New
Mexico Register / Volume XXXV, Issue 12 / June 25, 2024
TITLE 18 TRANSPORTATION AND HIGHWAYS
CHAPTER 9 REGULATORY PROCEDURES
PART 1 GENERAL
PROVISIONS - HEARINGS
18.9.1.1 ISSUING AGENCY: New
Mexico Department of Transportation.
[18.9.1.1 NMAC - N, 7/1/2024]
18.9.1.2 SCOPE: This rule applies to all transportation
service providers subject to the jurisdiction of the department of
transportation under the Motor Carrier Act, Sections 65-2A-1 to -41 NMSA 1978,
the Ambulance Standards Act, Sections 65-6-1 to -6 NMSA 1978, and the
Transportation Network Company Services Act, Sections 65-7-1 to -22 NMSA 1978.
[18.9.1.2 NMAC - N, 7/1/2024]
18.9.1.3 STATUTORY AUTHORITY: Sections 65-2A-4, 65-6-4, 65-7-21 to -22, and
67-3-6.1 NMSA 1978, and 2023 N.M. Laws, Chapter 100, Section 81.
[18.9.1.3 NMAC - N, 7/1/2024]
18.9.1.4 DURATION: Permanent.
[18.9.1.4 NMAC - N, 7/1/2024]
18.9.1.5 EFFECTIVE DATE: July
1, 2024 unless a later date is cited at the end of a
section.
[18.9.1.5 NMAC - N, 7/1/2024]
18.9.1.6 OBJECTIVE: The purpose of this rule is to
set forth the administrative hearing procedures applicable to motor carrier and
transportation network services in New Mexico.
[18.9.1.6 NMAC - N, 7/1/2024]
18.9.1.7 DEFINITIONS:
A. “Applicant” means any party on whose behalf an application is made for approval or
authorization of the department.
B. “Calendar days” means that the time period shall be counted as
follows:
the day of the event
that triggers the period shall be excluded.
all intermediate
days shall be counted, including the weekend and legal holidays; and
the last day of the
period shall be counted. However, if the
last day is a weekend or legal holiday then the period is extended to the next
business day.
C. “Commentor” means a person other than a party who provides a statement for
consideration on the grounds of a public or private interest.
D. “Complainant” means a person who complains of anything done or omitted to be done in
violation of any law, rule, or administrative order;”.
E. “Confidential information” means information that is personally
sensitive or protected by law, and includes driver’s license numbers, taxpayer
identification numbers, social security numbers, dates of birth, health
treatments or diagnoses, and financial account numbers.
F. “Date and time of filing” means the date and time on the electronic
mail transmittal that is received by the records bureau with a request for
filing services.
G. “Department” means the New Mexico department of transportation.
H. “Director” means the supervisor of the compliance unit staff tasked with assessing
the compliance of transportation services regulated by the department.
I. “Electronic signature” means a full, printed name of the person
responsible for the electronic version of the document by scanned or other
electronic reproduction of the signature or by typing in the signature line the
notation “/s/” followed by the name of the person signing the original document
accompanied by the email address of the person signing.
J. “File, filed, or filing” means the electronic mail submission to
the department’s records bureau with a request for filing services.
K. “Hearing examiner” means a person employed or designated by the department as the official
tasked with conducting an administrative hearing and recommending a decision.
L. “Intervenor” means a person authorized by law or permitted by the hearing examiner
to participate as a party in an administrative hearing.
M. “Order” means
a directive, determination or ruling on a disputed matter issued by the
department.
N. “Party” means
a person who initiates a proceeding by filing a petition or complaint, a
respondent to a filed petition or complaint, any person granted leave to
intervene in a matter, and staff.
O. “Petitioner” means any party on whose behalf a petition is made for a determination
or action by the department.
p “Pleading” means a petition, complaint, answer, motion, response, exception, or
other formal written statement filed in a proceeding.
Q. “Hearing” means a public proceeding conducted by a hearing examiner, that affords
an opportunity for parties to present evidence, testimony and argument as are
deemed relevant or material to the disputed issues.
R. “Respondent” means any party against whom any complaint is filed or any party
subject to the department’s jurisdiction to whom a notice is issued instituting
a proceeding or investigation.
