111—3.9(17A) Variance between adopted rule and published notice of proposed rule adoption.

1. 3.9(1)  The commission shall not adopt a rule that differs from the rule proposed in the Notice of Intended Action on which the rule is based unless:

   1. a. The differences are within the scope of the subject matter announced in the Notice of Intended Action and are in character with the issues raised in that notice; and
   2. b. The differences are a logical outgrowth of the contents of the Notice of Intended Action and the comments submitted in response thereto; and
   3. c. The Notice of Intended Action provided fair warning that the outcome of the rule-making proceeding could be the rule in question.

2. 3.9(2)  In determining whether the Notice of Intended Action provided fair warning that the outcome of the rule-making proceeding could be the rule in question, the department shall consider the following factors:

   1. a. The extent to which persons who will be affected by the rule should have understood that the rule-making proceeding on which it is based could affect their interests.
   2. b. The extent to which the subject matter of the rule or the issues determined by the rule are different from the subject matter or issues contained in the Notice of Intended Action.
   3. c. The extent to which the effects of the rule differ from the effects of the proposed rule contained in the Notice of Intended Action.
3. 3.9(3)  The department shall commence a rule-making proceeding within 60 days of its receipt of a petition for rule making seeking the amendment or repeal of a rule that differs from the proposed rule contained in the Notice of Intended Action upon which the rule is based, unless the department finds that the differences between the adopted rule and the proposed rule are so insubstantial as to make the rule-making proceeding wholly unnecessary. A copy of any such finding and the petition to which it responds shall be sent to the petitioner, the administrative rules coordinator and the administrative rules review committee within three days of its issuance.
4. 3.9(4)  Concurrent rule-making proceedings. Nothing in this rule disturbs the discretion of the department to initiate, concurrently, several different rule-making proceedings on the same subject with several different published Notices of Intended Action.