c/o
Department of Safety
CHAPTER
Mvi 100 ORGANIZATIONAL RULES
Statutory
Authority: RSA 357-C:12, I
PART
Mvi 101 PURPOSE
Mvi
101.01 Purpose. The purpose of these rules is to establish
the procedures under which the
Source. #6485, INTERIM, eff 4-16-97, EXPIRED: 8-14-97
New. #6650,
eff 12-10-97
PART
Mvi 102 DEFINITIONS OF TERMS
Mvi
102.01 “Board” means the New Hampshire
motor vehicle industry board as defined in RSA 357-C:12, I (a)-(d).
Source. #6485, INTERIM, eff 4-16-97, EXPIRED: 8-14-97
New. #6650,
eff 12-10-97
Mvi
102.02 “Commissioner” means the
commissioner of the
Source. #6485, INTERIM, eff 4-16-97, EXPIRED: 8-14-97
New. #6650,
eff 12-10-97
Mvi
102.03 “Department” means the
Source. #6485, INTERIM, eff 4-16-97, EXPIRED: 8-14-97
New. #6650, eff
12-10-97
Mvi
102.04 “Manufacturer” means
“manufacturer” as defined in RSA 357-C:1, II.
Source. #6485, INTERIM, eff 4-16-97, EXPIRED: 8-14-97
New. #6650,
eff 12-10-97
Mvi
102.05 “Motor vehicle” means “motor
vehicle” as defined in RSA 357-C:1, I.
Source. #6485, INTERIM, eff 4-16-97, EXPIRED: 8-14-97
New. #6650,
eff 12-10-97
Mvi
102.06 “Motor vehicle dealer” means
“motor vehicle dealer” as defined in RSA 357-C:1,VIII.
Source. #6485, INTERIM, eff 4-16-97, EXPIRED: 8-14-97
New. #6650,
eff 12-10-97
Mvi
102.07 “Person” means “person” as
defined in RSA 357-C:1, XIV.
Source. #6485, INTERIM, eff 4-16-97, EXPIRED: 8-14-97
New. #6650,
eff 12-10-97
PART
Mvi 103 DESCRIPTION
Mvi
103.01 Composition of Board. Pursuant to RSA 357-C:12, I, the board
consists of the commissioner and 6 members, appointed by governor and council for
a term specified by law.
Source. #6485, INTERIM, eff 4-16-97, EXPIRED: 8-14-97
New. #6650,
eff 12-10-97
Mvi
103.02 Duties of the Board.
(a) The responsibilities of the board include:
(1) Adopting rules under RSA 357-C:12, I (c);
(2) Holding public hearings to determine whether
chapter RSA 357-C has been violated;
(3) Issuing written decisions and orders to any
person violating chapter RSA 357-C; and
(4) Establishing all fees in accordance with RSA
357-C:12,VIII (d).
Source. #6485, INTERIM, eff 4-16-97, EXPIRED: 8-14-97
New. #6650,
eff 12-10-97
PART
Mvi 104 REQUESTS FOR INFORMATION
Mvi
104.01 Requests for Information.
(a) All requests for information shall be
directed in writing to the board at the department of safety,
(b) Public records, not otherwise declared
confidential by law, shall be available for inspection by appointment.
(c)
Copies of documents in response to a
request pursuant to (a) above, shall be assessed the fee, as provided in RSA
91-A:4, IV.
Source. #6650, eff 12-10-97
CHAPTER Mvi 200
Statutory Authority: RSA
357-C:12, II-VII
PART Mvi 201 SCOPE OF CHAPTER
Mvi 201.01 Applicability. These rules shall apply to any person or
entity defined by RSA 357-C involved in a protest before the motor vehicle
industry board.
Source. #6485, INTERIM, eff 4-16-97, EXPIRED: 8-14-97
New. #6651, eff 12-10-97; ss by #6980, eff
4-21-99, EXPIRED: 4-21-07
New.
#8978, INTERIM, eff 9-14-07, EXPIRES: 3-12-08; ss by #9043-A, eff 11-29-07
Mvi 201.02 Waiver. The board shall not permit a waiver of these
rules.
Source. #6980, eff 4-21-99, EXPIRED: 4-21-07
New.
#8978, INTERIM, eff 9-14-07, EXPIRES: 3-12-08; ss by #9043-A, eff 11-29-07
PART Mvi 202 DEFINITIONS OF TERMS
Mvi 202.01 “Commissioner”
means the commissioner of safety or his designee, as the chairperson of the
board.
Source. #6485, INTERIM, eff 4-16-97, EXPIRED: 8-14-97
New. #6651, eff 12-10-97; ss by #6980, eff
4-21-99, EXPIRED: 4-21-07
New.
#8978, INTERIM, eff 9-14-07, EXPIRES: 3-12-08; ss by #9043-A, eff 11-29-07
Mvi 202.02 “New
motor vehicle” means “new motor vehicle” as defined in RSA 357-C:1, XV.
Source. #6980, eff 4-21-99, EXPIRED: 4-21-07
New.
#8978, INTERIM, eff 9-14-07, EXPIRES: 3-12-08; ss by #9043-A, eff 11-29-07
Mvi 202.03
“Prehearing conference” means a closed meeting between the parties and
the commissioner’s representative in which settlement of the entire protest is
reached or the issues to be addressed at hearing are identified.
Source. #6980, eff 4-21-99, EXPIRED: 4-21-07
New.
#8978, INTERIM, eff 9-14-07, EXPIRES: 3-12-08; ss by #9043-A, eff 11-29-07
Mvi 202.04 “Presiding
officer” means “presiding officer” as defined in RSA 541-A:1, XIV.
Source. #6980, eff 4-21-99, EXPIRED: 4-21-07
New.
#8978, INTERIM, eff 9-14-07, EXPIRES: 3-12-08; ss by #9043-A, eff 11-29-07
Mvi 202.05 “Protest”
means any complaint filed pursuant to RSA 357-C:12, II(a).
