Administrative bodies have only that authority specifically conferred upon them by statute or by construction necessary to achieve the purpose of the relevant act, and as such, the Department of Revenue is not statutorily authorized to grant motions for summary judgment. Southeast Rur. Vol. Fire Dept. v. Neb. Dept. of Rev., 251 Neb. 852, 560 N.W.2d 436 (1997).

      On objection to application for liquor license, where hearing is required, the matter becomes a contested case under section 84-901(3), and notice to applicant of the issues is necessary. J K & J, Inc. v. Nebraska Liquor Control Commission, 194 Neb. 413, 231 N.W.2d 694 (1975).

      The procedural rules to be applied are those in effect at time of hearing or proceeding, not those in effect when the act or violation is charged to have taken place. Durousseau v. Nebraska State Racing Commission, 194 Neb. 288, 231 N.W.2d 566 (1975).

      Department of Banking required 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).

      In contested case, common carriers are entitled to present argument. Ready Mix, Inc. v. Nebraska Railroads, 181 Neb. 697, 150 N.W.2d 275 (1967).

      In hearing before the Liquor Control Commission where no notice of hearing is required, this section would not be applicable. City of Lincoln v. Nebraska Liquor Control Commission, 181 Neb. 277, 147 N.W.2d 803 (1967).

      Notice of hearing in a contested case is required to state the issues involved. County of Lancaster v. State Board of Equalization & Assessment, 180 Neb. 497, 143 N.W.2d 885 (1966); County of Brown v. State Board of Equalization & Assessment, 180 Neb. 487, 143 N.W.2d 896 (1966); County of Blaine v. State Board of Equalization & Assessment, 180 Neb. 471, 143 N.W.2d 880 (1966).

      In contested case before administrative board, notice and hearing are required. School Dist. No. 8 v. State Board of Education, 176 Neb. 722, 127 N.W.2d 458 (1964).

84-913.01. Hearing officer; prehearing conference; procedure.
   (1) The hearing officer designated to conduct the hearing may determine, subject to the agency's rules and regulations, whether a prehearing conference will be conducted. If the conference is conducted:
   (a) The hearing officer shall promptly notify the agency of the determination that a prehearing conference will be conducted. The agency may assign another hearing officer for the prehearing conference; and
   (b) The hearing officer for the prehearing conference shall set the time and place of the conference and give reasonable written notice to all parties and to all persons who have filed written petitions to intervene in the matter. The agency shall give notice to other persons entitled to notice.
   (2) The notice shall include:
   (a) The names and mailing addresses of all parties and other persons to whom notice is being given by the hearing officer;
   (b) The name, official title, mailing address, and telephone number of any counsel or employee who has been designated to appear for the agency;
   (c) The official file or other reference number, the name of the proceeding, and a general description of the subject matter;
   (d) A statement of the time, place, and nature of the prehearing conference;
   (e) A statement of the legal authority and jurisdiction under which the prehearing conference and the hearing are to be held;
   (f) The name, official title, mailing address, and telephone number of the hearing officer for the prehearing conference; and
   (g) A statement that a party who fails to attend or participate in a prehearing conference, hearing, or other stage of a contested case or who fails to make a good faith effort to comply with a prehearing order may be held in default under the Administrative Procedure Act.
   The notice may include any other matters that the hearing officer considers desirable to expedite the proceedings.
Source:Laws 1994, LB 446, § 29.

84-913.02. Hearing officer; prehearing conference; powers and duties; orders.
   (1) The hearing officer shall conduct the prehearing conference, as may be appropriate, to deal with such matters as exploration of settlement possibilities, preparation of stipulations, clarification of issues, rulings on identity and limitation of the number of witnesses, objections to proffers of evidence, determination of the extent to which direct evidence, rebuttal evidence, or cross-examination will be presented in written form and the extent to which telephone, television, or other electronic means will be used as a substitute for proceedings in person, order of presentation of evidence and cross-examination, rulings regarding issuance of subpoenas, discovery orders, and protective orders, and such other matters as will promote the orderly and prompt conduct of the hearing. The hearing officer shall issue a prehearing order incorporating the matters determined at the prehearing conference.
   (2) If a prehearing conference is not held, a hearing officer for the hearing may issue a prehearing order, based on the pleadings, to regulate the conduct of the proceedings.
Source:Laws 1994, LB 446, § 30.

84-913.03. Hearing officer; prehearing conference and hearing; how conducted.
   The hearing officer may conduct all or part of the prehearing conference and the hearing by telephone, television, or other electronic means if each participant in the conference or hearing has an opportunity to participate in, to hear, and, if technically feasible, to see the entire proceeding while it is taking place. This section does not apply to a prehearing conference or a hearing held under sections 60-498.01 to 60-498.04.
Source:Laws 1994, LB 446, § 31; Laws 2003, LB 209, § 20.

Annotations
      Telephonic hearings under this section are permitted when a formal "rules of evidence" hearing is requested pursuant to section 84-914(1). Kimball v. Nebraska Dept. of Motor Vehicles, 255 Neb. 430, 586 N.W.2d 439 (1998).

      Whether the hearing is conducted by videoconference is permissive and discretionary. Robbins v. Neth, 15 Neb. App. 67, 722 N.W.2d 76 (2006).

84-913.04. Proceedings; limitation on participation.
   (1) A person 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 except as provided in subsection (3) of this section.
   (2) A person who is subject to the authority, direction, or discretion of one 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 except as provided in subsection (3) of this section.
   (3) If all parties consent, a person who has served as, or who is subject to the authority, direction, or discretion of one who has served as, investigator, prosecutor, or advocate in a contested case or in its prehearing stage may assist a hearing officer in the preparation of orders.
   (4) A person 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.
   (5) A person may serve as hearing officer at successive stages of the same contested case.
Source:Laws 1994, LB 446, § 32.

Annotations
      The Legislature specifically barred only prosecutors, investigators, and advocates from participating as hearing officers in administrative hearings. City of Lincoln v. Central Platte NRD, 263 Neb. 141, 638 N.W.2d 839 (2002).

      In this section, the Legislature has barred only prosecutors, investigators, and advocates from participating as hearing officers, or assisting hearing officers, in administrative hearings. Saunders Cty. v. Metropolitan Utilities Dist.-A, 11 Neb. App. 138, 645 N.W.2d 805 (2002).

84-914. Contested cases; evidence; procedure; ex parte communications.
   In contested cases:
   (1) An agency may admit and give probative effect to evidence which possesses probative value commonly accepted by reasonably prudent persons in the conduct of their affairs and exclude incompetent, irrelevant, immaterial, and unduly repetitious evidence. An agency shall give effect to the rules of privilege recognized by law. Any party to a formal hearing before an agency, from which a decision may be appealed to the courts of this state, may request that the agency be bound by the rules of evidence applicable in district court by delivering to the agency at least three days prior to the holding of the hearing a written request therefor. Such request shall include the requesting party's agreement to be liable for the payment of costs incurred thereby and upon any appeal or review thereof, including the cost of court reporting services which the requesting party shall procure for the hearing. All costs of a formal hearing shall be paid by the party or parties against whom a final decision is rendered;
   (2) The hearing officer or a designee, at the request of any party or upon the hearing officer's own motion, may administer oaths and 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;
   (3) All evidence including records and documents in the possession of the agency of which it desires to avail itself shall be offered and made a part of the record in the case. No factual information or evidence other than the record shall be considered in the determination of the case. Documentary evidence may be received in the form of copies or excerpts or incorporated by reference;
   (4) Every party shall have the right of cross-examination of witnesses who testify and shall have the right to submit rebuttal evidence;
   (5) An agency may take official notice of cognizable facts and in addition may take official notice of general, technical, or scientific facts within its specialized knowledge and the rules and regulations adopted and promulgated by such agency. Parties shall be notified either before or during the hearing or by reference in preliminary reports or otherwise of material so noticed. Parties shall be afforded an opportunity to contest facts so noticed. The record shall contain a written record of everything officially noticed. An agency may utilize its experience, technical competence, and specialized knowledge in the evaluation of the evidence presented to it; and
   (6)(a) No party in a contested case or other person outside the agency having an interest in the contested case shall make or knowingly cause to be made an ex parte communication to the hearing officer or to an agency head or employee who is or may reasonably be expected to be involved in the decisionmaking process of the contested case.
   (b) No hearing officer or agency head or employee who is or may reasonably be expected to be involved in the decisionmaking process of the contested case shall make or knowingly cause to be made an ex parte communication to any party in a contested case or other person outside the agency having an interest in the contested case.
   (c) No agency head or employee engaged in the investigation or enforcement of a contested case shall make or knowingly cause to be made an ex parte communication to a hearing officer or agency head or employee who is or may reasonably be expected to be involved in the decisionmaking process of the contested case.
   (d) The hearing officer or agency head or employee who is or may reasonably be expected to be involved in the decisionmaking process of the contested case who receives or who makes or knowingly causes to be made an ex parte communication set forth in subdivisions (6)(a) through (c) of this section shall file in the record of the contested case (i) all such written communications, (ii) memoranda stating the substance of all such oral communications, and (iii) all written responses and memoranda stating the substance of all oral responses to all the ex parte communications. The filing shall 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, shall be given to all parties of record.
   (e) The prohibitions of subdivision (6) of this section shall apply beginning at the time notice for hearing is given. An agency may designate an earlier time, but such earlier time shall be required to be set forth in the agency's rules of procedure.
   (f) The prohibitions contained in subdivisions (6)(a) and (b) of this section shall not apply to ex parte communications to or from an elected official. However, the disclosure requirements contained in subdivision (6)(d) of this section shall apply to ex parte communications to or from an elected official.
Source:Laws 1959, c. 456, § 7, p. 1513; Laws 1967, c. 618, § 3, p. 2072; Laws 1987, LB 253, § 16; Laws 1994, LB 414, § 136; Laws 1994, LB 446, § 35.

Annotations
      1. Rules of evidence
2. Evidentiary and trial procedures
3. Judicial notice
4. Miscellaneous

1. Rules of evidence
      The "rules of evidence applicable in district court" are the Nebraska Evidence Rules codified in Chapter 27 of the Nebraska Revised Statutes. Kimball v. Nebraska Dept. of Motor Vehicles, 255 Neb. 430, 586 N.W.2d 439 (1998).

