Rule · SBS · 12 Feb 2010 · Resolución SBS 1661-2010
AFPs must run a national information campaign, verify minimum ages and twelve months without contributions, and reject requests with credited contributions despite the sworn declaration. Affiliates must attend in person with a Sworn Declaration of unemployment of at least twelve months. AFPs must calculate using the RMV at application date, CIC contributions and returns, and the BdR value; if the pension is below the RMV, DA 29426 applies. Procedures involving CIC movement become ineffective upon request; fraudulent means bar reapplication.
Lima, 12 February 2010
That, by means of Law No. 29426, published in the Official Gazette El Peruano on 27 October 2009, the Law creating the Special Early Retirement Regime of a temporary nature in the Private Pension System (SPP) was approved, intended for those affiliates who have a minimum of fifty (50) years of age, in the case of women; and fifty-five (55) years, in the case of men, are in a situation of unemployment of twelve (12) months or more and reach a pension equal to or greater than the value of a Minimum Vital Remuneration (RMV);
That, likewise, the aforementioned rule introduces a complementary benefit in the case of those affiliates who do not access a pension under the conditions of the aforementioned Law, in which case the Return of Contributions of fifty percent (50%) of the contributions accumulated in the Individual Capitalization Account (CIC) would apply;
That, by means of Supreme Decree No. 303-2009-EF, published in the Official Gazette El Peruano on 22 December 2009, the Regulations of the aforementioned Law were approved, which establish, among others, the conditions and guidelines to which SPP affiliates wishing to access the benefits provided for in the aforementioned legal provision must adhere;
That, in that sense, it is necessary to issue the operational provisions that allow the exercise of the benefits for those affiliates who fall within the scope of the so-called Special Early Retirement Regime (REJA 29426) and Returns of Contributions (DA 29426), based on the provisions of Law No. 29426;
That, Article 5 of Supreme Decree No. 303-2009-EF empowers the Superintendency of Banking, Insurance and Private Pension Fund Administrators as well as the Pension Standardization Office (ONP) to issue the respective operational regulation in order to make viable the provisions contained in the aforementioned Supreme Decree;
That, in order to gather the opinions of the public in general, regarding the proposed amendments to the SPP regulations, the pre publication of the draft resolution on the matter on the electronic portal of the Superintendency was arranged, pursuant to the provisions of Supreme Decree No. 001-2009-JUS;
Taking into account the opinion of the Deputy
Superintendencies of Private Pension Fund Administrators and of Legal Advisory, and;
In exercise of the powers conferred by item 9 of
Article 349 of the General Law of the Financial System and the Insurance System and Organic Law of
the Superintendency of Banking and Insurance, Law No. 26702 and its amendments, subsection d) of
Article 57 of the Single Ordered Text of the Law of the Private Pension Fund Management
System, approved by Supreme Decree No. 054-97-EF,
Article First.- To approve the Operational Regulations of the Special Early Retirement Regime for the Unemployed in the SPP, referred to in Law No. 29426 and Supreme Decree 303-2009-EF, under the following text:
Article 1.- Scope of application.- These Operational Regulations establish the applicable procedures for the processing of pensions under the Special Early Retirement Regime for the Unemployed (REJA 29426) and Returns of Contributions (DA 29426), based on the provisions of Law No. 29426 and Supreme Decree No. 303-2009-EF.
Article 2.- Definitions.- For the purposes of these Regulations and the complementary rules, the following definitions shall be used:
Affiliates: those workers (employees or self-employed) who are incorporated into the SPP.
AFP: Private Pension Fund Administrators.
BdR: Recognition Bond 1992, 1996 or 2001.
CIC: Individual Capitalization Account.
Days: Business days, unless expressly indicated otherwise.
SUPERINTENDENCY OF BANKING, INSURANCE AND AFP
The AFPs or the association that groups them will carry out a national-level guidance and information campaign regarding, at least, the following: a) the scope of the Law and its regulations, b) the effects of each of the benefits, and; c) the conditions that each affiliate must observe to access the benefits provided for in Law No. 29426.
In this stage, the AFPs will be responsible for objectively accrediting the provision of information regarding the conditions indicated above, in such a way that – prior to the submission of the pension application under the REJA 29426 or the DA 29426 – the affiliates are fully informed and can make a responsible decision regarding their pension situation.
