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1186 Federal Register / Vol. 72, No. 6 / Wednesday, January 10, 2007 / Rules and Regulations

significant energy action. FRA has $7,700 for calendar year 2006, and as threatened. On December 26, 2002, evaluated this final rule in accordance $8,200 for calendar year 2007. The the Court issued a Memorandum of with Executive Order 13211. FRA has procedure for determining the reporting Opinion and Order to have the Service determined that this final rule is not threshold for calendar years 2006 and explain our 2000 finding that likely to have a significant adverse effect beyond appears as paragraphs 1–8 of ‘‘[c]ollectively the Northeast, Great on the supply, distribution, or use of appendix B to part 225. Lakes and Southern Rockies do not energy. Consequently, FRA has * * * * * constitute a significant portion of the determined that this regulatory action is Issued in , DC, on December [] DPS.’’ Pursuant to that order, the not a ‘‘significant energy action’’ within 29, 2006. Service published a notice of remanded the meaning of Executive Order 13211. Joseph H. Boardman, determination and clarification of our Privacy Act Administrator. 2000 finding on July 3, 2003 (68 FR 40075). In that notice, the Service Anyone is able to search the [FR Doc. E7–112 Filed 1–9–07; 8:45 am] attempted to address the court’s order electronic form of all our comments BILLING CODE 4910–06–P and issued a new finding that the lynx received into any of our dockets by the name of the individual submitting the is not endangered throughout a comment (or signing the comment, if DEPARTMENT OF THE INTERIOR significant portion of its range. Plaintiffs submitted on behalf of an association, subsequently brought further action business, labor union, etc.). You may Fish and Wildlife Service claiming that the Service violated the review DOT’s complete Privacy Act court’s 2002 order. Statement in the Federal Register 50 CFR Part 17 On September 29, 2006, the Court published on April 11, 2000 (Volume RIN 1018–AV17 issued another Memorandum of 65, Number 70; Pages 19477–78) or you Opinion and Order remanding the same may visit http://dms.dot.gov. Endangered and Threatened Wildlife portion of the Service’s March 24, 2000, and Plants; Clarification of Significant List of Subjects in 49 CFR Part 225 determination of status for the lynx. The Portion of the Range for the court remanded the finding so that ‘‘the Investigations, Penalties, Railroad Contiguous Distinct Service may clearly and specifically safety, Reporting and recordkeeping Population Segment of the address the finding it was ordered to requirements. Lynx explain three years ago: That The Rule AGENCY: Fish and Wildlife Service, ‘[c]ollectively the Northeast, Great Lakes, and Southern Rockies do not I Interior. In consideration of the foregoing, FRA constitute a significant portion of the amends part 225 of chapter II, subtitle ACTION: Clarification of findings. [lynx] DPS’ (Order at 3).’’ This finding B of title 49, Code of Federal SUMMARY: appeared in the final rule that listed the Regulations, as follows: We, the U.S. Fish and Wildlife Service (Service) provide a contiguous U.S. DPS of the lynx as PART 225—[AMENDED] clarification of the finding we made in threatened (65 FR 16052; March 24, support of the final rule that listed the 2000). Because the court remanded the I 1. The authority citation for part 225 contiguous U.S. Distinct Population 2000 listing determination for further continues to read as follows: Segment of the (Lynx explanation of how the Service at that Authority: 49 U.S.C. 103, 322(a), 20103, canadensis) (lynx) as threatened. In that time reached its conclusion the 20107, 20901–02, 21301, 21302, 21311; 28 rule, we found that, ‘‘collectively, the Northeast, Great Lakes, and Southern U.S.C. 2461, note; and 49 CFR 1.49. Northeast, Great Lakes, and Southern Rockies do not constitute a significant I 2. Amend § 225.19 by revising the first Rockies do not constitute a significant portion of the lynx DPS, the following sentence of paragraph (c) and revising portion of the range of the DPS (Distinct discussion addresses the basis for the paragraph (e) to read as follows: Population Segment).’’ In response to a Service’s decision in 2000. The court order, we now clarify that finding. § 225.19 Primary groups of accidents/ conclusions reached in 2000, and the incidents. ADDRESSES: The complete file for this basis for those conclusions, do not clarification is available for inspection, necessarily represent the Service’s * * * * * by appointment, during normal business (c) Group II—Rail equipment. Rail current views, given new information hours at the Ecological regarding the lynx as well as the equipment accidents/incidents are Services Office, 585 Shepard Way, collisions, derailments, fires, evolving views of the courts and the Helena, MT 59601 (telephone 406/449– Service regarding the meaning of the explosions, acts of God, and other 5225). events involving the operation of on- definitions of ‘‘endangered species’’ and track equipment (standing or moving) FOR FURTHER INFORMATION CONTACT: ‘‘threatened species.’’ In fact, when the that result in damages higher than the Mark Wilson, Field Supervisor, Service completed the first remand current reporting threshold (i.e., $6,700 Montana Fish and Wildlife Office, at the decision, it did not reiterate its for calendar years 2002 through 2005, above address (telephone 406/449– conclusion from 2000 on this issue; $7,700 for calendar year 2006, and 5225). instead, it based its new conclusion on $8,200 for calendar year 2007) to SUPPLEMENTARY INFORMATION: The a different line of reasoning. The Service railroad on-track equipment, signals, Service listed the Canada lynx, hereafter recently requested that the Office of the tracks, track structures, or roadbed, referred to as lynx, as threatened on Solicitor examine the definition of including labor costs and the costs for March 24, 2000 (65 FR 16052). After ‘‘endangered species.’’ As a result, the acquiring new equipment and material. listing the lynx as threatened, plaintiffs explanation of the Service’s rational for *** in the case of Defenders of Wildlife v. its decision in 2000 provided here may * * * * * Kempthorne (Civil Action No. 00–2996 not reflect how the Service will apply (e) The reporting threshold is $6,700 (GK)) initiated action in Federal District the definition of ‘‘endangered species’’ for calendar years 2002 through 2005, Court challenging the listing of the lynx in the future.

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Background Brunswick and Nova Scotia. In the distribution occurs in habitats at the The Endangered Species Act of 1973, , the current southern extent of the range of the as amended (16 U.S.C. 1531 et seq.) (and historical) range of the lynx boreal forest, comprising subalpine (Act), defines an ‘‘endangered’’ species extends into four geographic areas: the coniferous forest in the West and as one that is ‘‘in danger of extinction Northeast, including the States of southern boreal forest/hardwoods in the throughout all or a significant portion of , , , and East (for ease of description, we use the its range’’ and a ‘‘threatened’’ species as ; the western Great Lakes, general term ‘‘southern boreal forest’’ to one that is ‘‘likely to become including the States of , describe lynx habitat in the contiguous endangered within the foreseeable , and ; the ); whereas in Canada and future throughout all or a significant in the States of , lynx inhabit the classic boreal portion of its range’’ (16 U.S.C. 1532(6); and ; and the forest ecosystem known as the taiga. 16 U.S.C. 1532(20); 50 CFR 424.02(e) Northern Rocky Mountains/Cascades, Furthermore, lynx and snowshoe hare including the States of Montana, and (m)). The Secretary of the Interior population dynamics in the contiguous Washington, , , Wyoming, ‘‘shall publish in the Federal Register a United States are different from those in and . It is notable that the range list of all species determined * * * to northern Canada and Alaska (65 FR of the lynx has not been radically be endangered species and * * * 16060; March 24, 2000). contracted or reduced. threatened species. Each list shall refer Based on the above factors, we When the Service listed the lynx, we determined that the lynx population in to the species contained therein by followed the Policy Regarding the scientific and common name or names, the contiguous United States was Recognition of Distinct Vertebrate discrete and significant under the DPS if any, specify with respect to [each] Population Segments Under the such species over what portion of its Policy and, therefore, qualified as a Endangered Species Act (DPS Policy) to listable entity under the Act (65 FR range it is endangered or threatened, evaluate whether the lynx population in and specify any critical habitat within 16060; March 24, 2000). the contiguous United States constituted We then further considered whether such range’’ (16 U.S.C. 1533(c)(1)). a DPS and thus was a listable entity Apart from the statutory and individually any of the four geographic under the Act (61 FR 4722; February 7, areas (Northeast, Great Lakes, Southern regulatory definitions of ‘‘threatened’’ 1996). Under the DPS Policy, a and ‘‘endangered,’’ no formal guidance Rockies, and