I 117th CONGRESS 1st Session H. R. 6107 IN THE HOUSE OF REPRESENTATIVES December 1, 2021 Ms. Jayapal (for herself and Mr. Cicilline ) introduced the following bill; which was referred to the Committee on the Judiciary , and in addition to the Committee on Oversight and Reform , for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned A BILL To amend title 5, United States Code, to require disclosure of conflicts of interest with respect to rulemaking, and for other purposes.

1. Short title This Act may be cited as the Stop Corporate Capture Act . 2. Disclosure of conflicts of interest (a) In general Section 553 of title 5, United States Code, is amended— (1) in subsection (c)— (A) by inserting after (c) the following: Notice requirement.— ; (B) by striking After notice required and inserting the following: (1) In general After notice required ; and (C) by adding at the end the following: (2) Submissions including scientific, economic, or technical materials In the case of any submission by an interested person that includes a scientific, economic, or technical study, or the nonpublic results of any scientific research, the interested person shall disclose to the agency, the following: (A) What funds were received by the person who conducted the study or research. (B) The entity that provided the funds referred to in subparagraph (A). (C) Any entity that was allowed to review or revise the study or research, and the extent of that review or revision. (D) Any financial relationship between the person who conducted the study or research, and any party that would be affected by the proposed rule. ; (2) in subsection (c), in the first sentence, by inserting , subject to subsections (f) and (h), after the agency shall ; and (3) by adding at the end the following: (f) With respect to any submission by an interested person under subsection (c) or any other submission by an interested person relating to a proposed rule or final rule that incorporates or includes a scientific, economic, or technical study, or any other result of scientific research not published in a publicly available peer-reviewed publication, the interested person, in making that submission, shall disclose— (1) the source of the funding for that study or research, as applicable; (2) any entity that sponsored the study or research; (3) the extent to which the findings of the study or research were reviewed by a party that may be affected by the rulemaking to which the submission relates; (4) the identity of any party identified under paragraph (3); and (5) the nature of any financial relationship, including a consulting agreement, the support of any expert witness, and the funding of research, between any person that conducted the study or research and any interested person with respect to the rulemaking to which the submission relates. . (b) Application Section 553(f) of title 5, United States Code, as amended by subsection (a), shall apply with respect to submissions made by interested persons on and after the date of enactment of this Act. 3. Increasing disclosures relating to studies and research (a) In general Section 553 of title 5, United States Code, as amended by section 1 of this Act, is amended by adding at the end the following: (g) With respect to a study or research that is submitted by an interested person to an agency under subsection (c), the agency shall ensure that the study or research is available to the public, unless disclosure is prohibited under section 552 of this title. (h) (1) If a study or research submitted by an interested person to an agency under subsection (c) presents a conflict described in paragraph (2), the agency shall disclose the conflict to the public by publication in the Federal Register and on the agency website, unless disclosure is prohibited under section 552 this title. (2) A conflict described in this paragraph means a study or research for which— (A) not less than 10 percent of the funding for the study or research is from an entity that is regulated by the agency; or (B) an entity that is regulated by the agency exercises editorial control over the study or research. (i) With respect to a rulemaking under this section, an agency shall include in the notice of proposed rulemaking required under subsection (b) and in the final rule published under subsection (d) a description of how the agency considered scientific evidence, including any study or research. . (b) Application Subsections (g), (h), and (i) of section 553 of title 5, United States Code, as added by subsection (a), shall apply with respect to submissions made by interested persons on and after the date of enactment of this Act. 4. Disclosure of inter-governmental rule changes (a) Definitions In this section— (1) the term Administrator means the Administrator of the Office; (2) the terms agency , regulatory action , have the meanings given those terms in section 3 of the Executive Order; (3) the term Executive Order means Executive Order 12866 ( 5 U.S.C. 601 note; relating to regulatory planning and review); and (4) the term Office means the Office of Information and Regulatory Affairs. (b) Requirement With respect to any regulatory