S. “Secretary” means the secretary of the department.
T. “Staff” means
persons employed by the department to assess the compliance of motor carrier
and transportation network services subject to the jurisdiction of the
department.
[18.9.1.7 NMAC - N, 7/1/2024]
18.9.1.8 HEARING REQUEST:
A. Written request required: Any person seeking a hearing shall timely file a written request for
hearing. The request shall be brief and
include:
(1) the
requestor’s name, title, business name and telephone number;
(2) a
short summary of the reason for the hearing request; and
(3) identify
or attach the action or proposed action that is the basis for the request.
B. Time limits: A request for hearing is timely submitted if filed:
(1) to
contest or protest any application, within the statutorily prescribed notice
period of 19 calendar days; and
(2) to
contest a notice of a proposed action by the department, within 30 calendar days
of the notice date.
C. Rejection of request: A hearing request may be rejected in writing by a hearing examiner (or
designee) for only the following reasons: the issues are unripe or moot, the
department lacks jurisdiction, a hearing is discretionary, the request is untimely or the request is substantively deficient. Any request rejected as substantively
deficient may be corrected and resubmitted but the time for submission will not
be tolled. A motion for reconsideration
may be filed for any rejected hearing request.
D. Acceptance of request: Acceptance of a pleading or document for filing is not a determination
that the pleading or document complies with all requirements and is not a
waiver of such requirements.
E. Consolidation: Proceedings involving similar questions of
law or fact may be consolidated for a single public hearing where the rights of
the parties will not be prejudiced by such procedure.
F. Opening of a docket:
A docket shall be
opened and assigned an appropriate case docket number by the records bureau
upon written request by staff or upon a determination by the hearing examiner
that a hearing is warranted.
[18.9.1.8 NMAC - N, 7/1/2024]
18.9.1.9 ELECTRONIC FILING AND SERVICE OF PLEADINGS:
A. Electronic filing required: All filings must be submitted electronically in PDF format to the
records bureau. The hearing examiner may
require that any document filed in PDF be additionally supplied directly to
hearings or parties in the document’s native format.
B. Fees: A pleading will not be filed until payment of
any required fee, as identified in Rule 18.3.5 NMAC, is electronically or
physically received by the records bureau.
C. Public disclosure and protection of information: All records submitted, created or held by the department are subject to
public disclosure with certain exceptions, as provided by law. Unauthorized or damaging public disclosure of
sensitive information is avoided as follows:
(1) Redaction
requirements: Unless critical to a
determination of the issues at hearing, all confidential information shall be
redacted by blacking out only the affected text prior to the submission of any
filing;
(2) Protective
order: When confidential, sensitive
and protected information is critical to the determination of the issues at
hearing, a motion for protective order shall be filed along with a redacted
version of the document. The request
shall provide any legal basis and state with particularity the injury which may
result from the disclosure of that information. The hearing examiner shall determine the
extent and the manner in which that information is
required to be disclosed.
D. Identifying information and signature required: The submitting party must include their name, business name and
operating authority numbers as applicable, email address and telephone number,
as well as their electronic or scanned signature on each filing.
E. Prompt service required: A true
and correct copy of all documents filed in a proceeding shall be promptly
served, by email if available, upon all parties and persons (or their attorney
representative) identified on the official service list issued by the hearing
examiner. If an official service list
has not yet been issued for the docket, then service must be made on all known interested parties, including staff.
F. Certificate of service required: A certificate of service listing the name each person or entity served,
email or physical address used for service, and date of service shall accompany
each petition submitted for filing.
G. Rejection: Documents not in substantial
compliance with these rules may be rejected by the records bureau or hearing
examiner. Rejected documents may be
amended for compliance and refiled within 24 hours after the rejection, or
within the prescribed filing timeframe. Rejected
filings shall not be included in the record or be considered in the final
order.
[18.9.1.9 NMAC - N, 7/1/2024]
18.9.1.10 REPRESENTATION IN PROCEEDINGS:
A. Representation: Only the person challenging the action or for
a business, a bona fide majority owner, or an attorney licensed and authorized
to practice in New Mexico may represent a person in a proceeding.
