[Federal Register Volume 72, Number 97 (Monday, May 21, 2007)]
[Rules and Regulations]
[Pages 28451-28454]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-9674]



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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 914

[Docket No. IN-157-FOR]


Indiana Regulatory Program

AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.

ACTION: Final rule; approval of amendment.

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SUMMARY: We, the Office of Surface Mining Reclamation and Enforcement 
(OSM), are approving an amendment to the Indiana regulatory program 
(Indiana program) under the Surface Mining Control and Reclamation Act 
of 1977 (SMCRA or the Act). The Indiana Department of Natural 
Resources, Division of Reclamation (IDNR, Indiana, or department) made 
revisions to its rules to allow commercial forestry (trees) to be 
planted on reclaimed prime farmland provided all remaining reclamation 
requirements for prime farmland soil reconstruction and restoration are 
met. Indiana also restructured several of its provisions and made some 
minor language changes. Indiana intends to revise its program to 
improve operational efficiency.

EFFECTIVE DATE: May 21, 2007.

FOR FURTHER INFORMATION CONTACT: Andrew R. Gilmore, Chief, Alton Field 
Division--Indianapolis Area Office. Telephone: (317) 226-6700. E-mail: 
[email protected].

SUPPLEMENTARY INFORMATION: 
I. Background on the Indiana Program
II. Submission of the Amendment
III. OSM's Findings
IV. Summary and Disposition of Comments
V. OSM's Decision
VI. Procedural Determinations

I. Background on the Indiana Program

    Section 503(a) of the Act permits a State to assume primacy for the 
regulation of surface coal mining and reclamation operations on non-
Federal and non-Indian lands within its borders by demonstrating that 
its State program includes, among other things, ``a State law which 
provides for the regulation of surface coal mining and reclamation 
operations in accordance with the requirements of this Act * * *; and 
rules and regulations consistent with regulations issued by the 
Secretary pursuant to this Act.'' See 30 U.S.C. 1253(a)(1) and (7). On 
the basis of these criteria, the Secretary of the Interior (Secretary) 
conditionally approved the Indiana program effective July 29, 1982. You 
can find background information on the Indiana program, including the 
Secretary's findings, the disposition of comments, and the conditions 
of approval, in the July 26, 1982, Federal Register (47 FR 32071). You 
can also find later actions concerning the Indiana program and program 
amendments at 30 CFR 914.10, 914.15, 914.16, and 914.17.

II. Submission of the Amendment

    By letter dated October 23, 2006 (Administrative Record No. IND-
1738), Indiana sent us an amendment to its program under SMCRA (30 
U.S.C. 1201 et seq.) at its own initiative. The provisions of Title 312 
Indiana Administrative Code (IAC) that Indiana revised are: 312 IAC 25-
4-102, special categories of mining-prime farmland and 312 IAC 25-6-
143, prime farmland-special performance standards--revegetation and 
restoration of soil productivity.
    We announced receipt of the proposed amendment in the November 13, 
2006, Federal Register (71 FR 66148). In the same document, we opened 
the public comment period and provided an opportunity for a public 
hearing or meeting on the adequacy of the amendment. We did not hold a 
public hearing or meeting because no one requested one. The public 
comment period ended on December 13, 2006. We received comments from 
two Federal agencies.

III. OSM's Findings

    Following are the findings we made concerning the amendment under 
SMCRA and the Federal regulations at 30 CFR 732.15 and 732.17. We are 
approving the amendment as described below. Any revisions that we do 
not specifically discuss below concern nonsubstantive wording or 
editorial changes.

A. Minor Revisions to Indiana's Rules

    1. Indiana restructured the following provisions with minor changes 
to the existing language: 312 IAC 25-4-102(a)(1), (a)(3)(A) and (B); 
(b); (d)(4) and (6); (e)(3); and (f)(5).
    For example, at 312 IAC 25-4-102(a)(1), Indiana restructured the 
sentence, ``A map showing the geographical location of the area for 
which the determination is requested and the area previously affected 
by surface coal mining and reclamation operation,'' to:

    A map showing the geographical location of:
    (A) The area for which the determination is requested; and
    (B) The area previously affected by surface coal mining and 
reclamation operation.