Northern Rockies/ population must meet two criteria to Cascades) that make up the current shaped the Service’s analysis in the qualify as a DPS: First, the population 2000 final listing rule of what was to be range of the lynx within the contiguous in question must be determined to be United States fulfilled the DPS Policy considered when evaluating the discrete from other members of the ‘‘significance’’ of any particular area of criteria (65 FR 16060; March 24, 2000). taxon, and second, the population in We determined that, within the a species’’ range. Furthermore, at that question must be determined to be time there was no case law concerning contiguous United States, each of these significant to the taxon. In this case, the areas was discrete from the others. what should be considered in a taxon is the species Lynx canadensis, determination of a ‘‘significant portion’’ However, we found none of the areas to whose range extends throughout Alaska be significant. of a species’’ range. Since publication of and Canada into the contiguous United the 2000 final listing rule, several courts Because of the extensive range of the States, as described above. lynx within the contiguous U.S. DPS, have interpreted the meaning of The DPS Policy allows the use of ‘‘significant portion of its range.’’ See, we structured the 2000 final listing to international boundaries to define describe the status of the species in the Defenders of Wildlife v. Norton 258 F. discreteness if there are differences in 3d 1136 (9th Cir. 2001); Center for four geographic areas (Northeast, Great control of exploitation, management of Lakes, Southern Rockies, and Northern Biological Diversity v. Norton, 411 F. habitat, conservation status, or Rockies/Cascades) (65 FR 16060; March Supp. 2d 1271 (D.N.M. 2005); regulatory mechanisms between the two 24, 2000). We determined ‘‘that Southwester Center for Biological countries. In the final rule, we collectively, the Northeast, Great Lakes, Diversity v. Norton, 2002 U.S. Dist. determined that, because Canada had no and Southern Rockies regions do not Lexis 13661 (D.D.C. July 29, 2002); overarching forest practices legislation constitute a significant portion of the Defenders of Wildlife v. Norton, 239 F. governing management of national lands DPS range.’’ The final rule prefaced this Supp. 2d 9 (D.D.C. 2002; Center for and/or providing for consideration of finding with the following discussion: Biological Diversity v. Lohn, 296 F wildlife habitat requirements, and also Supp. 2d 1223 (W.D. Wash. 2003); because of lynx harvest regulations that Within the contiguous United States, the Environmental Protection Information exist in Canadian Provinces, the relative importance of each region to the Ctr. v. National Marine Fisheries differences in management of lynx and persistence of the DPS varies. The Northern Service, Civ. No. 02–5401 ED2 (N.O. lynx habitat between Canada and the Rockies/Cascades Region supports the largest Cal. Mar. 1, 2004); Defenders of Wildlife amount of lynx habitat and has the strongest United States were sufficient to enable evidence of persistent occurrence of resident v. Norton, Civ. No. 99–02072 HHK us to use the international boundary lynx populations, both historically and (D.D.C. Dec. 13, 2001); Defenders of between Canada and the contiguous currently. In the Northeast (where resident Wildlife v. Secretary, U.S. Department United States to delineate the DPS lynx populations continue to persist) and of Interior, 354 F. Supp. 2d 1156 (D. Or. according to the discreteness criterion Southern Rockies regions, the amount of lynx 2005); National Wildlife Federation v. (65 FR 16060; March 24, 2000). habitat is naturally limited and does not Norton, 386 F. Supp. 2d 553 (D. Vt. In the final rule, we found that lynx contribute substantially to the persistence of 2005). in the contiguous United States are the contiguous United States DPS. Much of The historical and current range of the significant to the taxon under the DPS the habitat in the Great Lakes Region is Canada lynx north of the contiguous Policy because of the climatic, naturally marginal and may not support prey densities sufficient to sustain lynx United States includes Alaska and that vegetative, and ecological differences populations. As such, the Great Lakes Region part of Canada that extends from the between lynx habitat in the contiguous does not contribute substantially to the and Northwest Territories south United States and that in northern persistence of the contiguous United States across the border with the contiguous latitudes in Canada and Alaska. In the DPS. We conclude the Northern Rockies/ United States and east to New contiguous United States, lynx Cascades Region is the primary region