action that an agency provides to the Office under section 6(a)(3) of the Executive Order, the agency shall— (1) not later than the date on which the agency publishes the general notice of proposed rulemaking required under section 553(b) of title 5, United States Code, with respect to the action, place in the rulemaking docket— (A) the substance of any changes between the text of the draft regulatory action that the agency provided to the Office under section 6(a)(3)(B)(i) of the Executive Order and the text published in that general notice with respect to the action; and (B) a statement regarding whether any change described in subparagraph (A) was made at the request of— (i) the Office; (ii) another agency; or (iii) a Member of Congress; and (2) not later than the date on which the agency publishes the regulatory action in the Federal Register, place in the rulemaking docket— (A) the substance of any changes between the text of the regulatory action that the agency provided to the Office under section 6(a)(3)(B)(i) of the Executive Order and the text of the regulatory action that the agency published in the Federal Register; and (B) a statement regarding whether any change described in subparagraph (A) was made at the request of— (i) the Office; (ii) another agency; or (iii) a Member of Congress. 5. Justification of withdrawn rules (a) Definitions In this section— (1) the term Administrator means the Administrator of the Office; (2) the terms agency and regulatory action have the meanings given those terms in section 3 of the Executive Order; (3) the term Executive Order means Executive Order 12866 ( 5 U.S.C. 601 note; relating to regulatory planning and review); and (4) the term Office means the Office of Information and Regulatory Affairs. (b) Requirement (1) In general If an agency withdraws a regulatory action after providing the action to the Office under section 6(a)(3) of the Executive Order (or, if the agency does not provide the regulatory action to the Office under that section, after publishing the general notice of proposed rulemaking with respect to the action under section 553(b) of title 5, United States Code), the agency shall publish in the Federal Register and on the website of the agency a statement regarding the decision by the agency to withdraw the action. (2) Contents A statement required under paragraph (1) with respect to a decision by an agency to withdraw a regulatory action shall include, at a minimum— (A) a detailed explanation of the reasons that the agency withdrew the action; and (B) an explanation regarding whether the decision by the agency to withdraw the action was based, in whole or in part, on a request by, or input from— (i) the Office; (ii) another agency; (iii) a Member of Congress; (iv) a State, local, or tribal government; or (v) an organization, a corporation, a member of the public, or another interested party. 6. Negotiated rulemaking (a) In general Subchapter III of chapter 5 of title 5, United States Code, is amended— (1) in section 561, in the first sentence, by inserting between agencies and Federal, State, local, or tribal governments. This subchapter shall apply only to information negotiations between Federal, State, local, or tribal governments after informal rulemaking process ; (2) in section 563— (A) in subsection (a)— (i) in paragraph (2), by inserting Federal, State, local, or tribal government after identifiable ; and (ii) in paragraph (3), by striking persons who and inserting representatives of Federal, State, local, and tribal governments that ; and (B) in subsection (b)— (i) in paragraph (1)— (I) in subparagraph (A)— (aa) by striking persons who and inserting Federal, State, local, or tribal governments that ; and (bb) by striking , including residents of rural areas ; and (II) in subparagraph (B)— (aa) by striking with such persons and inserting with representatives of those governments ; and (bb) by striking to such persons and inserting to those governments ; and (ii) in paragraph (2), in the second sentence— (I) by striking persons who and inserting representatives of Federal, State, local, or tribal governments that ; and (II) by striking , including residents of rural areas ; (3) in section 564— (A) in the section heading, by striking ; applications for membership on committees ; (B) in subsection (a)— (i) in paragraph (4), by striking the persons and inserting the representatives of Federal, State, local, and tribal governments ; (ii) in paragraph (6), by adding and at the end; (iii) in paragraph (7), by striking ; and and inserting a period; and (iv) by striking paragraph (8); (C) by striking subsection (b); (D) by redesignating subsection (c) as subsection (b); and (E) in subsection (b), as so redesignated— (i) in the subsection heading, by striking and applications ; and (ii) by striking and applications ; (4) in section 565(a)— (A) in paragraph (1), in the first sentence, by striking and applications ; and (B) in paragraph (2)— (i) by striking and applications ; and (ii) by striking publications, and all that follows through the period at the end and inserting publications. ; and (5) in section 569(a), in the first sentence— (A) by