This chapter may be cited as the Nevada
Administrative Procedure Act.
(Added to NRS by 1965, 962)
1. By this chapter, the Legislature intends to establish minimum
procedural requirements for the regulation-making and adjudication
procedure of all agencies of the Executive Department of the State
Government and for judicial review of both functions, except those
agencies expressly exempted pursuant to the provisions of this chapter.
This chapter confers no additional regulation-making authority upon any
agency except to the extent provided in subsection 1 of NRS 233B.050
.
2. The provisions of this chapter are intended to supplement
statutes applicable to specific agencies. This chapter does not abrogate
or limit additional requirements imposed on such agencies by statute or
otherwise recognized by law.
(Added to NRS by 1965, 962; A 1973, 472; 1977, 1384)
As used in this chapter, unless the
context otherwise requires, the words and terms defined in NRS 233B.031
to 233B.0385 , inclusive, have the meanings ascribed to
them in those sections.
(Added to NRS by 1965, 962; A 1967, 807; 1971, 661; 1975, 1790;
1977, 1384; 1999, 2072 )
“Agency” means an agency, bureau,
board, commission, department, division, officer or employee of the
Executive Department of the State Government authorized by law to make
regulations or to determine contested cases.
(Added to NRS by 1977, 1382)
“Contested case” means a
proceeding, including but not restricted to rate making and licensing, in
which the legal rights, duties or privileges of a party are required by
law to be determined by an agency after an opportunity for hearing, or in
which an administrative penalty may be imposed.
(Added to NRS by 1977, 1382)
“Emergency
regulation” means a regulation adopted pursuant to NRS 233B.0613 .
(Added to NRS by 1977, 1382; A 1983, 1123)
“License” means
the whole or part of any agency permit, certificate, approval,
registration, charter or similar form of permission required by law.
“Licensing” means the agency procedure whereby the license is granted,
denied, revoked, suspended, annulled, withdrawn or amended.
(Added to NRS by 1977, 1382)
“Party” means each person or agency
named or admitted as a party, or properly seeking and entitled as of
right to be admitted as a party, in any contested case.
(Added to NRS by 1977, 1383)
“Permanent
regulation” means a regulation which is not an emergency regulation or a
temporary regulation.
(Added to NRS by 1977, 1383)
“Person” includes any political
subdivision or public or private organization of any character other than
an agency.
(Added to NRS by 1977, 1383; A 1985, 513)
1. “Regulation” means:
(a) An agency rule, standard, directive or statement of general
applicability which effectuates or interprets law or policy, or describes
the organization, procedure or practice requirements of any agency;
(b) A proposed regulation;
(c) The amendment or repeal of a prior regulation; and
(d) The general application by an agency of a written policy,
interpretation, process or procedure to determine whether a person is in
compliance with a federal or state statute or regulation in order to
assess a fine, monetary penalty or monetary interest.
2. The term does not include:
(a) A statement concerning only the internal management of an
agency and not affecting private rights or procedures available to the
public;
(b) A declaratory ruling;
(c) An intraagency memorandum;
(d) A manual of internal policies and procedures or audit
procedures of an agency which is used solely to train or provide guidance
to employees of the agency and which is not used as authority in a
contested case to determine whether a person is in compliance with a
federal or state statute or regulation;
(e) An agency decision or finding in a contested case;
(f) An advisory opinion issued by an agency that is not of general
applicability;
(g) A published opinion of the attorney general;
(h) An interpretation of an agency that has statutory authority to
issue interpretations;
(i) Letters of approval, concurrence or disapproval issued in
relation to a permit for a specific project or activity;
(j) A contract or agreement into which an agency has entered;
(k) The provisions of a federal law, regulation or guideline;
(l) An emergency action taken by an agency that is necessary to
protect public health and safety;
(m) The application by an agency of a policy, interpretation,
process or procedure to a person who has sufficient prior actual notice
of the policy, interpretation, process or procedure to determine whether
the person is in compliance with a federal or state statute or regulation
in order to assess a fine, monetary penalty or monetary interest;
(n) A regulation concerning the use of public roads or facilities
which is indicated to the public by means of signs, signals and other
traffic-control devices that conform with the manual and specifications
for a uniform system of official traffic-control devices adopted pursuant
to NRS 484.781 ; or
(o) The classification of wildlife or the designation of seasons
for hunting, fishing or trapping by regulation of the Board of Wildlife
Commissioners pursuant to the provisions of title 45 of NRS.
(Added to NRS by 1977, 1383; A 1999, 2406 )
“Small business” means a
business conducted for profit which employs fewer than 150 full-time or
part-time employees.
(Added to NRS by 1999, 2070 )
“Temporary
regulation” means:
1. A regulation adopted pursuant to subsection 3 of NRS 233B.063
; or
2. Any other regulation which is effective for 120 days or less
and which is not an emergency regulation.
(Added to NRS by 1977, 1383)
1. The following agencies are entirely exempted from the
requirements of this chapter:
(a) The Governor.
(b) The Department of Corrections.
(c) The Nevada System of Higher Education.
(d) The Office of the Military.
(e) The State Gaming Control Board.
(f) Except as otherwise provided in NRS 368A.140 , the Nevada Gaming Commission.
(g) The Division of Welfare and Supportive Services of the
Department of Health and Human Services.
(h) The Division of Health Care Financing and Policy of the
Department of Health and Human Services.
(i) The State Board of Examiners acting pursuant to chapter 217
of NRS.
(j) Except as otherwise provided in NRS 533.365 , the Office of the State Engineer.
(k) The Division of Industrial Relations of the Department of
Business and Industry acting to enforce the provisions of NRS 618.375
.
(l) The Administrator of the Division of Industrial Relations of
the Department of Business and Industry in establishing and adjusting the
schedule of fees and charges for accident benefits pursuant to subsection
2 of NRS 616C.260 .
(m) The Board to Review Claims in adopting resolutions to carry out
its duties pursuant to NRS 590.830 .
2. Except as otherwise provided in subsection 5 and NRS 391.323
, the Department of Education, the Board of the Public
Employees’ Benefits Program and the Commission on Professional Standards
in Education are subject to the provisions of this chapter for the
purpose of adopting regulations but not with respect to any contested
case.
3. The special provisions of:
(a) Chapter 612 of NRS for the distribution of regulations by and the judicial
review of decisions of the Employment Security Division of the Department
of Employment, Training and Rehabilitation;
(b) Chapters 616A to 617 , inclusive, of NRS for the determination of contested claims;
(c) Chapter 703 of NRS for the judicial review of decisions of the Public Utilities
Commission of Nevada;
(d) Chapter 91 of NRS for the judicial
review of decisions of the Administrator of the Securities Division of
the Office of the Secretary of State; and
(e) NRS 90.800 for the use of
summary orders in contested cases,
Ê prevail over the general provisions of this chapter.
4. The provisions of NRS 233B.122 , 233B.124 , 233B.125 and 233B.126 do not apply to the Department of Health and
Human Services in the adjudication of contested cases involving the
issuance of letters of approval for health facilities and agencies.
5. The provisions of this chapter do not apply to:
(a) Any order for immediate action, including, but not limited to,
quarantine and the treatment or cleansing of infected or infested
animals, objects or premises, made under the authority of the State Board
of Agriculture, the State Board of Health, or any other agency of this
State in the discharge of a responsibility for the preservation of human
or animal health or for insect or pest control;
(b) An extraordinary regulation of the State Board of Pharmacy
adopted pursuant to NRS 453.2184 ; or
(c) A regulation adopted by the State Board of Education pursuant
to NRS 392.644 or 394.1694 .
6. The State Board of Parole Commissioners is subject to the
provisions of this chapter for the purpose of adopting regulations but
not with respect to any contested case.