Source. #9043-A,
eff 11-29-07
PART Mvi 203 BOARD AUTHORITY
Mvi 203.01 General
Authority of the Board. Subject to the
statutes and rules governing the board, the board shall:
(a) Receive protests
filed pursuant to RSA 357-C and these rules;
(b) Schedule and
hold hearings;
(c) Administer oaths
and affirmations;
(d) Determine the order
of proof in any proceeding;
(e) Receive relevant
evidence and rule on offers of proof in hearings;
(f) Take official
notice of any facts which are of common knowledge and general notoriety;
(g) Regulate and
control the course of hearings;
(h) Hold conferences
for the settlement or simplification of issues, or for obtaining stipulations
as to issues of fact or proof by consent of the parties;
(i) Dispose of
procedural requests, including but not limited to adjournments, continuances,
or defaults at the request of the parties or on the board member’s own motion;
(j) Interview and
examine witnesses as the case may require;
(k) Direct parties
to appear at hearings;
(l) Consider and
evaluate the facts and evidence on the record and make findings of fact,
conclusions of law, and dispositions;
(m) Determine
credibility or weight of evidence in making findings of fact and conclusions of
law;
(n) Render oral and written
decisions, reports or recommendations as authorized by statute or rule;
(o) Make a complete
record of any proceeding including all relevant matters;
(p) Take any action
in a proceeding necessary to conduct and complete the case not inconsistent
with applicable statutes, rules and precedents;
(q) Appoint people
to serve at depositions of out of state witnesses; and
(r) Allow amendment
of protest upon motion of a party or on the board member’s own motion.
Source. #6485, INTERIM, eff 4-16-97, EXPIRED: 8-14-97
New. #6651, eff 12-10-97; ss by #6980, eff
4-21-99, EXPIRED: 4-21-07
New. #8978, INTERIM, eff 9-14-07, EXPIRES:
3-12-08; ss by #9043-A, eff 11-29-07
PART Mvi 204 BOARD PROCEDURES FOR FILING DOCUMENTS AND
CONDUCTING HEARINGS
Mvi 204.01 Information
Submitted to the Board.
(a) No protest,
motion, other request for board action or information requested by the board
shall be accepted by the board unless it is:
(1) On 8 ½ x 11 inch white paper of good quality
printed on one side;
(2) Double spaced with one inch margins on the
top, bottom, right and left of the page;
(3) In black image writing or type of at least 12
point font; and
(4) Indexed, if appendices are included pursuant
to (e), below.
(b) Eight copies of
any protest, motion or other documents shall be submitted.
(c) If a party
wishes the board to consider out of state rulings in connection with a protest,
8 copies of the case(s) shall be submitted.
(d) Documents shall
not exceed the following page limits:
(1) Motions not to exceed 5 pages; and
(2) Briefs, memorandums of law, or other document
submitted for the board’s review not to exceed 20 pages.
(e) Relevant
documentary evidence may be submitted with (d)(1) or (2) above, if the party:
(1) Indexes all materials; and
(2) Includes a table of contents.
(f) If after review
the board determines that more legal argument or documentation is necessary to
render a decision, it shall request additional information from the parties.
(g) When a party
files a document with the board, it shall also provide a copy of the document
to all other parties to the proceeding, by either of the following:
(1) By United States postal service first class
mail, postage prepaid to the last address provided to the board; or
(2) In person.
Source. #6651, eff 12-10-97; ss by #6980, eff
4-21-99, EXPIRED: 4-21-07
New. #8978, INTERIM, eff 9-14-07, EXPIRES:
3-12-08; ss by #9043-A, eff 11-29-07
Mvi 204.02 Representation of Parties.
(a)
Parties may be represented:
(1) By legal counsel;
(2) Pro se; or
(3) Pursuant to RSA 311:1.
(b)
If an attorney files an appearance on behalf of a party, all subsequent
correspondence from the board and all other parties shall be forwarded to the
attorney and no further correspondence shall be forwarded directly to the
party.
(c)
If an attorney withdraws, the party shall notify the board in writing,
allowing subsequent correspondence to be forwarded directly to the party.
Source. #6651, eff 12-10-97; ss by #6980, eff
4-21-99, EXPIRED: 4-21-07
New. #8978,
INTERIM, eff 9-14-07, EXPIRES: 3-12-08; ss by #9043-A, eff 11-29-07
Mvi 204.03 Time Allocation at Hearing.
(a)
Each party shall be allotted no more than 10 minutes for an opening
statement to the board;
(b)
In addition to (a) and (e), each party shall be permitted no more than 4
hours, including motions or objections by the opposing party, to present their
case.
(c)
Prior to the hearing and upon request to the commissioner, parties shall
be granted additional time if the commissioner determines that it is necessary
to fully develop the facts or insure that all relevant evidence has been
received on the grounds challenged pursuant to RSA 357-C and included in the
protest as required by Mvi 205.01.
(d)
Each party shall be permitted to present relevant evidence and
testimony;
(e)
Each party shall be allotted no more than 10 minutes for a closing
statement to the board.
Source. #6651, eff 12-10-97; ss by #6980, eff
4-21-99, EXPIRED: 4-21-07
New.
#8978, INTERIM, eff 9-14-07, EXPIRES: 3-12-08; ss by #9043-A, eff 11-29-07
Mvi 204.04 Public Access to Hearings. Unless RSA 91-A:5 is applicable, all hearings
held by the board shall be open to the public.
Source. #6651, eff 12-10-97; ss by #6980, eff
4-21-99, EXPIRED: 4-21-07
New. #8978, INTERIM, eff 9-14-07, EXPIRES:
3-12-08; ss by #9043-A, eff 11-29-07
Mvi 204.05
Computation of Time Periods.
In computing any period of time prescribed or allowed by these rules or
RSA 357-C:
(a) The day of the act, event, or default after
which the designated period of time begins to run shall not be included; and
(b) The last day of
the period so computed shall be included unless it is a Saturday, Sunday, or
legal holiday, in which event the period shall extend until the end of the next
day that is not a Saturday, Sunday, or legal holiday as specified in RSA 288.
Source. #6651, eff 12-10-97; ss by #6980, eff
4-21-99, EXPIRED: 4-21-07
New.