    2. Indiana restructured the following provisions with minor changes 
to the existing language: 312 IAC 25-6-143(b)(3) and (b)(8).
    For example, at 312 IAC 25-6-143(b)(3), Indiana restructured the 
sentence, ``The sampling techniques contained in section 60 of this 
rule and the statistical methodology contained in section 61 of this 
rule shall be used to measure soil productivity,'' to:

    The:
    (A) Sampling techniques contained in section 60 of this rule; 
and
    (B) Statistical methodology contained in section 61 of this 
rule;

shall be used to measure soil productivity.

    Because these changes are minor and do not alter the meaning of the 
affected regulations, we find that they will not make Indiana's rules 
less effective than the corresponding Federal regulations.

B. Other Revisions to Indiana's Rules

    Indiana revised its prime farmland rules at 312 IAC 25-4-102, which 
concern application requirements for prime farmland mining and 
restoration. Indiana also revised 312 IAC 25-6-143, which concerns 
revegetation and restoration of soil productivity for prime farmland. 
The purpose of the revisions is to allow commercial trees to be planted 
on reclaimed prime farmland areas provided soil productivity is 
demonstrated according to prime farmland soil productivity standards. 
In other words, the revisions would establish standards for planting 
trees on those parts of reclaimed prime farmland upon which crops need 
not be grown to demonstrate restoration of soil productivity and 
revegetation success.
    There are no direct Federal counterparts to most of the revisions. 
However, all revisions affecting prime farmland restoration must be 
consistent with the Federal prime farmland regulations at 30 CFR 785.17 
and Part 823.
1. 312 IAC 25-4-102 Special Categories of Mining--Prime Farmland
    Indiana added new subdivision (d)(8) to read as follows:

    (8) If the applicant proposes to establish commercial forest 
resources on the prime farmland, the plan must also include the 
following:
    (A) A commercial forest planting plan that shall include the 
following:
    (i) A stocking rate.
    (ii) A plan for replanting as needed.
    (B) A commercial forest management plan.
    (C) Documentation of landowner consent.

    Subsection (d) of this section concerns land within the proposed 
permit area that is identified as prime farmland. Once prime farmland 
is

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identified, the applicant must submit a plan for mining and restoring 
that land. The requirements in subsection (d) were previously approved 
as no less effective than the Federal regulation at 30 CFR 785.17(c). 
Newly added subdivision (8) contains additional application 
requirements for establishing commercial forestry (trees) on those 
portions of prime farmland upon which crops need not be grown to 
demonstrate restoration of soil productivity and revegetation success.
2. 312 IAC 25-6-143 Prime Farmland--Special Performance Standards--
Revegetation and Restoration of Soil Productivity
    Indiana added new subsection (c) to read as follows:

    (c) Commercial forest resources may be established on reclaimed 
prime farmland provided that productivity is demonstrated by 
subsection (b) and as follows:
    (1) The director has approved a forest planting plan and forest 
management plan in consultation with the division of forestry.
    (2) Landowner consent has been obtained.
    (3) Forest compatible, permanent ground cover sufficient to 
control erosion is established and all erosion areas must be 
repaired or otherwise stabilized.
    (4) The required soil replacement depth is verified and approved 
before trees are planted.
    (5) Soil productivity shall be demonstrated under subsection 
(b).

