82172 Federal Register / Vol. 89, No. 197 / Thursday, October 10, 2024 / Rules and Regulations 

responsibilities between the Federal 

Government and Indian tribes. 

E. Unfunded Mandates Reform Act 

The Unfunded Mandates Reform Act 

of 1995 (2 U.S.C. 1531–1538) requires 

Federal agencies to assess the effects of 

their discretionary regulatory actions. In 

particular, the Act addresses actions 

that may result in the expenditure by a 

State, local, or Tribal government, in the 

aggregate, or by the private sector of 

$100,000,000 (adjusted for inflation) or 

more in any one year. Though this rule 

will not result in such an expenditure, 

we do discuss the effects of this rule 

elsewhere in this preamble. 

F. Environment 

We have analyzed this rule under 

Department of Homeland Security 

Directive 023–01, Rev. 1, associated 

implementing instructions, and 

Environmental Planning COMDTINST 

5090.1 (series), which guide the Coast 

Guard in complying with the National 

Environmental Policy Act of 1969 (42 

U.S.C. 4321–4370f) and have 

determined that this action is one of a 

category of actions that do not 

individually or cumulatively have a 

significant effect on the human 

environment. This rule involves moving 

security zones lasting for the duration of 

time that the M/V MARAN GAS 

DELPHI, TRANIANO KNUTSEN, 

ADAMASTOS, HELLAS ATHINA are 

within the Corpus Christi Ship Channel 

and La Quinta Channel while loaded 

with cargo. It will prohibit entry within 

a 500-yard radius of the M/V MARAN 

GAS DELPHI, TRANIANO KNUTSEN, 

ADAMASTOS, and HELLAS ATHINA 

while the vessels are transiting loaded 

within Corpus Christi Ship Channel and 

La Quinta Channel. It is categorically 

excluded from further review under 

L60(a) in Appendix A, Table 1 of DHS 

Instruction Manual 023–01–001–01, 

Rev. 1. A record of Environmental 

Consideration supporting this 

determination is available in the docket. 

For instructions on locating the docket, 

see the ADDRESSES section of this 

preamble. 

G. Protest Activities 

The Coast Guard respects the First 

Amendment rights of protesters. 

Protesters are asked to contact the 

person listed in the FOR FURTHER

INFORMATION CONTACT section to 

coordinate protest activities so that your 

message can be received without 

jeopardizing the safety or security of 

people, places, or vessels. 

List of Subjects in 33 CFR Part 165 

Harbors, Marine safety, Navigation 

(water), Reporting and recordkeeping 

requirements, Security measures, 

Waterways. 

For the reasons discussed in the 

preamble, the Coast Guard amends 33 

CFR part 165 as follows: 

PART 165—REGULATED NAVIGATION 

AREAS AND LIMITED ACCESS AREAS 

■ 1. The authority citation for part 165 

continues to read as follows: 

Authority: 46 U.S.C 70034, 70051; 70124; 

33 CFR 1.05–1, 6.04–1, 6.04–6, and 160.5; 

Department of Homeland Security Delegation 

No. 00170.1, Revision No. 01.3. 

■ 2. Add § 165.T08–0908 to read as 

follows: 

§ 165.T08–0908 Security Zones; Corpus 

Christi Ship Channel, Corpus Christi, TX. 

(a) Location. All navigable waters 

encompassing a 500-yard radius around 

the M/V MARAN GAS DELPHI, 

TRANIANO KNUTSEN, ADAMASTOS, 

and HELLAS ATHINA, while the 

vessels are in the Corpus Christi Ship 

Channel and the La Quinta Ship 

Channel. 

(b) Definitions. As used in this 

section, oesignated representative 

means a commissioned, warrant, or 

petty officer of the U.S. Coast Guard 

assigned to units under the operational 

control of USCG Sector Corpus Christi. 

(c) Effective period. This section will 

be in effect from October 7, 2024, 

through October 17, 2024. This section 

will be enforced when any of the vessels 

are in the specified channels and 

carrying cargo. 

(d) Regulations. (1) The general 

security zone regulations in subpart D of 

this part apply. Entry into the zone is 

prohibited unless authorized by the 

Captain of the Port Sector Corpus 

Christi (COTP) or a designated 

representative. 

(2) Persons or vessels desiring to enter 

or pass through the zones must request 

permission from the COTP Sector 

Corpus Christi on VHF–FM channel 16 

or by telephone at 361–939–0450. 

(3) If permission is granted, all 

persons and vessels shall comply with 

the instructions of the COTP or 

designated representative. 

(d) Information broadcasts. The COTP 

or a designated representative will 

inform the public through Broadcast 

Notices to Mariners (BNMs), Local 

Notices to Mariners (LNMs), and/or 

Marine Safety Information Bulletins 

(MSIBs) as appropriate of the 

enforcement times and dates for this 

security zone. 

Dated: October 4, 2024. 

T.H. Bertheau, 

Captain, U.S. Coast Guard, Captain of the 

Port, Sector Corpus Christi. 

[FR Doc. 2024–23469 Filed 10–9–24; 8:45 am] 

BILLING CODE 9110–04–P 

DEPARTMENT OF COMMERCE 

Patent and Trademark Office 

37 CFR Part 42 

[Docket No. PTO–P–2023–0058] 

RIN 0651–AD75 

Expanding Opportunities To Appear 

Before the Patent Trial and Appeal 

Board 

AGENCY: United States Patent and 

Trademark Office, Department of 

Commerce. 

ACTION: Final rule. 

SUMMARY: As part of its initiatives to 

expand access to practice before the 

U.S. Patent and Trademark Office 

(USPTO or Office), the USPTO modifies 

the rules regarding representation by 

counsel at the Patent Trial and Appeal 

Board (PTAB or Board) in proceedings 

under the Leahy-Smith America Invents 

Act (AIA proceedings) to: permit parties 

to proceed without back-up counsel 

upon a showing of good cause, such as 

a lack of resources to hire two counsel; 

establish a streamlined alternative 

procedure for recognizing counsel pro 

hac vice that is available when counsel 

has previously been recognized pro hac 

vice in a different PTAB proceeding; 

and clarify that those recognized pro 

hac vice have a duty to inform the Board 

of subsequent events that render 

inaccurate or incomplete 

representations they made to obtain pro 

hac vice recognition. 

DATES: This rule is effective November 

12, 2024. 

FOR FURTHER INFORMATION CONTACT: 

Scott C. Moore, Acting Senior Lead 

Administrative Patent Judge; or Michael 

P. Tierney, Vice Chief Administrative 

Patent Judge, both at 571–272–9797. 

SUPPLEMENTARY INFORMATION: 

Background 

The USPTO is focused on expanding 

American innovation for and from all 

and has been examining the rules 

governing practice before the Office to 

ensure that they are properly aligned 

with the types of work performed by 

practitioners and the needs of clients. 

As part of this effort, the USPTO 

recently expanded the admission 


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1Legal representation before Federal agencies is 

generally governed by the provisions of 5 U.S.C. 

