291 Neb. Admin. Code, ch. 1, § 002

Current through June 17, 2024

Section 291-1-002 - GENERAL RULES OF PRACTICE AND PROCEDURE:

002.01Office Hours: Commission office hours are 8:00 a.m. to 5:00 p.m., Monday through Friday, except for holidays as defined by state statute.

002.02Computation of Time: In computing time prescribed or allowed by these rules and regulations or by any applicable statute in which the method of computing time is not specifically provided, 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 will include the next working day. When the period of time prescribed or allowed is less than five (5) days, intermediate Saturdays, Sundays and holidays will be excluded in the computation.

002.03Copies: Unless otherwise specified, persons filing a pleading, comments or other filings, must furnish to the Commission an original, a paper copy and an electronic copy either via e-mail or other electronic media.

002.04Appearances:

002.04AIndividual: An individual may appear on his or her own behalf before the Commission.

002.04BOn Behalf of Another: An individual may appear on behalf of another person and elicit testimony from witnesses if such individual is admitted to practice law before the Nebraska Supreme Court or is admitted to practice law before the Supreme Court of any other state and has been admitted to practice before the Commission in a proceeding upon a motion by a person admitted to practice before the Nebraska Supreme Court.

002.04COn Behalf of Another by Limited Appearance: An individual who is neither admitted to practice law before the Nebraska Supreme Court nor the Supreme Court of any other state may appear for a governmental subdivision, corporation, association or partnership for the sole purpose of making a statement on behalf of such person, but may not elicit testimony from any other person.

002.05Pleadings:

002.05A All pleadings must be made on white, letter-sized (8½ x 11) paper and must be legibly typewritten, photo statically reproduced, printed or handwritten. If handwritten, a pleading must be written in ink, and must contain the following information:

002.05A1 A caption specifying the title or nature of the pleading;

002.05A2 Material factual allegations;

002.05A3 The action the Commission is being requested to take;

002.05A4 The name, mailing address, telephone number and email address of the petitioner, applicant, or complainant;

002.05A5 Signature of the party filing the pleading, or when represented by an attorney, the signature, address, telephone number and bar number of that attorney; and

002.05A6 The name and address of the respondent, if applicable.

002.05B All pleadings must be filed with the Commission at its official office. Filing may be accomplished by personal delivery or mail and will be received during regular office hours of the Commission.

002.05C Pleadings filed with the Commission will not be withdrawn without approval of the Commission.

002.06Service and Notice:

002.06AManner of Service: Service of any pleading or subpoena may be accomplished through any means permitted by law related to civil cases.

002.06BDate of Service if by First Class Mail: If a document is served via first class mail, the date of service of a document is the date of the mailing plus three (3) days.

002.06CNotice of Application: Notice of the filing of all applications will be given to all interested persons by publishing a summary of the authority or relief sought.

002.06DNotice of Hearing: Notice of a hearing will be mailed to all parties via first class mail, except that notice of a hearing on a complaint will be mailed to the respondent via certified mail or made by personal service.

002.06EOfficial Publication: The legal newspaper is known as The Daily Record and is the official newspaper in which notices will be published by the Commission.

002.06FAddress/Agent for Service: For the purpose of service, each person subject to the Commission's jurisdiction must at all times keep on file with the Executive Director his, her or its business address or, in lieu thereof, notify the Executive Director of an agent (name and address) designated to receive documents and notices. Until the Executive Director is notified to the contrary, the address on file with the Commission's various departments will be deemed to be the address to which documents and notices will be mailed or personally delivered. Proof of service that any person subject to Commission jurisdiction was served, or was attempted to be served, at the address on file with the Commission will be adequate to satisfy any notice requirement imposed by these rules. Any person who does not hold a certificate, permit, or license from the Commission, and yet may be subject to the Commission's jurisdiction, may be served wherever such person is found within the state.

002.06GService of Complaints: The Commission will serve a copy of any formal or departmental complaint on each respondent listed in the complaint personally or by first class or certified mail. Written proof of such service must be filed with the Commission. Each respondent who chooses to file a responsive pleading must do so within 20 days from the date of personal service or the date of Commission mailing of the petition or formal complaint.

002.06H All pleadings subsequent to the initial petition, application, or formal complaint must be served by the party filing such pleading upon all attorneys of record or other representatives of record and upon all unrepresented parties. Service must be made personally or by first class or certified mail. Written proof of such service must be filed with the Commission.

