In these regulations, the following terms have the meanings indicated. Terms Defined. “Agency” means the Division of Labor and Industry. “Commissioner” means the Commissioner of Labor and Industry or the Commissioner's authorized representative. “Presenter of evidence” means the Assistant Attorney General assigned to present charges and evidence on behalf of the agency. “Presiding officer” means the Commissioner or a hearing officer authorized to conduct a hearing. The requirements of this regulation are in addition to the requirements of the Administrative Procedure Act, Contested Cases, §10-201 et seq. of the State Government Article, Annotated Code of Maryland. Notice of Hearing. The presiding officer shall serve notice of the hearing on all parties at least 15 days before the hearing. Notice served under §B(1) of this regulation shall: State the time, place, and nature of the hearing; State the authority of the agency to hold the hearing; Cite the specific section of each statute and regulation, including a procedural regulation, that is pertinent; and State concisely and simply: The facts that are asserted, or If the facts cannot be stated in detail when the notice is given, the issues that are involved. Manner of Service. The requirements of this section are in addition to the requirements of COMAR 09.01.02.04. Notice of hearing required by §B of this regulation shall be sent to all parties other than the agency by: Certified mail with a return receipt requested; or Personal delivery, provided the person serving the document certifies to the manner and date of service. Unless otherwise required by law or by applicable regulations, service of any document upon any party may be made by: Personal delivery, provided the person serving the document certifies to the manner and date of service; or Mailing a copy of the document to the last known address of the party. Hearing Officer. The requirements of this section are in addition to the requirements of COMAR 09.01.03 Hearing Officer Regulations. A hearing officer shall have all powers necessary to conduct a fair, full and impartial hearing, including but not limited to the power to: Administer oaths and affirmations; Rule upon offers of proof and receive relevant evidence; Regulate the course of the hearing and the conduct of the parties and their counsel; Rule upon procedural requests; Examine any witness; Issue subpoenas; and Take any other appropriate action authorized by applicable statutes or regulations. Issuance of Subpoena or Summons. The requirements of this section are in addition to the requirements of COMAR 09.01.02.03. On application of any party, received by the agency not less than 7 business days before a scheduled hearing date, the presiding officer shall immediately issue a subpoena or summons requiring the attendance and testimony of a witness and the production of any evidence, including relevant books, records, correspondence, or documents in the possession or under the control of the person subpoenaed or summoned. An application for a subpoena or summons may be made by one party only. A subpoena or summons shall show on its face the name and address of the party requesting the subpoena or summons. If a person fails to comply with a subpoena or summons, the Commissioner shall initiate proceedings to enforce the subpoena or summons in the appropriate court if, in the Commissioner's judgment, the: Testimony of the witness failing to appear is material to the proceedings; or Production of the evidence by the person failing to comply is material to the proceedings. Hearings. Postponement. The requirements of §F(1) of this regulation are in addition to the requirements of COMAR 09.01.02.02. A postponement for more than 30 days may not be granted without the approval of the presiding officer. Hearings shall be recorded verbatim. Hearing Procedure. The presiding officer shall: Call the title of the case; Explain briefly the purpose and nature of the hearing; Recite any charges, complaints, or other matters involved; and Administer the oath to all persons who are summoned or intend to testify. Counsel or any party may be heard on any preliminary objection, exception, or motion, and any stipulation entered into by the parties shall be received. The following exhibits shall be introduced: If the presiding officer is a hearing officer, a copy of the letter designating the hearing officer to preside at the hearing; A copy of the petition, complaint, or other matter involved in the hearing; and A copy of the notice of hearing sent to persons entitled to receive notice. Order of Testimony. In all hearings on: Citations, the presenter of evidence shall proceed first and shall present the evidence on which the citation was based. Employee complaints, the presenter of evidence shall proceed first and shall present evidence obtained as a result of the agency investigation of the complaint. Applications for variance, counsel for the railroad company requesting the variance shall proceed first and present evidence demonstrating either that the variance is necessary to prevent undue operational or economic hardship, or that