2-4-406. Committee objection to violation of authority for rule -- effect. (1) Subject to 2-4-112, the appropriate administrative rule review committee may informally object to a notice of proposed rulemaking. If a majority of the members of the appropriate administrative rule review committee notify the committee presiding officer that they object to all or a portion of a notice of proposed rulemaking:

(a) the committee shall notify the agency in writing of the objection;

(b) the committee shall address the objections at the next committee meeting; and

(c) the objecting members shall be identified in the committee's records.

(d) The proposal notice to which the committee objects may not be adopted until publication of the last issue of the register that is published before expiration of the 6-month period during which the adoption notice must be published, unless prior to that time, the committee meets and does not renew the objection by majority vote.

(2) (a) Subject to 2-4-112, the appropriate administrative rule review committee may formally object to a proposed or adopted rule. If the appropriate administrative rule review committee objects to all or some portion of a proposed or adopted rule because the committee, by majority vote, considers it not to have been proposed or adopted in substantial compliance with 2-4-302, 2-4-303, and 2-4-305, the committee shall send a written objection to the agency:

(i) that contains a concise statement of the committee's reasons for its action;

(ii) that sets forth the provisions of 2-4-302, 2-4-303, and 2-4-305 with which the proposal does not comply and the basis for belief of noncompliance; and

(iii) that must be included in the committee's records.

(b) Following notice by the committee to the agency, all or a portion of the proposal notice that the committee objects to may not be adopted until:

(i) publication of the last issue of the register that is published before expiration of the 6-month period during which the adoption notice must be published, unless prior to that time, the committee meets and does not make the same objection; or

(ii) as provided in 2-4-306(4)(c).

(3) Within 14 days after the mailing of a committee formal objection to a rule, the agency promulgating the rule shall respond in writing to the committee. After receipt of the response, the committee may withdraw or modify its objection.

(4) Subject to 2-4-112, if the committee fails to withdraw or substantially modify its formal objection to a rule, it may vote to send the objection to the secretary of state, who shall, upon receipt of the objection, publish the objection in the register adjacent to any notice of adoption of the rule and in the ARM adjacent to the rule, provided an agency response must also be published if requested by the agency. Costs of publication of the objection and the agency response must be paid by the committee.

(5) If a formal objection to all or a portion of a rule has been published pursuant to subsection (4), the agency bears the burden, in any action challenging the legality of the rule or portion of a rule objected to by the committee, of proving that the rule or portion of the rule objected to was adopted in substantial compliance with 2-4-302, 2-4-303, and 2-4-305. If a rule is invalidated by court judgment because the agency failed to meet its burden of proof imposed by this subsection and the court finds that the rule was adopted in arbitrary and capricious disregard for the purposes of the authorizing statute, the court may award costs and reasonable attorney fees against the agency.