    Subsection (b) of this section contains Indiana's requirements for 
revegetation and restoration of soil productivity for prime farmland. 
These requirements were previously approved as no less effective than 
the Federal regulation at 30 CFR 823.15(b). Newly added subsection (c) 
contains the additional requirements needed for planting commercial 
trees on those portions of reclaimed prime farmland upon which crops 
need not be grown to demonstrate restoration of soil productivity and 
revegetation success.
    The Federal regulation at 30 CFR 785.17(e)(1) provides that the 
regulatory authority may approve mining and reclamation of prime 
farmland only if it first finds that the approved postmining land use 
of those prime farmlands is cropland. Originally designated as 30 CFR 
785.17(d)(1) when first adopted on March 13, 1979, the preamble 
explains this provision as meaning that ``* * * at the time the bond is 
released, the land must both be capable of supporting prime farmland 
use and must actually be in use as prime farmland.'' See 44 FR 15086, 
March 13, 1979. (That portion of the preamble uses the term ``prime 
farmland'' as a synonym for cropland.) Consistent with this preamble 
discussion, the 1979 version of the prime farmland revegetation success 
standards at 30 CFR 823.15(b) required that crops be planted on ``* * * 
any portion of the permit area which is prime farmland * * *''
    Illinois challenged 30 CFR 785.17(d)(1) as being inconsistent with 
section 515(b)(2) of SMCRA, which requires that surface coal mining and 
reclamation operations ``* * * restore the land affected to a condition 
capable of supporting the uses which it was capable of supporting prior 
to any mining, or to higher or better uses * * *'' The court rejected 
this challenge, citing what it characterized as ``clear congressional 
intent to restore prime farmland to cropland'' and noting that section 
519(c)(2) of the Act prohibits release of bond ``* * * until soil 
productivity for prime farm lands has returned to equivalent levels of 
yield as nonmined land of the same soil type in the surrounding area 
under equivalent management practices * * *.'' The court stated that 
``[t]his equivalency standard could not be achieved absent the 
postmining employment of prime farmland as cropland.'' See In Re: 
Permanent Surface Mining Regulation Litigation, Round II (PSMRL, Round 
II), 19 ERC 1480, 1482 (D.D.C. May 16, 1980).
    The rationale set forth in that decision is arguably inconsistent 
with the court's earlier decision on a similar challenge to the 
revegetation success standards for prime farmland--in 30 CFR 823.11(c) 
and 823.15(b) and (c)--by the National Coal Association (NCA). As 
originally adopted on March 13, 1979, paragraph (b) of 30 CFR 823.15 
provided that ``* * * any portion of the permit area which is prime 
farmland must be used for crops commonly grown, such as corn, soybeans, 
cotton, grain, hay, sorghum, wheat, oats, barley, or other crops on 
surrounding prime farmland.'' In the NCA case, the court upheld the 
challenge, finding that ``* * * the Act fails to provide statutory 
support for requiring coal operators to engage in farming.'' See In Re: 
Permanent Surface Mining Regulation Litigation, Round I (PSMRL, Round 
I), 14 ERC 1083, 1106 (D.D.C. February 26, 1980). Referring to a number 
of statutory provisions, including those the court later cited as a 
basis for its conflicting decision on 30 CFR 785.17(d)(1) in PSMRL, 
Round II, the court stated that--

    These statutory enactments do not command a coal operator to 
actually farm the land. Instead, they direct the operator to 
demonstrate capability of prime farmlands to support pre-mining 
productivity.

    See PSMRL, Round I, 14 ERC 1083, 1106.
    In a subsequent rulemaking, we incorporated aspects of both 
decisions. First, the revised rules at 30 CFR 823.15(b) retain the 
requirement that crops be grown to demonstrate the restoration of soil 
productivity for prime farmland. The preamble explains that we ``* * * 
determined that cropping is the only method currently available to test 
the restoration of the productivity of prime farmland soils because 
insufficient research has been published that demonstrates the 
reliability of any other method.'' See 48 FR 21458, May 12, 1983.
    Second, we did not adopt the proposed rule to the extent that it, 
like the 1979 rule, would have required crops to be grown on any 
portion of the disturbed area that is prime farmland historically used 
as cropland. Instead, revised section 823.15(b)(2) requires that soil 
productivity ``* * * be measured on a representative sample or on all 
of the mined and reclaimed prime farmland area using the reference crop 
determined under paragraph (b)(6) of this section.'' As explained in 
the preamble, the revised rule reflects an agreement between OSM and 
the Soil Conservation Service [since renamed the Natural Resources 
Conservation Service] ``* * * that the amount of prime farmland area 
used to grow crops for proof of soil productivity could include the 
entire mined and reclaimed prime farmland area or a portion of the 
mined and reclaimed prime farmland area which would result in a 
statistically valid sample at a 90 percent confidence level.'' See 48 
FR 21459, May 12, 1983. The courts upheld the revised rules. See In Re: 
Permanent Surface Mining Regulation Litigation II, Round II, 21 ERC 
1724, 1732-34 (D.D.C. October 1, 1984) and NWF v. Hodel, 839 F.2d 694, 
716-718 (D.C. Cir. 1988). Consequently, the 1979 preamble discussion of 
30 CFR 785.17(d)(1) [since redesignated as paragraph (e)(1)] is no 
longer valid to the extent that it required all prime farmland to be 
planted with crops. That requirement now applies only to those portions 
of the reclaimed prime farmland that are to be used to demonstrate 
restoration of soil productivity and revegetation success.
    Therefore, based on the foregoing discussion, we find that 
Indiana's proposed amendment is not inconsistent with and is no less 
effective than the Federal rules at 30 CFR 785.17(e)(1) and 823.15. 
First, like the Federal rules at 30 CFR 785.17(e)(1), the Indiana rules 
require that the postmining land use of all prime farmland be cropland, 
which means that, consistent with 30 CFR 816.133(a), 817.133(a), and 
823.14, all disturbed