002.07Commencing an Action before the Commission: An action before the Commission is commenced by the filing of a petition, application, or complaint. The Commission, on its own motion, may open investigations or other dockets.

002.08Hearing Officer; Criteria: The Commission may delegate to a Hearing Officer the functions of conducting any prehearing conference, planning conference, and/or hearing and addressing discovery and evidentiary matters and other non-dispositive matters.

002.08A A Commissioner who has served as investigator, prosecutor, or advocate in a contested case or in its prehearing stage may not serve as Hearing Officer or assist or advise a Hearing Officer in the same proceeding without the consent of all parties.

002.08B A Commissioner who has participated in a determination of probable cause or other equivalent preliminary determination in a contested case may serve as Hearing Officer or assist or advise a Hearing Officer in the same proceeding.

002.08C A Commissioner may serve as Hearing Officer at successive stages of the same contested case.

002.09Amendments:

002.09A A petition, application, or complaint may be amended at any time before an intervention, protest, or answer is filed or is due, if notice is given. Otherwise, a petitioner, applicant, or complainant must request permission to amend from the hearing officer by filing a motion.

002.09B A hearing officer may also allow, in his or her discretion, the filing of supplemental pleadings alleging facts material to the case occurring after the original pleadings were filed. A Hearing Officer may also permit amendment of pleadings when a mistake appears or when amendment does not materially change a claim or defense.

002.10Disposition Without Hearing:

002.10A Unless otherwise precluded by law, disposition of any case may be made by stipulation, agreed settlement, consent order, or default and be processed administratively without a hearing.

002.10B Any application, petition, or other initial pleading which is not opposed through a protest or formal intervention within thirty (30) days of the date notice is published may be processed by use of affidavits administratively without a hearing.

002.10C Any petitioner, applicant, or complainant failing to prosecute his or her petition, application, or complaint within ninety (90) days may be subject to an order to show cause as to why the petition, application, or complaint should not be dismissed.

002.11Prohibitions Against Ex Parte Communications:

002.11A The prohibitions found in this section apply beginning at the time a petition is filed. If after thirty (30) days from the date notice of an application or petition is published no interventions or protests are filed, the provisions of section 002.11 prohibiting ex parte communications will no longer apply to the proceeding.

002.11B With respect to any matter of fact or law at issue in a proceeding and notwithstanding any other provision of law, a member, staff, or agent of the Commission will not during the pendency of any proceeding heard before the Commission have any ex parte communication with any party having an interest in the outcome of the proceeding. In any proceeding before the Commission in which the public advocate is a party or is appearing for a party, the public advocate will be considered a party for purposes of the restrictions on ex parte communications.

002.11C Any Commissioner, member of commission staff, or agent of the Commission who is or may reasonably be expected to be involved in the decision-making process of the proceeding who receives or who makes or knowingly causes to be made an ex parte communication must file in the record of the proceeding all such written communications, memoranda stating the substance of all such oral communications, and all written responses and memoranda stating the substance of all oral responses to all the ex parte communications. The filing must be made within two working days of the receipt or making of the ex parte communication. Notice of the filing, with an opportunity to respond, will be given to all parties of record.

002.12Intervention and Protest:

002.12A Persons seeking to formally intervene in any matter before the Commission must comply with the following:

002.12A1 A petition for formal intervention must be filed with the Commission within thirty (30) days of the date of publication of notice of an application, petition, or other initial pleading. A copy of the petition must be served by the petitioner for formal intervention upon all parties to the proceeding;

002.12A2 The petition must state the petitioner's name and address; 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 a formal intervenor under any provision of law; and

002.12A3 The Hearing Officer or designee may grant a petition for formal intervention at any time upon determining that the formal intervention sought is in the interests of justice and will not impair the orderly and prompt conduct of the proceedings.

002.12A4 If a petitioner qualifies for formal intervention, the Hearing Officer or designee may impose conditions upon the formal intervenor's participation in the proceedings, either at the time that formal intervention is granted or at any subsequent time. Those conditions may include:

002.12A4a Limiting the formal intervenor's participation to designated issues in which the formal intervenor has a particular interest demonstrated by the petition;

002.12A4b Limiting the formal intervenor's use of discovery, cross examination, and other procedures so as to promote the orderly and prompt conduct of the proceedings; and

002.12A4c Requiring two or more formal intervenors to combine their presentation of evidence and argument, cross examination, discovery, and other participation in the proceedings.