existing conditions prevent practical compliance and the reasonable safety of the public and employees of the railroad company can be assured. The presenter of evidence shall then present information obtained as a result of the agency's investigation of the variance request. Subject to applicable statutes and rules governing the practice of law, each party or counsel representing a party may: Call witnesses; Offer evidence, including rebuttal evidence; Cross-examine any witness that another party or the agency calls; and Present summation and argument. Written Memorandum. Upon request of any party or counsel representing a party, before the close of the hearing, the presiding officer may permit a party or counsel to file a written memorandum, which may include proposed findings of fact and conclusions of law. The presiding officer may require a written memorandum. The presiding officer may fix a reasonable time for filing a memorandum. Determination of Hearing Officer. Within a reasonable time after a hearing officer has heard all evidence and considered any written memorandum, the hearing officer shall issue a written determination which includes: Proposed findings of fact based on the evidence in the record; Proposed conclusions of law setting forth the application of the law to the factual findings; and A proposed order making disposition of the case. The hearing officer shall promptly serve a copy of the determination on each party. Unless a review is requested under Labor and Employment Article, §5.5-118, Annotated Code of Maryland, within 15 working days from the date of the determination, the decision of the hearing officer becomes the final order of the Commissioner. Application for Variance. Any affected railroad company may apply to the Commissioner for a variance from a regulation or standard adopted under the Railroad Safety and Health Act, Labor and Employment Article, Title 5.5, Annotated Code of Maryland. An application for variance shall be in writing and shall include: The name and address of the applicant; Identification of the regulation or standard from which the applicant seeks a variance; The location, equipment, or practices involved; A detailed statement of the reasons why the applicant is requesting a variance from the regulation or standard; A statement of the steps the applicant has taken and will take, with specific dates where appropriate, to protect employees and the public against the hazard covered by the regulation or standard; Certification that the applicant has given appropriate notice of the application for variance to: The applicant's employees affected by the variance, All authorized representatives of the affected employees, and Other persons affected by the condition for which a variance is sought; A copy or description of the notice required by §A(2)(f) of this regulation; and A list of the names and addresses of persons to be notified pursuant to §A(2)(f) of this regulation. Hearing. A hearing shall be held on every request for variance. Notice of a hearing on a request for variance shall be given in accordance with Regulation .02 of this chapter and also shall be published in the Maryland Register. A hearing on a request for variance shall be conducted in accordance with Regulation .02 of this chapter. Definitions. In this regulation, the following terms have the meanings indicated: “Main track” means track extending through a yard or between stations, upon which trains are controlled by timetable, block signals, interlocking rules, interlocking signals, or special instructions. “Overhead clearance” means the vertical distance from the top of the highest rail to a structure or obstruction above. “Side clearance” means the shortest horizontal distance from the centerline of track to a structure or obstruction at the side of the track. Exemptions. Provided reasonable safety is maintained, this regulation may not be construed to prevent: Movement or distribution over tracks of material necessary to construct or maintain the tracks; or Movement of work equipment used to construct or maintain the railroad. Overhead Clearance. Except as otherwise provided in this regulation, the minimum overhead clearance above tracks used to transport freight cars shall be 22 feet. The clearance required by §C(1) of this regulation does not apply to: Engine houses and locomotive service facilities; Tipples; Facilities used to load or unload bulk commodities; or Electric wires and equipment necessary to operate trains by electric energy, if railroad employees are prohibited from being on the tops of moving closed cars where the required clearance is not provided. Existing Structures. Structures constructed before July 28, 1953 may be maintained at existing clearances, except that, whenever the structure is relocated or reconstructed, the clearance required by §C(1) of this regulation shall be provided. Existing tracks may be reconstructed under the existing structure at existing clearances. Additional tracks may be constructed under the existing structure at the same clearances as existing tracks. Overhead clearance at the entrance to and within a building may be