500. However, that statute provides a specific 

exception for representation in patent matters 

before the USPTO. 5 U.S.C. 500(e). See 35 U.S.C. 

2(b)(2)(D) (formerly 35 U.S.C. 31). 

criteria for patent bar applicants and 

established a separate design patent bar 

that is open to applicants who 

previously would not have been eligible 

to practice before the Office. See 

Expanding Admission Criteria for 

Registration To Practice in Patent Cases 

Before the United States Patent and 

Trademark Office, 88 FR 31249 (May 16, 

2023); Representation of Others in 

Design Patent Matters Before the United 

States Patent and Trademark Office, 88 

FR 78644 (November 16, 2023). In this 

final rule, the USPTO updates the rules 

governing practice before the Board to 

simplify and streamline the pro hac vice 

admission process and reduce litigation 

costs while ensuring parties continue to 

receive high quality representation. 

Rules Regarding Representation by 

Counsel in AIA Proceedings Prior to 

This Final Rule 

The Director of the USPTO has 

statutory authority to require those 

seeking to practice before the Office to 

show that they possess ‘‘the necessary 

qualifications to render applicants or 

other persons valuable service, advice, 

and assistance in the presentation or 

prosecution of their applications or 

other business before the Office.’’ 35 

U.S.C. 2(b)(2)(D). Thus, courts have 

determined that the USPTO Director 

bears the primary responsibility for 

protecting the public from unqualified 

practitioners. See Hsuan-Yeh Chang v. 

Kappos, 890 F. Supp. 2d 110, 116–17 

(D.D.C. 2012) (‘‘ ‘Title 35 vests the 

[Director of the USPTO], not the courts, 

with the responsibility to protect 

[US]PTO proceedings from unqualified 

practitioners.’ ’’) (quoting Premysler v. 

Lehman, 71 F.3d 387, 389 (Fed. Cir. 

1995)), aff’d sub nom. Hsuan-Yeh Chang 

v. Rea, 530 F. App’x 958 (Fed. Cir. 

2013). 

Pursuant to that authority and 

responsibility, the USPTO has 

promulgated regulations, administered 

by the Office of Enrollment and 

Discipline, that provide that registration 

to practice before the USPTO in patent 

matters or design patent matters 

requires a practitioner to demonstrate 

possession of ‘‘the legal, scientific, and 

technical qualifications necessary for 

[them] to render applicants valuable 

service.’’ 37 CFR 11.7(a)(2)(ii).1 The 

USPTO determines whether an 

applicant possesses the legal 

qualification by administering a 

registration examination, which 

applicants must pass before being 

admitted to practice. See 37 CFR 

11.7(b)(ii). The USPTO sets forth 

guidance for establishing possession of 

scientific and technical qualifications in 

the General Requirements Bulletin for 

Admission to the Examination for 

Registration to Practice in Patent Cases 

before the United States Patent and 

Trademark Office (GRB). The GRB is 

available at www.uspto.gov/sites/ 

default/files/documents/OED_GRB.pdf. 

The rules that govern practice before 

the PTAB in AIA proceedings differ 

somewhat from the rules that govern 

other types of USPTO proceedings. In 

an AIA proceeding, 37 CFR 42.10(a) 

requires that each represented party 

designate a lead counsel and at least one 

back-up counsel. The regulation 

requires that lead counsel be a 

registered practitioner. The regulation 

allows non-registered practitioners to be 

back-up counsel upon a showing of 

good cause. For example, ‘‘where the 

lead counsel is a registered practitioner, 

a motion to appear pro hac vice by 

counsel who is not a registered 

practitioner [is] granted upon showing 

that counsel is an experienced litigating 

attorney and has an established 

familiarity with the subject matter at 

issue in the proceeding.’’ 37 CFR 

42.10(c). 

The Board typically requires that pro 

hac vice motions be filed in accordance 

with the ‘‘Order Authorizing Motion for 

Pro Hac Vice Admission’’ in Unified 

Patents, Inc. v. Parallel Iron, LLC, 

IPR2013–00639, Paper 7 (PTAB Oct. 15, 

2013) (the Unified Patents Order). The 

Unified Patents Order requires that a 

motion for pro hac vice admission must: 

a. Contain a statement of facts 

showing there is good cause for the 

Board to recognize counsel pro hac vice 

during the proceeding[; and] 

b. Be accompanied by an affidavit or 

declaration of the individual seeking to 

appear attesting to the following: 

i. Membership in good standing of the 

Bar of at least one State or the District 

of Columbia; 

ii. No suspensions or disbarments 

from practice before any court or 

administrative body; 

iii. No application for admission to 

practice before any court or 

administrative body ever denied; 

iv. No sanctions or contempt citations 

imposed by any court or administrative 

body; 

v. The individual seeking to appear 

has read and will comply with the 

Office Patent Trial Practice Guide and 

the Board’s Rules of Practice for Trials 

set forth in 37 CFR part 42; 

vi. The individual will be subject to 

the USPTO Rules of Professional 

Conduct set forth in 37 CFR 11.101 et 

seq. and disciplinary jurisdiction under 

37 CFR 11.19(a); 

vii. All other proceedings before the 

Office for which the individual has 

applied to appear pro hac vice in the 

last three years; and 

viii. Familiarity with the subject 

matter at issue in the proceeding. 

Id. at 3. If the affiant or declarant is 

unable to provide any of the information 

requested above or make any of the 

required statements or representations 

under oath, the Unified Patents Order 

requires that the individual provide a 

full explanation of the circumstances as 

part of the affidavit or declaration. Id. at 

4. 

Development of the Final Rule 

On October 18, 2022, the USPTO 

published a request for comments in 

which the Office sought feedback on 

potential ways to expand opportunities 

for non-registered practitioners to 

appear before the PTAB. Expanding 

Opportunities To Appear Before the 

Patent Trial and Appeal Board, 87 FR 

63047. The request asked several 

questions, including: (1) whether the 

USPTO should permit non-registered 

practitioners to appear as lead counsel 

in AIA proceedings, and if so, whether 

they should be accompanied by a 

registered practitioner as back-up 

counsel; (2) whether the USPTO should 

establish a new procedure by which 

non-registered practitioners could be 

admitted to practice before the PTAB; 

(3) what impact various proposals 

would have on the cost of 

representation; and (4) whether any 

changes should be implemented 

initially as a pilot program. 

The USPTO received nine comments 

in response to the request. Five 

comments were in favor of retaining 

existing limits on non-registered 

practitioners, while four comments 

generally supported expanding the ways 

in which non-registered practitioners 

can participate in AIA proceedings. 

