22854 Federal Register / Vol. 76, No. 79 / Monday, April 25, 2011 / Proposed Rules 

(ii) Maps, plans, photographs, or 

drawings of man-made or natural 

features in a DoD SNM facility or 

nuclear weapons not observable from a 

public area; i.e., tunnels, storm or waste 

sewers, water intake and discharge 

conduits, or other features having the 

potential for concealing surreptitious 

movement. 

(iii) Communications and computer 

network configurations and capabilities. 

(4) Intrusion Detection and Security 

Alarm Systems. (i) Information on the 

layout or design of security and alarm 

systems at a specific DoD SNM or 

nuclear weapons facility, if the 

information is not observable from a 

public area. 

(ii) The fact that a particular system 

make or model has been installed at a 

specific DoD SNM or nuclear weapons 

facility, if the information is not 

observable from a public area. 

(iii) Performance characteristics of 

installed systems. 

(5) Keys, Locks, Combinations, and 

Tamper-Indicating Devices. (i) Types 

and models of keys, locks, and 

combinations of locks used in DoD SNM 

or nuclear weapons facilities and during 

shipment. 

(ii) Method of application of tamperindicating devices. 

(iii) Vulnerability information 

available from unclassified vendor 

specifications. 

(6) Threat Response Capability and 

Procedures. (i) Information about 

arrangements with local, State, and 

Federal law enforcement agencies of 

potential interest to an adversary. 

(ii) Information in ‘‘non-hostile’’ 

contingency plans of potential value to 

an adversary to defeat a security 

measure, e.g., fire, safety, nuclear 

accident, radiological release, or other 

administrative plans. 

(iii) Required response time of 

security forces. 

(7) Physical Security Evaluations. (i) 

Method of evaluating physical security 

measures not observable from public 

areas. 

(ii) Procedures for inspecting and 

testing communications and security 

systems. 

(8) In-Transit Security. (i) Fact that a 

shipment is going to take place. 

(ii) Specific means of protecting 

shipments. 

(iii) Number and size of packages. 

(iv) Mobile operating and 

communications procedures that an 

adversary could exploit. 

(v) Information on mode, routing, 

protection, communications, and 

operations that must be shared with law 

enforcement or other civil agencies, but 

not visible to the public. 

(vi) Description and specifications of 

transport vehicle compartments or 

security systems not visible to the 

public. 

(9) Information on Nuclear Weapon 

Stockpile and Storage Requirements, 

Nuclear Weapon Destruction and 

Disablement Systems, and Nuclear 

Weapon Physical Characteristics. Refer 

to DOE CG–SS–4 for guidance about the 

physical protection of information on 

nuclear weapon stockpile and storage 

requirements, nuclear weapon 

destruction and disablement systems, 

and nuclear weapon physical 

characteristics that may, under certain 

circumstances, be unclassified. Such 

information meeting the adverse effects 

test shall be protected as DoD UCNI. 

Dated: March 25, 2011. 

Patricia L. Toppings, 

OSD Federal Register Liaison Officer, 

Department of Defense. 

[FR Doc. 2011–9751 Filed 4–22–11; 8:45 am] 

BILLING CODE 5001–06–P 

DEPARTMENT OF COMMERCE 

Patent and Trademark Office 

37 CFR Chapter I 

[Docket No.: PTO–P–2011–0018] 

Streamlined Patent Reexamination 

Proceedings; Notice of Public Meeting 

AGENCY: United States Patent and 

Trademark Office, Commerce. 

ACTION: Notice of public meeting; 

request for comments. 

SUMMARY: This document announces a 

public meeting to solicit public 

opinions on a number of changes being 

considered by the United States Patent 

and Trademark Office (USPTO) to 

streamline the procedures governing ex 

parte and inter partes reexamination 

proceedings. These changes are 

intended to achieve faster, more 

efficient resolution of the substantial 

new question of patentability (SNQ) for 

which reexamination is ordered. The 

proposed changes in this document are 

divided into three categories: changes to 

both ex parte and inter partes 

reexaminations, changes specific to ex 

parte reexamination, and changes 

specific to inter partes reexamination. 

After soliciting public opinions 

regarding this document, the USPTO 

may seek to adopt one or more of the 

proposed changes or a modified version 

thereof, or other changes suggested by 

the public, through a rule making or 

through internal operational changes as 

appropriate. 

DATES: The public meeting will be held 

on June 1, 2011, beginning at 1:30 p.m. 

Persons interested in attending the 

meeting must register by 5 p.m., Eastern 

Standard Time (EST), on May 25, 2011. 

Written comments must be submitted 

by June 29, 2011. 

ADDRESSES: The public meeting will be 

held at the USPTO, in the South 

Auditorium of Madison West, 600 

Dulany Street, Alexandria, VA 22314. 

Written comments should be sent by 

electronic mail message over the 

Internet addressed to reexam

improvementcomments@uspto.gov. 

Comments may also be submitted by 

mail addressed to: Mail Stop CommentsPatents, Commissioner for Patents, P.O. 

Box 1450, Alexandria, VA 22313–1450, 

marked to the attention of Kenneth M. 

Schor. Although comments may be 

submitted by mail, submission via email to the above address is preferable. 

The written comments will be 

available for public inspection at the 

Office of the Commissioner for Patents, 

located in Madison East, Tenth Floor, 

600 Dulany Street, Alexandria, Virginia, 

and will be available via the USPTO 

Internet Web site (address: http:// 

www.uspto.gov). Because comments will 

be made available for public inspection, 

information that is not desired to be 

made public, such as an address or 

phone number, should not be included. 

For Registration to Give a 

Presentation at the Meeting: If you wish 

to make an oral presentation at the 

meeting, you must register by sending 

an e-mail to reexamimprovement

comments@uspto.gov, by 5 p.m. EST, on 

May 11, 2011. See the registration 

information provided below. 

FOR FURTHER INFORMATION CONTACT: 

Kenneth M. Schor, Office of Patent 

Legal Administration, Office of the 

Associate Commissioner for Patent 

Examination Policy, by telephone at 

571–272–7710, or by mail addressed to: 

Mail Stop Comments-Patents, 

Commissioner for Patents, P.O. Box 

1450, Alexandria, VA 22313–1450. 

Inquiries regarding the current 

reexamination practice may be directed 

to the Office of Patent Legal 

Administration, by telephone at (571) 

272–7703, or by electronic mail at 

PatentPractice@uspto.gov. 

