66128 Federal Register / Vol. 62, No. 242 / Wednesday, December 17, 1997 / Notices

4Because the record does not demonstrate that

Mr. Helmick holds the necessary property rights,

OSM will not address the second stage of a takings

analysis, the analysis of whether, as of 1977,

application of the section 522(e) prohibition to Mr.

Helmick’s property rights would effect a

compensable taking. (OSM notes that judicial case

law concerning compensable takings would also

require a threshold determination as to whether Mr.

Helmick has demonstrated the property right to

surface mine the coal. See Lucas v. South Carolina

Coastal Council, 505 U.S. 1003, 1027 (1992).)

1The record is defined in sec. 207.2(f) of the

Commission’s Rules of Practice and Procedure (19

CFR § 207.2(f)).

2Commissioner Crawford determines that an

industry in the United States is materially injured

by reason of the subject imports. Pursuant to section

735(b)(4)(A) of the Act (19 U.S.C. 1673d(b)(4)(A)),

Commissioner Crawford makes a negative

determination regarding critical circumstances.

3For purposes of these investigations, cut-tolength carbon steel plate is hot-rolled iron and

nonalloy steel universal mill plates (i.e., flat-rolled

products rolled on four faces or in a closed box

pass, of a width exceeding 150 mm but not

exceeding 1,250 mm and of a thickness of not less

than 4 mm, not in coils and without patterns in

relief), of rectangular shape, neither clad, plated,

nor coated with metal, whether or not painted,

varnished, or coated with plastics or other

nonmetallic substances; and certain iron and

nonalloy steel flat-rolled products not in coils, of

rectangular shape, hot-rolled, neither clad, plated,

nor coated with metal, whether or not painted,

varnished, or coated with plastics or other

nonmetallic substances, 4.75 mm or more in

thickness and of a width which exceeds 150 mm

and measures at least twice the thickness. Included

in this definition are flat-rolled products of

nonrectangular cross-section where such crosssection is achieved subsequent to the rolling

process (i.e., products which have been ‘‘worked

after rolling’’), such as products which have been

bevelled or rounded at the edges. Excluded from

this definition is grade X–70 plate.

4Cut-to-length carbon steel plate is currently

covered by the following statistical reporting

numbers of the HTS: 7208.40.3030; 7208.40.3060;

7208.51.0030; 7208.51.0045; 7208.51.0060;

7208.52.0000; 7208.53.0000; 7208.90.0000;

7210.70.3000; 7210.90.9000; 7211.13.0000;

7211.14.0030; 7211.14.0045; 7211.90.0000;

7212.40.1000; 7212.40.5000; and 7212.50.0000.

5The Commission further determines, pursuant to

19 U.S.C. 1673d(b)(4)(B), that it would not have

found material injury but for the suspension of

liquidation of entries of the merchandise under

investigation.

constitutes the ‘‘regulatory authority.’’

30 CFR 700.5; see also 44 FR 14913

(March 13, 1979). In his role with

respect to federal lands programs, the

Secretary of the Interior is a regulatory

authority subject to SMCRA sections

507(b)(9) and 510(b)(6)(C). Thus, when

the Secretary makes VER determinations

on federal lands, he is acting as the

regulatory authority. See National

Wildlife Federation v. Lujan, 950 F.2d

765, 767 (D.C.Cir. 1991), citing 30 CFR

700.5.

Mr. Helmick argues that he has an

express right to strip mine the subject

property because a boiler plate

regulation incorporated into the deed of

severance references ‘‘stripping.’’ But

that reference explicitly relates to a

separate tract of property, Tract 574–I,

that is not an issue in this

determination. The deed is silent as to

‘‘stripping’’ on Tract 574. If any

inference can be drawn from the

reference to stripping for one tract (574–

I) and exclusion of the language for the

second tract (574), it is that strip mining

was expressly not intended for the

second tract (574).

A property rights dispute presently

exists between the U.S. Forest Service

and Mr. Helmick. Mr. Helmick has

alleged in the 1995 lawsuit, that he has

the right to surface mine the property in

question. The U.S. Forest Service

contested that allegation. The trial court

has not ruled on the issue of whether

the requester has the property right to

surface mine. Moreover, the U.S. Forest

Service has reiterated its position, in a

letter to OSM, that it is of the opinion

that Mr. Helmick does not possess the

right to surface mine in the

Monongahela National Forest. (A.R.

2.352). As a result, the dispute remains

unresolved in the record before OSM.

And, for the reasons set out above,

section 510(b)(6) precludes OSM from

adjudicating that property rights

dispute. Thus the record before OSM

does not demonstrate whether, under

applicable State law, Mr. Helmick holds

the property right to surface mine tract

574.

