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Title 247 - NEBRASKA DEPARTMENT OF MOTOR VEHICLES

Chapter 1 - RULES AND REGULATIONS GOVERNING NOTICE AND HEARING FOR AGENCY CONTESTED CASES PURSUANT TO THE ADMINISTRATIVE LICENSE REVOCATION STATUTES

001 SCOPE. These rules and regulations govern practice and procedures before the Department of Motor Vehicles of the State of Nebraska pursuant to the administrative license revocation statutes Neb. Rev. Stat. §§60-498.01 through 60-498.04 and the Administrative Procedure Act, Neb. Rev. Stat. §§84-913 through 84-920.

002 LEGISLATIVE INTENT. Because persons who drive while under the influence of alcohol present a hazard to the health and safety of all persons using the highways, a procedure is needed for the swift and certain revocation of the operator's license of any person who has shown himself or herself to be a health and safety hazard by driving with an excessive concentration of alcohol in his or her body or by driving while under the influence of alcohol.

003 DEFINITIONS

003.01 Appellant. Any motorist who files a petition with the Department to request a hearing to contest the administrative license revocation of his or her license or operating privileges by the Department.

003.02 Department. The Nebraska Department of Motor Vehicles.

003.03 Director. The Director of the Department of Motor Vehicles or his or her designee.

003.04 Hearing Officer. An individual appointed by the Director to preside at an administrative hearing.

003.05 License or operator's license. Any license or permit to operate a motor vehicle issued under the laws of this state, including:

003.05A. Any replacement or duplicate license or instruction permit;

003.05B. The privilege of any person to drive a motor vehicle whether such person holds a valid license;

003.05C. Any nonresident's operating privilege which shall mean the privilege conferred upon a nonresident by the laws of this state pertaining to the operation of a motor vehicle in this state by such person or the use in this state of a motor vehicle owned by such person;

003.05D. An employment driving permit issued as provided by Neb. Rev. Stat. §§60-4, 129 and 60-4, 130; and

003.05E. A medical hardship driving permit issued as provided by Neb. Rev. Stat. §§60-4, 130.01 and 60-4, 130.02.

003.06 Pleading. Any written application, petition, complaint, answer, motion or other formal written document used in any proceeding contesting the administrative revocation of a person's operator's license.

003.07 Proceeding. All matters formally made in connection with any administrative license revocation.

003.08 Substantial injustice. Actual violation of the right or rights of an Appellant.

004 PURPOSE OF HEARING. The hearing is the opportunity for the Appellant to present evidence to show why his or her operator's license or operating privileges should not be revoked. The Appellant is responsible to secure the appearance of any witness required to meet his or her burden of proof; if the arresting officer is necessary, the Appellant must secure the arresting officer's appearance.

004.01 Sworn Report. The sworn report of the arresting officer shall be received into the record by the Hearing Officer as the jurisdictional document of the hearing, and upon receipt of the sworn report, the Director's order of revocation has prima facie validity.

004.02 Appellant. The burden of proof in an administrative license revocation proceeding shall be on the Appellant. The Appellant must show by the preponderance of the evidence why his or her license or privilege to drive should not be revoked for the statutory period. If the arresting officer is necessary to meet this burden, it is the Appellant's responsibility to secure the arresting officer's testimony.

005 ISSUES AT HEARING. The issues at the hearing shall be limited to those issues specified as follows:

005.01. In the case of a refusal to submit:

005.01A. Did the law enforcement officer have probable cause to believe the Appellant was operating or in the actual physical control of a motor vehicle in violation of Neb. Rev. Stat. §60-6, 196 or a city or village ordinance enacted pursuant to Neb. Rev. Stat. §60-6, 196; and

005.01B. Did the Appellant refuse to submit or fail to complete a chemical test after being requested to do so by the peace officer.

005.02. If the chemical test disclosed an alcohol concentration of 0.08 or more:

005.02A. Did the law enforcement officer have probable cause to believe the Appellant was operating or in the actual physical control of a motor vehicle in violation of Neb. Rev. Stat. §60-6, 196 or a city or village ordinance enacted pursuant to Neb. Rev. Stat. §60-6,196; and

005.02B. Was the Appellant operating or in the actual physical control of a motor vehicle while having an alcohol concentration in violation of subsection (1) of Neb. Rev. Stat. §60-6,196.

006 REPRESENTATION AT HEARING. An Appellant may appear in his or her own behalf or through an attorney licensed to practice law in Nebraska.

007 HEARING OFFICERS

007.01 Appointment. Hearing Officers shall be appointed by the Director in writing. Such appointment shall be of public record in the Director's office.

007.02 Qualifications. Hearing Officers shall be attorneys licensed to practice law in the State of Nebraska.

007.03 Unbiased and Impartial. The Hearing Officer shall be unbiased and impartial as to the subject proceeding.

007.04 Recusal. No Hearing Officer shall participate in an appeal in which they have an interest. For good cause shown or on the Director's own motion, the Hearing Officer may recuse his or herself from conducting the hearing. Motions for recusal shall be made in writing to the Director and must be received no later than three days prior to the date of the hearing.

007.05 Powers and Duties. The Hearing Officer shall have the duty to conduct full, fair and impartial hearings; to take appropriate action to avoid unnecessary delay in the disposition of the proceeding; and to maintain order. They shall have the following powers:

007.05A. To administer oaths and affirmations;

007.05B. To issue subpoenas as authorized;

007.05C. To compel discovery and to impose appropriate sanctions for failure to make discovery;

007.05D. To rule upon offers of proof and receive relevant, competent and probative evidence;

007.05E. To regulate the course of the proceedings in the conduct of the parties and their representatives;

007.05F. To hold prehearing conferences for simplification of the issues, settlement of the proceedings, or any other proper purposes;

007.05G. To consider and rule orally or in writing upon all procedural and other motions appropriate in adjudicative proceedings;

007.05H. To fix the time for holding the record open for additional evidence or for submission of briefs;

007.05I. To exclude or eject people from the hearing;

007.05J. To issue recommended decisions, rulings, and orders, as appropriate; and

007.05K. To take any other action consistent with the purpose of the law.

008 INTERVENTION

008.01. Intervention in an administrative license revocation hearing shall be allowed when the following requirements are met:

008.01A. A petition for intervention must be submitted in writing to the Hearing Officer at least five days before the hearing. Copies must be mailed by the petitioner for intervention to all parties named in the Hearing Officer's notice of hearing;

008.01B. The petition must state facts demonstrating that the petitioner's legal rights, duties, privileges, immunities, or other legal interests may be substantially affected by the proceeding or that the petitioner qualifies as an intervenor under any provision of law; and

008.01C. The Hearing Officer must determine that the interests of justice and the orderly and prompt conduct of the proceedings will not be impaired by allowing the intervention.

008.02. The Hearing Officer may grant a petition for intervention at any time upon determining that the intervention sought is in the interests of justice and will not impair the orderly and prompt conduct of the proceedings.

008.03. If a petitioner qualifies for intervention, the Hearing Officer may impose conditions upon the intervenor's participation in the proceedings, either at the time that intervention is granted or at any subsequent time. Those conditions may include:

008.03A. Limiting the intervenor's participation to designated issues in which the intervenor has a particular interest demonstrated by the petition;

008.03B. Limiting the intervenor's use of discovery, cross-examination, and other procedures so as to promote the orderly and prompt conduct of the proceedings; and

008.03C. Requiring two or more intervenors to combine their presentation of evidence and argument, cross-examination, discovery, and other participation in the proceedings.

008.04. The Hearing Officer, at least 24 hours before the hearing, shall issue an order granting or denying each pending petition for intervention, specifying any conditions and briefly stating the reasons for the order.

008.04A. The Hearing Officer may modify the order at any time, stating the reasons for the modification.

008.04B. The Hearing officer shall promptly give notice of an order granting, denying, or modifying intervention to the petitioner for intervention and to all parties.

009 INTERPRETERS

009.01 Non-English Speaking Appellants. When it is established that an Appellant is unable to communicate in the English language, the Appellant may employ the services of an interpreter for the administrative hearing. The Director will not appoint interpreters nor pay for services of an interpreter.

009.02 Interpreters for Persons with Special Communication Needs. If an Appellant has a special communication need such as deafness or muteness, the Appellant shall notify the Director no later than three days before the hearing in writing so that the Director may arrange for an interpreter. The Department shall pay for the services of any interpreter so obtained.

010 FAILURE TO APPEAR

010.01 Appellant. If the Appellant or his or her representative fails to appear at the hearing, the Hearing Officer may proceed and reach a recommended decision based on the evidence (sworn report and abstract} presented at the hearing.

010.02 Witness. The failure of a subpoenaed witness to appear or be otherwise available for cross-examination shall not automatically result in dismissal of the administrative license revocation. The Hearing Officer, at his or her discretion, grounded in the evidence adduced, and considering any offer of proof, may continue the hearing to receive the witnesses' testimony, or if such is unlikely to be fruitful, dismiss the hearing. The Hearing Officer may grant a stay of revocation.

011 SWORN REPORTS AND PETITIONS. The Department may accept any sworn report or petition forms in existence until the supply of such sworn reports and petitions may be exhausted and the Department may from time to time issue new forms as may be necessary.

011.01 Electronic Sworn Report. A sworn report may be created, signed, notarized, sent, and/or delivered by electronic means as permitted by the Uniform Electronic Transactions Act. An electronic sworn report satisfies the law and may not be denied legal effect or enforceability solely because it is in electronic form.

012 PLEADINGS, FORM AND MAILING ADDRESS

012.01 Petition Form. The petition for an administrative license revocation is online at the Department's website: www.dmv.nebraska.gov or available from the Department (telephone: (402) 471-9593). Earlier versions of the petition are valid and may be used in lieu of the most current version. The petition must be legibly written on 8½\" x 11\" paper and contain the following information:

012.01A. Appellant's name and date of birth;

012.01B. Appellant's complete current mailing address;

012.01C. Appellant's operator's license number and state of issuance;

012.01D. The grounds on which the Appellant is relying to prevent the revocation from becoming effective;

012.01E. A statement that the Appellant does not wish to apply for an ignition interlock device; and

012.01F. If appropriate, the name and complete address of the Appellant's attorney.

Accompanying Documents. The petition must be accompanied by:

012.01G. A photocopy of the temporary license; and

012.01H. All Nebraska or out-of-state operator's licenses.

012.02 Other Pleadings. All pleadings, aside from the Petition, shall be in a legible form on 8½\" x 11\" paper showing the venue \"Before the Director of the Department of Motor Vehicles\". The caption shall be \"In the Matter of the Administrative License Revocation Appeal of [NAME OF THE APPELLANT] and shall be entitled as applicable to each particular situation.

012.03 Mailing Address. The mailing address for pleadings is: Nebraska Department of Motor Vehicles, Legal Division, P.O. Box 94699, Lincoln, NE 68509-4699.

013 FILING OF PETITION AND NOTICE OF REVOCATION

013.01 Time to File Petition. A person's right to an administrative license revocation hearing will be foreclosed if a petition for an administrative license revocation hearing is not completed and postmarked or delivered to the Department as follows:

013.01A Breath and Refusal Cases. Within ten days after the person's arrest in cases in which the Appellant received Notice of Revocation from the arresting officer.

013.01B Blood Test Cases. Within ten days after the mailing of the Notice of Revocation in cases in which the Appellant received Notice of Revocation from the Department.

013.02 Where the Department Mails the Notice of Revocation. The Department shall serve the Notice of Revocation by U.S. mail to the address appearing on the records of the Director. If the address on the Director's records differs from the mailing address on the sworn report, the notice shall be mailed to both addresses.

013.03 Failure to Return Operator's License. Any person who desires a hearing, who has been served a notice of revocation by the Director, and who has an operator's license in their possession shall return the operator's license with the petition requesting the hearing.

013.04 Hearing. The Director shall conduct the hearing within twenty days after a petition is received by the Director.

014 NOTICE OF HEARING

014.01 Receipt of the Petition. Upon receipt of a timely filed petition, the Director shall notify the Appellant of the date and location and manner of the hearing.

014.02 U.S. Mail. The Director shall serve Notice of the Hearing to the Appellant, and, if applicable, to the Appellant's attorney by U.S. mail to the address(es) provided by the Appellant on the petition form.

014.03 Time of Notice. The Notice of Hearing shall be served by mailing at least seven days prior to the date fixed for the hearing.

015 DISCOVERY AND SUBPOENA

015.01 Discovery Limitations. No depositions, requests for admissions, or interrogatories may be filed in this administrative license revocation special proceeding. Any deposition notices, requests for admissions, or interrogatories received are denied and may be unanswered.

015.02 Discovery Motions, Prosecutor Copy. The Appellant will provide a copy of every motion for discovery and praecipe for subpoena to the prosecutor in the jurisdiction in which the petitioner was arrested. Any motion for discovery and praecipe for subpoena filed by the petitioner shall entitle the prosecutor to receive full statutory discovery from the petitioner upon a prosecutor's request to the relevant court pursuant to Neb. Rev. Stat. §29-1912 in any criminal proceeding arising from the same arrest.

015.03 Incomplete Discovery. Incomplete discovery shall not stay the hearing unless the petitioner requests a continuance.

015.04 Filing Timeline. Motions for discovery must be received by the Department no fewer than five days prior to the date scheduled for hearing. Praecipes for subpoena must be received by the Department with sufficient time for the Department to respond and the Appellant to serve.

015.05 Service. The Appellant has the responsibility of service. A subpoena issued pursuant to these rules and regulations shall be served either (1) personally, or (2) by mailing a copy thereof by either registered or certified mail, return receipt requested, not less than six days before the hearing day that the witness is required to attend. The person making such service shall make a return thereof showing the manner of service.

015.06 Department Subpoenas. At its discretion, the Department may informally request a witness' appearance or request a subpoena in the manner provided for in these regulations.

015.07 Motion to Quash. A motion to quash a subpoena may be filed with the Department. The Department will consider the motion, and may have a brief hearing if necessary.

015.08 Discoverable Material in Possession of the Department or a State Agency. The Department will, upon receipt of a timely and proper discovery motion, (a) provide the Appellant a copy of all non-privileged material, not filed by the Appellant, which is in the Appellant's case file at the Department, and (b) provide access to non-privileged documents in possession or control of another state agency relevant to the issues for the Appellant's hearing as provided in Neb. Rev. Stat. §60-498.01(6)(c).

015.08A Statement. Every discovery motion shall contain a statement that the Appellant has provided a copy of the motion to the prosecutor in the jurisdiction of arrest.

015.09 Motion to Produce Blood Sample, Content. If the Appellant files a motion to produce a blood sample, the motion must provide the address of the laboratory which has custody of the Appellant's blood sample and must provide the address of a laboratory facility where the Appellant wants the blood sample sent for further testing. The Appellant shall be responsible for providing the laboratory sufficient waivers or other necessary documentation to allow the laboratory to share protected private information as required bylaw.

015.10 Subpoena for Discoverable Material Not in the Possession or Control of the Department. The Appellant may request a Subpoena for Production of Documents and/or Things that are relevant and material to the issues in the administrative proceeding. Provided the request complies with these rules and regulations, a subpoena will be issued by the Director, directing the custodian to make the requested items available for inspection and copying prior to the date of the hearing. Custodians may set reasonable fees and require payment for copies of documents, or audio or video recordings. To be considered, the praecipe must state all of the following for each subpoena requested:

015.10A. The identification of the specific item or items desired;

015.10B. The custodian of the item(s);

015.10C. The address at which the subpoena will be served;

015.10D. The facts expected to be established for a reasoned determination of relevance and materiality by the Director;

015.10E. A showing of how the specified item or items will aid the Appellant in meeting his or her burden of proof;

015.10F. A statement that a copy of the praecipe is being provided to the prosecutor;

015.10G. A statement that Appellant understands that the prosecutor is entitled to full statutory discovery upon filing of the praecipe at the Department; and

015.10H. A statement that custodians of discoverable materials may set reasonable fees and require pre-payment for copies of documents, or audio or video recordings.

015.11 Arresting Officer or other Witness Subpoena Requests, Content. To be considered a praecipe for subpoena for a witness must state all of the following for each subpoena requested:

015.11A. The identification of the person desired;

015.11B. The address at which the subpoena will be served;

015.11C. A statement that the person has personal knowledge of the case;

015.11D. The facts expected to be established for a reasoned determination of materiality by the Director;

015.11E. A showing of how the requested person will aid the Appellant in meeting his or her burden of proof; and

015.11F. A statement that the Appellant shall be responsible for the payment of witness fees as provided in Neb. Rev. Stat. §33-139 and mileage as provided in Neb. Rev. Stat. §81-1176, for any witness the Appellant subpoenas, including the fees and expenses of expert witnesses the Appellant calls. The request for a subpoena must be accompanied by a copy of the certified check or money order in the amount sufficient to cover witness fees and mileage. The check for witness fees shall be made out to the subpoenaed witness and not to the Department.

016 ENFORCEMENT OF SUBPOENA. If an Appellant claims disobedience to a subpoena, the Appellant shall first show proof of timely service to the witness before undertaking enforcement.

016.01 Enforcement by Agreement. An Appellant and Hearing Officer may agree to attempt to secure the witness's attendance without involvement of the district court. Upon agreement, the Hearing Officer and the Appellant may seek to reach the witness directly and take testimony, or the Hearing Officer may issue an interim order directing a Department employee who is not involved in the decision making process to contact the witness and the Appellant to arrange a time and method to secure the testimony of the witness. No stay of revocation will be granted except upon the Appellant's affirmative showing of substantial injustice.

016.02 Formal Enforcement by District Court. If there is no agreement to secure the witness's testimony, the Appellant may invoke the aid of the district court to enforce the subpoena in the jurisdiction in which the Appellant was arrested. If the Appellant provides written notice to the Department of his or her filing with the district court to enforce the subpoena, the Department will continue the hearing. In such case the hearing will be continued until there is a final order from the district court as to the disposition of the subpoena, but the automatic revocation of the Appellant's operator's license pursuant to statute will not be stayed.

017 CONTINUANCES

017.01 Motions. An Appellant may file a written motion to continue the hearing. The motion shall state the reasons for the motion and, if required by the Director, submit proof of facts in support of the motion. If a continuance is granted, all persons who were served Notice of Hearing shall be notified by the Department.

017.02 Time. An Appellant's motion for continuance will not be considered unless filed and received by the Director at least three working days prior to the time fixed for hearing. Untimely motions will be denied without response from the Department.

017.03 Stay. An Appellant's motion for continuance beyond the expiration date of the Appellant's temporary operator's license shall not stay the administrative license revocation.

017.04 Good Cause. An Appellant's continuance shall be granted only upon good cause shown.

017.05 Director's Continuance. The Director shall have the power to order a continuance of any hearing as may be necessary. A continuance order by the Director may stay the administrative revocation of the operator's license 15 days.

018 EXHIBITS

018.01 Documentary Evidence- Exhibits. Copies of all exhibits must be served on all participants either prior to or on the date of the hearing in the manner and form specified as follows:

018.01A Department's Exhibits. The Department shall serve the Appellant, and the Appellant's attorney, if applicable, with a copy of potential exhibits from its case file by either U.S. mail or electronic means. Each document shall be marked or numbered for ease of identification at the hearing. The Hearing Officer shall be responsible for marking and identifying the exhibits entered into the record and may be assisted by a court reporter when one is present.

018.01B Appellant's Exhibits. Any exhibits the Appellant wishes to offer or materials the Appellant intends to reference at a hearing shall be submitted to and received by the Department no later than one working day prior to the date of the hearing. If exhibits are not both filed and received by the Department within the time or the manner specified, exhibits will not be admitted at hearing unless substantial injustice would result. The Hearing Officer shall be responsible for marking and identifying the exhibits entered into the record and may be assisted by a court reporter when one is present. The Appellant's exhibits shall be filed and submitted to the Department's Legal Division at its office in Lincoln, Nebraska, for distribution to the assigned Hearing Officer. It is the Appellant's responsibility to ensure that all participants at hearing have received copies of the Appellant's exhibits or materials prior to the hearing.

019 CONDUCT OF HEARING

019.01 Conduct of the Hearing. The hearing and any prehearing conference may be conducted in person or by telephone, video conference, or other electronic means at the discretion of the Director, and all parties may participate by such means at the discretion of the Director.

019.02 Persons With Special Needs. If the Appellant has a physical or other special need in regard to the accessibility of the venue of the hearing, the Appellant shall notify the Department no later than five days prior to the hearing in writing so that the Department can arrange an accessible hearing location.

019.03 Open to the Public. Informal and formal hearings conducted under these rules and regulations shall be open to the public except that upon motion of the Appellant, the Department, or his or her own motion, the Hearing Officer may order that the hearing be closed. The Hearing Officer may, at his or her discretion, set rules for the conduct of news media coverage of the hearing and may control the conduct of any persons attending.

019.04 Appropriate Behavior. Inappropriate, rude, obstructive, or badgering behavior will terminate the hearing.

020 HEARING PROCEDURES

020.01 Format for Informal Hearings. The following format shall generally be used for informal hearings:

020.01A. The hearing shall be at the time and in the manner specified in the Notice of Hearing or as soon thereafter as the same may be heard. The Hearing Officer opens the hearing, introduces him or herself, states whether the Appellant and arresting officer(s) are present and enters the appearance of any attorneys for the Appellant and/or participants into the record;

020.01B. The Hearing Officer states the scope and purpose of the hearing;

020.01C. The Hearing Officer offers the Department's exhibits into the hearing record, and rules on any objections to the exhibits;

020.01D. The Hearing Officer disposes of any pending motions, petitions or stipulations and other matters that need to be dealt with before evidence is taken;

020.01E. The Hearing Officer first administers an oath or affirmation to any interpreter who may be present to assist with the hearing. He or she shall administer an oath or affirmation to any witness prior to his or her testimony. The Hearing Officer may take evidence from witnesses; the Appellant may ask questions of the witnesses, re-direct examination and re-cross examination follows until testimony is completed;

020.01F. During the hearing, any exhibits offered by either party are marked and received into the record on the judgment of the Hearing Officer;

020.01G. The Hearing Officer allows closing argument; and adjourns the hearing;

020.01H. If an Appellant desires to request that the record be held open for additional evidence, the Hearing Officer may hold the record open for receipt of additional evidence. Holding the record open shall not stay the effective date of the order of administrative license revocation.

020.02 Format for Hearings When the Rules of Evidence Have Been Requested. The Hearing Officer shall conduct the hearing, and:

020.02A. The Department may appoint an attorney to represent the Department at the hearing.

020.02B. The hearing shall be conducted according to the Nebraska rules of evidence applicable in the district courts.

021 EVIDENCE

021.01 Informal Hearings. The hearings shall be conducted informally unless a request is made for the rules of evidence and the rules of evidence are in effect. The Hearing Officer may admit and give probative effect to evidence which possesses probative value commonly accepted by reasonably prudent persons in the conduct of their affairs.

021.01A Incompetent, Irrelevant or Immaterial Evidence. Incompetent, irrelevant or immaterial evidence may be excluded.

021.01B Unduly Repetitious Evidence. Unduly repetitious evidence may be excluded.

021.01C Hearsay. Hearsay is admissible as evidence.

021.01D Records of the Department. Records and documents in the possession of the Department may be received in evidence in the form in which the same are kept, and without certification.

021.01E Recordings. Visual or audio recordings may be admitted into evidence at the discretion of the Hearing Officer.

021.01F Privilege. The rules of privilege apply in informal hearings.

021.01G Official Notice. In the conduct of a hearing, the Hearing Officer may take official notice of such facts as would be so noticed by the district courts of Nebraska including Nebraska statutes, case law, and Department rules and regulations, and in addition thereto, may take notice of general, technical, or scientific facts within the specialized knowledge of the Department and the rules and regulations adopted and promulgated by the agency. Parties to the proceedings shall be notified before or during the hearing of any specialized, technical, or scientific facts to be so noticed, and opportunity shall be afforded to contest such noticed facts.

021.02 Rules of Evidence Hearings. In hearings for which the rules of evidence have been requested and granted, the hearing shall be conducted according to the Nebraska rules of evidence applicable in district courts.

022 RULES OF EVIDENCE

022.01 Informal Hearings. Hearings are conducted informally unless an Appellant requests the Department be bound by the rules of evidence applicable in district courts.

022.02 Motion for Formal Hearing. An Appellant or the Department may file a motion for a rules of evidence hearing by delivering a written request to the Department at least three days prior to the holding of the hearing. Such request shall include the requesting Appellant's agreement to be liable for the payment of costs incurred thereby and upon any appeal or review thereof; including the costs of court reporting services which the requesting Appellant shall procure for the hearing.

022.03 Failure to Provide Court Reporter. If the Appellant fails to provide a court reporter, the request for rules of evidence shall be deemed waived, and the hearing shall proceed informally.

022.04 Costs. All costs of a formal hearing shall be paid by the Appellant or the Department against whom a final decision is rendered.

023 BRIEFS AND ARGUMENTS

023.01 Closing Arguments. Arguments may be heard at the close of the hearing at the discretion of the Hearing Officer and the length of the closing statement may be limited at the discretion of the Hearing Officer.

023.02 Briefs, When Required, Form. The Hearing Officer may order the Appellant or the Department or both to submit briefs. A brief may be submitted with or without leave of the Hearing Officer. Briefs must be submitted and received no later than five days after the close of the hearing. The time allowed for submission of briefs shall not stay the administrative license revocation. If a brief is submitted without leave of the Hearing Officer, it will not be considered unless the Hearing Officer is advised at the close of the hearing to expect the brief.

024 RECORD

024.01 Official Record, Recording by Hearing Officer. The Hearing Officer shall record the proceedings. This recording by the Hearing Officer, along with all exhibits received during the hearing, all pleadings, motions, continuances, objections, exceptions, judicially noted facts, and briefs filed at the hearing or timely thereafter, shall constitute the entire official record of the hearing.

024.02 Other Recordings. Any Appellant may record the proceedings in any manner that is consistent with a judicial proceeding.

024.03 Transcript. The testimony will only be transcribed when an appeal has been properly filed in a court of appropriate jurisdiction.

024.04 Record When Rules of Evidence Have Been Requested. The court reporter shall record the proceedings. The recording by the court reporter, along with all exhibits and other briefs, memoranda, received into the record, shall constitute the record of the hearing. The Appellant shall be responsible for procuring a court reporter and for the cost of the court reporter.

025 DECISIONS AND FINAL ORDER: REVOCATION PERIOD

025.01 In Writing. After a hearing, every decision and order rendered by the Director shall be in writing and shall be accompanied by findings of fact and conclusions of law reached by the Director. The findings of fact shall consist of a concise statement of the conclusions upon each contested issue of fact. If the order is for the revocation of the operator's license, the order shall set forth the period of revocation.