      The Board of Nursing is not bound by the law of evidence unless a party so requests. Scott v. State ex rel. Board of Nursing, 196 Neb. 681, 244 N.W.2d 683 (1976).

      Prior to hearing before Director of Banking, protestants requested that rules of evidence applicable to the district court be made binding and district court on appeal made findings in accordance with applicable statute and affirmed order of the director. Gateway Bank v. Department of Banking, 192 Neb. 109, 219 N.W.2d 211 (1974).

      The Administrative Procedure Act controls the appeal of prison disciplinary cases, but not the conduct of an initial prison disciplinary hearing. An inmate is not entitled to the application of the rules of evidence at a prison disciplinary committee hearing. Dailey v. Nebraska Dept. of Corr. Servs., 6 Neb. App. 919, 578 N.W.2d 869 (1998).

2. Evidentiary and trial procedures
      Evidentiary and trial procedures herein govern proceeding before Nebraska Power Review Board on application for approval of agreement between public power districts limiting areas in which and customers to whom electrical energy would be furnished at wholesale. City of Lincoln v. Nebraska P.P. Dist., 191 Neb. 556, 216 N.W.2d 722 (1974).

      Section details evidentiary and trial procedures for all administrative agencies. Weiner v. State Real Estate Commission, 184 Neb. 752, 171 N.W.2d 783 (1969).

3. Judicial notice
      In a contested case, all evidence in possession of the agency, of which it desires to avail itself, shall be made a part of the record and applicant is also entitled to notice of any facts which will be judicially noticed by the commission. J K & J, Inc. v. Nebraska Liquor Control Commission, 194 Neb. 413, 231 N.W.2d 694 (1975).

      The Nebraska State Racing Commission could properly take judicial notice that the electrical device in possession of jockey was designed to increase or decrease the speed of a horse. Durousseau v. Nebraska State Racing Commission, 194 Neb. 288, 231 N.W.2d 566 (1975).

4. Miscellaneous
      Pursuant to subsection (5) of this section, a district court, in its de novo review of a disciplinary adjudication by the Department of Health and Human Services, properly took into consideration the expert opinions of the Director of Health and Human Services because the director was not substituting his expert knowledge for evidence in the record of the hearing; rather, the director used his experience and knowledge in evaluating the facts in the record. Pursuant to subsection (5) of this section, notification of parties is required when an agency intends to take notice of facts within its specialized knowledge; however, notification of parties is not required when an agency merely utilizes its expertise in evaluating evidence presented to it. Langvardt v. Horton, 254 Neb. 878, 581 N.W.2d 60 (1998).

      Policy behind this statute is to give full and fair warning of Public Service Commission's intention to take notice of a matter so as to avoid prejudice or surprise. In this case method of taking notice may have been technically improper; nonetheless, taking notice caused no unfair surprise or prejudice to the parties and therefore was permissible. In re Application of ATS Mobile Telephone, 213 Neb. 403, 330 N.W.2d 123 (1983).

      Presumed that Department of Banking offered only records or documents in its possession of which it desired to avail itself, and any not offered were not considered. Douglas County Bank v. Department of Banking, 187 Neb. 545, 192 N.W.2d 401 (1971).

      Study based on information compiled from unsworn statements and involving many judgment decisions wherein basic data used was not available at the time of hearing could not be used to sustain action of State Board of Equalization and Assessment. County of Sarpy v. State Board of Equalization & Assessment, 185 Neb. 760, 178 N.W.2d 765 (1970); County of Sioux v. State Board of Equalization & Assessment, 185 Neb. 741, 178 N.W.2d 754 (1970).

      An agency is required to make an official record containing all the factual information or evidence required to be determined after an agency hearing. County of Lancaster v. State Board of Equalization & Assessment, 180 Neb. 497, 143 N.W.2d 885 (1966); County of Brown v. State Board of Equalization & Assessment, 180 Neb. 487, 143 N.W.2d 896 (1966); County of Blaine v. State Board of Equalization & Assessment, 180 Neb. 471, 143 N.W.2d 880 (1966).

      Ex parte communications that the director of the Department of Motor Vehicles had with police officers who were potential witnesses at a motorist's administrative license revocation hearing did not violate the motorist's due process rights; neither officer was a party in the license revocation proceeding nor a person outside the Department of Motor Vehicles having an interest in the motorist's case. Walz v. Neth, 17 Neb. App. 891, 773 N.W.2d 387 (2009).

84-915. Contested cases; orders; findings of fact; conclusions of law; notification.
   Every decision and order adverse to a party to the proceeding, rendered by an agency in a contested case, shall be in writing or stated in the record and shall be accompanied by findings of fact and conclusions of law. The findings of fact shall consist of a concise statement of the conclusions upon each contested issue of fact. Parties to the proceeding shall be notified of the decision and order in person or by mail. A copy of the decision and order and accompanying findings and conclusions shall be delivered or mailed upon request to each party or his or her attorney of record.
Source:Laws 1959, c. 456, § 8, p. 1513; Laws 1987, LB 253, § 17.

Annotations
      1. Sufficiency
2. Miscellaneous

1. Sufficiency
      In order to provide a clear basis for an order granting or denying an instream flow application, the Director of Water Resources is required to discuss each of the elements listed in section 46-2,115. However, the director is not required to include, as part of his public interest analysis, to discuss forgone uses. An order which does no more than state its ultimate conclusion -- "application granted" or "application denied" -- clearly fails to provide a sufficient basis for the order. An order which fails to make findings on each required element also fails to provide a sufficient basis for the order. Central Platte NRD v. State of Wyoming, 245 Neb. 439, 513 N.W.2d 847 (1994).

      Conclusions of law found sufficient when considered with findings of fact. Douglas County Bank v. Department of Banking, 187 Neb. 545, 192 N.W.2d 401 (1971).

      Findings of fact in order entered by Director of Motor Vehicles are sufficient if they consist of a concise statement of the conclusions upon each contested issue of fact. Doran v. Johns, 186 Neb. 321, 182 N.W.2d 900 (1971).

      Findings of fact must show validity of order; failure to make findings of fact and conclusions of law in implied consent proceeding caused order to be set aside on appeal. Prigge v. Johns, 184 Neb. 103, 165 N.W.2d 559 (1969).

      Every decision under this act must be in writing, and shall make findings of fact and conclusions of law. County of Lancaster v. State Board of Equalization & Assessment, 180 Neb. 497, 143 N.W.2d 885 (1966); County of Brown v. State Board of Equalization & Assessment, 180 Neb. 487, 143 N.W.2d 896 (1966); County of Blaine v. State Board of Equalization & Assessment, 180 Neb. 471, 143 N.W.2d 880 (1966).

      State Railway Commission is required in a final order to make findings of fact and conclusions of law. Yellow Cab Co. v. Nebraska State Railway Commission, 176 Neb. 711, 127 N.W.2d 211 (1964).

      Under this section, the State Railway Commission is required to make findings of fact and conclusions of law in cases before it. Yellow Cab Co. v. Nebraska State Railway Commission, 175 Neb. 150, 120 N.W.2d 922 (1963).

      Findings made by State Railway Commission were sufficient to comply with this section. Young v. Morgan Drive Away, Inc., 171 Neb. 784, 107 N.W.2d 752 (1961).

2. Miscellaneous
      Chapter 84, article 9, applies to agencies of state government, not to city zoning board of adjustment. South Maple Street Assn. v. Board of Adjustment, 194 Neb. 118, 230 N.W.2d 471 (1975).

      State Railway Commission may correct findings to comply with this section without giving notice of hearing. Petroleum Transp. Co. v. All Class I Rail Carriers, 173 Neb. 564, 114 N.W.2d 34 (1962).

      On appeal from order of State Railway Commission, time commenced to run from date of mailing of notice of order. Denver Chicago Transp. Co., Inc. v. Poulson, 172 Neb. 862, 112 N.W.2d 410 (1961).

      Order of railway commission that fails to make findings of ultimate facts is irregular and will be set aside upon appeal. Basin Truck Co. v. All Class I Rail Carriers, 172 Neb. 28, 108 N.W.2d 388 (1961).

84-915.01. Official record of contested cases; agency maintain; contents; use.
   (1) An agency shall maintain an official record of each contested case under the Administrative Procedure Act for at least four years following the date of the final order.
   (2) The agency record shall consist only of:
   (a) Notices of all proceedings;
   (b) Any pleadings, motions, requests, preliminary or intermediate rulings and orders, and similar correspondence to or from the agency pertaining to the contested case;
   (c) The record of the hearing before the agency, including all exhibits and evidence introduced during such hearing, a statement of matters officially noticed by the agency during the proceeding, and all proffers of proof and objections and rulings thereon; and
   (d) The final order.
   (3) Except as otherwise provided by law, the physical custody of the agency record shall be maintained by the agency. The agency shall permit the parties to inspect the agency record and obtain copies of the agency record.
   (4) Except as otherwise provided by law, the agency record shall constitute the exclusive basis for agency action in contested cases under the act and for judicial review thereof.
Source:Laws 1994, LB 446, § 36; Laws 2006, LB 1115, § 41.

84-916. Act; intent.
   The Administrative Procedure Act is intended to constitute an independent act establishing minimum administrative procedure for all agencies.
Source:Laws 1959, c. 456, § 10, p. 1514; Laws 1987, LB 253, § 18.

Annotations
      The purpose of this act is to establish a minimum administrative procedure. County of Lancaster v. State Board of Equalization & Assessment, 180 Neb. 497, 143 N.W.2d 885 (1966); County of Brown v. State Board of Equalization & Assessment, 180 Neb. 487, 143 N.W.2d 896 (1966); County of Blaine v. State Board of Equalization & Assessment, 180 Neb. 471, 143 N.W.2d 880 (1966).