SUPPLEMENTARY INFORMATION: This 

document announces a public meeting 

to solicit public opinions on a number 

of changes being considered by the 

USPTO to streamline the procedures 

governing ex parte and inter partes 

reexamination proceedings. These 

changes are intended to achieve faster, 

more efficient resolution of the SNQ for 

which reexamination is ordered. 


emcdonald on DSK2BSOYB1PROD with PROPOSALS
Federal Register / Vol. 76, No. 79 / Monday, April 25, 2011 / Proposed Rules 22855 

Moreover, the changes proposed in this 

document are complementary to the 

post-grant provisions in the pending 

America Invents Act currently being 

considered by Congress. In particular, 

the America Invents Act would not alter 

ex parte reexamination, and it would 

provide a transition period of several 

years during which inter partes 

reexamination could still be requested. 

Therefore, it is important for the USPTO 

to continue its efforts to improve the 

existing reexamination system. 

On August 5, 2010, the USPTO 

explained that it is considering a 

number of short- and long-range 

initiatives that can be implemented in 

three phases to reduce pendency and 

improve efficiency, while maintaining 

quality, in reexamination proceedings. 

See Optional Waiver of Patent Owner’s 

Statement in Ex Parte Reexamination 

Proceedings, 75 FR 47269 (Aug. 5, 

2010). 

Phase I includes a number of 

streamlined procedures and optional 

programs in which the Patent Owner 

and Third Party Requester may elect to 

participate in order to gain the benefit 

of shorter pendency. For example, in the 

above-mentioned notice dated August 5, 

2010, the USPTO implemented an 

optional procedure allowing the Patent 

Owner in an ex parte reexamination to 

waive the Patent Owner’s statement 

under 35 U.S.C. 304, and thereby enable 

the USPTO to issue a first Office action 

on the merits (FAOM), together with or 

soon after mailing the order granting 

reexamination. Also as part of phase I, 

the USPTO had previously 

implemented a streamlined procedure 

for appeal brief review in both ex parte 

and inter partes reexamination 

proceedings. See Streamlined Procedure 

for Appeal Brief Review in Ex Parte 

Reexamination Proceedings, 75 FR 

29321 (May 25, 2010); Streamlined 

Procedure for Appeal Brief Review in 

Inter Partes Reexamination Proceedings, 

75 FR 50750 (Aug. 17, 2010). Moreover, 

in order to process reexaminationt 

proceedings more efficiently and 

expeditiously, the USPTO has increased 

the number of examiners working 

exclusively on reexamination 

proceedings, made changes in the 

handling and scanning of documents, 

instituted an improved petitions 

tracking system, and designed new 

forms for answering certain types of 

petitions. In addition, the USPTO’s 

Central Reexamination Unit has 

identified a number of automation and 

information technology upgrades that 

will be instituted as part of the USPTO’s 

end-to-end electronic processing 

system, which will greatly improve the 

processing and tracking of all stages of 

reexamination proceedings. 

However, the USPTO alone cannot 

reduce reexamination pendency, 

particularly under its existing 

procedures. Streamlining these 

procedures, including those governing 

the practices of the Patent Owner and 

Third Party Requester, will be necessary 

if a more significant reduction in 

pendency is to be achieved. Therefore, 

in phases II and III of the USPTO’s 

three-phase initiative, the USPTO will 

consider the data gathered from phase I 

and solicit public opinion on additional 

procedural changes, rule making 

proposals, and administrative proposals 

for statutory changes. 

The instant notice seeks public input 

as the USPTO considers moving into 

phases II and III. In particular, the 

instant notice proposes a number of 

changes intended to reduce pendency 

while maintaining quality in ex parte 

and inter partes reexamination 

proceedings. The proposed changes in 

this notice are divided into three 

categories: (A) Changes to both ex parte 

and inter partes reexaminations, (B) 

changes specific to ex parte 

reexamination, and (C) changes specific 

to inter partes reexamination. After 

soliciting public opinions regarding this 

notice, the USPTO may seek to adopt 

one or more of the proposed changes or 

a modified version thereof, or other 

changes as recommended by the public, 

through rule making or through internal 

operational changes, as appropriate. 

A. Proposed Changes to Both Ex Parte 

and Inter Partes Reexaminations 

1. Requester Must Separately Explain 

How Each SNQ Presented in the Request 

Is ‘‘New’’ Relative to Other Examinations 

of the Patent Claims 

This proposed change is intended to 

allow the USPTO to more quickly 

determine whether the request raises an 

SNQ based on a new, non-cumulative 

technological teaching. The proposed 

change also ensures that the Requester 

adequately explains how each SNQ 

presented in the request is ‘‘new’’ 

relative to other examinations of the 

patent claims (rather than merely stating 

what the SNQ is believed to be). Current 

practice does not set forth a consistent 

format in which the required 

information should be presented in the 

request. This lack of consistency results 

in requests that are denied a filing date 

and whose noncompliance must be 

corrected by the Requester, which 

delays the proceeding. 

As explained in the Manual of Patent 

Examining Procedure (MPEP) §§ 2216, 

2614: 

It is not sufficient that a request for 

reexamination merely proposes one or more 

rejections of a patent claim or claims as a 

basis for reexamination. It must first be 

demonstrated that a patent or printed 

publication that is relied upon in a proposed 

rejection presents a new, non-cumulative 

technological teaching that was not 

previously considered and discussed on the 

record during the prosecution of the 

application that resulted in the patent for 

which reexamination is requested, and 

during the prosecution of any other prior 

proceeding involving the patent for which 

reexamination is requested. 

In order to ensure that requests 

comply with MPEP §§ 2216 and 2614, 

the USPTO would require, for each SNQ 

presented in the request, a statement of 

how the technological teaching in the 

references that support the SNQ is new 

and non-cumulative of what had been 

considered in any previous or pending 

USPTO examination of the patent 

claims. For clarity, this statement would 

be provided in a section of the request 

dedicated solely to explaining how each 

SNQ is believed to be new. 

2. Requester Must Explain How the 

References Apply to Every Limitation of 

Every Claim for Which Reexamination Is 

Requested 

This proposed change is intended to 

allow the USPTO to more quickly 

address the requisite ‘‘pertinency and 

manner of applying cited prior art to 

every claim for which reexamination is 

requested’’ (35 U.S.C. 302, 311) 

presented in the request. It is also 

intended to allow examiners to more 

quickly write a First Action on the 

Merits (FAOM) based on the references 

cited in the request. Current request 

practice does not require the use of a 

consistent format in which the required 

information must be presented. This 

inconsistency results in delay and 

potential re-work because Requesters do 

not consistently map the prior art 

teachings to the limitations of the 

claims. 

A statement of how the references 

apply to every limitation of the claims 

would be required to be provided in a 

section of the request dedicated solely 

to explaining how the references apply. 