#8978, INTERIM, eff 9-14-07, EXPIRES: 3-12-08; ss by #9043-A, eff 11-29-07
Mvi 204.06 Burden
of Proof. Unless otherwise specified by law, the burden
of proof shall be on the moving party.
Source. #6651, eff 12-10-97; ss by #6980, eff
4-21-99, EXPIRED: 4-21-07
New.
#8978, INTERIM, eff 9-14-07, EXPIRES: 3-12-08; ss by #9043-A, eff 11-29-07
Mvi 204.07 Standard of Proof. Unless otherwise specified by law, the
standard of proof shall be by a preponderance of the evidence.
Source. #6651, eff 12-10-97; ss by #6980, eff
4-21-99, EXPIRED: 4-21-07
New. #8978,
INTERIM, eff 9-14-07, EXPIRES: 3-12-08; ss by #9043-A, eff 11-29-07
Mvi 204.08 Intervenors. Unless permitted pursuant to RSA 541-A:32,
intervenors shall not be allowed in any action before the board.
Source. #6651, eff 12-10-97; ss by #6980, eff
4-21-99, EXPIRED: 4-21-07
New.
#8978, INTERIM, eff 9-14-07, EXPIRES: 3-12-08; ss by #9043-A, eff 11-29-07
Mvi 204.09 Agency
Staff. At the request of the board,
department of safety staff may be present at any board meeting or proceeding.
Source. #6651, eff 12-10-97; ss by #6980, eff
4-21-99, EXPIRED: 4-21-07;
ss by #9043-A, eff 11-29-07
New. #8978, INTERIM, eff 9-14-07, EXPIRES:
3-12-08; ss by #9043-A, eff 11-29-07
PART Mvi 205 FILING PROTEST
Mvi 205.01 Notice
of Protest.
(a) A person shall
give notice of a protest pursuant to RSA 357-C on the protest form or by letter
containing the same information specified in (c), below.
(b) A photocopy of the
protest together with photocopies of all supporting data filed with the board,
shall be sent by the person requesting the hearing to the opposing party or
parties.
(c) The protestor
shall provide the following information on the form:
(1) Name and address;
(2) Telephone number;
(3) Reason hearing is requested, including:
a. Citation of the specific section of RSA 357-C
under which relief is being sought;
b. Grounds which are claimed to constitute a
violation of the law specified in a., above; and
c. Brief description of the facts which gave
rise to the protest;
(4) Names and addressees of other parties
involved in the protest; and
(5) Outcome that is sought.
(d) If after review by
the commissioner, any of the information submitted pursuant to (c), above, is
inadequate or missing the protest shall:
(1) Be returned to the party with an explanation
of the deficiencies and notice that the party may make corrections and resubmit
the protest within 5 days; and
(2) Be dismissed if not resubmitted in compliance
with (d)(1).
(e) The completed
protest form shall be returned to the commissioner who shall forward it to the
board.
Source. #6651, eff 12-10-97; ss by #6980, eff
4-21-99, EXPIRED: 4-21-07
New.
#8978, INTERIM, eff 9-14-07, EXPIRES: 3-12-08; ss by #9043-A, eff 11-29-07
Mvi 205.02 Filing Fee. Pursuant to RSA 357-C:12, VIII (b), a filing fee
of $1,500 shall be paid to the New Hampshire motor vehicle industry board fund
when a party files a protest under RSA 357-C.
Source. #6651, eff 12-10-97; ss by #6980, eff
4-21-99, EXPIRED: 4-21-07
New.
#8978, INTERIM, eff 9-14-07, EXPIRES: 3-12-08; ss by #9043-A, eff 11-29-07
PART Mvi 206 PREHEARING CONFERENCE
Mvi 206.01 Prehearing
Conferences.
(a) The prehearing
conference shall be scheduled within the time period specified by RSA 357-C:12,
IV. The commissioner shall then schedule
a hearing after consultation with the parties provided that, in no case, shall
the prehearing conference be scheduled more than 90 days after the receipt of
the protest by the board.
(b) The prehearing
conference shall be held by the commissioner or a person designated by the
commissioner. No other person shall be
allowed to attend the prehearing except the parties, and their counsel.
(c) The commissioner
shall provide notice to the parties of:
(1) The date, time, and location of the
prehearing conference;
(2) Any documents that the parties will be
required to exchange at the conference; and
(3) The issues to be reviewed at the prehearing
conference.
(d) The prehearing
conference shall:
(1) Address the possibilities for settlement of
the entire case; and
(2) Settle issues which can be agreed upon prior
to hearing, including but not limited to:
a. The scope of the hearing; and
b. Limits and scheduling of discovery for issues
which are proceeding to hearing.
(e) The commissioner
shall take under advisement and issue a final determination of any issues which
are raised at the prehearing conference. Such determinations shall be
confidential and only available to the designee, the parties, and their
counsel.
(f) The commissioner
shall resolve all issues related to the prehearing conference which are
submitted after completion of the conference, including but not limited to, any
discovery motion, scheduling motion, or other motions regarding prehearing
issues.
(g) If the parties
are unable to resolve their issues without a hearing, the protested matter
shall be placed on the board’s hearing calendar for resolution within 90 days
of the prehearing conference unless another date is agreed to by the parties.
Source. #6651, eff 12-10-97; ss by #6980, eff
4-21-99, EXPIRED: 4-21-07
New. #8978, INTERIM, eff 9-14-07, EXPIRES:
3-12-08; ss by #9043-A, eff 11-29-07
Mvi 206.02
Discovery.
(a) The discovery procedures,
authorized for civil actions in the superior court, shall apply to hearings
held by the board as specified by RSA 357-C:12, III. In all other cases,
discovery shall be permitted as agreed to by the parties or as ordered by the
commissioner following the prehearing conference.
(b) If a protest is
not settled at the prehearing conference, a schedule for discovery shall be
prepared by the parties as ordered during the prehearing conference.
(c) Any motion to
compel discovery shall be decided without hearing unless the commissioner,
following prehearing conference, determines there are genuine issues of fact
which require review by the board.