less than 22 feet but not less than 18 feet if all cars, locomotives, and other equipment are required to stop before entering the building. Side Clearances. Except as otherwise provided in this regulation, the minimum side clearance from the centerline of tangent railroad tracks used to transport freight cars, to structures and obstructions above the top of the rail, shall be 8 feet 6 inches. The clearance required by §D(1) of this regulation does not apply to: Engine houses and locomotive service facilities; Tipples; Facilities used to load or unload bulk commodities; or Inter-track fences on the centerline between tracks. Structures, including platforms and tracks, constructed before July 28, 1953, may be maintained and extended at existing clearances, except that, whenever the structure is relocated or reconstructed, the clearance required by §D(1) of this regulation shall be provided. Structures adjacent to curved tracks shall have additional side clearance to compensate for the track curvature, super-elevation, and car design. Platforms. Platforms constructed before July 28, 1953 with side clearances less than that required by this regulation may be extended at the existing clearances, provided the extension is not in connection with the reconstruction of the platform. Platforms, except platforms 4 feet or less above the top of the rail and adjacent to main or passing tracks, may have clearances less than 8 feet 6 inches from the centerline of track on one side of the tracks only, if: A clearance of 8 feet 6 inches is maintained on the opposite side of the track; or The distance from track center to adjacent track is at least 13 feet 6 inches. Passenger platforms more than 8 inches but not more than 4 feet above the top of the rail shall be at least 5 feet 7 inches from the centerline of track. Passenger platforms 8 inches or less above the top of the rail shall be at least 5 feet 1 inch from the centerline of track. At entrances to and inside of warehouses and industrial buildings, side clearances, other than for platforms, shall be at least 8 feet from the centerline of track. Switchboxes, switch-operating mechanisms, and accessories necessary to control and operate signals and interlockers, which project 4 inches or less above the top of the rail, shall be at least 3 feet from the centerline of track. When it is not practicable to provide clearances otherwise required by this regulation, the center spindle of signal and switch stands 3 feet or less above the top of the rail, located between tracks, shall be at least 6 feet from the center line of track. Through bridges, tunnels, water columns, and oil columns shall be at least 8 feet from the centerline of track. Clearances for through bridges, clearances for water barrel platforms and refuge platforms on bridges and trestles not provided with walkways, and clearances for handrails, water barrels, water columns, oil columns, block signals, and stock chutes, when all or portions of them are 4 feet or less above the top of the rail, may be decreased to the extent defined by a line extending diagonally upward from a point level with the top of the rail and 5 feet distant laterally from the centerline of track to a point 4 feet above the top of the rail and 8 feet distant laterally from the centerline of track. The minimum clearance for handrails and water barrels on bridges with walkways shall be 7 feet 9 inches. The lesser clearances for handrails and water barrels authorized in §D(10) of this regulation do not apply to through bridges if the work of trainmen or yardmen requires them to be on the deck of the bridge to couple and uncouple cars on a switching lead. Overhead and Side Clearance—Exceptions. The overhead and side clearances required by this regulation may be decreased to the extent defined by a straight line extending diagonally downward from a point 4 feet from the centerline of track at 22 feet above the top of the rail, to a point 8 feet 6 inches from the centerline of track at 15 feet 3 inches above the top of the rail. For tracks located at the entrance to and within a building, overhead and side clearances may be decreased to the extent defined by a straight line extending diagonally downward from a point 4 feet from the centerline of track at 18 feet above the top of the rail, to a point 8 feet from the centerline of track at 14 feet above the top of the rail. Canopies at one side of the track at freight platforms may be constructed 4 feet or more from the centerline of track, if: The height of the canopy is at least 17 feet 6 inches above the top of the rail; and Either of the following apply: Clearance of 8 feet 6 inches is maintained on the opposite side of the track from the canopy; or The distance from track center to adjacent track is not less than 13 feet 6 inches. Clearance Between Parallel Tracks. Except as otherwise provided in this regulation, the minimum distance between the centerlines of parallel track shall be as follows: Two parallel main tracks --- 4 feet; Yard and side tracks --- 13 feet, 6 inches; Track other than main or passing track, which is parallel to main or passing track --- 15 