PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following proposed rule:
Proposed Action:
This is a consensus rule making to amend Part 155 of Title 15 NYCRR.
Statutory authority:
Vehicle and Traffic Law, sections 215(a), 261, 469 and 471-a(5)
Subject:
Appeals Board procedures.
Purpose:
To conform Part 155 to the Appeals Board's current policies and procedures.
Text of proposed rule:
Subdivisions (a), (c) and (d) of section 155.1 are amended to read as follows:
155.1 Administrative appeals board.
(a) The appeals board as established by section 228, article 2-A of the Vehicle and Traffic Law shall also constitute the administrative appeals board under article 3-A of such law. Each appeal shall be considered by members of the board, sitting as a panel. Each panel shall consist of three members designated as hereinafter provided. Hearing officers may be designated as members of each panel. At least two votes shall be required for a decision. (Appeals arising from determinations made pursuant to article 2-A of the Vehicle and Traffic Law, adjudication of traffic infractions, shall be considered and determined in accordance with regulations prescribed in Part [125] 126 of the regulations of the commissioner.)
(c) General direction and supervision of the administrative appeals board shall be exercised by the [Chairman] Chairperson of the Motor Vehicle Appeals Board who shall designate the individual members and presiding officers of the various panels and shall be the presiding officer of any panel of which he or she is a member. [The vice-chairman of the motor vehicle appeals board shall assist the chairman in the general direction and supervision of the administrative appeals board, perform the functions of the chairman in the absence of the chairman and, unless the chairman shall also be a member of the panel, shall be the presiding officer of any panel of which he is a member.]
(d) Members of the public, attorneys, and interested parties may obtain information or make submissions or requests concerning administrative appeals by writing to the Appeals Board at:
Appeals Board
Department of Motor Vehicles
P.O. Box 2935
Albany, NY 12220-0935
Information may be obtained by telephone at 518-474-1052.
Subdivisions (a) and (b) of section 155.2 are amended and a new subdivision (c) is added to read as follows:
155.2 [Fees, procedures in appeals involving no hearings]. Appeal fees, forms, and filing deadlines.
(a) A fee of $10, which shall not be refundable, must be paid at the time the appeal form is filed [from a determination not based upon a hearing]. An appeal shall be rejected for failure to pay the $10.00 appeal fee within the required time to file an appeal.
(b) Appeals [from a determination not based upon a hearing at which testimony was taken may be submitted on a form] must be submitted on the form and in the manner prescribed for such purpose. [not later than 60 days from the date after written notice was given of the determination appealed from, excluding the date of the determination.] No appeal of a determination shall be considered if it is filed more than 60 days after the date of the Department’s order of suspension or revocation, decision letter, or other notice of determination. A copy of the written determination from which the appeal is taken must be filed with the appeal form.
(c) An appeal of a determination not based upon a hearing shall be considered filed for consideration by the Board upon the filing of the completed appeal form and appeal fee. An appeal from a determination based upon a hearing shall be considered filed for consideration by the Board upon the filing of the completed appeal form, appeal fee, completed transcript, if applicable, and arguments in support of the appeal. Any arguments in support of an appeal that are based upon a hearing transcript must be submitted within 30 days of the date the transcript was sent to the appellant.
Sections 155.3 and 155.4 are repealed and new sections 155.3 and 155.4 are added to read as follows:
155.3 Hearing transcripts.
(a) If the determination being appealed was based upon a DMV hearing, the Appeals Board shall not review the hearing transcript unless the appellant requests review of the transcript on the appeal form and pays for the transcript in a timely manner.
(b) If a transcript has been properly ordered prior to filing an appeal, the appellant must notify the Appeals Board upon filing an appeal that such transcript has been ordered and include the date the transcript was ordered and received.
(c) Transcripts can only be obtained from the firm which holds the contract to produce transcripts of Department hearings. The cost of such transcript, which is payable by the appellant, shall be the price for such transcripts as contained in the contract between the Department and the independent contractor.
(e) A transcript will be considered to have been submitted in timely fashion if proof that the transcript has been paid for not later than thirty (30) days after the Board has mailed an acknowledgement of receipt of the appeal with instructions for ordering the transcript is submitted to the appeals board. Proof that the transcript has been ordered and paid for shall consist of acknowledgment of receipt of timely transcript payments by the transcription firm.
(f) If a request for review of the transcript is made, and the transcript is not submitted in timely fashion in accordance with subdivision (d) of this section, the appeal will be deemed untimely and will not be considered.