(Added to NRS by 1977, 1383; A 1979, 492, 1639; 1981, 1398, 2045,
2046; 1983, 183, 970, 1528; 1985, 1366; 1987, 327, 1014, 1294, 2191;
1989, 160, 1650; 1991, 663, 1665; 1993, 367, 859, 1493, 2084, 2085; 1995,
128, 582; 1997, 1973, 2607, 3342; 1999, 581 , 590 , 2242 , 2407 , 3039 , 3044 ; 2001, 158 , 963 , 1334 ; 2001 Special Session, 233 ; 2003, 289 , 306 , 2165 ; 2003, 20th Special Session, 191 ; 2005, 22nd Special Session, 144
)
ADMINISTRATIVE REGULATIONS
The
Nevada Administrative Code as most recently revised or supplemented
before May 15, 1987, and the text of those regulations which have been
prepared by the Legislative Counsel for inclusion in the Nevada
Administrative Code on or before May 15, 1987, but have not been
included, are hereby ratified.
(Added to NRS by 1987, 1581)
1. To the extent authorized by the statutes applicable to it, each
agency may adopt reasonable regulations to aid it in carrying out the
functions assigned to it by law and shall adopt such regulations as are
necessary to the proper execution of those functions. If adopted and
filed in accordance with the provisions of this chapter, the following
regulations have the force of law and must be enforced by all peace
officers:
(a) The Nevada Administrative Code; and
(b) Temporary and emergency regulations.
Ê In every instance, the power to adopt regulations to carry out a
particular function is limited by the terms of the grant of authority
pursuant to which the function was assigned.
2. Every regulation adopted by an agency must include:
(a) A citation of the authority pursuant to which it, or any part
of it, was adopted; and
(b) The address of the agency and, to the extent not elsewhere
provided in the regulation, a brief explanation of the procedures for
obtaining clarification of the regulation or relief from the strict
application of any of its terms, if the agency is authorized by a
specific statute to grant such relief, or otherwise dealing with the
agency in connection with the regulation.
3. An agency may adopt by reference in a regulation material
published by another authority in book or pamphlet form if:
(a) It files one copy of the publication with the Secretary of
State and one copy with the State Library and Archives Administrator, and
makes at least one copy available for public inspection with its
regulations; and
(b) The reference discloses the source and price for purchase of
the publication.
Ê An agency shall not attempt to incorporate any other material in a
regulation by reference.
(Added to NRS by 1965, 963; A 1971, 804; 1977, 1385; 1985, 366,
1488; 1997, 3151)
The Legislative Counsel shall treat regulations
adopted by entities other than agencies in the same manner as regulations
adopted by agencies if the entity is required by statute to adopt the
regulation in the manner prescribed by this chapter.
(Added to NRS by 2001, 2316 )
1. In addition to other regulation-making requirements imposed by
law, each agency shall:
(a) Adopt rules of practice, setting forth the nature and
requirements of all formal and informal procedures available, including a
description of all forms and instructions used by the agency.
(b) Make available for public inspection all rules of practice and
regulations adopted or used by the agency in the discharge of its
functions and that part of the Nevada Administrative Code which contains
its regulations.
(c) Make available for public inspection all final orders,
decisions and opinions except those expressly made confidential or
privileged by statute.
(d) Review its rules of practice at least once every 3 years and
file with the Secretary of State a statement setting forth the date on
which the most recent review of those rules was completed and describing
any revisions made as a result of the review.
(e) Review its regulations at least once every 10 years to
determine whether it should amend or repeal any of the regulations.
Within 30 days after completion of the review, the agency shall submit a
report to the Legislative Counsel for distribution to the next regular
session of the Legislature. The report must include the date on which the
agency completed its review of the regulations and describe any
regulation that must be amended or repealed as a result of the review.
2. A regulation, rule, final order or decision of an agency is not
valid or effective against any person or party, nor may it be invoked by
the agency for any purpose, until it has been made available for public
inspection as required in this section, except that this provision does
not apply in favor of any person or party who has actual knowledge
thereof.
(Added to NRS by 1965, 963; A 1977, 1386; 1979, 972; 1995, 129;
1997, 184; 1999, 2203 )
1. Except as otherwise provided in subsection 2 and in NRS
233B.061 , before adopting, amending
or repealing any permanent or temporary regulation, the agency must give
at least 30 days’ notice of its intended action, unless a shorter period
of notice is specifically permitted by statute.
2. Except as otherwise provided in subsection 3, if an agency has
adopted a temporary regulation after notice and the opportunity for a
hearing as provided in this chapter, it may adopt, after providing a
second notice and the opportunity for a hearing, a permanent regulation,
but the language of the permanent regulation must first be approved or
revised by the Legislative Counsel and the adopted regulation is subject
to review by the Legislative Commission.
3. If the Public Utilities Commission of Nevada has adopted a
temporary regulation after notice and the opportunity for a hearing as
provided in this chapter, it may adopt a substantively equivalent
permanent regulation without further notice or hearing, but the language
of the permanent regulation must first be approved or revised by the
Legislative Counsel and the adopted regulation is subject to review by
the Legislative Commission.
(Added to NRS by 1965, 964; A 1973, 621; 1975, 1157, 1413; 1977,
1386, 1547, 1549; 1981, 186; 1983, 1123, 1244; 1995, 130; 1997, 1973)
1. The notice of intent to act upon a regulation must:
(a) Include:
(1) A statement of the need for and purpose of the proposed
regulation.
(2) Either the terms or substance of the proposed regulation
or a description of the subjects and issues involved.
(3) A statement of the estimated economic effect of the
regulation on the business which it is to regulate and on the public.
These must be stated separately and in each case must include:
(I) Both adverse and beneficial effects; and
(II) Both immediate and long-term effects.
(4) A statement identifying the methods used by the agency
in determining the impact on a small business prepared pursuant to
subsection 3 of NRS 233B.0608 .
(5) The estimated cost to the agency for enforcement of the
proposed regulation.
(6) A description of any regulations of other state or local
governmental agencies which the proposed regulation overlaps or
duplicates and a statement explaining why the duplication or overlapping
is necessary. If the regulation overlaps or duplicates a federal
regulation, the notice must include the name of the regulating federal
agency.
(7) If the regulation is required pursuant to federal law, a
citation and description of the federal law.
(8) If the regulation includes provisions which are more
stringent than a federal regulation that regulates the same activity, a
summary of such provisions.
(9) The time when, the place where and the manner in which
interested persons may present their views regarding the proposed
regulation.
(b) State each address at which the text of the proposed regulation
may be inspected and copied.
(c) Include an exact copy of the provisions of subsection 2 of NRS
233B.064 .
(d) Include a statement indicating whether the regulation
establishes a new fee or increases an existing fee.
(e) Be mailed to all persons who have requested in writing that
they be placed upon a mailing list, which must be kept by the agency for
that purpose.
(f) Be submitted to the Legislative Counsel Bureau for inclusion in
the Register of Administrative Regulations created pursuant to NRS
233B.0653 . The publication of a
notice of intent to act upon a regulation in the register does not
satisfy the requirements for notice set forth in paragraph (e) of this
subsection.
2. The Attorney General may by regulation prescribe the form of
notice to be used.
3. In addition to distributing the notice to each recipient of the
agency’s regulations, the agency shall also solicit comment generally
from the public and from businesses to be affected by the proposed
regulation.
(Added to NRS by 1983, 1124; A 1995, 130, 239; 1997, 184, 1390;
2005, 1479 )
1. The agency shall at the time of giving the notice:
(a) Deposit one copy of the notice and text of the proposed
regulation with the State Library and Archives Administrator;
(b) Keep at least one copy of the notice and text available in each
of its offices from the date of the notice to the date of the hearing,
for inspection and copying by the public; and
(c) If the agency does not maintain an office in a county, deposit
one copy of the notice and text with the librarian of the main public
library in the county.