025.02 Service of Order. The order will be mailed to the Appellant at the address provided to the Director at the hearing, or to the address appearing on the Appellant's petition. The failure of the Appellant to claim an order shall not prevent a revocation from going into effect.

025.03 Copies. Copies of the decision, order and findings of fact and conclusions of law shall be sent to the Appellant's attorney if there is an attorney of record.

025.04 Computer Generated (Automatic) Order of Revocation. The Department will mail a computer generated Order of Administrative License Revocation to the arrested person indicating the day the automatic order of revocation goes into effect and the period of revocation. It will be mailed regardless of whether the person requests a hearing and may take effect prior to the hearing. If the arrested person does not file a timely petition for hearing, the computer generated order will be the only revocation order sent. The computer generated order is not appealable.

025.05 Effective Date Of Revocation. The effective date of the revocation shall be 15 days from the date of the arrest if the officer provides Notice of Revocation, or from the date of mailing of the notice if the Director provides Notice of Revocation.

025.06 Periods. The motorist's operator's license shall be revoked as follows:

025.06A Failure of Test. The revocation period for a person who submits to an alcohol test showing an alcohol level in excess of the concentration specified in Neb. Rev. Stat. §60-6, 196 shall have his or her license revoked for a period of 180 days. Except, if the person's driving record abstract maintained in the Department's computerized records show one or more prior administrative license revocations during the immediately preceding 15-year period at the time the order of revocation is issued, the period of revocation shall be one year.

025.06B Refusal of Test. The revocation period for a person who refuses a chemical test shall be one year.

025.07 Reinstatement of License After Revocation Period. A person may have his or her operator's license reinstated after a period of revocation as provided in Neb. Rev. Stat. §60-499.01.

026 COMPUTATION OF TIME. In computing time, days will be computed by excluding the day of the act or event and including the last day of the period. If the last day of the period falls on a Saturday, Sunday, or State holiday, the period shall include the next working day. Any pleading received by the Department by facsimile transmission after normal business hours shall be deemed received the next business day.

027 APPEAL

027.01 District Court of County of Arrest. Any person who feels himself or herself aggrieved because of such revocation after a hearing may appeal therefrom to the district court of the county where the alleged events occurred for which he or she was arrested. The appeal must be filed within 30 days after the service of the final decision by the agency.

027.02 Administrative Procedure Act. Such appeal shall be made in accordance with the Administrative Procedure Act. The Department shall be a party of record for purposes of appeal to a district court.

027.03 Stay Upon Appeal. Such appeal shall not suspend the order of revocation.

027.04 Transcript. The Department will prepare the official record of the agency after notification that the Appellant served the Attorney General as provided in the manner provided for service of summons in Neb. Rev. Stat. §25-510.02.

027.05 Cost of Preparation of Official Record. The Department shall charge the petitioner with the reasonable direct cost or require the petitioner to pay the cost for preparing the official record for transmittal to the court.

028 DISMISSAL AND REINSTATEMENT. The Department shall dismiss the administrative license revocation or immediately reinstate the license without payment of the reinstatement fee for those Appellants or licensees whose operator's license is subject to revocation for failure of a chemical test under Neb. Rev. Stat. §60-498.01 (3) upon receipt of the Department by any of the following:

028.01 Prosecuting Attorney Dismissal. The prosecuting attorney responsible for the matter stating that they declined to file a complaint or dismissed a filed complaint alleging a violation of Neb. Rev. Stat. §60-6, 196 or a city or village ordinance enacted in conformance with such section prior to trial. A copy of the court document or a written statement will be considered suitable evidence.

028.02 Copy of Judgment. A copy of the judgment showing that in the criminal action on the charge of a violation of Neb. Rev. Stat. §60-6, 196 or a city or village ordinance enacted in conformance with such section arising from the same incident, the court held one of the following:

028.02A. The peace officer did not have probable cause to believe the person was operating or in the actual physical control of a motor vehicle in violation of Neb. Rev. Stat. §60-6, 196 or a city or village ordinance enacted in conformance with such section; or

028.02B. The person was not operating or in the actual physical control of a motor vehicle while having an alcohol concentration in violation of Neb. Rev. Stat. §60-6,196 or a city or village ordinance enacted in conformance with such section.

028.03 Not Guilty Finding. A copy of the court's decision with a specific finding of not guilty of a violation of Neb. Rev. Stat. §60-6, 196 or a city or village ordinance enacted in conformance with such section after trial.

028.04 Reinstatement of the Administrative Revocation. If a criminal charge is filed or refiled for a violation of Neb. Rev. Stat. §60-6, 196 or a city or village ordinance enacted in conformance with such section pursuant to an arrest for which all administrative license revocation proceedings were dismissed, the Director, upon notification or discovery, may reinstate an administrative license revocation under this section as of the date that the Director receives notification of the filing or refilling of the charge, except that a revocation shall not be reinstated if it was dismissed pursuant to Neb. Rev. Stat. §60-498.01. The revocation shall be reinstated as of the date the Director receives notice.

028.05 Verification. The Department may use the JUSTICE System to verify filings prior to dismissing an administrative license revocation.

029 EFFECTIVE DATE OF THESE RULES AND REGULATIONS. This amendment shall become effective as provided in the Administrative Procedure Act.

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Title 247 - NEBRASKA ADMINISTRATIVE CODE

CHAPTER 2 - RULES AND REGULATIONS FOR DRIVER TRAINING SCHOOLS AND INSTRUCTORS PURSUANT TO NEB. REV. STAT. §§ 60-4,173 THROUGH 60-4,179.

001 SCOPE. These rules and regulations apply to the following entities and individuals:  

001.01 Any driver training school as defined in these rules and regulations, except those which teach a Department approved driver’s safety course for a provisional operator’s permit (that course is controlled by Title 247 NAC 11) or Department approved motorcycle safety education program (that course is controlled by Title 247 NAC 6); and  

001.02 Any driver training instructor as defined in these rules and regulations.  

001.03 These rules shall not apply to federal entry level driver training or driver training schools who only administer federal entry level driver training (ELDT) as defined by 49 C.F.R. §380.605(3).

002 DEFINITIONS.  

002.01 Contact person means the authorized person designated to act on behalf of the school as the contact person with the Department.  

002.02 Department means the Nebraska Department of Motor Vehicles.  

002.03 Director means the Director of the Department of Motor Vehicles.  

002.04 Driver training school means a business enterprise conducted by an individual, association, partnership, limited liability company, corporation (for profit or non profit), or a public or private educational facility which educates or trains persons to operate motor vehicles and which charges consideration or tuition for such service or materials, excluding commercial entities that solely provide entry level driver training (ELDT) as defined by 49 C.F.R. §380.605(3).  

002.05 Entry level course means a course administered to entry level students as defined by section 002.06 that consists of six hours of classroom and six hours of behind-the-wheel training, as set out in section 005. Entry level course does not include entry level driver training (ELDT) as defined by 49 C.F.R. §380.605(3).  

002.06 Entry level student means a student who has either a) failed three successive drive tests from the department so that he or she may not retest for 90 days, or b) has not held a valid driver’s license from this or any other U.S. state or jurisdiction within the last five years, does not include individuals enrolled in entry level driver training (ELDT) as defined by 49 C.F.R. §380.605(3).

002.07 Instructor means any person who teaches, conducts classes, gives demonstrations or supervises practical training of persons learning to operate motor vehicles in connection with operation of a driver training school.  

002.08 Remedial course means a course administered to remedial level students as set forth in section 006.  

002.09 Remedial level student means a student who feels he or she needs improvement in classroom or behind the wheel skills and either a) has held a valid driver’s license from an US state or jurisdiction within the past five years, or b) has completed an entry level course.  

002.10 School representative means an individual applicant, partner, associate, corporate director, officer or manager of a driver training school.  

003 General Requirements for a Driver Training School.  

003.01. Building. The school will continuously maintain a place of business which includes at least one permanent, regularly occupied structure within the State of Nebraska. Driver training schools may offer classroom training in person or via online curriculum; however, the driver training school must maintain an available, physical classroom which must be able to accommodate students comfortably and to ensure proper safety, including:  

003.01A Textbooks and reference books relating to the proper operation of motor vehicles and traffic laws;  

003.01B Ample working and testing space for enrolled students and observers; and  

003.01C Ready access to restrooms.  

003.02 School Names. No driver training school shall adopt, use, or conduct any business under a name that is like or deceptively similar to a name used by another driver training school. The right to use a name claimed by another driver training school will be determined by the Department on the basis of the longest history of use.  

003.03 Display Credentials. Each driver training school must display the state license in a prominent place.  

003.04 Insurance. Each driver training school must carry current commercial general liability insurance coverage of $1,000,000, workers' compensation insurance as required by Neb. Rev. Stat. §48-106, and automobile liability insurance for automobiles owned by the driver training school.

004 Application Requirements for Driver Training Schools. Each original and renewal driver training school license application shall contain information consisting of:  

004.01 Contact Person. The name, title, current address, electronic contact (email), and telephone number of the school’s contact person;  

004.02 Instructors. The name, electronic contact (email), date of birth, driver’s license number and home address of all instructors;  

004.03 Motor Vehicles. A schedule of motor vehicles owned or leased;  

004.04 Name. The name, address, telephone number of the driver training school;  

004.05 Insurance. Valid insurance certificate or insurance policy detailing the coverage for motor vehicles used in the course (as set forth in section 007.02), current commercial general liability insurance coverage of $1,000,000, and workers compensation insurance as required by Neb. Rev. Stat. §48-106.  

004.06 Signature. Signature of the school representative certifying that the information included in the application is true and accurate;  

004.07 Owners. The names and addresses of all business owners;  

004.08 Class Description. An overview or outline of the course or courses to be offered by the driver training school including the amount of classroom and/or behind-the-wheel time and/or a statement that the school provides entry level student training (it is not necessary to outline the entry level student course); and  

004.09 Other Information. Any other information deemed necessary by the Department.  

005 Entry Level Student Courses of Instruction  

005.01 Entry Level Student Hours. A minimum of six hours of classroom instruction and six hours of behind-the-wheel instruction must be given to each entry level student.  

005.01A Hospital Exemption. Rehabilitation hospitals which assess needs of disabled patients and train for those specific needs are exempt from the six-hour behind-the-wheel and the six-hour classroom instruction requirements. They are expected to take whatever time is necessary to train the patient adequately.  

005.02 Classroom Instruction. The offered classroom instruction in person or via online curriculum must include safe driving practices in the operation of motor vehicles.  

005.03 Behind-the-Wheel. Behind-the-wheel instruction must consist of actual driving practice while the motor vehicle is in motion. Instruction given while the motor vehicle is parked cannot be recorded as behind-the-wheel instruction time.  

005.04 Simulator. Up to one hour of behind-the-wheel instruction may be replaced by use of a driving simulator at a proportion of four to one. (One hour of simulated driving equals 15 minutes of behind-the-wheel drive time.)  

005.05 Driving Range. Up to two hours of behind-the-wheel instruction may be replaced by time on a closed course driving range at a proportion of two to one. (Two hours on a driving range equals one hour behind-the-wheel.)  

005.06 Entry level student vehicles. Any driver training school that teaches entry level students must have at least one registered motor vehicle which has been equipped for driver training purposes.  

006 Remedial Student Courses of Instruction. Each driver training school will assess the needs of remedial level students. The school is expected to take whatever time is necessary to train the student adequately.  

007 Driver Training Motor Vehicles.  

007.01 Vehicle registration. All motor vehicle used in driver training must be registered and insured. The driver training school shall obtain and retain photocopies of the motor vehicle’s registration and proof of insurance if it does not own the vehicle itself. The original registration and insurance will be carried in the vehicle when training students.  

007.01A Entry level course. All motor vehicles used for entry level courses, except vehicles used by non-profit corporations, must be registered in the school’s name.  

007.01B Non Profit Corporation and Remedial Student Vehicles. A non-profit corporation is not required to own or register the motor vehicle used in driver training in its name. A school that teaches remedial courses only is not required to own or register a motor vehicle for driver training in its name.  

007.02 Insurance. All motor vehicles used in driver training will be covered by liability insurance in amounts not less than set forth in Neb. Rev. Stat. § 60-509.  

007.03 Dual Brakes. Any motor vehicle registered in the school’s name pursuant to 007.01A shall be equipped with a dual braking device.  

007.03A Vehicle exceptions. Trucks, motorcycles and motor vehicles being used pursuant to 007.05 of these rules and regulations are exempt.  

007.03B School exceptions. Vehicles used for remedial training are exempt.  

007.04 Identified as Driver School. Any motor vehicle being used for entry level student driver training shall be readily identified as a driver training motor vehicle.  

007.05 Disabled Student Motor Vehicles. A student who requires adaptive equipment to operate a motor vehicle may use a personal motor vehicle during training. The vehicle is exempt from the requirements for dual brakes found at 007.03.  

008 School/Student Contracts. All written contracts or agreements by or between a driver training school and a student must contain the following:  

008.01 A statement indicating the agreed contract price, skills to be learned, and terms of payment;  

008.02 A statement indicating the specific time and date when instruction is to start; and  

008.03 The driver’s license or permit number held by the student.  

008.04 Entry Level. For entry level students only, a statement indicating that the student is to receive at least six (6) hours of classroom instruction and six (6) hours of behind-the-wheel instruction.  

008.05 Remedial Level Class Description. For remedial students, the contract will provide the student with a written overview or outline of the course or courses to be offered, including the amount of classroom and/or behind-the-wheel time.  

008.06 The driver training school shall not include a statement in any of its contracts or advertising to the effect that a state license is guaranteed.  

009 Inspections and Changes to Schools.  

009.01 Name Change. The school must notify the Department in writing of any change in the school’s name, legal status or address ten days prior to its date of occurrence.  

009.02 Instructor Changes. The school must notify the Department in writing of any addition or deletion of approved instructors or changes in their driving statuses within ten days of date of occurrence.  

009.03 School Closes. If the school ceases operation in Nebraska, the school shall notify the Department in writing ten days prior to its date of occurrence.  

009.04 Insurance Change. If the school’s insurance as required by these rules and regulations is canceled or altered by the insurance company, the school shall notify the Department in writing within ten working days of its date of occurrence.  

009.05 Inspection of School Facilities.  

009.05A Random Inspections. The Department may conduct random inspections of all of the school’s facilities and motor vehicles. The school shall exhibit all records, instructional aids and other objects which are necessary to the Department’s investigation.  

009.05B Written Evaluation. The Department may, at the Department’s discretion, prepare a written report of the results of each inspection or examination. A copy of the report may be provided to the school.

010 REQUIREMENTS FOR INSTRUCTOR’S LICENSE.  

010.01 Requirements for Applicant for Instructor’s License. An applicant for an instructor’s license will:  

010.01A Valid Driver’s License. Have held a valid license from their state of residence for a period of at least two consecutive years immediately preceding the date of application. Licensing lapses due to failure to renew before a license’s expiration date shall not be cause for denial. The license must be representative of the motor vehicle class taught (i.e., CDL license for CDL training);

010.01B High School Diploma. Have a high school diploma or its equivalent;  

010.01C Clean Driving Record. Have no violation noted on his or her driving record for which five or more points might be assessed as set out in Neb. Rev. Stat. § 60-4,182 for the prior five years. This includes probation or other situations in which no points were actually assessed for the violation. Additionally, the instructor must have no suspensions or revocations on his or her driving record within the last five years, including no convictions for DWI or any related alcohol or drug offense in connection with motor vehicle use; and

010.01D Moral. Be of good moral character and at least 21 years old.  

010.01E Criminal Background Check. Have no felony conviction within the last 10 (ten) years or any conviction involving fraudulent activities.

010.02 Application for Instructor’s License. Each original and renewal instructor’s license application shall contain information consisting of:  

010.02A Basic Information. The name, current address, electronic contact (email), and telephone number of the applicant;  

010.02B Identifying Information. Date of birth and social security number of the applicant.  

010.02C Driver Information. The driver’s license state and number, and the name of the school to employ the applicant.  

010.02D Signature. Signature of the applicant certifying that the information included in the application is true and accurate; and signature of an authorized agent of the driver training school.  

010.02E Other Information. Any other information deemed necessary by the Department.  

010.03 Approval. The Department will notify instructors when they have been approved.  

010.04 Agent. For purposes of these rules and regulations, each instructor employed by or associated with any school shall be deemed an agent of the school and the school shall share responsibility for all acts performed by the instructor which are within the scope of his or her employment, and which occur during the course of his or her employment.  

011 FEES.  

011.01 Expiration. All licenses will expire on the last day of June in the year following issuance and may be renewed upon application to the Department.  

011.02 Fee. Each application for a new or renewal school license shall be accompanied by a fee of fifty dollars ($50.00). Each application for a new or renewal instructor’s license shall be accompanied by a fee of ten dollars ($10.00). No license fee shall be refunded in the event that the license is rejected, suspended, or revoked.  

012 DENIAL, REFUSAL TO RENEW, SUSPENSION OR REVOCATION OF DRIVER TRAINING SCHOOL AND DRIVER TRAINING INSTRUCTOR LICENSES.

012.01 The Department will deny, refuse to renew, suspend or revoke the license of any driver training school or instructor, for any of the following reasons:  

012.01A Failure to provide notice to the Department as required by 009 of these rules and regulations;  

012.01B Failure to permit or failure of on-site inspections as required by 009.05 of these rules and regulations;  

012.01C Failure to pay the fee as required by 011.02 of these rules and regulations;  

012.01D Failure at any time to comply with the Motor Vehicle Operator’s License Act or the rules and regulations adopted and promulgated by the Department under that Act;  

012.01E Lack of business stability;  

012.01F Fraud, forgery or falsification of any documents relating to the schools or their instructors;  

012.01G Employing an instructor who has a conviction for driving a motor vehicle under the influence within the previous five years of the date of application;  

012.01H Employing an instructor who has a suspended or revoked driver’s license within the previous five years of the date of application, or who has a five point or more driving violation within the previous five years;  

012.01I Fraud, forgery or misrepresentation in an application;  

012.01J Failure to teach to the student the proper operation of the appropriate motor vehicle;

12.01K  Failure to pass a nationwide criminal background check. The Department will deny any applicant whose record contains a felony conviction within the last ten (10) years or any conviction involving fraudulent activities.

012.02 The Department in deciding whether to suspend or revoke a driver training school shall take this section in to consideration.

012.02A Any driver training school's first offense in violating this section may result in a sixty day suspension except when the violation was under Section 012.01F or Section 012.01I.

012.02B In instances when a driver training school has committed two or more offenses, permanent revocation may be appropriate.

013 APPEAL.  

013.01 Hearing. Upon suspension, revocation, cancellation or denial of the issuance of an instructor or school license, the Director shall notify the school in writing and, upon written request, shall afford the school a hearing.

013.02 Stay. Upon receipt of a written request, and upon good showing by the instructor or school, the Director may stay the administrative order pending an administrative hearing on the matter.  

013.03 Administrative Procedure Act. Any action taken by the Department to cancel, suspend, revoke or refuse to issue or renew a license shall comply with the Administrative Procedure Act.  

013.04 Adoption of Attorney General’s Model Rules. All hearings will be held in conformance with Title 53 Nebraska Administrative Code, Chapter 4 of the Nebraska Department of Justice, also known as the Attorney General’s Model Rules, incorporated herein by reference and attached to these regulations.

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TITLE 247 - NEBRASKA ADMINISTRATIVE CODE

CHAPTER 3 - RULES AND REGULATIONS FOR THE DESIGNATION AND DISPOSITION OF ABANDONED VEHICLES PURSUANT TO NEB. REV. STAT. §§ 60-1901 THROUGH 60-1911.

001 SCOPE. This Chapter establishes procedures for the determination, custody, and disposition of certain vehicles abandoned on public and private property of the State of Nebraska and incorporates the provisions of Neb. Rev. Stat. §§ 60-1901 through 60-1911 as amended by LB 90 (Laws, 1999), LB 560 (2004) and changes to Chapter 60, Articles 1 and 3, of the Nebraska Revised Statutes by LB 274 (Laws, 2005), LB 276 (Laws, 2005) and LB 286 (Laws, 2007). The procedures outlined in this Chapter do not apply to vehicles which have been removed from parking lots under Neb. Rev. Stat. §§ 60-2401 through 60-2411, nor to liens for services placed against such vehicles pursuant to Neb. Rev. Stat. §§ 52-601.01 through 52-605. Additionally, this Chapter does not apply to vehicles in the custody of law enforcement agencies which are subject to forfeiture under the provisions of Neb. Rev. Stat. § 28-431.

001.01 Form. A form for an AFFIDAVIT AND REQUEST FOR CERTIFICATE OF TITLE FOR MOTOR VEHICLE/ATV/MINIBIKE/MOTORBOAT – LAW ENFORCEMENT ONLY is available on the Department of Motor Vehicles web page, www.dmv.ne.gov, or may be obtained by calling (402) 471-3918.

002 DEFINITIONS.  

002.01 Abandoned vehicle means any vehicle as defined in Neb. Rev. Stat. § 60-136, motor vehicle as defined in Neb. Rev. Stat. § 60-123 or cabin trailer as defined in Neb. Rev. Stat. § 60-107 which fit into any of the following categories:  

002.01A Any vehicle left unattended on any public property for more than six hours with no current license plates or valid “In Transit” decals issued by a licensed automobile dealer attached to it;  

002.01B Any vehicle left unattended for more than 24 hours on any public property except for portions of such property where the vehicle may be legally parked;

002.01C Any vehicle which has been left unattended for more than 48 hours on portions of public property where the vehicle may be legally parked after the parking has become illegal;

002.01D Any vehicle left unattended for more than seven days on private property if left initially without the permission of the property owner, or after the property owner’s permission has been terminated; or  

002.01E Any vehicle left in the custody of any law enforcement agency of this state for more than 30 days after that agency has sent notice by certified or registered United States mail to the last registered owner(s) that the vehicle is no longer needed.  

002.01F A mobile home is an abandoned vehicle if left in place on private property for more than thirty days after a local governmental unit, pursuant to an ordinance or resolution, has sent a certified letter to each of the last-registered owners and posted a notice on the mobile home, stating that the mobile home is subject to sale or auction or vesting of title as set forth in section 60-1903.  

002.02 All terrain vehicle means any motorized off-highway device which (1) is 50 inches or less in width, (2) has a dry weight of 900 pounds or less, (3) travels on three or more low-pressure tires, (4) is designed for operator use only with no passengers or is specifically designed by the original manufacturer for the operator and one passenger, (5) has a seat or saddle designed to be straddled by the operator, and (6) has handlebars or any other steering assembly for steering control.  

002.03 Department means the Nebraska Department of Motor Vehicles.  

002.04 Investigative purposes means any investigation conducted by any law enforcement agency of this state to determine whether a violation of the law has occurred, or to determine the owner(s) of an abandoned vehicle.  

002.05 Law enforcement agency means any agency of this state empowered and authorized by law to enforce the laws of this state, to investigate violations of the law, and to make arrests.  

002.06 Local authority means the county in which a vehicle was abandoned, or if the vehicle was abandoned within the corporate limits of a city or village, the city or village.  

002.07 Minibike means a two-wheel device which has a total wheel and tire diameter of less than 14 inches or an engine-rated capacity of less than 45 cubic centimeters displacement or any other two-wheel device primarily designed by the manufacturer for off-road use only. Minibike does not include an electric personal assistive mobility device.  

002.08 Mobile home means a movable or portable dwelling constructed to be towed on its own chassis, connected to utilities, and designed with or without a permanent foundation for year-round living. It may consist of one or more units that can be telescoped when towed and expanded later for additional capacity, or of two or more units, separately towable but designed to be joined into one integral unit, and shall include a manufactured home as defined in section 71-4603. Mobile home does not include a mobile home or manufactured home for which an affidavit of affixture has been recorded pursuant to section 60-169;  

002.09 Motor vehicle means any vehicle propelled by any power other than muscular power except (1) mopeds, (2) farm tractors, (3) self-propelled equipment designed and used exclusively to carry and apply fertilizer, chemicals, or related products to agricultural soil and crops, agricultural floater-spreader implements, and other implements of husbandry designed for and used primarily for tilling the soil and harvesting crops or feeding livestock, (4) power unit hay grinders or a combination which includes a power unit and a hay grinder when operated without cargo, (5) vehicles which run only on rails or tracks, (6) off-road designed vehicles, including, but not limited to, golf carts, go-carts, riding lawnmowers, garden tractors, all-terrain vehicles, snowmobiles registered or exempt from registration under Neb. Rev. Stat. §§ 60-3,207 to 60-3,219, and minibikes, (7) road and general-purpose construction and maintenance machinery not designed or used primarily for the transportation of persons or property, including, but not limited to, ditchdigging apparatus, asphalt spreaders, bucket loaders, leveling graders, earthmoving carryalls, power shovels, earthmoving equipment, and crawler tractors, (8) self-propelled chairs used by persons who are disabled, and (9) electric personal assistive mobility devices, and (10) low-speed vehicles.  

002.10 Private property means any privately-owned property not included within the definition of public property.  

002.11 Public property means any public right-of-way, street, highway, alley or park, or other state, county, or municipally owned property.  

002.12 State agency means any agency of this state which is empowered and authorized by law to seize and dispose of vehicles.  

002.13 Semitrailer means any trailer so constructed that its weight and that of its load rests upon or is carried by the towing vehicle.  

002.14 Trailer means any device without motive power designed for carrying persons or property and being towed by a motor vehicle and so constructed that no part of its weight rests upon the towing vehicle.

002.15 Vehicle means a motor vehicle, all-terrain vehicle, minibike, trailer, or semitrailer as provided in Neb. Rev. Stat. § 60-136 and cabin trailer as provided in Neb. Rev. Stat. § 60-107.

003 PROCEDURE FOR COUNTIES, CITIES, OR VILLAGES.  

003.01 Determine the Value of the Vehicle. The value of a vehicle for the purposes of this Chapter is the wholesale value of the vehicle as described in the most recent issue of the applicable NADA guide, or other reliable pricing method if the NADA guide is not available. It is not necessary to determine the exact value of the vehicle, but rather whether such value is more or less than two hundred fifty dollars ($250.00). The general condition of the vehicle shall also be taken into account when making this determination. In determining the value of the vehicle, any contents of the vehicle shall not be considered.

