AGO 97060.

• Court: Nebraska

Nebraska Attorney General Opinions 1997. AGO 97060. DATE: December 1, 1997SUBJECT: Powers of the Nebraska Department of Roads regarding public and private highway-rail grade crossings. REQUESTED BY: Allan L. Abbott, Director-State Engineer Nebraska Department of RoadsWRITTEN BY: Don Stenberg, Attorney General John E. Brown, Assistant Attorney General You have asked several questions regarding the implementation of L.B. 255 enacted by the 1997 Nebraska Legislature. You have first asked whether the rules and regulations of the Public Service Commission pertaining to matters transferred to the Nebraska Department of Roads by LB 255 are void, or whether the Nebraska Department of Roads can use those rules until the Department promulgates rules of its own? Although we find no authority to determine that the rules themselves are void, the rules allow the Public Service Commission to implement the powers granted to the Commission by statute, and because LB 255 removed the statutory power granted the Public Service Commission, the Public Service Commission itself is without power to enforce the rules and regulations transferred to the Department of Roads by LB 255. There is no doubt that the Legislature can delegate to an administrative agency the power to make rules and regulations to implement the policy of a statute. County of Dodge v. Department of Health, 218 Neb. 346, 355 N.W.2d 775 (1984). However, the agency is limited in its rulemaking authority to the power delegated to it by the statute which it is to administer. Id. In order to be valid, a rule or regulation must be consistent with a statute under which the rule and regulation is promulgated. Id.; United States v. Larionoff, 431 U.S. 864, 97 S.Ct. 2150, 53 L.Ed.2d 48 (1977). State ex rel. Spire v. Stodola, 228 Neb. 107, 109, 421 N.W.2d 436, 438 (1988). When the Legislature amended the statutes that the rules and regulations of the Public Service Commission were meant to implement, the Legislature revoked the power conferred on the Public Service Commission to enforce these rules and regulations. You have asked whether the Department of Roads can use the rules and regulations of the Public Service Commission until the Department promulgates rules of its own. We can find no authority that would allow the Department of Roads to use or enforce the rules and regulations of the Public...