Requests filed by a Third Party 

Requester must clearly set forth a 

proposed rejection for each claim for 

which reexamination is requested, with 

separate rejections based on 

anticipation, obviousness, and/or 

double patenting. Requests filed by a 

Patent Owner must include an 

anticipation, obviousness, and/or 

double patenting analysis for each claim 

for which reexamination is requested. In 

all cases, a limitation-by-limitation 

explanation of the manner of applying 


emcdonald on DSK2BSOYB1PROD with PROPOSALS
22856 Federal Register / Vol. 76, No. 79 / Monday, April 25, 2011 / Proposed Rules 

the references must be presented in the 

form of a claim chart or narrative 

explanation, but not both, as providing 

both tends to lengthen the request and 

may result in inconsistencies between 

the two explanations. 

To avoid confusion, the explanation 

must not combine multiple or 

alternative proposed rejections or 

proposed combinations of references. 

Thus, a proposed rejection of claims 1– 

5 as being ‘‘obvious over references A or 

B or C, in view of references C or D or 

E, optionally in view of references F or 

G,’’ is improper. Likewise a proposed 

rejection of claims 1–5 being ‘‘either 

anticipated or obvious over references A 

or B,’’ is improper. Each statutory 

ground of rejection and each 

combination of references must be 

expressed and explained separately. 

3. Requester Must Explain How Multiple 

SNQs Raised in the Same Request Are 

Non-Cumulative of Each Other; 

Cumulative SNQs Will Be Deemed to 

Constitute a Single SNQ 

This proposed change is intended to 

streamline reexamination in cases 

where a request includes multiple 

references cited in support of separate 

SNQs, but which are all directed to the 

same claims and are all based on the 

same new technological teaching. The 

current practice of separately addressing 

multiple, cumulative SNQs prolongs 

pendency and is an inefficient means of 

addressing the question raised by a new 

technological teaching that is common 

among multiple, cumulative SNQs. 

The instant notice proposes that 

cumulative SNQs will be deemed to 

constitute a single SNQ. For example, if 

a request cites ten prior art references in 

support of ten proposed SNQs, and all 

ten references are cited for the same 

claim limitation found missing in a 

prior examination, the USPTO will 

construe the request as raising a single 

SNQ based on the single, new 

technological teaching. 

Where a Requester asserts multiple 

SNQs against the same claim, it is the 

Requester who is in the best position to 

narrow the dispute by explaining how 

the SNQs present unique issues of 

patentability. The Requester will be 

required to explain, in a separate section 

of the request, how each SNQ is 

substantially different from all other 

SNQs that are being asserted against the 

same claims in the same request. Cf. In 

re Katz Interactive Call Processing Pat. 

Litig., __F.3d__, 2011 WL 607381, at *3– 

4 (Fed. Cir. Feb. 18, 2011) (holding that 

it was not an abuse of discretion to 

require the party that was ‘‘in the best 

position to narrow the dispute’’ to show 

how non-selected claims were 

‘‘substantially different,’’ in terms of 

validity and/or infringement, from 

selected claims). 

SNQs that are not persuasively 

explained to be substantially different 

from each other will be deemed to 

constitute a single SNQ from which the 

examiner will select the best proposed 

rejections based on the best cited 

references, as discussed below in Part 

A.4. Any order granting reexamination 

will identify the SNQs for which 

reexamination is granted, and will 

further identify any SNQs that are found 

to be cumulative of other SNQs. The 

examiner’s designation of an SNQ as 

‘‘cumulative’’ is not petitionable; 

however, the examiner’s selection of 

any ‘‘representative’’ rejections (see Part 

A.4) from among the cumulative SNQs 

may be challenged by the Third Party 

Requester in inter partes reexamination 

in the manner set forth in Part C.1 

below. 

4. The Examiner May Select One or 

More Representative Rejections From 

Among a Group of Adopted Rejections. 

In the FAOM, for each SNQ for which 

reexamination is granted, the examiner 

will identify each of the Requester’s 

proposed rejections as either ‘‘adopted’’ 

or ‘‘not adopted.’’ A proposed rejection 

is ‘‘adopted’’ if the examiner determines 

that it establishes a prima facie case of 

unpatentability. A proposed rejection is 

‘‘not adopted’’ if the examiner 

determines that it fails to establish a 

prima facie case of unpatentability. 

Where multiple rejections are adopted 

against a single claim, the examiner may 

select one or more ‘‘representative’’ 

rejections from the group of adopted 

rejections. The examiner’s 

determination that a rejection is 

‘‘representative’’ means that the 

examiner believes that all rejections 

within the group of adopted rejections 

will clearly fall if the representative 

rejection is not sustained. The examiner 

will clearly identify which rejections, if 

any, are being treated as a group and 

which rejection(s) within the group is/ 

are representative of the group. The 

examiner’s reasons in support of each 

representative rejection will be fully 

discussed in the Office action. For any 

rejection within the group which is not 

designated as a representative rejection, 

the examiner may simply state, to the 

extent the examiner agrees with the 

Requester, that the rejection is adopted 

for the reasons set forth in the request, 

and incorporate by reference the 

Requester’s limitation-by-limitation 

explanation of the manner of applying 

the references (see Part A.2). 

In deciding which rejections to 

designate as representative, the 

examiner will apply the guidance set 

forth in MPEP § 706.02(I), quoted below: 

Prior art rejections should ordinarily be 

confined strictly to the best available art. 

Exceptions may properly be made, for 

example, where: 

(A) the propriety of a 35 U.S.C. 102 or 103 

rejection depends on a particular 

interpretation of a claim; 

(B) a claim is met only in terms by a 

reference which does not disclose the 

inventive concept involved; or 

(C) the most pertinent reference seems 

likely to be antedated by a 37 CFR 1.131 

affidavit or declaration. 

Such rejections should be backed up by the 

best other art rejections available. Merely 

cumulative rejections, i.e., those which 

would clearly fall if the primary rejection 

were not sustained, should be avoided. 

If the Patent Owner subsequently 

overcomes the representative rejections 

of a claim, then the examiner will 

consider whether any other rejection 

within the group overcomes the 

deficiency of the representative 

rejections, and will do so prior to 

confirming the patentability of that 

claim. In this way, no claim will be 

confirmed as patentable without having 

received due consideration of all 

rejections within the group. For this 

reason, it is advisable for the Patent 

Owner to explain, in its response to the 

FAOM, why the Patent Owner’s 

arguments against any representative 

rejection would likewise overcome all 

other rejections within the group. The 

Patent Owner may also present any 

specific argument or evidence directed 

to any rejection within the group. 

If the Patent Owner appeals the final 

rejection of a claim, then the appeal 

must be taken from all adopted 

rejections of that claim, not just from the 

representative rejections. The Board of 

Patent Appeals and Interferences 

(Board) may review any rejection within 

the group of adopted rejections in order 

to affirm the examiner as to that claim. 