The comments were split on the issue 

of whether non-registered practitioners 

should be permitted to appear as lead 

counsel. However, some of the 

comments suggested that any potential 

issues with allowing non-registered 

practitioners to serve as lead counsel 

could be remedied by requiring that 

they be accompanied by a registered 

practitioner as back-up counsel. Most of 

the comments indicated that the Office 

should continue to require nonregistered practitioners to meet fitnessto-practice standards, but several 

comments agreed that it might be more 

efficient and less costly to the parties to 

establish a separate registry or 


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2See Notice Regarding Options for Amendments 

by Patent Owner Through Reissue or 

Reexamination During a Pending AIA Trial 

Proceeding, 84 FR 16654 (April 22, 2019). 

certification procedure that would 

permit non-registered practitioners to 

avoid filing separate pro hac vice 

motions in each individual case. Several 

comments indicated that the rule 

requiring that parties retain both lead 

and back-up counsel might increase 

cost. Some of these comments asserted 

that the additional costs were justified 

to maintain the Office’s high standards 

of representation, and others argued that 

the additional costs might adversely 

impact certain parties. 

Most of the comments expressed no 

opinion on whether any changes should 

be addressed as a pilot program. Of the 

three comments that discussed this 

issue, one favored implementing any 

changes as a pilot program, one 

indicated that a pilot program would be 

unnecessary, and one indicated a pilot 

program would be unnecessary if the 

Office were to permit non-registered 

practitioners to appear as lead counsel 

with a registered practitioner as back-up 

without making other substantive 

changes to admissions standards. 

On February 21, 2024, after careful 

consideration of the public input 

received in response to the request for 

comments, the USPTO published a 

notice of proposed rulemaking (NPRM). 

See Expanding Opportunities To 

Appear Before the Patent Trial and 

Appeal Board, 89 FR 13017. The NPRM 

granted a 90-day comment period and 

proposed to amend § 42.10(a) to provide 

that, upon a showing of good cause, the 

Board may permit a party to proceed 

without separate back-up counsel so 

long as lead counsel is a registered 

practitioner. The NPRM also proposed 

to amend § 42.10(c) to provide that (1) 

a non-registered practitioner admitted 

pro hac vice may serve as either lead or 

back-up counsel for a party so long as 

a registered practitioner is also counsel 

of record for that party and (2) a nonregistered practitioner who was 

previously recognized pro hac vice in an 

AIA proceeding and not subsequently 

denied recognition pro hac vice shall be 

considered a PTAB-recognized 

practitioner and shall be eligible for 

automatic pro hac vice admission in 

subsequent proceedings via a simplified 

and expedited process that does not 

require the payment of a fee. The NPRM 

also proposed to amend § 42.10(c) to 

provide that those recognized pro hac 

vice have a duty to inform the Office of 

any developments that occur during the 

course of a proceeding that might have 

materially impacted the grant of pro hac 

vice admission had the information 

been presented at the time of grant. 

Proposed Rule: Comments and 

Responses 

The USPTO received a total of seven 

comments from five organizations and 

two individuals. The Office appreciates 

the thoughtful comments representing 

views from various public stakeholder 

communities. The comments are 

publicly available at the Federal 

eRulemaking Portal at 

www.regulations.gov/docket/PTO-P2023-0058 and are addressed below. 

Proposed Amendment to § 42.10(a) 

Permitting Parties To Proceed Without 

Back-Up Counsel Upon Showing of 

Good Cause 

Five comments supported the 

proposal to amend § 42.10(a) to provide 

that upon a showing of good cause, the 

Board may permit a party to proceed 

without separate back-up counsel so 

long as lead counsel is a registered 

practitioner. Three of these comments 

favored the requirement that parties 

without back-up counsel be represented 

by a registered practitioner, noting that 

this requirement is essential to ensure 

quality representation and protect 

represented parties. One comment noted 

that this proposal would allow parties 

with limited resources to consider 

participating in AIA trial proceedings, 

thereby increasing opportunities for 

attorneys from small law firms and solo 

practitioners. Another comment 

suggested that the Board should go 

further and retain flexibility to allow a 

party to proceed without a registered 

practitioner in special circumstances. 

Yet another commenter supported the 

proposed amendments to § 42.10(a) but 

suggested that the requirement to retain 

a registered practitioner might limit the 

proposed rule’s impact. 

One comment opposed the proposed 

amendment to § 42.10(a), arguing that 

no need has been shown for such a 

change, that this proposal might lead to 

situations in which a single counsel’s 

limited availability frustrates the 

progress of proceedings, and that 

allowing parties to proceed without 

back-up counsel might limit 

opportunities for young attorneys and 

under-represented members of the legal 

profession. 

After considering the input from the 

comments, the USPTO is moving 

forward with a final rule providing that, 

upon a showing of good cause, the 

Board may permit a party to proceed 

without separate back-up counsel. For 

example, good cause may be present if 

a party demonstrates that it lacks the 

financial resources to retain both lead 

and back-up counsel. However, the 

Office notes that it would likely be 

difficult for a party to demonstrate a 

lack of financial resources where that 

party has also elected to pursue 

litigation involving the challenged 

patents in other forums. The Office also 

notes that the good cause inquiry 

focuses on the needs of the party 

seeking relief, not the needs or 

preferences of counsel. Thus, for 

example, the fact that lead counsel is a 

solo practitioner who prefers to work 

alone would not constitute good cause 

for a party to proceed without separate 

back-up counsel. 

Based on the comments and the 

Board’s experience, the USPTO believes 

this rule will permit flexibility in 

situations in which good cause is 

shown, while ensuring that parties are 

represented by counsel having the 

requisite qualifications to engage in all 

matters before the PTAB, including in 

quasi-prosecution work such as claim 

amendments or reissue applications.2

The Office believes that permitting a 

represented party to proceed without a 

registered practitioner as either lead or 

back-up counsel would create an 

unacceptable risk that the party would 

not receive complete advice and 

guidance. The Office further notes that 

absent a stipulation of the parties, 

schedule changes require approval from 

the Board. The Board also has authority 

to reconsider prior decisions granting 

discretionary relief, and could thus 

revoke permission to proceed without 

back-up counsel, if appropriate. 

Therefore, the Board has adequate 

authority to prevent scheduling 

considerations from unduly prejudicing 

a party. 

Proposed Amendment to § 42.10(c) 

Permitting Non-Registered Counsel To 

Serve as Lead Counsel With a Registered 

Practitioner as Back-Up Counsel 

Three comments supported the 

proposal to amend § 42.10(c) to permit 

non-registered counsel admitted pro hac 

vice to serve as lead counsel in AIA 

proceedings, so long as back-up counsel 

is a registered practitioner. However, 

two of these commenters indicated that 

they were uncertain whether allowing 

lead and back-up counsel to switch 

roles would have the desired effect of 

expanding opportunities at the PTAB. 

Three comments opposed this 

proposal. These comments argued that it 

is important that lead counsel be 

qualified to discuss technical matters 

and quasi-prosecution matters such as 

claim amendments, that allowing nonVerDate Sep<11>2014 16:07 Oct 09, 2024 Jkt 265001 PO 00000 Frm 00016 Fmt 4700 Sfmt 4700 E:\FR\FM\10OCR1.SGM 10OCR1

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3See supra n 2. 

registered counsel to serve in the lead 

counsel role would weaken the Office’s 

efforts to protect the public and 

facilitate robust and reliable intellectual 

property rights, and that no need has 

been shown to justify amending this 

portion of § 42.10(c). These comments 

also suggested permitting non-registered 

counsel to serve as lead counsel would 

devalue the importance of a separate 

patent bar, increase the likelihood of 

sharp district court-like litigation 

tactics, and weaken safeguards against 

litigation misconduct. 

