§ 84-901 — Terms, defined

Nebraska § 84-901

• Jurisdiction: Nebraska
• Ch. 84: State Officers

Text

For purposes of the Administrative Procedure Act:
(1) Agency shall mean each board, commission, department, officer, division, or other administrative office or unit of the state government authorized by law to make rules and regulations, except the Adjutant General's office as provided in Chapter 55, the courts including the Nebraska Workers' Compensation Court, the Commission of Industrial Relations, the Legislature, and the Secretary of State with respect to the duties imposed by the act;
(2) Rule or regulation shall mean any standard of general application adopted by an agency in accordance with the authority conferred by statute and includes, but is not limited to, the amendment or repeal of a rule or regulation. Rule or regulation shall not include (a) internal procedural documents which provide guidance to staff on agency organization and operations, lacking the force of law, and not relied upon to bind the public, (b) guidance documents as issued by an agency in accordance with section 84-901.03 , and (c) forms and instructions developed by an agency. For purposes of the act, every standard which prescribes a penalty shall be presumed to have general applicability and any standard affecting private rights, private interests, or procedures available to the public is presumed to be relied upon to bind the public. Nothing in this section shall be interpreted to require an agency to adopt and promulgate rules and regulations when statute authorizes but does not require it;
(3) Contested case shall mean a proceeding before an agency in which the legal rights, duties, or privileges of specific parties are required by law or constitutional right to be determined after an agency hearing;
(4) Ex parte communication shall mean an oral or written communication which is not on the record in a contested case with respect to which reasonable notice to all parties was not given. Filing and notice of filing provided under subdivision (6)(d) of section 84-914 shall not be considered on the record and reasonable notice for purposes of this subdivision. Ex parte communication shall not include:
(a) Communications which do not pertain to the merits of a contested case;
(b) Communications required for the disposition of ex parte matters as authorized by law;
(c) Communications in a ratemaking or rulemaking proceeding; and
(d) Communications to which all parties have given consent;
(5) Guidance document shall mean any statement developed by an agency which lacks the force of law but provides information or direction of general application to the public to interpret or implement statutes or such agency’s rules or regulations. A guidance document is binding on an agency until amended by the agency. A guidance document shall not give rise to any legal right or duty or be treated as authority for any standard, requirement, or policy. Internal procedural documents which provide guidance to staff on agency organization and operations shall not be considered guidance documents; and
(6) Hearing officer shall mean the person or persons conducting a hearing, contested case, or other proceeding pursuant to the act, whether designated as the presiding officer, administrative law judge, or some other title designation.