The affirmance of a rejection of a claim 

on any of the grounds specified will 

constitute a general affirmance of the 

examiner’s rejections of that claim, 

except as to any ground specifically 

reversed. 

The examiner’s designation of a 

rejection as ‘‘representative’’ is not 

petitionable; however, this designation 

may be challenged by the Third Party 

Requester in inter partes reexamination 

in the manner set forth in Part C.1 

below. 

5. Requester’s Declaration and Other 

Evidence Will Be Mainly Limited to the 

Request 

This proposed change is intended to 

encourage compact prosecution by 

requiring the Requester to submit all 


emcdonald on DSK2BSOYB1PROD with PROPOSALS
Federal Register / Vol. 76, No. 79 / Monday, April 25, 2011 / Proposed Rules 22857 

necessary evidence in the initial request 

and thereby reduce the need for later 

submissions. In inter partes 

reexamination, any further submission 

of evidence (including declarations, 

affidavits, and test data) by the Third 

Party Requester in the proceeding will 

be limited to rebutting a point made in 

an examiner’s Office action or in a 

Patent Owner’s response. In ex parte 

reexamination, the further submission 

of evidence by the Third Party 

Requester will be limited to rebutting a 

point made in the Patent Owner’s 

statement under 35 U.S.C. 304, if any 

such statement is filed. In all cases, 

when submitting new evidence, the 

Third Party Requester must identify the 

specific point to be rebutted and explain 

how the new evidence rebuts it. 

6. Patent Owner’s Amendments and 

Evidence Will Be Mainly Limited to the 

First Action Response 

This proposed change is intended to 

encourage compact prosecution by 

ensuring that the Patent Owner’s 

amendments and evidence (including 

declarations, affidavits, and test data) 

are presented early in reexamination. In 

ex parte reexamination, the Patent 

Owner’s submission of amendments and 

evidence will be generally limited to the 

earlier of: (1) The Patent Owner’s 

optional statement under 35 U.S.C. 304, 

if the Patent Owner does not waive the 

statement; or (2) if the Patent Owner 

waives the statement, the Patent 

Owner’s response to an FAOM. In inter 

partes reexamination, the Patent 

Owner’s amendment and declaration 

evidence will be generally limited to the 

Patent Owner’s response to the FAOM. 

Any further submission of amendments 

or declaration evidence, in either ex 

parte or inter partes reexamination, will 

be limited to overcoming a new ground 

of rejection entered in any non-final 

Office action. 

Amendments filed after a final Office 

action will only be admitted to (1) 

cancel claims, (2) rewrite dependent 

claims into independent form, (3) 

comply with requirements or 

suggestions set forth in a final Office 

action, or (4) respond to any new 

ground of rejection designated in an 

examiner’s answer or Board decision. 

For a discussion of what constitutes a 

‘‘final Office action’’ in inter partes 

reexamination, see Part C.2 below. 

7. Claim Amendments Will Not Be 

Entered Unless Accompanied by a 

Statement Explaining How the Proposed 

New Claim Language Renders the 

Claims Patentable in Light of an SNQ 

Claim amendments that are not 

germane to any SNQ tend to 

unnecessarily expand the scope of the 

proceeding and result in longer 

reexamination pendency. In such cases, 

the examiner is often required to 

conduct an entirely new search of the 

prior art and to consider issues beyond 

those raised in the request. All of this 

detracts from what should otherwise be 

the central focus of the reexamination— 

namely, a ‘‘resolution of the question’’ 

for which reexamination was ordered. 

35 U.S.C. 304, 313. 

The change proposed herein is 

intended to allow the USPTO to 

determine whether a Patent Owner’s 

amendment should be permitted entry, 

given that ‘‘amendment of claims during 

reexamination is limited to amendment 

in light of prior art raising a substantial 

new question of patentability.’’ In re 

Freeman, 30 F.3d 1459, 1468 (Fed. Cir. 

1994). In Freeman, the Federal Circuit 

stated: 

[T]he ability of a patentee to amend claims 

during reexamination must be seen in light 

of the fundamental purpose of 

reexamination—the determination of validity 

in light of a substantial new question of 

patentability. Thus, amendment of claims 

during reexamination is limited to 

amendment in light of prior art raising a 

substantial new question of patentability. 

Id. (emphasis added). In Freeman, the 

Patent Owner amended the patent 

claims during reexamination, not to 

distinguish the prior art, but to avoid an 

unfavorable interpretation that a court 

had given those claims in an earlier 

litigation. The Board affirmed the 

examiner’s rejection under 35 U.S.C. 

305 because the amendments were 

found to broaden the scope of the claims 

as interpreted by the court. In appealing 

the Board’s decision, the Patent Owner 

argued that the court’s claim 

interpretation did not bind the Patent 

Owner in the reexamination under the 

doctrine of issue preclusion because, 

according to the Patent Owner, the 

reexamination offered the Patent Owner 

‘‘the opportunity to amend his claims ‘in 

response to a decision adverse to the 

patentability of a claim of a patent.’’’ Id. 

(quoting 35 U.S.C. 305). The Federal 

Circuit disagreed. It held that the Patent 

Owner ‘‘never had the option of 

amending his claims during 

reexamination’’ in a manner having 

‘‘nothing to do with a substantial new 

question of patentability.’’ Id. (emphasis 

added). The Federal Circuit therefore 

concluded that the doctrine of issue 

preclusion applied against the Patent 

Owner, and thus affirmed the 

broadening rejection. 

In view of the foregoing, and in order 

to ensure that all proposed claim 

amendments, including new claims, are 

directed to resolving the SNQ, the 

USPTO will require the Patent Owner to 

submit a statement explaining how the 

proposed new claim language (apart 

from the original claim language) 

renders the claims patentable over the 

references raising an SNQ. The role of 

this explanatory statement is to allow 

the USPTO to determine whether a 

proposed amendment is being properly 

submitted ‘‘in light of prior art raising a 

substantial new question of 

patentability,’’ or whether the 

amendment should be refused entry 

because it has ‘‘nothing to do with a 

substantial new question of 

patentability.’’ Freeman, 30 F.3d at 

1468. The amendment will not be 

entered if the necessary statement is 

either missing or conclusory (e.g., the 

statement merely says ‘‘the amended 

claims distinguish over the prior art’’). 

Nevertheless, so long as the Patent 

Owner explains how the proposed new 

claim language distinguishes the 

invention over the prior art, the 

amendment will be entered even if, on 

the merits, the examiner disagrees with 

the Patent Owner that the amendment 

overcomes the rejection. Moreover, the 

amendment will be entered even if the 

new or amended claim gives rise to a 

new ground of rejection. Where the 

requirement is satisfied as to fewer than 

all of the proposed new or amended 

claims, the proposed amendment will 

be entered in part as to the claims for 

which the requirement is satisfied. 