B. Entry of appearance: A formal written entry of appearance must be filed by any attorney
wishing to represent a person or party to a proceeding.
C. Verification: The
hearing examiner may require any person or entity to provide appropriate
documentation in order to verify any claimed
representational authority.
D. Failure to appear: A party that provides no appearance at a
scheduled hearing is deemed to have abandoned and dismissed their request for
hearing unless, within 10 calendar days after the date of the scheduled
hearing, the party presents good cause for failure to appear; “good cause” includes
death in the family, disabling personal illness, or other significant emergency;
at the discretion of the hearing examiner, other extraordinary circumstances
may be considered good cause.
[18.9.1.10 NMAC - N, 7/1/2024]
18.9.1.11 HEARING EXAMINER AUTHORITY AND
DUTIES:
A. Impartiality: A hearing examiner shall disqualify
themselves from any case in which they have a personal stake, relationship or
prior involvement in the underlying dispute, or when their impartiality is
reasonably questioned.
B. Fairness: A hearing examiner shall ensure parties are
provided an opportunity to:
(1) present
their position and testimony;
(2) present
witnesses to provide relevant information;
(3) submit
evidence to establish all pertinent facts;
(4) advance arguments
without undue interference;
(5) challenge evidence
and cross examine witnesses.
C. Duties: The hearing examiner shall:
(1)
provide an explanation to participants as to how the hearing will be conducted;
(2) ensure
that witnesses are administered oaths and affirmations;
(3) issue
subpoenas upon proper application and form to compel the attendance of
witnesses or the production of specific records;
(4) request,
receive, and make part of the record all evidence considered necessary to
decide the issues raised;
(5) allow
parties to state any timely objections for the record;
(6) direct
and regulate the procedural process to ensure the orderly conduct of
participants;
(7) question
any witness in order to fully develop the record and
to clarify testimony;
(8) produce
and file a recommended decision for review that clearly identifies proposed
findings of fact and conclusions of law;
(9) allow,
consider and file a response to any timely submitted party exceptions to the
recommended decision; and
(10) take
such other actions as may be reasonable and necessary in the discharge of their
duties.
[18.9.1.11 NMAC - N, 7/1/2024]
18.9.1.12 PRE-HEARING EVENTS:
A. Pre-hearing conference: A hearing examiner may conduct a pre-hearing conference of the parties
as necessary to inform and confer on procedural issues and timelines, clarify
issues in dispute, address motions or discovery disputes, and support
settlement negotiations between the parties.
B. Procedural scheduling order: A hearing examiner may coordinate with the parties to create a schedule
of pre-hearing events and a timeline for the hearing.
C. Subpoena: At
any time prior to the hearing, a party may file a request for the issuance of a
subpoena for a witness or specific document to be presented at hearing. Such request
must set forth the reasons supporting the issuance and be accompanied by a
proposed subpoena form. The return of
certificated service, or affidavit of service, shall be promptly filed.
D. Informal resolution: The parties are encouraged to engage in informal discussions to
identify issues in dispute and consider possible resolutions or stipulations.
E. Settlement: The
parties may resolve some or all of the issues at any
time and file their signed, written agreement in the record. Once filed, the hearing examiner may, subject
to reconsideration, limit the scope of the hearing or dismiss the case, as
indicated by the agreement.
[18.9.1.12 NMAC - N, 7/1/2024]
18.9.1.13 PRE-FILED DIRECT TESTIMONY:
A. Force and effect: Prepared written testimony shall be received
with the same force and effect as though it were stated orally by the witness. Witnesses must be present at the public
hearing and shall adopt, under oath, their prepared written testimony, subject
to cross-examination and motions to strike, unless the witness’s presence at
public hearing is waived without objection by the parties.
B. Form: Written testimony shall be in the following
format:
(1) the
cover page shall contain the case caption, case number, name and title of the
witness;
(2) all
pages are to be typed, double-spaced and numbered in the footer;
(3) the
top, bottom, and left-hand margins shall be at least one and one-half inches;
(4) the
name of the witness and the case number, if then known, shall be typed at the
top center of each page in the header;
(5) line
numbers shall be present on the left-hand side of each page of testimony;
(6) testimony
shall be in question-and-answer format;
(7) proposed
exhibits relating to the testimony shall be clearly cited in, and attached to,
the testimony unless otherwise directed by the hearing examiner; and
(8) testimony
shall be supported by affidavit.