In this stage, the AFP must determine whether the affiliate has access to the Regime. To this end, affiliates will request that the AFP schedule an appointment for them, through the objective and verifiable means established by the Administrator, so that they can receive specialized and personalized guidance in order to formalize the submission of their request for access to the Regime before the Administrator. The AFP shall keep the Superintendency informed of the time elapsed between affiliates' requests for service and the actual appointments.
The procedure is of an in-person nature, which requires the affiliate to go to the AFP in order to deliver the documentation resulting from this procedure. In the event that the affiliate is unable to carry out the procedure in person, they may do so through a representative, subject to the provisions issued by the Superintendency in this regard.
Once the appointment is set, the affiliate shall attend on the date and time indicated, attaching:
i) Simple copy of the identity document.
ii) Sworn Declaration of meeting the condition of unemployment for a period of at least twelve (12) months prior to the request, the format of which forms part of this regulation. Said format shall be provided by the AFP and signed by the affiliate.
SUPERINTENDENCY OF BANKING, INSURANCE AND AFP
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The AFP shall proceed to verify, sequentially:
The AFP shall verify compliance with the minimum ages for access to benefits, in accordance with the provisions of letter a) of Article 1 of the Law and its Regulations.
The AFP shall verify that the affiliate has no contributions credited or accrued for the last twelve (12) months of accrual prior to the request. Contributions made under the condition of independent affiliate within the aforementioned period, not implying a condition of employment, do not preclude access to the benefits provided for in the Law. For this purpose, the AFP shall generate an Account Statement that will form part of the file.
If, as a result of the verification mentioned in the preceding paragraph, periods of contribution under an employment relationship are detected, despite the Sworn Declaration submitted by the affiliate, the request shall be rejected. Notwithstanding the foregoing, the affiliate may submit a new request, attaching for that purpose the documentation that substantiates the completion or non-existence of the employment link with the employer, through a legalized copy of the social benefits settlement or a CTS withdrawal certificate and/or Sworn Declaration of the Employer with a copy of the Resignation or Dismissal Letter, or other documents of a similar nature.
Therefore, in the event that the affiliate fails to meet any of these requirements, the request shall be rejected, with the AFP indicating on the respective form the basis for the denial as well as the due accreditation of the personalized guidance provided to them as part of the procedure.
At this stage, the AFP must verify, based on the resulting pension amount, access to the pension benefit or to DA 29426. For this purpose, the AFP shall follow the following procedure:
For the purposes of calculating the pension that will serve as a reference to determine access or not to REJA 29426, the AFP must consider the RMV in force at the date of submission of the application, in accordance with the provisions of subsection c) of article 1 of the Regulation.
In addition to this, the Administrator must consider the mandatory contributions and voluntary contributions with pension purpose, plus the return generated by both, that the member had in the CIC at the date of submission of the application.
Los Laureles No. 214 - Lima 27 - Peru Tel.: (511)2218990 Fax: (511) 4417760
The AFP must consider the definitive value of the BdR appearing in the Verification Resolution issued by ONP when it recognizes one hundred percent (100%) of what was declared by the member, or the value accepted by the latter through a Letter of Conformity or the value of the BdR Title.
However, the following must be taken into consideration:
a. If the member does not have a definitive value of the BdR, the AFP must perform the calculation based on the value recorded in the Certificate of the aforementioned security, in which case if the pension is greater than or equal to the RMV, the procedure shall be suspended until confirmation of the value by the ONP. If the value of the pension is less than the RMV, it shall be subject to the DA 29426 procedure.
b. On the other hand, if the member only has the initiation of the BdR procedure, the AFP must perform the calculation based on the value declared in the BdR application, in which case if the pension is greater than or equal to the RMV, the procedure shall be suspended until confirmation of the value by the ONP. If the value of the pension is less than the RMV, it shall be subject to the DA 29426 procedure.
c. On the other hand, if the member has declared a right to BdR, has not initiated the procedure for said security, and wishes to obtain a decision regarding this Regime, they must submit a Sworn Declaration rectifying the information on the right to BdR consigned in the Affiliation Contract, and the AFP shall proceed to perform the calculation considering only the contributions indicated in section 1.2 of this article. If the member does not submit the aforementioned Sworn Declaration, the procedure shall be suspended until the BdR procedure is initiated or the member complies with submitting the corresponding rectifying Sworn Declaration.
d. Likewise, if the member has declared not to have a right to BdR in their Affiliation Contract or there is no information on the right to the aforementioned benefit, the AFP shall proceed to perform the calculation considering the criterion indicated in the previous subsection.