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prime farmland must be restored to conditions that are capable of 
supporting cropland. Second, like the Federal rules at 30 CFR 
823.15(b), the Indiana rules require, among other things, that 
measurement of soil productivity be initiated within 10 years after 
completion of soil replacement and that revegetation success be 
determined on the basis of crops grown on all or a representative 
sample of the mined and reclaimed prime farmland. Indiana's proposed 
amendment at 312 IAC 25-6-143(c) would not alter any of these 
requirements. Instead, it addresses revegetation of those portions of 
the reclaimed prime farmland on which crops will not be grown. 
Consistent with 30 CFR 823.15(a), which requires that the soil surface 
be stabilized with a vegetation cover or other means that effectively 
controls soil loss by wind and water erosion, proposed 312 IAC 25-6-
143(c)(3) requires establishment of a permanent ground cover sufficient 
to control erosion.
    Based on the discussion above, we are approving Indiana's revisions 
at 312 IAC 25-4-102(d)(8) and 25-6-143(c) as no less effective than the 
Federal regulations.

IV. Summary and Disposition of Comments

Public Comments

    We asked for public comments on the amendment, but did not receive 
any.

Federal Agency Comments

    On October 27, 2006, under 30 CFR 732.17(h)(11)(i) and section 
503(b) of SMCRA, we requested comments on the amendment from various 
Federal agencies with an actual or potential interest in the Indiana 
program (Administrative Record No. IND-1740). We received two comments; 
one from the U.S. Fish and Wildlife Service and one from the U.S. 
Department of Agriculture's Forest Service. The U.S. Fish and Wildlife 
Service responded on November 8, 2006 (Administrative Record No. IND-
1742), stating that it supports Indiana's proposed program amendment. 
The Forest Service responded on December 4, 2006 (Administrative Record 
No. IND-1743), that it too supports this amendment.

Environmental Protection Agency (EPA) Concurrence and Comments

    Under 30 CFR 732.17(h)(11)(ii), we are required to get a written 
concurrence from EPA for those provisions of the program amendment that 
relate to air or water quality standards issued under the authority of 
the Clean Water Act (33 U.S.C. 1251 et seq.) or the Clean Air Act (42 
U.S.C. 7401 et seq.). None of the revisions that Indiana proposed to 
make in this amendment pertain to air or water quality standards. 
Therefore, we did not ask EPA to concur on the amendment. However, on 
October 27, 2006, under 30 CFR 732.17(h)(11)(i), we requested comments 
on the amendment from EPA (Administrative Record No. IND-1740). EPA did 
not respond to our request.

State Historical Preservation Officer (SHPO) and the Advisory Council 
on Historic Preservation (ACHP)

    Under 30 CFR 732.17(h)(4), we are required to request comments from 
the SHPO and ACHP on amendments that may have an effect on historic 
properties. On October 27, 2006, we requested comments on Indiana's 
amendment (Administrative Record No. IND-1740), but neither responded 
to our request.