feet; Where passing track is at least 15 feet from main track, other track adjacent to passing track --- 13 feet, 6 inches; Two parallel ladder tracks --- 19 feet; Ladder track parallel to other track --- 18 feet; Team, house, and industry track --- 13 feet; Tracks constructed before July 28, 1953 may be extended without increasing distances between tracks. Other Conditions and Obstructions Adjacent to Tracks. Merchandise, material, or other articles may not be permitted to remain adjacent to any track at a distance less than 8 feet 6 inches from the centerline of track. A line or other marker shall be maintained at a distance of 8 feet 6 inches from the centerline of track, on all platforms except passenger platforms, to indicate the space which shall be kept clear. The space between tracks ordinarily used as a walkway by train and yardmen and other employees in the discharge of their duties, and the space beside those tracks within 8 feet 6 inches of the centerline of track, shall be kept in a reasonably suitable condition for that purpose. Compliance. Except as provided in this regulation, a railroad company may not operate or permit to be operated any car, train, locomotive, or other equipment over its own tracks, or industrial tracks directly or indirectly connected with its own tracks, if: Overhead or side clearances or clearances between tracks are less than the minimum prescribed in this regulation; and After July 28, 1953, tracks or structures adjacent to tracks are constructed or reconstructed by: The railroad company; or Others, if the railroad company has the right to control the construction or reconstruction. The standards relating to Railroad Safety and Health: Track Safety Standards, as published in 49 CFR Part 213, §§213.1—213.241 and Appendices A and B, are incorporated by reference. The amendments to the track safety standards as published in 47 FR 39401—39404 (September 7, 1982), 48 FR 35883 (August 8, 1983), and 49 FR 1988 (January 17, 1984) are incorporated by reference. In the federal standards incorporated by reference by this regulation, the designations “Federal Railroad Administrator” and “Federal Railroad Administration” are amended to mean “Commissioner of Labor and Industry”. “Promptly”, for accident reporting purposes, means within 3 hours. Every railroad company operating a railroad in this State shall report, in writing or orally, to the Commissioner, promptly after the occurrence of an accident resulting in a serious injury or fatality to any person, or damage to property exceeding the sum determined by federal regulation, incurred during the operation of the railroad in the State. The report shall include: Caller's name and title; Date and time of the report; Railroad name and subdivision or route segment; Date, time, and location of the accident; Nature of accident, such as derailment, collision, public or private road crossing accident, or fire; Severity of the accident, including: Number of persons injured or killed; and Number of cars or units derailed; Whether hazardous material is involved; and Telephone number where additional information may be obtained. Place of Posting. Except as otherwise provided by this regulation, upon receipt of a citation issued under the Railroad Safety and Health Act, Labor and Employment Article, Title 5.5, Annotated Code of Maryland, a railroad company shall immediately post the citation, or a copy of it, at or near each place a violation alleged in the citation occurred. If a citation posted at or near a place of alleged violation would not be readily visible to affected employees, the railroad company shall post the citation in a place or places where it will be readily visible to affected employees. The railroad company shall: Post the citation or copy unedited; and Ensure that, while posted, the citation or copy is not altered, defaced, or covered by other material. Duration of Posting. If the railroad company does not file a notice of intention to contest a citation, the citation shall remain posted for the longer of: The period until the violation has been abated; or Three working days. If the railroad company files a notice of intention to contest a citation, the citation shall remain posted until the Commissioner of Labor and Industry issues a final order: Vacating the citation; or Affirming the citation, and the violation has been abated. Contested Citation. A railroad company that has filed a notice of intention to contest a citation may post a copy of the notice at each location where the citation is posted. The notice in §D(1) may: Explain the reasons for the contest; and Specify the steps that have been taken to abate the violation. Labor and Employment Article, §§5.5-104 and 5.5-108, Annotated Code of Maryland Effective date: January 9, 1981 (8:1 Md. R. 20) Regulations .01—.03 adopted effective January 28, 1985 (12:2 Md. R. 137) Regulation .04 adopted effective February 24, 1986 (13:4 Md. R. 396) Regulation .05 adopted effective July 13, 1986 (13:14 Md. R. 1633) Regulation .06 adopted effective October 19, 1987 (14:21 Md. R. 2223) Regulation .07 adopted effective April 16, 1990 (17:7 Md. R. 849)