(d) If the
commissioner orders discovery and either party refuses to comply, upon motion
of the opposing party or by its own motion, the board shall:
(1) Assess civil penalties as provided in RSA
357-C:12, VI and Mvi 208.17; or
(2) Find the non-compliant party in default.
(e) The board shall use
the following criteria when determining what provision of (d) will be applied
to the non-compliant party:
(1) The willfulness of the violation;
(2) The extent to which preparation for hearing
was hindered by non-compliance;
(3) Whether there were repeated violations; and
(4) Any other issue which justice may require.
(f) If the protestor
is the defaulting party, the protest shall be dismissed. If the respondent is the defaulting party
relief shall be granted as requested by the protestor pursuant to Mvi
205.01(c)(5).
(g) At the request
of either party or on his or her own motion the commissioner shall issue an
order prohibiting the parties from disclosing discovery materials to any person
other than the other party, the commissioner or the board.
Source. #6651, eff 12-10-97; ss by #6980, eff
4-21-99, EXPIRED: 4-21-07
New.
#8978, INTERIM, eff 9-14-07, EXPIRES: 3-12-08; ss by #9043-A, eff 11-29-07
PART Mvi 207 SCHEDULING HEARING
Mvi 207.01 Waiver of Hearing. If the parties agree at a prehearing
conference, the hearing shall be waived and the board shall decide the protest
based on written briefs submitted by the parties.
Source. #6980, eff 4-21-99, EXPIRED: 4-21-07
New. #8978,
INTERIM, eff 9-14-07, EXPIRES: 3-12-08; ss by #9043-A, eff 11-29-07
Mvi 207.02 Notice of Hearing.
(a) The board shall
schedule the date, time and location of the hearing and notify the parties.
(b) The notice shall:
(1) Include the date, time and location of the
hearing;
(2) Specify the scope of the hearing, including
the issues involved;
(3) Specify the legal authority under which the
hearing is being held;
(4) Specify the particular sections of the statutes
and rules involved;
(5) Include information regarding continuances
pursuant to Mvi 207.03; and
(6) A statement that each party has the right to
have an attorney present to represent the party at the party’s expense.
Source. #6980, eff 4-21-99, EXPIRED: 4-21-07
New. #8978,
INTERIM, eff 9-14-07, EXPIRES: 3-12-08; ss by #9043-A, eff 11-29-07
Mvi 207.03 Requests for Continuances.
(a) A party requesting
a continuance of a hearing shall submit his/her request in writing and it shall
be received by the board at least 5 working days prior to the hearing.
(b) The written
request, referred to in (a) above, shall contain but not be limited to:
(1) The specific reason(s) for the request;
(2) Optional dates and times when all interested
parties shall be available;
(3) The identity of the requestor; and
(4) The name of the respondent.
(c) The presiding
officer shall grant up to a 30 day extension of time to schedule a hearing if a
party is entitled to a continuance due to one of the following:
(1) Serious illness;
(2) Incarceration;
(3) Death of a family member; or
(4) Other exigent circumstances, beyond the
requestor’s control, that requires the party’s absence from the scheduled
hearing.
Source. #6980, eff 4-21-99, EXPIRED: 4-21-07
New. #8978,
INTERIM, eff 9-14-07, EXPIRES: 3-12-08; ss by #9043-A, eff 11-29-07
PART Mvi 208 HEARING PROCESS
Mvi 208.01 Conduct
of Hearing.
(a) The board shall
conduct a hearing for all issues that are not resolved in prehearing
conferences, unless Mvi 207.01 is applicable.
(b) Each party to
the protest shall have the opportunity to:
(1) Examine all documents and records used at the
hearing;
(2) Have witnesses and cross examine adverse
witnesses;
(3) Present all relevant facts through oral,
written and demonstrative evidence; and
(4) Present and refute any testimony and
evidence.
(c) All oral
testimony shall be presented under oath or affirmation administered by the
presiding officer to each witness prior to testifying.
Source. #6980, eff 4-21-99, EXPIRED: 4-21-07
New. #8978,
INTERIM, eff 9-14-07, EXPIRES: 3-12-08; ss by #9043-A, eff 11-29-07
Mvi 208.02 Control of Hearing.
(a) In cases of
disorder or refusal to comply with the rules of the hearing, the board members
shall use reasonable means, including but not limited to (b) through (d) below,
to control the hearing.
(b) Parties,
representatives, and witnesses shall not engage in bitter exchanges, or
vulgarities. When such an act is committed, the board shall admonish the
offender reminding him/her that such behavior impedes the orderly disposition
of a matter.
(c) If the offense
is repeated and further admonition appears fruitless, the board shall exclude a
disorderly person from the hearing.
(d) A disorderly person shall not lose his/her case
because of offensive conduct or the offensive conduct of his/her representative
or witness.
(e) Notwithstanding
(d) above, if a disorderly person’s offensive conduct is so flagrant that it
prevents the completion of the case, the disorderly person shall be warned that
his/her conduct shall result in a default judgment entered for the case. The
party may reopen the case upon submitting his/her offer of proof or argument in
an orderly fashion.
Source. #6980, eff 4-21-99, EXPIRED: 4-21-07
New. #8978, INTERIM, eff 9-14-07, EXPIRES:
3-12-08; ss by #9043-A, eff 11-29-07
Mvi 208.03 Identification of Parties.
(a) At the opening of a hearing, the board shall:
(1) Determine the identities of all parties and
their representatives and witnesses;
(2) Obtain their addresses and the correct
spelling and pronunciation of their names and addresses;
(3) Record on the report of hearing, the name of
the respondent and his representative(s), and all witnesses appearing; and
(4) Identify themselves, their official titles
and functions and briefly summarize the following:
a. The purpose of the hearing;
b. The scope of the hearing and the issues
involved;
c. The procedural rights of all parties; and
d. The statute(s) and/or rule(s) under which the
hearing is being held.
Source. #6980, eff 4-21-99, EXPIRED: 4-21-07
New. #8978,
INTERIM, eff 9-14-07, EXPIRES: 3-12-08; ss by #9043-A, eff 11-29-07
Mvi 208.04
Sequestering of Witnesses.