V. OSM's Decision

    Based on the above findings, we approve the amendment Indiana sent 
us on October 23, 2006.
    To implement this decision, we are amending the Federal regulations 
at 30 CFR part 914, which codify decisions concerning the Indiana 
program. We find that good cause exists under 5 U.S.C. 553(d)(3) to 
make this final rule effective immediately. Section 503(a) of SMCRA 
requires that the State's program demonstrate that the State has the 
capability of carrying out the provisions of the Act and meeting its 
purposes. Making this rule effective immediately will expedite that 
process. SMCRA requires consistency of State and Federal standards.

Effect of OSM's Decision

    Section 503 of SMCRA provides that a State may not exercise 
jurisdiction under SMCRA unless the State program is approved by the 
Secretary. Similarly, 30 CFR 732.17(a) requires that any change to an 
approved State program be submitted to OSM for review as a program 
amendment. The Federal regulations at 30 CFR 732.17(g) prohibit any 
changes to approved State programs that are not approved by OSM. In the 
oversight of the Indiana program, we will recognize only the statutes, 
rules and other materials we have approved, together with any 
consistent implementing policies, directives and other materials. We 
will require Indiana to enforce only approved provisions.

VI. Procedural Determinations

Executive Order 12630--Takings

    The provisions in the rule based on counterpart Federal regulations 
do not have takings implications. This determination is based on the 
analysis performed for the counterpart Federal regulations. The 
revisions made at the initiative of the State that do not have Federal 
counterparts have also been reviewed and a determination made that they 
do not have takings implications. This determination is based on the 
fact that this rulemaking has no takings implications.

Executive Order 12866--Regulatory Planning and Review

    This rule is exempted from review by the Office of Management and 
Budget (OMB) under Executive Order 12866.

Executive Order 12988--Civil Justice Reform

    The Department of the Interior has conducted the reviews required 
by section 3 of Executive Order 12988 and has determined that this rule 
meets the applicable standards of subsections (a) and (b) of that 
section. However, these standards are not applicable to the actual 
language of State regulatory programs and program amendments because 
each program is drafted and promulgated by a specific State, not by 
OSM. Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and 
the Federal regulations at 30 CFR 730.11, 732.15, and 732.17(h)(10), 
decisions on proposed State regulatory programs and program amendments 
submitted by the States must be based solely on a determination of 
whether the submittal is consistent with SMCRA and its implementing 
Federal regulations and whether the other requirements of 30 CFR parts 
730, 731, and 732 have been met.

Executive Order 13132--Federalism

    This rule does not have Federalism implications. SMCRA delineates 
the roles of the Federal and State governments with regard to the 
regulation of surface coal mining and reclamation operations. One of 
the purposes of SMCRA is to ``establish a nationwide program to protect 
society and the environment from the adverse effects of surface coal 
mining operations.'' Section 503(a)(1) of SMCRA requires that State 
laws regulating surface coal mining and reclamation operations be ``in 
accordance with'' the requirements of SMCRA, and section 503(a)(7) 
requires that State programs contain rules and regulations ``consistent 
with'' regulations issued by the Secretary pursuant to SMCRA.

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Executive Order 13175--Consultation and Coordination With Indian Tribal 
Governments

    In accordance with Executive Order 13175, we have evaluated the 
potential effects of this rule on Federally-recognized Indian tribes 
and have determined that the rule does not have substantial direct 
effects on one or more Indian tribes, on the relationship between the 
Federal Government and Indian tribes, or on the distribution of power 
and responsibilities between the Federal Government and Indian tribes. 
This determination is based on the fact that the Indiana program does 
not regulate coal exploration and surface coal mining and reclamation 
operations on Indian lands. Therefore, the Indiana program has no 
effect on Federally-recognized Indian tribes.

Executive Order 13211--Regulations That Significantly Affect the 
Supply, Distribution, or Use of Energy

    On May 18, 2001, the President issued Executive Order 13211 which 
requires agencies to prepare a Statement of Energy Effects for a rule 
that is (1) considered significant under Executive Order 12866, and (2) 
likely to have a significant adverse effect on the supply, 
distribution, or use of energy. Because this rule is exempt from review 
under Executive Order 12866 and is not expected to have a significant 
adverse effect on the supply, distribution, or use of energy, a 
Statement of Energy Effects is not required.

