enforce a subpoena issued
under this section. Trial is in the district in
which the proceeding is conducted. The court
may punish a refusal to obey a subpoena as a
contempt of court.
(d) DEPOSITIONS.—(1) In a proceeding, the
Board may take the testimony of a witness by
deposition and may order the witness to produce
records. A party to a proceeding pending before
the Board may take the testimony of a witness
by deposition and may require the witness to
produce records at any time after a proceeding
is at issue on petition and answer.
(2) If a witness fails to be deposed or to
produce records under paragraph (1), the Board
may subpoena the witness to take a deposition,
produce the records, or both.
(3) A deposition may be taken before a judge of
a court of the United States, a United States
magistrate judge, a clerk of a district court, or
a chancellor, justice, or judge of a supreme or
superior court, mayor or chief magistrate of a
city, judge of a county court, or court of common pleas of any State, or a notary public who
is not counsel or attorney of a party or interested in the proceeding.
(4) Before taking a deposition, reasonable notice must be given in writing by the party or the
attorney of that party proposing to take a deposition to the opposing party or the attorney of
record of that party, whoever is nearest. The notice shall state the name of the witness and the
time and place of taking the deposition.

§ 722

TITLE 49—TRANSPORTATION

(5) The testimony of a person deposed under
this subsection shall be taken under oath. The
person taking the deposition shall prepare, or
cause to be prepared, a transcript of the testimony taken. The transcript shall be subscribed
by the deponent.
(6) The testimony of a witness who is in a foreign country may be taken by deposition before
an officer or person designated by the Board or
agreed on by the parties by written stipulation
filed with the Board. A deposition shall be filed
with the Board promptly.
(e) WITNESS FEES.—Each witness summoned
before the Board or whose deposition is taken
under this section and the individual taking the
deposition are entitled to the same fees and
mileage paid for those services in the courts of
the United States.
(Added Pub. L. 104–88, title II, § 201(a), Dec. 29,
1995, 109 Stat. 935.)
§ 722. Board action
(a) EFFECTIVE DATE OF ACTIONS.—Unless otherwise provided in subtitle IV, the Board may determine, within a reasonable time, when its actions, other than an action ordering the payment of money, take effect.
(b) TERMINATING AND CHANGING ACTIONS.—An
action of the Board remains in effect under its
own terms or until superseded. The Board may
change, suspend, or set aside any such action on
notice. Notice may be given in a manner determined by the Board. A court of competent jurisdiction may suspend or set aside any such action.
(c) RECONSIDERING ACTIONS.—The Board may,
at any time on its own initiative because of material error, new evidence, or substantially
changed circumstances—
(1) reopen a proceeding;
(2) grant rehearing, reargument, or reconsideration of an action of the Board; or
(3) change an action of the Board.
An interested party may petition to reopen and
reconsider an action of the Board under this subsection under regulations of the Board.
(d) FINALITY OF ACTIONS.—Notwithstanding
subtitle IV, an action of the Board under this
section is final on the date on which it is served,
and a civil action to enforce, enjoin, suspend, or
set aside the action may be filed after that date.
(Added Pub. L. 104–88, title II, § 201(a), Dec. 29,
1995, 109 Stat. 936.)
§ 723. Service of notice in Board proceedings
(a) DESIGNATION OF AGENT.—A carrier providing transportation subject to the jurisdiction of
the Board under subtitle IV shall designate an
agent in the District of Columbia, on whom
service of notices in a proceeding before, and of
actions of, the Board may be made.
(b) FILING AND CHANGING DESIGNATIONS.—A
designation under subsection (a) shall be in
writing and filed with the Board. The designation may be changed at any time in the same
manner as originally made.
(c) SERVICE OF NOTICE.—Except as otherwise
provided, notices of the Board shall be served on
its designated agent at the office or usual place

Page 104

of residence in the District of Columbia of that
agent. A notice of action of the Board shall be
served immediately on the agent or in another
manner provided by law. If that carrier does not
have a designated agent, service may be made
by posting the notice in the office of the Board.
(d) SPECIAL RULE FOR RAIL CARRIERS.—In a
proceeding involving the lawfulness of classifications, rates, or practices of a rail carrier
that has not designated an agent under this section, service of notice of the Board on an attorney in fact for the carrier constitutes service of
notice on the carrier.
(Added Pub. L. 104–88, title II, § 201(a), Dec. 29,
1995, 109 Stat. 937.)
§ 724. Service of process in court proceedings
(a) DESIGNATION OF AGENT.—A carrier providing transportation subject to the jurisdiction of
the Board under subtitle IV shall designate an
agent in the District of Columbia on whom service of process in an action before a district court
may be made. Except as otherwise provided,
process in an action before a district court shall
be served on the designated agent of that carrier
at the office or usual place of residence in the
District of Columbia of that agent. If the carrier
does not have a designated agent, service may
be made by posting the notice in the office of
the Board.
(b) CHANGING DESIGNATION.—A designation
under this section may be changed at any time
in the same manner as originally made.
(Added Pub. L. 104–88, title II, § 201(a), Dec. 29,
1995, 109 Stat. 937.)
§ 725. Administrative support
The Secretary of Transportation shall provide
administrative support for the Board.
(Added Pub. L. 104–88, title II, § 201(a), Dec. 29,
1995, 109 Stat. 937.)
§ 726. Railroad-Shipper Transportation Advisory
Council
(a) ESTABLISHMENT; MEMBERSHIP.—There is established the Railroad-Shipper Transportation
Advisory Council (in this section referred to as
the ‘‘Council’’) to be composed of 19 members, of
which 15 members shall be appointed by the
Chairman of the Board, after recommendation
from rail carriers and shippers, within 60 days
after December 29, 1995. The members of the
Council shall be appointed as follows:
(1) The members of the Council shall be appointed from among citizens of the United
States who are not regular full-time employees of the United States and shall be selected
for appointment so as to provide as nearly as
practicable a broad representation of the various segments of the railroad and rail shipper
industries.
(2) Nine of the members shall be appointed
from senior executive officers of organizations
engaged in the railroad and rail shipping industries, which 9 members shall be the voting
members of the Council. Council action and
Council positions shall be determined by a majority vote of the members present. A majority of such voting members shall constitute a
quorum. Of such 9 voting members—