C. Supplemental testimony: The hearing examiner may file written questions directed at any party
and require the timely filing of additional sworn testimony to respond to those
questions.
[18.9.1.13 NMAC - N, 7/1/2024]
18.9.1.14 ADMISSIBILITY OF EVIDENCE:
A. Formal
rules of evidence and civil procedure do not apply: An orderly exchange of relevant
information is encouraged with consideration for the legal requirement that any
final decision be supported by competent evidence.
B. Limited objections to exclude evidence: All evidence is subject to appropriate and timely objection. The
hearing examiner may exclude irrelevant evidence and limit repetitive or unduly
cumulative evidence, with or without objection. Admitted evidence shall be provided
the appropriate deference and weight by the hearing examiner with respect to
its necessity, competence, availability, and trustworthiness.
C. Administrative notice: The hearing examiner may take administrative notice of any matter in
which courts of this state may take judicial notice, including of laws, court
orders, official agency records, and the department (or its predecessor’s)
orders, filings and records. Matters
noticed are admitted into evidence to the same extent as other relevant
evidence, either by citation to a publicly accessible document or by inclusion in
the record of a copy of the relevant portion of the document(s).
[18.9.1.14 NMAC - N, 7/1/2024]
18.9.1.15 EXHIBITS AND STIPULATIONS:
A. Marking of exhibits: Exhibits shall be paginated and marked numerically in the order of
introduction by the moving party.
B. Availability:
(1) Evidence
to be presented as exhibits must be made available to all parties at least ten
(10) calendar days prior to the hearing;
(2) Partial
documents. If only a portion of a document is offered as evidence, then
the parties and hearing examiner shall be afforded a prior opportunity to
examine the complete document that contains that designated portion;
(3) Rebuttal
evidence intended to explain, counteract, repel, or disprove evidence submitted
by another party or by staff shall be presented at least five (5) calendar days
prior to the hearing.
C. Stipulation as to facts:
(1) The
parties may, by stipulation in writing filed or entered in the record, agree
upon the facts or any portion thereof;
(2) Stipulations
shall be binding upon the participating parties and may be regarded and used as
evidence in the final decision;
(3) The
hearing examiner may, however, require proof or evidence of the facts to which
the parties have stipulated.
[18.9.1.5 NMAC - N, 7/1/2024]
18.9.1.16 CONFERENCE AND HEARING FORMAT:
A. In-person or electronic: The hearing examiner may conduct a conference or hearing in-person or
electronically by telephone or videoconference.
B. Continuance or reconvening in an alternative format: If at any point in the proceedings the
hearing examiner determines that the scheduled format is not sufficient to
develop an adequate record, to address credibility issues, or to otherwise
ensure a full and fair hearing process, then the proceedings may be continued,
or recessed and reconvened in an alternative format. Consideration must be
given to any public hearing notice requirements.
[18.9.1.16 NMAC - N, 7/1/2024]
18.9.1.17 HEARING PROCESS:
A. Opening: The hearing examiner will provide an overview
of the hearing process to the participants. Any commenters are provided an opportunity to
enter an oral or written statement for the record, but comments shall not be
considered or entered as evidence. The
parties may offer a brief position statement.
B. Order of presentment:
Sworn testimony and evidence
will ordinarily be received and admitted to the record in the order prescribed
in this section unless otherwise directed by the hearing examiner.
(1) Challenged applications:
(a) staff
assessment;
(b) applicant;
(c) intervenors; and
(d) rebuttal by staff
or applicant.
(2) Staff petition for sanctions or
penalties:
(a) staff;
(b) respondent;
(c) rebuttal
by staff.
(3) Petition
for reinstatement:
(a) petitioner;
(b) staff; and
(c) rebuttal by
petitioner.