striking and encourage agency use of ; and (B) by inserting between Federal, State, local, and tribal governments after negotiated rulemaking . (b) Technical and conforming amendments (1) Balanced budget act of 1997 Section 4554(b)(1) of the Balanced Budget Act of 1997 ( 42 U.S.C. 1395u note) is amended by striking , using a negotiated rulemaking process under subchapter III of chapter 5 of title 5, United States Code . (2) Elementary and secondary education act of 1965 The Elementary and Secondary Education Act of 1965 ( 20 U.S.C. 6301 et seq. ) is amended— (A) in section 1601 ( 20 U.S.C. 6571 )— (i) in subsection (a), by striking subsections (b) through (d) and insert subsection (b) ; (ii) by striking subsections (b) and (c); and (iii) by redesignating subsections (d) and (e) as subsections (b) and (c), respectively; (B) by repealing section 1602 ( 20 U.S.C. 6572 ); and (C) in section 8204(c)(1) ( 20 U.S.C. 7824(c)(1) ), by striking using a negotiated rulemaking process to develop regulations for implementation no later than the 2017–2018 academic year, shall define and inserting shall, for implementation no later than the 2017–2018 academic year, define . (3) Health insurance portability and accountability act of 1996 Section 216(b) of the Health Insurance Portability and Accountability Act of 1996 (42 U.S.C. 1320a–7b note) is amended— (A) in the subsection heading, by striking Negotiated ; (B) by striking (1) Establishment .— Chapter 5 of title 5, United States Code, standards and inserting the following: (1) In general The Secretary of Health and Human Services (in this subsection referred to as the Secretary ) shall establish standards ; (C) by striking paragraphs (2) through (9); (D) by redesignating subparagraph (B) of paragraph (1) as paragraph (2) and adjusting the margins accordingly; and (E) in paragraph (2), as so redesignated, by striking subparagraph (A) and inserting paragraph (1) . (4) Higher education act of 1965 The Higher Education Act of 1965 ( 20 U.S.C. 1001 et seq. ) is amended— (A) in section 207 ( 20 U.S.C. 1022f )— (i) by striking subsection (c); and (ii) by redesignating subsection (d) as subsection (c); (B) in section 422(g)(1) ( 20 U.S.C. 1072(g)(1) )— (i) in subparagraph (B), by adding and at the end; (ii) in subparagraph (C), by striking ; and and inserting a period; and (iii) by striking subparagraph (D); (C) in section 487A(b)(3)(B) ( 20 U.S.C. 1094a(b)(3)(B) ), by striking in the negotiated rulemaking process ; (D) in section 491(l)(4)(A) ( 20 U.S.C. 1098(l)(4)(A) ), by striking , not later than two years after the completion of the negotiated rulemaking process required under section 492 resulting from the amendments to this Act made by the Higher Education Opportunity Act, ; and (E) in section 492 ( 20 U.S.C. 1098a )— (i) in the section heading, by striking Negotiated ; and (ii) by amending subsection (b) to read as follows: (b) Issuance of regulations After obtaining the advice and recommendations described in subsection (a)(1), the Secretary shall issue final regulations within the 360-day period described in section 437(e) of the General Education Provisions Act ( 12 U.S.C. 1232(e) ). . (5) Housing act of 1949 Section 515(r)(3) of the Housing Act of 1949 ( 42 U.S.C. 1485 ) is amended by striking in accordance with and all that follows through the period at the end and inserting under the rulemaking authority contained in section 553 of title 5, United States Code. . (6) Magnuson-stevens fishery conservation and management act Section 305(g) of the Magnuson-Stevens Fishery Conservation and Management Act ( 16 U.S.C. 1855(g) ) is amended— (A) by striking paragraphs (2) and (3); (B) in paragraph (1)— (i) by striking (A) ; and (ii) by redesignating subparagraph (B) as paragraph (2) and adjusting the margins accordingly; and (C) in paragraph (2), as so redesignated, by striking the second sentence. (7) Mandatory price reporting act of 2010 Section 2(b) of the Mandatory Price Reporting Act of 2010 ( Public Law 111–239 ; 124 Stat. 2501) is amended— (A) by striking Wholesale pork cuts and all that follows through chapter 3 and inserting Wholesale pork cuts .—Chapter 3 ; and (B) by striking paragraphs (2), (3), and (4) ( 7 U.S.C. 1635k note). (8) Patient protection and affordable care act Section 5602 of the Patient Protection and Affordable Care Act ( 42 U.S.C. 254b note) is amended— (A) in the section heading, by striking Negotiated ; (B) by striking subsections (b) through (h); (C) in subsection (a)— (i) by redesignating paragraph (2) as subsection (b) and adjusting the margins accordingly; and (ii) in paragraph (1)— (I) by striking (1) In general .— ; and (II) by redesignating subparagraphs (A) and (B) as paragraphs (1) and (2), respectively; and (D) in subsection (b), as so redesignated, by striking paragraph (1) and inserting subsection (a) . (9) Price-anderson amendments act of 1988 The Price-Anderson Amendments Act of 1988 ( Public Law 100–408 ; 102 Stat. 1066) is amended— (A) by striking subsection (b); and (B) in subsection (a)— (i) by striking (1) Purpose .