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necessary to support the long-term existence Act. In particular, in identifying We must clarify here that, just of the contiguous United States DPS (65 FR endangered and threatened species, the because habitat is marginal, does not 16061, 16082). Act requires that we use ‘‘the best mean that lynx can no longer live there, In summary, the Service determined scientific and commercial data as may be the impression of the Court. that, collectively, the Northeast, Great available.’’ Id. § 16 U.S.C. 1533(b)(1)(A). Instead, marginal habitat means that Lakes, and Southern Rockies regions do In this context, we concluded in 2000 such areas cannot and may never have not constitute a significant portion of that the importance of a portion of a supported resident lynx populations. the range of the DPS because (1) the species’ range should be measured with They may support breeding pairs over a amount of lynx habitat in the Northeast respect to the conservation of imperiled short term, or the regular presence of and Southern Rockies is naturally species, and we looked to all of the tools nonbreeding individuals, migrating into limited and (2) much of the habitat in of conservation science available to help or passing in and out of such areas from the Great Lakes Region is marginal and define what portion of the range of the source (‘‘significant’’) habitats. These may not support prey densities lynx was important. areas also may be natural ‘‘sinks,’’ sufficient to sustain lynx. In the case of the lynx, despite the where lynx mortality is greater than The analysis in the 2000 final listing extensive contiguous U.S. range, not all recruitment and lynx are lost from the rule concerning ‘‘significance’’ of the existing range contains high- overall population. specifically addressed and focused on quality habitat. Many areas within what Furthermore, the habitat is marginal the biological ‘‘significance’’ of areas of is generally described as the historical because it is at the southern edge of the habitat within the range of the lynx (65 (and current) range of lynx have never boreal forest, where the boreal forest is FR 16060; March 24, 2000). The been capable of supporting resident naturally in transition with other forest biological context that we viewed as lynx populations because the habitat is types. Therefore, the Service did not important in the 2000 final listing rule naturally marginal. As such, this habitat view the overall size of an area mapped included the distribution of lynx and cannot be biologically ‘‘significant’’ as lynx habitat to be directly relevant to the contribution of each area to the life- because, even in its original (pre- the analysis of ‘‘significance’’ without history needs of the species. For European settlement) state, it could not consideration of the quality of the example, the final listing rule found that support lynx populations or prevent the habitat. Marginal habitat for lynx, no lynx exist in areas with forest types and species from becoming extinct if habitat matter how large, is not a significant vegetation that can support snowshoe elsewhere (the ‘‘significant’’ portion of portion of the range of the lynx because hares, the primary prey of lynx, and the habitat) were to lose its value as it cannot, and has never been able to, where cover exists for denning. Lynx are lynx habitat. support resident lynx populations for highly specialized predators of As explained in the 2000 final listing any length of time. snowshoe hares. Both lynx and rule, much of the area depicted on range The 2000 final rule described what maps for lynx in the contiguous United snowshoe hares have evolved to survive habitat values existed in the Northeast, States contains only naturally patchy in areas that receive fluffy and/or deep Great Lakes, and Southern Rockies habitat because that area is the southern snow. Snowshoe hares prefer dense regions. Specifically, we carefully edge of the boreal forest, where the forest understories for forage, cover to explained that: escape from predators, and protection boreal forest is transitional with other during extreme weather (Wolfe et al. forest types. Because of the naturally Northeast Region—Most lynx occurrence 1982; Monthey 1986; Hodges 1999a, patchy condition of southern boreal records in the Northeast were found within 1999b). Lynx use large woody debris, forests, snowshoe hares (the primary the ‘‘Mixed Forest—Coniferous Forest— prey of lynx) are unable to achieve Tundra’’ cover type (McKelvey et al. 1999b). such as downed logs and