In addition, two comments noted that 

the proposed rule omitted language in 

the current rule pertaining to pro hac 

vice applicants having ‘‘an established 

familiarity with the subject matter at 

issue’’ in a proceeding. One of these 

comments suggested adding this 

language back into the rule, and the 

second requested clarification regarding 

whether pro hac vice counsel must have 

technical familiarity with the subject 

matter of a proceeding, rather than just 

legal familiarity. 

Further, the USPTO notes that it is 

focused on issuing and maintaining 

robust and reliable intellectual property 

rights, including robust and reliable 

patents resulting from amendments 

made in PTAB proceedings or 

amendments made through reissue or 

reexamination before, during, or after an 

AIA proceeding.3 Based on the Board’s 

experience, the Office believes that 

requiring that lead counsel be a 

registered practitioner will help advance 

the USPTO’s objectives by ensuring that 

parties are fully briefed on available 

quasi-prosecution options and have 

competent counsel to pursue quasiprosecution amendments. 

Based on the input from commenters 

and the USPTO’s experience and 

objectives, the Office believes that a 

cautious approach is appropriate and 

will not move forward at this time with 

a final rule permitting non-registered 

counsel admitted pro hac vice to serve 

as lead counsel in AIA proceedings. 

Instead, the Office plans to explore a 

pilot project under which non-registered 

counsel who are admitted pro hac vice 

would be permitted to serve as lead 

counsel in at least some circumstances. 

The Office may consider moving 

forward at a future date with a rule 

permitting non-registered counsel 

admitted pro hac vice to serve as lead 

counsel in AIA proceedings, either in a 

limited or full capacity. 

The USPTO further notes that the 

language in § 42.10(c) pertaining to pro 

hac vice applicants having an 

established familiarity with the subject 

matter of a proceeding is used as an 

example and does not impose a 

requirement. Nevertheless, in view of 

the comments, the Office modifies the 

rule to clarify that this language refers 

to legal familiarity with the subject 

matter of a proceeding. This change will 

resolve the ambiguity noted above by 

making clear that non-registered counsel 

need not demonstrate technical 

familiarity with the subject matter of a 

proceeding to demonstrate good cause 

for pro hac vice recognition. It also 

aligns with the new streamlined pro hac 

vice procedures. Though the USPTO 

expects counsel to likewise have 

technical familiarity with the subject 

matter, making technical familiarity a 

condition of admission would indicate 

that technical familiarity would have to 

be established for each new matter. 

Proposed Amendment to § 42.10(c) 

Streamlining Pro Hac Vice Admission 

Practice for Previous Pro Hac Vice 

Admittees 

Four comments supported the 

proposal to amend § 42.10(c) to 

establish a streamlined procedure for 

pro hac vice recognition of counsel who 

were so recognized in a previous PTAB 

proceeding without requiring a fee. 

These comments noted that this 

proposal would streamline the pro hac 

vice admission process, decrease 

demands on the Board’s scarce 

resources, and reduce expenses for the 

parties. 

One comment supported streamlining 

the pro hac vice recognition process for 

counsel who were previously so 

recognized but argued that recognition 

for such counsel should not be 

automatic and that the requestor should 

still be required to show good cause. 

One commenter opposed this proposal, 

arguing that it would result in a single 

grant of a pro hac vice motion 

effectively granting permission for a 

non-registered attorney to appear in all 

future PTAB proceedings. 

After considering the input from the 

commenters, the USPTO is moving 

forward with a final rule that establishes 

a streamlined procedure for pro hac vice 

recognition of counsel who were 

recognized in a previous PTAB 

proceeding without requiring a fee. 

Based on the comments and the Board’s 

experience, the Office believes that such 

a rule will minimize the burden and 

expense of seeking pro hac vice 

recognition in subsequent cases, while 

ensuring compliance with fitness-topractice standards. The Office notes that 

the proposed rule contains language 

requiring the party seeking recognition 

to file a declaration or affidavit 

affirming that all requirements set forth 

by the Board for pro hac vice 

recognition are met and gives the 

opposing counsel an opportunity to 

object. These requirements, which are 

included in this final rule, require the 

requestor to demonstrate eligibility for 

pro hac vice recognition and ensure that 

pro hac vice recognition is not 

automatic in situations in which an 

opposing party contends pro hac vice 

recognition is not appropriate. 

Proposed Amendment to § 42.10(c) 

Designating Previous Pro Hac Vice 

Admittees as ‘‘PTAB-Recognized 

Practitioners’’ 

The proposed amendment to 

§ 42.10(c) used the term ‘‘PTABrecognized practitioners’’ to refer to 

non-registered counsel who were 

previously recognized pro hac vice by 

the Board. Two comments generally 

supported using this terminology to 

refer to counsel who were previously 

recognized pro hac vice. In contrast, two 

other comments argued that this 

terminology might lead members of the 

public to mistakenly believe that PTABrecognized practitioners are registered 

practitioners, thereby diluting the 

importance of the patent bar. One other 

comment did not have a substantive 

objection to the term ‘‘PTAB-recognized 

practitioners’’ but contended that this 

terminology is inconsistent with the 

definition of ‘‘practitioners’’ contained 

in § 11.1. That comment asserted that 

the definition of ‘‘practitioner’’ in § 11.1 

does not encompass non-registered 

counsel who are admitted pro hac vice 

in Board proceedings. Thus, the 

commenter argued, § 42.10(c) should 

not use the term ‘‘PTAB-recognized 

practitioners’’ to refer to non-registered 

counsel who are seeking or who were 

granted pro hac vice recognition. That 

comment noted that the same 

terminology problem appears in 

§ 42.15(e), which also uses the term 

‘‘practitioners’’ to refer to counsel 

recognized pro hac vice. The comment 

suggested that §§ 42.10(c) and 42.15(e) 

be revised to use the term ‘‘counsel’’ 

rather than ‘‘practitioner’’ to refer to 

non-registered attorneys who are 

seeking or have been granted pro hac 

vice recognition. The comment further 

suggested that § 42.15(e), which sets 

forth the fee for pro hac vice 

recognition, be revised to conform with 

the new procedure set forth in 

§ 42.10(c)(2) of this rule, which does not 

require the payment of a fee. 