2. The text of the proposed regulation so disseminated must
include the entire text of any section of the Nevada Administrative Code
which is proposed for amendment or repeal.
3. After the final draft or revision of an adopted regulation is
received each such librarian may discard the deposited copy of the
proposed regulation.
(Added to NRS by 1983, 1125; A 1983, 1245; 1985, 1489; 1995, 130;
1997, 3151)
1. Before conducting a workshop for a proposed regulation pursuant
to NRS 233B.061 , an agency shall
determine whether the proposed regulation is likely to:
(a) Impose a direct and significant economic burden upon a small
business; or
(b) Directly restrict the formation, operation or expansion of a
small business.
2. If an agency determines pursuant to subsection 1 that a
proposed regulation is likely to impose a direct and significant economic
burden upon a small business or directly restrict the formation,
operation or expansion of a small business, the agency shall:
(a) Insofar as practicable, consult with owners and officers of
small businesses that are likely to be affected by the proposed
regulation.
(b) Consider methods to reduce the impact of the proposed
regulation on small businesses, including, without limitation:
(1) Simplifying the proposed regulation;
(2) Establishing different standards of compliance for a
small business; and
(3) Modifying a fee or fine set forth in the regulation so
that a small business is authorized to pay a lower fee or fine.
(c) Prepare a small business impact statement and make copies of
the statement available to the public at the workshop conducted and the
public hearing held pursuant to NRS 233B.061 .
3. The agency shall prepare a statement identifying the methods
used by the agency in determining the impact of a proposed regulation on
a small business.
(Added to NRS by 1999, 2070 ; A 2005, 1480 )
A
small business impact statement prepared pursuant to NRS 233B.0608 must set forth the following information:
1. A description of the manner in which comment was solicited from
affected small businesses, a summary of their response and an explanation
of the manner in which other interested persons may obtain a copy of the
summary.
2. The estimated economic effect of the proposed regulation on the
small businesses which it is to regulate, including, without limitation:
(a) Both adverse and beneficial effects; and
(b) Both direct and indirect effects.
3. A description of the methods that the agency considered to
reduce the impact of the proposed regulation on small businesses and a
statement regarding whether the agency actually used any of those methods.
4. The estimated cost to the agency for enforcement of the
proposed regulation.
5. If the proposed regulation provides a new fee or increases an
existing fee, the total annual amount the agency expects to collect and
the manner in which the money will be used.
6. If the proposed regulation includes provisions which duplicate
or are more stringent than federal, state or local standards regulating
the same activity, an explanation of why such duplicative or more
stringent provisions are necessary.
(Added to NRS by 1999, 2071 )
1. All interested persons must be afforded a reasonable
opportunity to submit data, views or arguments upon a proposed
regulation, orally or in writing.
2. Before holding the public hearing required pursuant to
subsection 3, an agency shall conduct at least one workshop to solicit
comments from interested persons on one or more general topics to be
addressed in a proposed regulation. Not less than 15 days before the
workshop, the agency shall provide notice of the time and place set for
the workshop:
(a) In writing to each person who has requested to be placed on a
mailing list; and
(b) In any other manner reasonably calculated to provide such
notice to the general public and any business that may be affected by a
proposed regulation which addresses the general topics to be considered
at the workshop.
3. With respect to substantive regulations, the agency shall set a
time and place for an oral public hearing, but if no one appears who will
be directly affected by the proposed regulation and requests an oral
hearing, the agency may proceed immediately to act upon any written
submissions. The agency shall consider fully all written and oral
submissions respecting the proposed regulation.
4. The agency shall keep, retain and make available for public
inspection written minutes and an audio recording or transcript of each
public hearing held pursuant to subsection 3 in the manner provided in
NRS 241.035 .
(Added to NRS by 1983, 1125; A 1989, 571; 1997, 185; 2005, 1407
)
1. If an agency determines that an emergency exists, it shall
submit to the Governor a written statement of the emergency which sets
forth the reasons for the determination. If the Governor endorses the
statement of the emergency by written endorsement at the end of the full
text of the statement of emergency on the original copy of a proposed
regulation, the regulation may be adopted and become effective
immediately upon its being filed in the Office of the Secretary of State
pursuant to subsection 3 of NRS 233B.070 . The statement of the emergency endorsed by
the Governor must be included as a part of the regulation for all
purposes. A regulation so adopted may be effective for a period of not
longer than 120 days. A regulation may be adopted by this emergency
procedure only once.
2. If an agency adopts, after providing notice and the opportunity
for a hearing as required in this chapter, a permanent or temporary
regulation which becomes effective and is substantially identical to its
effective emergency regulation, the emergency regulation expires
automatically on the effective date of the temporary or permanent
regulation.
(Added to NRS by 1983, 1125; A 1983, 1245; 1995, 131, 2580; 2003,
2005 )
No
regulation adopted after July 1, 1965, is valid unless adopted in
substantial compliance with this chapter but no objection to any
regulation on the ground of noncompliance with the procedural
requirements of NRS 233B.060 to
233B.0617 , inclusive, may be made
more than 2 years after its effective date. Regulations in effect on July
1, 1965, continue in effect until amended or repealed in accordance with
the provisions of this chapter, if an original and two copies were
deposited with the Secretary of State on or before July 1, 1965.
(Added to NRS by 1983, 1125)
1. It is the policy of this state that every regulation of an
agency be made easily accessible to the public and expressed in clear and
concise language. To assist in carrying out this policy:
(a) The Attorney General must develop guidelines for drafting
regulations; and
(b) Every permanent regulation must be incorporated, excluding any
forms used by the agency, any publication adopted by reference, the
title, any signature and other formal parts, in the Nevada Administrative
Code, and every emergency or temporary regulation must be distributed in
the same manner as the Nevada Administrative Code.
2. The Legislative Counsel shall:
(a) Include each permanent regulation in the Nevada Administrative
Code; and
(b) Distribute in the same manner as the Nevada Administrative Code
each emergency or temporary regulation,
Ê that is required to be adopted pursuant to the provisions of this
chapter and which is adopted by an entity other than an agency.
3. The Legislative Commission may authorize inclusion in the
Nevada Administrative Code of the regulations of an agency otherwise
exempted from the requirements of this chapter.
(Added to NRS by 1977, 1381; A 1997, 186, 1391; 2001, 1422 )
1. At or before the time of giving notice of its intention to
adopt, amend or repeal a permanent regulation an agency shall deliver to
the Legislative Counsel a copy of the proposed regulation or amendment or
an identification of the regulation to be repealed. The Legislative
Counsel shall examine and if appropriate revise the language submitted so
that it is clear, concise and suitable for incorporation in the Nevada
Administrative Code, but shall not alter the meaning or effect without
the consent of the agency.
2. Unless the proposed regulation is submitted to him between July
1 of an even-numbered year and July 1 of the succeeding odd-numbered
year, the Legislative Counsel shall deliver the approved or revised text
of the regulation within 30 days after it is submitted to him. If the
proposed or revised text of a regulation is changed before adoption, the
agency shall submit the changed text to the Legislative Counsel, who
shall examine and revise it if appropriate pursuant to the standards of
subsection 1. Unless it is submitted between July 1 of an even-numbered
year and July 1 of the succeeding odd-numbered year, the Legislative
Counsel shall return it with any appropriate revisions within 30 days. If
the agency is a licensing board as defined in NRS 439B.225 and the proposed regulation relates to standards for
licensing or registration or for the renewal of a license or a
certificate of registration issued to a person or facility regulated by
the agency, the Legislative Counsel shall also deliver one copy of the
approved or revised text of the regulation to the Legislative Committee
on Health Care.