— ; and (ii) by redesignating paragraph (2) as subsection (b) and adjusting the margins accordingly. (10) Social security act Title XVIII of the Social Security Act ( 42 U.S.C. 1395 et seq. ) is amended— (A) in section 1834(l)(1) (U.S.C. 1395m(l)(1)), by striking through a negotiated rulemaking process described in title 5, United States Code, and ; and (B) in section 1856(a) ( 42 U.S.C. 1395w–26(a) ); (i) by striking paragraphs (2) through (9); (ii) in paragraph (1)— (I) by striking (A) In general .— ; (II) by striking and using a negotiated rulemaking process under subchapter III of chapter 5 of title 5 ; and (III) by redesignating subparagraph (B) as paragraph (2) and adjusting the margins accordingly; and (iii) in paragraph (2), as so redesignated, by striking subparagraph (A) and inserting paragraph (1) . (11) Title 5 The table of sections for subchapter III of chapter 5 of title 5, United States Code, is amended by striking the item relating to section 564 and inserting the following: 564. Publication of notice . (12) Title 49 Section 31136(g)(1) of title 49, United States Code, is amended— (A) by striking shall— and all that follows through issue and inserting shall issue ; (B) by striking ; or and inserting a period; and (C) by striking subparagraph (B). (13) Toxic substances control act Section 8(a) of the Toxic Substances Control Act ( 15 U.S.C. 2607(a) ) is amended by striking paragraph (6). (14) United states housing act of 1937 Section 9 of the United States Housing Act of 1937 ( 42 U.S.C. 1437g ) is amended by repealing subsection (f). 7. Streamlining OIRA review (a) Definitions In this section— (1) the term Administrator means the Administrator of the Office; (2) the terms agency , regulatory action , and significant regulatory action have the meanings given those terms in section 3 of the Executive Order; (3) the term Executive Order means Executive Order 12866 ( 5 U.S.C. 601 note; relating to regulatory planning and review); and (4) the term Office means the Office of Information and Regulatory Affairs. (b) Prohibitions With respect to a regulatory action of an agency that may be subject to review by the Office under section 6(b) of the Executive Order, the Office may not engage in communications or meetings with the agency before the date on which the agency submits the regulatory action to the Office under section 6(a)(3) of the Executive Order. (c) Time period for OIRA review (1) In general Except as provided in paragraph (2), the Office shall complete a review of a significant regulatory action under section 6(b) of the Executive Order not more than 45 days after the date on which the Office receives the significant regulatory action under section 6(a)(3) of the Executive Order. (2) Extension The Office may extend the 45-day period described in paragraph (1) by a single 45-day period if the Office provides the agency with, and makes publicly available, a written justification for the extension. (3) Publication of regulatory action If the Office waives review of a significant regulatory action of an agency under section 6(b)(2) of the Executive Order without a request for further consideration or does not notify the agency in writing of the results of the review under section 6(b) of the Executive Order within the time frame described in paragraph (1) or (2), the agency may publish the significant regulatory action in the Federal Register. 8. Penalizing public companies that submit false information to agencies Section 553 of title 5, United States Code, as amended by section 3 of this Act, is amended by adding at the end the following: (j) Any entity required to file an annual report under section 13 of the Securities Exchange Act of 1934 ( 15 U.S.C. 78m ) that uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry with respect to a rulemaking under this section shall be fined a minimum of $250,000 for their first violation; fines shall double per violation for each subsequent violation. (k) Any entity required to file an annual report pursuant to section 13 of the Securities Exchange Act of 1934 ( 15 U.S.C. 78m ), shall include in a submission under subsection (c)(2) the annual report filed in the year previous to such submission. . 9. Establishment of the office of the public advocate Section 401 of the Ethics in Government Act of 1978 (5 U.S.C. App.) is amended by adding at the end the following: (d) (1) (A) There is established in the Office of Government Ethics an office to be known as the Office of the Public Advocate . (B) The Office of the Public Advocate shall be under the supervision of an official to be known as the National Public Advocate , who shall— (i) be appointed by the President, by and with the advice and consent of the Senate; (ii) report to the Director of the Office of Government Ethics; (iii) be entitled to compensation at the same rate as the highest rate of basic pay established for the Senior Executive Service under section 5382 of title 5, United States Code; (iv) have a background in customer service, consumer protection, and administrative law; (v) have experience representing the public in cases involving rules (as defined in section 551 of title 5, United States Code); (vi) not have worked as an officer or employee in any Federal agency during the 2-year period preceding