84-917. Contested case; appeal; right to cross-appeal; procedure.
   (1) Any person aggrieved by a final decision in a contested case, whether such decision is affirmative or negative in form, shall be entitled to judicial review under the Administrative Procedure Act. Nothing in this section shall be deemed to prevent resort to other means of review, redress, or relief provided by law.
   (2)(a)(i) Proceedings for review shall be instituted by filing a petition in the district court of the county where the action is taken within thirty days after the service of the final decision by the agency. All parties of record shall be made parties to the proceedings for review. If an agency's only role in a contested case is to act as a neutral factfinding body, the agency shall not be a party of record. In all other cases, the agency shall be a party of record. Summons shall be served within thirty days of the filing of the petition in the manner provided for service of a summons in section 25-510.02. If the agency whose decision is appealed from is not a party of record, the petitioner shall serve a copy of the petition and a request for preparation of the official record upon the agency within thirty days of the filing of the petition. The court, in its discretion, may permit other interested persons to intervene.
   (ii) The filing of a petition for review shall vest in a responding party of record the right to a cross-appeal against any other party of record. A respondent shall serve its cross-appeal within thirty days after being served with the summons and petition for review.
   (b) A petition for review shall set forth: (i) The name and mailing address of the petitioner; (ii) the name and mailing address of the agency whose action is at issue; (iii) identification of the final decision at issue together with a duplicate copy of the final decision; (iv) identification of the parties in the contested case that led to the final decision; (v) facts to demonstrate proper venue; (vi) the petitioner's reasons for believing that relief should be granted; and (vii) a request for relief, specifying the type and extent of the relief requested.
   (3) The filing of the petition or the service of summons upon such agency shall not stay enforcement of a decision. The agency may order a stay. The court may order a stay after notice of the application therefor to such agency and to all parties of record. If the agency has found that its action on an application for stay or other temporary remedies is justified to protect against a substantial threat to the public health, safety, or welfare, the court may not grant relief unless the court finds that: (a) The applicant is likely to prevail when the court finally disposes of the matter; (b) without relief, the applicant will suffer irreparable injuries; (c) the grant of relief to the applicant will not substantially harm other parties to the proceedings; and (d) the threat to the public health, safety, or welfare relied on by the agency is not sufficiently serious to justify the agency's action in the circumstances. The court may require the party requesting such stay to give bond in such amount and conditioned as the court may direct.
   (4) Within thirty days after service of the petition or within such further time as the court for good cause shown may allow, the agency shall prepare and transmit to the court a certified copy of the official record of the proceedings had before the agency. Such official record shall include: (a) Notice of all proceedings; (b) any pleadings, motions, requests, preliminary or intermediate rulings and orders, and similar correspondence to or from the agency pertaining to the contested case; (c) the transcribed record of the hearing before the agency, including all exhibits and evidence introduced during such hearing, a statement of matters officially noticed by the agency during the proceeding, and all proffers of proof and objections and rulings thereon; and (d) the final order appealed from. The agency 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 in all cases except when the petitioner is not required to pay a filing fee. The agency may require payment or bond prior to the transmittal of the record.
   (5)(a) When the petition instituting proceedings for review was filed in the district court before July 1, 1989, the review shall be conducted by the court without a jury on the record of the agency, and review may not be obtained of any issue that was not raised before the agency unless such issue involves one of the grounds for reversal or modification enumerated in subdivision (6)(a) of this section. When the petition instituting proceedings for review is filed in the district court on or after July 1, 1989, the review shall be conducted by the court without a jury de novo on the record of the agency.
   (b)(i) If the court determines that the interest of justice would be served by the resolution of any other issue not raised before the agency, the court may remand the case to the agency for further proceedings.
   (ii) The agency shall affirm, modify, or reverse its findings and decision in the case by reason of the additional proceedings and shall file the decision following remand with the reviewing court. The agency shall serve a copy of the decision following remand upon all parties to the district court proceedings. The agency decision following remand shall become final unless a petition for further review is filed with the reviewing court within thirty days after the decision following remand being filed with the district court. The party filing the petition for further review shall serve a copy of the petition for further review upon all parties to the district court proceeding in accordance with the rules of pleading in civil actions promulgated by the Supreme Court pursuant to section 25-801.01 within thirty days after the petition for further review is filed. Within thirty days after service of the petition for further review or within such further time as the court for good cause shown may allow, the agency shall prepare and transmit to the court a certified copy of the official record of the additional proceedings had before the agency following remand.
   (6)(a) When the petition instituting proceedings for review was filed in the district court before July 1, 1989, the court may affirm the decision of the agency or remand the case for further proceedings, or it may reverse or modify the decision if the substantial rights of the petitioner may have been prejudiced because the agency decision is:
   (i) In violation of constitutional provisions;
   (ii) In excess of the statutory authority or jurisdiction of the agency;
   (iii) Made upon unlawful procedure;
   (iv) Affected by other error of law;
   (v) Unsupported by competent, material, and substantial evidence in view of the entire record as made on review; or
   (vi) Arbitrary or capricious.
   (b) When the petition instituting proceedings for review is filed in the district court on or after July 1, 1989, the court may affirm, reverse, or modify the decision of the agency or remand the case for further proceedings.
   (7) The review provided by this section shall not be available in any case where other provisions of law prescribe the method of appeal.
Source:Laws 1963, c. 531, § 1, p. 1664; Laws 1969, c. 838, § 2, p. 3162; Laws 1983, LB 447, § 102; Laws 1987, LB 253, § 19; Laws 1988, LB 352, § 186; Laws 1989, LB 213, § 1; Laws 1997, LB 165, § 5; Laws 2006, LB 1115, § 42; Laws 2008, LB1014, § 69; Laws 2009, LB35, § 32.

Annotations
      1. Applicability of section
      2. Review by court
      3. Miscellaneous

1. Applicability of section
      An inmate's petition for the reclassification of custody level from medium custody to minimum custody did not involve a "contested case" and was thus not subject to judicial review under the Administrative Procedure Act. Purdie v. Nebraska Dept. of Corr. Servs., 292 Neb. 524, 872 N.W.2d 895 (2016).

      Sections 84-917 to 84-919 govern appeals from rulings of the State Racing Commission. B.T. Energy Corp. v. Marcus, 222 Neb. 207, 382 N.W.2d 616 (1986).

      This section covers appeal to district court by the children of a crime victim from a denial of their application to the Nebraska Crime Victim's Reparations Board. Lambert v. Nebraska Cr. Vict. Rep. Bd., 214 Neb. 817, 336 N.W.2d 320 (1983).

      Review of orders of the Department of Public Welfare is governed by the criteria of this section. Gosney v. Department of Public Welfare, 206 Neb. 137, 291 N.W.2d 708 (1980).

      The State Board of Education hearing appeals under section 79-1103.05 acts in a quasi-judicial capacity and, therefore either party may appeal its decision under this section or under section 25-1901. Richardson v. Board of Education, 206 Neb. 18, 290 N.W.2d 803 (1980).

      Section 71-1,132.34 provides a specific method of appeal to the district court for the Board of Nursing and whether this section affords an alternative method is not decided. Scott v. State ex rel. Board of Nursing, 196 Neb. 681, 244 N.W.2d 683 (1976).

      This section governs appeal by licensee from order of suspension by the Nebraska Liquor Control Commission. Happy Hour, Inc. v. Nebraska Liquor Control Commission, 186 Neb. 533, 184 N.W.2d 630 (1971).

      This section governs proper venue of an appeal from a license suspension ordered by the Nebraska Liquor Control Commission. The Flamingo, Inc. v. Nebraska Liquor Control Commission, 185 Neb. 22, 173 N.W.2d 369 (1969).

      Judgments rendered by an administrative agency acting in a quasi-judicial capacity are not subject to collateral attack in a separate action in county court challenging the validity of the underlying claim, but must be properly appealed pursuant to this section. In re Guardianship of Gaube, 14 Neb. App. 259, 707 N.W.2d 16 (2005).

2. Review by court
      An issue that has not been presented in a petition for judicial review has not been properly preserved for consideration by the district court. Skaggs v. Nebraska State Patrol, 282 Neb. 154, 804 N.W.2d 611 (2011).

      Subsection (5)(b)(i) of this section permits the district court to review only matters which were not properly raised in the proceedings before an administrative agency. Skaggs v. Nebraska State Patrol, 282 Neb. 154, 804 N.W.2d 611 (2011).

      In accordance with subsection (5)(a) of this section, when reviewing a final decision of an administrative agency in a contested case under the Administrative Procedure Act, a court may not take judicial notice of an adjudicative fact that was not presented to the agency, because the taking of such evidence would impermissibly expand the court's statutory scope of review de novo on the record of the agency. Betterman v. Department of Motor Vehicles, 273 Neb. 178, 728 N.W.2d 570 (2007).

      Under subsection (6)(b) of this section, a district court has discretion concerning the disposition of an appeal from an administrative agency. Nebraska Liq. Distrib. v. Nebraska Liq. Cont. Comm., 272 Neb. 390, 722 N.W.2d 10 (2006).

      It constitutes plain error for a district court to conduct a review under subsection (6)(a) of this section where the proceedings for review of an administrative hearing are initiated after July 1, 1989. Zwygart v. State, 270 Neb. 41, 699 N.W.2d 362 (2005).

      An application to the Nebraska Quality Jobs Board is not a "contested case" requiring review pursuant to this section. Wasikowski v. Nebraska Quality Jobs Bd., 264 Neb. 403, 648 N.W.2d 756 (2002).

      Pursuant to subsection (5)(a) of this section, the standard of review that courts without a jury must apply to clearly contested cases that are quasi-judicial in nature filed on or after July 1, 1989, is de novo on the record of the agency. Langvardt v. Horton, 254 Neb. 878, 581 N.W.2d 60 (1998).

      Subsection (3) of this section provides that upon the filing of a petition for review, an agency may order a stay or the court may order a stay. Such stay may only be granted, however, when the court finds that (1) the applicant is likely to prevail when the court finally disposes of the matter, (2) without relief, the appellant will suffer irreparable injuries, (3) the grant of relief to the applicant will not substantially harm other parties to the proceedings, and (4) the threat to the public health, safety, or welfare relied upon by the agency is not sufficiently serious to justify the agency's action in the circumstances. Under subsection (5)(a) of this section, when a petition instituting proceedings for review under the Administrative Procedure Act is filed in the district court on or after July 1, 1989, the review shall be conducted by the court without a jury de novo on the record of the agency. Miller v. Horton, 253 Neb. 1009, 574 N.W.2d 112 (1998).

      Pursuant to subsection (5) of this section, the district court's review of a decision of the Department of Insurance is de novo on the record. Norwest Corp. v. State, Dept. of Insurance, 253 Neb. 574, 571 N.W.2d 628 (1997).