3. An agency may adopt a temporary regulation between August 1 of
an even-numbered year and July 1 of the succeeding odd-numbered year
without following the procedure required by this section and NRS 233B.064
, but any such regulation expires by
limitation on November 1 of the odd-numbered year. A substantively
identical permanent regulation may be subsequently adopted.
4. An agency may amend or suspend a permanent regulation between
August 1 of an even-numbered year and July 1 of the succeeding
odd-numbered year by adopting a temporary regulation in the same manner
and subject to the same provisions as prescribed in subsection 3.
(Added to NRS by 1977, 1381; A 1989, 57, 621; 1991, 940; 1993, 514;
2003, 2005 )
1. Upon the request of a Legislator, the Legislative Commission
may examine a temporary regulation adopted by an agency that is not yet
effective pursuant to subsection 2 of NRS 233B.070 to determine whether the temporary
regulation conforms to the statutory authority pursuant to which it was
adopted and whether the temporary regulation carries out the intent of
the Legislature in granting that authority.
2. If a temporary regulation that the Legislative Commission is
requested to examine pursuant to subsection 1 was required to be adopted
by the agency pursuant to a federal statute or regulation and the
temporary regulation exceeds the specific statutory authority of the
agency or sets forth requirements that are more stringent than a statute
of this state, the agency shall submit a statement to the Legislative
Commission that adoption of the temporary regulation was required by a
federal statute or regulation. The statement must include the specific
citation of the federal statute or regulation requiring such adoption.
3. The Legislative Commission shall review the temporary
regulation at its next regularly scheduled meeting if the temporary
regulation is received more than 10 working days before the meeting and a
regular meeting is held within 35 days after receipt of the temporary
regulation. The Legislative Commission may direct the Committee to Review
Regulations to examine any temporary regulation that a Legislator has
requested to be reviewed more than 35 days before a regular meeting of
the Commission is scheduled to be held.
4. The Legislative Counsel shall notify the agency that adopted
the temporary regulation of the results of the review of the temporary
regulation by the Legislative Commission within 30 days after receipt of
the request for review of the temporary regulation from a Legislator. If
the Commission does not object to the temporary regulation, the
Legislative Counsel shall notify the agency that the agency may file the
temporary regulation with the Secretary of State. If the Commission
objects to the temporary regulation after determining that:
(a) If subsection 2 is applicable, the temporary regulation is not
required pursuant to a federal statute or regulation;
(b) The temporary regulation does not conform to statutory
authority; or
(c) The temporary regulation does not carry out legislative intent,
Ê the Legislative Counsel shall attach to the temporary regulation a
written notice of the objection of the Commission, including a statement
of the reasons for its objection, and shall promptly return the temporary
regulation to the agency.
5. If the Legislative Commission has objected to a temporary
regulation, the agency that adopted the temporary regulation may revise
it and return it to the Legislative Counsel. Upon receipt of the revised
temporary regulation, the Legislative Counsel shall resubmit the
temporary regulation to the Commission at its next regularly scheduled
meeting. If the Commission does not object to the revised temporary
regulation, the Legislative Counsel shall notify the agency that the
agency may file the revised temporary regulation with the Secretary of
State.
6. If the Legislative Commission objects to the revised temporary
regulation, the agency may continue to revise it and resubmit it.
7. If the agency refuses to revise a temporary regulation to which
the Legislative Commission has objected, the Commission may suspend the
filing of the temporary regulation until the final day of the next
regular session of the Legislature. Before the final day of the next
regular session, the Legislature may, by concurrent resolution or other
appropriate legislative measure, declare that the temporary regulation
will not become effective. If the Legislature makes such a declaration,
the agency shall not file or enforce the temporary regulation or
subsequently adopt a substantively identical permanent regulation. If the
Legislature has not so declared by the final day of the session, the
agency may file the temporary regulation with the Secretary of State.
(Added to NRS by 2003, 2003 )
1. Except as otherwise provided in this section, each agency which
submits a regulation for examination and revision pursuant to subsection
1 or 2 of NRS 233B.063 shall
reimburse the Legislative Counsel Bureau for the cost of the examination
and revision. The Legislative Commission shall establish the amount of
reimbursement required pursuant to this subsection.
2. The reimbursement required pursuant to subsection 1:
(a) Must be an hourly fee for each hour spent by employees of the
Legal Division of the Legislative Counsel Bureau in examining and
revising the regulation. The hourly fee must not exceed the average
hourly salary of the persons whose salaries are reimbursed pursuant to
this section.
(b) Must be established at a rate calculated to generate the amount
approved in the budget of the Legislative Counsel Bureau for such
reimbursement.
(c) Must not be charged to agencies whose budgets are supported
entirely from the State General Fund.
(Added to NRS by 1993, 856; A 1993, 2266)
1. An agency shall not adopt, amend or repeal a permanent
regulation until it has received from the Legislative Counsel the
approved or revised text of the regulation in the form to be adopted. The
agency shall immediately notify the Legislative Counsel in writing of the
date of adoption of each regulation adopted.
2. Upon adoption of any regulation, the agency, if requested to do
so by an interested person, either before adoption or within 30 days
thereafter, shall issue a concise statement of the principal reasons for
and against its adoption, and incorporate therein its reason for
overruling the consideration urged against its adoption.
(Added to NRS by 1977, 1382; A 1997, 1391)
1. The Legislative Counsel shall prescribe the numbering, page
size, style and typography of the Nevada Administrative Code. For
convenience of reproduction in the Nevada Administrative Code, he may
prescribe the same matters in original agency regulations.
2. The Legislative Counsel shall cause to be included in the
Nevada Administrative Code the:
(a) Date on which an agency last completed a review of its
regulations pursuant to paragraph (e) of subsection 1 of NRS 233B.050
; and
(b) Citation of authority pursuant to which the agency adopted each
section of a permanent regulation.
3. The Legislative Counsel shall prepare or cause the State
Printer to prepare such sets of the Nevada Administrative Code and of
supplementary pages as are required from time to time. A set must be
provided to and kept respectively:
(a) By the Secretary of State as the master copy;
(b) By the State Library and Archives Administrator for public use;
(c) By the Attorney General for his use and that of the Executive
Department; and
(d) By the Legislative Counsel for his use and that of the
Legislature.
Ê The Legislative Commission may direct the preparation of additional
sets or pages, or both, and specify the places where those sets or parts
of sets are to be kept and the uses to be made of them.
4. The Legislative Counsel shall, without charge, provide:
(a) A complete set of the Nevada Administrative Code, upon request,
to each person who is on July 1, 1985, or who becomes after that date a
member of the Legislature; and
(b) To each Legislator who has so acquired the Nevada
Administrative Code, the replacement or supplementary pages which are
issued during his term of office.
5. Each agency shall reimburse the Legislative Counsel Bureau and
the State Printing Office for their respective costs in preparing and
keeping current that agency’s portion of the Nevada Administrative Code
in the number of copies required for official and public use. If
additional sets or pages are sold, the Legislative Commission shall set
sale prices sufficient to recover at least the cost of production and
distribution of the additional sets or pages.
(Added to NRS by 1977, 1382; A 1985, 38, 463, 1489; 1993, 1494;
1997, 18, 186, 1391, 3152; 1999, 642 , 645 ; 2005, 1085 )
1. The Legislative Counsel shall prepare and publish or cause to
be prepared and published a Register of Administrative Regulations. The
Register must include the following information regarding each permanent
regulation adopted by an agency:
(a) The proposed and adopted text of the regulation and any revised
version of the regulation;
(b) The notice of intent to act upon the regulation set forth in
NRS 233B.0603 ;
(c) The written notice of adoption of the regulation required
pursuant to NRS 233B.064 ;
(d) The informational statement required pursuant to NRS 233B.066
; and
(e) The effective date of the regulation, as determined pursuant to
NRS 233B.070 .