In the cases of suspension of the process of evaluation of the benefit to be granted referred to in this numeral, the AFP shall be responsible for carrying out the necessary steps to obtain the pronouncement of the ONP that allows for a definitive value of the BdR, for which purpose it shall adhere to the formalities established by the ONP to grant priority to BdR applications in pension cases, pursuant to the provisions of article 2 of the Regulation.
The calculated pension shall be made under the criteria of the Family Life Annuity considering a technical interest rate of 3.90% and with the following particularities: a) the provision for funeral expenses shall not be considered, as well as the composition of the family group and b) the calculation of Pension Surplus shall not be made.
Once the aforementioned process is completed, the AFP shall generate and sign with the member the format of the Annex of “Determination of access to the Special Early Retirement Regime for Unemployed Persons in the Private Pension System” that is part of the present operating regulation and where the alternative available to the member is established, so that the member knows the result of the process and of their options. At that stage, the AFP must guarantee, objectively, the provision of information regarding the aforementioned conditions, as well as the information on the withdrawal and/or pension options that exist in the SPP, in accordance with the provisions of Resolution SBS No. 2370-2016, prior to the submission of the pension application or of DA 29426, so that the member is fully informed. Therefore, at the same opportunity in which the member signs the Format of “Determination of access to the Special Early Retirement Regime for Unemployed Persons in the Private Pension System” the AFP must comply with the provisions of article 5 of the Operating Procedure for the exercise of options by the member when they reach retirement age or access the REJA, approved by Resolution No. 2370-2016 and its amendments, as well as each of the consequences of the alternatives, so that, prior to the submission of the format of decision of withdrawal and/or pension option or pension application, the member is fully informed. 1
If the member does not have sufficient Pension Capital to finance a retirement pension under the scope of REJA 29426, they may sign the Withdrawal and/or Pension Option Format in order to request, only in their case, the withdrawal of up to 95.5% of the balance of their CIC, subject to the procedure and deadlines established in Resolution SBS No. 2370-2016. 2
On the other hand, in the case of members who have sufficient Pension Capital to access a pension, the AFP shall schedule an appointment, through the objective and verifiable means established by the Administrator, in order to formalize the submission of the withdrawal and/or pension option decision format. 3
It should be noted that the Administrator, upon the signing of the aforementioned Section I and, as a consequence of the accreditation of the family group, is responsible for confirming, through a new calculation, whether the member accesses the pension benefit. In that regard, the aforementioned calculation shall consider the information as of the date of said new evaluation.
If, in accordance with the provisions of the preceding article, the AFP confirms compliance with the conditions for access to a pension, it shall proceed to notify the member – through the format
[1] Paragraph replaced by Resolution SBS No. 3663-2016, published on 02.07.2016.
[2] Paragraph replaced by Resolution SBS No. 3663-2016, published on 02.07.2016.
[3] Paragraph replaced by Resolution SBS No. 3663-2016, published on 02.07.2016.
Los Laureles No. 214 - Lima 27 - Peru Tel.: (511)2218990 Fax: (511) 4417760
indicated in the previous article – that they meet the requirements to access a pension under REJA 29426, indicating the place and date, which shall not exceed five (5) days after completion of the procedure established in the previous article, to appear in order to proceed with the signing and completion of Section II of the Retirement Pension Application, in accordance with the provisions of Title VII of the Compendium of Regulations of the Superintendency of the SPP.
If the member who accesses the Retirement Pension under the scope of REJA 29426 has an incomplete account, they shall be subject, as applicable, to the provisions of article 121 of Title VII of the Compendium of Regulations of the Superintendency of the SPP.
On the other hand, if it is confirmed that the member does not meet the conditions for access to a pension under the scope of REJA 29426, the process shall be subject to the procedure provided in Chapter III of this operating regulation.