003.02 Vehicles with a Value of Two Hundred Fifty Dollars ($250.00) or Less. The title to any abandoned vehicle which at the time it was abandoned did not have either current license plates or valid “In Transit” decals issued by a licensed automobile dealer attached to it and which has a value of two hundred fifty dollars ($250.00) or less vests immediately with the county, city, or village in which it was abandoned. The appropriate county official shall issue a new title in the name of the county, city, or village at no cost to the county, city, or village. Any liens existing against the previous title shall be extinguished.

003.03 Vehicles with a Value of over Two Hundred Fifty Dollars ($250.00), Inquiry as to Last Registered Owner(s). When an abandoned vehicle is determined to have a value of more than two hundred fifty dollars ($250.00), the county, city, or village shall make an inquiry as to the last registered owner(s) as follows:  

003.03A If the vehicle bears Nebraska license plates, regardless of whether they are current or not, “In Transit” decals, or no license plates, an inquiry shall be made to the Department. Any vehicle bearing handmade “In Transit” decals shall be considered a vehicle without license plates for the purposes of this Chapter; or  

003.03B If the vehicle has current license plates issued by a state other than Nebraska, “In Transit” decals or temporary license plates issued by a state other than Nebraska, the inquiry shall be made to the Department of Motor Vehicles or appropriate agency responsible for vehicle records of that state in the manner provided for and upon payment of the fee established by that state.  

003.04 Notice to Last Registered Owner(s) and Lienholder(s). After the last registered owner(s) of the vehicle has been determined, the county, city, or village shall send notice to the owner(s) at his or her last-known address by certified or registered United States mail. The notice shall state that the vehicle in question has been determined to be an abandoned vehicle and if not claimed will be sold or auctioned after five days of the date the notice was mailed, or if the county, city, or village intends to retain the vehicle, that title to the vehicle will vest in the county, city, or village 30 days after the date the notice was mailed. If any liens are found to exist against the title of the vehicle as a result of the inquiry described in subsection 003.03 of these rules and regulations, a copy of this notice shall also be sent by certified or registered United States mail to each lienholder.  

003.05 No Notice Required If Unable to Determine the Owner or Lienholder. If the vehicle is in such a condition that vehicle identification numbers or other means of identification are not available to determine the last-registered owner or lienholder, the vehicle may be disposed of without notice.  

003.06 Not Registered. If the vehicle is not required to be registered or the vehicle has never been registered, the city, county, or village shall follow the procedures above and use any ownership and lien information from the vehicle title and follow the notification procedures above.  

003.07 Publication of Notice of Intent to Retain Abandoned Vehicle. If the county, city, or village has determined that it will retain an abandoned vehicle for its own use rather than sell or auction it, that county, city, or village shall also publish notice in a Nebraska newspaper of general circulation that it intends to retain the vehicle for its own use, and that title will vest with the county, city, or village 30 days following the date of publication of notice. This notice shall be published on the same date that the notice described in subsection 003.04 of these rules and regulations is sent to the last registered owner(s) and each lienholder, if any.

003.08 Claiming the Vehicle. The last registered owner(s) or any lienholder(s) may claim the vehicle within the period prescribed in subsection 003.04 of these rules and regulations by presenting acceptable identification and a copy of the notice to the appropriate official of the county, city, or village in which the vehicle was abandoned. Any person claiming the vehicle shall pay the county, city, or village or its contractual towing agent for the costs of towing and storing the vehicle.  

003.09 Vesting of Title. If unclaimed, the title to any vehicle with a value of over two hundred fifty dollars ($250.00) shall vest in the county, city or village as follows:  

003.09A If the last registered owner(s) of the vehicle has been determined, five days from the date of mailing of notice to the last registered owner(s);  

003.09B If the last registered owner(s) of the vehicle cannot be determined, the date on which the county, city, or village was so notified; or  

003.09C If the county, city, or village intends to retain the vehicle for its own use, 30 days following the date of notice by publication, provided that 30 days has elapsed from the date of mailing of notice to the last registered owner(s).

003.10 Issuance of Title. No Response by Owner(s) or Lienholder(s) Within 30 Days. Once title to a vehicle has vested with the county, city, or village as described in subsection 003.09 of these rules and regulations, the county, city or village shall wait an additional 30 days before applying for a title. If the owner(s) or lienholder(s) does not remove the vehicle within 30 days from the vesting of title, a representative of the county, city, or village shall present the AFFIDAVIT AND REQUEST FOR CERTIFICATE OF TITLE FOR MOTOR VEHICLE/ATV/MINIBIKE/MOTORBOAT – LAW ENFORCEMENT ONLY to the appropriate county official of the county in which the vehicle is located. That county official shall issue a new title in the name of the county, city, or village at no cost to the county, city, or village.

003.11 Disposition of Vehicle upon Receipt of Title. Upon receipt of a title, the county, city, or village may sell or auction the vehicle or retain it for its own use. Nothing in this Chapter shall prevent a county, city, or village from transferring the title of a vehicle to an individual or company which towed or stored the vehicle in order to satisfy towing or storage costs.

003.12 Liability. The owner(s), lessee, or occupant of any private property from which an abandoned vehicle is removed shall not be liable for any loss or damage to the vehicle which occurs as a result of its removal. The county, city, or village or its contractual towing agent shall likewise not be liable for any loss or damage to such vehicle which occurs as a result of its removal from public or private property, towing, or storage.

004 PROCEDURE FOR STATE AGENCIES.  

004.01 Determine the Value of the Vehicle. The value of a vehicle for the purposes of this Chapter is the wholesale value of the vehicle as described in the most recent issue of the applicable NADA guide, or other reliable pricing method if the NADA guide is not available. It is not necessary to determine the exact value of the vehicle, but rather whether such value is more or less than two hundred fifty dollars ($250.00). The general condition of the vehicle shall also be taken into account when making this determination. In determining the value of the vehicle any contents of the vehicle shall not be considered.  

004.02 Vehicles with a Value of Two Hundred Fifty Dollars ($250.00) or Less. The state agency which caused the removal of a vehicle with a value of two hundred fifty dollars ($250.00) or less shall deliver the vehicle to the county, city, or village in which the vehicle was found unless the vehicle is being held for investigative purposes by a law enforcement agency. The county, city, or village shall have custody of the vehicle and may dispose of it in accordance with section 003 of this Chapter.  

004.03 Vehicles with a Value of over Two Hundred Fifty Dollars ($250.00), Inquiry as to Last Registered Owner(s). When an abandoned vehicle is determined to have a value of more than two hundred fifty dollars ($250.00), the state agency shall make an inquiry as to the last registered owner(s) as follows:  

004.03A If the vehicle bears Nebraska license plates, regardless of whether they are current or not, “In Transit” decals, or no license plates, an inquiry shall be made to the Department. Any vehicle bearing handmade “In Transit” decals shall be considered a vehicle without license plates for the purposes of this Chapter; or  

004.03B If the vehicle has current license plates issued by a state other than Nebraska, “In Transit” decals or temporary license plates issued by a state other than Nebraska, the inquiry shall be made to the Department of Motor Vehicles or appropriate agency responsible for vehicle records of that state in the manner provided for and upon payment of the fee established by that state.  

004.04 Notice to Last Registered Owner(s) and Lienholder(s). After the last registered owner(s) of the vehicle has been determined, the state agency shall send notice to the owner(s) at his or her last-known address by certified or registered United States mail. The notice shall state that the vehicle in question has been determined to be an abandoned vehicle and if not claimed will be sold or auctioned after five days of the date the notice was mailed, or if the state agency intends to retain the vehicle, that title to the vehicle will vest in the state agency 30 days after the date the notice was mailed. If any liens are found to exist against the title of the vehicle as a result of the inquiry described in subsection 004.03 of these rules and regulations, a copy of this notice shall also be sent by certified or registered United States mail to each lienholder.  

004.05 No Notice Required If Unable to Determine the Owner or Lienholder. If the vehicle is in such a condition that vehicle identification numbers or other means of identification are not available to determine the last-registered owner or lienholder, the vehicle may be disposed of without notice.  

004.06 Not Registered. If the vehicle is not required to be registered or the vehicle has never been registered, the state agency shall follow the procedures above and use any ownership and lien information from the vehicle title and follow the notification procedures above.  

004.07 Publication of Notice of Intent to Retain Abandoned Vehicle. If the state agency has determined that it will retain an abandoned vehicle for its own use rather than sell or auction it, that state agency shall also publish notice in a Nebraska newspaper of general circulation that it intends to retain the vehicle for its own use, and that title will vest with the state agency 30 days following the date of publication of notice. This notice shall be published on the same date that the notice described in subsection 004.04 of these rules and regulations is sent to the last registered owner(s) and each lienholder, if any.  

004.08 Claiming the Vehicle. The last registered owner(s) or any lienholder(s) may claim the vehicle within the period prescribed in subsection 004.04 of these rules and regulations by presenting acceptable identification and a copy of the notice to the appropriate official of the state agency having custody of the vehicle. Any person claiming the vehicle shall pay the state agency or its contractual towing agent for the costs of towing and storing the vehicle.  

004.09 Vesting of Title. If unclaimed, the title to any vehicle with a value of over two hundred fifty dollars ($250.00) shall vest with the state agency as follows:  

004.09A If the last registered owner(s) or the vehicle has been determined, five days from the date of mailing of notice to the last registered owner(s);  

004.09B If the last registered owner(s) of the vehicle cannot be determined, the date on which the state agency was so notified; or  

004.09C If the state agency intends to retain the vehicle for its own use, 30 days following the date of notice by publication, provided that 30 days has elapsed from the date of mailing of notice to the last registered owner(s).  

004.10 Issuance of Title. No Response by Owner(s) or Lienholder(s) Within 30 Days. Once title to a vehicle has vested with a state agency as described in subsection 004.07 of these rules and regulations, the state agency shall wait an additional 30 days before applying for a title. If the owner(s) or lienholder(s) does not remove the vehicle within 30 days from the vesting of title, a representative of that agency shall present the AFFIDAVIT AND REQUEST FOR CERTIFICATE OF TITLE FOR MOTOR VEHICLE/ATV/MINIBIKE/MOTORBOAT – LAW ENFORCEMENT ONLY to the Department, which will issue a new title in the name of the state agency at no cost.

004.11 Disposition of Vehicle upon Receipt of Title. Upon receipt of a title, the state agency may sell or auction the vehicle or retain it for its own use. Nothing in this Chapter shall prevent a state agency from transferring the title of a vehicle to an individual or company which towed or stored the vehicle in order to satisfy towing or storage costs.

004.12 Liability. The owner(s), lessee, or occupant of any private property from which an abandoned vehicle is removed shall not be liable for any loss or damage to the vehicle which occurs as a result of its removal. The state agency or its contractual towing agent shall likewise not be liable for any loss or damage to such vehicle which occurs as a result of its removal from public or private property, towing, or storage.

005 PROCEDURE FOR VEHICLES HELD BY LAW ENFORCEMENT AGENCIES FOR INVESTIGATIVE PURPOSES.

005.01 Determine the Value of the Vehicle. The value of a vehicle for the purposes of this Chapter is the wholesale value of the vehicle as described in the most recent issue of the applicable NADA guide, or other reliable pricing method if the NADA guide is not available. It is not necessary to determine the exact value of the vehicle, but rather whether such value is more or less than two hundred fifty dollars ($250.00). The general condition of the vehicle shall also be taken into account when making this determination. In determining the value of the vehicle, any contents of the vehicle shall not be considered.

005.02 Vehicles with a Value of Two Hundred Fifty Dollars ($250.00) or Less. The title to any abandoned vehicle which at the time it was abandoned did not have either current license plates or valid “In Transit” decals issued by a licensed automobile dealer attached to it and which has a value of two hundred fifty dollars ($250.00) or less vests immediately with the law enforcement agency. The appropriate official of the law enforcement agency shall present the AFFIDAVIT AND REQUEST FOR CERTIFICATE OF TITLE FOR MOTOR VEHICLE/ATV/MINIBIKE/MOTORBOAT - LAW ENFORCEMENT ONLY to the Department, which shall issue a new title in the name of the law enforcement agency at no cost. Any liens existing against the previous title shall be extinguished.

005.03 Vehicles with a Value of over Two Hundred Fifty Dollars ($250.00), Inquiry as to Last Registered Owner(s). When an abandoned vehicle is determined to have a value of more than two hundred fifty dollars ($250.00), the law enforcement agency shall make an inquiry as to the last registered owner(s) as follows:  

005.03A If the vehicle bears Nebraska license plates, regardless of whether they are current or not, “In Transit” decals, or no license plates, an inquiry shall be made to the Department. Any vehicle bearing handmade “In Transit” decals shall be considered a vehicle without license plates for the purposes of this Chapter; or  

005.03B If the vehicle has current license plates issued by a state other than Nebraska, “In Transit” decals or temporary license plates issued by a state other than Nebraska, the inquiry shall be made to the Department of Motor Vehicles or appropriate agency responsible for vehicle records of that state in the manner provided for and upon payment of the fee established by that state.

005.04 Notice to Last Registered Owner(s) and Lienholder(s). After the last registered owner(s) of the vehicle has been determined, the law enforcement agency shall send notice to the owner(s) at his or her last-known address by certified or registered United States mail. The notice shall state that the vehicle in question has been determined to be an abandoned vehicle and if not claimed will be sold or auctioned after five days of the date the notice was mailed, or if the law enforcement agency intends to retain the vehicle, that title to the vehicle will vest in the law enforcement agency 30 days after the date the notice was mailed. If any liens are found to exist against the title of the vehicle as a result of the inquiry described in subsection 005.03 of these rules and regulations, a copy of this notice shall also be sent by certified or registered United States mail to each lienholder. A copy of this notice shall also be sent to any person other than the last registered owner(s) who was found to be operating or in the possession of such vehicle at the time it was seized by the law enforcement agency.  

005.05 No Notice Required If Unable to Determine the Owner or Lienholder. If the vehicle is in such a condition that vehicle identification numbers or other means of identification are not available to determine the last-registered owner or lienholder, the vehicle may be disposed of without notice.  

005.06 Not Registered. If the vehicle is not required to be registered or the vehicle has never been registered, the law enforcement agency shall follow the procedures above and use any ownership and lien information from the vehicle title and follow the notification procedures above.  

005.07 Publication of Notice of Intent to Retain Abandoned Vehicle. If the law enforcement agency has determined that it will retain an abandoned vehicle for its own use rather than sell or auction it, the law enforcement agency shall also publish notice in a Nebraska newspaper of general circulation that it intends to retain the vehicle for its own use, and that title will vest with the law enforcement agency 30 days following the date of publication of notice. This notice shall be published on the same date that the notice described in subsection 005.04 of these rules and regulations is sent to the last registered owner(s), each lienholder, if any, or any person found to be operating or in possession of the vehicle at the time it was seized.  

005.08 Claiming the Vehicle. The last registered owner(s), any lienholder(s), or person found to be operating or in possession of a vehicle at the time of its seizure by a law enforcement agency may claim the vehicle within the period prescribed in subsection 005.04 of these rules and regulations by presenting acceptable identification and a copy of the notice to the appropriate official of the law enforcement agency in which the vehicle was abandoned. Towing and storage costs shall be paid as follows:  

005.08A By the owner or person operating or in the possession of the vehicle at the time of its seizure if such individual is charged with a misdemeanor or felony relating to the seizure of the vehicle; or

005.08B By the law enforcement agency if the owner(s) or person operating or in the possession of the vehicle at the time of its seizure is not charged with a misdemeanor or felony relating to the seizure of the vehicle, if such misdemeanor or felony is dismissed with prejudice, or if such individual is acquitted of the misdemeanor or felony charge following a criminal trial.

005.09 Vesting of Title. If unclaimed, the title to any vehicle with a value of over two hundred fifty dollars ($250.00) shall vest with the law enforcement agency as follows:  

005.09A Thirty (30) days following the date of notice to the last registered owner, lienholder, or person operating or in the possession of the vehicle at the time of its seizure; or

005.09B Immediately if no individual or company described in subsection 005.07A of these rules and regulations can be determined.  

005.10 Issuance of Title. Once title to a vehicle has vested with the law enforcement agency as described in subsection 005.07 of these rules and regulations, the law enforcement agency shall wait an additional 30 days before applying for a title. If the owner(s) or lienholder(s) does not appear or respond within 30 days from the vesting of title, the appropriate official of the law enforcement agency shall present the AFFIDAVIT AND REQUEST FOR CERTIFICATE OF TITLE FOR MOTOR VEHICLE/ATV/MINIBIKE/MOTORBOAT – LAW ENFORCEMENT ONLY to the appropriate county official or the Department, if a state agency which shall issue a new title in the name of the law enforcement agency at no cost.  

005.11 Disposition of Vehicle upon Receipt of Title. Upon receipt of a title, the law enforcement agency may sell or auction the vehicle or retain it for its own use. Nothing in this Chapter shall prevent a law enforcement agency from transferring the title of a vehicle to an individual or company which towed or stored the vehicle in order to satisfy towing or storage costs.

005.12 Liability. The owner(s), lessee, or occupant of any private property from which an abandoned vehicle is removed shall not be liable for any loss or damage to the vehicle which occurs as a result of its removal. The law enforcement agency or its contractual towing agent shall likewise not be liable for any loss or damage to such vehicle which occurs as a result of its removal from public or private property, towing, or storage.

006 LIENS.  

006.01 Existing Liens. To preserve a lien on a vehicle, the lienholder must respond to the notice sent pursuant to subsections 003.04, 004.04 or 005.04 of these rules and regulations and must claim and remove the vehicle within 30 days of the notice as provided in Neb. Rev. Stat. § 60-1903 or title will vest in the local authority or state agency.

007 DISPOSITION OF PROCEEDS.  

007.01 Proceeds From Sale or Auction of Vehicle. The proceeds from any sale or auction of a vehicle pursuant to these rules and regulations, less towing, storage, and sale expenses, shall be held without interest for the benefit of the registered owner(s) or lienholder(s) for a period of two years following the date of sale or auction.  

007.02 Unclaimed Proceeds. If the proceeds are not claimed within the two-year period, they shall be paid into the State General Fund or General Fund of the county, city or village.

008 FEES.  

008.01 Act of the Legislature. If the Legislature should change any fee set out in these rules and regulations, the fee set in statute will be controlling and the fee amounts provided in the rules or regulations shall be void. Applicants will be charged the applicable fee set by the Legislature from the effective date of the act.

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Title 247 - NEBRASKA DEPARTMENT OF MOTOR VEHICLES

Chapter 6 - RULES AND REGULATIONS GOVERNING THE MOTORCYCLE SAFETY EDUCATION PROGRAM

001 SCOPE. These rules and regulations govern the Nebraska Department of Motor Vehicles procedures to design programs, administer those programs and enforce the provisions for teaching motorcycle rider safety under the Motorcycle Safety Education Act.

002 DEFINITIONS

002.01 Authorized Representative. The person designated by the provider with the authority to act on its behalf.

002.02 Contact Person. The person available at the provider to receive communications from the Department.

002.03 Course Completion Card. A document certified by a state agency charged with the responsibility for issuing such licenses which indicates that the holder has attended and successfully completed a certified motorcycle safety course consistent with these rules and regulations.

002.04 Department. The Nebraska Department of Motor Vehicles.

002.05 Director. The Director of the Department of Motor Vehicles.

002.06 Driving Course. A driving pattern used to aid students in learning the skills needed to safely operate a motorcycle as part of a motorcycle safety course.

002.07 Motorcycle. Every motor vehicle having a seat or saddle for the use of the rider and designed to travel on not more than three wheels in contact with the ground, excluding tractors and electric personal assistive mobility devices.

002.08 Motorcycle Safety Course. A curriculum of study which has been approved by the Department designed to teach drivers the skills and knowledge to safely operate a motorcycle.

002.09 Motorcycle Safety Instructor. A person who has successfully passed a motorcycle safety instructor's course curriculum and is certified by the Department to teach a motorcycle safety course.

002.10 Motorcycle Safety Trainer. A person who is qualified and certified by the Department to teach another person to become a certified motorcycle safety instructor in this state.

002.11 Provider. A school, business or organization which is offering or intends to offer a motorcycle safety course to the general public.

002.12 Quality Assurance Visit (QAV). an audit of a provider's program, range, records and instructors.

002.13 Range. The area of ground designated for teaching motorcycle rider skills to students, including but not limited to pavement, markings, signs and obstacles.

003 APPLICATION AND RENEWAL REQUIREMENTS FOR PROVIDERS

003.01 General Requirements. Any school, business, or organization which wishes to provide a motorcycle safety course must comply with the following:

003.01A. Continually maintain a place of business which includes at least one permanent, regularly occupied structure within the State of Nebraska.

003.01B. Provide a training site which includes a driving range.

003.01C. Designate an authorized representative and contact person.

003.01D. Require all instructors to be certified motorcycle safety instructors or motorcycle safety trainers.

003.01E. Have one or more certified motorcycle safety instructor(s) present in the classroom or on the driving range with the students at all times during the presentation of the course content, explanations of course materials, administration of test, and riding skills practice.

003.02 Application for Motorcycle Safety Course Provider Certification. Applications to become a motorcycle safety course provider shall be submitted on a form provided by the Department and shall contain the following information:

003.02A Provider Name. The legal name, address, telephone number of the provider's headquarters in Nebraska, including the name and electronic contact information for the local contact person.

003.02B Authorized Representative. The name, title, work address, telephone number and electronic contact information of the person authorized to act on the provider's behalf with the Department.

003.02C Location of Course. The location of the classes and driving range if different from that of the provider's headquarters.

003.02D Time Frame. A general schedule of what and when training will be offered and the frequency with which it will be offered.

003.02E Motorcycle Safety Instructors. The names, dates of birth, home address, e-mail address and operator's license numbers for all persons employed or intended to be employed as motorcycle safety instructors. Motorcycle safety instructors must be certified by the Department prior to teaching any motorcycle safety course in this state.

003.02F Curriculum. The curriculum as set forth below in section 005. If the curriculum consists of a learn-to-ride course offered by the Motorcycle Safety Foundation, a copy of the agreement between the provider and the Motorcycle Safety Foundation will be provided with the application.

003.02G Vehicles. Provider shall certify that if approved, they will supply a motorcycle for each student as required in section 004, below.

003.02H Insurance. Proof of $1,000,000 liability insurance coverage for all instructional and business activities. Motorcycles used in student training will be covered by liability insurance in amounts not less than set forth in Neb. Rev. Stat.§ 60-509.

003.02I Signature. The application must contain the signature of the authorized representative.

003.03 Fee. Each application for certification or the renewal of a certification of each motorcycle safety course provider shall be accompanied by a fee of $100.

003.04 Changes in Status. The provider shall report in writing any of the following to the Department:

003.04A Name Change. A change in the provider's authorized contact person or the provider's name, legal status, or address shall be sent to the Department ten days prior to occurrence.

003.04B Motorcycle Safety Instructor Change. The provider shall report any change in a motorcycle safety instructor's driving status within ten days of the date of any suspension or revocation of his/her driving privileges. The provider must report a motorcycle safety instructor's conviction, in this or any other state, for a) DUI or any related alcohol or drug offense in connection with a motor vehicle or b) any helmet violation while operating a motorcycle. The provider shall report the addition or termination of motorcycle safety instructors.

003.04C Location Change. If there is any change in the location of the program or driving course, the provider shall notify the Department not less than ten days prior to the change.

003.04D Insurance Cancellation or Change. If the provider's insurance is cancelled or altered by the insurer, or if the provider changes insurance carriers, the provider shall notify the Department within ten working days.

003.04E Provider Closure. The provider shall notify the Department ten days prior to the date the operation ceases. The provider shall arrange for the retention of program records and shall notify the Department of those arrangements and how the Department's inspectors or auditors may gain access to such records.

003.05 Renewal of Certification

003.05A. A provider's certificate will expire on the second anniversary of its effective date unless renewed.

003.05B. At least 120 days prior to expiration, the Department will send the Provider's contact person a renewal notice which states:

003.05B1. The date on which the current certificate expires.

003.05B2. The date by which the renewal application must be received by the Department for the renewal to be issued and mailed before the certificate expires.

003.05B3. The amount of the renewal fee ($100).

003.05C. All renewal applications must be submitted to the Department not less than 60 days prior to the time the current certification expires. The Department will not be responsible for the timely issuance of any renewal certificates when the application is not received in a timely manner.

003.06 Denial, Cancellation, Suspension, Revocation or Refusal to Renew Certification. The Department may deny, cancel, suspend, revoke, or refuse to renew a provider's motorcycle safety course certification for good cause, including but not limited to:

003.06A. Fraud, forgery or misrepresentation on an application;

003.06B. Use of non-certified motorcycle safety instructors;

003.05C. Lapse of insurance coverage;

003.06D Failure to notify the Department of any changes in status under section 003.04 above;

003.05E. Failure of an audit by the Department pursuant to section 010 below;

003.05F. For good cause shown; or

003.06G. Failure to maintain adequate records and/or failure to allow the Department access to those records upon request pursuant to section 009 herein.

004 TYPES OF COURSES AND TIME REQUIREMENTS. The Department may waive testing for a class M endorsement upon successful completion of any of the following four courses:

004.01 Basic Rider Course. (BRC) A basic learn to ride a motorcycle course of at least five classroom hours, with an additional three hours online and ten hours of practical on-cycle training. An alternative course of at least five online hours and eleven hours of practical on-cycle training will also meet the requirements. A motorcycle and helmet will be provided by the motorcycle safety school.

004.02 Basic Rider Course 2. (BRC2) An advanced refresher course for riders who already have basic skills. It consists of two hours online, three hours of classroom and six hours of practical on-cycle training. An alternative course of two hours online and seven hours of practical on-cycle training will also meet the requirements.

004.03 Returning Rider Basic Rider Course. (RRBRC) A refresher course for riders who have a permit but have not been riding for several years. It will consist of six hours of practical on-cycle training. A motorcycle and helmet will be provided by the motorcycle safety school.

004.04 Three Wheeled Course. (3WBRC) A basic learn to ride a three-wheel motorcycle course consisting of six hours of classroom and eight hours of on-threewheel motorcycle training. An alternative course of five hours online and seven hours of practical on-cycle training will also meet the requirements if each student has their own bike; eight hours of practical on-cycle training if sharing a bike will also meet requirements. The class M endorsement will be restricted to three wheeled motorcycles.

005 CURRICULUM. The curriculum for all motorcycle safety courses shall be uniform across the state and be research-based. The course must use methods and materials that have been thoroughly investigated and tested, with documented findings based on scientific research from a nationally recognized organization. The curriculum will provide classroom and actual on-cycle instruction in the basic operation of motorcycles. The content, organization, and chronology of presentation of the specified courses will be based upon documented research and have been shown to be effective in providing safety training in accordance with the nationally accepted standards for motorcycle safety training.