Ê In carrying out the duties set forth in this subsection, the
Legislative Counsel may use the services of the State Printing Office.
2. The Legislative Counsel shall publish the Register not less
than 10 times per year but not more than once every 2 weeks.
3. The Register must be provided to and maintained by:
(a) The Secretary of State;
(b) The Attorney General;
(c) The Supreme Court Law Library;
(d) The State Library and Archives;
(e) Each county clerk;
(f) Each county library; and
(g) The Legislative Counsel Bureau.
4. The Legislative Counsel may sell an additional copy of the
Register to any person or governmental entity that requests a copy, at a
price which does not exceed the cost of publishing the additional copy.
5. The Legislative Counsel is immune from civil liability which
may result from failure to include any information in the Register.
(Added to NRS by 1997, 1389; A 2005, 1085 )
1. The Legislative Counsel shall, without charge, make available
for access on the Internet or its successor, if any, the information
contained in the Register of Administrative Regulations created pursuant
to NRS 233B.0653 . The Legislative
Counsel may determine the manner in which this information is compiled
and must revise the information at least as often as the Register is
published pursuant to NRS 233B.0653 .
2. This section must not be construed to require the Legislative
Counsel to provide any equipment or service that would enable a person to
access the Internet.
(Added to NRS by 1997, 1390)
An agency that takes an emergency action as described in
paragraph (l) of subsection 2 of NRS 233B.038 shall file with the Legislative Counsel
within 5 working days after taking the action a statement that describes
the action taken and the reason for the action. If the agency is
prohibited by federal law, regulation, interpretation or instruction from
describing the action taken or the reason for the action, the statement
must cite the federal law, regulation, interpretation or instruction that
prohibits such disclosure. The Legislative Counsel shall include a
statement filed pursuant to this section in the Register of
Administrative Regulations published pursuant to NRS 233B.0653 .
(Added to NRS by 1999, 2405 )
1. Except as otherwise provided in subsection 2, each adopted
regulation which is submitted to the Legislative Counsel pursuant to NRS
233B.067 or filed with the Secretary
of State pursuant to subsection 2 or 3 of NRS 233B.070 must be accompanied by a statement
concerning the regulation which contains the following information:
(a) A description of how public comment was solicited, a summary of
the public response, and an explanation how other interested persons may
obtain a copy of the summary.
(b) The number of persons who:
(1) Attended each hearing;
(2) Testified at each hearing; and
(3) Submitted to the agency written statements.
(c) A description of how comment was solicited from affected
businesses, a summary of their response, and an explanation how other
interested persons may obtain a copy of the summary.
(d) If the regulation was adopted without changing any part of the
proposed regulation, a summary of the reasons for adopting the regulation
without change.
(e) The estimated economic effect of the regulation on the business
which it is to regulate and on the public. These must be stated
separately, and in each case must include:
(1) Both adverse and beneficial effects; and
(2) Both immediate and long-term effects.
(f) The estimated cost to the agency for enforcement of the
proposed regulation.
(g) A description of any regulations of other state or government
agencies which the proposed regulation overlaps or duplicates and a
statement explaining why the duplication or overlapping is necessary. If
the regulation overlaps or duplicates a federal regulation, the name of
the regulating federal agency.
(h) If the regulation includes provisions which are more stringent
than a federal regulation which regulates the same activity, a summary of
such provisions.
(i) If the regulation provides a new fee or increases an existing
fee, the total annual amount the agency expects to collect and the manner
in which the money will be used.
2. The requirements of paragraphs (a) to (d), inclusive, of
subsection 1 do not apply to emergency regulations.
(Added to NRS by 1981, 186; A 1987, 1581; 1989, 572; 1995, 131,
2580; 2003, 2006 )
If a regulation submitted to the Legislative
Counsel Bureau pursuant to NRS 233B.067 is not accompanied by an informational
statement which complies with the requirements of NRS 233B.066 , the Legislative Counsel shall return the
regulation to the agency with a note that the statement is missing.
Unless the statement is supplied, the Legislative Counsel shall not
submit the regulation to the Commission, and the regulation never becomes
effective. If the statement is supplied, the time for action upon the
regulation must be computed from the date of delivering the statement to
the Legislative Counsel.
(Added to NRS by 1981, 186; A 1995, 2583; 1999, 2204 )
1. After adopting a permanent regulation, the agency shall submit
the informational statement prepared pursuant to NRS 233B.066 and one copy of each regulation adopted to
the Legislative Counsel for review by the Legislative Commission to
determine whether the regulation conforms to the statutory authority
pursuant to which it was adopted and whether the regulation carries out
the intent of the Legislature in granting that authority. The Legislative
Counsel shall endorse on the original and the copy of each adopted
regulation the date of their receipt. The Legislative Counsel shall
maintain the copy of the regulation in a file and make the copy available
for public inspection for 2 years.
2. If an agency submits an adopted regulation to the Legislative
Counsel pursuant to subsection 1 that:
(a) The agency is required to adopt pursuant to a federal statute
or regulation; and
(b) Exceeds the specific statutory authority of the agency or sets
forth requirements that are more stringent than a statute of this State,
Ê it shall include a statement that adoption of the regulation is
required by a federal statute or regulation. The statement must include
the specific citation of the federal statute or regulation requiring such
adoption.
3. Except as otherwise provided in subsection 4, the Legislative
Commission shall:
(a) Review the regulation at its next regularly scheduled meeting
if the regulation is received more than 3 working days before the
meeting; or
(b) Refer the regulation for review to the subcommittee to review
regulations appointed pursuant to subsection 6.
4. If an agency determines that an emergency exists which requires
a regulation of the agency submitted pursuant to subsection 1 to become
effective before the next meeting of the Legislative Commission is
scheduled to be held, the agency may notify the Legislative Counsel in
writing of the emergency. Upon receipt of such a notice, the Legislative
Counsel shall refer the regulation for review by the subcommittee to
review regulations. The subcommittee shall meet to review the regulation
as soon as practicable.
5. If the Legislative Commission, or the subcommittee to review
regulations if the regulation was referred, does not object to the
regulation, the Legislative Counsel shall promptly file the regulation
with the Secretary of State and notify the agency of the filing. If the
Commission or subcommittee objects to the regulation after determining
that:
(a) If subsection 2 is applicable, the regulation is not required
pursuant to a federal statute or regulation;
(b) The regulation does not conform to statutory authority; or
(c) The regulation does not carry out legislative intent,
Ê the Legislative Counsel shall attach to the regulation a written notice
of the objection, including a statement of the reasons for the objection,
and shall promptly return the regulation to the agency.
6. As soon as practicable after each regular legislative session,
the Legislative Commission shall appoint a subcommittee to review
regulations consisting of at least three members of the Legislative
Commission.
(Added to NRS by 1977, 1546; A 1979, 223, 1357; 1981, 508; 1985,
256; 1987, 1581; 1993, 856; 1995, 132, 2581; 1997, 275, 1602; 1999, 2204
; 2003, 2006 ; 2005, 2687 )
1. If the Legislative Commission or the subcommittee to review
regulations has objected to a regulation, the agency shall revise the
regulation to conform to the statutory authority pursuant to which it was
adopted and to carry out the intent of the Legislature in granting that
authority and return it to the Legislative Counsel within 60 days after
the agency received the written notice of the objection to the regulation
pursuant to NRS 233B.067 . Upon
receipt of the revised regulation, the Legislative Counsel shall resubmit
the regulation to the Commission or subcommittee for review. If there is
no objection to the revised regulation, the Legislative Counsel shall
promptly file the revised regulation with the Secretary of State and
notify the agency of the filing.