002.12A5 The Hearing Officer or designee will issue, prior to the establishment of any procedural schedule, an order granting or denying each pending petition for intervention, specifying any conditions and briefly stating the reasons for the order.

002.12A5a The Hearing Officer or designee may modify the order at any time, stating the reasons for the modification.

002.12A5b The Hearing Officer or designee will promptly give notice of an order granting, denying, or modifying intervention to the petitioner for intervention and to all parties.

002.12B Persons seeking to informally intervene in any matter before the Commission must comply with the following:

002.12B1 A petition for informal intervention must state the petitioner's name and address and must give notice of whether the petitioner intends to offer a witness at the hearing. The statement the witness for the petitioner must be served upon all parties to the proceeding not less than five (5) days prior to the hearing.

002.12B2 A petition for informal intervention may be filed with the Commission within thirty (30) days of the date of publication of notice of the application, petition, or other initial pleading, but not less than five (5) days prior to the hearing. A copy of the petition must be served by the petitioner for informal intervention upon all parties to the proceeding.

002.12B3 Leave to intervene informally will be granted only if the petitioner addresses issues reasonably pertinent to the issues already presented and does not unduly broaden the scope of the proceeding.

002.12B4 Participation by an informal intervenor is limited to the presentation of a pre-filed statement of a single witness together with exhibits by such witness, and participation in oral argument and submission of briefs. Informal intervenors are not parties and as such are not entitled to cross examine or otherwise interrogate witnesses in the proceeding presented by any party.

002.12C Persons seeking to protest any matter before the Commission must comply with the following:

002.12C1 A protest against the granting of any application must be filed with the Commission within thirty (30) days from the date of publication of notice of the application. A copy of the protest must be served upon all parties to the proceeding.

002.12C2 A protest against the granting of an application for a certificate authorizing inter-LATA interexchange telecommunications service must be filed with the Commission within ten (10) days from the date of publication of said notice. A copy of the protest should be served upon all adverse parties, or upon their attorneys of record.

002.12C3 A protest to the granting of an application for temporary motor carrier authority, which the Commission is empowered to grant after not less than five (5) days-notice and without hearing, must be filed with the Commission within five (5) days after the date such notice is published.

002.12C4 In certain emergency situations, the Commission has the statutory authority to temporarily alter, amend, or suspend any existing rates in force, or to fix any such rates where none exist by issuing an order which prescribes an emergency rate. A protest to the granting of such emergency rate must be filed within fifteen (15) days after notice of the emergency rate.

002.12C5 A protest must set forth the name and address of the protestant, a statement concerning the interest of the protestant in the application, and a request for the relief sought by the protestant. Additionally, the protest must set forth specifically the grounds upon which it is made and the facts and circumstances relied upon.

002.13Subpoenas:

002.13AWitnesses and Documents: The Commission may compel the attendance of witnesses or production of documents through the issuance of a subpoena upon written request of any party, or on order of the Commission or Hearing Officer.

002.13A1 Requests for subpoenas must be filed with the Commission at least ten (10) days prior to the date the witness is expected to attend or the date the production of documents is expected to occur.

002.13A2 Witness fees must be paid as provided by law in attendance at any district court in this state. The sheriff or constable executing any process of the Commission will receive such compensation as is provided by law for performing similar services. Any such fee must be paid by the party requesting the subpoena.

002.13A3 Any Motion to Quash a subpoena must be filed in writing with the Commission and served on all parties to a proceeding by the movant in compliance with Rule 004.06C. The hearing officer may grant or deny the motion in whole or in part or may schedule oral argument on the motion.

002.13BFailure to Comply with Subpoena:

002.13B1 Any witness failing or refusing to obey any subpoena issued by the Commission, or to produce before the Commission such books, papers, documents or records as have been enumerated and required in any subpoena, or failing or refusing, when before the Commission, to give testimony lawfully required by it, or failing or refusing to answer such questions as may be propounded by it which such witness would be required to answer if in court, the witness is guilty of a misdemeanor, and upon conviction thereof, for each offense, may be fined in any sum not exceeding five thousand dollars ($5,000.00).