005.01 Basic Rider Course. Classroom training shall include instruction on:

005.01A. Motorcycle controls;

005.01B. Protective riding gear;

005.01C. Pre-ride check;

005.01D. Starting and stopping the motorcycle;

005.01E. Riding in a straight line;

005.01F. Turning;

005.01G. Shifting;

005.01H. Braking;

005.01I. Visibility;

005.01J. Lane positioning;

005.01K. Defensive riding strategies;

005.01L. Steering techniques for cornering and evasive maneuvers;

005.01M. Riding on different surfaces;

005.01N. Carrying passengers and loads;

005.01O. Riding in adverse conditions;

005.01P. Alcohol and drugs as they affect riding;

005.01Q. Risk awareness and risk acceptance.

005.02 Basic Rider Course Media. One to three hours of the classroom time may be devoted to the showing of visual media. Visual media used in the basic rider motorcycle safety and education course must be part of the approved curriculum.

005.03 Basic Rider Course On-cycle Training. Practical on-cycle training shall include:

005.03A. Proper mounting and dismounting procedures;

005.03B. Vehicle starting procedures;

005.03C. Straight line riding;

005.03D. Turning;

005.03E. Shifting gears up and down;

005.03F. Braking in a straight line and in a curve;

005.03G. Cornering;

005.03H. Steering techniques for cornering and evasive maneuvers.

005.04 Basic Rider Course 2. The curriculum for Basic Rider Course 2 shall provide discussion and actual on-cycle instruction in advanced techniques for operation of motorcycles. Advanced instruction shall include, but need not be limited to:

005.04A. Risk management;

005.04B. Rider responsibility;

005.04C. Riding strategies;

005.04D. Traction management;

005.04E. Cornering;

005.04F. Braking;

005.04G. Swerving;

005.04H. The effects of alcohol, drugs, fatigue and aging.

005.05 Other Requirements. Course participants in the Basic Rider Course 2, and the Three Wheeled Course must:

005.05A. Provide proof of liability insurance; and

005.05B. Use a motorcycle that meets all requirements for safe operation on Nebraska highways.

005.06 Course Evaluation. All courses shall include evaluation of the student's knowledge and skills relating to operation of the motorcycle. To successfully complete a Course the student shall

005.06A. Pass a knowledge test;

005.06B. Pass an on-cycle skills test.

005.06C. Attend the entire course of instruction; and

005.06D. Consistently demonstrate behavior during on-cycle instruction that does not endanger the safety of the student, other course participants or the instructional staff and/or that does not intentionally damage course equipment.

006 MOTORCYCLE SAFETY INSTRUCTOR CERTIFICATION. An application for certification of a motorcycle safety instructor shall be submitted on a form provided by the Department and shall contain the applicant's name, date of birth, operator's license number, home address, telephone number, electronic contact information and certification information. The motorcycle safety instructor applicant must certify that he or she meets the following criteria:

006.01. Be at least 21 years of age.

006.02. Have a high school diploma or its equivalent.

006.03. Has a motorcycle endorsement on his or her operator's license and two years or more on road experience in riding one or more types of motorcycle.

006.04. Has i) no suspensions or revocations on his or her driving record within the previous five years of the date of application, ii) no convictions for DUI or related alcohol or drug offense in connection with a motor vehicle within the previous five years of the date of application, and iii) no motorcycle helmet violations within the previous five years of the date of application.

006.05. Has successfully completed a motorcycle safety instructor preparation class. Motorcycle safety instructor preparation class must be based on methods and materials which have been thoroughly investigated and tested, with documented findings based on scientific research from a nationally recognized organization. The motorcycle safety instructor preparation course will consist of no less than fifty-six hours of instruction; including theoretical, practical and student teaching experience in motorcycle safety and education instructional theory and techniques. Classroom training shall include, but not be limited to:

006.05A. Training curriculum development;

006.05B. Classroom teaching techniques;

006.05C. Teaching the classroom curriculum;

006.05D. Range teaching techniques including evaluation, coaching and range management;

006.05E. Test administration.

006.05F. Instruction for teaching on-cycle skills including:

1. All skills detailed in the basic course curriculum;

2. Teaching the practical on-cycle curriculum;

3. Practice of evaluation, coaching and range management techniques.

4. Each Motorcycle safety instructor applicant must have student- taught at least one half hour classroom lesson and one half hour range lesson to a class of novice students; peer teaching is not an acceptable substitute for student teaching.

006.06. To successfully complete the motorcycle safety instructor preparation class, the applicant must:

006.06A. Pass a knowledge test with eighty percent of the questions answered correctly;

006.06B. Pass an on-cycle skills test, scoring no more than fifteen overall penalty points and no more than eight penalty points in any single exercise of the final skills test used in the Basic Rider Course and the Basic Rider Course 2;

006.06C. Student teach a minimum of one classroom and one range student teaching assignment to novice students: more than one overall failure in either teaching assignment constitutes failure of the course; and

006.06D. Consistently demonstrate safe behavior during on-cycle instruction.

006.07. The applicant agrees to teach at least two basic motorcycle safety courses (consisting of classroom instruction and rider skills instruction} under the supervision of a motorcycle safety instructor or motorcycle safety trainer.

006.08 Continuing Education. The Department may provide motorcycle safety instructor update training. The update training shall be curriculum centered and may be web based. All motorcycle safety instructors are required to participate in order to retain his or her Nebraska state certification. Should a motorcycle safety instructor be unable to complete a scheduled update, an alternate assignment may be offered in order to allow him or her to meet this requirement.

007 MOTORCYCLE SAFETY TRAINER CERTIFICATION. The Director shall issue certificates in the manner and form prescribed by the Director to no more than two motorcycle safety trainers who meet the minimum education, skills, and experience requirements. Motorcycle safety trainers shall teach the motorcycle safety instructor preparation course as assigned by the Director.

007.01. Currently a Motorcycle Safety Instructor. A person applying to become a motorcycle safety trainer must be a motorcycle safety instructor and an experienced motorcycle rider.

007.02 Trainer Preparation Class. The applicant will have successfully completed a trainer preparation class. The trainer preparation class shall be based on methods and materials which have been thoroughly investigated and tested, with documented findings based on scientific research from a nationally recognized organization. The trainer preparation class will consist of no less than seventy-two hours of instruction and include theoretical, practical and student teaching experience in motorcycle safety as well as education instructional theory and techniques. The applicant shall be certified and current in all requirements, including any continuing education requirements.

007.02A. A person currently certified as a motorcycle safety trainer by another state or recognized accrediting organization may be issued a motorcycle safety trainer's certificate by the Department without having to receive the training required by this section if the certification requirements are comparable to the requirements in this state.

007.03 20 Motorcycle Safety Courses. The trainer applicant shall have successfully taught at least 20 basic motorcycle safety courses consisting of classroom instruction and rider skills instruction.

007.04 Clean Record. The trainer applicant shall have a valid operator's license with the appropriate motorcycle endorsement; and have had no suspensions or revocations on his or her driving record within the previous five years of the date of application including no convictions for DUI or any related alcohol or drug offense. The applicant will have no helmet violations or other motorcycle related convictions within the previous five years of the date of application.

007.05 21 Years Old. The trainer applicant will be at least 21 years of age and have a high school diploma or equivalent.

008 RENEWAL AND CANCELLATION OF CERTIFICATION FOR MOTORCYCLE SAFETY INSTRUCTOR OR MOTORCYCLE SAFETY TRAINER

008.01 Certificate Expiration. A motorcycle safety instructor's and a motorcycle safety trainer's certificate will expire on the second anniversary of its effective date unless renewed.

008.02 Notice. At least 120 days prior to expiration, the Department will send to the certified motorcycle safety instructor or motorcycle safety trainer at his or her last known address, a renewal notice which states:

008.02A. The date on which the current certificate expires;

008.02B. The date by which the renewal application must be received by the Department for the renewal to be issued and mailed before the certificate expires;

008.02C. All renewal applications must be submitted to the Department not less than 60 days prior to the time the current certification expires.

008.03. Denial, Cancellation, Suspension, Revocation or Refusal to Renew Certification. The Department may deny, cancel, suspend, revoke or refuse to renew, the certification of a motorcycle safety instructor or motorcycle safety trainer for good cause, including but not limited to:

008.03A. Fraud, forgery or misrepresentation on the application;

008.03B. Failure to complete or update training required under these Rules and Regulations or as required by the Department;

008.03C. Engaging in or attempting to engage in instruction or skills testing without a certificate required by these regulations;

008.03D. Failure to maintain a valid operator's license with the appropriate motorcycle endorsement;

008.03E. 1) Conviction of DUI or any related alcohol or drug offense within the previous five years of the date of application or while employed as a motorcycle safety instructor or motorcycle safety trainer; or 2) conviction of any helmet violation within the previous five years of the date of application or while employed as a motorcycle safety instructor or motorcycle safety trainer;

008.03F. Suspension or revocation of an operator's license within the previous five years of the date of application or while employed as a motorcycle safety instructor or motorcycle safety trainer;

008.03G. Fraud, forgery or misrepresentation on any documents relating to student evaluations in the training course or knowledge or skills tests;

008.03H. Immoral or dishonorable conduct evidencing unfitness or lack of proficiency to act as a motorcycle safety instructor or motorcycle safety trainer;

008.03I. Any other cause adversely reflecting on the motorcycle safety instructor's or motorcycle safety trainer's fitness or capability to administer instruction or skills tests or to perform any other duties required by statute.

009 RECORDS RETENTION. Each motorcycle safety course provider shall maintain the following records, which shall be subject to audit and which shall be made available to the Department in the course of an audit or otherwise on demand. Records must be maintained a minimum of two years. Records may be maintained in digital or electronic form.

009.01 Motorcycle Safety Instructor and Motorcycle Safety Trainer Records. The motorcycle safety course provider shall retain a copy of the certification issued by the Nebraska Department of Motor Vehicles to each motorcycle safety instructor and each motorcycle safety trainer. It shall also retain a course record card and proof of recertification for each motorcycle safety instructor and each motorcycle safety trainer, which contains the holder's name, sponsor, and identification number indicating that the motorcycle safety instructor or trainer has successfully completed a motorcycle safety instructor preparation class and has been certified. The records will be retained for at least two years after the motorcycle safety instructor or motorcycle safety trainer leaves the employment of the provider.

009.02 Student Records. Each motorcycle safety course provider shall develop and utilize a student registration form. The provider shall retain a record for each student regardless of whether the student passes or fails the tests for the waiver. Each record shall be retained a minimum of two years from the date the student last attended. These lists shall be made available to the Department upon request. For each waiveable class, the provider shall send to the Department within ten days of the completion of a course, the following information:

009.02A. The completed student's class registration form including his or her, name, address, telephone and/or e-mail address, birth date, operator's license number, course completion card number and the state which issued the operator's license held by the student at the time of the training.

009.02B. The student's test score sheet(s) showing the results of the written and skills tests.

009.02C. The name and identification number of the motorcycle safety instructor or motorcycle trainer who administered the written and skills tests.

009.03 Electronic Reporting. Motorcycle safety course providers, motorcycle safety instructors, and motorcycle safety trainers may be required to provide a test result for each student by electronic means to the Department.

010 AUDITS. The Department may conduct an audit, also known as a Quality Assurance Visit (QAV) of all motorcycle safety courses from time to time to assure that they are being conducted in compliance with the Motorcycle Safety Education Act and the Rules and Regulations of the Department. Non-compliance with either the Act or the Rules and Regulations is cause for denial, refusal to renew, suspension or revocation of the provider's or motorcycle safety instructor's certification by the Department.

010.01 Unannounced. Audits may be unannounced and shall consist of an inspection of the provider's documentation and facilities; observation of the motorcycle safety instructor's training skills; and any other aspect of the program at the discretion of the Director.

010.02 Unbiased. No person who owns or manages a provider or training site shall audit the provider or training site he or she owns or manages.

010.03 Notice of Results. The Department shall notify the audited entity of the result in writing.

010.04 Deficiency. The Director may summarily suspend a provider, a motorcycle safety instructor, or a motorcycle safety trainer based on the audit if the deficiency or failure to comply is deemed to be serious or dangerous.

010.04A. In the event an audit reveals a deficiency or failure to comply, the Director may provide a reasonable time period for the audited entity to correct the deficiency.

010.05 Failure to Correct. If the deficiency is not corrected or the failure is based on fraud, forgery or falsification of any documentation, misrepresentation or other criminal act, the Department may deny, cancel, suspend, revoke or refuse to renew, any or all of a provider's certification, a motorcycle safety instructor's certification, or a motorcycle safety trainer's certification.

011 WAIVER. The Department may waive either or both of the knowledge and skills tests of any person who successfully completes a certified motorcycle safety course in Nebraska and provides proof of such completion in the form of a course completion card upon his or her application for a motorcycle endorsement on their operator's license. Waiver of knowledge and skills tests may also be given when the applicant provides a course completion card that shows the successful completion of a Motorcycle Safety Foundation motorcycle safety course in another state. The Department will restrict the class M endorsement for scooters and three-wheeled motorcycle classes.

011.01. The Department reserves the right to check the authenticity of any course completion card presented for a test waiver.

011.02. A course completion certification is valid for 24 months from the date the course was completed.

012 DENIAL, CANCELLATION, SUSPENSION, REVOCATION OR REFUSAL TO RENEW CERTIFICATION

012.01 Notice. Whenever the Department denies an initial application for, cancels, suspends, revokes or refuses renewal of any certificate of approval of a motorcycle safety course provider, motorcycle safety instructor, or motorcycle safety trainer, the Department shall notify the party of its intent to deny, cancel, suspend, revoke, or refuse to renew the certification as follows:

012.01A. Notice shall be made in writing and sent by United States mail to the party's last known address; and

012.01B. Notice shall state that the party may request a hearing on the denial, cancellation, suspension, revocation or refusal to renew the certification by the Department by submitting a written request for a hearing with the Department within 30 days of the issuance of the notice.

012.02 Effective Date. If the party does not request a hearing within 30 days, the Department's action is final.

012.03 Summary Suspension or Revocation. The Department may summarily suspend or revoke the certificate of a motorcycle safety course provider, motorcycle safety instructor or motorcycle safety trainer when the Department finds that the public safety requires emergency action and incorporates its findings to that effect in a notice of suspension or revocation of certificate. The party may request a hearing within 30 calendar days of the date of notice. The Director may stay the suspension until the final order following a hearing.

013 APPEAL

013.01 Hearing. Upon suspension, revocation, cancellation or denial of the issuance of a motorcycle safety instructor or school license, or refusal to renew a license, the Director shall notify the school in writing and, upon written request, shall afford the school a hearing. A written request for hearing must be received within thirty days of the date of the decision.

013.02 Stay. Upon receipt of a written request, and upon good showing by the motorcycle safety instructor or school, the Director may stay the administrative order pending an administrative hearing on the matter.

013.03 Administrative Procedure Act. Any action taken by the Department to cancel, suspend, revoke or refuse to issue or renew a license shall comply with the Administrative Procedure Act.

013.04 Appeal Procedures. The hearing process to appeal a decision by the Director of the Department shall be conducted as provided in Title 53 NAC Chapter 4, Rules of Practice and Procedure for Hearings in Contested Cases Before an Agency. A copy of which can be found online at https://www.nebraska.gov/rules-andregs/ regsearch/Rules/Attorney General/Title-53.pdf and can also be obtained by contacting the DMV to request a copy at the Nebraska Department of Motor Vehicles, Legal Division, P. O. Box 94699, 301 Centennial Mall South, Lincoln, Nebraska 68509-4699, (402) 471-9593.

014 POST HEARING APPEAL. Any party aggrieved by a final decision or order of the Director made pursuant to these Rules and Regulations and the applicable statutes may appeal such decision or order in the manner provided in the Administrative Procedure Act for contested cases pursuant to Neb. Rev. Stat. § 84-917.

015 CALCULATION OF TIME. In computing time, days will be computed by excluding the day of the act or event and include the last day of the period. If the last day of the period falls on a Saturday, Sunday or State Holiday, the period shall include the next working day. If documents are faxed to the Department outside of normal business hours, the date of the receipt shall be the next business day.

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Title 247 - NEBRASKA DEPARTMENT OF MOTOR VEHICLES

Chapter 8 - RULES AND REGULATIONS GOVERNING THE CERTIFICATION OF THIRD-PARTY TESTERS AND THIRD-PARTY EXAMINERS FOR THE COMMERCIAL DRIVER'S LICENSE

001 SCOPE

001.01 Applicability. These rules and regulations apply to the following entities and individuals:

001.01A. Any Third-Party Tester as defined in these rules and regulations;

001.01B. Any Third-Party Examiner as defined in these rules and regulations; and,

001.01C. Any entity or person offering a training course to qualify an individual for certification as a Third-Party Examiner.

001.02 Incorporation by Reference. The following regulations and standards are adopted, promulgated and incorporated in these rules and regulations by reference:

001.02A. Title 247 NAC Chapter 16, and the federal regulations and standards incorporated therein, governing the administration of the commercial driver's license program, as amended;

001.02B. The parts, subparts, and sections of Title 49 of the Code of Federal Regulations, as referenced in the Motor Vehicles Operator's License Act, pursuant to Neb. Rev. Stat.§ 60-462.01; and,

001.02C. Title 53 NAC Chapter 4 of the Nebraska Department of Justice, Attorney General's Model Rules.

002 DEFINITIONS

002.01 Approved training course means a training course approved by the Department for the training of Third-Party Examiners.

002.02 Class A combination vehicle means any combination of motor vehicles and towed vehicles with a gross vehicle weight rating of more than twenty-six thousand (26,000) pounds if the gross vehicle weight rating of the vehicles being towed are in excess of ten thousand (10,000) pounds.

002.03 Class A testing certification means certification by the Department authorizing a Third-Party Tester or Third-Party Examiner to administer skills tests for drivers of Class A, Class B, or Class C commercial motor vehicles.

002.04 Class B heavy straight vehicle means any single commercial motor vehicle with a gross vehicle weight rating of twenty-six thousand one (26,001) pounds or more or any such commercial motor vehicle towing a vehicle with a gross vehicle weight rating not exceeding ten thousand (10,000) pounds.

002.05 Class B testing certification means certification by the Department authorizing a Third-Party Tester or Third-Party Examiner to administer skills tests for drivers of Class B or Class C commercial motor vehicles.

002.06 Class C small vehicle means any single commercial motor vehicle with a gross vehicle weight rating of less than twenty-six thousand one (26,001) pounds or any such commercial motor vehicle towing a vehicle with a gross vehicle weight rating not exceeding ten thousand (10,000) pounds comprising (i) motor vehicles designed to transport sixteen (16) or more passengers, including the driver; and (ii) motor vehicles used in the transportation of hazardous materials and required to be placarded pursuant to Neb. Rev. Stat. § 75-364.

002.07 Class C testing certification means certification by the Department authorizing the Third-Party Tester or Third-Party Examiner to administer skills tests for drivers of Class C small vehicles.

002.08 CDL means Commercial Driver's License as defined in § 60-480.

002.09 CLP means Commercial Learner's Permit as defined in § 60-480.

002.10 Commercial motor vehicle or CMV means a motor vehicle or combination of motor vehicles used in commerce to transport passengers or property if the motor vehicle:

002.10A has a gross combination weight rating or gross combination weight of 11,794 kilograms or more (26,001 pounds or more) inclusive of a towed unit or units with a gross vehicle weight rating or gross vehicle weight of more than 4,536 kilograms (10,000 pounds);

002.10B has a gross vehicle weight rating or gross vehicle weight of 11,794 or more kilograms (26,001 pounds or more);

002.10C is designed to transport 16 or more passengers, including the driver; or

002.10D is of any size and is used in the transportation of materials found to be hazardous for the purposes of the Federal Hazardous Materials Transportation Act and which require the motor vehicle to be placarded under the Federal Hazardous Material Regulations 49 CFR part 172, subpart F.

002.11 Conviction means an unvacated adjudication of guilt, or a determination that a person has violated or failed to comply with the law in a court of original jurisdiction or by an authorized administrative tribunal, an unvacated forfeiture of bail or collateral deposited to secure the person's appearance in court, a plea of guilty or nolo contendere accepted by the court, the payment of a fine or court cost, or violation of a condition of release without bail, regardless of whether or not the penalty is rebated, suspended, or probated.

002.12 Department means the Nebraska Department of Motor Vehicles.

002.13 Director means the Director of the Department of Motor Vehicles.

002.14 Disqualification means the withdrawal of a CDL or CLP as provided in Neb. Rev. Stat. § 60-4,131 and also the withdrawal of a CDL or CLP by administrative action as provided in Neb. Rev. Stat.§§ 60-4,167.02 or 60-4,168 through 60-4,270.

002.15 Driver training school means a business enterprise conducted by an individual, association, partnership, limited liability company, or corporation or a public or private educational facility which educates or trains persons to operate motor vehicles and which charges consideration or tuition for such service or materials.

002.16 Driving a commercial motor vehicle while under the influence of alcohol means committing any one (1) or more of the following acts in a CMV: driving a CMV while the person's alcohol concentration is 0.04 or more; driving under the influence of alcohol, as prescribed by State law; or refusal to undergo such testing as is required by any State or jurisdiction in the enforcement of 49 CFR § 383.51 (b) or§ 392.5 (a) (2).

002.17 Employer means any person, including the United States, a state, or a political subdivision of a state, which owns or leases a commercial motor vehicle or assigns employees to operate a commercial motor vehicle.

002.18 FMCSA means the Federal Motor Carrier Safety Administration.

002.19 Employee means any person who works a minimum of 30 hours per week from Monday through Sunday and is on the payroll of a Third-Party Tester, and excludes an independent contractor.

002.20 Skills test means a test by a CLP holder applying for a CDL that is required to be successfully completed prior to the issuance of a CDL.

002.21 Third Party Examiner means a person employed by a Third-Party Tester who is authorized by the Department to administer CDL skills tests specified in 49 CFR Part 383 and pursuant to Neb. Rev. Stat. § 60-4,158.

002.22 Third-Party Examiner applicant means the individual who applies to the Department to obtain or renew a Third-Party Examiner certificate.

002.23 Third-Party Tester means a person, including, but not limited to, another State, a motor carrier, a private driver training facility or other private institution, or a department, agency or instrumentality of a local government, authorized by the Department to employ skills test examiners to administer the CDL skills tests specified in 49 CFR Part 383 and pursuant to Neb. Rev. Stat. § 60-4,158.

002.24 Third-Party Tester applicant means the individual or entity making application for the purpose of acquiring or renewing a Third-Party Tester certificate.

002.25 Training course applicant means the sponsor of a training course making application for approval of the Training Course.

003 CERTIFICATION OF THIRD-PARTY TESTERS

003.01 Certificate. A Third-Party Tester, before administering or attempting to administer skills testing, shall hold a certificate issued or renewed by the Department authorizing the Third-Party Tester to engage in skills testing for a CDL.

003.02 Requirements for Certification. To have a certificate issued, renewed or remain in effect, the Third-Party Tester shall demonstrate it meets the following requirements:

003.02A. Be a person, including, but not limited to, another State, a motor carrier, a private driver training facility or other private institution, or a department, agency or instrumentality of a local government, authorized by the Department to employ skills test examiners to administer the CDL skills tests specified in 49 CFR Part 383 and pursuant to Neb. Rev. Stat. § 60-4,158;

003.02B. Ensure that each Third-Party Examiner who conducts the driving skills test is certified in accordance with 009 of these rules and regulations;

003.02C. Third-Party Testers that are not government entities are required to initiate and maintain a $25,000 bond to pay for re-testing drivers in the event that the third-party tester or one or more of its examiners is involved in fraudulent activities related to conducting skills testing for applicants for a CDL;

003.02D. Designate an individual authorized to act on behalf of the third-party as the Third-Party Tester's contact person with the Department;

003.02E. Continuously maintain a place of business which includes at least one (1) permanent, regularly occupied structure within the State of Nebraska;

003.02F. Must only use Department certified Third-Party Examiners;

003.02G. Require all Third-Party Examiners to have a nationwide criminal background check prior to certification; and,

003.02H. Must require all Third-Party Examiners to attend a OMV-approved training course at a minimum of every four (4) years.

003.03 Application for Certification. If a certificate or renewal of a certificate is desired, the Third-Party Tester shall:

003.03A. Submit a completed application form, DMV 06-52, to the Department and include at a minimum, the following:

003.03A1. The legal name, current address, and telephone number of the Third-Party Tester's principal office or headquarters in Nebraska;

003.03A2. The name, title, current address, telephone number, and email address of the individual who has been designated the applicant's contact person with the Department;

003.03A3. The name, date of birth, driver's license number, email address, phone number and current home address of those full-time, payroll employees who are certified by the Department as Third-Party Examiners;

003.03A4. The address of each Nebraska location where the applicant intends to conduct the skills test and a description of the off-road facilities as well as a map and written description of the test route (not to exceed one (1) test route per Third-Party Examiner) that will be used for the on-road portion of the skills test;

003.03A5. The name, date of birth, driver's license number, email address, phone number and current home address of those employees who desire certification by the Department as Third-Party Examiners; and,

003.03A6. Signature of the applicant or his or her designated representative certifying that the information included in the application is true and accurate.

003.03B Fee. Enclose a check or money order made out to the Department of Motor Vehicles for the $100.00 fee with the completed application; and,

003.03C Agreement. Complete a Third-Party Tester Agreement with the Department.

003.03D Surety Bond. If the Third-Party Tester is not a government entity, submit a $25,000 bond to be sufficient to pay for re-testing drivers in the event that the Third-Party Tester or one or more of its examiners is involved in fraudulent activities related to conducting skills testing for applicants for a CDL.

003.04 Pre-approval Inspection. Upon receipt of a completed application, the Department will conduct an on-site inspection of the location(s) where the third-party intends to conduct the skills test and the proposed test route(s).

003.05 Approval. The Department has thirty (30) days after receipt of a completed application for certification to determine if the applicant will be permitted to enter into a Third-Party Tester Agreement with the Department. The Department will approve or deny the application in the form of a written notice to the applicant.

003.06 Display of Certificate. Once certified, the Third-Party Tester must display the certificate prominently in the office of the Third-Party Tester.