Consequently, based on the record

before it, OSM has reached the

following conclusions in this matter:

First, the written consent of the surface

owner to surface mine was not

provided, and is not in the record.

Second, the 1939 deed which severed

the coal rights did not expressly reserve

the right to extract the coal on Tract 574

by surface mining methods. Finally; in

light of the pending unresolved dispute

concerning the property right to surface

mine this coal, Mr. Helmick has not met

his burden of demonstrating the

property right to mine by the method

intended. Therefore, OSM must also

conclude that Mr. Helmick has not

demonstrated VER to surface mine the

property in question.4

III. Summary and Disposition of

Comments

OSM received numerous comments

opposed to VER requests pertinent to

Tract 574, most of which were

submitted in January and February

1990, in response to an application by

Cecil E. Nichols. (A.R. 2.73). The

protests focus on property rights,

environmental concerns, and economic

issues. In this decision, OSM is not

responding to comments as to whether

the coal holder has the necessary rights,

because, as explained above, OSM

cannot adjudicate the property rights

dispute between the U.S. Forest Service

and the current requester, Mr. Helmick.

OSM is not addressing the remaining

comments, because this decision cannot

reach the takings analysis to which

those comments may relate.

IV. Appeals

Any person who is or may be

adversely affected by this decision may

appeal to the Interior Board of Land

Appeals under 43 CFR 4.1390. Notice of

intent to appeal must be filed within 30

days after receipt of the determination

by a person who has received a copy by

certified mail or overnight delivery

service; or within 30 days of the date of

publication of this notice of decision in

the Federal Register by any person who

has not received a copy by certified mail

or overnight delivery service.

Dated: December 9, 1997.

Allen D. Klein,

Regional Director, Appalachian Regional

Coordinating Center.

[FR Doc. 97–32850 Filed 12–16–97; 8:45 am]

BILLING CODE 4310–05–M

INTERNATIONAL TRADE

COMMISSION

[Investigations Nos. 731–TA–753–756

(Final)]

Certain Carbon Steel Plate From China,

Russia, South Africa, and Ukraine

Determination

On the basis of the record 1 developed

in the subject investigations, the United

States International Trade Commission

determines, pursuant to section 735(b)

of the Tariff Act of 1930 (19 U.S.C.

1673d(b)) (the Act), that an industry in

the United States is threatened with

material injury 2 by reason of imports

from China, Russia, South Africa, and

Ukraine of cut-to-length carbon steel

plate,3 provided for in provisions of

headings 7208 through 7212 of the

Harmonized Tariff Schedule (HTS) of

the United States, 4 that have been found

by the Department of Commerce to be

sold in the United States at less than fair

value (LTFV).5
Federal Register / Vol. 62, No. 242 / Wednesday, December 17, 1997 / Notices 66129

Background

The Commission instituted these

investigations effective November 5,

1996, following receipt of a petition

filed with the Commission and the

Department of Commerce by Geneva

Steel Co., Provo, UT, and Gulf States

Steel, Inc., Gadsden, AL. The final

phase of the investigations was

scheduled by the Commission following

notification of preliminary

determinations by the Department of

Commerce that imports of cut-to-length

carbon steel plate from China, Russia,

South Africa, and Ukraine were being

sold at LTFV within the meaning of

section 733(b) of the Act (19 U.S.C.

1673b(b)). Notice of the scheduling of

the Commission’s investigations and of

a public hearing to be held in

connection therewith was given by

posting copies of the notice in the Office

of the Secretary, U.S. International

Trade Commission, Washington, DC,

and by publishing the notice in the

Federal Register of August 20, 1997 (62

FR 44287). The hearing was held in

Washington, DC, on October 28, 1997,

and all persons who requested the

opportunity were permitted to appear in

person or by counsel.

The Commission transmitted its

determination in these investigations to

the Secretary of Commerce on December

11, 1997. The views of the Commission

are contained in USITC Publication

3076 (December 1997), entitled ‘‘Certain

Carbon Steel Plate from China, Russia,

South Africa, and Ukraine:

Investigations Nos. 731–TA–753–756

(Final).’’

Issued: December 11, 1997.

By order of the Commission.

Donna R. Koehnke,

Secretary.

[FR Doc. 97–32950 Filed 12–16–97; 8:45 am]

BILLING CODE 7020–02–P

INTERNATIONAL TRADE

COMMISSION

[Inv. No. 337–TA–358]

Notice of Commission Determination

to Terminate the Investigation Based

on Withdrawal of the Complaint;

Vacatur of Alternative Findings; Denial

of Respondents’ Motion to Terminate;

Denial of Motions for Leave to File

Reply Briefs

In the matter of: Certain Recombinantly

Produced Human Growth Hormones.