155.4 Procedures.
(a) Presumption of mailing and delivery. All necessary notices may be mailed from the Appeals Board to the address provided on the appeal form, or if notice of change of address is delivered via certified mail to the Appeals Board, to the address specified in such notice. Mailing in the regular course of business shall be presumed to have occurred on the date shown in the records of the Appeals Board as the date of any notice, bill or other correspondence addressed to appellant or his representative.
(b) Arguments and materials. Oral arguments of the appeal are not permitted. Evidence, exhibits or documents not submitted to and considered by the hearing officer may not be filed with the appeal and will not be reviewed by the Appeals Board. A brief or written argument in support of the appeal may be submitted and must be filed with the Appeals Board within 30 days after the transcript has been sent to the appellant. At such time, the appeal will be considered fully submitted and ready for consideration by the Appeals Board (Section 155.2(c) of this Part). Upon written request and for good cause shown, the chairperson of the Appeals Board may grant an extension of time in writing to the appellant for submission of additional arguments in support of the appeal. In the event that an extension is granted to submit such argument, the time for determination of the appeal shall automatically be extended by a like period.
(c) Proof of mailing and payment. All papers actually received at the office of the Board will be treated as timely if the mailing bears a legible postmark evidencing receipt by the post office within the required time. All mail received by the Board will be date stamped and, in the absence of legible postmark or other U.S. postal record, will be treated according to the actual date of receipt demonstrated by the records of the Board. Proof of payment of required fees and costs may be made only by actual receipts issued by the Board or by production of payment instruments actually presented to and collected by the Board.
Subdivisions (b) and (c) of section 155.5 are amended to read as follows:
155.5 Determinations and stays.
(b) If a final disposition is not made within 30 days after an appeal has been finally submitted, any suspension or revocation order being appealed will be [automatically] deemed stayed until a final disposition is made. Upon request by the appellant, the appeals board chairperson may grant a [A] stay pending determination of the appeal [may also be granted], in his or her discretion, [by the appeals board upon the request of the appellant,] as prescribed in section 262 of the Vehicle and Traffic Law.
(c) A stay, which takes effect pursuant to section 463(2)(e)(1) of the Vehicle and Traffic Law, shall remain in effect through the pendency of an appeal and any subsequent judicial action, authorized by section 469 of such Law.
A new section 155.8 is added to read as follows:
155.8 Appeals pursuant to the Franchised Motor Vehicle Dealer Act. Section 471-a(5) of the Vehicle and Traffic Law provides that any party may file an appeal of a determination made pursuant to such section in accordance with section 261 of such Law. No such determination shall be reviewed in any court unless an appeal has been filed and determined by the Appeals Board.
Text of proposed rule and any required statements and analyses may be obtained from:
Heidi Bazicki, Department of Motor Vehicles, 6 Empire State Plaza, Rm. 522A, Albany, NY 12228, (518) 474-0871, email: heidi.bazicki@dmv.ny.gov
Data, views or arguments may be submitted to:
Ida L. Traschen, Same as above.
Public comment will be received until:
45 days after publication of this notice.
Consensus Rule Making Determination
Vehicle and Traffic Law § 260(1) provides that the Appeals Board established pursuant to Article 2-A shall also constitute the Appeals Board for the purpose of Article 3-A. Vehicle and Traffic Law § 261(3) also provides that any person desiring to file an appeal pursuant to Article 3-A shall do so in a form and manner provided by the Commissioner. The proposed revisions would make technical revisions to Part 155 of the Commissioner’s Regulations, pertaining to appeals filed pursuant to Article 3-A. The revisions would clarify the appeal process for Article 3-A appeals and conform procedures to existing regulations and practice. The proposal would benefit the agency and the public by eliminating any confusion about the appeal process and creating clear, uniform procedures and standards that are in accord with law.
The proposed rule provides reflects current statutory provisions and procedures. For example, it clarifies the procedures related to how an appeal may be filed, when it must be timely filed, the proper submission of transcripts, proof of mailing, and determination of stays. In addition, the regulation makes clear that a stay which takes effect pursuant to Franchised Motor Vehicle Dealer Act shall remain in effect through the pendency of the appeal and any subsequent judicial action.
Since the proposed amendments reflect current law and procedure, a consensus rulemaking is appropriate.
Job Impact Statement
A Job Impact Statement is not submitted with this rule because it will not have an adverse impact on job creation or development.