appointment under this subparagraph; and (vii) agree not to accept an offer of employment with a Federal agency for not less than 5 years after ceasing to serve as the National Public Advocate. (2) The duties of the Office of the Public Advocate shall include— (A) assisting individuals in resolving conflicts with agencies; (B) assisting agencies in soliciting public participation in the rulemaking process; (C) assisting individuals in participating in the rulemaking process; (D) identifying areas in which the public has problems in dealing with agencies and proposing changes to mitigate those problems; (E) conducting research on social equity impacts of the rulemaking process; (F) developing and coordinating social equity definitions across the executive branch; (G) performing a social equity assessment for rules when requested by the public through comments submitted through the process described in section 553 of title 5, United States Code; and (H) facilitating means by which individuals and populations that have not traditionally been invited into the rulemaking process may be better included in the rulemaking process, including by recommending and implementing new outreach plans, partnering with community-based organizations to propagate information about rules changes, and ensuring rules change information is written in clear, accessible language that is accessible in multiple languages. (3) Not later than 180 days after the date on which the National Public Advocate is appointed under this subsection or 180 days after the date of enactment of this subsection, whichever is later, the National Public Advocate shall propose regulations to carry out this subsection. . 10. Actions by private persons (a) Definitions In this section, the terms agency and rule have the meanings given those terms in section 551 of title 5, United States Code. (b) Actions (1) In general A person may bring a civil action for the person and for the United States Government, in the name of the Government, against any person, including the United States Government and any other governmental instrumentality or agency to the extent permitted by the Eleventh Amendment to the Constitution of the United States, for— (A) a violation of a final rule issued by an agency; or (B) the failure of the head of an agency to comply with any requirement under this Act; or (C) a violation of Section 8 of this Act. (2) Notice A copy of the complaint and written disclosure of substantially all material evidence and information the person possesses shall be served on the Government pursuant to rule 4(d)(4) of the Federal Rules of Civil Procedure. The Government may elect to intervene and proceed with the action within 60 days after it receives both the complaint and the material evidence and information. (3) Party conducting the action Before the expiration of the 60-day period under paragraph (2), the Government shall— (A) proceed with the action, in which case the action shall be conducted by the Government; or (B) notify the court that it declines to proceed with the action, in which case the person bringing the action shall have the right to conduct the action. (4) Award to plaintiff (A) Government proceeds with action If the Government proceeds with an action brought by a person under this subsection, the person shall receive at least 15 percent but not more than 25 percent of the proceeds of the action or settlement of the claim, depending upon the extent to which the person substantially contributed to the prosecution of the action. Any payment to a person under this subparagraph shall be made from the proceeds. The person may also receive an amount for reasonable expenses that the court finds to have been necessarily incurred, plus reasonable attorney’s fees and costs. The expenses, fees, and costs may be awarded against the defendant. (B) Government does not proceed with action If the Government does not proceed with an action under this subsection, the person bringing the action or settling the claim shall receive an amount which the court decides is reasonable for collecting the civil penalty and damages. The amount may not be less than 25 percent and not more than 30 percent of the proceeds of the action or settlement and shall be paid out of the proceeds. The person shall also receive an amount for reasonable expenses that the court finds to have been necessarily incurred, plus reasonable attorney’s fees and costs. The expenses, fees, and costs may be awarded against the defendant. 