(a) If there is a
clear dispute of facts between the parties in which the credibility of the
testimony might determine the outcome of the hearing, the board, on the request
of a party, shall sequester witnesses until they are called to testify.
(b) Parties shall
not be sequestered.
Source. #6980, eff 4-21-99, EXPIRED: 4-21-07
New. #8978,
INTERIM, eff 9-14-07, EXPIRES: 3-12-08; ss by #9043-A, eff 11-29-07
Mvi 208.05 Oaths or Affirmations.
(a) In any hearing
in which administrative action affecting the rights or privileges of any party
might be taken, an oath or affirmation shall be administered by the presiding
officer to each witness prior to identifying each witness and receiving testimony.
(b) If a witness
asserts an objection to the taking of an oath for religious or other related
reasons, an affirmation shall be administered.
(c) Interpreters
shall be administered an oath or affirmation to translate truthfully and accurately,
to the best of their ability, all questions asked and answers given.
(d) Once a witness
has taken an oath or made an affirmation at any hearing it shall not be
necessary for him/her to be sworn again for subsequent testimony on the same
day and in the same case. The record of
the proceeding shall indicate that a person was recalled to testify and
reminded that s/he was still under oath or affirmation.
Source. #6980, eff 4-21-99, EXPIRED: 4-21-07
New. #8978,
INTERIM, eff 9-14-07, EXPIRES: 3-12-08; ss by #9043-A, eff 11-29-07
Mvi 208.06
Rules of Evidence.
(a) Hearings
conducted by the board shall not be bound by the formal rules of evidence or by
common law.
(b) All relevant evidence
shall be admissible.
(c) Evidence may
include but shall not be limited to:
(1) Depositions;
(2) Affidavits;
(3) Official documents; and
(4) Testimony of witnesses.
(d) Pursuant to RSA 541-A:33,
II, the board shall exclude any irrelevant, immaterial, or unduly cumulative or
repetitious evidence.
(e) Applicable
statutory and constitutional privileges and immunities requiring exclusion of
evidence in civil proceedings shall be recognized, provided however, that
nothing contained herein shall prohibit a party from waiving his privilege or
immunity.
Source. #6980, eff 4-21-99, EXPIRED: 4-21-07
New. #8978,
INTERIM, eff 9-14-07, EXPIRES: 3-12-08; ss by #9043-A, eff 11-29-07
Mvi 208.07 Motions Before Hearing.
(a) All motions
shall be in writing unless presented orally at the hearing. Written motions shall be included in the
record of the proceeding and filed together with the case file.
(b) All written
motions submitted on the day of the hearing shall be excluded from
consideration by the board.
(c) Notwithstanding
(b) above, the board shall accept a written motion submitted on the day of the
scheduled hearing if the moving party is able to show:
(1) The existence of newly discovered evidence
which due diligence would not have discovered prior to the hearing; or
(2) Exigent circumstances existed that prevented
the filing of the motion prior to the day of the hearing.
(d) For the purposes
of (c)(2) above, exigent circumstances shall include:
(1) Serious illness;
(2) Hospitalization;
(3) Incarceration;
(4) Death of a family member; or
(5) Any other unforeseeable circumstance beyond a
party’s control that requires the party’s absence from the scheduled hearing.
(e) If the board
accepts a written motion on the day of the scheduled hearing and the opposing
party requests time to respond, a continuance shall be granted. The continuance shall be attributed to the
party submitting the motion.
(f) Oral motions
shall be recorded in full in any transcript of the proceeding.
(g) Once all
testimony has been heard and closing arguments, if any, have been completed,
the hearing shall be closed and no motion(s) in any form shall be allowed.
Source. #6980, eff 4-21-99, EXPIRED: 4-21-07
New. #8978,
INTERIM, eff 9-14-07, EXPIRES: 3-12-08; ss by #9043-A, eff 11-29-07
Mvi 208.08 Official Notice.
(a) The board shall
take official notice of the materials specified in RSA 541-A:33, V.
(b) The board shall
state on the record the matters of which official notice shall be taken, and
afford the parties the opportunity to object.
Source. #6980, eff 4-21-99, EXPIRED: 4-21-07
New. #8978,
INTERIM, eff 9-14-07, EXPIRES: 3-12-08; ss by #9043-A, eff 11-29-07
Mvi 208.09
Record of Hearing.
(a) All evidence and
testimony presented in a hearing shall constitute the record for the purpose of
the board rendering a decision.
(b) The board shall
tape record all hearings and shall so notify the parties before the hearing
begins.
(c) The board shall:
(1) Retain a copy of hearing tapes, its written
decisions and orders, and records of its hearings in accordance with RSA
541-A:30, VII.
(2) Provide copies of the information in (1)
above, as required by RSA 91-A.
(3) Make available a true and accurate copy of
the hearing tape(s) upon receipt of a blank 90 minute tape(s).
(d) Pursuant to RSA
91-A:4, any person who requests a copy of the hearing transcript shall pay the
actual cost of copying or transcribing.
(e) Any person or
party attending a hearing may tape or otherwise record the hearing. The board shall inform the parties that the
official record of the hearing shall be the record made by the board.
Source. #6980, eff 4-21-99, EXPIRED: 4-21-07
New. #8978,
INTERIM, eff 9-14-07, EXPIRES: 3-12-08; ss by #9043-A, eff 11-29-07
Mvi 208.10
Board Member Withdrawal. A
board member shall withdraw from a case if at any stage of the hearing process
s/he determines that:
(a) Presently, or in
the past, s/he has had a personal or business relationship with a party, witness
or attorney that may hinder him from arriving at an impartial decision on the
issue(s); or
(b) S/he cannot
render an impartial decision for any other reason.
Source. #6980, eff 4-21-99, EXPIRED: 4-21-07
New. #8978,
INTERIM, eff 9-14-07, EXPIRES: 3-12-08; ss by #9043-A, eff 11-29-07
Mvi 208.11 Concluding
Proceeding. No party shall be
required to rest his case at a given time, except when the board has heard all
relevant evidence and rebuttals.