      Pursuant to subsection (5)(a) of this section, in reviewing a final decision of an administrative agency in a contested case under the Administrative Procedure Act, a court may not take judicial notice of an adjudicative fact which was not presented to the agency because the taking of such evidence would impermissibly expand the court's statutory scope of review "de novo on the record of the agency". Wolgamott v. Abramson, 253 Neb. 350, 570 N.W.2d 818 (1997).

      On an appeal from an adverse decision of an administrative agency, subsection (2)(a) of this section requires that a summons be served within 30 days of the filing of a petition for review as a prerequisite to the exercise by the district court of its subject matter jurisdiction. Concordia Teachers College v. Neb. Dept. of Labor, 252 Neb. 504, 563 N.W.2d 345 (1997).

      Under subsection (2)(a) of this section, if the agency whose decision is appealed from is not a party of record, it is a jurisdictional prerequisite that the petitioner serve a copy of the petition and a request for preparation of the official record upon the agency within 30 days of the filing of the petition. Payne v. Nebraska Dept. of Corr. Servs., 249 Neb. 150, 542 N.W.2d 694 (1996).

      Pursuant to this section, a district court is required to conduct a true de novo review of agency determinations on the record of the agency. Slack Nsg. Home v. Department of Soc. Servs., 247 Neb. 452, 528 N.W.2d 285 (1995).

      Where the proceedings for review of an administrative hearing are initiated in the district court after July 1, 1989, the review will be conducted by the district court "without a jury de novo on the record of the agency" as required by this section. Styskal v. Wright, 246 Neb. 513, 519 N.W.2d 543 (1994).

      Under subsection (5)(a) of this section, an appeal to the district court of a decision by the State Personnel Board is reviewed on the record of the agency if the petition was filed in district court before July 1, 1989. Nebraska Dept. of Correctional Servs. v. Hansen, 238 Neb. 233, 470 N.W.2d 170 (1991).

      In an appeal from an administrative agency taken under this section of the Administrative Procedure Act, the district court's review is limited to determining whether the agency's action is (1) in violation of constitutional provisions, (2) in excess of the statutory authority or jurisdiction of the agency, (3) made upon unlawful procedure, (4) affected by other errors of law, (5) unsupported by competent, material, and substantial evidence in view of the entire record as made on review, or (6) arbitrary or capricious; however, the Nebraska Supreme Court reviews the district court's decision de novo on the record made before the agency. Meier v. State, 227 Neb. 376, 417 N.W.2d 771 (1988).

      Although the Supreme Court reviews an agency's decision under the Administrative Procedure Act de novo on the record, a district court's standard of review is prescribed by subsection (6) of this section. Haeffner v. State, 220 Neb. 560, 371 N.W.2d 658 (1985).

      Under this section, where a judicial review is made of the decision of an administrative agency, the reviewing court is authorized to consider the validity of the agency's criterion in order to assess whether the decision was within the statutory authority or jurisdiction of the agency. Beatrice Manor v. Department of Health, 219 Neb. 141, 362 N.W.2d 45 (1985).

      Review under sections 84-917 to 84-919 by the Supreme Court is limited to a review of the record created before the administrative agency in question. Adams Central School Dist. v. Deist, 214 Neb. 307, 334 N.W.2d 775 (1983).

      The district court review of order of State Personnel Board is limited to record of agency. Therefore, objections to appellant's requests in district court for discovery were properly sustained. Devine v. Dept. of Public Institutions, 211 Neb. 113, 317 N.W.2d 783 (1982).

      In appeal from the Liquor Control Commission, the Supreme Court determines only whether findings of the commission are supported by substantial evidence and whether district court applied the proper statutory criteria. The 20's, Inc. v. Nebraska Liquor Control Commission, 190 Neb. 761, 212 N.W.2d 344 (1973).

      The power of courts to review the action of a professional board of examiners in its refusal to recommend reinstatement of a revoked license is not decided, but if such power exists, it is limited to a determination based on whether or not the board's action was arbitrary or capricious. Coil v. Department of Health, 189 Neb. 606, 204 N.W.2d 167 (1973).

      Review under the Administrative Procedure Act is on the record of the agency only. Harnett v. City of Omaha, 188 Neb. 449, 197 N.W.2d 375 (1972).

      An assignment of error concerning a witness's testimony and evidence was not considered on appeal, because the complaining party did not raise or discuss the issue in its petition for review filed with the district court. Nebraska Pub. Advocate v. Nebraska Pub. Serv. Comm., 19 Neb. App. 596, 815 N.W.2d 192 (2012).

      The district court lacked subject matter jurisdiction because the petitioner failed to timely include as a party defendant the Department of Correctional Services, a necessary party under the Administrative Procedure Act. Tlamka v. Parry, 16 Neb. App. 793, 751 N.W.2d 664 (2008).

      In a true de novo review, the district court's decision is to be made independently of the agency's prior disposition and the district court is not required to give deference to the findings of fact and the decision of the agency hearing officer. DeBoer v. Nebraska Dept. of Motor Vehicles, 16 Neb. App. 760, 751 N.W.2d 651 (2008).

      In an appeal under subsection (5)(a) of this section, the district court conducts a de novo review of the record of the agency. Clark v. Tyrrell, 16 Neb. App. 692, 750 N.W.2d 364 (2008).

      If petition for review filed pursuant to this section is not timely, district court does not have jurisdiction to consider merits and can properly dismiss petition. Roubal v. State, 14 Neb. App. 554, 710 N.W.2d 359 (2006).

      A district court conducting a review under subsection (5)(a) of this section cannot base a reversal of the agency decision under review on grounds not raised in the petition for review. Moore v. Nebraska Dept. of Corr. Servs. Appeals Bd., 8 Neb. App. 69, 589 N.W.2d 861 (1999).

      The filing of the petition and the service of summons pursuant to this section are the two actions necessary to establish the jurisdiction of the district court to review the final decision of an administrative agency. McLaughlin v. Jefferson Cty. Bd. of Equal., 5 Neb. App. 781, 567 N.W.2d 794 (1997).

      Pursuant to subsection (2)(a) of this section, timely service of a request for the preparation of the official record upon the agency is mandatory to confer jurisdiction on the district court. Payne v. Nebraska Dept. of Corr. Servs., 3 Neb. App. 969, 536 N.W.2d 656 (1995).

      In order to perfect an appeal under the Administrative Procedure Act, the party instituting the proceedings for review must file a petition in the district court for the county where the action is taken within 30 days after the service of the final decision by the agency, and cause summons to be served within 30 days of the filing of the petition. Northern States Beef v. Stennis, 2 Neb. App. 340, 509 N.W.2d 656 (1993).

3. Miscellaneous
      A party is "aggrieved" within the meaning of subsection (1) of this section if it has standing to invoke a court's jurisdiction -- that is, if it has a legal or equitable right, title, or interest in the subject matter of the controversy. Central Neb. Pub. Power Dist. v. North Platte NRD, 280 Neb. 533, 788 N.W.2d 252 (2010).

      Any aggrieved party seeking judicial review of an administrative decision under the Administrative Procedure Act must file a petition within 30 days after service of that decision, pursuant to this section. The Administrative Procedure Act makes no mention of an extended or different deadline for filing a cross-petition in the district court. Ahmann v. Correctional Ctr. Lincoln, 276 Neb. 590, 755 N.W.2d 608 (2008).

      Where the Public Service Commission has the authority to set conditions on certifications, resolve disputes, investigate complaints, issue orders, and enforce orders, it is not a neutral factfinding body. In re Application of Metropolitan Util. Dist., 270 Neb. 494, 704 N.W.2d 237 (2005).

      Neither section 60-6,208 (transferred to section 60-498.04) nor subsection (2)(a) of this section provides that its jurisdictional provisions are exclusive. Reiter v. Wimes, 263 Neb. 277, 640 N.W.2d 19 (2002).

      Subsection (5)(a) of this section does not violate the separation of powers doctrine, and Scott v. State ex rel. Board of Nursing, 196 Neb. 681, 244 N.W.2d 683 (1976), is overruled insofar as it implies that this statute violates the separation of powers doctrine. Langvardt v. Horton, 254 Neb. 878, 581 N.W.2d 60 (1998).

      For a district court to have jurisdiction over an administrative agency's decision, that decision must be final. Big John's Billiards, Inc. v. Balka, 254 Neb. 528, 577 N.W.2d 294 (1998).

      Subsection (5)(b) of this section does not empower a district court to retain jurisdiction over an action remanded by the court to an administrative agency for a new hearing. Concordia Teachers College v. Neb. Dept. of Labor, 252 Neb. 504, 563 N.W.2d 345 (1997).

      The phrase "county where the action is taken" in subsection (2)(a) of this section refers to the site of the first adjudicated hearing of a disputed claim. Essman v. Nebraska Law Enforcement Training Ctr., 252 Neb. 347, 562 N.W.2d 355 (1997).

      The phrase "action taken," as used in subsection (2) of this section, is defined by the site of the first adjudicated hearing of a disputed claim. Metro Renovation v. State, 249 Neb. 337, 543 N.W.2d 715 (1996).

      The filing of the petition and the service of summons are the two actions that are necessary to establish jurisdiction pursuant to the Administrative Procedure Act. The filing of the transcript is not jurisdictional. James v. Harvey, 246 Neb. 329, 518 N.W.2d 150 (1994).

      This section makes no provision for reconsideration of the State Racing Commission's final decision so as to toll the thirty-day appeal time within which appellants had the opportunity to avail themselves of a judicial challenge of the commission's decision. B.T. Energy Corp. v. Marcus, 222 Neb. 207, 382 N.W.2d 616 (1986).

      The Tax Commissioner is not a person aggrieved and therefore does not have the right to appeal a decision of the State Board of Equalization and Assessment. Karnes v. Wilkinson Mfg., 220 Neb. 150, 368 N.W.2d 788 (1985).

      Filing of a transcript, which is the duty of the state agency, is not jurisdictional for appeal under this section, and the appellant is not entitled to reversal of the agency decision merely because of the agency's failure to timely file a proper transcript, and the district court may order a supplemental transcript. Where appeals are taken under this section, the certified transcript as prepared by the administrative agency and transmitted to the court is considered to be before the court and need not be formally offered into evidence by either party. Maurer v. Weaver, 213 Neb. 157, 328 N.W.2d 747 (1982).