2. If the Legislative Commission or subcommittee objects to the
revised regulation, the Legislative Counsel shall attach to the revised
regulation a written notice of the objection, including a statement of
the reasons for the objection, and shall promptly return the revised
regulation to the agency. The agency shall continue to revise it and
resubmit it to the Commission or subcommittee within 30 days after the
agency received the written notice of the objection to the revised
regulation.
(Added to NRS by 1981, 510; A 1987, 1582; 1997, 276; 1999, 902
, 2205 ; 2005, 2688 )
The Legislative Commission may provide for:
1. Its early review of a proposed permanent regulation after the
agency has given notice of a hearing on the regulation but before the
hearing is held. If the permanent regulation adopted after the hearing is
identical to the regulation submitted for early review, the Legislative
Counsel shall promptly file the regulation with the Secretary of State
and notify the agency of the filing.
2. A waiver of its review of a permanent regulation in a case of
administrative convenience or necessity.
(Added to NRS by 1981, 510; A 1999, 2205 ; 2003, 2007 )
1. A permanent regulation becomes effective when the Legislative
Counsel files with the Secretary of State the original of the final draft
or revision of a regulation, except as otherwise provided in NRS
233B.0665 or where a later date is
specified in the regulation.
2. Except as otherwise provided in NRS 233B.0633 , an agency that has adopted a temporary
regulation may not file the temporary regulation with the Secretary of
State until 35 days after the date on which the temporary regulation was
adopted by the agency. A temporary regulation becomes effective when the
agency files with the Secretary of State the original of the final draft
or revision of the regulation, together with the informational statement
prepared pursuant to NRS 233B.066 .
The agency shall also file a copy of the temporary regulation with the
Legislative Counsel, together with the informational statement prepared
pursuant to NRS 233B.066 .
3. An emergency regulation becomes effective when the agency files
with the Secretary of State the original of the final draft or revision
of an emergency regulation, together with the informational statement
prepared pursuant to NRS 233B.066 .
The agency shall also file a copy of the emergency regulation with the
Legislative Counsel, together with the informational statement prepared
pursuant to NRS 233B.066 .
4. The Secretary of State shall maintain the original of the final
draft or revision of each regulation in a permanent file to be used only
for the preparation of official copies.
5. The Secretary of State shall file, with the original of each
agency’s rules of practice, the current statement of the agency
concerning the date and results of its most recent review of those rules.
6. Immediately after each permanent or temporary regulation is
filed, the agency shall deliver one copy of the final draft or revision,
bearing the stamp of the Secretary of State indicating that it has been
filed, including material adopted by reference which is not already filed
with the State Library and Archives Administrator, to the State Library
and Archives Administrator for use by the public. If the agency is a
licensing board as defined in NRS 439B.225 and it has adopted a permanent regulation relating to
standards for licensing or registration or for the renewal of a license
or a certificate of registration issued to a person or facility regulated
by the agency, the agency shall also deliver one copy of the regulation,
bearing the stamp of the Secretary of State, to the Legislative Committee
on Health Care within 10 days after the regulation is filed with the
Secretary of State.
7. Each agency shall furnish a copy of all or part of that part of
the Nevada Administrative Code which contains its regulations, to any
person who requests a copy, and may charge a reasonable fee for the copy
based on the cost of reproduction if it does not have money appropriated
or authorized for that purpose.
8. An agency which publishes any regulations included in the
Nevada Administrative Code shall use the exact text of the regulation as
it appears in the Nevada Administrative Code, including the leadlines and
numbers of the sections. Any other material which an agency includes in a
publication with its regulations must be presented in a form which
clearly distinguishes that material from the regulations.
(Added to NRS by 1965, 964; A 1975, 1158, 1414; 1977, 1387, 1549,
1551; 1979, 972; 1983, 1245; 1985, 367, 1490; 1991, 941; 1995, 133, 2582;
1997, 276, 3152; 1999, 642 , 2205 ; 2003, 2007 )
When any
regulation filed with the Secretary of State expires by its own terms or
is replaced by an amended regulation or repealed, and the adopting agency
so informs the Secretary of State, the Secretary of State shall cause the
regulation to be placed in an inactive file.
(Added to NRS by 1965, 965; A 1985, 256)
The Secretary of State’s authenticated file stamp
on the original of the final draft or revision of a regulation raises a
rebuttable presumption that the regulation was adopted and filed in
compliance with all requirements necessary to make it effective.
(Added to NRS by 1965, 965; A 1977, 1549)
1. Any interested person may petition an agency requesting the
adoption, filing, amendment or repeal of any regulation and shall
accompany his petition with relevant data, views and arguments. Each
agency shall prescribe by regulation the form for such petitions and the
procedure for their submission, consideration and disposition. Upon
submission of such a petition, the agency shall within 30 days either
deny the petition in writing, stating its reasons, or initiate
regulation-making proceedings.
2. Any regulation of any agency is subject to amendment or
suspension by the Governor pursuant to the provisions of NRS 416.060
.
(Added to NRS by 1965, 965; A 1977, 551, 1388)
1. A small business that is aggrieved by a regulation adopted by
an agency on or after January 1, 2000, may object to all or a part of the
regulation by filing a petition with the agency that adopted the
regulation within 90 days after the date on which the regulation was
adopted.
2. A petition filed pursuant to subsection 1 may be based on the
following grounds:
(a) The agency failed to prepare a small business impact statement
as required pursuant to NRS 233B.0608 ; or
(b) The small business impact statement prepared by the agency
pursuant to NRS 233B.0608 did not
consider or significantly underestimated the economic effect of the
regulation on small businesses.
3. After receiving a petition pursuant to subsection 1, an agency
shall determine whether the petition has merit. If the agency determines
that the petition has merit, the agency may, pursuant to this chapter,
take action to amend the regulation to which the small business objected.
(Added to NRS by 1999, 2071 )
1. The validity or applicability of any regulation may be
determined in a proceeding for a declaratory judgment in the district
court in and for Carson City, or in and for the county where the
plaintiff resides, when it is alleged that the regulation, or its
proposed application, interferes with or impairs, or threatens to
interfere with or impair, the legal rights or privileges of the
plaintiff. A declaratory judgment may be rendered after the plaintiff has
first requested the agency to pass upon the validity of the regulation in
question. The court shall declare the regulation invalid if it finds that
it violates constitutional or statutory provisions or exceeds the
statutory authority of the agency. The agency whose regulation is made
the subject of the declaratory action shall be made a party to the action.
2. An agency may institute an action for declaratory judgment to
establish the validity of any one or more of its own regulations.
3. Actions for declaratory judgment provided for in subsections 1
and 2 shall be in accordance with the Uniform Declaratory Judgments Act
(chapter 30 of NRS), and the Nevada Rules of
Civil Procedure. In all actions under subsections 1 and 2, the plaintiff
shall serve a copy of the complaint upon the Attorney General, who is
also entitled to be heard.
(Added to NRS by 1965, 965; A 1969, 317; 1977, 1388)
1. Any person who objects to the content of a form required by an
agency to be used in submitting an application, making a declaration or
providing other information may request the Legislative Commission to
determine whether the information required and the instructions for its
preparation conform to the statutory authority pursuant to which the
agency requires it. The Legislative Commission may also make such a
determination on its own motion.
2. If the Legislative Commission finds that any part of the
information or instructions does not conform to statutory authority, the
Legislative Counsel shall so notify the agency.