It is important to note that the 

submission of an amendment unrelated 

to any SNQ is not, in itself, a basis for 

rejecting the amended claim; rather it is 

a basis for refusing entry of the 

amendment. In Cordis Corp. v. 

Medtronic Ave, Inc., 511 F.3d 1157, 

1185 (Fed. Cir. 2008), the Federal 

Circuit stated that the prohibition 

against enlarging the scope of a claim is 

the only ‘‘substantive limitation’’ in 35 

U.S.C. 305, and is thus the only basis on 

which to invalidate a claim under 

section 305 in litigation after the 

amendment has been entered. In 

contrast to this ‘‘substantive limitation,’’ 

the court in Freeman stated that 

amending claims during reexamination 

in a manner having ‘‘nothing to do with 

a substantial new question of 

patentability’’ is not a ‘‘procedural 

opportunity available in the [US]PTO.’’ 

Freeman, 30 F.3d at 1468–69 (stating 

that the Patent Owner ‘‘never had the 

option of amending his claims’’ in such 

a manner). It follows that the USPTO 

should only allow entry of a proposed 

claim amendment if it is presented to 

resolve an SNQ; however, once the 

amendment is entered, a rejection based 

on broadening is the only substantive 


emcdonald on DSK2BSOYB1PROD with PROPOSALS
22858 Federal Register / Vol. 76, No. 79 / Monday, April 25, 2011 / Proposed Rules 

1See USPTO Reexamination Operational 

Statistics, available at http://www.uspto.gov/ 

patents/stats/Reexamination_Information.jsp 

(average number of months, per quarter in FY 2010, 

between the reexam request and the FAOM, for ex 

parte: 7.6, 7.8, 7.4, 7.5; for inter partes: 4.4, 4.2, 3.6, 

3.3). 

ground of rejection available under 35 

U.S.C. 305 and 314. 

The refusal to enter a proposed 

amendment is petitionable and not 

appealable to the Board. See In re Kline, 

474 F.2d 1325, 1329 (CCPA 1973). 

8. Petitions Practice Will Be Clearly 

Defined 

To the extent possible, the USPTO 

seeks to specify when, how, and by 

whom any petition under 37 CFR 1.181– 

1.183, and any opposition thereto, may 

be filed in reexamination proceedings. 

By providing clear guidance in this area, 

the USPTO hopes to reduce the number 

of improper or duplicative petitions that 

are currently filed, including multiple 

concurrent petitions for a single item of 

requested relief, unjustified multiple 

iterations of petitions for an item of 

relief, petitions to resolve issues that are 

appealable rather than petitionable, and 

papers improperly opposing another 

party’s petition. 

The table below sets forth (1) the 

various reexamination-related petitions 

(both proper and improper) that are 

commonly filed based on the type of 

relief requested, (2) whether the relief is 

properly sought by petition (and if so, 

under what section of 37 CFR), and (3) 

whether the petition may be opposed by 

another party. 

EXAMPLES OF PETITIONS FILED IN REEXAMINATION PROCEEDINGS

Relief requested Petitionable? Opposable? 

Review of refusal to grant ex parte or inter partes reexam (see MPEP 2248, 2648) Yes—1.181 ................................................ No. 

Vacate as ultra vires an order granting ex parte or inter partes reexam (see MPEP 

2246, 2646).

Yes—1.181 ................................................ Yes. 

Review of a finding of an SNQ in an order granting ex parte or inter partes reexam 

(see 75 FR 36357).

No (but see 75 FR 36357 in ex parte 

reexam).

No. 

Vacate filing date of ex parte or inter partes reexam based on failure to comply with 

37 CFR 1.510 or 1.915.

Yes—1.181 ................................................ Yes. 

Extension of time to respond to an Office action by Patent Owner in ex parte 

reexam.

Yes—1.550(c) ........................................... No. 

Extension of time to respond to an Office action by Patent Owner in inter partes 

reexam.

Yes—1.956 ................................................ No. 

Extension of time to submit comments by Third Party Requester (see 35 USC 

314(b)(2)).

No .............................................................. No. 

Extension of time to file a notice of appeal or brief on appeal by Patent Owner in ex 

parte reexam (see 37 CFR 41.31, 41.37, 41.43).

Yes—1.550(c) ........................................... No. 

Extension of time to file a notice of appeal or brief on appeal by any party in inter 

partes reexam (see 37 CFR 41.61, 41.66).

Yes—1.183 ................................................ No. 

Striking another party’s improper paper (or portion thereof) from the file .................... Yes—1.181 ................................................ Yes. 

Protection of proprietary information being submitted under seal ................................ Yes—1.59(b) ............................................. Yes. 

Waiver of page or word limit requirement ..................................................................... Yes—1.183 ................................................ No. 

Review of refusal to enter amendment ......................................................................... Yes—1.181 ................................................ Yes. 

Withdrawal of final Office action ................................................................................... Yes—1.181 ................................................ Yes. 

Revival of terminated proceeding based on Patent Owner’s ‘‘unavoidable’’ delay and 

acceptance of late paper.

Yes—1.137(a) ........................................... No. 

Revival of terminated proceeding based on Patent Owner’s ‘‘unintentional’’ delay 

and acceptance of late paper.

Yes—1.137(b) ........................................... No. 

For jurisdiction to be transferred to the Office of Patent Legal Administration ............ No .............................................................. No. 

Suspend inter partes reexam for ‘‘good cause’’ under 35 USC 314(c) ........................ Yes—1.182 ................................................ Yes. 

Terminate inter partes reexam based on estoppel under 35 USC 317(b) ................... Yes—1.182 ................................................ Yes. 

The table above reflects the USPTO’s 

current practice. The USPTO is 

interested to hear what changes can and 

should be made to its current practice 

in order to eliminate undue delays 

associated with petitions and 

oppositions. 