003.07 Term. The certification to conduct third-party testing shall be valid for two (2) years.

004 DENIAL, REFUSAL TO RENEW, SUSPENSION OR REVOCATION OF THIRD-PARTY TESTER CERTIFICATE

004.01 Grounds. The Department may deny, refuse to renew, suspend or revoke a Third-Party Tester certificate, whether initial or renewed, for any of the following reasons:

004.01A. Engaging in or attempting to engage in administration of skills testing without a certificate;

004.01B. Fraud, forgery or misrepresentation in an application;

004.01C. Failure to provide notice to the Department as required by 008 of these rules and regulations;

004.01D. Failure to maintain or to permit examinations, inspections, or audits as required by 007 of these rules and regulations;

004.01E. Failure to pay the fee as required by 006 of these rules and regulations;

004.01F. Failure at any time to comply with the Motor Vehicle Operator's License Act or the rules and regulations adopted and promulgated by the Department under that Act;

004.01G. Failure to comply with the terms of the Third-Party Tester Agreement;

004.01H. Lack of business stability;

004.01I. Fraud, forgery or falsification of any documents relating to Third-Party Examiners or the skills test;

004.01J. Failure to provide the Department with the pass/fail results and scores of each applicant tested within three (3) days of the test date pursuant to 008.01 B of these rules and regulations;

004.01K. Failure of the skills test by a CDL driver, previously tested by the Third-Party Examiner employed the by the Third-Party Tester, on a retest by the Department conducted pursuant to 007 of these rules and regulations;

004.01L. Failure of the Third-Party Examiner to conduct skills test examinations, consisting of ten (10) pre-trip vehicle inspections, ten (10) basic control skills, and ten (10) road tests, of at least ten (10) different applicants per calendar year;

004.01M. Failure to submit a schedule of CDL skills tests to the Department no later than two (2) business days prior to each test;

004.01N. Failure to require all Third-Party Examiners to successfully complete a refresher training course and examination every four (4) years to maintain their CDL test examiner certification;

004.01O. Any other cause adversely reflecting on the Third-Party Tester's fitness or capacity to conduct skills testing;

004.01P. Failure of Third-Party Examiners to pass a nationwide criminal background check. The Department will deny any applicant whose record contains a felony conviction within the last ten (10) years or any conviction involving fraudulent activities;

004.01Q. Have had no violations noted on the Third-Party Examiners' driving record for which five (5) or more points might be assessed. Additionally, the Third-Party Examiner must have no disqualifications, suspensions, or revocations on his or her driving record within the last five (5) years; and,

004.01R. Third-Party Examiners have had no convictions for driving while under the influence of alcohol or drug offense in connection with motor vehicle use within the previous five (5) years.

005 RENEWALS OF THIRD-PARTY TESTER CERTIFICATES

005.01 Expiration. A certificate will expire on the second anniversary of its effective date unless renewed.

005.02 Notice. At least one hundred twenty (120) days prior to expiration, the Department will send to the certified Third-Party Tester at its last known address, a renewal notice which states the following:

005.02A. The date on which the current certificate expires;

005.02B. The date by which the renewal application must be received by the Department for the renewal to be issued and mailed before the certificate expires; and,

005.02C. The amount of the renewal fee.

005.03. All renewal application forms must be submitted to the Department not less than ninety (90) days prior to the time the previous certification expires. The Department will not be responsible for the timely issuance of any renewal certificate when the application is not received in the requested timeframe.

006 SCHEDULE OF FEES FOR THIRD-PARTY TESTER CERTIFICATES

006.01 Amount. For issuance or renewal of a Third-Party Tester certificate, the fee is $100.00 for each applicant for a Third-Party Tester certificate. The fee is refundable if the application is initially denied by the Department or returned due to incompleteness or deficiency. The fee covers a two-year (2-year) period beginning on the effective date of issuance or renewal thereof.

006.02 Refunds. No portion of the fee will be refunded if the certificate is suspended or revoked during the two-year (2-year) period or if the Third-Party Tester otherwise discontinues activity within the State during any portion of the two-year (2-year) period.

007 RECORDS, INSPECTIONS, AND RETESTING

007.01 Records. Any Third-Party Tester shall keep the following records at its principal place of business as follows:

007.01A. A copy of the Department certificate authorizing the Third-Party Tester to administer a CDL skills testing program for the classes and types of commercial motor vehicles listed.

007.01B. A copy of the current Third-Party Tester agreement with the Department.

007.01C. A copy of the Third-Party Tester's Department approved road test routes.

007.01D. Third-Party Examiner Record. Retain, at each approved testing location, a record of each Third-Party Examiner in the employ of each Third-Party Tester at that location. Each record shall be maintained a minimum of two (2) years after the date the Third-Party Examiner leaves the employment of the Third-Party Tester. Each record shall include:

007.01D1. A valid \"Examiner Identification Card\" (including name and residential address) indicating that the Examiner has been certified by the Department;

007.01D2. A copy of the Third-Party Examiner's current driving record, which must be updated annually;

007.01D3. Evidence that the Third-Party Examiner is an employee of the Third-Party Tester; and,

007.01D4. A copy of the Third-Party Examiner's training record as outlined in 49 CFR 383.75.

007.01E Driver Records. Retain, at each approved testing location, a record of each driver for whom the Third-Party Tester conducts a skills test, whether or not the driver passes or fails the test. Each such record shall be retained for the current year plus the two (2) previous calendar years from the date of the test and shall include:

007.01E1. The complete full name and address of the driver;

007.01E2. The driver's license number and the name of the state or jurisdiction that issued the CLP held by the driver at the time of the test;

007.01E3. The test score sheet(s) showing the type of vehicle tested for and the results of the skills test;

007.01E4. The name and identification number of the Third-Party Examiner conducting the skills test;

007.01E5. The license plate number of the commercial motor vehicle(s) used to conduct the testing, what type of braking system the vehicle had, transmission type and coupling system, if appropriate; and

007.01E6. A copy of the signed Notification of Driving Skills Examination form.

007.02 Random Examinations, Inspections, and Audits. The FMCSA, its representative(s) and the Department may conduct random examinations, inspections, and audits of Third-Party Testers with or without prior notice of the following:

007.02A. The Department will conduct audits overtly and covertly at least every two (2) years to focus on extremely high or low pass rates for Third-Party Testers granted the training and skills testing exception under 49 CFR § 383.75 (a)(7).

007.02B On-Site Inspections. At least once every two (2) years, the Department will conduct on-site inspections of Third-Party Testers.

007.02C Observe Testing. At least once every two (2) years, a representative of the Department shall take the tests actually administered by the Third-Party Tester as if the representative were a test applicant, or retest a sample of drivers who were examined by the Third-Party Tester to compare pass/fail results.

007.02D Sample Retests. The Department may retest a sample of CDL holders who were examined by the Third-Party Tester as follows:

007.02D1. The drivers to be retested in this sample shall be selected by the Department from a list of drivers required to be kept by the Third-Party Tester in 007.01E of these rules and regulations. Sample drivers will be notified of the retesting by the Department by mail at least three (3) weeks prior to the retesting date. If the retesting date is not convenient for the sample driver, a one-time continuance will be granted. In the case of a continuance, the rescheduled retest date must occur within two (2) weeks of the original retest date. Retesting will take place at the Third-Party Tester location. Drivers who fail to show up for this retesting shall have their CDL cancelled by the Department;

007.02D2. It shall be the responsibility of the Third-Party Tester to provide the appropriate vehicle for these retests;

007.02D3. Simple failure of the sample retest conducted by the Department representative shall not prejudice a CDL already issued to that driver; and,

007.02D4. If the driver fails the retest, the auditor may require that the driver be recalled and reexamined at a Department CDL driver licensing location. Failure of the skills retest at the Department location shall result in the cancellation of the CDL and constitutes grounds for suspension or revocation of the Third-Party Tester's certification.

007.03. A Third-Party Examiner for a Third-Party Tester that is also a Driver Training School is prohibited from administering skills tests to an applicant who was skills-trained by that Third-Party Examiner.

007.04. The Department will prepare a written review of the results of each inspection and audit and a copy will be provided to the Third-Party Tester.

008 NOTIFICATION

008.01 Required Notice. The Third-Party Tester must notify the Department within the specified period of time of the following by secure electronic means:

008.01A. Provide the Department with a two day advance notice of skills test appointments scheduled pursuant to these rules and regulations;

008.01B. The pass/fail results and scores of all applicants administered skills testing by the Third-Party Examiners employed by the Third-Party Tester. This information must be sent electronically to the Department's third-party testing database within three (3) days of the date of testing;

008.01C. Any change in the Third-Party Tester's name, legal status or address within ten (10) days of its date of occurrence;

008.01D. Any change in the Third-Party Examiners employed by the Third-Party Tester or their driving status within ten (10) days of its date of occurrence;

008.01E. If the Third-Party Tester ceases business operations in Nebraska, the Third-Party Tester shall notify the Department ten (10) days prior to its date of occurrence; and,

008.01F. If the Third-Party Tester's insurance as required by the Third-Party Tester Agreement is cancelled or altered by the insurance company, the Third-Party Tester shall notify the Department within five (5) days of its date of occurrence. In addition, the Third-Party Tester shall give the Department not less than thirty (30) days notice before cancellation or alteration of required insurance.

008.02 Failure to Notify. Failure to give timely notice to the Department as required constitutes grounds for revocation or suspension of the Third-Party Tester's certificate.

009 THIRD-PARTY EXAMINER CERTIFICATION

009.01 Certificate. An individual, before engaging in or attempting to engage in, third-party examination, shall hold a certificate issued or renewed by the Department authorizing the individual to be a Third-Party Examiner for that class of commercial motor vehicle.

009.02 Requirements for Certification. Applicants for Third-Party Examiner certificates must comply with the following:

009.02A. Meet the same qualifications and training standards as State examiners, to the extent necessary to conduct skills test in compliance with 49 CFR Part 383, Subparts G and H;

009.02B. Be an employee of a Third-Party Tester requesting initial certification or renewal of certification as a Third-Party Examiner;

009.02C. Have had no violations noted on his or her driving record for which five (5) or more points might be assessed. Additionally, the Third-Party Examiner must have no disqualifications, suspensions, or revocations on his or her driving record within the last five (5) years;

009.02D. Have had no convictions for driving while under the influence of alcohol or drug offense in connection with motor vehicle use within the previous five (5) years;

009.02E. Possess a valid Nebraska license or valid license from their state of residence;

009.02F. Be at least twenty-one (21) years of age;

009.02G. Have a high school diploma or its equivalent;

009.02H. Agree to conduct skills test examinations, consisting of ten (10) pre-trip vehicle inspections, ten (10) basic control skills, and ten (10) road tests, of at least ten (10) different applicants per calendar year or, at the discretion of the Department, must either take the refresher training specified in 49 CFR § 384.228 or have a State examiner ride along to observe the third party examiner fully administer at least one skills test;

009.02I. Provide the Department with a two (2) day advance notice of skills test appointments scheduled pursuant to 008.01A of these rules and regulations;

009.02J. Provide the Department with the pass/fail results and scores of each applicant tested within three (3) days of the test date pursuant to 008.01B of these rules and regulations;

009.02K. Must attend a training course and examination at a minimum of every four (4) years; and,

009.02L. Must pass a nationwide criminal background check. The Department will deny any applicant whose record contains a felony conviction within the last 10 (ten) years or any conviction involving fraudulent activities.

009.03 Application for Certification. To have a Third-Party Examiner certificate issued, renewed or remain in effect, the individual shall:

009.03A. Submit a completed application, DMV 06-59, and include as a minimum, the following:

009.03A1. The individual's name, title, current home address, telephone number, email address, date of birth, driver's license number and state of issuance;

009.03A2. The name, address and telephone number of the individual's employer;

009.03A3. The name, title, current address, telephone number, and e-mail address of the individual who has been designated the employer's contact person with the Department;

009.03A4. Education (high school diploma or equivalent); and,

009.03A5. Signature of the applicant and date.

009.04 Approval. The Department has thirty (30) days after receipt of an application for certification to deny or approve the application in the form of a written notice. Once certified, the Third-Party Examiner must display the certificate prominently in the office of the Third-Party Tester. The certification to conduct Third-Party Testing shall be valid for two (2) years.

010 RENEWALS OF THIRD-PARTY EXAMINER CERTIFICATES

010.01 Expiration. A Third-Party Examiner Certificate will expire on the second anniversary of its effective date unless renewed.

010.02 Notice. At least sixty (60) days prior to expiration, the Department will send to the certified Third-Party Examiner at his or her last known address, a renewal notice which states the following:

010.02A. The date on which the current certificate expires; and,

010.02B. The date by which the renewal application must be received by the Department for the renewal to be issued and mailed before the certificate expires.

010.03 Submission Date. Renewal application forms must be submitted to the Department at least thirty (30) days prior to the time the previous certification expires. The Department will not be responsible for the timely issuance of any renewal certificate when the application is not received in the requested manner.

011 DENIAL, REFUSAL TO RENEW, SUSPENSION OR REVOCATION OF THIRD-PARTY EXAMINER CERTIFICATE

011.01 Grounds. The Department may deny, refuse to renew, suspend or revoke a Third-Party Examiner certificate, whether initial or renewed, for any of the following reasons:

011.01A. Engaging in or attempting to engage in skills testing without a certificate;

011.01B. Fraud, forgery or misrepresentation in an application;

011.01C. Failure to provide the Department with a two (2) day advance notice of skills test appointments scheduled pursuant to 008.01A of these rules and regulations;

011.01D. Failure to provide the Department with the pass/fail results and scores of each applicant tested within three (3) days of the test date pursuant to 008.01 B of these rules and regulations;

011.01E. Failure at any time to comply with the Motor Vehicle Operator's License Act or the rules and regulations adopted and promulgated by the Department under that Act;

011.01F. During the prior five (5) years, the Third-Party Examiner must have no violations noted on his or her driving record for which five (5) or more points might be assessed. Additionally, the Third-Party Examiner must have no disqualifications, suspensions or revocations on his or her driving record within the last five (5) years;

011.01G. Have had no convictions for driving while under the influence of alcohol or drug offense in connection with motor vehicle use within the previous five (5) years;

011.01H. Immoral or dishonorable conduct evidencing unfitness or lack of proficiency to act as a Third-Party Examiner;

011.01I. Fraud, forgery or misrepresentation in completion of any documents relating to the skills test;

011.01J. Failure to complete training review courses or additional training as required by the Department;

011.01K. Failure to conduct skills test examinations, consisting of ten (10) pre-trip vehicle inspections, ten (10) basic control skills, and ten (10) road tests, of at least ten (10) different applicants per calendar year;

011.01L. Failure to attend a refresher training course and examination at a minimum of every four (4) years;

011.01M. Failure to pass a nationwide criminal background check. The Department will deny any applicant whose record contains a felony conviction within the last ten (10) years or any conviction involving fraudulent activities; and,

011.01N. Any other cause adversely reflecting on the Third-Party Examiner's fitness or capacity to administer skills testing.

012 TRAINING REQUIREMENTS FOR THIRD-PARTY EXAMINERS

012.01 Initial Training Course. To have a Third-Party Examiner certificate issued, the Third-Party Examiner applicant shall submit a completed application (OMV 06-59) within sixty (60) days of completing the initial training course. If the application is not submitted prior to the deadline, the Department may require the applicant to retake the initial training course before proceeding with the application process.

012.01A. Third-Party Examiners who have had their Third-Party Examiner certificates suspended or revoked will be required to retake the initial training course before proceeding with the application process.

012.02 Retraining or Additional Training. Must attend a refresher training course and pass examinations, as determined by the Department, at a minimum of every four (4) years.

012.03 Notification. The Department shall notify Third-Party Examiners of any retraining or additional training requirements in writing or by e-mail to the last known address or e-mail address of the Third-Party Examiner, as well as the date by which retraining or additional requirements must be completed to maintain certification as a Third-Party Examiner.

013 TRAINING COURSE APPROVAL

013.01 Approval Requirements. All Third-Party Examiner training or review courses, including lectures, seminars, course materials and other instructional programs, must be reviewed and approved by the Department before they are approved. Applicants for course approval must comply with the following:

013.01A. The application and curriculum described in 013.05 of these rules and regulations must be submitted at least thirty (30) days prior to the date on which the course is to be given;

013.01B. Courses must be taught by individuals with education or experience that is appropriate for the subject matter presented;

013.01C. The sponsor must ensure that an individual attends all course presentations and passes examinations with a score of at least eighty percent (80%) for successful course completion; and,

013.01D. All Third-Party Examiners must meet the same qualification and training standards as State examiners, to the extent necessary to conduct skills test in compliance with 49 CFR Part 383, Subparts G and H.

013.01E. The sponsor must provide a training site to accommodate students comfortably, adequately, and safely, including:

013.01E1. A comfortable, air conditioned, controlled lighting classroom with ample working and testing space for twelve (12) students and several observers;

013.01E2. Ready access to restrooms, refreshment, and eating facilities; and,

013.01E3. A computer lab to administer all written examinations proctored by an employee of the sponsor.

013.01F. All training sites must be approved by the Department.

013.01G. The sponsor must provide the following equipment to be used in training:

013.01G1. Viewgraph projection equipment and screen; chalk boards or other marking boards; and,

013.01G2. Striping equipment, pavement paint, tape measures, string chalk, and traffic cones for laying out the basic control skills test.

013.02 Documentation of Course Completion. The sponsor must document an individual's successful completion of a course in a numbered certificate approved by the Department, to be given to the individual no later than fifteen (15) days following the date of the final examination. The certificate shall state the following:

013.02A. The student's name;

013.02B. The dates that the course was attended;

013.02C. That the student successfully completed the training and passed the final examination including all final test segment scores; and,

013.02D. The class(es) of vehicle(s) for which the student was trained to examine.

013.03 List to Department. The sponsor must submit the information specified in 013.02 to the Department by secure electronic means containing a list of students completing each training course with their certificate numbers and signed by the administrator of the course. The list shall be submitted no later than fifteen (15) days after the date of the final examination.

013.04 Correspondence. No correspondence courses will be approved by the Department.

013.05 Application for Approval. To apply for approval of a Third-Party Examiner training or review course, the sponsor shall submit the original of a completed application, OMV Form 06-77, and provide the following:

013.05A. The sponsor's name, address and phone number;

013.05B. The title of the course;

013.05C. The class(es) of vehicle(s) for which the training is intended;

013.05D. Whether the course is initial, review or additional training;

013.05E. The location(s) at which the training is intended to take place;

013.05F. The dates or time period over which the training will be presented and the frequency with which it will be offered:

013.05G. A list of the individuals who will present the course, including their experience, education and other qualifications;

013.05H. The maximum number of students to be enrolled in each presentation of the training;

013.05I. The proposed charge for the training;

013.05J. A list of all course materials, including, but not limited to, handouts, student manuals, instructor notebooks;

013.05K. A training schedule showing daily assignments for each instructional group, location of instruction and required vehicles;

013.05L. A copy of the road test route used for training and which incorporates all required characteristics for CDL road testing; and,

013.05M. The signature of the administrator of the sponsor making application.

013.06 Approval. Within thirty (30) days of receipt of a complete application, the Department will approve or deny the application in the form of a written notice to the applicant.

013.07 Reapproval. Once approval for a Third-Party Examiner training course has been granted, the Department need not reapprove a course for each occasion it is administered, but will make an annual determination of whether or not to extend training course approval. The sponsor of an approved course shall submit the following information to the Department annually on the anniversary of course approval:

013.07A. Any updates to course materials;

013.07B. A summary of any alterations or modifications to previously submitted information; and,

013.07C. A report to include the frequency with which the course was given and the numbers attending.

013.08 Denial, Suspension or Revocation of Approval. The Department may deny, suspend, or revoke approval of a Third-Party Examiner training course for failure to meet the requirements of the Motor Vehicle Operator's License Act or the provisions of these rules and regulations.

014 INCOMPLETE OR DEFICIENT APPLICATIONS

014.01 Notice. If an application is deficient or incomplete, the Department will notify the applicant of the information necessary to complete the application and retain the application submitted pending receipt of the additional information.

014.02 Time to Correct Deficient or Incomplete Applications. The applicant has fifteen (15) days after notification by the Department to provide the information necessary to complete the application. If the Department has not received the information within fifteen (15) days, the application will be returned to the applicant.

015 APPEAL

015.01 Hearing. Upon suspension, revocation, cancellation or denial of the issuance of a certificate for a Third-Party Tester or Third-Party Examiner, the Director shall notify in writing and, upon written request, shall afford the Third-Party Tester or Third-Party Examiner a hearing.

015.02 Stay. Upon receipt of a written request, and upon good showing by the Third-Party Tester or Third-Party Examiner, the Director may stay the administrative order pending an administrative hearing on the matter.

015.03 Administrative Procedure Act. Any action taken by the Department to cancel, suspend, revoke or refuse to issue or renew a certification for a Third-Party Tester or Third-Party Examiner shall comply with the Administrative Procedure Act.

015.04 Adoption of Attorney General's Model Rules. All hearings will be held in conformance with Title 53 Nebraska Administrative Code, Chapter 4 of the Nebraska Department of Justice, also known as the Attorney General's Model Rules incorporated herein by reference and attached to these regulations.

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TITLE 247, NEBRASKA ADMINISTRATIVE CODE, CHAPTER 11  

NEBRASKA DEPARTMENT OF MOTOR VEHICLES  

CHAPTER 11 RULES AND REGULATIONS GOVERNING DEPARTMENT OF MOTOR VEHICLES APPROVAL OF DRIVER SAFETY COURSES AND PROVISIONAL OPERATOR=S PERMITS PURSUANT TO NEB. REV. STAT. ' ' 60-4,120.01, 60-4,130.04 and 60-4,130.05.  

001 SCOPE. These rules and regulations govern Department of Motor Vehicles approval of driver safety courses pursuant to Neb. Rev. Stat. ' 60-4,130.05. These rules and regulations apply to schools that offer classes to individuals who will apply for provisional operator=s permits using an approved driver safety course written and drive test waiver pursuant to Neb. Rev. Stat. ' 60-4,120.01. These rules and regulations also apply to any driver training instructor employed at such a school pursuant to Neb. Rev. Stat. ' 60-4,130.04.  

002 DEFINITIONS.  

002.01 Approved driver safety course means a Department of Motor Vehicles approved driver safety course which includes behind-the-wheel driving specifically emphasizing a) the effects of the consumption of alcohol on a person operating a motor vehicle, b) occupant protection systems, c) risk assessment, and d) railroad crossing safety. The successful completion of this course involves a written examination and drive test which will waive the examination and test by a Department examiner for a provisional operator=s permit.  

002.02 Certificate means the certificate issued by the Department of Motor Vehicles to the school which shows it has approved the driver safety course under these rules and regulations.  

002.03 Conviction means an unvacated adjudication of guilt, or a determination that a person has violated or failed to comply with the law in a court of original jurisdiction or by an authorized administrative tribunal, an unvacated forfeiture of bail or collateral deposited to secure the person=s appearance in court, a plea of bail or collateral deposited to secure the person=s appearance in court, a plea of guilty or nolo contendere accepted by the court, the payment of a fine or court costs, or violation of a condition of release without bail, regardless of whether or not the penalty is rebated, suspended, or probated.  

002.04 Department means the Nebraska Department of Motor Vehicles.  

002.05 Director means the Director of the Nebraska Department of Motor Vehicles.  

002.06 Drive test means an actual on public road drive examination using the Department of Motor Vehicles score sheet form DMV 06-40A. (Attachment 1.)  

002.07 Equivalency course means a course from an accredited Nebraska college or university and approved by the Department of Motor Vehicles, which is the equivalent of a driver=s education endorsement.  

002.08 Instructor means any person who teaches, conducts classes, gives demonstrations, or supervises practical training of persons learning to operate motor vehicles.  

002.09 School means any school (commercial, non-profit, parochial or public) which offers an approved driver safety course.  

002.10 Sponsor means any Nebraska university or college approved or accredited by the North Central Association Of Colleges and Schools that offers a driver=s education equivalency course.  

003 REQUIREMENTS FOR A PROVISIONAL OPERATOR=S PERMIT. Any person who is at least sixteen (16) years of age but less than eighteen (18) years of age may apply for a provisional operator=s permit from the Department. The Department will consider any of the following applicants:  

003.01 Approved Driver Safety Course. The applicant may successfully complete an approved driver safety course which includes behind-the-wheel driving as set forth in these rules and regulations. The Department will waive the written examination and drive test normally administered by the Department=s examiners for a provisional operator=s permit upon presentation of a written and drive test waiver. (Attachment 2.)  

003.02 Fifty-hour (50-hour) Drive Log and Affidavit. The applicant may present to the Department=s examiner an affidavit and driving log (Attachment 3) verifying that the applicant has completed fifty (50) hours of lawful motor vehicle operation, under conditions that reflect an approved driver safety course curriculum with a licensed driver at least twenty-one (21) years of age. The Department will waive the written examination for these applicants who hold an LPD-learner=s permit issued after January 1, 1999, but not the Department=s drive test.  

003.03 Driver Education Prior to January 1, 1999. The applicant may present to the Department examiner proof that the applicant has successfully completed driver=s education prior to January 1, 1999. Proof consists of an approved driver safety course completion card or certificate. The Department will waive the affidavit and the fifty-hour (50-hour) drive log requirement, but the applicant will be required to take the Department=s written and drive test.  

004 SCHOOL INSTRUCTOR REQUIREMENTS. The Department shall not issue an approved driver safety course certificate to any school unless every instructor meets the following criteria:  

004.01 Twenty-one (21) Years Old. The instructor must be at least twenty-one (21) years of age and of good moral character;  

004.02 Valid License. Instructors must have held a valid license from their state of residence for a period of at least two (2) consecutive years immediately preceding the date of application. Licensing lapses due to failure to renew before a license=s expiration date shall not be cause for denial;  

004.03 High School Diploma. The instructor must have a high school diploma or its equivalent; and  

004.04 Endorsement. The instructor must possess competence as outlined in a driver=s education endorsement or the equivalent thereof.  

004.04A Driver=s Education Endorsement. An instructor may successfully complete the course work set out in Title 92 NAC 24, from a Nebraska Department of Education approved or accredited college or university.  

004.04B Equivalent. An instructor may fulfill the equivalency requirement by successfully completing a driver=s education equivalency course from a North Central Association Of Colleges and Schools approved or accredited Nebraska university or college. The requirements for Department of Motor Vehicles= approval of the equivalency course are set forth at 005, below.  

004.04C Grace Period. A two-year (2-year) period to comply with the driver education endorsement or equivalent requirements will be granted to:  

004.04C1 Nebraska commercial driver training instructors certified by the Department;  

004.04C2 Instructors teaching Nebraska driver education training courses certified by the Department; and  

004.04C3 Individuals with valid teaching certificates.  