3. After notification by the Legislative Counsel of the
Legislative Commission’s objection to the form, the agency may revise the
form to conform to statutory authority and resubmit it to the Legislative
Commission. The agency shall not use the form until it has submitted a
revised version to the Legislative Commission and the Commission has
approved the form.
4. If the agency refuses to revise the form, it shall not use the
form until after the expiration of the first 30 days of the next regular
session of the Legislature. Before the 30th day of the next regular
session the Legislature may, by concurrent resolution, declare that the
form must not be used. The Legislative Counsel shall thereupon notify the
agency that it shall not use the form. If the Legislature has not so
declared by the 30th day of the session, the Legislative Counsel shall
promptly notify the agency that it may use the form.
(Added to NRS by 1985, 655; A 1987, 1582; 1997, 277; 1999, 2206
)
Each agency shall provide by regulation for the
filing and prompt disposition of petitions for declaratory orders and
advisory opinions as to the applicability of any statutory provision,
agency regulation or decision of the agency. Declaratory orders disposing
of petitions in such cases shall have the same status as agency
decisions. A copy of the declaratory order or advisory opinion shall be
mailed to the petitioner.
(Added to NRS by 1965, 966)
ADJUDICATION OF CONTESTED CASES
1. In a contested case, all parties must be afforded an
opportunity for hearing after reasonable notice.
2. The notice must include:
(a) A statement of the time, place and nature of the hearing.
(b) A statement of the legal authority and jurisdiction under which
the hearing is to be held.
(c) A reference to the particular sections of the statutes and
regulations involved.
(d) A short and plain statement of the matters asserted. If the
agency or other party is unable to state the matters in detail at the
time the notice is served, the initial notice may be limited to a
statement of the issues involved. Thereafter, upon application, a more
definite and detailed statement must be furnished.
3. Any party is entitled to be represented by counsel.
4. Opportunity must be afforded all parties to respond and present
evidence and argument on all issues involved. An agency may by regulation
authorize the payment of fees and reimbursement for mileage to witnesses
in the same amounts and under the same conditions as for witnesses in the
courts of this state.
5. Unless precluded by law, informal disposition may be made of
any contested case by stipulation, agreed settlement, consent order or
default. If an informal disposition is made, the parties may waive the
requirement for findings of fact and conclusions of law.
6. The record in a contested case must include:
(a) All pleadings, motions and intermediate rulings.
(b) Evidence received or considered.
(c) A statement of matters officially noticed.
(d) Questions and offers of proof and objections, and rulings
thereon.
(e) Proposed findings and exceptions.
(f) Any decision, opinion or report by the hearing officer
presiding at the hearing.
7. Oral proceedings, or any part thereof, must be transcribed on
request of any party.
8. Findings of fact must be based exclusively on substantial
evidence and on matters officially noticed.
(Added to NRS by 1967, 808; A 1977, 56, 1062; 1985, 350)
1. No agency member who acts as an investigator or prosecutor in
any contested case may take any part in the adjudication of such case.
2. If an officer of an agency disqualifies himself or is
disqualified from participating in the adjudication of any contested case
in which a decision will be rendered which is subject to judicial review,
the officer shall send within 3 working days after the disqualification a
notice of it to the authority which appointed him to the agency. The
appointing authority shall within 5 working days after receiving the
notice appoint a person to serve in the place of the disqualified officer
only for the purpose of participating in the adjudication of the
contested case.
3. The person appointed under subsection 2 shall have the same
qualifications required by law of the officer whom he replaces and is
entitled to the same salary and per diem and travel expenses allowed to
that officer.
(Added to NRS by 1967, 808; A 1977, 661)
In contested cases:
1. Irrelevant, immaterial or unduly repetitious evidence must be
excluded. Evidence may be admitted, except where precluded by statute, if
it is of a type commonly relied upon by reasonable and prudent persons in
the conduct of their affairs. Agencies shall give effect to the rules of
privilege recognized by law. Objections to evidentiary offers may be made
and must be noted in the record. Subject to the requirements of this
subsection, when a hearing will be expedited and the interests of the
parties will not be prejudiced substantially, any part of the evidence
may be received in written form.
2. Documentary evidence may be received in the form of
authenticated copies or excerpts, if the original is not readily
available. Upon request, parties must be given an opportunity to compare
the copy with the original.
3. Every witness shall declare, by oath or affirmation, that he
will testify truthfully.
4. Each party may call and examine witnesses, introduce exhibits,
cross-examine opposing witnesses on any matter relevant to the issues
even though the matter was not covered in the direct examination, impeach
any witness, regardless of which party first called him to testify, and
rebut the evidence against him.
5. Notice may be taken of judicially cognizable facts and of
generally recognized technical or scientific facts within the specialized
knowledge of the agency. Parties must be notified either before or during
the hearing, or by reference in preliminary reports or otherwise, of the
material noticed, including any staff memoranda or data, and they must be
afforded an opportunity to contest the material so noticed. The
experience, technical competence and specialized knowledge of the agency
may be utilized in the evaluation of the evidence.
(Added to NRS by 1967, 808; A 1977, 57; 1997, 1603)
Unless limited by a specific statute, any person authorized to preside
over a hearing in a contested case may administer oaths or affirmations
to witnesses appearing before him in the hearing.
(Added to NRS by 1981, 80)
A witness during his testimony at a hearing of a
contested case, who is a person with a disability as defined in NRS
50.050 , is entitled to the services of
an interpreter at public expense, subject to the provisions of NRS 50.052
and 50.053 . The interpreter must be:
1. Qualified to engage in the practice of interpreting in this
state pursuant to subsection 2 of NRS 656A.100 ; and
2. Appointed by the person who presides at the hearing.
(Added to NRS by 1979, 657; A 2001, 1777 )
Where, in a contested case, a
majority of the officials of the agency who are to render the final
decision have not heard the case or read the record, the decision, if
adverse to a party to the proceeding other than the agency itself, shall
not be made until a proposal for decision is served upon the parties, and
an opportunity is afforded to each party adversely affected to file,
within 20 days, exceptions and present briefs and oral argument to the
officials who are to render the decision. The proposal for decision shall
contain a statement of the reasons therefor and of each issue of fact or
law necessary to the proposed decision, prepared by the person who
conducted the hearing or one who has read the record. The parties by
written stipulation may waive compliance with this section.
(Added to NRS by 1967, 809)
A decision or order adverse to a party in a contested
case must be in writing or stated in the record. Except as provided in
subsection 5 of NRS 233B.121 , a final
decision must include findings of fact and conclusions of law, separately
stated. Findings of fact and decisions must be based upon substantial
evidence. Findings of fact, if set forth in statutory language, must be
accompanied by a concise and explicit statement of the underlying facts
supporting the findings. If, in accordance with agency regulations, a
party submitted proposed findings of fact, the decision must include a
ruling upon each proposed finding. Parties must be notified either
personally or by certified mail of any decision or order. Upon request a
copy of the decision or order must be delivered or mailed forthwith to
each party and to his attorney of record.
(Added to NRS by 1967, 809; A 1985, 351)
Unless required for the disposition of ex parte matters
authorized by law, members or employees of an agency assigned to render a
decision or to make findings of fact and conclusions of law in a
contested case shall not communicate, directly or indirectly, in
connection with any issue of fact, with any person or party, nor, in
connection with any issue of law, with any party or his representative,
except upon notice and opportunity to all parties to participate. An
agency member may, subject to the provisions of NRS 233B.123 :
1. Communicate with other members of the agency.
2. Have the aid and advice of one or more personal assistants.
(Added to NRS by 1967, 809)
1. When the grant, denial or renewal of a license is required to
be preceded by notice and opportunity for hearing, the provisions of this
chapter concerning contested cases apply.