Source. #6980, eff 4-21-99, EXPIRED: 4-21-07
New. #8978,
INTERIM, eff 9-14-07, EXPIRES: 3-12-08; ss by #9043-A, eff 11-29-07
Mvi 208.12
Decision of the Board.
(a) For the purpose of
rendering a decision, 4 members of the board shall constitute a quorum.
(b) All decisions
shall be reached on the basis of a preponderance of the evidence.
(c) The disposition
of the protest shall be in writing and shall set forth findings of fact,
conclusions of law and a final disposition made by the board.
(d) The board’s
decision shall be rendered within 30 days of the conclusion of the hearing.
(e) The board’s
decision shall be mailed to the parties.
Source. #6980, eff 4-21-99, EXPIRED: 4-21-07
New. #8978, INTERIM, eff 9-14-07, EXPIRES:
3-12-08; ss by #9043-A, eff 11-29-07
Mvi 208.13 Reopening.
(a) Whenever the
board is satisfied that good cause exists to explain why a person failed to appear
at a hearing at which a default judgment was rendered, the board shall strike
the default judgment and reopen the case for a determination on the merits.
(b) Good cause shall
include, but not be limited to:
(1) Serious illness;
(2) Hospitalization;
(3) Incarceration;
(4) Death of a family member; or
(5) Any other unforeseeable circumstance beyond
the party’s control, that requires the party’s absence from the scheduled
hearing.
(c) A case which has
been decided other than by default shall be reopened whenever:
(1) A party alleges the existence of
newly-discovered evidence which due diligence would not have discovered prior
to hearing; or
(2) A party alleges any material error, omission,
misconstruction of applicable statutes or rules or misrepresentation of
applicable precedents.
Source. #6980, eff 4-21-99, EXPIRED: 4-21-07
New. #8978,
INTERIM, eff 9-14-07, EXPIRES: 3-12-08; ss by #9043-A, eff 11-29-07
Mvi 208.14
Rehearing Procedure.
(a) Pursuant to RSA
357-C:12,VII, a party shall request a rehearing for reconsideration with the
board prior to bringing an appeal to superior court.
(b) A request for
rehearing shall be filed on the application for rehearing with the board within
20 days after an order or decision has been made.
(c) The board shall
respond to the request for rehearing within 30 days of receipt of the
application.
(d) The board’s response
to the request for rehearing shall be in the form of a denial or a date for
rehearing.
Source. #6980, eff 4-21-99, EXPIRED: 4-21-07
New. #8978, INTERIM, eff 9-14-07, EXPIRES:
3-12-08; ss by #9043-A, eff 11-29-07
Mvi 208.15
Application for Rehearing.
(a) The application
for rehearing shall be addressed to the chairman of the board.
(b) The application
shall be in the form of a letter and shall include every ground on which the
applicant asserts the hearing or the outcome of the hearing is unlawful or
unreasonable.
(c) The applicant
shall submit the application to the board within 20 days after the complained
of order or decision was made.
Source. #6980, eff 4-21-99, EXPIRED: 4-21-07
New. #8978,
INTERIM, eff 9-14-07, EXPIRES: 3-12-08; ss by #9043-A, eff 11-29-07
Mvi 208.16
Appeal of Sanction Imposed by Board. Any decision or order of the board shall remain
in full force and effect pending the outcome of the appeal or expiration of the
decision or order imposed.
Source. #6980, eff 4-21-99, EXPIRED: 4-21-07
New. #8978,
INTERIM, eff 9-14-07, EXPIRES: 3-12-08; ss by #9043-A, eff 11-29-07
Mvi 208.17
Civil Penalties. The
amount of a civil penalty, as authorized by RSA 357-C:12, II (b) and VI,
imposed by the board for a violation of its order(s) shall be based on the
following:
(a) The
appropriateness of a penalty in relation to the size of the business of the
party charged;
(b) The gravity of
the violation;
(c) Whether the
non-compliant party made a good faith attempt to comply with an order;
(d) Degree of
culpability of the non-compliant party;
(e) History of prior
violations;
(f) Effect of the
penalty on the party;
(g) Other matters as
justice may require.
Source. #6980, eff 4-21-99, EXPIRED: 4-21-07
New. #8978,
INTERIM, eff 9-14-07, EXPIRES: 3-12-08; ss by #9043-A, eff 11-29-07
Mvi 208.18 Appeals. Any appeal shall be filed with the superior
court within 30 days after the board rules on an application for rehearing,
pursuant to RSA 357-C:12,VII.
Source. #6980, eff 4-21-99, EXPIRED: 4-21-07
New. #8978, INTERIM, eff 9-14-07, EXPIRES:
3-12-08; ss by #9043-A, eff 11-29-07
PART
Mvi 209 SCOPE OF HEARINGS
Mvi 209.01 RSA 357-C:3, Prohibited Conduct. The scope of hearings held pursuant to RSA 357-C:3,
shall be limited to whether any person has engaged in unfair business practice
as specified in RSA 357-C:3, I through IV.
Source. #6980, eff 4-21-99, EXPIRED: 4-21-07
New.
#8978, INTERIM, eff 9-14-07, EXPIRES: 3-12-08; ss by #9043-B eff
11-29-07
Mvi 209.02 RSA 357-C:4, Delivery and Preparation
Obligations. The scope of hearings
held pursuant to RSA 357-C:4 shall be limited to whether the manufacturer
provided the delivery and preparation obligations of its motor vehicle dealers
as specified in RSA 357-C:4.
Source. #6980, eff 4-21-99, EXPIRED: 4-21-07
New.
#8978, INTERIM, eff 9-14-07, EXPIRES: 3-12-08; ss by #9043-B, eff
11-29-07
Mvi 209.03 RSA
357-C:5, Warranty Obligations, Transportation Damage and Indemnification. The scope of hearings held pursuant to RSA
357-C:5 shall be limited to the issues specified in RSA 357-C:5 which were
asserted as the grounds for the violation of the law by the protestor.
Source. #6980, eff 4-21-99, EXPIRED: 4-21-07
New.