The USPTO notes that the observation 

in the above-referenced comment with 

respect to the use of the term 

‘‘practitioner’’ in § 11.1 is incorrect in 

that ‘‘practitioner,’’ as defined by § 11.1, 

encompasses non-registered counsel 


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who are admitted pro hac vice in Board 

proceedings. Nevertheless, based on the 

totality of input from commenters, the 

Office revises the terminology in 

§§ 42.10(c) and 42.15(e) to avoid using 

the term ‘‘practitioner’’ so as to 

minimize the likelihood a member of 

the public will confuse such persons 

with registered practitioners. This final 

rule uses the term ‘‘provisionally 

recognized PTAB attorney’’ to refer to 

non-registered counsel who are seeking 

or who have been granted pro hac vice 

recognition in a Board proceeding, and 

the terms ‘‘counsel’’ or ‘‘person’’ to refer 

to those seeking or who have been 

granted pro hac vice recognition. Based 

on input from comments, this final rule 

also revises § 42.15(e) to replace the 

term ‘‘non-registered practitioners’’ with 

‘‘counsel who are not registered 

practitioners’’ and to conform this 

section with the new procedure created 

by § 42.10(c)(2) of this final rule, which 

permits pro hac vice recognition in 

certain circumstances without the 

payment of a fee. As discussed below, 

such counsel are required to explicitly 

agree that they are subject to the USPTO 

Rules of Professional Conduct set forth 

in §§ 11.101 et seq. 

Proposed Amendment to § 42.10(c) 

Clarifying Continuing Disclosure Duties 

of Pro Hac Vice Admittees 

Four comments supported the 

proposed amendment to § 42.10(c) 

clarifying that non-registered counsel 

recognized pro hac vice must inform the 

Board of subsequent developments that 

render materially incomplete or 

incorrect information that was provided 

in connection with a request for pro hac 

vice recognition. No comments opposed 

this proposal. 

After considering the input from the 

commenters, the USPTO is moving 

forward with the provision clarifying 

that non-registered counsel recognized 

pro hac vice must inform the Board of 

subsequent developments that render 

materially incomplete or incorrect 

information that was provided in 

connection with a request for pro hac 

vice recognition. Based on the 

comments and the Board’s experience, 

the Office believes this final rule will 

provide useful clarification and 

guidance regarding the obligations of 

those recognized pro hac vice. 

Changes From the Proposed Rule 

In light of the comments received, this 

final rule makes revisions to the NPRM 

as follows. 

In § 42.10(c)(1), the Office has 

dropped the proposed language that 

would have permitted non-registered 

counsel who are recognized pro hac vice 

to serve as lead counsel in favor of 

moving forward with a pilot program. 

The final rule retains the current 

language of § 42.10(c) in place of the 

language that was proposed in the 

NPRM. The final rule includes two 

modifications to the language in 

§ 42.10(c). First, the following heading 

has been added to the beginning of 

§ 42.10(c)(1): ‘‘Pro hac vice recognition 

of a person other than a registered 

practitioner.’’ This language is similar to 

the heading in the proposed version of 

§ 42.10(c)(1) and does not change the 

substance of the rule. Second, the term 

‘‘established familiarity’’ has been 

replaced with ‘‘established legal 

familiarity.’’ This change clarifies, in 

response to a comment, that an 

established legal familiarity with the 

issues in a proceeding is sufficient to 

support a request for pro hac vice 

admission, and technical familiarity is 

not a stated requirement. 

To conform § 42.10(c)(2) with the 

change discussed above, the Office has 

deleted language that would have 

permitted a non-registered attorney 

admitted pro hac vice to serve as lead 

counsel. 

In § 42.10(c)(2) and (3), the term 

‘‘PTAB-recognized practitioner’’ has 

been replaced with ‘‘provisionally 

recognized PTAB attorney.’’ This 

change was made in response to 

commenter concerns that the public 

might confuse ‘‘PTAB-recognized 

practitioners’’ with registered 

practitioners. Also, the term ‘‘nonregistered practitioner’’ has been 

replaced with ‘‘counsel who is not a 

registered practitioner,’’ the term ‘‘nonregistered practitioners recognized pro 

hac vice’’ has been replaced with ‘‘a 

person recognized pro hac vice,’’ and 

certain instances of the term 

‘‘practitioner’’ have been replaced with 

the term ‘‘counsel.’’ These minor 

changes in terminology remove the use 

of the term ‘‘practitioner’’ to refer to 

counsel who are seeking or have been 

granted pro hac vice recognition. 

Notwithstanding these changes, which 

are being made to avoid confusion, 

those admitted pro hac vice remain 

‘‘practitioners’’ under USPTO rules, and 

must explicitly agree that they are 

subject to the USPTO Rules of 

Professional Conduct set forth in 

§§ 11.101 et seq. 

The final rule contains two revisions 

to § 42.15(e) that were not contained in 

the NPRM but that commenters 

indicated were necessary to conform 

this section to the revised version of 

§ 42.10 set forth in this final rule. First, 

for the same reasons discussed above, 

the term ‘‘non-registered practitioners’’ 

in § 42.15(e) has been replaced with 

‘‘counsel who are not registered 

practitioners.’’ Second, § 42.15(e) has 

been revised to conform with 

§ 42.10(c)(2) of this final rule, which 

provides for a new procedure for pro 

hac vice recognition that does not 

require a fee. 

Discussion of the Final Rule 

Section 42.10(a) is amended to clarify 

that lead counsel must be a registered 

practitioner and to provide that, upon a 

showing of good cause, the Board may 

permit a party to proceed without 

separate back-up counsel. 

Section 42.10(c) is amended to clarify 

that an established legal familiarity with 

the subject matter of a proceeding is 

sufficient to support a request for pro 

hac vice recognition, and technical 

familiarity is not required. Section 

42.10(c) is also amended to provide a 

new procedure whereby a nonregistered attorney who was previously 

recognized pro hac vice in an AIA 

proceeding and not subsequently denied 

recognition pro hac vice shall be 

considered a provisionally recognized 

PTAB practitioner and shall be eligible 

for automatic pro hac vice admission in 

subsequent proceedings via a simplified 

and expedited process that does not 

require the payment of a fee. Section 

42.10(c) is further amended to provide 

that those recognized pro hac vice have 

a duty to inform the Office of any 

developments that occur during the 

course of a proceeding that might have 

materially impacted the grant of pro hac 

vice admission had the information 

been presented at the time of grant. The 

terminology of § 42.10(c) is also 

amended to use the terms ‘‘counsel’’ or 

‘‘person’’ rather than ‘‘practitioner’’ to 

refer to persons who are seeking or have 

been granted pro hac vice recognition. 

Section 42.15(e) is amended to 

replace the term ‘‘non-registered 

practitioners’’ with the term ‘‘counsel 

who are not registered practitioners’’ 

and to conform with § 42.10(c)(2) of this 

final rule, which permits certain 

persons to seek pro hac vice recognition 

without the payment of a fee. 

Rulemaking Requirements 

A. Administrative Procedure Act: The 

changes in this rulemaking involve rules 

of agency practice and procedure and/ 

or interpretive rules and do not require 

notice-and-comment rulemaking. See 

Perez v. Mortg. Bankers Ass’n, 575 U.S. 

92, 97, 101 (2015) (explaining that 

interpretive rules ‘‘advise the public of 

the agency’s construction of the statutes 

and rules which it administers’’ and do 

not require notice-and-comment when 

issued or amended); Cooper Techs. Co. 

v. Dudas, 536 F.3d 1330, 1336–37 (Fed. 