The ONP shall establish the conditions that allow priority to be given to BdR applications in pension cases, subject, at most, to the deadlines referred to in articles 10 and 11 of Supreme Decree No. 180-94-EF, in accordance with the provisions of article 2 of the Regulation.
Once the redemption value of the member's BdR has been accredited, the member shall be subject to the provisions of Title VII of the Compendium of Regulations of the Superintendency of the SPP, with respect to the process of contributions and choice of pension.
Likewise, with regard to the procedure for the payment of pension, the AFP shall be subject to the conditions set forth in article 57 of the aforementioned Title VII.
Given the nature of the procedure and in accordance with the provisions of article 4° of the Regulation, the member who accesses the benefit of DA 29426 shall maintain their status as an active member. Therefore, they may obtain benefits with State Guarantee referred to in Laws No. 27617, 27252 or 28991 or pension coverage for risks of invalidity, survival and funeral expenses, as well as disaffiliation from the SPP.
[4] Article left without effect by Resolution SBS No. 3663-2016, published on 02.07.2016.
[5] Article left without effect by Resolution SBS No. 3663-2016, published on 02.07.2016.
Los Laureles No. 214 - Lima 27 - Peru Tel.: (511)2218990 Fax: (511) 4417760
By virtue of the provisions of the preceding article, the member may access the pension insurance coverage, provided that they are not included within any of the grounds for exclusion and have the necessary contributions for purposes of accessing a pension with insurance coverage.
It should be noted that the AFP shall adhere to the conditions established in Title VII of the Compendium of Regulatory Superintendency Rules of the SPP for purposes of initiating the procedure and payment of invalidity and survival pension. In addition to this, and once the initial additional contribution is constituted, the insurance company shall deduct the amount – resulting from the valuation of the corresponding quotas – received by effect of DA 29426.
The regularization of the amounts returned constitutes an indispensable requirement in order to access the pension benefits with State Guarantee referred to in Laws No. 27617, 27252 or 28991. In that sense, in accordance with the provisions of article 5° of the Regulation, the conditions, amounts and deadlines for the aforementioned regularization shall be established by the ONP, with respect to those cases where said entity has concluded the verification process in relation to compliance with the requirements and conditions to be entitled to said benefits.
The amount that was subject to return must be regularized in accordance with the criteria established in the Operating Regulation of Law No. 28991, approved by Resolution SBS No. 1041-2007, as well as the provisions related to Disaffiliation from the SPP due to the cause of lack of information, ordered by the Constitutional Court, as the case may be.
First.-. Opportunity for attention.- In the event the member attends without having arranged an appointment or after the time set to formalize their application for access to the regime subject of this regulation, the AFP must implement the necessary means to provide adequate attention within the established general attention hours.
Second.- Application for Retirement Pension.- For purposes of signing and filling out the Application for Retirement Pension referred to in this regulation, the AFPs must distinguish the applications included under these cases, registering at the top of all sections in visible characters, the denomination “Special Early Retirement Regime for Unemployed- Law 29426”.
Third.- Falsification and/or adulteration of information.-. If from the review carried out by the AFP for the accreditation of access to a benefit provided by Law No. 29426, it is determined that there are reasonable indications of any administrative infraction, that is, the use of
Los Laureles No. 214 - Lima 27 - Peru Tel.: (511)2218990 Fax: (511) 4417760
any fraudulent means, cunning or artifice destined to obtain for oneself or third parties, an undue benefit, the AFP must initiate the corresponding actions. By virtue of said circumstance, the member may not again submit an application for access to the referred Regime.
Fourth.- Access to the REJA 29426 and accrual date.- Access to the referred regime shall be applicable to all those who, complying with the minimum ages provided in numeral 1.1 of article 4°, have not reached 65 years of age, in months and days, as of the date of entry into force of this operating regulation.
Likewise, in the case of those members who have reached the legal retirement age between the date of entry into force of the law and this operating regulation, the accrual date of their pensions shall correspond to that established for the receipt of the respective applications.
Fifth.-Treatment of the Pension Surplus during the REJA 29426.- For purposes of accessing the Pension Surplus, the conditions provided by article 9° of Title VII of the Compendium of Regulatory Superintendency Rules of the SPP are applicable, with the particularity that the reference in literal a.1) to the Minimum Pension must be understood as made to the Minimum Vital Remuneration.
