495—31.9(17A) Variance between adopted rule and published notice of proposed rule adoption.

1. 31.9(1)  The agency shall not adopt a rule that differs from the rule proposed in a 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 that 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 that rule-making proceeding could be the rule in question.

2. 31.9(2)  In determining whether a Notice of Intended Action provided fair warning that the outcome of that rule-making proceeding could be the rule in question, the agency shall consider the following factors:

   1. a. The extent to which persons who will be affected should have understood that the rule making on which it is based could affect their interests;
   2. b. The extent to which the subject matter or the issues determined by the adopted rule are different from the subject matter or issues contained in the Notice of Intended Action; and
   3. c. The extent to which the effects of the adopted rule differ from the effects of the proposed rule contained in the Notice of Intended Action.
3. 31.9(3)  The agency shall commence a rule-making proceeding within 60 days of its receipt of a petition for rule making seeking the amendment or repeal of an adopted rule that differs from the proposed rule contained in the Notice of Intended Action upon which the adopted rule is based, unless the agency finds that the differences are so insubstantial as to make such a rule-making proceeding wholly unnecessary. A copy of any such finding and the petition to which it responds shall be sent to petitioner, the administrative rules coordinator, and the administrative rules review committee, within three days of its issuance.
4. 31.9(4)  Concurrent rule-making proceedings. Nothing in this rule sets aside the discretion of the agency to initiate, concurrently, several different rule-making proceedings on the same subject each with its appropriate Notice of Intended Action.