windfalls, to This habitat type occurs along the northern provide denning sites with security and densities similar to those in Canada and Appalachian Mountain range from thermal cover for kittens (McCord and Alaska, where the northern boreal forest southeastern Quebec, western New Cardoza 1982; Koehler 1990; Koehler is expansive and continuous, enabling Brunswick, and western Maine, south and Brittell 1990; Squires and Laurion snowshoe hares to reach extremely high through northern New Hampshire. This 1999; J. Organ, U.S. Fish and Wildlife densities (65 FR 16053, 16077, 16081). habitat type becomes naturally more Service, in litt. 1999). Lower snowshoe hare densities in the fragmented and begins to diminish to the In the 2000 final listing rule, we contiguous United States in turn south and west. Most of the historical lynx evaluated ‘‘significance’’ primarily in naturally limit the lynx populations. records from this region were from Maine this biological context. In that rule, we The quality and size of habitat patches and northern New Hampshire, which are expressed the belief (which we still affect the ability of areas to support directly connected with lynx populations in Quebec and New Brunswick, Canada. maintain) that significance should not lynx. be determined based on the size of an The persistence of a species may To further clarify this, we note that in area alone. We considered the ability of depend on whether the reproductive Vermont, only four verified records of the area to support populations needed success of individuals in good habitats, historic lynx occurrence exist for recovery to be the primary or sources, exceeds that of individuals (McKelvey et al. 1999b). In fact, we have consideration. We did not consider in marginal habitats, or sinks. In sink no evidence of a breeding population sizable area with poor-quality habitat for habitats, local recruitment into the ever occurring in Vermont. the species or prey limitations to be population (through reproduction or Great Lakes Region—The majority of significant from a biological perspective. immigration) is lower than mortality. lynx occurrence records in the Great Thus, we viewed a significant portion Patches of higher quality and larger size Lakes Region are associated with the to be an important portion, not just a are more likely to act as ‘‘sources’’ of ‘‘mixed deciduous-coniferous forest’’ geographically large portion. lynx or support resident lynx type (McKelvey et al. 1999b) found ‘‘Important,’’ in turn, we viewed in the populations, whereas smaller patches primarily in northeastern Minnesota, larger context of the Act. The primary and/or patches where habitat quality is northern Wisconsin, and the western purpose of the Act is to conserve marginal likely act as ‘‘sinks’’ because portion of Michigan’s upper peninsula. imperiled species. See 16 U.S.C. such areas are less likely to be able to Most of the historical lynx records in § 1531(b). Moreover, the use of science support lynx populations (McKelvey et this region are from northeastern in pursuing this goal is a theme in the al. 1999a; 65 FR 16052, March 24, 2000). Minnesota, which supported higher

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habitat quality in addition to being scale with the ‘‘Rocky Mountain Conifer areas. These estimates were not used to directly connected with lynx Forest.’’ Most of the lynx occurrences determine whether any of the areas populations in adjacent Ontario, are in the 1,500–2,000 m (4,920–6,560 constituted a significant portion of the Canada. In our 2000 final listing rule, ft) elevation class (McKelvey et al. range of the lynx. As a result, it is we found that, although the mixed 1999b). These habitats are found in the important to note at this juncture that deciduous-coniferous forest covers an Rocky Mountains of Montana, Idaho, any contention that the Great Lakes, extensive area of the Great Lakes eastern Washington, and Utah, and in Southern Rockies, and Northeast consist Region, we considered much of this area the Cascade Mountains in Washington of three-quarters of the species’ range to be marginal habitat for lynx because and Oregon. The majority of historical has no basis because the habitat in these it is a transitional forest type at the edge verified lynx occurrences in the Regions will not now, and historically of the snowshoe hare range. Habitat at contiguous United States and, at the did not, support a population of lynx the edge of snowshoe hare range time of the 2000 final listing rule, the sufficient to maintain the species if lynx supports lower hare densities (Buehler confirmed presence of resident habitat in Canada, Alaska