2. When a licensee has made timely and sufficient application for
the renewal of a license or for a new license with reference to any
activity of a continuing nature, the existing license does not expire
until the application has been finally determined by the agency, and, in
case the application is denied or the terms of the new license limited,
until the last day for seeking review of the agency order or a later date
fixed by order of the reviewing court.
3. No revocation, suspension, annulment or withdrawal of any
license is lawful unless, prior to the institution of agency proceedings,
the agency gave notice by certified mail to the licensee of facts or
conduct which warrant the intended action, and the licensee was given an
opportunity to show compliance with all lawful requirements for the
retention of the license. If the agency finds that public health, safety
or welfare imperatively require emergency action, and incorporates a
finding to that effect in its order, summary suspension of a license may
be ordered pending proceedings for revocation or other action. Such
proceedings shall be promptly instituted and determined.
4. Except as otherwise provided in this subsection, a person must
not be admitted as a party to an administrative proceeding in a contested
case involving the grant, denial or renewal of a license unless he
demonstrates to the satisfaction of the presiding hearing officer that:
(a) His financial situation is likely to be maintained or to
improve as a direct result of the grant or renewal of the license; or
(b) His financial situation is likely to deteriorate as a direct
result of the denial of the license or refusal to renew the license.
Ê The provisions of this subsection do not preclude the admission, as a
party, of any person who will participate in the administrative
proceeding as the agent or legal representative of an agency.
(Added to NRS by 1967, 810; A 2005, 1002 )
1. Any party who is:
(a) Identified as a party of record by an agency in an
administrative proceeding; and
(b) Aggrieved by a final decision in a contested case,
Ê is entitled to judicial review of the decision. Where appeal is
provided within an agency, only the decision at the highest level is
reviewable unless a decision made at a lower level in the agency is made
final by statute. Any preliminary, procedural or intermediate act or
ruling by an agency in a contested case is reviewable if review of the
final decision of the agency would not provide an adequate remedy.
2. Petitions for judicial review must:
(a) Name as respondents the agency and all parties of record to the
administrative proceeding;
(b) Be instituted by filing a petition in the district court in and
for Carson City, in and for the county in which the aggrieved party
resides or in and for the county where the agency proceeding occurred; and
(c) Be filed within 30 days after service of the final decision of
the agency.
Ê Cross-petitions for judicial review must be filed within 10 days after
service of a petition for judicial review.
3. The agency and any party desiring to participate in the
judicial review must file a statement of intent to participate in the
petition for judicial review and serve the statement upon the agency and
every party within 20 days after service of the petition.
4. A petition for rehearing or reconsideration must be filed
within 15 days after the date of service of the final decision. An order
granting or denying the petition must be served on all parties at least 5
days before the expiration of the time for filing the petition for
judicial review. If the petition is granted, the subsequent order shall
be deemed the final order for the purpose of judicial review.
5. The petition for judicial review and any cross-petitions for
judicial review must be served upon the agency and every party within 45
days after the filing of the petition, unless, upon a showing of good
cause, the district court extends the time for such service. If the
proceeding involves a petition for judicial review or cross-petition for
judicial review of a final decision of the State Contractors’ Board or of
a final decision of an agency or hearing officer in a contested case
involving the grant, denial or renewal of a license, the district court
shall, on its own motion or the motion of a party, dismiss from the
proceeding any agency or person who:
(a) Is named as a party in the petition for judicial review or
cross-petition for judicial review; and
(b) Was not a party to the administrative proceeding for which the
petition for judicial review or cross-petition for judicial review was
filed.
6. The provisions of this chapter are the exclusive means of
judicial review of, or judicial action concerning, a final decision in a
contested case involving an agency to which this chapter applies.
(Added to NRS by 1965, 966; A 1969, 318; 1975, 495; 1977, 57; 1981,
80; 1989, 1651; 1991, 465; 2003, 1904 ; 2005, 1003 )
1. Within 30 days after the service of the petition for judicial
review or such time as is allowed by the court, the agency that rendered
the decision which is the subject of the petition shall transmit to the
reviewing court the original or a certified copy of the entire record of
the proceeding under review, including a transcript of the evidence
resulting in the final decision of the agency. The record may be
shortened by stipulation of the parties to the proceedings. A party
unreasonably refusing to stipulate to limit the record, as determined by
the court, may be assessed by the court any additional costs. The court
may require or permit subsequent corrections or additions to the record.
2. If, before submission to the court, an application is made to
the court for leave to present additional evidence, and it is shown to
the satisfaction of the court that the additional evidence is material
and that there were good reasons for failure to present it in the
proceeding before the agency, the court may order that the additional
evidence and any rebuttal evidence be taken before the agency upon such
conditions as the court determines.
3. After receipt of any additional evidence, the agency:
(a) May modify its findings and decision; and
(b) Shall file the evidence and any modifications, new findings or
decisions with the reviewing court.
(Added to NRS by 1989, 1649)
1. A petitioner or cross-petitioner who is seeking judicial review
must serve and file a memorandum of points and authorities within 40 days
after the agency gives written notice to the parties that the record of
the proceeding under review has been filed with the court.
2. The respondent or cross-petitioner shall serve and file a reply
memorandum of points and authorities within 30 days after service of the
memorandum of points and authorities.
3. The petitioner or cross-petitioner may serve and file reply
memoranda of points and authorities within 30 days after service of the
reply memorandum.
4. Within 7 days after the expiration of the time within which the
petitioner is required to reply, any party may request a hearing. Unless
a request for hearing has been filed, the matter shall be deemed
submitted.
5. All memoranda of points and authorities filed in proceedings
involving petitions for judicial review must be in the form provided for
appellate briefs in Rule 28 of the Nevada Rules of Appellate Procedure.
6. The court, for good cause, may extend the times allowed in this
section for filing memoranda.
(Added to NRS by 1989, 1649)
1. Judicial review of a final decision of an agency must be:
(a) Conducted by the court without a jury; and
(b) Confined to the record.
Ê In cases concerning alleged irregularities in procedure before an
agency that are not shown in the record, the court may receive evidence
concerning the irregularities.
2. The final decision of the agency shall be deemed reasonable and
lawful until reversed or set aside in whole or in part by the court. The
burden of proof is on the party attacking or resisting the decision to
show that the final decision is invalid pursuant to subsection 3.
3. The court shall not substitute its judgment for that of the
agency as to the weight of evidence on a question of fact. The court may
remand or affirm the final decision or set it aside in whole or in part
if substantial rights of the petitioner have been prejudiced because the
final decision of the agency is:
(a) In violation of constitutional or statutory provisions;
(b) In excess of the statutory authority of the agency;
(c) Made upon unlawful procedure;
(d) Affected by other error of law;
(e) Clearly erroneous in view of the reliable, probative and
substantial evidence on the whole record; or
(f) Arbitrary or capricious or characterized by abuse of discretion.
(Added to NRS by 1989, 1650)
1. A petitioner who applies for a stay of the final decision in a
contested case shall file and serve a written motion for the stay on the
agency and all parties of record to the proceeding at the time of filing
the petition for judicial review.
2. In determining whether to grant a stay, the court shall
consider the same factors as are considered for a preliminary injunction
under Rule 65 of the Nevada Rules of Civil Procedure.
3. In making a ruling, the court shall:
(a) Give deference to the trier of fact; and
(b) Consider the risk to the public, if any, of staying the
administrative decision.
Ê The petitioner must provide security before the court may issue a stay.
(Added to NRS by 1967, 810; A 1977, 58; 1989, 1652)
An
aggrieved party may obtain a review of any final judgment of the district
court by appeal to the Supreme Court. The appeal shall be taken as in
other civil cases.
(Added to NRS by 1967, 811)
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