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Federal Register / Vol. 89, No. 197 / Thursday, October 10, 2024 / Rules and Regulations 82177 

Cir. 2008) (5 U.S.C. 553, and thus 35 

U.S.C. 2(b)(2)(B), do not require noticeand-comment rulemaking for 

‘‘interpretative rules, general statements 

of policy, or rules of agency 

organization, procedure, or practice’’); 

and JEM Broadcasting Co. v. F.C.C., 22 

F.3d 320, 328 (D.C. Cir. 1994) 

(explaining that rules are not legislative 

because they do not ‘‘foreclose effective 

opportunity to make one’s case on the 

merits’’). 

Nevertheless, the USPTO chose to 

seek public comment before 

implementing this rule to benefit from 

the public’s input. 

B. Regulatory Flexibility Act: For the 

reasons set forth in this rulemaking, the 

Senior Counsel for Regulatory and 

Legislative Affairs, Office of General 

Law, of the USPTO, has certified to the 

Chief Counsel for Advocacy of the Small 

Business Administration that the 

changes in this final rule will not have 

a significant economic impact on a 

substantial number of small entities. See 

5 U.S.C. 605(b). 

This rule permits parties to proceed 

without back-up counsel upon a 

showing of good cause, creates a new 

streamlined procedure for recognizing 

counsel pro hac vice that is available for 

counsel who have previously been 

recognized pro hac vice in a different 

Board proceeding, and clarifies that 

those recognized pro hac vice have a 

duty to inform the Board if the 

information presented in a request for 

pro hac vice recognition is no longer 

accurate or complete. These changes do 

not limit or restrict counsel who meet 

current eligibility criteria to practice 

before the Board and would not limit or 

restrict the ability of parties to designate 

counsel of their choosing. The USPTO 

does not collect or maintain statistics on 

the size status of impacted entities, 

which would be required to determine 

the number of small entities that will be 

affected by the rule. However, the 

changes in this rule are not expected to 

have any material impact on otherwise 

regulated entities because the changes to 

the regulations are procedural in nature, 

do not impose any significant new 

burdens or requirements on parties or 

counsel, and are designed to reduce the 

cost and complexity of Board 

proceedings. Although this rule 

includes a new requirement to inform 

the Board if information submitted in a 

request for pro hac vice recognition is 

no longer accurate or complete, the 

number of impacted entities is expected 

to be very small, and any additional cost 

burden is expected to be minimal. 

Accordingly, the changes in this rule are 

expected to be of minimal additional 

burden to those practicing before the 

Office. 

For the reasons discussed above, this 

rulemaking will not have a significant 

economic impact on a substantial 

number of small entities. 

C. Executive Order 12866 (Regulatory 

Planning and Review): This rulemaking 

has been determined to be not 

significant for purposes of E.O. 12866 

(Sept. 30, 1993), as amended by E.O. 

14094 (Apr. 6, 2023). 

D. Executive Order 13563 (Improving 

Regulation and Regulatory Review): The 

Office has complied with Executive 

Order 13563 (Jan. 18, 2011). 

Specifically, and as discussed above, the 

Office has, to the extent feasible and 

applicable: (1) made a reasoned 

determination that the benefits justify 

the costs of the rule; (2) tailored the rule 

to impose the least burden on society 

consistent with obtaining the regulatory 

objectives; (3) selected a regulatory 

approach that maximizes net benefits; 

(4) specified performance objectives; (5) 

identified and assessed available 

alternatives; (6) involved the public in 

an open exchange of information and 

perspectives among experts in relevant 

disciplines, affected stakeholders in the 

private sector, and the public as a 

whole, and provided online access to 

the rulemaking docket; (7) attempted to 

promote coordination, simplification, 

and harmonization across Government 

agencies and identified goals designed 

to promote innovation; (8) considered 

approaches that reduce burdens and 

maintain flexibility and freedom of 

choice for the public; and (9) ensured 

the objectivity of scientific and 

technological information and 

processes. 

E. Executive Order 13132 

(Federalism): This rulemaking pertains 

strictly to Federal agency procedures 

and does not contain policies with 

federalism implications sufficient to 

warrant preparation of a Federalism 

Assessment under E.O. 13132 (Aug. 4, 

1999). 

F. Executive Order 13175 (Tribal 

Consultation): This rulemaking will not: 

(1) have substantial direct effects on one 

or more Indian tribes; (2) impose 

substantial direct compliance costs on 

Indian Tribal governments; or (3) 

preempt Tribal law. Therefore, a Tribal 

summary impact statement is not 

required under E.O. 13175 (Nov. 6, 

2000). 

G. Executive Order 13211 (Energy 

Effects): This rulemaking is not a 

significant energy action under E.O. 

13211 because this rulemaking is not 

likely to have a significant adverse effect 

on the supply, distribution, or use of 

energy. Therefore, a Statement of Energy 

Effects is not required under E.O. 13211 

(May 18, 2001). 

H. Executive Order 12988 (Civil 

Justice Reform): This rulemaking meets 

applicable standards to minimize 

litigation, eliminate ambiguity, and 

reduce burden, as set forth in sections 

3(a) and 3(b)(2) of E.O. 12988 (Feb. 5, 

1996). 

I. Executive Order 13045 (Protection 

of Children): This rulemaking does not 

concern an environmental risk to health 

or safety that may disproportionately 

affect children under E.O. 13045 (Apr. 

21, 1997). 

J. Executive Order 12630 (Taking of 

Private Property): This rulemaking will 

not affect a taking of private property or 

otherwise have taking implications 

under E.O. 12630 (Mar. 15, 1988). 

K. Congressional Review Act: Under 

the Congressional Review Act 

provisions of the Small Business 

Regulatory Enforcement Fairness Act of 

1996 (5 U.S.C. 801 et seq.), the USPTO 

will submit a report containing the final 

rule and other required information to 

the U.S. Senate, the U.S. House of 

Representatives, and the Comptroller 

General of the Government 

Accountability Office. The changes in 

this rulemaking are not expected to 

result in an annual effect on the 

economy of $100 million or more, a 

major increase in costs or prices, or 

significant adverse effects on 

competition, employment, investment, 

productivity, innovation, or the ability 

of U.S.-based enterprises to compete 

with foreign-based enterprises in 

domestic and export markets. Therefore, 

this rulemaking is not a ‘‘major rule’’ as 

defined in 5 U.S.C. 804(2). 

L. Unfunded Mandates Reform Act of 

1995: The changes in this rulemaking do 

not involve a Federal intergovernmental 

mandate that will result in the 

expenditure by State, local, and tribal 

governments, in the aggregate, of $100 

million (as adjusted) or more in any one 

year, or a Federal private sector mandate 

that will result in the expenditure by the 

private sector of $100 million (as 

adjusted) or more in any one year, and 

will not significantly or uniquely affect 

small governments. Therefore, no 

actions are necessary under the 

provisions of the Unfunded Mandates 

Reform Act of 1995. See 2 U.S.C. 1501 

et seq. 