004.04D Qualifications for Grace Period. Instructors listed above must have been employed by the certified commercial driver training schools or the certified driver education training course or have had the teaching certificate issued prior to September 1, 1998. The driver education endorsement or equivalent requirements must be met no later than January 1, 2001.  

004.05 Clean Driving Record. For the prior five (5) years, the instructor must have no violation noted on his or her driving record for which five (5) or more points might be assessed as set out in Neb. Rev. Stat. ' 60-4,182. This includes probation or other situations in which no points were actually assessed for the violation. Additionally, the instructor must have no suspensions or revocations on his or her driving record within the last five (5) years, including no convictions for DWI or any related alcohol or drug offense in connection with motor vehicle use.  

004.06 Retraining. The Department shall notify schools of any retraining requirements for their instructors in writing, as well as the date by which retraining or additional requirements must be completed to maintain certification. To have a school certificate renewed or remain in effect, instructors must complete retraining or additional sessions as often as the Department may require.  

004.07 Agent. For purposes of these rules and regulations, each instructor employed by or associated with any school shall be deemed an agent of the school and the school shall share responsibility for all acts performed by the instructor which are within the scope of his or her employment, and which occur during the course of his or her employment.  

004.07A Competency Certified Instructors. To be competency certified, the instructor must have successfully completed three (3) credit hours of Driver Performance Measurement from an approved or accredited college or university.  

005 INSTRUCTOR=S ENDORSEMENT EQUIVALENT. All approved driver safety course instructors must have a driver education endorsement or the equivalent. Any Nebraska university or college approved or accredited by the North Central Association Of Colleges and Schools may offer a driver=s education equivalency course. The equivalency course, including lectures, seminars, course materials and other instructional programs, must be reviewed and approved by the Department. The sponsor must comply with the following:  

005.01 The application and curriculum must be submitted at least thirty (30) days prior to the date on which the equivalency course is to be given.  

005.02 Equivalency courses must be taught by individuals with education or experience that is appropriate for the subject matter presented.  

005.03 The sponsor must ensure that an individual attends all equivalency course presentations and passes the examination.  

005.04 Documentation of Equivalency Course Completion. The sponsor must document an individual=s successful completion of a equivalency course in a numbered certificate or transcript, to be given to the individual no later than fifteen (15) days following the date of the final examination. The certificate or transcript shall state the following:  

005.04A The individual=s name;  

005.04B The dates that the equivalency course was attended; and  

005.04C That the individual successfully completed the equivalency course.  

005.05 List to Department. The sponsor must submit the information specified in 010.05 to the Department in the form of a letter containing a list of instructors completing each equivalency course and signed by the administrator of the equivalency course. The list shall be submitted no later than fifteen (15) days after the date of the final examination.  

005.06 Application for Approval. To apply for approval of an equivalency course, the sponsor shall submit and provide the following:  

005.06A The sponsor=s name, address and phone number;  

005.06B The title of the equivalency course;  

005.06C Whether the equivalency course is initial, review or additional training;  

005.06D The location(s) at which the training is intended to take place;  

005.06E The dates or time period over which the training will be presented and the frequency with which it will be offered;  

005.06F A list of the individuals who will present the equivalency course, including their experience, education and other qualifications;  

005.06G The maximum number of students to be enrolled in each presentation of the training;  

005.06H The proposed charge for the training;  

005.06I A list of all equivalency course materials, including, but not limited to, handouts, student manuals, instructor notebooks;  

005.06J A training schedule showing daily assignments for each instructional group and location of instruction;  

005.06K A copy of the drive test route used for training and which incorporates all required characteristics for drive testing; and  

005.06L The signature of the administrator of the sponsor making application.  

005.07 Approval. Within thirty (30) days of receipt of a complete application, the Department will approve or deny the application in the form of a written notice to the applicant.  

005.08 Reapproval. Once approval for an equivalency course has been granted, the Department need not reapprove a equivalency course for each occasion it is administered, but will make an annual determination of whether or not to extend equivalency course approval. The sponsor of an approved equivalency course shall submit the following information to the Department annually on the anniversary of equivalency course approval;  

005.08A Any updates to equivalency course materials;  

005.08B A summary of any alterations or modifications to previously submitted information; and  

005.08C A report to include the frequency with which the equivalency course was given and the numbers attending.  

005.09 Denial, Suspension or Revocation of Approval. The Department may deny, suspend or revoke approval of an equivalency course for failure to meet the requirements of the Motor Vehicle Operator=s License Act or the provisions of these rules and regulations.  

006 APPROVED DRIVER SAFETY COURSE SCHOOL REQUIREMENTS. Any school that offers the approved driver safety course to individuals who will apply for provisional operator=s permits as set out at 003.01 above must:

006.01 Place of Business. Continually maintain a place of business which includes at least one (1) permanent, regularly occupied structure within the State of Nebraska.  

006.02 Training Site. Provide a training site to accommodate students comfortably and to ensure proper safety, including:  

006.02A A classroom with ample working and testing space for enrolled students and several observers.  

006.02B Ready access to restrooms.  

006.02C Audio visual equipment; chalk boards or other marking boards.  

006.03 Contact Person. Designate an individual authorized to act on behalf of the school as the contact person with the Department.  

006.04 Certified Instructors. Ensure that all instructors are certified in accordance with the requirements set forth in these rules and regulations.  

006.05 Motor Vehicle. Have at least one (1) registered motor vehicle which is equipped for driver training purposes as set forth in these rules and regulations.  

006.06 Display. Display in a prominent place:  

006.06A The certificate from the Department stating that the approved driver safety course has been approved; and  

006.06B The names of the approved driver safety course instructors.  

007 APPLICATION FOR SCHOOL CERTIFICATION; REQUIRED INFORMATION.  

Each original and renewal certificate application for the approved driver safety course shall contain the following:  

007.01 School Name. The legal name, current address and telephone number of the school=s headquarters in Nebraska.  

007.02 Contact Person. The name, title, current work address and telephone number of the school=s contact person with the Department.  

007.03 Instructors. The name, date of birth, driver=s license number and home address of all instructors.  

007.04 Endorsement or Equivalent. Proof of completion of any state-approved driver education endorsement or the equivalent from a Nebraska-approved college or university, as set forth in 004 and 005 above. Such proof will be a driver=s education endorsement from the issuing state, or a letter, grade transcript, or certificate from a Nebraska-approved college or university. If the school is offering any competency-based education, proof that those classes are taught by competency certified instructors.  

007.05 Curriculum. The curriculum of the approved driver safety course that the school will be teaching.  

007.06 Course Date. The dates, times and locations of the scheduled approved driver safety courses and the respective instructor that will teach each course. Any competency-based courses must be noted.  

007.07 Test Route. The location and a written description of each approved driver safety course test route that will be used for the administration of the drive test.  

007.08 List of Motor Vehicles. A list of all motor vehicles used for the approved driver safety course.  

007.09 Insurance. Valid insurance certificate or insurance policy detailing the coverage for the school listing all motor vehicles used for the approved driver safety course.  

007.10 Signature. Signature of the approved driver safety course school representative certifying that the information included in the application is true and accurate. An individual applicant, partner, associate, corporate director, officer or manager of a commercial driver training school or a public school superintendent or principal may sign as school representative.  

007.11 Other Information. Any other information deemed necessary by the Department.  

007.12 Fee. In addition to the above information, each approved driver safety course original and renewal certificate application shall be accompanied by a one-hundred dollar ($100) fee.  

007.12A Check or Money Order. A check or money order will be made payable to the Department of Motor Vehicles for the one-hundred dollar ($100) fee with the completed application. The fee is refundable if the application is initially denied by the Department or returned due to incompleteness or deficiency. The fee covers a two-year (2-year) period beginning on the effective date of issuance or renewal.  

007.12B No Refund. No portion of the fee will be refunded if the certificate is suspended or revoked during the two-year (2-year) period or if the school otherwise discontinues activity within the State during any portion of the two-year (2-year) period.  

008 APPROVAL OF DRIVER SAFETY COURSE. The Department will approve or deny a driver safety course certification within sixty (60) days after receipt of a completed application and fee. The Department will certify the course or deny the application in the form of a written notice to the school contact person.  

009 MOTOR VEHICLE REQUIREMENTS. All motor vehicles, except those used by students who require adaptive equipment as set out at 009.05, used in an approved driver safety course must:  

009.01 Be registered in Nebraska;  

009.02 Be covered by liability insurance in amounts not less than set forth in section 60-509. This insurance coverage shall be secured by the driver training school on a year-to-year basis and in the event the insurance coverage or policy on any motor vehicle used for driving training purposes is not renewed, the school shall give written notice to the Department at least ten (10) days prior to the expiration date of the policy or coverage;  

009.03 Except for commercial trucks, any motor vehicle used for approved driver safety course purposes shall be equipped with a dual braking device which will enable the instructor to bring the motor vehicle under control in case of an emergency; and  

009.04 Be readily identified as a driver training motor vehicle.  

009.05 Students who require adaptive equipment to operate a motor vehicle may use their personal motor vehicle during training. Before such motor vehicle may be used, the school shall obtain photocopies of the motor vehicle=s registration and proof of insurance. No motor vehicle shall be used without first being property registered pursuant to Neb. Rev. Stat. ' 60-302 and also insured in accordance with Neb. Rev. Stat. ' 60-312.  

010 APPROVED DRIVER SAFETY COURSE CURRICULUM. The following is the approved driver safety course education curriculum for schools that offer classes to individuals who will apply for provisional operator=s permits using a written and drive test waiver. Standard instruction will include a minimum of twenty (20) hours of classroom instruction and five (5) hours of behind-the-wheel instruction. The students of competency certified instructors must complete at least two (2) hours behind the wheel. Students must attend all course presentations and pass all examinations.  

010.01 Behind-the-wheel Instruction. A minimum of five (5) hours behind-the-wheel instruction must be offered to each student in an approved driver safety course. It is to consist of actual driving practice while the motor vehicle is in motion and does not include the drive test.  

010.01A Substitutions. Up to two (2) hours total approved driver safety course drive time may be substituted as follows:  

010.01A1 Up to two (2) hours of behind-the-wheel instruction may be replaced by time on a closed-course driving range. At a proportion of two to one (2 to 1) (two (2) hours on a driving range equals one (1) hour behind the wheel).  

010.01A2 Up to one (1) hour of behind-the-wheel instruction may be replaced by use of a driving simulator at a proportion of four to one (4 to 1). (One (1) hour of simulated driving equals fifteen (15) minutes of behind-the-wheel drive time.)  

010.01B Competency Certified Instructors. Two (2) hours is the minimum behind-the-wheel time requirement for students in competency-based courses. Substitutions are not permitted.  

010.02 Classroom Time. A minimum of twenty (20) hours of classroom instruction must be offered to each student enrolled in any approved driver safety course school.  

010.03 Classroom Content. While other material may be addressed, the following must be analyzed in depth:  

010.03A Motor Vehicle Laws.  

010.03A1 Rules of the road, traffic enforcement;  

010.03A2 Signs, signals and markings;  

010.03A3 What to do in case of an accident; and  

010.03A4 Nebraska driver=s manual.  

010.03B Vehicle Operating Tasks.  

010.03B1 Vehicle familiarization;  

010.03B2 Seating position;  

010.03B3 Steering wheel control;  

010.03B4 Speed control;  

010.03B5 Vehicle motion and balance;  

010.03B6 Traction control; and  

010.03B7 Anti-lock braking.  

010.03C Occupant Protection.  

010.03C1 Seatbelts;  

010.03C2 Airbag;  

010.03C3 Automatic restraint; and  

010.03C4 Child safety seat.  

010.03D Establishing Vehicle Position.  

010.03D1 Visual reference points;  

010.03D2 Targeting;  

010.03D3 Line of sight/path of travel; and  

010.03D4 Zone locations.  

010.03E Limited Space Movements.  

010.03E1 Backing;  

010.03E2 Turnabouts; and  

010.03E3 Parking.  

010.03F Human Functions.  

010.03F1 Visual scanning;  

010.03F2 Detection/perception;  

010.03F3 Evaluation;  

010.03F4 Risk assessment;  

010.03F5 Decision making; and  

010.03F6 Motor skills.  

010.03G Traffic Flow Tasks.  

010.03G1 Intersections;  

010.03G2 Lane changes;  

010.03G3 Merging, exiting;  

010.03G4 Passing; and  

010.03G5 Railroad crossings.  

010.03H Driving Environment.  

010.03H1 Urban areas;  

010.03H2 Rural areas;  

010.03H3 Expressways;  

010.03H4 Adverse conditions;  

010.03H5 Weather;  

010.03H6 Construction zone;  

010.03H7 Congested traffic; and  

010.03H8 Night.  

010.03I Factors Affecting Performance (Risk, Attitude, Emotion).  

010.03I1 Emotions;  

010.03I2 Peer pressure;  

010.03I3 Roadway conditions;  

010.03I4 Limited visibility;  

010.03I5 Limited traction;  

010.03I6 Natural laws; and  

010.03I7 Energy conservation.  

010.03J Other Roadway Users.  

010.03J1 Pedestrians, bicyclists;  

010.03J2 Railroads;  

010.03J3 Emergency vehicles;  

010.03J4 Trucks;  

010.03J5 Motorcycles;  

010.03J6 Farm equipment; and  

010.03J7 Animals.  

010.03K Alcohol and Other Drugs.  

010.03L Insurance.  

010.03M Responses to Vehicle Failure and Driver Errors.  

010.03M1 Braking and steering failure;  

010.03M2 Engine power loss;  

010.03M3 Evasive steering;  

010.03M4 Controlled braking; and  

010.03M5 Loss of forward vision.  

010.04 Behind-the-wheel Content. Behind-the-wheel instruction will cover the following material:  

010.04A Car Control.  

010.04A1 Pre-entry/entering;  

010.04A2 Preparing to drive;  

010.04A3 Starting the engine;  

010.04A4 Acceleration control;  

010.04A5 Braking control;  

010.04A6 Tracking/targeting;  

010.04A7 Reference points;  

010.04A8 Precision turns;  

010.04A9 Line of sight/path of travel;  

010.04A10 Backing straight, left, right;  

010.04A11 Searching target area;  

010.04A12 Perpendicular, parallel and angle parking;  

010.04A13 Intersections;  

010.04A14 Rear zone control;  

010.04A15 Traffic lights;  

010.04A16 Hill stops and turns; and  

010.04A17 Reading instruments.  

010.04B Mixing with Traffic.  

010.04B1 Following distance;  

010.04B2 Lane changing;  

010.04B3 Passing and being passed;  

010.04B4 Merging and existing; and  

010.04B5 Limited access highways.  

010.04C Response to Traffic Conditions.  

010.04C1 Effective visual search habits;  

010.04C2 Zone control;  

010.04C3 Traffic controls and conditions;  

010.04C4 Limited vision;  

010.04C5 Risk assessment.  

010.05 Evaluation and Waiver. Instructors are required to administer a written test and the Department=s drive test to each student enrolled in an approved driver safety course. DMV FORM # 06-40A ADRIVE TEST SCORE SHEET@ is the official record of the drive test.  

010.05A All passed and failed score sheets must be retained by the school.  

010.05B Students are required to pass the drive test with no more than fifteen (15) deductions.  

010.05C Upon successful completion of the course, including the written and drive test, the instructor shall complete DMV FORM # 06-92 AWRITTEN AND DRIVE TEST WAIVER@ and shall give the top copy to the student and retain the bottom copy for the school=s file.  

011 SCHOOL RENEWAL APPLICATION REQUIREMENTS.  

011.01 Expiration. A school certificate will expire on the second anniversary of its effective date unless renewed.  

011.02 Application. At least one-hundred twenty (120) days prior to expiration, the Department will send to the certified school a renewal application form which includes:  

011.02A The date on which the current certificate expires;  

011.02B The date by which the renewal application must be received by the Department for the renewal to be issued and mailed before the certificate expires; and  

011.02C The amount of the renewal fee.  

011.03 Time Line. The renewal application must be received at least sixty (60) days prior to the time the previous certification expires. The Department will not be responsible for the timely issuance of any renewal certificate when the application is not received in the requested manner.  

012 SCHOOL MUST NOTIFY THE DEPARTMENT OF CHANGES. The Department must receive notice, in writing, within the specified period, of any of the following:  

012.01 Name Change. Any change in the school=s name, legal status or address in writing ten (10) days prior to its date of occurrence.  

012.02 Instructor Changes. Any addition or deletion of approved instructors or changes in their driving statuses within ten (10) days of date of occurrence.  

012.03 School Closes. If the school ceases operation in Nebraska, the school shall notify the Department ten (10) days prior to its date of occurrence.  

012.04 Insurance Change. If the school=s insurance as required by the rules and regulations is canceled or altered by the insurance company, the school shall notify the Department within ten (10) working days of its date of occurrence.  

012.05 Curriculum Change. Any change in the curriculum, dates or locations of the approved driver safety course or the drive route not less than ten (10) days prior to its occurrence.  

013 RECORDS TO BE KEPT BY THE SCHOOL. Each certified school will keep the following records for three (3) years at the contact person location. These records will be open to inspection by the Department=s auditors or examiners.  

013.01 List of Instructors. A list of all instructors who have taught or who are teaching the approved driver safety course at the school.  

013.02 Endorsement. Proof that all instructors who have taught or who are teaching the approved driver safety course for the school possess a driver=s education endorsement or equivalent.  

013.02A Competency Certified. Proof that all instructors who have taught or who are teaching competency-based driver education have successfully completed three (3) credit hours of driver performance measurement.  

013.03 Instructors= Driving Records. Annually updated driving records on each current instructor.  

013.04 Student Records. List of all students who have attended each class and classroom final examination results for each student, including all passed and failed drive test score sheets and the second copy of the WRITTEN AND DRIVE TEST WAIVER FORM # DMV 06-92 maintained in alphabetic order by calendar year. Records of students who have taken competency-based driver education will be clearly marked as such.  

013.05 Curriculum. Department-approved curriculum for the approved driver safety course.  

013.06 Registration and Insurance. Copies of registration and proof of insurance for all approved driver safety course motor vehicles.  

013.07 Certificate. The certificate indicating that the school has been approved to teach the driver safety course.  

013.08 Drive Test. Location and written description of the route used for the administration of the drive test.  

014 SCHOOL INSPECTIONS.  

014.01 Random Inspections. The Department may conduct random examinations, inspections and audits of all of the school=s facilities and motor vehicles, and upon demand the school shall exhibit all records, instructional aids and other objects which are necessary to the investigation.  

014.02 Drive Test. A Department representative may take the drive test actually administered by the instructor as if the representative were a test applicant.  

014.03 Written Evaluation. The Department may, at the Department=s discretion, prepare a written report of the results of each inspection and audit. A copy of the report shall be provided to the school.  

015 DENIAL, REFUSAL TO RENEW, SUSPENSION OR REVOCATION OF A  

COMMERCIAL OR PUBLIC SCHOOL CERTIFICATE. The Department will deny, refuse to renew, suspend or revoke an approved driver safety course certificate for any of the following:  

015.01 Engaging in or attempting to engage in administration of drive testing without a certificate.  

015.02 Fraud, forgery or misrepresentation in an application.  

015.03 Failure to provide notice to the Department as required by these rules and regulations.  

015.04 Failure to permit on-site inspections or audits as required by these rules and regulations.  

015.05 Failure to pay the fee as required by these rules and regulations.  

015.06 Failure at any time to comply with the Motor Vehicle Operator=s License Act or the rules and regulations adopted and promulgated by the Department under that Act.  

015.07 Lack of business stability.  

015.08 Fraud, forgery or falsification of any documents relating to the schools, instructors, drive test score sheets or the written and drive test waiver form.  

015.09 Employing an instructor who has a conviction for driving a motor vehicle under the influence within the previous five (5) years of the date of application.  

015.10 Employing an instructor who has a suspended or revoked driver=s license within the previous five (5) years of the date of application, or who has a five-point (5-point) or more driving violation.  

016 APPEAL.  

016.01 Hearing. Upon suspension, revocation, cancellation or denial of the issuance of a certificate, the Director of the Department shall notify such school in writing and upon written request, shall afford such school a hearing.  

016.02 Stay. Upon receipt of a written request, the Director of the Department may stay an administrative order denying, canceling, suspending or revoking the certificate of any school pending an administrative hearing on the matter.  

016.03 Administrative Procedures Act. Any action taken by the Department to cancel, suspend, revoke or refuse to issue or renew a certificate shall comply with the Administrative Procedures Act.  

017 HEARING; PROCEDURE AND NOTICE.  

017.01 Notice. Whenever the Department denies an initial application for or refuses renewal of, or suspends or revokes a certificate, the Department shall notify the party of its intent to deny, refuse renewal, suspend or revoke in the following manner:  

017.01A Written notice shall be sent by certified mail, return receipt requested, to the party=s last-known address;  

017.01B The notice shall state that the party may request a formal hearing by submitting a written request for formal hearing with the Department within thirty (30) days of the issuance of the notice.  

017.02 Notice of Formal Hearing. Upon receipt of a written request for a hearing the Director shall set a hearing date at a time and location designated by the Director, and notify the party. Written notice shall be sent by certified mail, return receipt requested, to the party=s last-known address at least fifteen (15) days prior to the hearing.  

017.03 Parties to a Hearing. The parties to a hearing shall be the Department and the person or entity notified of impending denial, refusal of renewal, suspension or revocation.  

017.04 Hearing Officer. The hearing shall be conducted by the Director or his or her designated hearing officer, who will, inter alia, open the proceedings; enter into the record the notice of hearing; rule on the admissibility of exhibits, take appearances, act on pleadings not previously filed; hear evidence as provided for in these rules and regulations, rule on motions and objections, issue subpoenas, order briefs; cross-examine any witnesses and close the proceedings. Hearing officers make a recommendation to the Director.  

017.05 Continuances. Continuances may be granted at the discretion of the Director for good cause or on his or her own motion. A party may request a continuance in the following manner:  

017.05A Any party who desires a continuance shall notify the Director in writing, stating in detail the reasons why such continuance is necessary;  

017.05B Requests for continuance shall be received by the Department no later than five (5) days prior to hearing:  

017.06 Official Record. The Department shall prepare an official record in all hearings in the form of a tape recording.  

017.07 Decisions--Transmittal. The Director shall reduce his or her decision or order to writing and deliver that decision or order to the party requesting the hearing. Such delivery shall be by certified mail, return receipt requested.  

017.08 Representation by Counsel. Either party may be represented at the hearing by counsel.  

017.09 Summary Suspension. The Department may summarily revoke or suspend the certificate of an approved driver safety course, provided that the Department finds that the public safety requires emergency action and incorporates its findings to that effect in its notice of suspension or revocation of certificate. The party may request a hearing within thirty (30) calender days of the date of notice. If so requested, the hearing shall be instituted within ten (10) calender days of the request, and the contest of the summary revocation/suspension shall be promptly determined.  

017.10 Teleconference Hearings. The hearing officer may conduct the hearing by telephone, television, or other electronic means if each participant in the hearing has an opportunity to participate in, to hear, and if technically feasible, to see the entire proceeding while it is taking place.  

018 INTERVENTION.  

018.01 Petitions for Intervention. Petitions for intervention must comply with the following requirements:  

018.01A Form. The petition must:  

018.01A1 Be in a legible form showing the caption, ABefore the Director of the Department of Motor Vehicles,@ and entitled as APetition for Intervention.@  

018.01A2 Specify intervenor=s legal rights, duties, privileges, immunities, or other legal interests justifying their participation in any proceeding in which intervention is sought.  

018.01A3 State the names of the interested parties likely to be affected by the intervenor=s petition.  

018.01A4 State sufficient facts upon which the Director or hearing officer can rely to render a well-reasoned decision.  

018.01A5 Be subscribed by the intervenor or by a duly authorized officer of the intervenor, if the intervenor is a corporation, organization, other legal entity, or the attorney for the intervenor. The petition must include the attorney=s name, bar number, address and telephone number.  

018.01B Filing Petition. The petition must be filed with the Department, with copies of the petition for intervention received by all parties named in the notice of hearing, at least five days before a hearing.  

018.01C Consideration of a Petition. Petitions for intervention will ordinarily be considered solely on the face of the petition and without hearing.  

018.02 Mandatory Vs. Discretionary Intervention. There shall be mandatory and discretionary intervention as set forth below.  

018.02A Mandatory Intervention. The Director shall grant a petition for intervention if all of the following occurs:  

018.02A1 The petition is submitted in writing to the Director, with copies mailed to all parties named in the notice of the hearing, at least five (5) days before the hearing;  

018.02A2 The petition states facts demonstrating that the petitioner=s legal rights, duties, privileges, immunities, or other legal interests may be substantially affected by the proceeding or that the petitioner qualifies as an intervenor under any provision of law; and  

018.02A3 The Director or hearing officer determines that the interest of justice and the orderly and prompt conduct of the proceedings will not be impaired by allowing the intervention.  

018.02B Discretionary Intervention. The Director or hearing officer may grant a petition for intervention at any time upon determining that the intervention sought is in the interests of justice and will not impair the orderly and prompt conduct of the proceedings.  

018.03 Conditions and Privileges of Intervention.  

018.03A Conditions. When granting a petition for intervention, the Director or hearing officer may impose conditions upon the intervenor=s participation in the proceedings, either at the time intervention is allowed, or at any subsequent time. Conditions may include: Limiting the intervenor=s participation to designated issues in which the intervenor has a particular interest demonstrated by the petition; limiting the intervenor=s use of discovery, cross-examination, and other procedures so as to promote the orderly and prompt conduct of the proceedings; and requiring two (2) or more intervenors to combine their presentation of evidence and argument, cross-examination, discovery, and other participation in a proceeding.  

018.03B Privileges. Unless the order granting a petition for intervention limits an intervenor=s participation with conditions, intervenors will be permitted to participate in any proceeding as if they were an original party.  

018.04 Orders. The Director or hearing officer shall issue an order granting or denying each pending petition for intervention at least twenty-four (24) hours before a hearing. The order shall specify any conditions imposed on the intervenor=s participation, and shall state the reasons for the decision. The Director or hearing officer may modify an order granting or denying a petition for intervention at any time, and the order of modification shall state the reasons for modification.  

018.05 Appeal. Appeals of any order granting, denying, or modifying a petition for intervention or imposing limitations on an intervenor by condition shall be made in accordance with the Administrative Procedure Act.  

019 EVIDENCE.  

019.01 What Evidence Admissible. Any evidence shall be deemed admissible in a hearing which would be admissible in civil proceedings under the laws of the State of Nebraska. In addition, the hearing officer may, within his or her discretion, admit evidence possessing probative value in any form commonly accepted by reasonably prudent men in the conduct of their affairs.  

