See also Therasense, Inc. v. Becton, Dickinson & Co., 649 F.3d 1276, 1294 (Fed. Cir. 2011) (same). Accordingly, an interpretation of that provision which exempts rules of procedure—the only rules that the PTO is authorized to promulgate—from notice-and-comment requirements renders the statutory language “shall 9 See, e.g., 21 U.S.C. § 358(c) (designation of official names for drugs and devices); 2 U.S.C. § 1383(b) (procedural rules for Office of Compliance); 42 U.S.C. § 1437d(j)(2)(A)(i) (“procedures for designating troubled public housing agencies”); 9 U.S.C. § 306(b) (“rules of procedure of the Inter-American Commercial Arbitration Commission”); 12 U.S.C. § 1735f- 17(a)(2) (procedures by which a person may ask agency to determine whether a mortgagee is in compliance with legal requirements); 39 U.S.C. § 504(g)(3)(A) (“a procedure for according appropriate confidentiality to information identified by the Postal Service”); 42 U.S.C. § 421(k) (standards for “determining whether individuals are under disabilities” and therefore eligible for benefits). Under the PTO’s interpretive approach, all of these provisions relating to agency management or benefits—and these are just a few of the many in the U.S. Code—contain ineffective and superfluous references to 5 U.S.C. § 553. Case 2:16-cv-01490-RCJ-PAL Document 21 Filed 11/09/16 Page 24 of 32 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 B A K E R & H O S T E T L E R L L P A T T O R N E Y S A T L A W W A S H IN G T O N 19 be made in accordance with section 553 of Title 5” a complete nullity and must be rejected on that basis.