(a) The Boiler Inspection Division may not adopt a rule that differs from the rule proposed in the published notice of the intended rulemaking on which the rule is based unless:

1. (1) The final rule is in character with the original scheme and was a logical outgrowth of the notice and comments stemming from the proposed rule; or
2. (2) The notice fairly apprised interested persons of the subject and the issues that would be considered so that those persons had an opportunity to comment.

(b) In determining whether the final rule is in character with the original scheme and was a logical outgrowth of the notice and comments, and that the notice of intended rulemaking provided fair warning that the outcome of that rulemaking proceeding could be the rule in question, the division must consider the following factors:

1. (1) The extent to which persons who will be affected by the rule should have understood that the rulemaking proceeding on which it is based could affect their interests;
2. (2) The extent to which the subject matter of the rule or issues determined by the rule are different from the subject matter or issues contained in the notice of intended rulemaking; and
3. (3) The extent to which the effects of the rule differ from the effects of the proposed rule contained in the notice of intended rulemaking.