Legislative History

Source: Laws 1945, c. 255, § 1, p. 795; Laws 1947, c. 350, § 1, p. 1097; Laws 1951, c. 342, § 1, p. 1128; Laws 1959, c. 456, § 1, p. 1510; Laws 1974, LB 819, § 11; Laws 1978, LB 44, § 1; Laws 1981, LB 130, § 1; Laws 1986, LB 992, § 1; Laws 1987, LB 253, § 1; Laws 1994, LB 414, § 135; Laws 1994, LB 446, § 14; Laws 2016, LB867, § 4; Laws 2017, LB209, § 1. Annotations: 1. Contested case 2. Agency subject to act or not 3. Rules 4. Miscellaneous 1. Contested case Pursuant to subsection (3) of this section, a proceeding becomes a contested case when notice and a hearing are required. Stoneman v. United Neb. Bank, 254 Neb. 477, 577 N.W.2d 271 (1998). At a hearing before the Nebraska Liquor Control Commission on a contested case, the applicant is entitled to notice of the issues. J K & J, Inc. v. Nebraska Liquor Control Commission, 194 Neb. 413, 231 N.W.2d 694 (1975). The selection of a site for a public improvement was legislative in nature and was not a contested case. Stones v. Plattsmouth Airport Authority, 193 Neb. 552, 228 N.W.2d 129 (1975). Application of two public power districts to Nebraska Power Review Board for approval of an agreement limiting the areas in which and the customers to whom they would furnish electrical energy at wholesale, and opposition thereto by affected cities, was a contested case hereunder. City of Lincoln v. Nebraska P.P. Dist., 191 Neb. 556, 216 N.W.2d 722 (1974). The words contested case are defined by this section. School Dist. No. 8 v. State Board of Education, 176 Neb. 722, 127 N.W.2d 458 (1964). 2. Agency subject to act or not A natural resources district is not an agency within the meaning of the Administrative Procedure Act. Lingenfelter v. Lower Elkhorn NRD, 294 Neb. 46, 881 N.W.2d 892 (2016). The Administrative Procedure Act does not apply to state agencies without authority to make rules and regulations affecting private rights, private interests, or procedures available to the public. Hoiengs v. County of Adams, 245 Neb. 877, 516 N.W.2d 223 (1994). The State Board of Equalization and Assessment is a state agency so as to be subject to the Administrative Procedure Act. Pentzien, Inc. v. State, 227 Neb. 434, 418 N.W.2d 546 (1988). The Administrative Procedure Act and its appeal procedures are applicable only to agencies of the state, and not to administrative agencies of municipal government, i.e., the personnel board of the City of Omaha. Hammann v. City of Omaha, 227 Neb. 285, 417 N.W.2d 323 (1987); Harnett v. City of Omaha, 188 Neb. 449, 197 N.W.2d 375 (1972). The State Racing Commission is an administrative agency as defined in subsection (1) of this section. B.T. Energy Corp. v. Marcus, 222 Neb. 207, 382 N.W.2d 616 (1986). The Commission of Industrial Relations is an administrative agency within the purview of the Administrative Procedure Act. Lincoln Co. Sheriff's Emp. Assn. v. Co. of Lincoln, 216 Neb. 274, 343 N.W.2d 735 (1984). Appeals taken under the Administrative Procedure Act may only be taken from agencies of the state. The Omaha Housing Authority is not such an agency. Fisher v. Housing Auth. of City of Omaha, 214 Neb. 499, 334 N.W.2d 636 (1983). Court of Industrial Relations is an agency within provisions of this section. School Dist. of Seward Education Assn. v. School Dist. of Seward, 188 Neb. 772, 199 N.W.2d 752 (1972). This case refers to a district court decision which held that a board of county commissioners is not a state agency under this and related sections. State ex rel. Southeast Rural Fire P. Dist. v. Grossman, 188 Neb. 424, 197 N.W.2d 398 (1972). State Board of Equalization and Assessment subject to this act. County of Gage v. State Board of Equalization & Assessment, 185 Neb. 749, 178 N.W.2d 759 (1970). The Nebraska Liquor Control Commission is an administrative agency as defined in this section. The Flamingo, Inc. v. Nebraska Liquor Control Commission, 185 Neb. 22, 173 N.W.2d 369 (1969). Provisions of this section disclose that act was intended to apply to the State Railway Commission. Yellow Cab Co. v. Nebraska State Railway Commission, 175 Neb. 150, 120 N.W.2d 922 (1963). Because the University of Nebraska College of Law Student-Faculty Honor Committee and the College of Law dean are not authorized by law to make rules and regulations, they are not "agencies," and thus, their decisions are not subject to judicial review under the Administrative Procedure Act. Kerr v. Board of Regents, 15 Neb. App. 907, 739 N.W.2d 224 (2007). 