B. Proposed Changes Specific to Ex 

Parte Reexamination 

1. Make Permanent the Pilot That 

Allows the Patent Owner to Optionally 

Waive the Patent Owner’s Statement 

In light of the fact that only about ten 

percent of Patent Owners elect to file a 

statement under 35 U.S.C. 304 following 

an order for ex parte reexamination, the 

USPTO launched a pilot to allow Patent 

Owners to waive this statement 

altogether. See Optional Waiver of 

Patent Owner’s Statement in Ex Parte 

Reexamination Proceedings, 75 FR 

47269 (Aug. 5, 2010). The goal of this 

pilot is to eliminate the delay associated 

with the examiner having to wait two 

months under 35 U.S.C. 304 before 

beginning work on the FAOM in the 

majority of cases where the Patent 

Owner does not file a statement in 

response to the order granting 

reexamination. This delay is unique to 

ex parte reexaminations because inter 

partes reexaminations do not have a 

two-month statement period between 

the grant of the order and the mailing of 

the FAOM. See 35 U.S.C. 313 

(providing, in relevant part, that ‘‘[t]he 

order may be accompanied by the initial 

action of the Patent and Trademark 

Office on the merits of the inter partes 

reexamination’’). For this reason, the 

average time between the filing of the 

request and the mailing of an FAOM in 

inter partes reexamination has 

historically been shorter (indeed, nearly 

half as long) as that in ex parte 

reexamination.1

Under the pilot, the USPTO contacts 

the Patent Owner, via telephone, after 

the reexamination request is given a 

filing date but before any decision on 

the request has been made. The 

telephone communication is limited to 

an inquiry regarding whether the Patent 

Owner wishes to waive the right to file 

a statement under 35 U.S.C. 304 in the 

event that the reexamination request is 

granted. Any discussion of the merits of 

the proceedings (e.g., the patentability 

of the claims) is not permitted. The 

Patent Owner’s decision to either waive 

or not waive the statement is made of 


emcdonald on DSK2BSOYB1PROD with PROPOSALS
Federal Register / Vol. 76, No. 79 / Monday, April 25, 2011 / Proposed Rules 22859 

record in an interview summary, and a 

copy of the summary is mailed to both 

the Patent Owner and any Third Party 

Requester. If the Patent Owner agrees to 

waive the statement, then the examiner 

can mail an order for ex parte 

reexamination together with or soon 

after mailing the FAOM. The initial 

results of the pilot are encouraging. In 

view of these results, the USPTO 

proposes to make the pilot permanent 

through a notice of proposed rule 

making. 

2. Where the Patent Owner Does Not 

Waive the Statement, the Order 

Granting Reexamination Will Include a 

Provisional FAOM, Which May Be Made 

Final in the Next Action 

This proposed change is intended to 

streamline reexamination and reflects 

the fact that the Patent Owner has a 

right, under 35 U.S.C. 304, to file a 

statement, together with evidence and 

amendments, in order to distinguish the 

claimed invention from the prior art. If 

the Patent Owner does not waive this 

statement when contacted by the 

USPTO pursuant to the Optional Waiver 

of Patent Owner’s Statement in Ex Parte 

Reexamination Proceedings, 75 FR 

47269 (Aug. 5, 2010), and if the 

examiner determines that the 

reexamination request raises an SNQ, 

then the examiner will mail an order 

granting ex parte reexamination together 

with a provisional FAOM indicating 

which claims stand provisionally 

rejected or provisionally confirmed. 

If, in response to a provisional FAOM, 

the Patent Owner either does not file a 

statement or files a statement that fails 

to overcome all provisional rejections, 

then, to the extent the rejections have 

not been overcome, the examiner will 

adopt in the next action the pertinent 

portions of the provisional FAOM 

which were not overcome. For purposes 

of determining whether this next action 

will be made final, the examiner will 

treat the provisional FAOM as if it were 

an actual FAOM at the time it was 

mailed, and will apply the guidance set 

forth in MPEP § 706.07(a) (Final 

Rejection, When Proper on Second 

Action). 

C. Proposed Changes Specific to Inter 

Partes Reexamination 

1. Third Party Requester May Dispute 

the Examiner’s Designation That a 

Rejection is ‘‘Representative’’ of Other 

Rejections in the Group 

If an examiner designates a rejection 

as ‘‘representative’’ of a group of adopted 

rejections (see Part A.4 above), then the 

Third Party Requester will have an 

opportunity to dispute this designation 

to both the examiner and the Board. In 

particular, after the Patent Owner files 

a response to the FAOM, then the Third 

Party Requester may file comments in 

which the Third Party Requester 

supports the examiner’s reasons for 

adopting a group of rejections but 

further argues that one or more 

rejections within the group of adopted 

rejections would stand even if the 

representative rejection is overcome. If 

the examiner agrees with the Third 

Party Requester that all rejections 

within the group do not ‘‘stand or fall’’ 

with the representative rejection, then 

the examiner will say so in the next 

action. This next action may be made 

final under MPEP § 706.07(a) (Final 

Rejection, When Proper on Second 

Action). 

Similarly, after the Patent Owner files 

an appeal of a final rejection, the Third 

Party Requester may file a respondent’s 

brief in which the Third Party Requester 

supports the examiner’s final rejections 

but further argues that one or more final 

rejections in the group would stand 

even if the representative rejection is 

reversed. This further argument will 

ensure that, in the event the 

representative rejection is reversed, the 

Board will have the benefit of the Third 

Party Requester’s position as to the 

other rejections within the group. The 

Board may review any rejection within 

the group of adopted rejections in order 

to affirm the examiner as to that claim. 

For further discussion of the Third Party 

Requester’s briefing on appeal in inter 

partes reexamination, see Part C.3 

below. 

2. Final Office Action Closes 

Prosecution and Triggers Appeal Rights 

This proposed change is intended to 

reduce delays in inter partes 

reexaminations by consolidating the 

action closing prosecution under 37 

CFR 1.949 and the right of appeal notice 

under 37 CFR 1.953, and replacing them 

with one final Office action. The final 

Office action will identify the status of 

each claim and will explain the reasons 

for each representative rejection and 

each decision to confirm a claim. No 

amendment can be made in response to 

the final Office action, other than to 

cancel claims (where cancellation does 

not change the scope of any pending 

claim), to rewrite dependent claims into 

independent form, or to comply with 

requirements or suggestions set forth in 

the final Office action. The final Office 

action will set (1) a time period in 

which any Patent Owner amendment 

and appeal must be filed, and/or (2) a 

time period in which any Third Party 

Requester appeal must be filed. 

To effect this proposed change, the 

USPTO would amend 37 CFR 1.949– 

1.953 to create a single, final Office 

action that closes prosecution and 

triggers appeal rights. 

3. Third Party Requester’s Appellant 

Brief is Limited To Appealing An 

Examiner’s Decision That a Claim is 

Patentable; Additional Bases To Cancel 

A Rejected Claim Can Only Be Argued 

in a Respondent Brief Following Patent 

Owner’s Appellant Brief 

This proposed change is intended to 

reduce the number of duplicative issues 

and briefs submitted on appeal, 

particularly where all claims stand 

finally rejected and the Third Party 

Requester is challenging the examiner’s 

determination not to make additional 

proposed rejections. The statute 

authorizes the Third Party Requester to 

independently appeal ‘‘any final 

decision favorable to the patentability of 

any original or proposed amended or 

new claim of the patent.’’ 35 U.S.C. 

315(b)(1). The current rules, however, 

permit the Third Party Requester to 

independently appeal ‘‘any final 

decision favorable to the patentability, 

including any final determination not to 

make a proposed rejection, of any 

original, proposed amended, or new 

claim of the patent.’’ 37 CFR 41.67(a)(2) 

(2010) (emphasis added). 