      An appeal from an order of the director of the Department of Motor Vehicles is commenced or perfected by filing a petition within thirty days of the service of the final decision of the director and causing a summons to issue on the petition and be served within six months of such filing. Making an administrative agency a party defendant in an appeal under the provisions of § 60-420 or subsection (2) of this section is not an action against the state within the meaning of § 24-319 et seq. so as to require service of summons on the Governor and Attorney General. Leach v. Dept. of Motor Vehicles, 213 Neb. 103, 327 N.W.2d 615 (1982).

      On appeal from State Board of Education order that county board make tuition payments for Nebraska school children attending school in South Dakota, the district court having proper jurisdiction is the one in which the state board took the action in question; that court being Lancaster County District Court. Bd. of Ed. of Keya Paha County v. State Board of Education, 212 Neb. 448, 323 N.W.2d 89 (1982).

      If, after a district court review, an administrative agency's decision which had fallen into legal error is remanded to the agency, new evidence can be received by the agency if it is necessary, in the agency's judgment, to discharge its duty. Phelps County Savings Co. v. Dept. of Banking & Finance, 211 Neb. 683, 320 N.W.2d 99 (1982).

      This section, in 1978, did not provide a right of appeal from a declaratory ruling of an administrative agency issued pursuant to section 84-912, R.R.S.1943. But see 1979 amendment to section 84-912, which provides such appeal. Gretna Public School v. State Board of Education, 201 Neb. 769, 272 N.W.2d 268 (1978).

      Orders of the Department of Public Welfare made pursuant to section 68-1016, may be reviewed by petition in error as well as by appeal. Downer v. Ihms, 192 Neb. 594, 223 N.W.2d 148 (1974).

      Prior to hearing before Director of Banking, protestants requested that rules of evidence applicable to the district court be made binding and district court on appeal made findings in accordance with applicable statute and affirmed order of the director. Gateway Bank v. Department of Banking, 192 Neb. 109, 219 N.W.2d 211 (1974).

      Where errors assigned require review of evidence they cannot be considered on either appeal or error proceedings in absence of a bill of exceptions. Lanc v. Douglas County Welfare Administration, 189 Neb. 651, 204 N.W.2d 387 (1973).

      For district court to obtain jurisdiction under this section, petition must be filed and summonses must be issued during the appeal period. Norris P.P. Dist. v. State ex rel. Jones, 183 Neb. 489, 161 N.W.2d 869 (1968).

      The Department of Banking and Finance is statutorily authorized to require payment for the costs of preparing the official record from the party seeking review of its decision prior to transmitting the record. JHK, Inc. v. Nebraska Dept. of Banking & Finance, 17 Neb. App. 186, 757 N.W.2d 515 (2008).

      Pursuant to subsection (2)(a) of this section, the phrase "county where the action is taken" is the site of the first adjudicated hearing of a disputed claim. Yelli v. Neth, 16 Neb. App. 639, 747 N.W.2d 459 (2008).

      The rebuttable presumption of validity regarding actions of administrative agencies which results in the burden of proof resting on the party challenging the agency's actions does not apply in cases involving the termination of the employment of a public employee. Trackwell v. Nebraska Dept. of Admin. Servs., 8 Neb. App. 233, 591 N.W.2d 95 (1999).

84-918. District court decision; appeal.
   (1) An aggrieved party may secure a review of any judgment rendered or final order made by the district court under the Administrative Procedure Act by appeal to the Court of Appeals.
   (2) When the petition instituting proceedings for review was filed in the district court before July 1, 1989, the appeal shall be taken in the manner provided by law for appeals in civil cases and shall be heard de novo on the record.
   (3) When the petition instituting proceedings for review is filed in the district court on or after July 1, 1989, the appeal shall be taken in the manner provided by law for appeals in civil cases. The judgment rendered or final order made by the district court may be reversed, vacated, or modified for errors appearing on the record.
Source:Laws 1963, c. 531, § 2, p. 1665; Laws 1987, LB 253, § 20; Laws 1989, LB 213, § 2; Laws 1991, LB 732, § 158.

Annotations
      1. Appeal from district court
      2. Appeal from administrative agency
      3. Miscellaneous

1. Appeal from district court
      A judgment or final order rendered by a district court in a judicial review under the Administrative Procedure Act may be reversed, vacated, or modified by an appellate court for errors appearing on the record. When reviewing such an order, the inquiry is whether the decision conforms to the law, is supported by competent evidence, and is neither arbitrary, capricious, nor unreasonable. Parker v. State ex rel. Bruning, 276 Neb. 359, 753 N.W.2d 843 (2008).

      On an appeal under the Administrative Procedure Act, an appellate court reviews the judgment of the district court for errors appearing on the record and will not substitute its factual findings for those of the district court where competent evidence supports those findings. When reviewing an order of a district court under the Administrative Procedure Act for errors appearing on the record, the inquiry is whether the decision conforms to the law, is supported by competent evidence, and is neither arbitrary, capricious, nor unreasonable. Inner Harbour Hospitals v. State, 251 Neb. 793, 559 N.W.2d 487 (1997).

      Appeals from a district court decision involving petitions filed on or after July 1, 1989, are reviewed for errors appearing on the record. Slack Nsg. Home v. Department of Soc. Servs., 247 Neb. 452, 528 N.W.2d 285 (1995).

      Under subsection (2) of this section, the standard of review on appeal from a declaratory judgment action filed under the Administrative Procedure Act in the district court prior to July 1, 1989, is de novo on the record. Loewenstein v. State, 244 Neb. 82, 504 N.W.2d 800 (1993).

      An appellate court, in reviewing a judgment of the district court for errors appearing on the record, will not substitute its factual findings for those of the district court where competent evidence supports those findings. Davis v. Wright, 243 Neb. 931, 503 N.W.2d 814 (1993).

      Appeals from the district court under the Administrative Procedure Act to the Supreme Court are reviewed de novo on the record if the district court proceeding was commenced prior to July 1, 1989. Caudill v. Surgical Concepts, Inc., 236 Neb. 266, 460 N.W.2d 662 (1990).

      Supreme Court reviews de novo on the record an appeal from the district court's review of a decision of the Nebraska Equal Opportunity Commission. Father Flanagan's Boys' Home v. Goerke, 224 Neb. 731, 401 N.W.2d 461 (1987).

      On appeal of review by the district court of an order of the Nebraska Equal Opportunity Commission, the Supreme Court will not disturb the district court's findings if they are supported by substantial evidence. Zalkins Peerless Co. v. Nebraska Equal Opp. Comm., 217 Neb. 289, 348 N.W.2d 846 (1984).

      Where district court had only cold record before it, the rule pertaining to Supreme Court's consideration of the opportunity of the trial court in equity to observe the witnesses is inapplicable. C & L Co. v. Nebraska Liquor Control Commission, 190 Neb. 91, 206 N.W.2d 49 (1973).

      A final order rendered by a district court in a judicial review pursuant to the Administrative Procedure Act may be reversed, vacated, or modified by an appellate court for errors appearing on the record. Boruch v. Nebraska Dept. of Health and Human Servs., 11 Neb. App. 713, 659 N.W.2d 848 (2003).

2. Appeal from administrative agency
      The appropriate standard of review for the Supreme Court in an appeal from an administrative agency's decision is found in this section, which prescribes a review of an agency's decision de novo on the record without the limitation imposed on the district court under former section 84-917(6)(e) and (6)(f). Golden Five v. Department of Soc. Serv., 229 Neb. 148, 425 N.W.2d 865 (1988).

      The Supreme Court's review of an administrative agency's decision is de novo on the record; as such, the court makes independent findings of fact without reference to those made by the agency whose action is being reviewed. Dieter v. State, 228 Neb. 368, 422 N.W.2d 560 (1988); Department of Health v. Grand Island Health Care, 223 Neb. 587, 391 N.W.2d 582 (1986).

      The Supreme Court reviews an administrative agency's decision de novo on the record. Department of Health v. Lutheran Hosp. & Homes Soc., 227 Neb. 116, 416 N.W.2d 222 (1987); Zybach v. State, 226 Neb. 396, 411 N.W.2d 627 (1987); City of Omaha v. Omaha Police Union Local 101, 222 Neb. 197, 382 N.W.2d 613 (1986).

      The Supreme Court's review of an agency's decision under the Administrative Procedure Act is de novo on the record. Haeffner v. State, 220 Neb. 560, 371 N.W.2d 658 (1985).

      In appeal from the Liquor Control Commission, the Supreme Court determines only whether findings of the commission are supported by substantial evidence and whether district court applied the proper statutory criteria. The 20's, Inc. v. Nebraska Liquor Control Commission, 190 Neb. 761, 212 N.W.2d 344 (1973).

3. Miscellaneous
      In conducting its de novo review under the provisions of this section, the Nebraska Supreme Court is required to make independent findings of fact without reference to those made by the tribunal from which the appeal was taken. Meier v. State, 227 Neb. 376, 417 N.W.2d 771 (1988).

84-919. Act; exclusive means of judicial review.
   Except as otherwise provided by law, the Administrative Procedure Act establishes the exclusive means of judicial review of a final decision of any agency in a contested case.
Source:Laws 1963, c. 531, § 3, p. 1666; Laws 1987, LB 253, § 21; Laws 1988, LB 352, § 187.

84-919.01. Negotiated Rulemaking Act; use by agency.
   Prior to the formal rulemaking procedure of section 84-907, agencies may use the procedures of the Negotiated Rulemaking Act to permit the direct participation of affected persons in the development of proposed rules and regulations. Negotiated rulemaking may be used to resolve controversial issues prior to the formal rulemaking of the Administrative Procedure Act. To be effective, such proposed rules and regulations shall be adopted pursuant to the Administrative Procedure Act in the form proposed by the negotiated rulemaking committee or as amended by the agency.
Source:Laws 1994, LB 446, § 37.

Cross References
      Negotiated Rulemaking Act, see section 84-921.

84-920. Act, how cited.
   Sections 84-901 to 84-920 and the Occupational Board Reform Act shall be known and may be cited as the Administrative Procedure Act.
Source:Laws 1987, LB 253, § 22; Laws 1994, LB 446, § 38; Laws 1995, LB 490, § 191; Laws 2005, LB 373, § 8; Laws 2011, LB617, § 5; Laws 2016, LB867, § 16; Laws 2018, LB299, § 20.