002.13B2 The claim that any such testimony may tend to incriminate the witness will not excuse the witness from testifying, but such evidence or testimony may not be used against such person on the trial of any criminal proceeding.

002.14Discovery:

002.14A The use of depositions and discovery in proceedings before the Commission is governed by the rules and regulations of the Nebraska Supreme Court unless otherwise ordered by the Hearing Officer.

002.14B The Hearing Officer or a designee, at the request of any party or upon the Hearing Officer's own motion, may issue subpoenas, discovery orders, and protective orders in accordance with the rules of civil procedure except as may otherwise be prescribed by law. Subpoenas and orders issued under this subsection may be enforced by the district court.

002.14C Any motion to compel discovery, motion to quash, motion for protective order or other discovery-related motion must:

002.14C1 Quote the interrogatory, request, question, or subpoena at issue, or be accompanied by a copy of the interrogatory, request, subpoena or excerpt of a deposition;

002.14C2 State the reasons supporting the motion;

002.14C3 Be accompanied by a statement setting forth the steps or efforts made by the moving party or his or her counsel to resolve by agreement the issues raised and that agreement has not been achieved; and

002.14C4 Be filed with the Commission. The moving party must serve copies of all such motions to all parties to the contested case.

002.14D Other than as provided in subsection 002.14C4 above, discovery materials need not be filed with the Commission.

002.15Commission Decisions and Orders:

002.15A A Commission order entered disposing of a matter pending before the Commission must be written and must recite the following:

002.15A1 A discussion of the facts of a basic or underlying nature;

002.15A2 The ultimate facts; and

002.15A3 The Commission's reasoning or other authority relied upon by the Commission.

002.15B Every decision and order rendered by the Commission after a civil penalty hearing is held pursuant to section 75-156 will be in writing and accompanied by findings of facts and conclusions of law. The decision or order will be sent to the parties by certified or registered mail.

002.15C Parties to the proceeding will be notified of the decision and order in person or by mail. A copy of the decision and order and accompanying findings and conclusions will be delivered or mailed upon request to each party or his or her attorney of record.

002.15D Every order of the Commission becomes effective ten (10) days after the date of the mailing of a copy of the order to the parties of record except:

002.15D1 When the Commission prescribes an alternate effective date;

002.15D2 As otherwise provided with respect to emergency rate orders entered pursuant to section 75121 and rate orders entered pursuant to section 75139;

002.15D3 For cease and desist orders issued pursuant to section 75-133 which will become effective on the date of entry; or

002.15D4 For orders granting temporary approval of a lease of a regulated motor carrier property and certificates or permits sought to be acquired entered pursuant to section 75-319 which will become effective on the date of entry.

002.15E When any application has been denied, in whole or in part, a subsequent application covering substantially the same subject matter will not be considered by the Commission within ninety (90) days from the date of the final denial, in whole or in part, of the previous application, except for good cause shown.

002.16Motions for Reconsideration and Appeals:

002.16A Except with respect to rate orders under the State Natural Gas Regulation Act, any party may file a motion for reconsideration with the Commission within ten (10) days after the effective date of the order.

002.16A1 The filing of a motion for reconsideration will suspend the time for filing a notice of intention to appeal pending resolution of the motion.

002.16A2 If the Commission does not dispose of a motion for reconsideration within sixty (60) days after the filing of the motion, the motion is deemed denied.

002.16B Any party to a general rate proceeding under the State Natural Gas Regulation Act may file a motion for reconsideration within thirty (30) days after the day an order setting natural gas rates is entered by the Commission.

002.16B1 The filing of a motion for reconsideration will stay the order until the earlier of the date the Commission enters an order resolving the motion or one hundred twenty (120) days from the date of the order setting rates.

002.16B2 Either party will have thirty (30) days after the date the Commission enters an order resolving the motion or the expiration of the one hundred twenty {120) day period for considering the motion, whichever is earlier, in which to file an appeal.

002.16C Appeal of a Commission order must be taken in the same manner and time as appeals from the district court, except that the appellate court must conduct a review of the matter de novo on the record. Appeal of a Commission order is perfected by filing a notice of intention to appeal with the Executive Director of the Commission within thirty (30) days after the effective date of the order.

291 Neb. Admin. Code, ch. 1, § 002

Adopted effective 4/21/2019