019.01A Secondary Evidence. Pursuant to the foregoing provision, secondary evidence of copies of documents may be admitted.  

019.01B Privileged Evidence. In all such hearings, effect shall be given to the rules of privilege recognized by the District Courts of the State of Nebraska.  

019.01C Incompetent or Irrelevant Evidence; Exceptions. Incompetent, irrelevant or immaterial evidence may be excluded. Where proper objection is made to the admission of any evidence, the party making the objection shall be deemed to have taken exception to any adverse ruling and formal exceptions are not necessary.  

019.02 Records of Department. Records and documents in the possession of the Department may be received in evidence in the form in which the same are kept, and without certification. The records and documents shall be afforded in evidence and made a part of the record in the case.  

019.03 Cross Examination. Each party shall have a right of cross-examination of all witnesses who testify.  

019.04 Official Notice. In the conduct of a hearing, the hearing officer may take official notice of such facts as would be so noticed by the district courts of Nebraska, and may take notice of general technical or scientific facts within the specialized knowledge of the Department.  

019.04A Notice of Technical or Scientific Facts. Parties to the proceedings shall be notified before or during the hearing of specialized technical or scientific facts to be so noticed, and opportunity afforded to contest such noticed facts.  

019.05 Rules of Evidence. Any party to a formal hearing before the Director may request that the rules of evidence apply at least three (3) days prior to the hearing. Such request shall include the requesting party=s agreement to be liable for the payment of costs incurred thereby, including the costs of court reporting services.  

020 DECISIONS AND FINAL ORDERS.  

020.01 Written Order Required, Contents. Where a decision or order is rendered by the Director adverse to any party in the proceedings, the order shall be in writing or set forth in the record, and accompanied by findings of fact and conclusions of law.  

020.02 Copies of Order. Copies of the decision and order and findings of fact and conclusions of law shall be delivered upon request to any party or his or her attorney of record. If the order requires revocation of a certificate, it will set forth the period of revocation or suspension and require that the certificate be returned to the Director.  

021 APPEALS AFTER HEARING. Any party aggrieved by a final decision or order of the Director, made pursuant to these rules and the applicable statute, may appeal such decision or order in the manner provided in the Administrative Procedure Act for contested cases.  

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Title 247 - NEBRASKA DEPARTMENT OF MOTOR VEHICLES

Chapter 12 - RULES AND REGULATIONS GOVERNING THE DEPARTMENT OF MOTOR VEHICLES RECOMMENDATIONS TO THE BOARD OF PARDONS FOR REPRIEVE OF OPERATOR'S LICENSE REVOCATIONS.

001 SCOPE. Neb. Rev. Stat.§ 60-6,209 provides an avenue for persons currently under a fifteen-year license revocation for a driving under the influence conviction to apply for a reprieve of the revocation. The statute permits such persons to file an application with the Department of Motor Vehicles not more often than once per calendar year. Upon receipt of the application and application fee, the Department will act on the application by making a recommendation to the Board of Pardons. These rules and regulations govern the application and the recommendation process. The Board makes the ultimate decision and is not bound by the Department's recommendation. These rules and regulations do not govern the Board's decision-making process.

002 PURPOSE. These rules and regulations relate to the discretionary authority of the Board to reprieve a criminal sentence. The rules describe the process the Department follows in arriving at a recommendation to the Board. While there are conditions and circumstances that require the Director to recommend that the application be denied, there is no circumstance or condition that requires a favorable recommendation. The Director must hold the public safety paramount to the reprieve of license revocation. The rules and regulations are to be interpreted liberally and in the spirit of public safety. Applicants are expected to be forthright and honest. Deception will be considered grounds for a recommendation of denial.

003 DEFINITIONS

003.01 Affiant. The person who completes and signs an affidavit in front of a notary.

003.02 Applicant. Any person serving a fifteen-year license revocation sentence who has filed an application with the Department for a recommendation to the Board for a reprieve the revocation.

003.03 Application. The form prescribed by the Department upon which the applicant must request a recommendation and includes any other evidence filed by the applicant and/or any other person or agency.

003.04 Board. The Nebraska Board of Pardons.

003.05 BrAC. The breath alcohol concentration in a given amount of breath, expressed by a weight by volume (w/v) based upon grams of alcohol per 210 liters of breath (2100:1 ratio).

003.06 Date of the revocation order. The date the revocation goes into effect pursuant to the judgment of the court in accordance with Neb. Rev. Stat. §§ 60-6,196 and 60-6,197.

003.07 Department. The Nebraska Department of Motor Vehicles.

003.08 Director. The Director of the Department or his or her delegate acting under the Director's authority.

003.09 Ignition Interlock Device. A device that is designed to allow a driver to start a motor vehicle if the driver's BrAC is below the set point and to prevent the driver from starting the motor vehicle if the driver's BrAC is at or above the set point. The purpose of the ignition interlock device, as required by Neb. Rev. Stat. §60-6,211.05 and approved by the Department in 250 NAC 1, is to measure the BrAC of the driver, to prevent the motor vehicle from being started if the BrAC exceeds a preset limit, and to deter and to record circumvention, tampering, disabling, bypassing, or altering in any way.

003.10 Ignition Interlock Permit (IIP). A permit issued to a driver which allows the driver to operate a motor vehicle or vehicles which is equipped with an ignition interlock device. The permitted uses of the driver's IIP shall be printed on the back of the IIP. An IIP will not confer CDL privileges.

003.11 License. Any license or permit to operate a motor vehicle issued under the laws of this state and includes the privilege to drive whether or not a person holds a valid license or permit.

003.12 Recommendation. the written finding and conclusion of the Director based on the application. The recommendation is made to the Board, but is not binding on it.

003.13 Reprieve. Lessening the severity of a fifteen-year license revocation. A reprieve includes the possibility of restrictions on a license or ignition interlock permit (IIP) to operate a motor vehicle. The fifteen-year revocation remains in place. The reprieve allows the applicant to obtain an ignition interlock permit (IIP) to drive until the original fifteen-year license revocation has expired.

003.14 Revocation. The termination by a court of competent jurisdiction or any formal action of the Department of a person's operator's license, which termination shall not be subject to renewal or restoration. At the expiration of the period of termination, the person may make application for a new license.

003.15 State-certified substance abuse counselor. an individual certified by or licensed by the state of Nebraska in compliance with the Alcohol and Drug Counseling Practice Act (Neb. Rev. Stat. §38-301 et. seq.).

003.16 State-certified substance abuse program. a program certified by or licensed by the state of Nebraska in compliance with Title 203, Nebraska Administrative Code, Chapter 5.

004 APPLICATION

004.01 Who May Apply. Any person whose operator's license has been revoked pursuant to a conviction for a violation of Neb. Rev. Stat. §§60-6, 196, 60-197, and 60-6,199 to 60-6,204 for a third or subsequent time for a period of fifteen years.

004.01A How Often. The applicant may apply not more often than once per calendar year.

004.01B Fee. A non-refundable application fee of one hundred dollars shall be submitted with the application.

004.02 Application Form. Any person applying for a recommendation must complete and file an application form prescribed by the Department. The form prescribed by the Department is included as part of these rules and regulations as Attachment 1. The form must be completely filled out according to the instructions accompanying the application. Incomplete applications, applications without the required fee, or applications not completed according to the instructions may be passed on to the Board with a recommendation of denial.

004.02A Additional Information or Documentation. The applicant may include any additional evidence, information, or documentation he or she thinks may aid the Department in making its recommendation or the Board in making a decision. Information received after the recommendation has been made will be forwarded to the Board.

004.03 Withdrawal of Application. An applicant may withdraw his or her application for any reason at any time prior to the Director submitting a recommendation to the Board. The request to withdraw must be in writing. The fee shall not be refunded to the applicant.

004.04 Expiration of Application. If the application is not complete when it is filed, the Department will keep an open file. If the application is not complete within one year of the date the Department opened the file, the Department may forward the file to the Board with a recommendation for denial.

005 ACTION ON APPLICATION

005.01 Receipt of Application. The Director shall review the application and make a recommendation to the Board. If the applicant does not meet the minimum requirements for a favorable recommendation, the Department may forward the application to the Board with a recommendation of denial without further review or investigation.

005.02 Investigation. If the application meets the minimum requirements, the Director may, in his or her discretion, make any investigation of the applicant he or she deems necessary or desirable.

005.02A Notification: Prosecuting Attorney. The Director may notify and request information from the prosecuting attorney in the location where the fifteen-year revocation was imposed.

005.02B Notification: Other Persons or Agencies. The Director may, in his or her discretion, notify and request information from the prosecuting attorney and/or local law enforcement agency, or any other person in any or all of the locations the applicant has lived since the date of the revocation order.

005.02C Request for Additional Information or Clarification. The Director may, in his or her discretion, request further information or clarification from the applicant. Failure to respond to the request may result in a recommendation for denial.

005.03 Investigation by Board. The Board may make its own investigation of any applicant irrespective of any investigation the Director may have conducted. The Board's investigation is not governed by these rules and regulations.

006 MINIMUM REQUIREMENTS FOR FAVORABLE RECOMMENDATION

006.01 Minimum Requirements. The Department may recommend a reprieve if the applicant shows the following:

006.01A Completion of State-certified Substance Abuse Program. The applicant must demonstrate that he or she has completed a state-certified substance abuse program. The program must have been completed since the date of the arrest.

006.01B Documentation of Involvement in an Established Self-help Program. Documentation of involvement in an established self-help program, (Alcoholics Anonymous, Narcotics Anonymous, etc.), to support abstinence must be in the form of at least three affidavits from fellow program members or from a sponsor. The affidavits must be on forms approved by the Department and may be obtained from the Department as part of the approved application form.

006.01B1 Confidentiality. The application is a public record. If anonymity is important to the affiant's own recovery, for example, if the affiant is a member of Alcoholics Anonymous, the affiant may indicate on the affidavit that he or she wants the affidavit to be confidential. If the affiant so requests, the affidavit shall be kept separate from the application and kept confidential. The affidavits so designated shall be used only by the Department and the Board in its consideration of whether to restore the applicant's privilege to drive.

006.01C Documentation of Involvement in a Support Program Other than an Established Self-help Program. If the applicant has an informal support program rather than an established support group, he or she must provide independent written documentation of the nature of that program and how it helps to support continued abstinence. This documentation must be in the form of at least three affidavits. The affidavits must be on forms approved by the Department and may be obtained from the Department as part of the approved application form.

006.01D Other Relevant Information Permitted. Any pertinent information, in addition to the minimum requirements listed above, for either support program involvement or abstinence, may be included within the affidavits. Of particular interest, for example, would be the writer's observations concerning any changes in the applicant's lifestyle and general attitude that may reflect the overall stability of his or her continued recovery and/or abstinence.

006.01E Current Evaluation by a State-certified Substance Abuse Counselor. The applicant must demonstrate through a current evaluation completed by a state-certified substance abuse counselor that he or she continues in recovery. It is the responsibility of the applicant to locate such service provider and pay all costs of such treatment.

006.01E1 Additional Evaluations. The Department can require an additional evaluation if the Department determines the evaluation submitted by the evaluator of the applicant's choice is insufficient.

006.01F Abstinence. The Director will recommend denial if there is any indication that the applicant continues to consume alcohol or drugs, except drugs taken as directed by a licensed physician. The applicant must have abstained from alcohol and drug consumption for a period sufficient to establish continuing recovery.

006.01G Subsequent Alcohol or Drug Related Driving Convictions. The Director will recommend denial if the applicant has, since the date of the revocation order, been convicted of any drunk driving offense or for refusing a chemical test in this or any other state.

006.01H Subsequent Driving under Suspension Convictions. The Director will recommend denial if the applicant has, since the date of the revocation order, been convicted of driving while under suspension, revocation, or impoundment in this or any other state.

006.01I License Otherwise Subject to Revocation. The Director will recommend denial if the applicant's license is revoked or suspended for any other reason in this or any other state.

006.01I1 Chance to Cure: Driving Related Revocations Predating Revocation Order. A revocation or suspension for some other reason may be cured if the reason for the revocation or suspension predated the date of the revocation order and the applicant is otherwise eligible for reinstatement, except for the fifteen-year revocation.

006.01I2 Chance to Cure: Non-Driving Related License Revocations. A revocation or suspension for some other reason that is not related to driving may be cured by demonstrating that the applicant is otherwise eligible for reinstatement.

006.01J Chance to Cure: Board of Pardons Rules. The Department may also consider the Board's rules for approval of reprieves when making a recommendation.

007 DISCRETIONARY CONSIDERATIONS

007.01 Evidence Demonstrating Applicant May Continue to Present a Danger to Public Safety. The Director may recommend against the reprieve for any reason if he or she concludes the applicant continues to be a danger to public safety. The reasons for recommending against the reprieve must be stated in writing to the Board.

008 RECOMMENDATION

008.01 Upon Receipt of the Application. When the Director receives the application and the application fee, he or she will review it and any additional evidence filed with it. The Director may, at his or her discretion, request additional evidence from the applicant. The Director may conduct any investigation he or she determines is necessary to protect the public safety. Failure to cooperate with requests for additional information may be cause for an unfavorable recommendation.

008.02 Timelines. The Director will make a recommendation to the Board within a reasonable time, taking into consideration the completeness of the application, and the progress of any investigation the Director may deem necessary.

008.03 Written Recommendation. The Director shall make a recommendation for reprieve or denial. The recommendation shall be in writing and shall briefly state the reasons for the recommendation. The Director will include with the recommendation (1) the original application; (2) all other evidence in the file, including evidence submitted by the applicant or any other person, for or against the reprieve and (3) any other applications the applicant has previously filed under these rules and regulations.

008.04 Copy to Applicant. A copy of the recommendation shall be mailed to the applicant by U.S. mail at the address provided by the applicant.

008.05 Opportunity to Withdraw Application or File Written Response. At any time prior to the date the Board considers the application, the applicant shall be allowed to withdraw his or her application from consideration or make any written response. The response will be forwarded to the Board, but the Director will not amend a recommendation based on the response.

009 WITHDRAWAL OF REPRIEVE

009.01 Reprieve Conditioned on Continued Recovery. If the Board grants a reprieve, the Department will withdraw an applicant's license or ignition interlock permit (IIP) if the Department becomes aware that the applicant has been subsequently convicted of any violation of Neb. Rev. Stat. § 60-6,196 or 60-197, or comparable city or village ordinance, or any alcohol related driving offense under any law in any state.

009.01A Thirty-day Written Notice. When the Director becomes aware of the subsequent conviction, he or she will mail notice to the applicant that his or her license or ignition interlock permit (IIP) will be summarily revoked for the remainder of the original fifteen-year revocation period, effective thirty days after the notice is mailed.

009.01B Where and How Mailed. The notice will be sent by first-class mail to the applicant at his or her last known address as shown in the records of the Department. The applicant is presumed to know of this consequence and the Department need not show that the applicant received actual notice of the summary revocation or send any other notice.

009.01C Withdrawal Independent of Any Other Court-imposed Penalty. The applicant's license or ignition interlock permit (IIP) will be revoked for the time remaining on the fifteen-year revocation without regard for any penalty that may be imposed by the court for the same offense.

009.01D Evidence of Failure to Comply with Conditions of Reprieve. If the Director becomes aware of any evidence tending to show the applicant is violating any condition of the reprieve order, the Director will make the Board aware of the evidence.

010 REPRIEVE

010.01 Notice to Department of Reprieve. If the Board grants a reprieve of the fifteen-year license revocation, the Board will notify the Department of its decision. The Board may, in its sole discretion, order any restriction it deems necessary as a condition of the reprieve or reinstatement.

010.02 Requirements. Once the Board has notified the Department of a reprieve, the successful applicant may apply to the Department for the document they are eligible for, either a license or ignition interlock permit (IIP). The applicant must do the following:

010.02A Reinstatement Fee. The applicant must pay to the Department a reinstatement fee for all open withdrawals with the exception of the withdrawal(s) that are the subject of the current reprieve. The reinstatement fee for the current reprieve will be required to be paid at the end of the revocation period. The amount of the fee is set by statute.

010.02B Proof of Financial Responsibility. At the time the applicant applies to the Department for an ignition interlock permit {IIP), he or she must file an SR-22 and maintain the SR-22 for the required statutory period for all other withdrawals. If there are no other withdrawals to reinstate, the applicant will only be required to file an SR-22 for the duration of the revocation, or until there are no vehicles registered in their name only. Failure to maintain an SR-22 will result in the suspension of the applicant's license or ignition interlock permit (IIP).

010.02C Ignition Interlock Device. The Board may, in its sole discretion, when granting a license reinstatement or reprieve to any person who has made application pursuant to Neb. Rev. Stat.§ 60-6,209, order such person to operate only motor vehicles equipped with an ignition interlock device approved by the Director. The Board may order the use of such a device for a period of time not to exceed any period of revocation the applicant is subject to at the time the application for an ignition interlock permit (IIP) is made.

010.02D Ignition Interlock Device; Ignition Interlock Permit (IIP); Issuance. Any person required by the Board to operate only motor vehicles equipped with an ignition interlock device shall make application to the Director for the issuance of an ignition interlock permit (IIP) restricted to the operation of a motor vehicle equipped with such an ignition interlock device. Such person shall provide satisfactory proof that an ignition interlock device has been installed and maintained on any motor vehicle such person shall operate for the duration of the original fifteen-year revocation period. Any person eligible for issuance of an ignition interlock permit (IIP) with an ignition interlock restriction shall be required to meet all other conditions of licensure as required by statute or regulation.

010.02E Ignition Interlock Device; Rules and Regulation Relating to Approval of the Ignition Interlock Devices and the Means of Installation of the Devices. Applicants ordered by the Board to operate only motor vehicles equipped with an ignition interlock device shall be bound by the provisions of Title 250, Nebraska Administrative Code, Chapter 1, Rules and Regulation Relating to Approval of the Ignition Interlock Devices and the Administration of the Ignition Interlock Program, as well as the provisions of this rule.

010.02F Ignition Interlock Device: Violation: Revocation. Any person ordered by the Board of Pardons to operate only motor vehicles equipped with an ignition interlock device shall be subject to the criminal violations under Neb. Rev. Stat. §83-1,127.02.

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Title 247 - NEBRASKA DEPARTMENT OF MOTOR VEHICLES

CHAPTER 13 - RULES AND REGULATIONS GOVERNING NEGOTIATED RULEMAKING

001 SCOPE. The purpose of these regulations is to establish a framework for the conduct of negotiated rulemaking consistent with the Administrative Procedure Act and the Negotiated Rulemaking Act. The negotiated rulemaking process can be used by the Department, whenever appropriate, to resolve controversial· issues prior to the commencement of formal rulemaking. Negotiated rulemaking is not a substitute for the requirements of the Administrative Procedure Act, but may be used as a supplemental procedure to permit the direct participation of affected interests in the development of new rules or the amendment or repeal of existing rules. The negotiated rulemaking process also does not preclude other Department efforts or processes designed to reach consensus with affected or interested persons concerning the content of rules or regulations. A consensus agreement on a proposed rule reached by a negotiated rulemaking committee may be modified by the Department as a result of a subsequent formal rulemaking process.

002 DEFINITIONS. For purposes of this Chapter of these model procedural rules:

002.01 APA shall mean the Administrative Procedure Act, Neb. Rev. Stat. §§ 84-901 through 84-920 (1987, Cum. Supp. 1992, Supp. 1993).

002.02 Consensus shall mean unanimous concurrence among the interests represented on a negotiated rulemaking committee unless the committee agrees upon another specified definition.

002.03 Convenor shall mean a person who impartially assists the Department in determining whether establishment of a negotiated rulemaking committee is feasible and appropriate for a particular rulemaking procedure.

002.04 Department shall mean the Nebraska Department of Motor Vehicles.

002.05 Director shall mean the Director of the Department of Motor Vehicles or his or her designee.

002.06 Facilitator shall mean a person who impartially aids in the discussion and negotiations among the members of a negotiated rulemaking committee to develop a proposed rule. A facilitator shall not have decisionmaking authority.

002.07 Interest shall mean, with respect to an issue or matter, multiple parties that have a similar point of view or that are likely to be affected in a similar manner.

002.08 Negotiated rulemaking shall mean rulemaking through the use of a negotiated rulemaking committee.

002.09 Negotiated rulemaking committee or committee shall mean an advisory committee established to consider and discuss issues for the purpose of reaching a consensus in the development of a proposed rule.

002.10 Person shall mean an individual, partnership, limited liability company, corporation, association, governmental subdivision, department, or public or private organization of any character.

002.11 Rule or regulation shall mean any rule, regulation, or standard issued by the Department, including the amendment or repeal thereof whether with or without prior hearing and designed to implement, interpret, or make specific the law enforced or administered by it or governing its organization or procedure, but not including rules and regulations concerning the internal management of the Department not affecting private rights, private interests, or procedures available to the public and not including permits, certificates of public convenience and necessity, franchises, rate orders and rate tariffs, and any rules of interpretation thereof, and for the purpose of the AP A, every rule and regulation which shall prescribe a penalty shall be presumed to have general applicability or to affect private rights and interests.

003 ESTABLISHMENT OF A NEGOTIATED RULEMAKING COMMITTEE; CRITERIA. The Department may establish a negotiated rulemaking committee to negotiate and develop a proposed rule if the Director determines that the use of the negotiated rulemaking procedure is in the public interest. In making that determination, the Director shall consider whether:

003.01 Need. There is a need for the rule.

003.02 Identifiable Interests. There are a limited number of identifiable interests that will be significantly affected by the rule.

003.03 Balanced Representation. There is a reasonable likelihood that a committee can be convened with a balanced representation of persons who:

003.03A. Can adequately represent the interests identified; and

003.03B. Are willing to negotiate in good faith to reach a consensus on the proposed rule.

003.04 Likelihood of Consensus. There is a reasonable likelihood that a committee will reach a consensus on the proposed rule within a fixed period of time.

003.05 No Unreasonable Delay. The negotiated rulemaking procedure will not unreasonably delay the notice of proposed formal rulemaking and the issuance of the final rule pursuant to the APA.

003.06 Adequate Resources. The Department has adequate resources and is willing to commit those resources, including technical assistance, to the committee.

003.07 Use of Committee Consensus. The Department, to the maximum extent possible consistent with the legal obligations of the Department, will use the consensus of the committee as the basis of the rule proposed by the Department in the formal rulemaking process of the APA.

004 CONVENORS; SELECTION; DUTIES. The Department, at the discretion of the Director, may use the services of a convenor.

004.01 Selection. The Department may employ or contract for an organization or an individual to serve as a convenor, or may use the services of a state employee to act as a convenor. A convenor shall not have a financial or other interest that would preclude him or her from serving in an impartial and independent manner. The Department shall determine whether a person under consideration as a convenor has such an interest. A person disqualified under this criterion shall be dropped from further consideration.

004.02 Duties. The convenor may assist the Department in making the determination of need for a negotiated rulemaking process discussed in section 004 above. The convenor may also assist the Department in:

004.02A. Identifying persons who will be significantly affected by a proposed rule.

004.02B. Conducting discussions with affected persons on the issues of concern and ascertaining whether the establishment of a negotiated rulemaking committee is feasible and appropriate for the particular rulemaking.

004.03 Report of Convenor. The convenor shall report findings and make recommendations to the Department. Upon request of the Department, the convenor shall ascertain the names of persons who are willing and qualified to represent the interests that will be significantly affected by the proposed rule. That report by the convenor and any recommendations of the convenor shall be public records and made available to the public for review upon request.

005 PETITIONS FOR THE USE OF A NEGOTIATED RULEMAKING COMMITTEE. Any person may petition the Department to request the use of a negotiated rulemaking committee in the development or revision of a rule, as provided below.

005.01 Topics for Negotiated Rulemaking. A negotiated rulemaking process may be requested on any topic appropriate for a rule or regulation by the Department.

005.01A. A negotiated rulemaking process may be requested only to develop or revise rules which carry out statutes that are within the authority of the Department to implement.

005.01B. A negotiated rulemaking process may not be requested to develop a rule or regulation to vary or change the specific terms of a statute.

005.01C. A negotiated rulemaking process may not be requested to negotiate a rule on a matter which is not within the definition of a rule or regulation as set forth in subsection 002.11 above.

005.02 Form of Petition. A request for the use of a negotiated rulemaking procedure shall be made by a petition that meets the requirements of form set out in this subsection. In the event that it does not, the Department may refuse to accept it.

005.02A. A petition may be in the form of a pleading that contains a caption, heading, and name as set forth on Attachment 1, which is attached to these rules and made a part of them by reference.

005.02B. A petition may also be made in the form of a letter so long as the letter contains all of the information required by these regulations and is clearly delineated as a petition for negotiated rulemaking.

005.02C. All petitions must be on white, letter sized paper (8½ by 11 inches) of standard weight.

005.02D. Petitions must be legible, and may be typewritten, photostatically reproduced, printed, or handwritten. If handwritten, petitions must be in ink. Only one side of a page of a petition shall contain any writing.

005.02E. Any documents that are intended to accompany a petition shall be securely fastened, clearly marked as attachments to the petition, and meet the other requirements of this section as to size, print and legibility.

005.03 Content and Substance of Petition. A petition for a negotiated rulemaking procedure shall meet the following requirements for content and substance. In the event that it does not, the Department may refuse to accept it.

005.03A. The petition must identify the general subject matter about which the negotiated rulemaking procedure is requested, including the statutes or legislative bill(s) which provide authority for the desired regulation, and, if amendments to existing regulations are sought, identification of the regulations by title, chapter and name.

005.03B. The petition must identify the specific issue(s) proposed for inclusion in the negotiated rulemaking process.

005.03C. The petition must discuss the facts surrounding each problem or issue proposed for inclusion in the negotiated rulemaking process.

005.03D. The petition must discuss why a negotiated rulemaking process is in the public interest, including information on each of the criteria set out in subsections 003.01 through 003.05 above. The petition may also include information on the criteria included in subsections 003.06 and 003.07 above, to the extent such information is available to the petitioner. The petitioner may also submit such other information as may assist the Department in making a decision.

005.03E. The petition must identify persons who will be significantly affected by any rule which might result from the proposed negotiated rulemaking process, to the extent known by the petitioner. The petitioner may also suggest the names of persons who are willing and qualified to represent the interests that will be significantly affected by the negotiated rulemaking process and the proposed rule.

005.04 Where to File Petition. A petition for a negotiated rulemaking process shall be filed with the Director. Filing may be made by personal delivery during regular Department office hours or by mail.