#8978, INTERIM, eff 9-14-07, EXPIRES: 3-12-08; ss by #9043-B, eff
11-29-07
Mvi 209.04 RSA 357-C:6, Agreements Governed.
(a) The scope of hearings
held pursuant to RSA 357-C:6 shall be limited to:
(1) For protests filed pursuant to RSA 357-C:6,
I, whether any written or oral agreement is void as against public policy and
unenforceable in this state;
(2) Whether the manufacturer, distributor,
distributor branch or division, factory branch or division, or agent thereof
provided a copy of a new or amended selling agreement to the dealer as required
by RSA 357-C:6, II; or
(3) For protests filed pursuant to RSA 357-C:6,
III, whether the agreement manufacturer or distributor agreement included the
specific language required by RSA 357-C:6, III.
(b) If a protest
alleges a violation of more than one section of RSA 357-C:6 then the board
shall include any applicable provision of (a), above.
Source. #6980, eff 4-21-99, EXPIRED: 4-21-07
New. #8978, INTERIM, eff 9-14-07, EXPIRES:
3-12-08; ss by #9043-B, eff 11-29-07
Mvi 209.05
RSA 357-C:7, Limitations on Cancellations, Terminations or
Nonrenewals.
(a) The scope of
hearings held pursuant to RSA 357-C:7 shall be limited to whether:
(1) The manufacturer satisfied the notice
requirement specified in RSA 357-C:7. VI;
(2) The manufacturer acted in good faith; and
(3) The manufacturer has good cause as defined by
RSA 357-C:7, II, for the cancellation, termination, nonrenewal, or
noncontinuance of the franchise.
(b) The manufacturer
shall bear the burden of proof as specified in RSA 357-C:7, IV.
Source. #6980, eff 4-21-99, EXPIRED: 4-21-07
New. #8978,
INTERIM, eff 9-14-07, EXPIRES: 3-12-08; ss by #9043-B, eff 11-29-07
Mvi 209.06
RSA 357-C:8, Survivorship.
(a) The scope of
hearings held pursuant to RSA 357-C:8 shall be limited to:
(1) Whether a designated family member or a
deceased or incapacitated new motor vehicle dealer notified the manufacturer,
distributor, factory branch or factory representative or importer of his or her
intention to succeed to the dealership as specified in RSA 357-C:8, I;
(2) Whether the manufacturer, distributor,
factory branch or factory representative or importer had good cause to deny the
succession. For the purposes of this
rule good cause shall not include an evaluation of the relevant market area or
other criteria which would compare the successor to potential franchisees in
the area; and
(3) Whether the manufacturer, distributor,
factory branch or factory representative or importer provided adequate notice
as specified in RSA 357-C:8, II.
Source. #6980, eff 4-21-99, EXPIRED: 4-21-07
New. #8978,
INTERIM, eff 9-14-07, EXPIRES: 3-12-08; ss by #9043-B, eff 11-29-07
Mvi 209.07 RSA 357-C:9, Relocation or Establishment
of Dealerships.
(a) The scope of hearings
held pursuant to RSA 357-C:9 shall be limited to whether the manufacturer
complied with the requirements of RSA 357-C:9.
(b) Whether the
manufacturer had good cause to relocate or not enter into an agreement shall be
limited to the criteria specified in RSA 357-C:9, II.
Source. #6980, eff 4-21-99, EXPIRED: 4-21-07
New. #8978, INTERIM, eff 9-14-07, EXPIRES:
3-12-08; ss by #9043-B, eff 11-29-07
Mvi 209.08
RSA 357-C:10, Franchisee’s Right to Associate. The scope of hearings held pursuant to RSA
357-C:10 shall be limited to whether a franchisor has attempted to interfere
with franchisees right to associate for any lawful purpose.
Source. #6980, eff 4-21-99, EXPIRED: 4-21-07
New. #8978,
INTERIM, eff 9-14-07, EXPIRES: 3-12-08; ss by #9043-B, eff 11-29-07
Mvi 209.09 RSA 357-C:11, Discounts and Other
Inducements. The scope of hearings held pursuant to RSA 357-C:11 shall be limited to whether, in connection with
the sale of a motor vehicle to the state or a political subdivision thereof, a
manufacturer or distributor offered any discounts, refunds, or similar
inducement to the dealer without making the same offer to other dealers in the
relevant market area.
Source. #6980, eff 4-21-99, EXPIRED: 4-21-07
New. #8978,
INTERIM, eff 9-14-07, EXPIRES: 3-12-08; ss by #9043-B, eff 11-29-07
PART Mvi 210 RULEMAKING
Mvi 210.01 Petition.
(a) Petitions for
rulemaking shall be in writing.
(b) The petitioner
shall include a cover letter stating the reasons that rule is being proposed.
(c) The petitioner
shall include his/her name, address, and phone number.
(d) Petitions shall
be sent to the motor vehicle industry board. department of safety,
(e) The board shall
deny a rulemaking petition if:
(1) The board determines it does not have
rulemaking authority pursuant to RSA 357-C or RSA 541-A;
(2) The petition does not clearly identify the
issues which require rulemaking;
(3) There is an existing rule which addresses the
issues raised in the petition; or
(4) The board determines the petition is
inconsistent with RSA 357-C and any applicable case law.
(f) Pursuant to RSA
541-A:4, the board shall notify the petitioner in writing whether the petition
was granted or denied. If the petition
is denied, the notification letter shall state the reasons for denial.
Source. #6980, eff 4-21-99, EXPIRED: 4-21-07
New. #8978, INTERIM, eff 9-14-07, EXPIRES:
3-12-08; ss by #9043-A, eff 11-29-07
Mvi 210.02
Notice. The board shall
cause to be published in the New Hampshire Rulemaking Register a notice of its intent
to hold a rulemaking hearing pursuant to RSA 541-A:6.
Source. #6980, eff 4-21-99, EXPIRED: 4-21-07
New.
#8978, INTERIM, eff 9-14-07, EXPIRES: 3-12-08; ss by #9043-A, eff 11-29-07
Mvi 210.03 Presiding Officer.