3. Rules A Department of Correctional Services policy that merely summarizes the seven statutes relevant to the release of all inmates and explains the effect of these statutes does not constitute a rule or regulation under this section. Heist v. Nebraska Dept. of Corr. Servs., 312 Neb. 480, 979 N.W.2d 772 (2022). This section provides a definition of only the term "rule" and does not create any affirmative duties for the Public Service Commission to engage in rulemaking when interpreting a federal statute. In re Application No. C-1889, 264 Neb. 167, 647 N.W.2d 45 (2002). Subsection (2) of this section does not limit the definition of "private rights and interests" to those rights and interests that are unrelated to the workplace; if a rule or regulation prescribes a penalty, it is presumed to affect private rights and interests, regardless of whether the rights or interests at stake are those of an agency employee or some other individual. McAllister v. Nebraska Dept. of Corr. Servs., 253 Neb. 910, 573 N.W.2d 143 (1998). To be valid, an administrative rule or regulation must be properly promulgated, approved, and filed. Haven Home, Inc. v. Department of Pub. Welfare, 216 Neb. 731, 346 N.W.2d 225 (1984). This act requires Department of Banking to establish procedural rules providing for notice and hearing. First Fed. Sav. & Loan Assn. v. Department of Banking, 187 Neb. 562, 192 N.W.2d 736 (1971). Failure of State Board of Vocational Education to promulgate rules pursuant to this section immaterial in situation where hearing and notice not required. Chaloupka v. Area Vocational Technical School No. 2, 184 Neb. 196, 165 N.W.2d 719 (1969). Rules of railway commission applied to controversy between railroads and motor carriers. Ready Mix, Inc. v. Nebraska Railroads, 181 Neb. 697, 150 N.W.2d 275 (1967). Liquor Control Commission is an administrative agency required to file rules. Terry Carpenter, Inc. v. Nebraska Liquor Control Commission, 175 Neb. 26, 120 N.W.2d 374 (1963). Administrative agencies are required to adopt regulations which have the force and effect of a statute. Farmers Co-op. Elevator Assn. of Big Springs v. Strand, 382 F.2d 224 (8th Cir. 1967). Rates of carriers are rules which are required to be filed. Mogis v. Lyman-Richey Sand & Gravel Corp., 90 F.Supp. 251 (D. Neb. 1950). 4. Miscellaneous The Nebraska Quality Jobs Board is not an "agency" subject to the Administrative Procedure Act, and an application to the Nebraska Quality Jobs Board is not a "contested case", within the meaning of this section. Wasikowski v. Nebraska Quality Jobs Bd., 264 Neb. 403, 648 N.W.2d 756 (2002). In an action brought under the Administrative Procedure Act, it is the responsibility of the agency to provide the transcript in a timely fashion. The failure to do so subjects the agency to the disciplinary powers of the court. James v. Harvey, 246 Neb. 329, 518 N.W.2d 150 (1994). Neither the Administrative Procedure Act nor the regulations of the Department of Water Resources provide for any time limits on the rights of parties to intervene either as a matter of right or permissively. Nonetheless, the department as an agency of the State of Nebraska must have sufficient latitude in its operation in matters under its jurisdiction to exercise that jurisdiction fairly. Basin Elec. Power Co-op. v. Little Blue N.R.D., 219 Neb. 372, 363 N.W.2d 500 (1985). It does not constitute an improper delegation of authority to permit matters of enforcement, such as the manner and the method, to be left to the reasonable discretion of administrative officers. State v. Sprague, 213 Neb. 581, 330 N.W.2d 739 (1983). Where there is a specific statute for an agency, setting out the method and scope of appeal, it should be applied instead of this act. Duffy v. Physicians Mut. Ins. Co., 191 Neb. 233, 214 N.W.2d 471 (1974). There were practical difficulties which prevented a strict application of Administrative Procedure Act to proceedings before the State Board of Equalization and Assessment. County of Kimball v. State Board of Equalization & Assessment, 180 Neb. 482, 143 N.W.2d 893 (1966); County of Blaine v. State Board of Equalization & Assessment, 180 Neb. 471, 143 N.W.2d 880 (1966). Rate tariffs of telephone companies are excepted from requirements of filing in office of Secretary of State. City of Scottsbluff v. United Telephone Co. of the West, 171 Neb. 229, 106 N.W.2d 12 (1960). Under the Administrative Procedure Act, an appellate court may reverse, vacate, or modify a district court's judgment or final order for errors appearing on the record. Murray v. Neth, 17 Neb. App. 900, 773 N.W.2d 394 (2009).