Operative Date: July 1, 2019

Cross References
      Occupational Board Reform Act, see section 84-933.

                           Negotiated Rulemaking Act

84-921. Act, how cited.
   Sections 84-921 to 84-932 shall be known and may be cited as the Negotiated Rulemaking Act.
Source:Laws 1994, LB 446, § 1.

84-922. Purpose of act.
   The purpose of the Negotiated Rulemaking Act is to establish a framework for the conduct of negotiated rulemaking consistent with the Administrative Procedure Act. It is the intent of the Legislature that state agencies, whenever appropriate, use the negotiated rulemaking process to resolve controversial issues prior to the commencement of the formal rulemaking process of the Administrative Procedure Act. 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. A consensus agreement on a proposed rule reached by a negotiated rulemaking committee may be modified by an agency as a result of the subsequent formal rulemaking process. This section shall not be construed as an attempt to limit innovation and experimentation with the negotiated rulemaking process.
Source:Laws 1994, LB 446, § 2.

Cross References
      Administrative Procedure Act, see section 84-920.

84-923. Terms, defined.
   For purposes of the Negotiated Rulemaking Act:
   (1) Agency shall have the same meaning as in section 84-901;
   (2) Consensus shall mean unanimous concurrence among the interests represented on a negotiated rulemaking committee unless the committee agrees upon another specified definition;
   (3) Convenor shall mean a person who impartially assists an agency in determining whether establishment of a negotiated rulemaking committee is feasible and appropriate for a particular rulemaking procedure;
   (4) Facilitator shall mean a person who impartially aids in the discussions and negotiations among the members of a negotiated rulemaking committee to develop a proposed rule. A facilitator shall not have decisionmaking authority;
   (5) 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;
   (6) Negotiated rulemaking shall mean rulemaking through the use of a negotiated rulemaking committee;
   (7) 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;
   (8) Person shall mean an individual, partnership, limited liability company, corporation, association, governmental subdivision, agency, or public or private organization of any character; and
   (9) Rule shall mean rule or regulation as defined in section 84-901.
Source:Laws 1994, LB 446, § 3.

84-924. Negotiated rulemaking committee; establishment; agency director; use of negotiated rulemaking procedure; determination; considerations; convenor; duties.
   (1) An agency may establish a negotiated rulemaking committee to negotiate and develop a proposed rule if the agency director determines that the use of the negotiated rulemaking procedure is in the public interest. In making that determination, the agency director shall consider whether:
   (a) There is a need for a rule;
   (b) There are a limited number of identifiable interests that will be significantly affected by the rule;
   (c) There is a reasonable likelihood that a committee can be convened with a balanced representation of persons who:
   (i) Can adequately represent the interests identified; and
   (ii) Are willing to negotiate in good faith to reach a consensus on the proposed rule;
   (d) There is a reasonable likelihood that a committee will reach a consensus on the proposed rule within a fixed period of time;
   (e) The negotiated rulemaking procedure will not unreasonably delay the notice of proposed formal rulemaking and the issuance of the final rule pursuant to the Administrative Procedure Act;
   (f) The agency has adequate resources and is willing to commit those resources, including technical assistance, to the committee; and
   (g) The agency, to the maximum extent possible consistent with the legal obligations of the agency, will use the consensus of the committee as the basis for the rule proposed by the agency in the formal rulemaking process of the Administrative Procedure Act.
   (2) An agency may use the services of a convenor to assist in making the determination of need pursuant to subsection (1) of this section and to assist the agency in:
   (a) Identifying persons who will be significantly affected by a proposed rule; and
   (b) 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.
   (3) The convenor shall report findings and make recommendations to the agency. Upon request of the agency, 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. The report and any recommendations of the convenor shall be made available to the public upon request.
Source:Laws 1994, LB 446, § 4.

Cross References
      Administrative Procedure Act, see section 84-920.

84-925. Petition to use negotiated rulemaking committee; procedure; exception.
   (1) Except as provided in subsection (2) of this section, any person may petition an agency to request the use of a negotiated rulemaking committee in the development or revision of a rule. Each agency shall prescribe the form of the petition and the procedure for its submission, consideration, and disposition. Within sixty days after submission of a petition, the agency shall (a) deny the petition in writing stating its reasons therefor or (b) initiate the negotiated rulemaking procedure.
   (2) A person committed to or otherwise incarcerated in a Department of Correctional Services facility may not petition the Department of Correctional Services to request the use of a negotiated rulemaking committee.
Source:Laws 1994, LB 446, § 5.

84-926. Negotiated rulemaking committee established; agency; duties; Secretary of State; duties.
   (1) If an agency decides to establish a negotiated rulemaking committee, the agency shall:
   (a) Give notice to the Secretary of State; and
   (b) Publish the notice in a newspaper having general circulation in the state and, as appropriate, in other newspapers and publications.
   (2) The notice shall include:
   (a) An announcement that the agency intends to establish a negotiated rulemaking committee to negotiate and develop a proposed rule;
   (b) A description of the subject and scope of the rule to be developed and the issues to be considered;
   (c) A list of interests likely to be significantly affected by the proposed rule;
   (d) A list of the persons proposed to represent the affected interests and the agency;
   (e) A proposed schedule for completing the work of the committee; and
   (f) An explanation of how a person may apply for or nominate another person for membership on the committee.
   (3) The Secretary of State shall establish and maintain a list of subscribers who wish to receive notice of an agency's intent to establish a negotiated rulemaking committee and shall provide such notice to such subscribers at a cost to be assessed against each subscriber. The Secretary of State shall collect payments and make disbursements of such funds as may be necessary to carry out the notification required by this subsection.
   (4) The agency shall provide a period of at least thirty days for the submission of comments upon and applications for membership on a negotiated rulemaking committee.
Source:Laws 1994, LB 446, § 6.

84-927. Negotiated rulemaking committee; establishment; notice of decision; agency support; termination.
   (1) If, after considering comments and applications for membership on the negotiated rulemaking committee submitted pursuant to section 84-926, the agency determines that a negotiated rulemaking committee can adequately represent the interests of the persons that will be significantly affected by a proposed rule and that it is feasible and appropriate in the particular rulemaking, the agency may establish a negotiated rulemaking committee.
   (2) If, after considering comments and applications submitted pursuant to section 84-926, the agency decides not to establish a negotiated rulemaking committee, the agency shall notify the persons who commented on or applied for membership on the negotiated rulemaking committee of the reasons for the decision. The agency shall also publish a notice of the decision not to establish a negotiated rulemaking committee in a newspaper having general circulation in the state and, as appropriate, in other newspapers and publications.
   (3) The agency shall provide appropriate administrative support to the negotiated rulemaking committee, including technical assistance and support.
   (4) A negotiated rulemaking committee shall terminate upon the adoption of the final rule under consideration by the agency pursuant to the Administrative Procedure Act unless the agency, after consulting the committee, or the committee itself specifies an earlier termination date.
Source:Laws 1994, LB 446, § 7.

Cross References
      Administrative Procedure Act, see section 84-920.

84-928. Negotiated rulemaking committee; membership; procedure.
   (1) A negotiated rulemaking committee may by consensus expand its membership, either by contacting and recruiting persons whose participation the committee believes is essential to the success of the negotiated rulemaking process or upon reviewing a petition submitted pursuant to subsection (2) of this section.
   (2) 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. Each petition or nomination shall be submitted to the negotiated rulemaking committee and shall include:
   (a) The name of the petitioner or nominee and a description of the interests the person represents;
   (b) Evidence that the petitioner or nominee is authorized to represent parties related to the interests the person proposes to represent;
   (c) A written commitment that the petitioner or nominee will actively participate in good faith in the development of the rule under consideration; and
   (d) 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.
   (3) Upon receiving a petition, a negotiated rulemaking committee shall decide by consensus at its next meeting whether or not to expand its membership.
Source:Laws 1994, LB 446, § 8.

84-929. Negotiated rulemaking committee; powers and duties; consensus; procedure; report; contents.
   (1) A negotiated rulemaking committee shall consider the matter proposed by the agency 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.
   (2) The person representing the agency on a negotiated rulemaking committee shall participate in the deliberations of the committee with the same rights and responsibilities of other members of the committee and shall be authorized to fully represent the agency in the discussions and negotiations of the committee.
   (3) A negotiated rulemaking committee may adopt procedures or ground rules for the operation of the committee.
   (4) If a negotiated rulemaking committee achieves consensus on a proposed rule at the conclusion of the negotiations, the committee shall transmit to the agency that established the committee a report containing the proposed rule.
   (5) If a negotiated rulemaking committee does not reach a consensus on the proposed rule, the committee shall transmit to the agency 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.
Source:Laws 1994, LB 446, § 9.

84-930. Facilitator; selection; duties.
   (1) An agency may nominate a person to serve as a facilitator for the negotiations of the negotiated rulemaking committee, subject to the approval of the committee by consensus. If the committee does not approve the agency's nomination for facilitator, the agency shall submit a substitute nomination. If the committee does not approve the substitute nomination of the agency for facilitator, the committee shall select by consensus a person to serve as facilitator. A person designated to represent the agency in substantive issues may not serve as facilitator or presiding officer for the committee.
   (2) A facilitator approved or selected by a negotiated rulemaking committee shall:
   (a) Preside at the meetings of the committee in an impartial manner;
   (b) Impartially assist the members of the committee in conducting discussions and negotiations and achieving consensus; and
   (c) Manage the keeping of minutes and records.
Source:Laws 1994, LB 446, § 10.

84-931. Convenor or facilitator; contract authorized; state employee; disqualification; members of negotiated rulemaking committee; expenses; per diem; grants or gifts.
   (1) An agency may employ or enter into a contract for the services of an organization or individual to serve as a convenor or facilitator for a negotiated rulemaking committee or may use the services of a state employee to act as a convenor or facilitator for a committee.
   (2) An agency shall determine whether a person under consideration as a convenor or facilitator of a negotiated rulemaking committee has any financial or other interest that would preclude the person from serving in an impartial and independent manner. A person disqualified under this criterion shall be dropped from further consideration.
   (3) Members of a negotiated rulemaking committee shall be responsible for their own expenses of participation. However, an agency may pay for a committee member's actual and necessary expenses incurred in serving on the committee as provided in sections 81-1174 to 81-1177 and a reasonable per diem rate of compensation if:
   (a) The committee member certifies a lack of adequate financial resources to participate in the committee; and
   (b) The agency determines that the committee member's participation in the committee is necessary to ensure an adequate representation of the interests of the members.
   (4) An agency may accept grants or gifts from any source to fund the negotiated rulemaking process if:
   (a) 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;
   (b) The grant or gift is given to and accepted by the agency without placing any condition on the membership of a negotiated rulemaking committee or the outcome of the negotiated rulemaking process; and
   (c) There is 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.
Source:Laws 1994, LB 446, § 11.