005.05 Recommendation of Negotiated Rulemaking. Upon the filing of a petition for a negotiated rulemaking procedure, the Director may designate a Department employee or use the services of a convenor to recommend to the Director whether a negotiated rulemaking process should be initiated.

005.06 Timeline for Decision. Within sixty (60) days after submission of a petition for a negotiated rule making procedure, the Department shall:

005.06A. Deny the petition in writing, stating the reason(s) for denial; or

005.06B. Initiate the negotiated rulemaking process as provided in these rules.

005.07 Form of Decision. The decision of the Department with respect to a petition for a negotiated rule making procedure may be made in the form of a pleading or a letter clearly designated as the decision on the petition. The petitioner shall be served with a copy of the Department's final decision by certified mail, return receipt requested.

005.08 No Judicial Review. A decision by the Department with respect to a petition for a negotiated rulemaking procedure is not subject to judicial review, although nothing herein shall bar a judicial review if such is otherwise provided by law.

006 NOTICE OF A NEGOTIATED RULEMAKING COMMITTEE; COMMENT; APPLICATIONS FOR MEMBERSHIP. If the Department decides to go forward with the establishment of a negotiated rulemaking committee, the Department shall proceed with the following process.

006.01 Notice of Negotiated Rulemaking. The Department shall give notice to the Secretary of State, publish notice in a newspaper having general circulation in the state, and, as appropriate, publish notice in other newspapers and publications. The notice shall include:

006.01A. An announcement that the Department intends to establish a negotiated rulemaking committee to negotiate and develop a proposed rule.

006.01B. A description of the subject and scope of the rule to be developed and the issues to be considered.

006.01C. A list of interests likely to be significantly affected by the proposed rule.

006.01D. A list of the persons proposed to represent the affected interests and the Department.

006.01E. A proposed schedule for completing the work of the committee.

006.01F. An explanation of how a person may apply for or nominate another person for membership on the committee.

006.02 Comment. Persons interested in making comments upon the formation of a particular proposed negotiated rulemaking committee shall have thirty (30) days from the date of publication of the notice concerning that committee to do so. Such comments shall be in writing, and shall either be personally delivered to the Department or mailed to the Department at its business office.

006.03 Application for Membership. Persons interested in applying for membership on a particular proposed negotiated rulemaking committee or in nominating other persons for such membership shall have thirty (30) days from the date of publication of the notice concerning that committee to do so. Persons making application for membership or nominations for membership shall do so on Attachment 2 which is attached to these regulations and made a part of these regulations by reference, and which shall be provided by the Department. Persons making application for membership or nominations for membership may also do so by letter, so long as the letter contains all of the information set out in Attachment 2 and is clearly delineated as an application or nomination for membership on a specific negotiated rulemaking committee.

007 ESTABLISHMENT OF A NEGOTIATED RULEMAKING COMMITTEE; PROCEDURE. After publication of notice and termination of the comment and membership application period, the Department will consider the comments and membership applications for a particular negotiated rulemaking committee and determine whether such a committee can adequately represent the interests of the persons that will be significantly affected by a proposed rule, and whether such a committee is feasible and appropriate in the particular rulemaking. In making the final determination as to creation of a negotiated rulemaking committee, the Department may use the services of a convenor as set out in Section 004 above. In making the final determination as to creation of a negotiated rulemaking committee, the Department and its Director will apply the criteria set out in 003 above.

007.01 If Negotiated Rulemaking Deemed Feasible. If, after such a determination, the Department decides that a negotiated rulemaking procedure is feasible, it shall establish a negotiated rulemaking committee as provided in these regulations. The committee will negotiate issues and develop proposed rules for use by the Department in formal rulemaking.

007.02 If Negotiated Rulemaking Deemed Not Feasible. If, after such a determination, the Department decides not to establish a negotiated rulemaking committee, the Department shall:

007.02A. Notify the persons who commented on, applied for membership on or nominated persons for membership on the particular negotiated rulemaking committee of the reasons for the decision not to establish such a committee.

007.02B. Publish notice of the decision not to establish the particular negotiated rulemaking committee in a newspaper having general circulation in the state, and, as appropriate, in other newspapers and publications.

008 NEGOTIATED RULEMAKING COMMITTEE; MEMBERSHIP. All members of a negotiated rulemaking committee shall participate in the deliberations of the committee with the same rights and responsibilities as other members.

008.01 Possible Members. Members of a negotiated rulemaking committee may include:

008.01A. A person designated by the Department to represent the Department. This person shall be authorized to fully represent the Department in the discussions and negotiations of the committee.

008.01B. Persons selected by the Department as willing and qualified to represent the interests that will be significantly affected by the proposed rule.

008.01C. Persons contacted and recruited by the negotiated rulemaking committee itself by consensus as essential to the success of the negotiated rulemaking process.

008.01D. Persons selected by the negotiated rulemaking committee by consensus upon committee review of a petition for membership or nomination as set out in subsection 008.02 below.

008.02 Petitioning or Nominating for Membership. Persons who will be significantly affected by a proposed rule and who believe that their interests will not be adequately represented by any person on a negotiated rulemaking committee may petition for or nominate another person for membership on the negotiated rulemaking committee.

008.02A. Each petition or nomination for committee membership shall be in writing and be submitted to the negotiated rulemaking committee by delivering or mailing the same to the Department. All such petitions or nominations shall include:

008.02A1. Identification of the applicable negotiated rulemaking proceeding.

008.02A2. The name of the petitioner or nominee, and a description of the interests the person represents.

008.02A3. Evidence that the petitioner or nominee is authorized to represent parties related to the interests the person proposes to represent.

008.02A4. A written commitment that the petitioner or nominee will actively participate in good faith in the development of the rule under consideration.

008.02A5. An explanation of reasons that the persons already on the negotiated rulemaking committee do not adequately represent the interests of the person submitting the petition or nomination.

008.02B. Persons wishing to file such a petition for membership or nomination to a negotiated rulemaking committee may use the form attached hereto as Attachment 3. Attachment 3 is made a part of these regulations by reference. Persons wishing to file such a petition for membership or nomination to a negotiated rulemaking committee may also do so by letter, provided that the letter contains the information set forth above.

008.02C. Upon receiving a petition for membership on or nomination to a particular negotiated rulemaking committee, the committee in question shall decide, by consensus at its next meeting, whether or not to expand its membership.

009 NEGOTIATED RULEMAKING COMMITTEE; OPERATION. A negotiated rulemaking committee established under these rules shall consider the matter proposed by the Department for consideration and shall attempt to reach consensus concerning a proposed rule and any other matter the committee determines is relevant to the proposed rule.

009.01 Adoption of Procedures. A negotiated rulemaking committee may adopt procedures or ground rules for the operation of the committee consistent with these rules and the pertinent Nebraska statutes.

009.02 Administrative Support. The Department shall provide appropriate administrative support to a negotiated rulemaking committee including technical assistance and support.

009.03 Departmental Representative. The person representing the Department on a negotiated rulemaking committee shall participate in the deliberations of the committee with the same rights and responsibilities as other members of the committee and shall be authorized to fully represent the Department in the discussions and negotiations of the committee.

009.04 Report of Consensus. If a negotiated rule making committee achieves consensus on a proposed rule at the conclusion of the negotiations, the committee shall transmit to the Department a report containing the proposed rule.

009.05 Report of Lack of Consensus. If a negotiated rulemaking committee does not reach a consensus on the proposed rule, the committee shall transmit to the Department a report specifying areas in which the committee reached consensus and the issues that remain unresolved. The committee may include in the report any other information, recommendations, or materials that the committee considers appropriate. Any member of the committee may include as an addendum to the report additional information, recommendations or materials.

010 FACILITATORS; SELECTION; DUTIES. A facilitator shall be selected to assist a negotiated rulemaking committee with its duties.

010.01 Nomination. The Department may nominate a person to serve as a facilitator for the negotiations of a negotiated rulemaking committee, subject to the approval of the committee by consensus. If the committee does not approve the Department's nomination for facilitator, the Department shall submit a substitute nomination. If the committee does not approve the substitute nomination of the Department for facilitator, the committee shall select, by consensus, a person to serve as facilitator.

010.02 Selection. The Department may employ or contract for an organization or an individual to serve as a facilitator for a negotiated rulemaking committee or the Department may use the services of a state employee to act as a facilitator. A person designated by the Department to represent it on a negotiated rulemaking committee with respect to substantive issues may not serve as the facilitator. A facilitator shall not have a financial or other interest that would preclude him or her from serving in an impartial and independent manner. The Department shall determine whether a person under consideration for facilitator has such an interest. A person disqualified under this criterion shall be dropped from further consideration.

010.03 Duties. A facilitator approved or selected by a committee shall:

010.03A. Preside at the meetings of the committee in an impartial manner.

010.03B. Impartially assist members in conducting discussions and negotiations and achieving consensus.

010.03C. Manage the keeping of minutes and records.

011 NEGOTIATED RULEMAKING COMMITTEE; EXPENSES. Members of a negotiated rulemaking committee shall be responsible for their own expenses of participation. However, the Department may pay for a committee member's actual and necessary expenses incurred in serving on the committee as provided in Neb. Rev. Stat § § 81-117 4 through 81-1177 and a reasonable per diem rate of compensation if:

011.01 Lack of Adequate Financial Resources. The committee member certifies a lack of adequate financial resources to participate on the committee using the form at Attachment 4 which is attached to these regulations and made a part of them by reference; and,

011.02 Participation Necessary. The Department determines that the committee member's participation is necessary to assure an adequate representation of the interests of the members.

012 GRANTS OR GIFTS. The Department may accept grants or gifts from any source to fund a negotiated rulemaking process if:

012.01 Information Public. Information on the name of the person giving the grant or gift and the amount of the grant or gift is available to the public.

012.02 Unconditional. The grant or gift is given to and accepted by the Department without placing any condition on the membership of a committee or the outcome of the negotiated rulemaking process.

012.03 No Diminution of Integrity. There is a consensus among the members of the negotiated rulemaking committee that the acceptance of the grant or gift will not diminish the integrity of the negotiated rulemaking process.

013 NEGOTIATED RULEMAKING COMMITTEE; TERMINATION. A negotiated rulemaking committee shall terminate upon the adoption of the final rule under consideration by the Department pursuant to the APA, unless the Department, after consulting the committee, or the committee itself specifies an earlier termination date.

014 NEGOTIATED RULEMAKING PROCEDURE; JUDICIAL REVIEW. Any action of the Department relating to establishing, assisting or terminating a negotiated rulemaking committee under the Negotiated Rulemaking Act shall not be subject to judicial review, except that nothing in this section shall bar judicial review if such judicial review is otherwise provided by law.

Attachments 1-4

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Title 247 - NEBRASKA DEPARTMENT OF MOTOR VEHICLES

Chapter 14 - RULES AND REGULATIONS GOVERNING HARDSHIP EXEMPTIONS FOR THE RELEASE OF IMMOBILIZED MOTOR VEHICLES PURSUANT TO NEB. REV. STAT. § 60-6,197.01.

001 SCOPE. These rules and regulations set forth limited exceptions to the immobilization of motor vehicles under Neb. Rev. Stat. § 60-6,197.01. This is in accordance with 23 C.F.R. 1275 which allows states to provide limited exceptions to federal requirements for immobilization on an individual basis to avoid undue hardship to a family member by the immobilization of a motor vehicle due to an offender's conviction for a second or subsequent violation of Neb. Rev. Stat. § 60-6,196 or 60-6,197.

002 DEFINITIONS

002.01 Bona fide lienholder means a lienholder properly notated on the Certificate of Title pursuant to Neb Rev. Stat. § 60-110.

002.02 Conviction means a final conviction by a court of competent jurisdiction.

002.03 Co-owner means a person, firm, or corporation which holds a legal title of a motor vehicle, who is not an offender. If (a) a motor vehicle is the subject of an agreement for the conditional sale thereof with the right of purchase upon performance of the conditions stated in the agreement and with an immediate right of possession vested in the conditional vendee, (b) a motor vehicle is subject to a lease of thirty (30) days or more with an immediate right of possession vested in the lessee, or (c) a mortgagor of a motor vehicle is entitled to possession, then such conditional vendee, lessee, or mortgagor shall be deemed the co-owner.

002.04 Department means the Nebraska Department of Motor Vehicles.

002.05 Dependant means an immediate family member, including a spouse, an unmarried child under the age of nineteen (19) years, an unmarried child who is a full-time student under the age of twenty-three (23) years and who is financially dependent upon the co-owner, an unmarried child of any age who is medically certified as disabled and dependent upon the co-owner, or a grandparent(s) who is supported by the co-owner.

002.06 Immobilized or immobilization means a court revocation or suspension of the registration of the motor vehicle(s), including the license plates.

002.07 Offender means an individual convicted of a second or subsequent violation of Neb. Rev. Stat. § 60-6,196 or 60-6,197 whose motor vehicles have been immobilized.

002.08 Offender's motor vehicle means all motor vehicles owned by the offender with a title or registration on which the offender's name appears.

002.09 Towing and storage lienholder means a person who has performed work, labor, exerted care or diligence; who had held the offender's motor vehicle for ninety (90) days; and who has complied with the requirements of Neb. Rev. Stat. 52-601.01, et seq.

003 IMMOBILIZATION

003.01 Conditions under Which an Offender's Motor Vehicle Is Immobilized. The court shall order all of the offender's motor vehicles immobilized upon conviction for a second or subsequent violation of Neb. Rev. Stat. § 60-6,196 or 60-6,197.

003.02 Cost. The owner shall bear the cost of immobilization.

003.04 Period of Immobilization. The court shall order the motor vehicle or motor vehicles immobilized for a period of time not less than five (5) days and not more than eight (8) months.

003.05 Notification. The court shall notify the Department of the period of immobilization within thirty (30) days.

003.06 Alternative to Immobilization. As an alternative to immobilization, the court shall order the installation of an ignition interlock device on each of the offender's motor vehicles if the offender was sentenced to an operator's license revocation of at least one (1) year and has completed at least one (1) year of that revocation.

004 RELEASE FROM IMMOBILIZATION. The court shall release from immobilization any immobilized motor vehicle to a bona fide lienholder, towing and storage lienholder, or co-owner under the following conditions:

004.01 Bona Fide Lienholder. Upon application to the court by a holder of a bona fide lien, the court shall release the motor vehicle if the lien was executed and noted on the motor vehicle's Certificate of Title prior to the immobilization and possession of the motor vehicle is necessary by the lienholder for purposes of foreclosing and satisfying such lien.

004.02 Towing and Storage Lienholder. Upon application to the county by the holder of a towing and storage lien for towing and storage charges, the court shall release the motor vehicle if the motor vehicle was towed at the direction of a peace officer or the court.

004.03 Co-owner. Upon presentation to the court of an Affidavit of Undue Hardship Requesting Exemption from Motor Vehicle Immobilization, Attachment 1 and incorporated herein by reference, the court shall release the motor vehicle to a co-owner. The affidavit must set forth the following qualifications:

004.03a Employment. The co-owner must state in the affidavit that he or she is employed; and

004.03b Undue Hardship for Co-owner or Co-owner's Dependents. The co-owner must state in the affidavit that the immobilized motor vehicle is necessary for the employment of the co-owner and the failure to release the motor vehicle will cause undue hardship to the co-owner or dependents; and

004.03c Unauthorized Use. The co-owner must state in the affidavit that he or she will not authorize the use of the motor vehicle by a person known by the co-owner to have been an offender and the co-owner will immediately report to a local law enforcement agency any unauthorized use of the motor vehicle by any offender.

005 VIOLATION OF AFFIDAVIT. A co-owner who executes an affidavit which is acted upon by the court and who fails to immediately report the unauthorized use of the motor vehicle which is the subject of the affidavit is guilty of a Class IV misdemeanor and will not be permitted to file any additional affidavits.

Attachment

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TITLE 247 - NEBRASKA ADMINISTRATIVE CODE

CHAPTER 15 - RULES AND REGULATIONS GOVERNING THE MOTOR VEHICLE INSURANCE DATA BASE PURSUANT TO NEB. REV. STAT. §§ 60-362, 60-387, AND 60-3,136 THROUGH 60-3,139.

001 SCOPE. Neb. Rev. Stat. § 60-387 provides that application for registration of motor vehicles shall be accompanied by proof of financial responsibility and that proof of financial responsibility may be evidenced by a check by the Department of Motor Vehicles or its agents of the Motor Vehicle Insurance Data Base created by Neb. Rev. Stat. § 60-3,136 through 60-3,139 or by any other automated or electronic means as prescribed or developed by the Department of Motor Vehicles. These rules and regulations govern the administration and requirements of the Motor Vehicle Insurance Data Base by the Department of Motor Vehicles pursuant to the above statutes.

002 PURPOSE. These rules and regulations relate to the record reporting requirements of the Motor Vehicle Insurance Data Base and provide insurers or insurer groups with the necessary information to comply with those reporting requirements.  

003 DEFINITIONS.  

003.01 Automobile liability insurance policy means an owner’s or operator’s policy of liability insurance, as provided in Neb. Rev. Stat. § 60-501(10) as proof of financial responsibility, and issued by an insurer or insurer group duly authorized to do business in this state, to or for the benefit of the person named therein as insured. This shall also include motorcycle liability policies and liability policies including an SR-22 filing.

003.02 Commercial lines policy means insurance coverage for businesses, institutions, organizations, associations and professionals as reported to the Department of Insurance on the Combined Annual Statement Nebraska State Business Page as Other Commercial Auto Liability.

003.03 Department means the Nebraska Department of Motor Vehicles.  

003.04 Department of Insurance means the Nebraska Department of Insurance.  

003.05 Excess liability policy means a liability policy other than an automobile liability policy that has the ability to respond in damages for a stated amount above and beyond the liability limits of the underlying automobile liability policy.

003.06 In force means the ability to respond in damages for liability through the automobile liability policy expiration date.

003.07 Insurer means any company, whether organized as a stock, mutual, assessment, or any other entity authorized to transact the business of automobile liability insurance in Nebraska and which issues such insurance policies in this state and insurance company as provided in Neb. Rev. Stat. § 60-3,137.

003.08 Insurer group means a group of insurers under the same ownership.  

003.09 NAIC number (#) means the insurer’s National Association of Insurance Commissioner’s identification number.  

003.10 Optional reporting means that reporting which insurers may, but are not required, to transmit to the Department.  

003.11 Motorboat means a motorboat as defined by Neb. Rev. Stat. § 37-1204.  

003.12 Personal watercraft means a class of motorboat as defined by Neb. Rev. Stat. § 37-1204.01.  

003.13 Physical damage only policy means an automobile liability policy that provides for the ability to respond in damages for physical damage only and not for bodily injury or death.  

003.14 Record means the information in each automobile liability insurance policy pertaining to each insured vehicle, not each insurance policy. Each record shall include, but not be limited to, the NAIC number, vehicle identification number, policy number, policy expiration date and policyholder name.  

003.15 Reporting means the transfer of automobile liability insurance policy records to the Department.  

003.16 Required reporting means those records which insurers are required to transmit to the Department.  

003.17 Self insurer means any person qualifying as a self-insurer pursuant to Neb. Rev. Stat. §§ 60-562 to 60-564.  

003.18 Snowmobile means a snowmobile as defined by Neb. Rev. Stat. § 60-663.  

003.19 SR-22 means proof of financial responsibility in accordance with Neb. Rev. Stat. § 60-529.  

003.20 Trailer means a trailer as defined by Neb. Rev. Stat. § 60-501(4) and a cabin trailer as defined by Neb. Rev. Stat. § 60-614.  

003.21 Vehicles not required to be registered means vehicles exempt from registration pursuant to Neb. Rev. Stat. § 60-339.

003.22 Vehicle title and registration system means the computerized title and registration system maintained by the Department.  

004 INSURER OR INSURER GROUP REQUIREMENTS.

004.01 Required Reporting. Each insurer or insurer group authorized to transact the business of automobile liability insurance and issuing automobile liability insurance policies in Nebraska shall electronically file records of each primary automobile liability insurance policy issued in Nebraska insuring vehicles registered in Nebraska for inclusion in the Motor Vehicle Insurance Data Base. Insurers or insurer groups are required to report all such automobile liability insurance policies to the Department when an insurer’s or insurer group’s direct written premiums for automobile liability insurance policies are $100,000 or more as reported to the National Association of Insurance Commissioners for the prior calendar year and the Department has sent notification (see 005.01 of these rules and regulations). The insurer or insurer groups has 90 days from the mailing date of written notification by the Department to comply with the requirements of the Motor Vehicle Insurance Data Base. When calculating when an insurer group has direct written premiums for automobile liability insurance policies, it shall be the total of such premiums for all members of the insurer group for purposes of enforcement of these regulations.  

004.02 Exclusions. The following shall be excluded from reporting to the Motor Vehicle Insurance Data Base:  

004.02A Any vehicle registered with the Department of Motor Vehicles, Division of Motor Carrier Services, pursuant to Neb. Rev. Stat. §§ 60-3,192 through 60-3,206;  

004.02B Any person who qualifies as a self-insurer;  

004.02C Trailers;  

004.02D Vehicles not required to be registered (i.e., cranes, tractors, golf carts, ATV’s, etc.);  

004.02E Snowmobiles;  

004.02F Motorboats;  

004.02G Excess liability policies; and  

004.02H Physical damage only policies.  

004.03 Optional Reporting. The following may be voluntarily reported to the Department:  

004.03A Records of automobile liability insurance policies written as commercial lines; and

004.03B Records of automobile liability insurance policies of an insurer or insurer group with direct written premiums of less than $100,000 as reported to the National Association of Insurance Commissioners for the prior calendar year.  

004.04 Reporting Periods and Deadlines.

004.04A Until section 004.04B is effective, all required and optional reporting insurers or insurer groups are required to electronically provide automobile liability insurance policy records to the Department. The data containing such records shall be provided monthly no later than the tenth (10th) working day of the month and no sooner than the fifth (5th) working day of the month. The data that shall be reported to the Department’s Motor Vehicle Insurance Data Base shall include the record of each automobile liability insurance policy in force at the end of the prior month’s processing period. This subsection shall terminate on the date 004.04B becomes effective.

004.04B This section shall be effective on the first working day of the first month 60 days after the date the Governor approves the amended version of these rules and regulations. All required and optional reporting insurers or insurer groups are required to electronically provide automobile liability insurance policy records to the Department. The data containing such records shall be provided between the first (1st) and third (3rd) working days and between the eleventh (11th) and thirteenth (13th) working days each month. The data that shall be reported to the Department’s Motor Vehicle Insurance Data Base shall include the record of each automobile laibility insurance policy in force at the end of each reporting period.

004.05 Change from Optional to Required Reporting. An insurer or insurer group must begin reporting records of automobile liability insurance policies when the insurer’s or insurer group’s direct written premiums are $100,000 or more as reported to the National Association of Insurance Commissioners for the prior calendar year (see 004.01 and 004.03 of these rules and regulations), and the Department has sent written notification (see 005.01 of these rules and regulations). The insurer or insurer group has 90 days from the mailing date of the written notification to comply with the requirements of the Motor Vehicle Insurance Data Base.

004.06 Electronic Filing Process. Insurers or insurer groups shall provide required records pertaining to all of their respective Nebraska automobile liability insurance policies through an electronic process as prescribed by the Department in the Nebraska Insurance Reporting Guide.

004.07 Compliance with Nebraska Insurance Reporting Guide. Insurers or insurer groups required to report records pursuant to these rules and regulations are subject to the specifications and provisions as defined by the Department in the Nebraska Insurance Reporting Guide and as amended from time to time. Insurers or insurer groups authorized to transact the business of automobile liability insurance in Nebraska and which issue such insurance policies in this state, as reported to the Department by the Department of Insurance, shall be mailed a notice of amendments to the Nebraska Insurance Reporting Guide. On or before the date of amendment, the amended Nebraska Insurance Reporting Guide will be made available electronically. Insurers or insurer groups authorized to transact the business of automobile liability insurance in Nebraska and which issue such insurance policies in this state, as reported to the Department by the Department of Insurance, must comply with amendments to the Nebraska Insurance Reporting Guide within 90 days of the date of the mailed notice.

005 DEPARTMENT REQUIREMENTS.

005.01 Notification Required. The Department will provide mailed written notice to insurers or insurer groups, or other entities authorized to transact the business of automobile liability insurance in Nebraska and which issue automobile liability insurance policies in this state, to begin required reporting of records of automobile liability insurance policies, insurer groups, or other entities authorized to transact the business of automobile liability insurance in Nebraska and which issue automobile liability insurance policies in this state when the insurer’s or insurer group’s direct written premiums are $100,000 or more as reported to the National Association of Insurance Commissioners for the prior calendar year.

005.02 Data Base Message. Upon inquiry by the Department, its agents, or law enforcement, the Department shall return the following electronic message when an insurance record is not found on the Motor Vehicle Insurance Data Base: “Information Unavailable, Review of Insurance Card Required”.

005.03 Record Validity. The Department, its agents, or law enforcement shall not consider as valid any record contained in the Motor Vehicle Insurance Data Base after midnight on the expiration date associated with such record.  

005.04 Publication Required. The Department shall publish and make available to all insurers and insurer groups a Nebraska Insurance Reporting Guide (Guide). This Guide, as amended from time to time, shall provide the insurer or insurer group with all of the technical information needed for the insurer or insurer group to comply with the requirements of the Motor Vehicle Insurance Data Base. The Department will make the Guide available in electronic format.  

005.05 Record Error Reports. The Department shall return to the reporting insurers or insurer groups error reports that include, but are not limited to, the following:  

005.05A Incorrect data format;  

005.05B Vehicle identification number not found on the Department’s Vehicle Title and Registration System;

005.05C Invalid vehicle identification numbers submitted;  

005.05D Invalid expiration dates submitted; and  

005.05E Any record submitted that fails to comply with the Nebraska Insurance Reporting Guide.  

005.06 Release of Insurance Record. The Department shall not release any record contained in the Motor Vehicle Insurance Data Base except in conjunction with a copy of the registration or title record for the corresponding vehicle. The request for such record shall indicate that the record will be used only by any insurer, insurer group, insurance support organization, or by a self-insured entity, or its agents, employees, or contractors in connection with claims investigation activities, anti-fraud activities, rating, or underwriting; or for use by any federal, state, or local governmental agency, including any court or law enforcement agency, in carrying out the agency’s functions; or by a private person or entity acting on behalf of a governmental agency in carrying out the agency’s functions. The request for the record shall be in compliance with the Uniform Motor Vehicle Records Disclosure Act, Neb. Rev. Stat. §§ 60-2901 through 60-2912.

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