227.136 (5). No state employee or official may perform any activity in connection with the drafting of a proposed rule, except for an activity necessary to prepare the statement of the scope of the proposed rule until the governor and the individual or body with policy-making powers over the subject matter of the proposed rule approve the statement. This subsection does not prohibit an agency from performing an activity necessary to prepare a petition and proposed rule for submission under s. 227.26 (4). (3) If the governor approves a statement of the scope of a proposed rule under sub. (2), the agency shall send an electronic copy of the statement to the legislative reference bureau, in a format approved by the legislative reference bureau, for publication in the register. On the same day that the agency sends the statement to the legislative reference bureau, the agency shall send a copy of the statement to the secretary of administration and to the chief clerks of each house of the legislature, who shall distribute the statement to the cochairpersons of the joint committee for review of administrative rules. The agency shall include with any statement of scope sent to the legislative reference bureau the date of the governor’s approval of the statement of scope. The legislative reference bureau shall assign a discrete identifying number to each statement of scope and shall include that number and the date of the governor’s approval in the publication of the statement of scope in the register. (4) If at any time after a statement of the scope of a proposed rule is approved under sub. (2) the agency changes the scope of the proposed rule in any meaningful or measurable way, including changing the scope of the proposed rule so as to include in the scope any activity, business, material, or product that is not specifically included in the original scope of the proposed rule, the agency shall prepare and obtain approval of a revised statement of the scope of the proposed rule in the same manner as the original statement was prepared and approved under subs. (1) and (2). No state employee or official may perform any activity in connection with the drafting of the proposed rule except for an activity necessary to prepare the revised statement of the scope of the proposed rule until the revised statement is so approved. (5) A statement of scope shall expire on the date that is 30
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months after the date on which it is published in the register. After a statement of scope expires, an agency may not submit a proposed rule based upon that statement of scope to the legislature for review under s. 227.19 (2), and any such rule that has not been submitted to the legislature for review before that date shall be considered withdrawn on that date as provided in s. 227.14 (6) (c) 1. a. For purposes of this subsection, a revised statement of scope prepared under sub. (4) shall expire on the date that is 30 months after the date on which the revised statement is published in the register. History: 1995 a. 106; 2003 a. 118, 145; 2005 a. 249; 2007 a. 20; 2011 a. 21; 2013 a. 20, 165; 2017 a. 39, 57, 108. The requirement that agencies receive gubernatorial approval under sub. (2) prior to drafting a proposed rule, and again under s. 227.185 before submitting the rule to the legislature, is constitutional as applied to the state superintendent of public instruction and the Department of Public Instruction. Koschkee v. Taylor, 2019 WI 76, 387 Wis. 2d 552, 929 N.W.2d 600, 17-2278. Under sub. (4), there is a change to the scope of a proposed rule only when the agency changes a draft rule under consideration in a way that meaningfully or measurably departs from the topics described in the previously authorized scope statement. There is no need for a revised scope statement if all of the topics covered in both the initial and changed versions of the draft rule fit within the range of topics for potential rules described in the previously authorized scope statement. Applegate-Bader Farm, LLC v. DOR, 2020 WI App 7, 390 Wis. 2d 708, 940 N.W.2d 725, 18-1239. Reversed on other grounds. 2021 WI 26, 396 Wis. 2d 69, 955 N.W.2d 793, 18-1239. Practice Tips: Finding Administrative Intent in the Wisconsin Administrative Register. Sefarbi. Wis. Law. Apr. 2003. Changing the Rules on Rulemaking. Sklansky. Wis. Law. Aug. 2011.
227.136 Preliminary public hearing and comment period. (1) Within 10 days after publication of a statement of the scope of a proposed rule under s. 227.135 (3), either cochairperson of the joint committee for the review of administrative rules may submit a written directive to the agency that prepared the statement for the agency to hold a preliminary public hearing and comment period on the statement of scope as provided in this section. (2) If the agency is directed to hold a preliminary public hearing and comment period on a statement of scope as provided in sub. (1) or if the agency otherwise opts to do so on its own initiative, the agency shall submit to the legislative reference bureau, in a format approved by the legislative reference bureau, a notice of a preliminary public hearing and comment period to allow for public comment and feedback on the statement of scope. The agency may also take any other action it considers necessary to provide notice of the preliminary public hearing and comment period to other interested persons. The notice shall be approved by the individual or body with policy-making powers over the subject matter of the proposed rule and shall include all of the following: (a) A statement of the date, time, and place of the preliminary public hearing. (b) The place where comments on the statement of scope should be submitted and the deadline for submitting those comments. (3) The agency shall hold the preliminary public hearing and comment period in accordance with the notice required under sub. (2), but may not hold the hearing sooner than the 3rd day after publication of the notice in the register. (4) The agency shall conduct a hearing under this section in accordance with s. 227.18. (5) The agency shall report all public comments and feedback on the statement of scope of the proposed rule that the agency receives at the preliminary public hearing and comment period to the individual or body with policy-making powers over the subject matter of the proposed rule. (6) Failure of any person to receive notice of a preliminary public hearing as provided in this section is not grounds for invalidating any resulting rule if notice of the hearing was published in the register in accordance with s. 35.93 (2) (b) 3. bm.
May 22, 2026, are designated by NOTES. (Published 5-22-26)
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(7) For the purpose of soliciting public comment, an agency may hold a hearing on the general subject matter of possible or anticipated rules before preparing a statement of scope for a proposed rule. A hearing held under this subsection does not relieve the agency from its obligation to comply with a directive under sub. (1) or the requirement to hold a hearing under s. 227.16. History: 2017 a. 57 ss. 5, 17.