M. National Environmental Policy Act 

of 1969: This rulemaking will not have 

any effect on the quality of the 

environment and is thus categorically 

excluded from review under the 

National Environmental Policy Act of 

1969. See 42 U.S.C. 4321 et seq. 

N. National Technology Transfer and 

Advancement Act of 1995: The 


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82178 Federal Register / Vol. 89, No. 197 / Thursday, October 10, 2024 / Rules and Regulations 

requirements of section 12(d) of the 

National Technology Transfer and 

Advancement Act of 1995 (15 U.S.C. 

272 note) are not applicable because this 

rulemaking does not contain provisions 

that involve the use of technical 

standards. 

O. Paperwork Reduction Act of 1995: 

The Paperwork Reduction Act of 1995 

(44 U.S.C. 3501 et seq.) requires that the 

Office consider the impact of paperwork 

and other information collection 

burdens imposed on the public. This 

rulemaking involves information 

collection requirements that are subject 

to review and approval by the Office of 

Management and Budget (OMB) under 

the Paperwork Reduction Act. The 

collections of information involved in 

this rulemaking have been reviewed and 

previously approved by OMB under 

OMB control number 0651–0069 (Patent 

Review and Derivation Proceedings). 

Updates to this information collection 

that result from the final rule will be 

submitted to the OMB as nonsubstantive change requests. 

Notwithstanding any other provision 

of law, no person is required to respond 

to, nor shall a person be subject to a 

penalty for failure to comply with, a 

collection of information subject to the 

requirements of the Paperwork 

Reduction Act, unless that collection of 

information has a currently valid OMB 

control number. 

P. E-Government Act Compliance: 

The USPTO is committed to compliance 

with the E-Government Act to promote 

the use of the internet and other 

information technologies, to provide 

increased opportunities for citizen 

access to government information and 

services, and for other purposes. 

List of Subjects in 37 CFR Part 42 

Administrative practice and 

procedure, Inventions and patents, 

Lawyers. 

For the reasons set forth in the 

preamble, the USPTO amends 37 CFR 

part 42 as follows: 

PART 42—TRIAL PRACTICE BEFORE 

THE PATENT TRIAL AND APPEAL 

BOARD 

■ 1. The authority citation for part 42 

continues to read as follows: 

Authority: 35 U.S.C. 2(b)(2), 3, 6, 21, 23, 

41, 134, 135, 143, 153, 311, 312, 314, 316, 

318, 321–326, 328; Pub. L. 112–29, 125 Stat. 

284; and Pub. L. 112–274, 126 Stat. 2456. 

■ 2. Amend § 42.10 by revising 

paragraphs (a) and (c) to read as follows: 

§ 42.10 Counsel. 

(a) If a party is represented by 

counsel, the party must designate a lead 

counsel and at least one back-up 

counsel who can conduct business on 

behalf of the lead counsel. Lead counsel 

must be a registered practitioner. The 

Board may permit a party to proceed 

without back-up counsel upon a 

showing of good cause. A party may 

show good cause by demonstrating that 

it lacks the financial resources to retain 

both lead and back-up counsel. 

* * * * * 

(c)(1) Pro hac vice recognition of a 

person other than a registered 

practitioner. The Board may recognize 

counsel pro hac vice during a 

proceeding upon a showing of good 

cause, subject to the condition that lead 

counsel be a registered practitioner and 

to any other conditions the Board may 

impose. For example, where the lead 

counsel is a registered practitioner, a 

motion to appear pro hac vice by 

counsel who is not a registered 

practitioner may be granted upon 

showing that counsel is an experienced 

litigating attorney and has an 

established legal familiarity with the 

subject matter at issue in the 

proceeding. 

(2) Pro hac vice recognition of 

provisionally recognized PTAB 

attorneys. (i) Any counsel who is not a 

registered practitioner, who has been 

previously recognized pro hac vice in a 

Board proceeding, and who has not 

subsequently been denied permission to 

appear pro hac vice in a Board 

proceeding shall be considered a 

provisionally recognized PTAB 

attorney. Provisionally recognized 

PTAB attorneys shall be eligible for 

automatic pro hac vice admission in 

subsequent proceedings, subject to the 

following conditions. 

(ii) If a party seeks to be represented 

in a proceeding by a provisionally 

recognized PTAB attorney, that party 

may file a notice of intent to designate 

a provisionally recognized PTAB 

attorney as back-up counsel. No fee is 

required for such a notice. The notice 

shall: 

(A) Identify a registered practitioner 

who will serve as lead counsel, and 

(B) Be accompanied by a certification 

in the form of a declaration or affidavit 

in which the provisionally recognized 

PTAB attorney attests to satisfying all 

requirements set forth by the Board for 

pro hac vice recognition of a 

provisionally recognized PTAB attorney 

and agrees to be subject to the USPTO 

Rules of Professional Conduct set forth 

in §§ 11.101 et seq. of this chapter and 

disciplinary jurisdiction under 

§ 11.19(a) of this chapter. 

(iii) Any objection shall be filed by a 

party within five business days after the 

filing of the notice. If an objection is not 

filed within five business days, the 

provisionally recognized PTAB attorney 

shall be deemed admitted pro hac vice 

in that proceeding upon filing of 

updated mandatory notices identifying 

that counsel as counsel of record. If an 

objection is filed by a party within 5 

business days, unless the Board orders 

otherwise within 10 business days after 

the objection is filed, the provisionally 

recognized PTAB attorney shall be 

deemed admitted pro hac vice after 

updated mandatory notices identifying 

that counsel as counsel of record are 

then filed. 

(iv) If a provisionally recognized 

PTAB attorney is unable to satisfy any 

of the requirements set forth by the 

Board, or is unable to make any of the 

required attestations under oath, this 

procedure is not available, and pro hac 

vice recognition must instead be sought 

under the process set forth in paragraph 

(c)(1) of this section. 

(3) Continuing duty of persons 

recognized pro hac vice. For the entire 

duration of any proceeding in which 

counsel who is not a registered 

practitioner is recognized pro hac vice 

pursuant to paragraph (c)(1) or (2) of 

this section, the counsel who is not a 

registered practitioner has a continuing 

duty to notify the Board in writing 

within five business days if: 

(i) The counsel who is not a registered 

practitioner is sanctioned, cited for 

contempt, suspended, disbarred, or 

denied admission by any court or 

administrative agency; 

(ii) The counsel who is not a 

registered practitioner no longer 

qualifies as a member in good standing 

of the Bar of at least one State or the 

District of Columbia; or 

(iii) Any other event occurs that 

renders materially inaccurate or 

incomplete any representation that was 

made to the Board in connection with 

the request for pro hac vice recognition, 

provided, however, that counsel who is 

not a registered practitioner is not 

required to inform the Board of 

subsequent applications for pro hac vice 

recognition unless such an application 

is denied. 

* * * * * 

■ 3. Amend § 42.15 by revising 

paragraph (e) to read as follows: 

§ 42.15 Fees. 