(a) The hearing shall be presided over by the
chairperson of the board or his or her designee.
(b) The chairperson or designee shall:
(1) Determine whether a quorum of the board is
present for the hearing.
(2) Call the hearing to order;
(3) Cause a recording of the hearing to be made;
(4) Recognize those who wish to be heard;
(5) Maintain order during the hearing; and
(6) Adjourn the hearing.
Source. #9043-A,
eff 11-29-07
Mvi 210.04 Order of the Hearing.
(a) Any individual who wishes to testify at the
hearing shall provide his or her full name on a speakers list furnished by the
board.
(b) Individuals shall be called to testify in the
order in which they signed up.
(c) Before adjourning the public hearing and
after all individuals who signed up have been heard, the chairperson or
designee shall call for any new testimony from any new speaker.
(d) When the chairperson or designee has determined
that no other individual wishes to testify, he or she shall close the public
hearing.
Source. #9043-A,
eff 11-29-07
Mvi 210.05 Postponement and Continuations.
(a) The chairperson or designee shall postpone a hearing
to a later date, time or place in the event of:
(1) Inclement weather;
(2) A lack of a quorum; or
(3) Determination by the board that postponement
of the hearing shall facilitate greater participation by the public.
(b) The chairperson or designee shall continue a
hearing to a later date, time or place in the event that:
(1) The time allotted is not sufficient to give
each individual who wishes to testify an opportunity to do so; or
(2) A lack of quorum.
(c) Notice of a postponement or continuation of a
public hearing or of extension of the public comment period shall be provided
pursuant to RSA 541-A:11, III and IV (d).
Source. #9043-A,
eff 11-29-07
Mvi 210.06 Written Comments. Individuals may submit comments in writing or
electronic format to the board on proposed rulemaking actions any time from the
time notice has been published until the end of the public comment period as
set forth in the notice of rulemaking.
Source. #9043-A,
eff 11-29-07
Mvi 210.07 Copies of Recordings.
(a) All rulemaking hearings shall be recorded.
(b) A copy of the digital record shall be
provided upon request and upon providing the required number of CD(s) upon
which the record is copied and a $25 fee.
(c) All requests for a copy of the recording
shall be made by submitting a written request to:
Motor Vehicle Industry
Board
Department of Safety
(d) Recordings of proceedings shall be preserved
for no less than 75 days from the conclusion of the hearing date.
Source. #9043-A,
eff 11-29-07
PART Mvi 211 DECLARATORY RULING
Mvi 211.01 Submitting
Request for Declaratory Ruling.
(a) Individuals petitioning for a declaratory
ruling, as defined by RSA 541-A:1,V, shall submit the following information to
the board in writing:
(1) The specific statute, rule, or order whose
applicability is being questioned;
(2) The interest of the petitioner;
(3) The activity in question; and
(4) The name, address, and phone number of the
petitioner.
(b) Any petition
which does not include the information in (a) above shall be inadequate.
Source. #6980, eff 4-21-99, EXPIRED: 4-21-07
New.
#8978, INTERIM, eff 9-14-07, EXPIRES: 3-12-08; ss by #9043-A, eff 11-29-07
Mvi 211.02 Disposition of Petition.
(a)
The board shall act on the petition as follows:
(1) Issue a written declaratory ruling within 30
days of the meeting at which the petition was considered; or
(2) Reject the declaratory ruling petition if it
is inadequate or beyond the scope of the of the board’s authority as specified
in RSA 357-C.
Source. #6980,
eff 4-21-99, EXPIRED: 4-21-07
New.
#8978, INTERIM, eff 9-14-07, EXPIRES: 3-12-08; ss by #9043-A, eff 11-29-07
PART Mvi 212 EXPLANATION OF RULE
Mvi 212.01 Request
for Rule Explanation.
(a) Within 30 days
after the adoption of a rule, any interested person may request the board to
issue a statement explaining the following:
(1) The principle reason(s) for and against the
adoption of a rule in its final form; or
(2) Reasons why the board overruled arguments and
considerations relative to the rule.
(b) Rule explanation
requests shall be received and disposed of in the following manner:
(1) Requests shall be submitted to the board at:
Motor Vehicle Industry
Board
Department of Safety
(2) When a request for rule explanation has been
received by the board, the board shall issue a statement responsive to the
request within 60 days. The statement
shall provide the information required by (a) above.
Source. #9043-B eff 11-29-07
APPENDIX
|
RULE |
STATUTE |
|
|
|
|
Mvi 201.01 |
RSA 541-A:7 |
|
Mvi 201.02 |
RSA 541-A:16, I(b) |
|
Mvi 202 |
RSA 541-A:7 |
|
Mvi 203 |
RSA 357-C:12 |
|
Mvi 204.01 – 204.03 |
RSA 541-A:16, II(b)(2) |
|
Mvi 204.04 |
RSA 91-A:2 |
|
Mvi 204.05 – 204.09 |
RSA 541-A:16, II(b)(2) |
|
Mvi 205.01 |
RSA 357-C:12, II(a);
541-A:16, I(b)(2) |
|
Mvi 205.02 |
RSA 357-C:12, VIII(b) |
|
Mvi 206 -208.16 |
RSA 541-A:16, I(b)(2) |
|
Mvi 208.17 |
RSA 357-C:12, II(b)
and VI |
|
Mvi 208.18 |
RSA 375-C:12, VII |
|
Mvi 209.01 |
RSA 357-C:3 |
|
Mvi 209.02 |
RSA 357-C:4 |
|
Mvi 209.03 |
RSA 357-C:5 |
|
Mvi 209.04 |
RSA 357-C:6 |
|
Mvi 209.05 |
RSA 357-C:7 |
|
Mvi 209.06 |
RSA 357-C:8 |
|
Mvi 209.07 |
RSA 357-C:9 |
|
Mvi 209.08 |
RSA 357-C:10 |
|
Mvi 209.09 |
RSA 357-C:11 |
|
Mvi 210 |
RSA 541-A:16, I(c) |
|
Mvi 211 |
RSA 541-A:16, I(d) |
|
Mvi 212 |
RSA 541-A:11, VII |