[Federal Register Volume 83, Number 244 (Thursday, December 20, 2018)]
[Rules and Regulations]
[Pages 65296-65297]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-27538]


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EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

29 CFR Part 1635

EEOC-2018-0005]
RIN 3046-AB02


Removal of Final GINA Wellness Rule Vacated by Court

AGENCY: Equal Employment Opportunity Commission.

ACTION: Final rule.

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SUMMARY: This final rule removes from the Code of Federal Regulations a 
section of the final rule published on May 17, 2016, entitled, 
``Genetic Information Nondiscrimination Act.'' This action responds to 
a decision of the U.S. District Court for the District of Columbia that 
vacated the incentive section of the GINA rule effective January 1, 
2019.

DATES: The action is effective on January 1, 2019.

FOR FURTHER INFORMATION CONTACT: Christopher J. Kuczynski, (202) 663-
4665 (voice), <a href="/cdn-cgi/l/email-protection#6f0c071d061c1b001f070a1d41041a0c1516011c04062f0a0a000c41080019"><span class="__cf_email__" data-cfemail="80e3e8f2e9f3f4eff0e8e5f2aeebf5e3faf9eef3ebe9c0e5e5efe3aee7eff6">[email protected]</span></a>; or Kerry E. Leibig, (202) 
663-4516 (voice), <a href="/cdn-cgi/l/email-protection#28434d5a5a5106444d414a414f684d4d474b064f475e"><span class="__cf_email__" data-cfemail="39525c4b4b4017555c505b505e795c5c565a175e564f">[email protected]</span></a>; or (202) 663-7026 (TTY).

SUPPLEMENTARY INFORMATION: On May 17, 2016, the Equal Employment 
Opportunity Commission (EEOC) published a final rule entitled, 
``Genetic Information Nondiscrimination Act'' under the authority of 
Title II of the Genetic Information Nondiscrimination Act of 2008 
(GINA), 42 U.S.C. 2000ff-2000ff-11. 81 Federal Register 31143. The rule 
``addressed the extent to which an employer may offer an inducement to 
an employee for the employee's spouse to provide his or her current 
health status information as part of a health risk assessment (HRA) 
administered in connection with an employee-sponsored wellness 
program.'' Id.
    On October 24, 2016, AARP filed a complaint in the U.S. District 
Court for the District of Columbia challenging the incentive section of 
the GINA rule. On August 22, 2017, the District Court concluded that 
the Commission did not provide sufficient reasoning to justify the 
incentive limit adopted in the GINA rule and remanded the rule to the 
EEOC for further consideration without vacating it. Following a motion 
by

[[Page 65297]]

AARP to alter or amend the court's summary judgment order, the court 
issued an order vacating the incentive section of the rule, 29 CFR 
1635.8(b)(2)(iii), effective January 1, 2019. AARP v. EEOC, D.D.C., No. 
16-2113 (D.D.C. Dec. 20, 2017). Consistent with that decision, this 
rule removes the incentive section of the GINA regulations at 29 CFR 
1635.8(b)(2)(iii).
    This rule is not subject to the requirement to provide public 
comment because it falls under the good cause exception at 5 U.S.C. 
553(b)(B). The good cause exception is satisfied when notice and 
comment is ``impracticable, unnecessary, or contrary to the public 
interest.'' Id. This rule is an administrative step that implements the 
court's order vacating the incentive section of the GINA rule. 
Additionally, because this rule implements a court order already in 
effect, the Commission has good cause to waive the 30-day effective 
date under 5 U.S.C. 553(d)(3).

List of Subjects in 29 CFR Part 1635

    Administrative practice and procedure, Equal employment 
opportunity.

    For the reasons set forth in the preamble, under the authority of 
42 U.S.C. 2000ff-2000ff-11, the EEOC amends chapter XIV of title 29 of 
the Code of Federal Regulations as follows:

PART 1635--GENETIC INFORMATION NONDISCRIMINATION ACT OF 2008

0
1. The authority citation for part 1635 continues to read as follows:

    Authority: 29 U.S.C. 2000ff.


Sec.  1635.8   [Amended]

0
2. Amend Sec.  1635.8 by removing and reserving paragraph (b)(2)(iii).

    Dated: December 14, 2018.
Victoria A. Lipnic,
Acting Chair, U.S. Equal Employment Opportunity Commission.
[FR Doc. 2018-27538 Filed 12-19-18; 8:45 am]
 BILLING CODE 6570-01-P


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