Sixth.- Contributions withheld and not paid within the SPP.- The AFPs have the obligation to continue the administrative or judicial procedures related to payment of pension contributions until their conclusion. The amounts recovered by the AFP shall be subject to the conditions set forth in the SPP regulations.
Seventh.- Update of the Pension Capital once the process of suspension of the pension procedure under REJA 29426 has concluded.- Once the verification process of the BdR procedure before the ONP has concluded, the AFP must calculate the reference pension based on the new information made up of the Pension Capital in order to complete the stage of determining access to the benefits provided for in Law No. 29426, in accordance with the provisions of article 5 of this operating regulation. In this regard, for said purpose, the information as of the date of said evaluation shall be considered.
Eighth.- Customer service locations.- Pursuant to the provisions of article 3 of this Operating Regulation, the AFPs, individually or through the Association that groups them, may establish other customer service establishments in order to serve the population affiliated with the SPP that wishes to request the benefits provided for in Law No. 29426, and their authorization by the Superintendency shall be granted automatically upon request by the AFP or the trade entity that groups them and subject to subsequent verification, based on the following minimum operating conditions:
a) Geographic location and address of the service center. For this purpose, the provisions of article 3 of Title III of the Compendium of Superintendency Regulations of the Private Pension System, referring to Business Management, shall be taken into consideration;
b) Physical space, infrastructure and furniture suitable for customer service;
c) Furniture in which information may be made available to the public corresponding to the AFP and the SPP, as well as the forms for transactions to be carried out by the affiliates and the general public.
For this purpose, the AFP or the trade body that groups them must submit a request to the Superintendency communicating such decision, which shall contain – in addition to the characteristics indicated in the preceding paragraph – the following information:
a) Name of the responsible AFP representative;
b) Sworn statement of the General Manager of the AFP, referring to the operating and functioning conditions of the office and the number of affiliates that would potentially be served.
The communication that, if applicable, is sent by the trade entity that groups the AFPs has the sole purpose of facilitating the procedures for centralizing the processing of the requests submitted, and in no case transfers or replaces the responsibility that exclusively corresponds to the AFP that has under its charge the affiliate requesting to avail himself/herself of the Law.
The operating authorization shall be automatic. However, it shall be subject to subsequent verification through which the authorization could be suspended or canceled, at any time, by the Superintendency itself, if it verifies that the operating conditions do not conform to the established requirements and objectives contained in this regulation. For this purpose, any divergence that may arise, the AFP or the entity that groups them shall necessarily submit to the pronouncement of the Superintendency, which, in the absence of legal provisions regulating the SPP, shall resolve based on the criterion of greater protection for the affiliates.
In those places where the AFP does not have service establishments, and an affiliate is unable to go to the Administrator to process the benefits provided for in Law No. 29426, the AFP must, under its responsibility, implement the necessary actions for service or, as a last resort, assign a representative to carry out the corresponding procedure. In any case, the AFP must guarantee timely service to all affiliates who express their willingness to process the benefits subject to this resolution.
The procedures for transfer, fund change at the request of the affiliate, nullity, transfer of funds abroad, multiple affiliation or others established by the Superintendency and that could involve the movement of the CIC, shall be rendered ineffective upon the mere submission of the request through which access to the benefits of Early Retirement Pension REJA 29426 or DA 29426 is determined.
In the case of affiliates who have pension or disaffiliation requests in process, it is a necessary condition that, prior to submitting a request to avail themselves of REJA 29426, they withdraw from the procedure they were carrying out, and provided that said withdrawal is feasible in accordance with the criteria established within the SPP and is final.
Los Laureles No. 214 - Lima 27 - Peru Tel.: (511)2218990 Fax: (511) 4417760
For the purposes of the provisions of the first paragraph of this provision, the conclusion of the procedure shall be understood to be feasible in the following circumstances:
Transfer: Provided that the affiliate has not begun to accrue benefits in the Destination AFP;
Fund change at the request of the affiliate: If the request to avail himself/herself of the regime was submitted the month prior to the fund transfer;
Nullity of Affiliation: If the affiliate does not yet have a Resolution from the Superintendency declaring the nullity of affiliation;
Transfer of Funds Abroad: If the charge has not yet been made in the CIC;
Return of Contributions due to pensioner status of the SPP or another regime: If the charge has not yet been made in the CIC; and,
Multiple affiliation: It will always be necessary for the procedure to conclude before initiating a procedure to avail oneself of the regime.