and the and Keith 1982) that may not be populations were from this region. Northern Rockies/Cascades were lost. sufficient to support lynx reproduction Washington, Montana, and Idaho are In summary, the Service’s (65 FR 16056). contiguous with lynx habitat in adjacent determination that ‘‘[c]ollectively the Southern Rockies Region—Colorado and Alberta, Canada. Northeast, Great Lakes, and Southern represents the extreme southern edge of Within this region, Washington, Rockies do not constitute a significant the range of the lynx. The southern Montana, and the Greater Yellowstone portion of the [lynx] DPS’’ was based on boreal forest of Colorado and area have a long historical record of an assessment of the biological context southeastern Wyoming is isolated from resident lynx populations. In the final southern boreal forest in Utah and of the habitat conditions and lynx status listing rule, the Service stated that ‘‘the within its contiguous U.S. range. The northwestern Wyoming by the Green Northern Rockies/Cascades region River Valley and the Wyoming basin 2000 final listing rule found that habitat supports the most viable resident lynx for lynx in the contiguous United States (Findley and Anderson 1956 in populations in the contiguous United McKelvey et al. 1999b). These habitats is of varying quality, and much of it was States’’ (65 FR 16059; March 24, 2000). naturally incapable of supporting likely act as a barrier that reduces or Therefore, we assessed each of the precludes opportunities for immigration adequate densities of snowshoe hare above areas, and concluded that the and emigration from the Northern Rocky sufficient to sustain resident lynx Northern Rockies/Cascades Region was Mountains/Cascades Region and populations. Quality of habitat is an the primary region necessary to support Canada. A majority of the lynx important factor in determining the long-term existence of the occurrence records in Colorado and ‘‘significance’’ because marginal habitat, contiguous U.S. DPS. Because the southeastern Wyoming are associated no matter how large, cannot support amount of good-quality lynx habitat in with the ‘‘Rocky Mountain Conifer stable or expanding populations of lynx, the Northeast, Great Lakes, and Forest’’ type. The occurrences in the except by migration of individual lynx Southern Rockies regions was limited, Southern Rockies were generally at from high quality (‘‘significant’’) habitat; the Service did not consider these areas higher elevations (1,250 to over 3,750 and, in fact, may serve as a population meters (m) [4,100–12,300 feet (ft)] than individually or collectively to be a sink where lynx mortality is greater than were all other occurrences in the West biologically significant portion of the recruitment and lynx are lost from the (McKelvey et al. 1999b). The montane species’ range. We concluded that the overall population. overwhelming majority of lynx found in and subalpine forest ecosystems in References Cited Colorado are naturally highly these areas were, and historically had fragmented (Thompson 1994), as they been, those that migrated into the area A complete list of all references cited occur at higher elevations at this from source populations in Canada and herein is available upon request from latitude, which we believed limited the the Northern Rockies/Cascades, the Montana Field Office (see size of lynx populations in this area (65 respectively, and eventually died out, to ADDRESSES). FR 16059; March 24, 2000). be replaced by new migrants. Further, Colorado has never The fact that we did not use area Authority supported many lynx. A total of 78 lynx estimates for the Northeast or Great The authority for this action is the reports rated as positive (22) or probable Lakes in our final rule demonstrates that Endangered Species Act of 1973, as (56) exist in State records since the late we did not focus primarily on the size amended (16 U.S.C. 1531 et seq.). 1800s (J. Mumma, Colorado Division of of any area in our analysis. Furthermore, Wildlife, 1998); although McKelvey et the only area estimates we used in the Dated: December 27, 2006. al. (1999b) considered only 17 of these final rule were for the Southern Rockies, Kenneth Stansell, records ’’verified.’’ Northern Rockies, and Cascades; these Acting Director, U.S. Fish and Wildlife Northern Rockies/Cascades region—In area estimates were used only in ‘‘Factor Service. this region, the majority of lynx A’’ to analyze Federal land management [FR Doc. E6–22633 Filed 1–9–07; 8:45 am] occurrences were associated at a broad allocations in lynx forest types in these BILLING CODE 4310–55–P

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