Code of Maryland Regulations
Title 09 - MARYLAND DEPARTMENT OF LABOR
Subtitle 12 - DIVISION OF LABOR AND INDUSTRY
Chapter 09.12.91 - Railroad Safety and Health
Section 09.12.91.02 - Rules of Procedure for Hearing
Universal Citation: MD Code Reg 09.12.91.02
Current through Register Vol. 51, No. 19, September 20, 2024
A. 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.
B. Notice of Hearing.
(1) The presiding officer shall serve notice
of the hearing on all parties at least 15 days before the hearing.
(2) Notice served under §B(1) of this
regulation shall:
(a) State the time, place,
and nature of the hearing;
(b)
State the authority of the agency to hold the hearing;
(c) Cite the specific section of each statute
and regulation, including a procedural regulation, that is pertinent;
and
(d) State concisely and simply:
(i) The facts that are asserted, or
(ii) If the facts cannot be stated in detail
when the notice is given, the issues that are involved.
C. Manner of Service.
(1) The requirements of this section are in
addition to the requirements of COMAR
09.01.02.04B.
(2) Notice of hearing required by
§B of this regulation shall be sent to all parties other than the agency
by:
(a) Certified mail with a return receipt
requested; or
(b) Personal
delivery, provided the person serving the document certifies to the manner and
date of service.
(3)
Unless otherwise required by law or by applicable regulations, service of any
document upon any party may be made by:
(a)
Personal delivery, provided the person serving the document certifies to the
manner and date of service; or
(b)
Mailing a copy of the document to the last known address of the
party.
D. Hearing Officer.
(1) The requirements of this
section are in addition to the requirements of COMAR 09.01.03 Hearing Officer
Regulations.
(2) A hearing officer
shall have all powers necessary to conduct a fair, full and impartial hearing,
including but not limited to the power to:
(a)
Administer oaths and affirmations;
(b) Rule upon offers of proof and receive
relevant evidence;
(c) Regulate the
course of the hearing and the conduct of the parties and their
counsel;
(d) Rule upon procedural
requests;
(e) Examine any
witness;
(f) Issue subpoenas;
and
(g) Take any other appropriate
action authorized by applicable statutes or regulations.
E. Issuance of Subpoena or Summons.
(1) The requirements of this section
are in addition to the requirements of COMAR
09.01.02.03B.
(2) 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.
(3) An application for a
subpoena or summons may be made by one party only.
(4) A subpoena or summons shall show on its
face the name and address of the party requesting the subpoena or
summons.
(5) 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:
(a) Testimony
of the witness failing to appear is material to the proceedings; or
(b) Production of the evidence by the person
failing to comply is material to the proceedings.
F. Hearings.
(1) Postponement.
(a) The requirements of §F(1) of this
regulation are in addition to the requirements of COMAR
09.01.02.02B.
(b) A postponement for more than
30 days may not be granted without the approval of the presiding
officer.
(2) Hearings
shall be recorded verbatim.
(3)
Hearing Procedure.
(a) The presiding officer
shall:
(i) Call the title of the
case;
(ii) Explain briefly the
purpose and nature of the hearing;
(iii) Recite any charges, complaints, or
other matters involved; and
(iv)
Administer the oath to all persons who are summoned or intend to
testify.
(b) 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.
(c) The following exhibits shall be
introduced:
(i) If the presiding officer is a
hearing officer, a copy of the letter designating the hearing officer to
preside at the hearing;
(ii) A copy
of the petition, complaint, or other matter involved in the hearing;
and
(iii) A copy of the notice of
hearing sent to persons entitled to receive notice.
(d) Order of Testimony. In all hearings on:
(i) Citations, the presenter of evidence
shall proceed first and shall present the evidence on which the citation was
based.
(ii) Employee complaints,
the presenter of evidence shall proceed first and shall present evidence
obtained as a result of the agency investigation of the complaint.
(iii) 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.
(e) Subject to
applicable statutes and rules governing the practice of law, each party or
counsel representing a party may:
(i) Call
witnesses;
(ii) Offer evidence,
including rebuttal evidence;
(iii)
Cross-examine any witness that another party or the agency calls; and
(iv) Present summation and
argument.
(f) Written
Memorandum.
(i) 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.
(ii) The presiding officer may require a
written memorandum.
(iii) The
presiding officer may fix a reasonable time for filing a memorandum.
G. Determination of Hearing Officer.
(1) 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:
(a) Proposed findings of fact
based on the evidence in the record;
(b) Proposed conclusions of law setting forth
the application of the law to the factual findings; and
(c) A proposed order making disposition of
the case.
(2) The
hearing officer shall promptly serve a copy of the determination on each
party.
(3) 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.
Disclaimer: These regulations may not be the most recent version. Maryland may have more current or accurate information. We make no warranties or guarantees about the accuracy, completeness, or adequacy of the information contained on this site or the information linked to on the state site. Please check official sources.
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