The regulatory language, emphasized 

above, allows the Third Party Requester 

to independently appeal an examiner’s 

determination not to adopt a proposed 

rejection of a claim, even in cases where 

the same claim stands rejected on other 

grounds that are being appealed by the 

Patent Owner. In this scenario, the 

Third Party Requester’s cross-appeal 

merely raises additional grounds on 

which to affirm the examiner’s final 

determination that the claim is 

unpatentable. 

Courts do not permit such crossappeals. As the Federal Circuit has 

explained in the context of district court 

litigation, ‘‘A cross-appeal may only be 

filed ‘when a party seeks to enlarge its 

own rights under the judgment or to 

lessen the rights of its adversary under 

the judgment.’’’ Aventis Pharma S.A. v. 

Hospira, Inc., __F.3d__, 2011 WL 

1046187, at *1 (Fed. Cir. Mar. 24, 2011) 

(quoting Bailey v. Dart Container Corp., 

292 F.3d 1360, 1362 (Fed. Cir. 2002)). 

By contrast, where ‘‘the district court 

has entered a judgment of invalidity as 

to all of the asserted claims, there is no 

basis for a cross-appeal as to either (1) 

additional claims for invalidity or (2) 

claims of non-infringement.’’ TypeRight 

Keyboard Corp. v. Microsoft Corp., 374 

F.3d 1151, 1157 (Fed. Cir. 2004) 

(emphasis added). An unwarranted 


emcdonald on DSK2BSOYB1PROD with PROPOSALS
22860 Federal Register / Vol. 76, No. 79 / Monday, April 25, 2011 / Proposed Rules 

cross-appeal ‘‘unnecessarily expands the 

amount of briefing,’’ and also gives ‘‘the 

appellee an unfair opportunity to file 

the final brief and have the final oral 

argument.’’ Bailey, 292 F.3d at 1362. 

Although a cross-appeal is not the 

appropriate vehicle to present 

alternative grounds for affirmance, 

parties are ‘‘free to devote as much of 

their responsive briefing as needed to 

flesh out additional arguments and 

alternative grounds for affirming the 

judgment on appeal.’’ Aventis, __F.3d 

at__, 2011 WL 1046187, at *2. See 

United States v. Am. Ry. Express Co., 

265 U.S. 425, 435 (1924) (The ‘‘appellee 

may, without taking a cross-appeal, urge 

in support of a decree any matter 

appearing in the record, although his 

argument may involve an attack upon 

the reasoning of the lower court or an 

insistence upon matter overlooked or 

ignored by it.’’). 

Consistent with the courts’ practice, 

the USPTO proposes to revise its rules 

governing appeals by Third Party 

Requesters to prohibit the filing of 

appeals by Third Party Requesters as to 

any claim that is finally rejected on at 

least one ground. A final rejection of a 

claim on at least one ground is a 

‘‘decision adverse to the patentability’’ of 

that claim under 35 U.S.C. 315(a)(1), 

which not only triggers the Patent 

Owner’s appeal, but also allows the 

Third Party Requester to ‘‘be a party to 

any appeal taken by the patent owner,’’ 

id. § 315(b)(2). As a party to the Patent 

Owner’s appeal, the Third Party 

Requester may argue in its responsive 

briefing that the examiner should have 

made additional rejections against a 

claim that stands rejected on other 

grounds. By contrast, a ‘‘final decision 

favorable to the patentability’’ of a claim 

under 35 U.S.C. 315(b)(1) is one in 

which no rejection has been finally 

adopted against that claim. 

To effect this proposed change, the 

USPTO would amend 37 CFR 41.61, 

41.67, 41.68, 41.71, and/or 41.77. A 

Third Party Requester’s appellant brief, 

if any, would be limited to challenging 

a final determination in which no 

rejection has been adopted against a 

particular claim. However, if a claim 

stands finally rejected and is appealed 

by the Patent Owner, then the Third 

Party Requester may file a respondent’s 

brief addressing the Patent Owner’s 

arguments and further challenging the 

examiner’s non-adoption of additional 

proposed rejections against that claim. 

The Patent Owner could then address 

these arguments in a reply brief. 

Comments are invited on the aboveproposed changes, as well as to the 

questions below: 

1. Should the USPTO proceed with 

any efforts to streamline the procedures 

governing ex parte and/or inter partes 

reexamination proceedings? 

2. Should the USPTO place word 

limits on requests for ex parte and/or 

inter partes reexamination? 

3. Should the USPTO revise its 

existing page or word limits in inter 

partes reexamination following the 

request? 

4. Should the USPTO place any 

limitation or criteria on the addition of 

new claims by a Patent Owner in 

reexamination? If so, what kind of 

limitation or criteria? 

5. Should the USPTO change its 

interpretation of ‘‘a substantial new 

question of patentability’’ to require 

something more than ‘‘a substantial 

likelihood that a reasonable examiner 

would consider the prior art patent or 

printed publication important in 

deciding whether or not the claim is 

patentable’’? See MPEP §§ 2242, 2642. If 

so, how should it be interpreted? 

6. How much time should Patent 

Owners and Third Party Requesters 

ordinarily be given to submit a 

statement, response, or appeal where 

the time for filing the statement, 

response, or appeal is set by the USPTO 

rather than by statute? 

7. Under what conditions should the 

USPTO grant a Patent Owner’s request 

for an extension of time under 37 CFR 

1.550(c) or 1.956, both of which provide 

that extensions of time may only be 

granted for ‘‘sufficient cause and for a 

reasonable time specified’’? 

8. Should the USPTO require that any 

information disclosure statement (IDS) 

filed by a Patent Owner in a 

reexamination comply with provisions 

analogous to 37 CFR 1.97 and 1.98, and 

further require that any IDS filed after 

a Notice of Intent to Issue a 

Reexamination Certificate (NIRC) or 

notice of appeal be accompanied by: 

(1) an explanation of why the 

information submitted could not have 

been submitted earlier, and (2) an 

explanation of the relevance of the 

information with regard to the claimed 

invention? 

9. Under what conditions should a 

reexamination proceeding be merged 

with another reexamination or reissue 

proceeding? 

10. What relief can and should be 

given to a Third Party Requester that 

shows that it did not receive a Patent 

Owner’s statement or response within a 

certain number of days after the date 

listed on the Patent Owner’s certificate 

of service? How many days and what 

kind of showing should be required? 

11. Should the USPTO encourage 

and/or require that all correspondence 

in reexamination proceedings be 

conducted electronically (e.g., e-filing 

parties’ documents, e-mailing notices of 

Office actions and certificates)? 