Tenth.- Withdrawal from an Early Retirement Pension REJA 29426 or DA 29426.- The pension or refund process may conclude in the event that the member requests withdrawal in writing, under the provisions of the General Administrative Procedure Law No. 27444, and provided that the withdrawal is feasible in accordance with the criteria established within the SPP.
Eleventh.- Submission and fulfillment of requirements BdR.- In the event that the documents submitted by the member do not comply with the formalities required by the ONP to be considered valid, the AFP must inform the member of such situation. If, despite this, the member insists on processing their request, the AFP must receive and process it before the ONP, so that the competent entity – similarly to the provisions of numeral 1.3 of article 5 of Resolution SBS No. 1041-2007 – rules on whether or not the requirements for access to said benefits are met.
Twelfth.- Administrative Measures.- Non-compliance with any aspect provided in this operating regulation, inadequate guidance and information, as well as the refusal to attend to information requests made by members before the AFP that is processing the pension or DA 29426, shall be classified as a serious infraction, subject to sanction in accordance with the provisions of the regulations.
However, non-compliance by the AFP with the deadlines of the process provided in this Operating Regulation constitutes a minor infraction, subject to sanction in accordance with the regulations of the SPP.
Article Second.- Incorporate Annex 1 “Sworn Statement of Unemployment Status”, as well as Annex 2 “Determination of access to the Special Early Retirement Regime for Unemployed Persons in the Private Pension System” to this Operating Regulation, which contain the text that, at a minimum, the AFPs will use when establishing their own presentation standards, which are published on the Electronic Portal of the Superintendency (www.sbs.gob.pe), in accordance with the provisions of Supreme Decree No. 001-2009-JUS.
SUPERINTENDENCY OF BANKING, INSURANCE AND AFP
Article Third.- This resolution shall enter into force on the day following its publication in the Official Gazette El Peruano.
Register, communicate and publish.
FELIPE TAM FOX
Superintendent of Banking, Insurance and Pension Fund Administrators
ANNEX 1
“SWORN STATEMENT OF UNEMPLOYMENT SITUATION
LAW NO. 29426
I,........................................................................................, identified with . ........ (type of identity document)..... No. .............................., member of AFP ........................................, declare under oath that I meet the condition of registering a minimum period of twelve (12) uninterrupted and consecutive months of unemployment prior to my application to join the Special Early Retirement Regime for Unemployed Persons of the Private Pension Fund Administration System.
Additionally, I declare that I am aware that if the review carried out by the AFP to verify access to any of the benefits provided by Law No. 29426 determines that there are reasonable indications of any administrative infraction, that is, the use of any fraudulent means, cunning or artifice intended to obtain for oneself or third parties an undue benefit, the AFP will initiate the corresponding actions. Likewise, I declare that I am aware that such circumstance constitutes grounds for impediment to again submit an application to join the aforementioned Regime and, if the pension has already been granted, to lose the pension and return what was unduly collected.
I sign, in sign of acceptance on the .............. days of the month of ........................... of ……...
................................................................
SURNAMES AND NAMES OF THE MEMBER
Type and Number of Identity Document
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“under the provisions of the General Administrative Procedure Law No. 27444”
“by means of Law No. 29426, published in the Official Gazette El Peruano on 27 October 2009, the Law creating the Special Early Retirement Regime”
“subsection d) of Article 57 of the Single Ordered Text of the Law of the Private Pension Fund Management System, approved by Supreme Decree No. 054-97-EF”
“pursuant to the provisions of Supreme Decree No. 001-2009-JUS”
“approved by Resolution No. 1661-2010-SBS.”
“in accordance with the criteria established in the Operating Regulation of Law No. 28991, approved by Resolution SBS No. 1041-2007”
“Operational Regulation of Law No. 29426 that creates the Special Regime for Early Retirement for Unemployed in the Private Pension System, approved by Resolution SBS No. 1661-2010, shall apply.”
“in accordance with article 12 of the Operating Regulation of Law N° 29426, approved by Resolution SBS N° 1661-2010 and its amending norms”
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