National Environmental Policy Act

    This rule does not require an environmental impact statement 
because section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that 
agency decisions on proposed State regulatory program provisions do not 
constitute major Federal actions within the meaning of section 
102(2)(C) of the National Environmental Policy Act (42 U.S.C. 
4332(2)(C)).

Paperwork Reduction Act

    This rule does not contain information collection requirements that 
require approval by OMB under the Paperwork Reduction Act (44 U.S.C. 
3507 et seq.).

Regulatory Flexibility Act

    The Department of the Interior certifies that a portion of the 
provisions in this rule will not have a significant economic impact on 
a substantial number of small entities under the Regulatory Flexibility 
Act (5 U.S.C. 601 et seq.) because they are based upon counterpart 
Federal regulations for which an economic analysis was prepared and 
certification made that such regulations would not have a significant 
economic effect upon a substantial number of small entities. In making 
the determination as to whether this part of the rule would have a 
significant economic impact, the Department relied upon the data and 
assumptions for the counterpart Federal regulations. The Department of 
the Interior also certifies that the provisions in this rule that are 
not based upon counterpart Federal regulations will not have a 
significant economic impact on a substantial number of small entities 
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). This 
determination is based upon the fact that the provisions are voluntary 
and as such are not expected to have a substantive effect on the 
regulated industry.

Small Business Regulatory Enforcement Fairness Act

    This rule is not a major rule under 5 U.S.C. 804(2), the Small 
Business Regulatory Enforcement Fairness Act. This rule: (a) Does not 
have an annual effect on the economy of $100 million; (b) Will not 
cause a major increase in costs or prices for consumers, individual 
industries, Federal, State, or local government agencies, or geographic 
regions; and (c) Does not have significant adverse effects on 
competition, employment, investment, productivity, innovation, or the 
ability of U.S.-based enterprises to compete with foreign-based 
enterprises. This determination is based upon the fact that a portion 
of the State provisions are based upon counterpart Federal regulations 
for which an analysis was prepared and a determination made that the 
Federal regulation was not considered a major rule. For the portion of 
the State provisions that is not based upon counterpart Federal 
regulations, this determination is based upon the fact that the State 
provisions are voluntary and as such are not expected to have a 
substantive effect on the regulated industry.

Unfunded Mandates

    This rule will not impose an unfunded mandate on State, local, or 
tribal governments or the private sector of $100 million or more in any 
given year. This determination is based upon the fact that a portion of 
the State submittal, which is the subject of this rule, is based upon 
counterpart Federal regulations for which an analysis was prepared and 
a determination made that the Federal regulation did not impose an 
unfunded mandate. For the portion of the State provisions that is not 
based upon counterpart Federal regulations, this determination is based 
upon the fact that the State provisions are voluntary and as such are 
not expected to have a substantive effect on the regulated industry.

List of Subjects in 30 CFR Part 914

    Intergovernmental relations, Surface mining, Underground mining.

     Dated: April 19, 2007.
Ervin J. Barchenger,
Acting Regional Director, Mid-Continent Region.

0
For the reasons set out in the preamble, 30 CFR part 914 is amended as 
set forth below:

PART 914--INDIANA

0
1. The authority citation for part 914 continues to read as follows:

    Authority: 30 U.S.C. 1201 et seq.

0
2. Section 914.15 is amended in the table by adding a new entry in 
chronological order by ``Date of final publication'' to read as 
follows:


Sec.  914.15  Approval of Indiana regulatory program amendments.

* * * * *

------------------------------------------------------------------------
 Original amendment submission    Date of final
             date                  publication      Citation/description
------------------------------------------------------------------------
 
                              * * * * * * *
October 23, 2006..............  May 21, 2007.....  312 IAC 25-4-
                                                    102(a)(1) and (3);
                                                    (b); (d)(4), (6),
                                                    and (8); (e)(3);
                                                    (f)(5); 25-6-
                                                    143(b)(3) and (8),
                                                    (c).
------------------------------------------------------------------------

[FR Doc. E7-9674 Filed 5-18-07; 8:45 am]
BILLING CODE 4310-05-P