Response to Teej
Teej - No hostility towards you or anybody else. I regret if you perceived such. Maybe just some frustration on this issue. I enjoy our exchanges even when we are in disagreement.
I want to ask you: What is different about the CWL process with Sections 100/101 (reality) as opposed to if Act 35 did not have those provisions? I see it this way:
SITUATION A. Without Section 100/101
The effective date of all relevant sections is the first day of the fourth month (= November 1, 2011).
The design of the application form and license must be completed by the first day of the second month (= September 1, 2011).
There is no explicit information regarding the date of availability of the application form.
SITUATION B. With Section 100/101
Same except that Wis. Stat. 165.25(12) {list of recognized states}, 175.60(2m) {content of license}, 175.60(5) {application form content}, Sections 100 and 101 are effective the day after publication (= July 23, 2011).
SITUATION A. Since the section mandates that application forms be available by internet and mail (at least) but doesn't say when, is it not reasonable to use the effective date of the section as the "when"? Of course, DoJ cannot provide an application form that does not exist (or is claimed not to exist), so they would have until September 1, 2011 in any case to provide the form. But since this section has an effective date of 11/1/2011, that should be the date by which the application would be available. There is the anomaly that under this hypothetical situation, the requirement date of having the design done would predate the effective date of the section but let us imagine that the design date would also be the 1st of the 4th.
The processing of the application likewise would come into force on (Tuesday) 11/1/2011. Assuming that the application form is indeed available, the first one could be turned into DoJ on 11/1/2011 and they would have 21 days (not counting the day of submission and using calendar days) until (Tuesday) 11/22/2011 to either mail the license or an explanation of why it was denied. Naturally, there is no (good) reason that it could not be done before and the first applications should be acted upon in a day or two.
Regarding the list of recognized states, again there is no "do by" date, so unless there is a timeframe specified in the law that governs administrative procedures, I think "reasonable" would again be the watchword. One week to ten days (working day count) should be sufficient for the base list.
I would guess that your view of SITUATION A is pretty much in synch with mine but tell me where you dissent.
SITUATION B. What we have is a change in the effective dates of certain sections of Act 35. Specifically,
Wis. Stat. 165.25(12) {list of recognized states} is effective the day after publication (= July 23, 2011). Comparably to SITUATION A, the base list ought to be available NLT mid-August.
Wis. Stat. 175.60(2m) {content of license} and 175.60(5) {application form content} are effective the day after publication (= July 23, 2011). The deadline for design is September 1, 2011. Given that there is at least six weeks from the effective date to the finish design date, there really cannot be any excuse for not having the applications available on September 1, 2011. Once again, the date is the latest, it is certainly possible for DoJ to have the designs done and form available much sooner. However, I expect them to hide behind the September 1 date.
I would expect that you would (more or less) agree with this analysis even though you believe that the availability of the forms is a moot issue.
Now the fun begins. Sections 100 and 101 are effective the day after publication (= July 23, 2011). Probably no dispute. The question is what is the impact of these two sections. First, let me say that I do not want to get involved in a semantic quibble. My position is that a NSP is still law. It is part of Act 35. I will concede that these sections will not be found in a bound volume of Wisconsin Statutes down the road. This is typical with laws that deal with temporary or non-general subjects (budget bills come to mind). However, the fact that it is a NSP does not mean it has no effect. It that were true, why would the legislature bother passing it? It is also an axiom that the legislature, while it can make mistakes, does not pass laws that they know are meaningless. With that in mind, we can look at these sections and attempt to discern what the legislature was attempting to do.
Section 100(1) is an authorization to waive certain requirements for publishing "emergency" regulations. It avoids the requirement of public hearings, notice, etc. I think the legislature wanted DoJ to get this list established ASAP without bureaucratic barriers being thrown up. What do you think?
Section 100(2) says that Wis. Stat. 175.60(9)(b) {requirement to act upon an application within 21 days}" notwithstanding" or to put it another way, even though that section requires action within 21 days, starting on the effective date of Section 100 (= July 23, 2011) and until the first day of the fifth month (= December 1, 2011), DoJ will have 45 days to act upon an application. So from November 1st to November 30th (at least), an application that would have had only 21 days under the provisions of Wis. Stat. 175.60, now has 45 days. Now why did the legislature include this provision? And do you think that they would do so only for a single month? Why didn't they say "starting on the 1st of the 4th and until the 1st of the 5th"? Or do you think that they intended 7/23-11/30 and just screwed up by not explicitly providing DoJ with authority to process before 11/1?
I think the legislature wanted licensing to begin ASAP. They gave DoJ until 9/1 to design the form (a generous amount of time). They wanted applications available as soon as designed but NLT 9/1. Considering that DoJ might need more processing time during the ramp-up phase, they gave it to them (45 days vs. 21 days). There was no need to change the effective dates of Wis. Stat. 175.60 because the power to process applications is given (implicitly) by the mandate to process the applications from 7/23 to 11/30 within 45 days. Even if you think the legislature erred by not changing the effective date of the whole of 175.60, I think the material there is enough to convince any (non-Sumian) judge that (1) DoJ must make applications available ASAP but no later than 9/1 and (2) That upon receipt of an application, DoJ must process it and either issue or deny within 45 days (applications received 7/23-11/30) or 21 days (applications received on or after 12/1).
Your thoughts?
P.S. I appreciate your reference to the radiology issue but you confuse the authority of the legislature to set state standards for a profession with attempting to dictate to an independent, private standard-setting body how to do its job. Wisconsin can set its own standards for toaster safety, it cannot set the UL standard for toaster safety, even in Wisconsin.