AGENCY: U.S. International Trade

Commission.

ACTION: Notice.

SUMMARY: Notice is hereby given that

the U.S. International Trade

Commission has determined to

terminate the above-captioned

investigation on the basis of

complainant’s motion to withdraw its

complaint and to vacate the alternative

findings on the merits made by the

presiding administrative law judge (ALJ)

in his initial determination (ID) of

November 29, 1994. The Commission

has also determined to deny certain

respondents’ motion for termination of

the investigation, as well as the various

motions for leave to file reply briefs.

FOR FURTHER INFORMATION CONTACT: Jean

Jackson, Esq., Office of the General

Counsel, U.S. International Trade

Commission, telephone 202–205–3104.

SUPPLEMENTARY INFORMATION: The

Commission instituted this investigation

on September 29, 1993, based on a

complaint filed by Genentech, Inc. of

South San Francisco, California. 58 FR

50954. Six firms were named as

respondents, i.e., Novo Nordisk 2 A/S of

Denmark; Novo Nordisk of North

America, Inc. of New York; Novo

Nordisk Pharmaceuticals, Inc. of New

Jersey; ZymoGenetics, Inc. of Seattle,

Washington (collectively, ‘‘Novo’’);

Biotechnology General Corp. of New

York; and Bio-Technology General Corp.

(Israel) Ltd. (collectively, ‘‘BTG’’).

On November 29, 1994, the presiding

ALJ issued an ID dismissing the

complaint and terminating the

investigation as a sanction for

complainant’s alleged misconduct in

withholding certain documents during

discovery. In the alternative, the ALJ

reached the merits of the investigation,

finding that there would have been a

violation of section 337 based on the

record as it closed on April 24, 1994,

although noting that the record was

incomplete because of complainant’s

conduct. On January 17, 1995, the

Commission decided not to review the

portion of the ID that dismissed the

complaint as a sanction for discovery

abuse, but took no position on the

portion of the ID that found a violation

of section 337 based on an incomplete

record. 60 FR 4923 (January 25, 1995).

Genentech appealed the Commission’s

determination to the U.S. Court of

Appeals for the Federal Circuit (Federal

Circuit). On August 14, 1997, the

Federal Circuit reversed the

Commission’s decision to dismiss the

investigation as a sanction and

remanded the investigation to the

Commission. Genentech, Inc. v. USITC,

43 USPQ2d 1722 (Fed. Cir. 1997). The

court issued its mandate on September

4, 1997.

On September 22, 1997, Novo filed a

motion to terminate the investigation

with a finding of no violation based on

certain findings adverse to Genentech

that were made in the ALJ’s ID of

November 29, 1994, and on an unrelated

intervening Federal Circuit decision

concerning one of the patents asserted

by Genentech in the Commission

investigation. On September 30, 1997,

BTG responded to Novo’s motion that it

had no objection to withdrawal of the

complaint. On October 2, 1997,

Genentech opposed Novo’s motion and

filed its own motion to terminate the

investigation based on its withdrawal of

its complaint. On October 4, 1997, the

Commission investigative attorney (IA)

opposed Novo’s motion to terminate. On

October 14, 1997, the IA supported

Genentech’s motion to withdraw.

Between October 4 and October 30,

1997, the private parties filed four

motions for leave to file additional

briefs replying to the response briefs.

This action is taken under the

authority of section 337 of the Tariff Act

of 1930, 19 U.S.C. § 1337, and

Commission interim rule 210.51, 19

CFR 210.51 (1994).

Copies of the public version of the

ALJ’s ID, and all other nonconfidential

documents filed in connection with this

investigation, are or will be available for

inspection during official business

hours (8:45 a.m. to 5:15 p.m.) in the

Office of the Secretary, U.S.

International Trade Commission, 500 E

Street S.W., Washington, D.C. 20436,

telephone 202–205–2000. Hearingimpaired persons are advised that

information on the matter can be

obtained by contacting the

Commission’s TDD terminal on 202–

205–1810. General information

concerning the Commission may also be

obtained by accessing its Internet server

(http://www.usitc.gov or ftp://

ftp.usitc.gov).

Issued: December 11, 1997.

By order of the Commission.

Donna R. Koehnke,

Secretary.

[FR Doc. 97–32948 Filed 12–16–97; 8:45 am]

BILLING CODE 7020–02–P

DEPARTMENT OF JUSTICE

Notice of Lodging of Consent Decree

Pursuant to the Clean Air Act (‘‘CAA’’)

Notice is hereby given that a proposed

Consent Decree in United States v.

Barber & Sons Tobacco Company, d.b.a.

Barber & Sons Aggregates, Civil Action

No. 97–1540–CV–W–2, was lodged on

November 25, 1997, with the United