84-932. Agency action; judicial review; limitation; negotiated rule; judicial review; treatment.
   Any agency action relating to establishing, assisting, or terminating a negotiated rulemaking committee under the Negotiated Rulemaking Act shall not be subject to judicial review. Nothing in this section shall bar judicial review if such judicial review is otherwise provided by law. A rule which is the product of negotiated rulemaking prior to formal adoption pursuant to the Administrative Procedure Act and is later subject to judicial review shall not be accorded greater deference by a court than a rule which is the product of the rulemaking procedure of the Administrative Procedure Act alone.
Source:Laws 1994, LB 446, § 12.

Cross References
      Administrative Procedure Act, see section 84-920.


[Federal Register Volume 86, Number 179 (Monday, September 20, 2021)]
[Proposed Rules]
[Pages 52106-52109]
[FR Doc No: 2021-20230]

========================================================================
Proposed Rules
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.

========================================================================

Federal Register / Vol. 86, No. 179 / Monday, September 20, 2021 /
Proposed Rules

DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 39

[Docket No. FAA-2021-0793; Project Identifier MCAI-2021-00372-E]
RIN 2120-AA64

Airworthiness Directives; Safran Helicopter Engines, S.A. (Type
Certificate Previously Held by Turbomeca S.A.) Turboshaft Engines

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Notice of proposed rulemaking (NPRM).

-----------------------------------------------------------------------

SUMMARY: The FAA proposes to supersede Airworthiness Directive (AD)
2005-12-08, which applies to Safran Helicopter Engines, S.A. (Safran
Helicopter Engines) Arrius 2B1, 2B1A, 2B1A-1, and 2B2 model turboshaft
engines. AD 2005-12-08 requires replacing the software in the engine
electronic control unit (EECU). Since the FAA issued AD 2005-12-08, the
manufacturer determined that certain previously affected EECUs are not
subject to the unsafe condition identified in AD 2005-12-08. This
proposed AD would retain the requirements of AD 2005-12-08 for engines
with a certain EECU part number (P/N) installed. This proposed AD would
also prohibit installation of an affected EECU onto any engine. The FAA
is proposing this AD to address the unsafe condition on these products.

DATES: The FAA must receive comments on this proposed AD by November 4,
2021.

ADDRESSES: You may send comments, using the procedures found in 14 CFR
11.43 and 11.45, by any of the following methods:
     Federal eRulemaking Portal: Go to https://www.regulations.gov. Follow the instructions for submitting comments.
     Fax:<PHONE_NUMBER>.
     Mail: U.S. Department of Transportation, Docket
Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New
Jersey Avenue SE, Washington, DC 20590.
     Hand Delivery: Deliver to Mail address above between 9
a.m. and 5 p.m., Monday through Friday, except Federal holidays.
    For service information identified in this NPRM, contact Safran
Helicopter Engines, S.A., Avenue du 1er Mai, 40220 Tarnos, France;
phone: +33 (0) 5 59 74 45 00. You may view this service information at
the FAA, Airworthiness Products Section, Operational Safety Branch,
1200 District Avenue, Burlington, MA 01803. For information on the
availability of this material at the FAA, call<PHONE_NUMBER>.

Examining the AD Docket

    You may examine the AD docket at https://www.regulations.gov by
searching for and locating Docket No. FAA-2021-0793; or in person at
Docket Operations between 9 a.m. and 5 p.m., Monday through Friday,
except Federal holidays. The AD docket contains this NPRM, the
mandatory continuing airworthiness information (MCAI), any comments
received, and other information. The street address for Docket
Operations is listed above.

FOR FURTHER INFORMATION CONTACT: Wego Wang, Aviation Safety Engineer,
ECO Branch, FAA, 1200 District Avenue, Burlington, MA 01803; phone:
(781) 238-7134; fax:<PHONE_NUMBER>; email<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

Comments Invited

    The FAA invites you to send any written relevant data, views, or
arguments about this proposed AD. Send your comments to an address
listed under ADDRESSES. Include ``Docket No. FAA-2021-0793; Project
Identifier MCAI-2021-00372-E'' at the beginning of your comments. The
most helpful comments reference a specific portion of the proposal,
explain the reason for any recommended change, and include supporting
data. The FAA will consider all comments received by the closing date
and may amend the proposal because of those comments.
    Except for Confidential Business Information (CBI) as described in
the following paragraph, and other information as described in 14 CFR
11.35, the FAA will post all comments received, without change, to
https://www.regulations.gov, including any personal information you
provide. The agency will also post a report summarizing each
substantive verbal contact we receive about this proposed AD.

Confidential Business Information

    CBI is commercial or financial information that is both customarily
and actually treated as private by its owner. Under the Freedom of
Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public
disclosure. If your comments responsive to this NPRM contain commercial
or financial information that is customarily treated as private, that
you actually treat as private, and that is relevant or responsive to
this NPRM, it is important that you clearly designate the submitted
comments as CBI. Please mark each page of your submission containing
CBI as ``PROPIN.'' The FAA will treat such marked submissions as
confidential under the FOIA, and they will not be placed in the public
docket of this NPRM. Submissions containing CBI should be sent to Wego
Wang, Aviation Safety Engineer, ECO Branch, FAA, 1200 District Avenue,
Burlington, MA 01803. Any commentary that the FAA receives which is not
specifically designated as CBI will be placed in the public docket for
this rulemaking.

Background

    The FAA issued AD 2005-12-08, Amendment 39-14124 (70 FR 34334, June
14, 2005), (AD 2005-12-08), for all Turbomeca S.A. (Turbomeca) Arrius
2B1, 2B1A, 2B1A-1, and 2B2 model turboshaft engines. AD 2005-12-08 was
prompted by a report of simultaneous loss of automatic control of both
engines of an Airbus Helicopters Deutschland (formerly Eurocopter
Deutschland) EC135 helicopter during flight. AD 2005-12-08 requires
replacing the software in the EECU. The agency issued AD 2005-12-08 to
prevent simultaneous loss of automatic control of both engines and
subsequent loss of control of the helicopter.

Actions Since AD 2005-12-08 Was Issued

    Since the FAA issued AD 2005-12-08, the European Union Aviation
Safety Agency (EASA), which is the Technical Agent for the Member
States of the European Community, has issued EASA AD 2021-0088, dated
March 24, 2021.

EASA AD 2021-0088 was revised by EASA AD 2021-0088R1, dated July 26,
2021 (EASA AD 2021-0088R1) (referred to after this as ``the MCAI''), to
address the unsafe condition on these products. The MCAI states:

    An occurrence was reported of simultaneous loss of automatic
control in flight of both ARRIUS 2B1 engines on an EC135 T1
helicopter. Loss of automatic control would result, for each engine,
from a difference between the position datum of the fuel metering
valve and its measured position.
    This condition, if not corrected, could lead to increased work
for flight crew during certain flight phases, possibly resulting in
reduced control of the helicopter.
    To address this potential unsafe condition, Turbom[eacute]ca
developed mod TU80C, TU81C, TU82C and TU90C to improve the DECU
software for ARRIUS 2B1 engines without overspeed option, ARRIUS 2B1
engines with overspeed option, ARRIUS 2B1A and ARRIUS 2B2 engines,
and DGAC France issued AD F-2004-017 (later revised) to require
engine modification.
    Since that [DGAC France] AD was issued, it was determined that a
DECU having a P/N which corresponds to Turbom[eacute]ca mod TU80C,
TU81C, TU82C, TU90C or later software is not affected by the
software modification requirement. DGAC France AD F-2004-017R1 did
not specifically identify any affected DECU P/N(s).
    For the reason described above, this [EASA] AD retains the
requirements of DGAC France AD F-2004-017R1 (EASA approval 2004-
1618), which is superseded, and limits the required actions to
engines with an affected DECU P/N installed. This [EASA] AD also
prohibits (re)installation of affected DECU on any engine.
    This [EASA] AD is revised to provide clarification on affected
and serviceable DECU.

    You may obtain further information by examining the MCAI in the AD
docket at https://www.regulations.gov by searching for and locating
Docket No. FAA-2021-0793.
    In addition, Turbomeca issued Mandatory Service Bulletin (MSB) No.
319 73 2082, Version D, dated June 6, 2011. The manufacturer discovered
an error in Version C of the MSB and determined that the requirement to
replace the EECU or upgrade the EECU software should be applicable to
only engines with a certain EECU P/N installed.

FAA's Determination

    This product has been approved by EASA and is approved for
operation in the United States. Pursuant to our bilateral agreement
with the European Community, EASA has notified the FAA of the unsafe
condition described in the MCAI and service information. The FAA is
issuing this NPRM because the agency evaluated all the relevant
information provided by EASA and determined the unsafe condition
described previously is likely to exist or develop in other products of
the same type design.

Related Service Information Under 1 CFR Part 51

    The FAA reviewed Turbomeca Mandatory Service Bulletin (MSB) No. 319
73 2080, Update No. 1, dated February 13, 2004; Turbomeca MSB No. 319
73 2081, Update No. 1, dated February 13, 2004; Turbomeca MSB No. 319
73 2082, Update No. 1, dated February 13, 2004, Version C, dated July
31, 2008, and Version D, dated June 6, 2011; and Turbomeca MSB No. 319
73 2090, Original Issue, dated February 13, 2004. This service
information specifies procedures for upgrading the EECU by either
replacing the EECU or by uploading the software to the EECU. These
documents are distinct since they apply to different engine models in
different configurations. The Director of the Federal Register
previously approved Turbomeca MSB No. 319 73 2080, Update No. 1, dated
February 13, 2004; Turbomeca MSB No. 319 73 2081, Update No. 1, dated
February 13, 2004; Turbomeca MSB No. 319 73 2082, Update No. 1, dated
February 13, 2004; and Turbomeca MSB No. 319 73 2090, Original Issue,
dated February 13, 2004 for incorporation by reference on June 29, 2005
(70 FR 34334, June 14, 2005). This service information is reasonably
available because the interested parties have access to it through
their normal course of business or by the means identified in
ADDRESSES.