* * * * * 

(e) Fee for counsel who are not 

registered practitioners, and who are not 

seeking automatic recognition pursuant 

to § 42.10(c)(2), to appear pro hac vice 


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Federal Register / Vol. 89, No. 197 / Thursday, October 10, 2024 / Rules and Regulations 82179 

before the Patent Trial and Appeal 

Board: $250.00 

Katherine K. Vidal, 

Under Secretary of Commerce for Intellectual 

Property and Director of the United States 

Patent and Trademark Office. 

[FR Doc. 2024–23319 Filed 10–9–24; 8:45 am] 

BILLING CODE 3510–16–P 

DEPARTMENT OF VETERANS 

AFFAIRS 

38 CFR Parts 38 and 39 

RIN 2900–AR82 

Outer Burial Receptacles 

AGENCY: Department of Veterans Affairs. 

ACTION: Final rule. 

SUMMARY: The Department of Veterans 

Affairs (VA) is revising its regulation 

that governs the outer burial receptacle 

(OBR) monetary allowance for burials in 

a VA national cemetery when a 

privately purchased OBR is used in lieu 

of a Government-furnished graveliner. 

First, VA is expanding applicability of 

the monetary allowance to burials in VA 

grant-funded State and Tribal 

cemeteries when a privately purchased 

OBR was used, or where an OBR is 

placed at the time of interment, at the 

cost of the State or Tribal organization. 

Second, VA is adding a provision to 

reimburse States and Tribal 

organizations for OBRs that are preplaced as part of a new construction or 

expansion grant project. In addition, VA 

is making minor conforming revisions to 

its regulations governing aid for the 

establishment, expansion, and 

improvement of veterans cemeteries to 

clarify that VA will reimburse the cost 

of pre-placed OBRs separately from the 

grant award. These changes implement 

new authorities provided in the Johnny 

Isakson and David P. Roe, M.D. Veterans 

Health Care and Benefits Improvement 

Act of 2020. VA also is removing 

retroactive provisions no longer needed 

because the relevant time period has 

passed. 

DATES: This rule is effective November 

12, 2024. 

FOR FURTHER INFORMATION CONTACT: 

Michelle Myers, Management and 

Program Analyst, Policy and Regulatory 

Service, National Cemetery 

Administration, Department of Veterans 

Affairs, 810 Vermont Avenue NW, 

Washington, DC 20420. Telephone: 

(720) 607–0364. (This is not a toll-free 

number.) 

SUPPLEMENTARY INFORMATION: On 

February 6, 2024, VA published a 

proposed rule in the Federal Register at 

89 FR 8126 that proposed revisions to 

38 CFR 38.629 to include provision of 

OBRs for gravesites in State or Tribal 

organization cemeteries funded through 

VA grants. The proposed rule also 

proposed revisions to 38 CFR 39.50 to 

clarify that VA would reimburse the 

cost of pre-placed OBRs separately from 

the grant award and revisions to 38 CFR 

39.122 to establish that a State or Tribal 

organization that seeks payment in the 

form of reimbursement or monetary 

allowance for OBRs under § 38.629 

would be subject to related inspections, 

audits, and reporting. The public 

comment period ended on April 8, 

2024, and VA received no comments in 

response to the proposed rule. 

During the final rule drafting process, 

VA noted an unintended outcome based 

on the proposed language of 

§ 38.629(e)(2), which we have addressed 

in this final rule. In the proposed rule, 

the monetary allowance for OBRs 

placed at the time of interment would 

have only been payable if a State or 

Tribal organization submitted a request 

for payment within 1 year of interment. 

However, with the time that has elapsed 

while developing this rulemaking, the 1- 

year limitation on filing requests for 

payment would have created an 

unintended barrier to awarding the 

benefit from the earliest date authorized 

by statute, January 5, 2023. This 

provision would have unintentionally 

prohibited the payment of the allowance 

for burials that occurred more than 1 

year prior to the final rule becoming 

effective. To ensure that the payment of 

the monetary allowance for OBRs 

placed at the time of interment is 

payable for all eligible burials, VA has 

revised the provision to read: ‘‘Requests 

for payment under this section for 

burials that occur from January 5, 2023, 

through December 31, 2024, must be 

submitted by December 31, 2025. 

Requests for payment under this section 

for burials that occur on or after January 

1, 2025, must be submitted within 1 

year of interment.’’ This change 

accommodates the lag in publishing this 

rulemaking and ensures VA can provide 

payment for claims that could not be 

submitted until such time as this final 

rule becomes effective. 

VA has also made technical changes 

to note the heading change to 

§ 38.629(c) in the amendatory 

instructions, which was inadvertently 

omitted in the proposed rule, and to 

conform to cross-reference conventions. 

We added the phrase ‘‘of this chapter’’ 

after cross-references to other regulatory 

sections in §§ 38.629(h), 39.50(e), and 

39.122(a). 

Because no comments were received 

during the public comment period, VA 

made no changes to the proposed 

regulatory text besides the technical 

changes described here. 

Executive Orders 12866, 13563, and 

14094 

Executive Order 12866 (Regulatory 

Planning and Review) directs agencies 

to assess the costs and benefits of 

available regulatory alternatives and, 

when regulation is necessary, to select 

regulatory approaches that maximize 

net benefits (including potential 

economic, environmental, public health 

and safety effects, and other advantages; 

distributive impacts; and equity). 

Executive Order 13563 (Improving 

Regulation and Regulatory Review) 

emphasizes the importance of 

quantifying both costs and benefits, 

reducing costs, harmonizing rules, and 

promoting flexibility. Executive Order 

14094 (Modernizing Regulatory Review) 

supplements and reaffirms the 

principles, structures, and definitions 

governing contemporary regulatory 

review established in Executive Orders 

12866 and 13563. The Office of 

Information and Regulatory Affairs has 

determined that this rulemaking is not 

a significant regulatory action under 

Executive Order 12866, as amended by 

Executive Order 14094. The Regulatory 

Impact Analysis associated with this 

rulemaking can be found as a 

supporting document at 

www.regulations.gov. 

Regulatory Flexibility Act 

The Secretary hereby certifies that 

this final rule will not have a significant 

economic impact on a substantial 

number of small entities as they are 

defined in the Regulatory Flexibility Act 

(5 U.S.C. 601–612). This final rule will 

generally be small business neutral as it 

applies only to State and Tribal entities 

that have received a grant for a cemetery 

under 38 U.S.C. 2408. The Secretary 

acknowledges that some Tribal 

governments may be considered small 

entities; however, the economic impact 

would be entirely beneficial. This final 

rule will impose no mandatory 

requirements or costs on Tribal 

governments as a whole and will only 

affect those that are recipients of 

veterans cemetery grants. To the extent 

that small entities are affected, the 

impact of this final rule will be entirely 

beneficial as it will provide 

reimbursement for costs of OBRs 

associated with casketed burials in 

grant-funded cemeteries. Therefore, 

pursuant to 5 U.S.C. 605(b), the initial 

and final regulatory flexibility analysis 


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