11. Scope of review Section 706 of title 5, United States Code, is amended— (1) in the first sentence of the matter preceding paragraph (1)— (A) by striking agency action. and inserting agency action. If a statute that an agency administers is silent or ambiguous, and an agency has followed the procedures in section 553 or 554 of this title, as applicable, a reviewing court shall defer to the agency’s reasonable or permissible interpretation of that statute. ; and (B) by striking To the extent necessary and inserting: (a) In general To the extent necessary ; and (2) by adding at the end the following: (b) Unreasonable delay For purposes of subsection (a)(1), unreasonable delay shall include— (1) when an agency has not issued a notice of proposed rulemaking before the date that is 1 year of the date of enactment of the legislation mandating the rulemaking, where no deadline for the rulemaking was specified in the enacted law; (2) when an agency has not issued a final version of a proposed rule before the date that is 1 year of the date on which the proposed rule was published in the Federal Register; and (3) when an agency has not implemented a final rule before the date that is 1 year of the implementation date published in the Federal Register or, if no implementation date was provided, before the date that is 1 year of the date on which the final rule was published in the Federal Register. . 12. Expanding rulemaking notifications Section 553 of title 5, United States Code, as amended by section 8 of this Act, is amended by adding at the end the following: (l) (1) Not later than 2 business days after the date on which an agency publishes a notice of proposed rulemaking or a final rule under this section, the agency shall notify interested parties of the publication. (2) The Director of the Government Publishing Office shall establish a process under which an agency shall notify interested parties under paragraph (1) through email or postal mail. . 13. Public petitions Section 553(e) of title 5, United States Code, is amended— (1) by inserting (1) before Each agency ; and (2) by adding at the end the following: (2) If, during a 60-day period, an agency receives more than 100,000 signatures on a single petition under paragraph (1), the agency shall, not later than 30 days after the date on which the agency receives the petition, provide a written response that includes— (A) an explanation of whether the agency has engaged or is engaging in the requested issuance, amendment, or repeal of a rule; and (B) if the agency has not engaged in the requested issuance, amendment, or repeal of a rule, a written explanation for not engaging in the requested issuance, amendment, or repeal. . 14. Amendment to congressional review act Section 801(b) of title 5, United States Code, is amended— (1) in paragraph (1), by striking (1) ; and (2) by striking paragraph (2). 15. Reinstatement of disapproved rules (a) Definitions In this section— (1) the term covered rule means a rule for which a joint resolution of disapproval was enacted under chapter 8 of title 5, United States Code, before the date of enactment of this Act; and (2) the term Federal agency has the meaning given the term agency in section 551(1) of title 5, United States Code. (b) Fast track reinstatement A Federal agency may reinstate a covered rule by publishing the covered rule in the Federal Register during the 1-year period beginning on the date of enactment of this Act. (c) Reinstatement after 1-Year period After the end of the 1-year period beginning on the date of enactment of this Act, a Federal agency may reinstate a covered rule using the rulemaking procedures described in section 553 of title 5, United States Code. 16. Cost-benefit analysis (a) Definitions In this section, the terms agency and regulation have the meanings given those terms in section 3 of Executive Order 12866 ( 5 U.S.C. 601 note; relating to regulatory planning and review). (b) Requirement If an agency is performing a cost-benefit or regulatory impact analysis in the course of issuing a regulation, the agency shall— (1) take into account the benefits of the regulation to the public, including the nonquantifiable benefits of the regulation; and (2) adopt a regulation that prioritizes benefits to the public, including nonquantifiable benefits. 17. Sense of Congress It is the sense of Congress that— (1) agency economic analyses of regulatory actions commonly underestimate the benefits of regulatory actions that protect public health and safety and overestimate the costs of regulatory action to industry; and (2) an agency should primarily consider the statutory direction of Congress when taking regulatory action. 18. Definitions In this Act: (1) Social equity impacts The term social equity impacts shall mean any impacts of a proposed regulation, whether intended or unintended, that might reasonably be expected to disproportionately affect a group or population of persons who share a common characteristic that is part of a protected class or set of protected classes, based on the regulation’s plain language, stated intention, and based on credible statistical projections and data on the impacts of similar regulations, laws and policies. (2) Social equity assessment The term social equity assessment shall mean a written and publicly available report that shall specifically consider any social equity impacts, positive or negative, that the proposed policy might have on a group or population of persons who share a common characteristic that renders them part of a protected class, where that group or population was previously subjected to discriminatory or exclusionary practices by the agency promulgating the regulation or where credible demographic evidence demonstrates significant disparities experienced by different populations within a protected class.