12. Should reexamination 

proceedings remain with the Board in 

cases where the Board has entered a 

new ground of rejection on appeal and 

the Patent Owner seeks to introduce 

new evidence and amendments? In 

particular, is it more efficient for three 

administrative patent judges or a single 

examiner to decide issues involving 

new evidence and amendments? 

13. What other changes can and 

should the USPTO make in order to 

streamline reexamination proceedings? 

Registration Information: The USPTO 

plans to make the meeting available via 

Web cast. Web cast information will be 

available on the USPTO’s Internet Web 

site before the meeting. The written 

comments and list of the meeting 

participants and their associations will 

be posted on the USPTO’s Internet Web 

site (http://www.uspto.gov). 

When registering, please provide the 

following information: (1) Your name, 

title, and if applicable, company or 

organization, address, phone number, 

and e-mail address; and (2) if you wish 

to make a presentation, the specific 

topic or issue to be addressed and the 

approximate desired length of your 

presentation. 

There is no fee to register for the 

public meeting and registration will be 

on a first-come, first-serve basis. Early 

registration is recommended because 

seating is limited. Registration on the 

day of the public meeting will be 

permitted on a space-available basis 

beginning at 1:30 p.m., Eastern Standard 

Time, on June 1, 2011. 

The USPTO will attempt to 

accommodate all persons who wish to 

make a presentation at the meeting. 

After reviewing the list of speakers, the 

USPTO will contact each speaker prior 

to the meeting with the amount of time 

available and the approximate time that 

the speaker’s presentation is scheduled 

to begin. Speakers must then send the 

final electronic copies of their 

presentations in Microsoft PowerPoint 

or Microsoft Word to reexam

improvementcomments@uspto.gov by 

May 25, 2011, so that the presentation 

can be displayed in the Auditorium. 

If you need special accommodations 

due to a disability, please inform the 

contact person (see FOR FURTHER

INFORMATION CONTACT) by May 25, 2011. 


emcdonald on DSK2BSOYB1PROD with PROPOSALS
Federal Register / Vol. 76, No. 79 / Monday, April 25, 2011 / Proposed Rules 22861 

Dated: April 18, 2011. 

David J. Kappos, 

Under Secretary of Commerce for Intellectual 

Property and Director of the United States 

Patent and Trademark Office. 

[FR Doc. 2011–9805 Filed 4–22–11; 8:45 am] 

BILLING CODE 3510–16–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 62 

[EPA–R04–OAR–2010–0840(b); FRL–9298– 

8] 

Approval and Promulgation of State 

Plans for Designated Facilities and 

Pollutants: Florida; Jefferson County, 

KY; Forsyth, Mecklenburg, and 

Buncombe Counties, NC; and SC 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: EPA is notifying the public 

that it has received negative 

declarations for Other Solid Waste 

Incinerator (OSWI) units from the State 

of Florida; Large Municipal Waste 

Combustor (LMWC), Small Municipal 

Waste Combustor (SMWC), and OSWI 

units from Jefferson County, Kentucky; 

LMWC, SMWC, and OSWI units from 

Forsyth County, North Carolina; LMWC, 

SMWC, and OSWI units from 

Mecklenburg County, North Carolina; 

LMWC, SMWC, Hospital/Medical/ 

Infectious Waste Incinerator (HMIWI), 

and OSWI units from Buncombe 

County, North Carolina; and LMWC and 

HMIWI units from the State of South 

Carolina. These negative declarations 

certify that LMWC, SMWC, HMIWI, and 

OSWI units, as indicated above, subject 

to the requirements of Sections 111(d) 

and 129 of the Clean Air Act do not 

exist in areas covered by the following 

air pollution control programs: Florida 

Department of Environmental 

Protection; Louisville, Kentucky, Air 

Pollution Control District; Forsyth 

County Environmental Affairs 

Department; Mecklenburg County Land 

Use and Environmental Services 

Agency; Western North Carolina 

Regional Air Quality Agency; and South 

Carolina Department of Health and 

Environmental Control. In the Final 

Rules section of this Federal Register, 

EPA is publishing these negative 

declaration submittals as a direct final 

rule without prior proposal because the 

Agency views this as a noncontroversial 

submittal and anticipates no adverse 

comments. 

DATES: Comments must be received in 

writing by May 25, 2011. 

ADDRESSES: Submit your comments, 

identified by Docket ID Number EPA– 

R04–OAR–2010–0840 by one of the 

following methods: 

1. http://www.regulations.gov. Follow 

the on-line instructions for submitting 

comments. 

2. E-mail: garver.daniel@epa.gov. 

3. Fax: (404) 562–9095. 

4. Mail: EPA–R04–OAR–2010–0840, 

Daniel Garver, U.S. Environmental 

Protection Agency, Region 4, 61 Forsyth 

Street, SW., Atlanta, Georgia 30303. 

5. Hand Delivery or Courier: Mr. 

Daniel Garver, Air Toxics Assessment 

and Implementation Section, Air Toxics 

and Monitoring Branch, Air, Pesticides 

and Toxics Management Division, U.S. 

Environmental Protection Agency, 

Region 4, 61 Forsyth Street, SW., 

Atlanta, Georgia 30303–8960. Such 

deliveries are only accepted during the 

Regional Office’s normal hours of 

operation. The Regional Office’s official 

hours of business are Monday through 

Friday, 8:30 a.m. to 4:30 p.m., excluding 

federal holidays. 

Please see the direct final rule which 

is located in the Rules section of this 

Federal Register for detailed 

instructions on how to submit 

comments. 

FOR FURTHER INFORMATION CONTACT: 

Daniel Garver, Air Toxics and 

Monitoring Branch, Air, Pesticides and 

Toxics Management Division, U.S. 

Environmental Protection Agency, 

Region 4, 61 Forsyth Street, SW., 

Atlanta, Georgia 30303–8960. The 

telephone number is (404) 562–9839. 

Mr. Garver can also be reached via 

electronic mail at 

garver.daniel@epa.gov. 

SUPPLEMENTARY INFORMATION: For 

additional information see the direct 

final rule which is published in the 

Rules Section of this Federal Register. 

If no adverse comments are received in 

response to this rule, no further activity 

is contemplated. If EPA receives adverse 

comments, the direct final rule will be 

withdrawn and all public comments 

received will be addressed in a 

subsequent final rule based on this 

proposed rule. EPA will not institute a 

second comment period on this 

document. Any parties interested in 

commenting on this document should 

do so at this time. 

Dated: January 13, 2011. 

A. Stanley Meiburg, 

Acting Regional Administrator, Region 4. 

[FR Doc. 2011–9848 Filed 4–22–11; 8:45 am] 

BILLING CODE 6560–50–P 


emcdonald on DSK2BSOYB1PROD with PROPOSALS