B. Examination of witnesses:
(1) Direct
examination: Except for witnesses
appearing in response to subpoena who are subject to direct examination, each
witness must be called forward and sworn in prior to authenticating their pre-filed
written testimony as their direct examination, and then such witness must be immediately
passed for cross-examination.
(2) Cross
examination: Each witness is subject
to cross-examination by the parties.
(3) Re-direct:
Following cross examination, each
party must be provided an opportunity to re-direct their witness, with
questions limited to addressing only the issues raised on cross-examination.
(4) Hearing
examiner inquiries: The hearing
examiner may question witnesses to obtain clarification or to ensure a full
record is created.
C. Preponderance of evidence standard: Unless another standard is specifically provided in law, after the
testimony and evidence is presented and provided appropriate consideration, the
fact finder must be convinced that the alleged fact or event was ‘more likely than
not’ to have existed or occurred.
D. Motion and response:
(1) Motions
may be made at any time during the course of a proceeding. However, if the grounds for a motion are
known to the movant prior to public hearing, the motion shall be filed prior to
public hearing, except upon good cause shown. Proposed orders need not be submitted with
motions unless the hearing examiner directs otherwise.
(2) Motions
must clearly state the relief sought, the grounds therefor,
whether the motion is opposed, and if so, by whom.
(3) All
motions not specifically acted upon shall be deemed disposed of consistent with
the final order.
(4) Response.
Failure to make a timely response shall be deemed a waiver of the right to
respond. Unless the hearing examiner authorizes additional time to respond, a
response is timely if filed within five calendar days of service of the motion.
[18.9.1.17 NMAC - N, 7/1/2024]
18.9.1.18 POST-HEARING:
A. Record of proceedings, evidence and testimony: A full and complete record of all
proceedings shall be made electronically by recording and taken and transcribed
by a certified court reporter. The
transcribed record and entered exhibits shall be filed in the docket upon
receipt by the hearing examiner.
B. Corrections: Suggested corrections to the transcript or
record must be filed within 10 calendar days after the transcript is filed,
except for good cause shown. Failure to
timely file suggested corrections without good cause constitutes a waiver of
objections to the transcript. The hearing
examiner shall, with or without public hearing, determine what changes, if any,
shall be adopted.
C. Briefs: At the
discretion and direction of the hearing examiner, the parties may file proposed
findings of fact and conclusions of law, briefs of arguments and response
briefs, or to submit written memoranda on specific points
of law. Citations to the transcript
shall use the form “Tr.” followed by the transcript page number. If a transcript is made by electronic
recording, citation to the transcript shall use time markers.
D. Recommended decision: The hearing examiner shall file and serve
a proposed recommended decision with clear findings of fact based solely on the
record and conclusions of law. Citations
to the recommended decision shall use the form “RD” followed by the page number.
E. Exceptions and response: Parties may file exceptions to the
recommended decision’s findings of fact or conclusions of law within 15
calendar days of issuance. Unless
otherwise allowed by the hearing examiner, exceptions are limited to 10 pages. No response to an exception is permitted
unless directed by the hearing examiner. The hearing examiner shall consider any
exceptions and directed responses and shall file either an amended recommended
decision or an order that the recommended decision is unchanged.
[18.9.1.18 NMAC - N, 7/1/2024]
18.9.1.19 DECISION AND APPEAL:
A. Final Decision: The secretary (or designee) shall review the
record and file a decision to adopt a recommended decision in whole or in part,
with specific reference to the parts adopted and rejected. The decision of the secretary (or designee)
shall constitute a final decision unless a motion for reconsideration is
granted.
B. Motion to Reconsider: Any party may file a motion for reconsideration within 10 calendar days
of the filing of a by the secretary (or designee).
(1) such
motion must clearly and concisely identify the basis for any alleged factual or
legal omissions or errors;
(2) an
untimely motion is deemed denied; and
(3) if
within five calendar days the secretary (or designee) files a grant of the
motion to reconsider, then the time to appeal is stayed pending the revision or
reissuance of a final decision.
D. Appeal:
An aggrieved party may appeal a final
decision as provided by law.
[18.9.1.19 NMAC - N, 7/1/2024]
HISTORY of 18.9.1 NMAC: [RESERVED]