Proposed AD Requirements in This NPRM

    This proposed AD would retain all the requirements of AD 2005-12-
08. This proposed AD would require replacement of the EECU or upgrade
of the EECU software for engines with a certain EECU P/N installed.
This proposed AD would also prohibit installation of an affected EECU
onto any engine.

Differences Between the Proposed AD and MCAI or Service Information

    EASA AD 2021-0088R1, dated July 26, 2021, uses the term digital
engine control unit (DECU), whereas the Turbomeca MSBs and this
proposed AD use EECU. These terms refer to the same part.
    Turbomeca MSB No. 319 73 2080, Update No. 1, dated February 13,
2004; Turbomeca MSB No. 319 73 2081, Update No. 1, dated February 13,
2004; Turbomeca MSB No. 319 73 2082, Update No. 1, dated February 13,
2004, Version C, dated July 31, 2008, and Version D, dated June 6,
2011; and Turbomeca MSB No. 319 73 2090, Original Issue, dated February
13, 2004, instruct operators to notify Turbomeca that the EECUs have
been replaced by returning the completed compliance certificate. This
proposed AD would not mandate returning the completed compliance
certificate to Turbomeca.
    EASA AD 2021-0088R1 and the Turbomeca service information reference
Arrius 2B1A_1 or Arrius 2B1A-1 model turboshaft engines, whereas this
AD references Arrius 2B1A model turboshaft engines. Arrius 2B1A_1 model
turboshaft engines are Arrius 2B1A model turboshaft engines with
modification (mod) TU45C.

Costs of Compliance

    The FAA estimates that this AD, if adopted as proposed, would
affect 221 engines installed on helicopters of U.S. registry.
    The FAA estimates the following costs to comply with this proposed
AD:

                                                 Estimated Costs
----------------------------------------------------------------------------------------------------------------
                                                                                Cost per      Cost on U.S.
                Action                         Labor cost           Parts cost        product        operators
----------------------------------------------------------------------------------------------------------------
Replace the EECU......................  1 work-hour x $85 per            $35,000         $35,085      $7,753,785
                                         hour = $85.
Upgrade the EECU software.............  2 work-hours x $85 per                 0             170          37,570
                                         hour = $170.
----------------------------------------------------------------------------------------------------------------

Authority for This Rulemaking

    Title 49 of the United States Code specifies the FAA's authority to
issue rules on aviation safety. Subtitle I, Section 106, describes the
authority of the FAA Administrator. Subtitle VII, Aviation Programs,
describes in more detail the scope of the Agency's authority.

    The FAA is issuing this rulemaking under the authority described in
Subtitle VII, Part A, Subpart III, Section 44701, General requirements.
Under that section, Congress charges the FAA with promoting safe flight
of civil aircraft in air commerce by prescribing regulations for
practices, methods, and procedures the Administrator finds necessary
for safety in air commerce. This regulation is within the scope of that
authority because it addresses an unsafe condition that is likely to
exist or develop on products identified in this rulemaking action.

Regulatory Findings

    The FAA has determined that this proposed AD would not have
federalism implications under Executive Order 13132. This proposed AD
would not have a substantial direct effect on the States, on the
relationship between the national Government and the States, or on the
distribution of power and responsibilities among the various levels of
government.
    For the reasons discussed above, I certify that the proposed
regulation:
    (1) Is not a ``significant regulatory action'' under Executive
Order 12866,
    (2) Would not affect intrastate aviation in Alaska, and
    (3) Would not have a significant economic impact, positive or
negative, on a substantial number of small entities under the criteria
of the Regulatory Flexibility Act.

List of Subjects in 14 CFR Part 39

    Air transportation, Aircraft, Aviation safety, Incorporation by
reference, Safety.

The Proposed Amendment

    Accordingly, under the authority delegated to me by the
Administrator, the FAA proposes to amend 14 CFR part 39 as follows:

PART 39--AIRWORTHINESS DIRECTIVES

0
1. The authority citation for part 39 continues to read as follows:

    Authority: 49 U.S.C. 106(g), 40113, 44701.

Sec.  39.13  [Amended]

0
2. The FAA amends Sec.  39.13 by:
0
a. Removing Airworthiness Directive 2005-12-08, Amendment 39-14124 (70
FR 34334, June 14, 2005); and
0
b. Adding the following new airworthiness directive:

Safran Helicopter Engines, S.A. (Type Certificate previously held by
Turbomeca S.A.): Docket No. FAA-2021-0793; Project Identifier MCAI-
2021-00372-E.

(a) Comments Due Date

    The FAA must receive comments on this airworthiness directive
(AD) by November 4, 2021.

(b) Affected ADs

    This AD replaces AD 2005-12-08, Amendment 39-14124 (70 FR 34334,
June 14, 2005) (AD 2005-12-08).

(c) Applicability

    This AD applies to Safran Helicopter Engines, S.A. (Type
Certificate previously held by Turbomeca S.A.) Arrius 2B1, Arrius
2B1A, (including those that embody modification (mod) TU45C,
identified as Arrius 2B1A_1) and Arrius 2B2 model turboshaft engines
with an installed engine electronic control unit (EECU) having part
number (P/N) 70EMF01080 or 70EMF01090--for Arrius 2B1 model
turboshaft engines without overspeed protection option (TU 19C); P/N
70EMF01100 or P/N 70EMF01120--for Arrius 2B1 model turboshaft
engines with overspeed protection option (TU 67C or TU 23C); P/N
70EMH01000 or 70EMH01010--for Arrius 2B1A model turboshaft engines;
or P/N 70EMM01000--for Arrius 2B2 model turboshaft engines.
    Note 1 to paragraph (c): Turbomeca Mandatory Service Bulletin
(MSB) No. 319 73 2082, Version D, dated June 6, 2011, references
Arrius 2B1A_1 model turboshaft engines. Arrius 2B1A model turboshaft
engines with mod TU 45C applied are identified as Arrius 2B1A_1 on
the engine identification plate.

(d) Subject

    Joint Aircraft System Component (JASC) Code 7600, Engine
Controls.

(e) Unsafe Condition

    This AD was prompted by a report of simultaneous loss of
automatic control of both engines of an Airbus Helicopters
Deutschland (formerly Eurocopter Deutschland) EC135 helicopter
during flight. The FAA is issuing this AD to prevent simultaneous
loss of automatic control of both engines. The unsafe condition, if
not addressed, could result in failure of the engines and loss of
control of the helicopter.

(f) Compliance

    Comply with this AD within the compliance times specified,
unless already done.

(g) Required Actions

    (1) For engines with an EECU having P/N 70EMF01090, 70EMF01100,
70EMF01120, 70EMH01010, or 70EMM01000, within 90 days after June 29,
2005 (the effective date of AD 2005-12-08), or before further
flight, whichever occurs later, upload the EECU software on both
engines of the helicopter simultaneously using paragraph 2,
Instructions to be incorporated, of the applicable Turbomeca MSB
listed in Table 1 to paragraph (g) of this AD, or replace the EECU
with a part eligible for installation.
    (2) For engines with an EECU having P/N 70EMF01080 or
70EMH01000, within 90 days after June 29, 2005 (the effective date
of AD 2005-12-08), or before further flight, whichever occurs later,
replace the affected EECU with a part eligible for installation.

[GRAPHIC] [TIFF OMITTED] TP20SE21.000

(h) Installation Prohibition

    After the effective date of this AD, do not install onto any
engine any EECU having a P/N identified in paragraph (c) of this AD.

(i) Definition

    For the purpose of this AD, a ``part eligible for installation''
is an EECU having a P/N that is not identified in paragraph (c) of
this AD.

(j) No Reporting Requirements

    The reporting requirements specified in Turbomeca MSB No. 319 73
2080, Update No. 1, dated February 13, 2004; Turbomeca MSB No. 319
73 2081, Update No. 1, dated February 13, 2004; Turbomeca MSB No.
319 73 2082, Update No. 1, dated February 13, 2004, Version C, dated
July 31, 2008, and Version D, dated June 6, 2011; and Turbomeca MSB
No. 319 73 2090, Original Issue, dated February 13, 2004, are not
required by this AD.

(k) Alternative Methods of Compliance (AMOCs)

    (1) The Manager, ECO Branch, FAA, has the authority to approve
AMOCs for this AD, if requested using the procedures found in 14 CFR
39.19. In accordance with 14 CFR 39.19, send your request to your
principal inspector or local Flight Standards District Office, as
appropriate. If sending information directly to the manager of the
certification office, send it to the attention of the person
identified in paragraph (l)(1) of this AD. Information may be
emailed to<EMAIL_ADDRESS>    (2) Before using any approved AMOC, notify your appropriate
principal inspector, or lacking a principal inspector, the manager
of the local flight standards district office/certificate holding
district office.

(l) Related Information

    (1) For more information about this AD, contact Wego Wang,
Aviation Safety Engineer, ECO Branch, FAA, 1200 District Avenue,
Burlington, MA 01803; phone:<PHONE_NUMBER>; fax:<PHONE_NUMBER>;
email<EMAIL_ADDRESS>    (2) Refer to European Union Aviation Safety Agency (EASA) AD
2021-0088R1, dated July 26, 2021, for more information. You may
examine the EASA AD in the AD docket at https://www.regulations.gov
by searching for and locating it in Docket No. FAA-2021-0793.
    (3) For service information identified in this AD, contact
Safran Helicopter Engines, S.A., Avenue du 1er Mai, 40220 Tarnos,
France; phone: +33 (0) 5 59 74 45 00. You may view this referenced
service information at the FAA, Airworthiness Products Section,
Operational Safety Branch, 1200 District Avenue, Burlington, MA
01803. For information on the availability of this material at the
FAA, call<PHONE_NUMBER>.

    Issued on September 14, 2021.
Lance T. Gant,
Director, Compliance & Airworthiness Division, Aircraft Certification
Service.
[FR Doc. 2021-20230 Filed 9-17-21; 8:45 am]
BILLING CODE 4910-13-P